716 Preliminary Determinations

It was unnecessary to determine whether the Complainant was in good enough health to file an appeal or whether she was justified in assuming that her attorney had filed an appeal on her behalf because the statute contains no exception for appeals that are late for good cause. Glass v. FF Mark of Wisconsin (LIRC, 12/11/18).

Where the Complainant asserted that he did not receive the preliminary determination until after the deadline for appealing had expired, and those assertions were not inherently implausible, the Complainant must be given an opportunity for a hearing to establish late receipt. Pendleton v. Madison Kipp Corporation (LIRC, 08/22/18).

Wisconsin Admin. Code § DWD 218.05(3) provides that a preliminary determination may be appealed within 20 days of the date of the determination. The rule provides no exception allowing late appeals of preliminary determinations to be considered, even where the appeal is late for good cause. Anderson v. Labor Ready Midwest (LIRC, 12/14/17).

The Complainant filed untimely appeals of an initial determination of no probable cause and a preliminary determination partially dismissing her complaint. There are circumstances in which a late appeal does not foreclose the possibility that the appeal could be addressed and ruled upon, such as in Carlson v. SPF North America (LIRC, 04/27/07), where a party did not have a reasonable opportunity to receive or become aware of the determination within the appeal period. That exception does not apply here, where the Complainant left town without making arrangements to have her mail attended to. Sipprell v. Kenosha Unified Sch. Dist (LIRC, 01/15/15).

In this case, the written appeal of a preliminary determination dismissing the complaint was not received until 24 days after the preliminary determination was issued, and it was, thus, late. The rule governing appeals of preliminary determinations provides no exceptions for late appeals. The Complainant had vision problems, but prior to the issuance of the preliminary determination he had not requested documents to be sent to him in large print. The investigator’s mailing of a large print version of the preliminary determination to the Complainant at his request did not constitute issuance of a new determination so as to set a new appeal period. Nemec v. Sch. Dist. of Washburn (LIRC, 01/30/14).

A hearing should be held in the case of an appeal of a Preliminary Determination which turns on disputed factual issues. Bedynek-Stumm v. City of Madison (LIRC, 11/30/01).

The “preliminary review of complaints” rule found in sec. ILHR 218.05, Wis. Admin. Code, applies to every complaint filed. A complaint is filed when it is received by the Equal Rights Division. If the Division concluded that a complaint failed to identify a Respondent that was subject to the Act, then it was incumbent on it to follow the procedures of the “preliminary review of complaints” rule, rather than to “reject” the complaint and return it to the Complainant with instructions to provide different information in the complaint. Johnson v. Cent. Reg’l Dental Testing Serv. (LIRC, 02/29/96). [Ed. note: Sec. ILHR 218.05, Wis. Admin. Code, has been re-named sec. DWD 218.05, Wis. Admin. Code].

An investigator for the Equal Rights Division concluded that some of the allegations of race discrimination in a complaint were barred by the statute of limitations. The investigator issued a Preliminary Determination and Order dismissing those untimely allegations. The investigator also issued an Initial Determination finding that there was no probable cause to believe that other portions of the complaint (which were timely) established reason to believe that the Respondent had discriminated against the Complainant on the basis of race. The Complainant filed a letter stating that he wished to appeal the finding made in his case. The Division certified the case to hearing on the appeal of the no probable cause portion of the case. The appeal of the Preliminary Determination was referred to the Administrator of the Equal Rights Division for a decision regarding the statute of limitations issue with respect to the remaining portions of the complaint. The Administrator of the Equal Rights Division issued a decision indicating, inter alia, that the Initial Determination in this matter should have been labeled a Preliminary Determination, and that the complaint was dismissed because it was untimely. Subsequently, a notice of hearing was issued on the no probable appeal portion of the case. The Administrative Law Judge assigned to the case dismissed the complaint on the ground that the decision of the Administrator had dismissed the entire complaint. The Labor and Industry Review Commission reversed this decision, believing that the Administrator of the Equal Rights Division had made an essentially ministerial error of failing to observe that there had been not one but two decisions issued by the investigator. The Commission therefore concluded that the Administrator had not intended to dismiss the entire complaint, but only the portions of it as to which the investigator had made a finding of untimeliness. Jones v. Milwaukee County (LIRC, 10/13/94).