MINAGUA S MICHAELEON, Complainant
MONA LISA'S RESTAURANT, 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 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...
The administrative law judge's decision having been dated and mailed on September 6, 2013, the last day on which a timely petition for review could have been filed was September 27, 2013. The petition for review was filed on October 7, 2013.
The petition for review, which was dated September 27, 2013, states as follows:
I would like to appeal the two above matters. I recognize that this is being done a bit late, but the former co-resident T.J. Montieth at my mother's address, 407 Bluff Avenue North where I resided for a brief period to care for her following two strokes, was known to destroy and misdirect my mail. I spoke with the local postmaster about this issue.
The commission has no authority to take action on a petition for review unless Wis. Stat. § 111.39(5), applies, allowing the commission to consider a late petition when there has been an exceptional delay in a party's receipt of a copy of the ALJ's findings or order. Vanderkin v. Ultra Mart Foods, ERD Case No. CR200900833 (LIRC Feb. 10, 2011). The party filing a late petition must show that the exceptional delay prejudiced her right to commission review. Goehring v. Intrepid Co. & Financial Group, ERD Case No. 199803251 (LIRC Dec. 29, 1999). The petitioner's letter does not indicate that she was prejudiced by an exceptional delay in receipt of the ALJ's findings or order. First, the petitioner did not state when she received the ALJ's decision, so the commission has no basis to conclude that there was an exceptional delay. It appears that the petitioner received the ALJ's decision on September 27th at the latest, because that is the date that she put at the top of her petition. Even if the commission were to assume that she did not receive the ALJ's decision until that day, it is questionable whether she would have been prejudiced, because she could have avoided an untimely filing by faxing her petition to the Equal Rights Division that day. (1) Second, even if the petitioner had shown a delay in receipt of the ALJ's decision, her reference to difficulties receiving mail addressed to 407 Bluff Avenue North fails to explain such a delay. The ALJ's decision was not mailed to that address; it was mailed to the last address supplied to the Division by the petitioner prior to the hearing -- 200 Polk County Plaza, Balsam Lake, WI 54810. (2) There was no error in the Division's mailing of the decision. The provision relating to exceptional delay applies only to situations in which the delay was the fault of the Division. Pate v. Milwaukee Athletic Club, ERD Case No. 199700003 (LIRC Aug. 26, 1998).
The commission therefore finds that the petition for commission review was not timely and that the petitioner was not prejudiced because of any 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 October 31, 2013
michami_rpr . doc : 107 : 5 794
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc:
Attorney Barry Chaet
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]