TAMMY LYNN GRONER, Complainant

HOLIDAY INN EXPRESS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on June 27, 2008. The complainant has filed a petition for commission review.

The notice of appeal rights accompanying the ALJ's decision stated as follows, as relevant here (emphasis in original):

The attached decision is a final decision. Any party who is dissatisfied with the attached Decision and Order of the Administrative Law Judge...may file a written petition for review by the Labor and Industry Review Commission.

The petition for review must be received by the Equal Rights Division within twenty-one (21) days from the date of the decision, or the decision will become final....

Dated and Mailed: JUNE 27, 2008

The complainant's petition was dated July 7, postmarked July 18, and received by the Equal Rights Division on July 28, 2008. On the envelope in which the petition was mailed, the postal service stamped "Postage Due 3¢."

Wisconsin Statutes § 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 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... 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.

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

All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. 'Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . .

Wisconsin Admin. Code § LIRC 4.01 provides, in relevant part, as follows:

A petition for commission review of the findings and order of a department of workforce development administrative law judge under s. 111.39 (5) or 106.04, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . .

The administrative law judge's decision having been dated and mailed on June 27, 2008, the last day on which a timely petition for review could have been filed was July 18, 2008. The petition for review was received July 28, 2008.

The commission does not have the authority to review the decision of an administrative law judge (ALJ) unless a timely petition for review of the ALJ's decision has been filed. See, White v. Southwest Logistics, ERD Case No. CR200200911 (LIRC June 20, 2003); McNeice v. Badger Material Handling, ERD Case No. 200601077 (LIRC April 18, 2008). The only exception applies when a party has been prejudiced by exceptional delay in the receipt of the ALJ's decision. Here, since the complainant crafted her appeal on July 7, 2008, she necessarily received the ALJ's decision on or before that date, which obviates a conclusion that any exceptional delay in receipt occurred here.

Although the complainant's petition is postmarked on July 18, 2008, the last day of the appeal period, as explained in the notice of appeal rights, it is the date the petition is received by ERD, not the date it was mailed by the complainant, which governs. The complainant's petition was postmarked on July 18, 2008, in Wausau, in the afternoon, which would have effectively prevented its receipt in ERD's offices in Madison that day.

Although there is a ten-day gap between the date of postmark and the date the petition was stamped as received by ERD, not only was this apparently the result of the complainant's failure to affix sufficient postage to the petition, but it was not the factor which resulted in the untimely filing, i.e., the complainant initially failed to place her petition in the postal stream in a manner which would have reasonably assured its timely receipt by ERD.

The complainant's petition for commission review is dismissed.

Dated and mailed August 21, 2008
groneta . rsd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc:
JoAnn Mattson
Human Resources Director
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uploaded 2008/08/26