JASON T POULOS, Complainant
YANKEE CANDLE, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter affirming a preliminary determination which had dismissed the complaint. A petition for review was subsequently filed by the complainant.
The applicable statute provides 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, but they also provide 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. The statute also provides 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,...
The ALJ's decision was issued on December 16, 2011. The file reflects that a copy of that decision was mailed to the complainant on that day, using his last-known address. It was accompanied by a "Notice of Appeal Rights" which stated prominently that a petition for review had to be received within 21 days from the date of the decision or it would become final. There is no indication in the file that this mailing was returned to the ERD by the postal service.
The 21-day period during which an appeal could be timely filed from the ALJ's decision, ended on January 6, 2012. No petition for review was filed by that date. On January 20, 2012, there still having been no petition for review filed, the ERD mailed the complainant and the respondent a letter notifying them that the case was being closed because no timely petition for review had been filed.
On January 27, 2012, the ERD received a letter from the complainant. It stated that the complainant wanted to appeal the decision of the ALJ. It did not offer any explanation for why it was late, or even acknowledge that it was late.
Under Wis. Stat. § 111.39 (5), the commission may consider a late petition for review only if it is satisfied that the party has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision. If it finds that to be the case, the commission may extend the time in which to file a petition by another 21 days. Wis. Stat. § 111.39(5)(b). However, the complainant's petition for review does not allege that there was any delay, much less exceptional delay, in his receipt of the ALJ's decision. Nothing in the record provides any reason to believe that there was any such delay.
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 it issues the following:
The petition for review is dismissed.
Dated and Mailed
March 29, 2012
poulosjason . rpr : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
cc: Jay M. Presser, Attorney for Respondent
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uploaded 2012/06/15