DE'ARMOND GREEN, Complainant


ERD Case No. 9000869, EEOC Case No. 26G900841

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 18, 1991. The last day on which a timely petition for Commission review could be filed was May 9, 1991. The petition for review was received on March 3, 1992.

In the absence of a timely petition for Commission review, the Commission is without authority to review the decision of the Administrative Law Judge, and it therefore makes the following:


That the petition for review in this matter is dismissed.

Dated and mailed April 9, 1992

/s/ Pamela I. Anderson, Chairperson

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


In the letter of March 3, 1992 which is the first contact from the Complainant since his complaint was dismissed on April 18, 1991, the Complainant indicates that he never received a notice of hearing, that he was called up to active duty by the Army on January 31, 1991 and was overseas until he was released on March 19, 1991, and that although he did move he had put in a change of address form and his wife was located in their residence even while he was overseas on active duty. Presumably, the Complainant's position is that he should be entitled to Commission review even though his petition for review was late, because he did not receive a copy of the dismissal order, and that the dismissal order should be overturned even though the Complainant failed to respond to a certified letter from the Department because he never received the certified letter from the Department on which the dismissal was based.

The Commission must first consider the question of whether it can even review the Complainant's case given the lateness of his petition.

For the Commission to have authority to review an order of the Equal Rights Division, a petition for review must be filed within 21 days of the date that the decision is mailed to the last-known address of the parties. Section 111.39(5), Stats. Here, the order was mailed on April 18, 1991 to Complainant at the address in Waupaca, Wisconsin which he had listed on his complaint. That was the Complainant's "last-known" address. Although he now asserts that he moved, he never notified the Equal Rights Division of any change in his address.

The Complainant asserts that he "put in a change of address," and the Commission understands this as an assertion that he filed a change of address form with the Post Office. Indeed, there are indications in the file that a change of address form was filed for the Complainant: official Post Office change of address labels were affixed to the Notice of Hearing when it was mailed to Complainant's Waupaca address, and to subsequent pieces of correspondence to Complainant at that address. However, it appears that they were ineffective because the wrong address had been given to the Post Office. The return address on the Complainant's recent petition for Commission review is 2107 Russet Court, Apt. #9, Appleton, Wisconsin 54914. However, the official Post Office change of address labels which were affixed to correspondence which the Department attempted to send the Complainant at his Waupaca address, reflected that the new address which had been provided to the Post Office on change of address forms was 2106 Russet Court, #10, Appleton, Wisconsin 54914. Additional labels on the correspondence in question show that when attempts were made to deliver the forwarded mail to that address, the addressee was not known and the mail was returned to the Equal Rights Division.

In short, even if the Complainant did put in a change of address form at the Post Office, a mistake was made such that the new address shown to which mail should be forwarded was incorrect. Efforts at forwarding were unsuccessful, and all attempts at correspondence were returned to the Equal Rights Division with the indication that the addressee had moved, leaving no address. Therefore, the Waupaca address continued to be the "last-known address" for the Complainant.

Section 111.39(5), Stats., which requires the filing of a petition for review within 21 days in order for the Commission to have authority to proceed, contains no provision allowing the Commission to accept late petitions when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner's control. This places the Fair Employment Act in contrast to other enactments, such as the Unemployment Compensation Act and the Worker's Compensation Act, in both of which there is express statutory language allowing the Commission to accept and consider petitions for review even when they are late if the petitioner shows probable good cause that the reason for the lateness was beyond the petitioner's control. The fact that the Legislature has expressly provided for "good cause"/"beyond control" exceptions in these other two program areas while not doing so in the Fair Employment Act, persuades the Commission that it would be impermissible for it to read such a "good cause"/"beyond control" exception as being implicit in the language of the Fair Employment Act. If there is to be such an exception for late petitions in Fair Employment Act matters, it must be provided by the Legis1ature The only circumstances in which a late petition can be entertained under the Fair Employment Act, are when the Commission is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order. The Commission considers that this provision is not applicable here. Interpreting the identical "exceptional delay in receipt of a copy" language which appears in sec. 102.18, Stats., the provision governing petitions for judicial review from Commission decisions in unemployment compensation and worker's compensation matters, at least one court of appeals has held that the "exceptional delay" must, in order to come within the meaning of the statutory language, have been caused by the agency issuing the decision. Puente v. LIRC, Court of Appeals, Dist. II, unpublished decision, October 16, 1980. The Commission believes that the language contained in the Fair Employment Act should be interpreted in the same fashion. To do otherwise, i.e., to interpret the "exceptional delay" language as allowing the Commission to accept late petitions for review when the lateness is caused by an "exceptional delay" in receipt of the decision which resulted from factors beyond the petitioner's control, would be to in effect read a "good cause"/"beyond control" exception into the statute. For the reason discussed above, this would be impermissible. The Commission adheres to its recent ruling in Lacy v. Briggs and Stratton (LIRC, July 9, 1991), that the absence of such a provision when contrasted to its presence in other program areas is a persuasive indicator that no such exception should be implied into the Act.

The Commission would note that even were it to accept the petition and thus reach the question of whether the dismissal order should be upheld, it would arrive at the same effective result, dismissal of the petitioner's claim, because (1) there is no express "good cause" exception for failure to respond to a certified mail inquiry from the department under sec. 111.39(3), Stats., and (2) petitioner's failure to respond to the letter is ultimately traceable, not to his being called up to active duty (since he had returned to his home prior to the time the letter was sent), but to his moving without telling the Department and to there then being an error in his change of address paperwork filed at the Post Office.

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