PEGGY L. CHAVEZ, Complainant

BLUE HARBOR RESORT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201000076, EEOC Case No. 26G201000535C

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 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).

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 October 5, 2011, the last day on which a timely petition for review could have been filed was October 26, 2011. The complainant petition filed a petition for review by mail. That petition was received by the ERD on November 15, 2011. It was thus 20 days late.

There is no "good cause" or "circumstances beyond control" exception under which the commission can overlook lateness of a petition for review under the Fair Employment Act. The only situation in 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. Cotton v. Band Box, ERD Case No. CR200602715 (LIRC, Dec. 7, 2007).

The complainant's petition for review implicitly acknowledges that it is late, and it attempts to offer an explanation, which appears to have something to do with when she received the ALJ's decision. Her petition states, in its entirety:

the reason for my writing you this letter is to let you, Know that I would never forget to send what ever, I was asked for, I live an upstairs apartment, and all summer the down stairs apartment was empty, but the mail man Kept living mail there, and if I was waiting for some important papers, and it to long for me to get, and I would look for it there, and sure [enough?] it was there. so I did go to the post office, and talk to there supervisor; and told him what was happening, what I thing they must of taked it back or put it in my mail box, and that's why I gotted very late. because I've been at this case for 6 1/2 years, and believe me, I've been truthful, so that's why I wouldn't, do any thing to mess my case. so if you could Please help me in any way.

The "exceptional delay" referenced in this statute has been held to refer exclusively to exceptional delay which is the responsibility of the Equal Rights Division. See, Cotton v. Band Box, supra. However, the file shows that the ERD sent the ALJ's decision to the complainant at her last-known address, and there is no reason to suspect that there was any kind of delay in the ERD's mailing of that decision. Instead, it appears that the complainant is claiming that there was some problem with how the U. S. Postal Service was handling the actual physical delivery of her mail to her apartment or mailbox.

Even assuming for purposes of argument, that an exceptional delay in receipt caused by the U. S. Postal Service would also be within the meaning of the statute, the complainant's explanation does not satisfy the commission that this happened in this case. The explanation provided by the complainant in her petition is simply not clear enough to allow a determination as to exactly what she claims happened, and most significantly, when things happened. Thus, the complainant does not explain whether there were actual, separate mailboxes for both the (vacant) downstairs apartment and for her upstairs apartment and, if so, where they were. She also does not say when it was that she discovered whatever problem she is describing with where the mail carrier was leaving mail for different apartments. She also does not say when it was that she went to the post office and talked to a supervisor about this. She also does not clearly explain what happened after that visit to the post office; she just says, "what I thing they must of taked it back or put it in my mail box." Most importantly, she also does not say when she received the ALJ's decision. The complainant has simply not adequately explained what she claims happened here.

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.

DECISION

The petition for review is dismissed.

Dated and mailed January 4, 2012
chavezpeggy . rpr : 110 :  

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

NOTE: The commission has the authority, under the statute, to reopen one of its own decisions within 28 days if it discovers any mistake therein or upon the grounds of newly discovered evidence. Wis. Stat. § 111.39(5)(c). Thus, if within 28 days of the date of this dismissal decision the commission receives from the complainant some type of clear, specific and plausible explanation concerning the lateness of her petition for review, including specific assertions about when things (including her receipt of the ALJ's decision) happened, it could set aside the dismissal and reconsider the matter.

cc: Attorney Laurie E. Meyer

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