STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


KIM SLUSAR, Complainant

FIFTY-SEVEN BAR, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704318


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on September 23, 1998, finding that the respondent had terminated the complainant's employment in violation of the Act because of pregnancy. The ALJ's decision included a remedial award order, and instructed the respondent to file a report detailing the action it had taken to comply with the order with the division's compliance officer, Robin Barkenhagen, within 30 days after the decision became final.

Attached to the front of the ALJ's decision was a Notice Of Appeal Rights letter which stated that any party who was dissatisfied with the decision and order of the ALJ could file a written petition for commission review. This notice stated that "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." (Underlining emphasis in original) Accordingly, the last day on which a party could file a timely petition before the ALJ's decision would become final was October 14, 1998.

Enclosed in the file is a message form with the respondent's printed letterhead at the top, dated October 10, 1998, and addressed to the attention of Robin Barkenhagen. The written message on the respondent's form references the ALJ's instructions that the respondent detail the steps it had taken to comply with the ALJ's order, states that several calls had been made to the Madison office for instructions but an answering machine was all that was reached, and states that, "I cannot calculate the payment without knowing the length of time involved & other data." Allen Lorentz' signature appears at the bottom of the form.

The case file shows that by letter dated October 20, 1998, the division notified the parties that it had not received a timely petition for review in the case, and therefore the decision and order of the ALJ was final. Next appearing in the file is a letter dated October 23, 1998, from Robin Barkenhagen to the respondent stating that the matter was being forwarded to ALJ Allen Lawent, who handled the more complex compliance cases, as there seemed to be very little information in the file to make a determination as to the amount of back pay due to the complainant.

Thereafter, the respondent submitted a request for petition review of the ALJ's decision by facsimile correspondence dated October 28, 1998, and received by the division on October 29, 1998. In this correspondence, Lorentz asserts that the petition for review is not timely because "one area of the `Notice of Appeal Rights' mentioned the correct 21 day limit and another area stated within 30 days upon receipt of the `Notice of Appeal Rights' letter." Further, he asserts that he tried to reach Mr. Robin Barkenhagen by phone many times and left messages for a return call on several occasions but no reply was received, and that he had planned to request a review upon his return from a previously scheduled vacation, figuring that he had 30 days as a result of his misunderstanding and confusion regarding the 21 and 30 day appeal limits.

The respondent's assertions fail. The only statement that exists regarding appeal rights appeared in the notice of appeal rights letter attached to the front of the ALJ's decision, and that statement specifically and clearly advised the parties that a petition for review must be received by the division within 21 days from the date of the ALJ's decision, or the decision would become final. The reference to a 30-day period appeared in the compliance paragraph of the ALJ's remedial order, and that paragraph simply advised the respondent that within 30 days after the decision became final the respondent was to file a report detailing the action it had taken to achieve compliance with the order, including the furnishing of the calculations used to arrive at the amount of the back pay due. Moreover, the message the respondent sent to Robin Barkenhagen dated October 10, 1998, clearly indicates that the respondent never had any intentions of filing a petition for review of the ALJ's decision and order. This message shows that the respondent was attempting to comply with the remedial relief ordered by the ALJ, but was having difficulty calculating the back pay and wanted instructions on how to make the calculations.

Section 111.39(5)(b), Wis. Stat., provides that "If no petition is filed within 21 days from the date that a copy of the findings and order of the examiner (ALJ) is mailed to the last-known address of the respondent the findings and order shall be considered final for purposes of enforcement..." The only exception provided under the statute is that the commission may extend the time to petition another 21 days if the commission is satisfied that the respondent has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order of the ALJ. This exception is not applicable in this case.

In the absence of a timely filed petition for review of the ALJ's decision, the Labor and Industry Review Commission is without authority to review the decision of the administrative law judge, and therefore issues the following:

DECISION

The respondent's petition for review is dismissed.

Dated and mailed: November 19, 1998
slusaki.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: This matter should be immediately returned to the Equal Rights Division for purposes of obtaining compliance with the ALJ's decision should there be no action for judicial review of the commission's decision.

cc: Allen Lorentz


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