MELANIE MAE THOREEN, Complainant

FABCO EQUIPMENT INC, Respondent A

MANPOWER, Respondent B

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the complainant.

The applicable statutes provide that a party who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order, that 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 parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner 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. Wis. Stat. § 111.39 (5), Wis. Stat. § 106.52 (4)(b).

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

The administrative law judge's decision having been dated and mailed on February 27, 2008, the last day on which a timely petition for review could have been filed was March 19, 2008. The petition for review was filed on April 23, 2008.

The complainant contends that her petition was filed late because she did not receive the administrative law judge's decision until April 22, 2008. However, a copy of the decision was mailed to the complainant at her last address of record with the department, 5443 Beech Street, Laona, WI 54541, on February 27, 2008, which was not returned to the department as undeliverable. Although the complainant now states that she informed the administrative law judge of her new address in Crandon, WI, in August of 2007, the case file indicates that the administrative law judge did not become aware of the complainant's new mailing address until he received correspondence from her bearing that address, dated April 21, 2008, nor do department records indicate that the complainant provided her new mailing address to the department prior to that date. The statutory exception permitting extension of the deadline for filing a petition where a petitioner was prejudiced by exceptional delay in the receipt of the decision does not apply where, as here, the reason for the delay was the complainant's own actions in moving without notifying the department of her new mailing address.

The commission therefore finds that the petition for commission review was not timely and that the petitioner was not prejudiced because of exceptional delay in the receipt of a copy of the decision, within the meaning of the applicable statutes.

The petition for review is dismissed.

Dated and mailed May 29, 2008
thoreme . rpr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner 
 

cc:
Attorney Thomas R. Crone
Attorney Merrissa L. Osswald

Appealed to Circuit Court.

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uploaded 2008/06/02