STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BARBARA THOMAS, Complainant

ITT TECHNICAL INSTITUTE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200703942, EEOC Case No. 26G200802010C


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on April 4, 2008. On April 25, 2008, the complainant filed a petition for review by facsimile transmission, but it was not received by the ERD until 4:52 p.m., which was after the close of regular business hours of the ERD.

Based upon the commission's review of this matter, and for the reasons stated in the attached Memorandum Opinion of this decision, the Labor and Industry Review Commission concludes that the complainant failed to file a timely petition for commission review, and that in the absence of a timely filed petition the commission is without authority to review the decision of the ALJ.

Accordingly, the commission therefore issues the following:

DECISION

The complainant's petition is dismissed.

Dated and mailed May 29, 2008
thomaba . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

This case concerns complainant Barbara Thomas' attempt to petition for commission review of an ALJ's decision which affirmed a Preliminary Determination and Order (PLO) dismissing Thomas' complaint on the grounds that it did not meet the timeliness requirements under the Wisconsin Fair Employment Act.

The ALJ's decision in this matter was issued on April 4, 2008. With respect to ALJ decisions issued after review of a department PLO dismissing a complaint, Wis. Admin. Code DWD 218.05(3) provides that if the ALJ's "decision affirms the preliminary determination, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21(1)."  (1)

Wisconsin Statute § 111.39(5)(a) provides that "Any respondent or complainant who is dissatisfied with the findings and order of the examiner [i.e., administrative law judge] may file a written petition with the department for review by the commission of the findings and order." (Emphasis added.) Only if a respondent or complainant files a petition within 21 days from the date that a copy of the ALJ's findings and order is mailed does the commission acquire jurisdiction to review the examiner's decision. Wis. Stat. § 111.39(5)(b).

Similarly, with respect to the filing of a petition for commission review, the administrative rules of the Equal Rights Division provide as follows:

The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties. The petition shall be filed with the division's Madison or Milwaukee office. (Emphasis added.)

Wis. Admin. Code § DWD 218.21(2).

The division mailed a copy of the ALJ's decision to Thomas' last known address. The division also mailed a copy of the ALJ's decision to Thomas' attorney.

In order to timely petition for a review of the ALJ's April 4, 2008 decision, Thomas had to file a petition with the division by April 25, 2008. Further, with respect to the filing of documents by facsimile transmission, the administrative rules of the Equal Rights Division provide as follows:

The date of transmission recorded by the division's facsimile machine shall constitute the date of filing of a document under this section, except that documents filed by facsimile after the regular business hours of the division as established by s. 230.35(4)(f), Stats., or on a day when the offices of the division are closed pursuant to s. 230.35(4)(a), Stats., shall be considered filed on the next business day of the division.

Wis. Admin. Code § DWD 218.25(1)(b)(emphasis added).

Wisconsin Statute § 230.35(4)(f) provides as follows:

Monday to Friday the offices of the agencies of state government shall open at 7:45 a.m. and close at 4:30 p.m., with intermissions from 11:45 a.m. to 12:30 p.m. Agencies may, with the permission of the governor, adjust opening and closing hours and intermission periods to relieve traffic congestion or as the needs of the service otherwise require. (Emphasis added.)

Thomas' petition for review was filed by facsimile transmission. The "date of transmission recorded by the division's facsimile machine", shown at the bottom of Thomas' petition, shows the following: "Received Time Apr. 25. 4:52PM" (emphasis added). Thomas' petition for review was thus filed after the regular business hours of the division and considered filed on (Monday) April 28, 2008, the next business day of the division.

Thomas' petition for review was therefore filed three days late. The only statutory exception under which a late petition may be considered by the commission is when the commission is satisfied that the party has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision. Under these circumstances, the commission may extend the time in which to file a petition by another 21 days. Wis. Stat. § 111.39(5)(b). However, there has been no allegation of prejudice because of exceptional delay in the receipt of a copy of the ALJ's decision by Thomas, and therefore the exception in Wis. Stat. § 111.39(5)(b) is not applicable.

The commission notes that in reviewing this matter it has also considered Wisconsin Administrative Code § LIRC 1.025(3), its general administrative rule regarding the filing of petitions for review by facsimile. This administrative rule provision appears to be in conflict with § DWD 218.25(1)(b). Wisconsin Administrative Code § LIRC 1.025(3) provides, in relevant part, as follows:

Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted....A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition....

(Emphasis added.)

However, for several reasons, the commission concludes that its administrative rule regarding facsimile transmission of petitions cannot be considered controlling in situations involving equal rights cases where the facsimile transmission is received by the ERD after the regular business hours of the division. First of all, the filing of a petition for commission review of decisions issued by ERD ALJs is procedurally different than that under the Unemployment Insurance and Worker's Compensation programs, the other two programs over which the commission has review authority. Unlike the UI and WC programs, where petitions for review may be filed with either the UI/WC division or LIRC, by both administrative rule and statute petitions for review of an ERD ALJ's decision may only be filed with the ERD. The fact that by statute the exclusive procedure established for filing petitions for review of ERD ALJ decisions is by filing the petition with the division strongly favors the view that the ERD's own rules governing the procedure for filing of such petitions should be controlling.

Moreover, the Equal Rights Division's administrative rules specifically define "Filing" to solely mean "the physical receipt of a document." Section DWD 218.02(6)(emphasis added). (Compare, for example, the commission's rule regarding unemployment insurances cases where filing means "received or postmarked as provided in s. LIRC 2.015." (2)   Wis. Admin. Code § LIRC 1.025(1). Also, see § LIRC 1.025(4), which permits, except in fair employment and public accommodation cases, the filing of petitions electronically through the internet website of the commission. Under Chapter DWD 218, documents may be filed by electronic mail only if expressly authorized by the equal rights officer or the administrative law judge assigned to the case. Wis. Admin. Code § 218.25(2)). A facsimile transmission emits a document. Thomas' document sent by facsimile transmission was not physically received by the division until 4:52 p.m. on April 25, 2008, which was after the close of the division's regular business hours.

Furthermore, consistent with the division's rules that filing means the physical receipt of a document and that a document filed by facsimile transmission after the regular business hours shall be considered filed on the division's next business day, the commission has held that a complainant's written petition for review was not timely filed with the ERD where the complainant slid it under the door of the Equal Rights Division's office after it had closed for business at 4:30 p.m. on the last day of the appeal period. Wilson v. Milwaukee Bd. of School Directors (LIRC, 07/14/06).

 

cc:
Attorney Sandra G. Radtke
Attorney Michael A. Blickman



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Footnotes:

(1)( Back ) "A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division." Wis. Admin. Code DWD 218.21(1). The ALJ's decision disposes of Thomas' entire complaint and leaves no further proceedings on that complaint pending before the division.

(2)( Back ) This provision provides a number of meanings given to the words "received" and "postmarked".

 


uploaded 2008/06/02