DENISE VANDERKIN, Complainant
ULTRA MART FOODS, Respondent
An administrative law judge (ALJ) 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 Wisconsin Fair Employment Act 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).
The rules of the ERD provide that petitions for review shall be filed, with the ERD's Madison or Milwaukee office, within 21 days after the date a copy of the ALJ's decision is mailed. Wis. Admin. Code § DWD 218.21(2). The rules of the ERD also provide that filing is only complete upon receipt of the filed document by the ERD. Wis. Admin. Code § DWD 218.02(6).
The rules of the commission provide that all petitions for review shall be filed within 21 days from the date of mailing of the findings and decision or order. Wis. Admin. Code § LIRC 1.02. The commission's rules also provide that a petition for review filed by mail is deemed filed only when it is actually received by the ERD. Wis. Admin. Code § LIRC 1.025.
The ALJ's decision in this case having been dated and mailed on December 3, 2010, the last day on which a timely petition for review could have been filed was December 27, 2010. (1) The petition for review was filed by mail. The complainant did not mail the letter until December 29, 2010, and it was not received by the Equal Rights Division until December 30, 2010. It was thus untimely.
The Wisconsin Fair Employment Act provides that if no timely petition is filed, the decision of the ALJ is final. Wis. Stat. § 111.39(5)(b).
The law provides only one exception to the rule that an ALJ's decision is final if no timely petition is filed. That exception provides:
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.
Wis. Stat. § 111.39(5)(b).
The "exceptional delay" described in the statute 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. Cotton v. Band Box (LIRC, 12/07/07).
The exception in Wis. Stat. § 111.39(5)(c) concerning situations in which the commission is satisfied that the party was prejudiced because of exceptional delay in receipt of a copy of the decision, is applicable only to cases where the exceptional delay is the fault of the ERD, and it is not applicable to cases in which the exceptional delay is the party's fault...
Gerald Pate v. Milwaukee Athletic Club (LIRC, Aug. 26, 1998), citing Lacy v. Briggs & Stratton (LIRC, 07/09/91), Hadelli v. Essco, Inc. (LIRC, 04/09/92). Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division are not within the intendment of the statute. Lacy v. Briggs & Stratton, supra.
In her petition for review, the complainant wrote:
I am requesting a review of case #CR200900833. This letter you sent me was mis-placed. I believe that the stress I was under during this case time was the reason I was not understanding people. I have since seen my doctor and I am much better and clear headed, and would appreciate a second chance to explain my side.
If you need more information on why the stress let me know.
Subsequently, in a letter in reply to the respondent's objection that her petition for review was untimely, the complainant wrote:
The letter was in Milwaukee 1 day after the due date, I called down when I found the letter she told me they would mark it late, but it should be okay since it was being done right away. It was the last day for the appeal.
The letter was put in my grandson's mail in error, it was a honest mistake. I do not understand why it took 7 days to get there.
The complainant also explained in this reply letter, that she had been in a great deal of distress in July because of her grandson's illness, that her case had so many ins and outs that it was hard to keep track, that she did not have an attorney at the hearing and that she found it confusing and scary, and that all the formal stuff at the hearing made it difficult.
The complainant's grandson's illness was undoubtedly difficult for her, and it is regrettable that the complainant found the proceedings before the Equal Rights Division to be difficult. However, at this point in the process the commission has a limited role and is subject to strict limits on whether it may act. The ALJ issued a decision which dismissed the complainant's complaint; the complainant had only a certain amount of time to file an appeal of that decision; and her appeal was not filed within that time. The commission simply has no authority to take any action on the complainant's appeal unless the "exceptional delay in receipt of a copy of the decision" exception is applicable. It therefore turns to consideration of the complainant's explanation for the lateness of her appeal.
The complainant's statements about the circumstances of her appeal being late, are somewhat inconsistent and unclear. On the one hand, she states that she was on the phone with someone in Milwaukee on "the last day for the appeal" and that her appeal letter was then in Milwaukee 1 day after the due date. However, she also states that she did not understand why it took 7 days to get there. The best indication of what happened, is found on the envelope in which the complainant mailed her appeal letter. It shows that it was not postmarked until December 29, 2010, and that was not received by the Equal Rights Division in Milwaukee until December 30. Both of these things occurred several days after the deadline had passed.
The commission does not credit the complainant's assertion that when she "called down to Milwaukee" after she found the decision, she was told that "it should be okay since it was being done right away." It is certainly possible that a representative of the ERD would have told her to send the appeal in anyway even if it was late, so that the possible applicability of an exception could be considered. However, it is simply not credible that a representative of the ERD would have assured her that such a late appeal would be accepted. In any event, the complainant asserts that this occurred on "the last day for the appeal." The only issue that matters here is whether there was an exceptional delay in complainant's receipt of the decision. Any statement made by a representative of the ERD to the complainant over the telephone on the last day of the appeal period after the complainant already had the decision in hand, cannot have contributed to or been relevant to any delay in the complainant's receipt of that copy.
The complainant's real explanation for why her appeal was late, appears to be that after it was received, the copy of the ALJ's decision which was sent to her was inadvertently placed with mail for someone else in her household (her grandson), so that it was not discovered by her until after some time had passed. In other words, this was a mistake made in the complainant's household regarding the handling of mail for different people in the household.
This is not what is intended to be covered by the exception for cases where a party has been prejudiced because of exceptional delay in the "receipt" of a copy of a decision. The decision was "received" by the complainant when it was delivered by the U. S. Postal Service to her address. Here, there is no reason to doubt that the copy of the ALJ's decision mailed to the complainant on December 3, 2010 was delivered in due course to her address soon after being mailed. Any delay in the complainant actually seeing the decision caused by mishandling of received mail within her household, would not satisfy the statutory exception.
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. On that basis, the commission makes the following:
The petition for review is dismissed.
Dated and mailed
February 10, 2011
BY THE COMMISSION:
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Attorney Laurie A. Peterson
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(1)( Back ) The 21st day following the date of the issuance of the ALJ's decision on December 3, was Friday, December 24. However, that was a holiday on which state offices were not open. The next following business day on which state offices were open, was Monday, December 27.