722.1 Filing of appeal

Where the Complainant alleges that never received the initial determination, he should be given a hearing to prove non-receipt and to establish that the non-receipt was not related to his own actions. Nute v. CESA #5 (LIRC, 08/29/23).

Wisconsin Stat. § 801.15, which provides that if a notice is served by mail 3 days shall be added to the prescribed appeal period, applies to proceedings in court and not to matters before the Equal Rights Division. Marigny v. Sunrise Care Ctr. (LIRC, 12/10/21), aff’d. sub nom. Marigny v. LIRC, DWD, and Sunrise Care Ctr. (Milwaukee Co. Cir. Ct., 01/19/23).

An appeal of initial determination by email is not permitted under the Division’s rules. Documents may be filed by email only if expressly authorized by the equal rights officer or administrative law judge. Stone v. Andis Co. (LIRC, 10/15/21).

Although a plausible assertion of non-receipt of a decision should not be rejected without an opportunity for hearing, no hearing is required where the Complainant’s explanations are not plausible. Phelan v. Alter Trading Corp. (LIRC, 11/30/18).

A representative from the Equal Rights Division erroneously informed the Complainant that it was okay to file his appeal “a little late.” Misinformation supplied by a department representative with respect to appeal deadlines is a circumstance that warrants accepting a late appeal. Nickel v. City of Milwaukee (LIRC, 08/30/17).

Dismissal of an appeal on timeliness grounds where a Complainant has mailed an appeal through the United States Postal Service with ample time to ensure its timely receipt, but due to an error or other unusual circumstances beyond the control of the Complainant the letter was not received, would be an absurd result not contemplated by Sec. DWD 218.08, Wis. Admin. Code. Shorey v. Dillon Bindery, Inc. (LIRC, 10/31/16).

The Complainant can rebut the presumption of receipt of the initial determination by offering credible testimony of non-receipt. The fact that the Complainant received other mail from the Department does not call into question her testimony that she did not receive the initial determination, nor does the fact that when the Complainant spoke with a Department representative and learned about the adverse decision she did not request a copy of the initial determination. Brunette v. Cardinal Ridge Residential Care, LLC (LIRC, 09/30/16).

The Complainant faxed an appeal of an initial determination to the Equal Rights Division’s Milwaukee office after the close of business on the 30th day after the issuance of the initial determination. Department rule on the filing of documents by facsimile (Sec. DWD 218.25, Wis. Admin. Code) moved the date of receipt of the appeal back to the next business day, making the appeal untimely. DWD 218.08, Wis. Admin. Code. Jackson v. Wal-Mart Stores, Inc. (LIRC, 06/29/16).

The Complainant can rebut the presumption of receipt of the Initial Determination by offering credible testimony of non-receipt. The fact that the Complainant received other mail from the Department does not call into question her testimony that she did not receive the Initial Determination, nor does the fact that when the Complainant spoke with a Department representative and learned about the adverse decision she did not request a copy of the Initial Determination. Brunette v. Cardinal Ridge Residential Care LLC (LIRC, 09/30/16).

The Complainant’s excuse for a late appeal of an Initial Determination was that he did not receive his copy of the determination and did not become aware of it until after the appeal period had expired. A rebuttable presumption of receipt arises, but the Complainant’s assertion of non-receipt cannot be disregarded. If receipt of a mailed item is plausibly denied, the presumption of receipt is spent, and a question of fact is raised. Due process requires that a plausible assertion of non-receipt should not be rejected without an opportunity for hearing to prove non-receipt. Marrero v. Bullseye, Inc. (LIRC, 08/31/15).

After two separate no probable cause determinations were issued (one addressing disability discrimination and one addressing retaliation), the Complainant’s attorney filed an appeal which mentioned only one hearing number (that corresponding to the disability discrimination claim), but which was clearly meant to encompass both cases. It was error to dismiss the retaliation case where it was clear that the Complainant intended to appeal both cases, and the Complainant was entitled to a hearing on the retaliation issue. Hazard v. PJ Milwaukee, LLC (LIRC, 02/27/15).

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).

Sec. DWD 218.08, Wis. Admin. Code, provides that an appeal of an initial determination of no probable cause must be filed within 30 days after the date of the initial determination. This administrative rule contemplates that a Complainant should have a reasonable opportunity during the appeal period to receive a no probable cause initial determination, or to otherwise become aware of its existence, in order for the 30-day filing period to run. In this case, the Complainant should have been given the opportunity to prove that, without fault on his part, he did not have this opportunity. It appears that the Complainant made reasonable efforts to arrange for the proper delivery of his mail after he moved from one city to another, and that he had no reason to become aware of the existence of the initial determination during the appeal period. The case was remanded to the Equal Rights Division to allow the Complainant to prove that he did not have the opportunity to file a timely appeal. Carlson v. SPF North America (LIRC, 04/27/07).

The Complainant’s appeal letter was delivered to another unit of the Department of Workforce Development on the appeal deadline. That unit of the Department sent the letter to the Equal Rights Division through inter-departmental mail. The Equal Rights Division received the Complainant’s appeal of the initial determination one day after the thirty-day appeal period expired. The receipt of the Complainant’s appeal by a unit of the Department of Workforce Development on or before the final day of the appeal period satisfied the timely filing requirement of sec. 218.08, Wis. Admin. Code. Steffen v. MB Co. (LIRC, 10/13/06).

Where the Complainant failed to file a timely appeal of an initial determination, that initial determination must be considered the final determination of the Department. The administrative rules contain no exception for appeals that are filed only a few days late, nor is there is an exception for appeals that are late due to compelling personal circumstances, even extremely tragic ones. Rivas v. City of Milwaukee (LIRC, 05/24/99).

The Complainant’s expectation that the postal service would provide next-day delivery of the written request for hearing on the issue of probable cause did not excuse the late filing of the request. Rogers v. DOA (Wis. Pers. Comm’n, 12/22/89).

A Complainant’s untimely appeal from an initial determination of no probable cause is not made timely by the fact that the cover letter he received from the Equal Rights Division with the Initial Determination gave an older address for the Division, where the facts show that the appeal would not have been timely received by the Division whichever address had been used, given the date it was mailed. Adams v. Consol. Paper Co. (LIRC, 03/28/84).

LIRC will not accept an appeal from a dismissal of a complaint by the Equal Rights Division’s Investigation Bureau. Its appellate jurisdiction is restricted to review of examiners' findings and orders. Mathews v. Marc Plaza Hotel (LIRC, 03/31/83).

Where the Equal Rights Division incorrectly advised a Complainant that she had 20 days, instead of the then*mandated 15 days, in which to file an appeal of a no probable cause determination, the Division was obliged to treat her appeal, filed within 20 days, as timely. Magnarini v. Jos. Reilly (LIRC, 06/17/81).

An unrepresented Complainant is not held to strict compliance with the procedural requirements in appealing an initial determination of no probable cause. William v. Vulcan Basement Water Proofing (DILHR, 03/01/75).