JOHNNY L MCNEICE, Complainant

BADGER MATERIAL HANDLING, Respondent

The Equal Rights Division of the Department of Workforce Development issued an administrative law judge's (ALJ's) decision in the above-captioned matter on February 27, 2008. The last day on which a timely petition for commission review of the ALJ's decision could have been filed was March 19, 2008. The complainant's petition for commission review was not filed until April 3, 2008.

In the absence of a timely filed petition for commission review and for the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission finds that it is without jurisdiction to review the decision of the administrative law judge, and therefore issues the following:

The complainant's petition for review is dismissed.

Dated and mailed April 18, 2008
mcneijo . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The Equal Rights Division mailed a copy of the ALJ's decision in this matter, which dismissed the complainant's complaint of alleged race discrimination, to the parties on February 27, 2008.

Based upon the February 27, 2008 mailing date, in order to obtain commission review of the ALJ's decision, the complainant had to file a petition for review with the Division by March 19, 2008.

The Division mailed the complainant's copy of the February 27 decision to him at the following address:

8329 W CONGRESS #8
MILWAUKEE, WI 53209

On March 26, 2008, the ERD sent a letter to the parties stating that the case had now been closed by the Division because a timely petition for review had not been received by the Division.

On April 3, 2008, the ERD received from the complainant a hand delivered letter in which he stated that he would like to appeal the ALJ's decision.

Prior to his statement about appealing the ALJ's decision, the complainant's letter stated the following:

I received a letter from [the] Equal Rights Division saying my case was close[d]. The letter was dated for 2/27/08 but I did not receive it until 3/27/08 (per letter).

Attached to the complainant's appeal letter was a photo copy of an envelope from the ERD addressed to the complainant at his address on West Congress that showed a mailing date of February 27, 2008, a photo copy of the ERD's legal secretary's certification that an exact copy of the ALJ's original decision on file with the ERD in the complainant's case had been issued on February 27, 2008, and a photo copy of the ALJ's three page decision dated February 27, 2008.

Further, the photo copy of the envelope that the ERD mailed to the complainant on February 27, 2008 shows that below the complainant's West Congress address is what appears to be a Post Office preprinted label with the date "03/27/08" and the following information:

NOTIFY SENDER OF NEW ADDRESS
MCNEICE, SR' JOHNNY
6457 N 40TH ST
MILWAUKEE, WI 53209-3001

In addition, on the photo copy of the certification and the ALJ's decision are written comments. This is particularly true as far as the decision is concerned. There are many comments made among the various findings of fact made by the ALJ.

Evidently, the complainant received a copy of the ALJ's decision on March 27, 2008, on which he wrote various comments, and then when he went to the ERD on April 3, 2008 to file his appeal, ERD personnel photo copied the ERD envelope, the certification and the ALJ's decision which were contained therein.

Further, it is evident that what the complainant is asserting in his appeal letter is that while the ALJ's decision he received is dated February 27, 2008, he did not receive it until March 27, 2008.

However, it is also apparent that the reason the complainant did not receive a copy of the ALJ's decision until March 27, 2008, is that he had moved to a new address without providing the Division notice of his new address. This is apparent based on the absence of any information in the case file regarding an address change for the complainant, and the fact that the photo copy of the ERD's envelope with the February 27, 2008 mailing date contains a Post Office preprinted label with the date March 27, 2008 and advice that the complainant notify the ERD of his new address.

Wisconsin Statute § 111.39(5) provides, in relevant part as follows:

(a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner [i.e., the administrative law judge] may file a written petition with the department for review by the commission of the findings and order.

(b) If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4)(d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department.

As indicated above, the complainant's petition for review of the ALJ's February 27, 2008 decision was not filed with the department until April 3, 2008, making it over two weeks 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, this exception is not applicable here. The "exceptional delay" referenced in this statute section refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Harris v. State of Wisconsin, University of Wisconsin Madison (LIRC, 10/31/05); Lacy v. Briggs & Stratton (LIRC, 07/09/01). Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division, such as, in this case, where the complainant failed to keep the Division informed of his current address, is not within the intendment of the statute.

Accordingly, the commission must therefore dismiss the complainant's petition due to a lack of authority to review this matter.

cc: Attorney Doris E. Brosnan

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