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

RICHARD A. BROST, Complainant

PERRY GRAPHICS COMMUNICATIONS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604822, EEOC Case No. 26G970276

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on October 9, 1998, dismissing the complainant's complaint which alleged that the respondent had discriminated against him in violation of the Wisconsin Fair Employment Act. A notice regarding appeal rights was attached to the ALJ's decision and informed the parties that a petition for commission review of the decision must be received by the division within 21 days from the date of the decision or the decision would become final. Accordingly, the last day on which a petition could be received in order to obtain commission review of the ALJ's decision was October 30, 1998.

The complainant's petition for commission review of the ALJ's decision was not received until November 5, 1998, and was thus 6 days late.

Wisconsin Administrative Code, section DWD 218.21(2) (1), provides as follows:

The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties.

Section 111.39(5)(b), Wis. Stat., provides, in relevant part, as follows:

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...If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings....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.

As reason for the complainant's late appeal, counsel for the complainant asserts that the complainant had changed his address twice since the filing of the case. Further, although counsel acknowledges having spoken to the complainant on October 19, 1998, learning that he had not received the ALJ's decision, and sending him a copy of the decision along with a request for him to contact her as soon as possible, counsel asserts that there was additional confusion because she (counsel) changed offices, delaying the processing of the appeal. Complainant's counsel makes a request in the petition that the time period to appeal be extended to allow the complainant to make an appeal in his case.

The complainant's arguments fail and his petition must be dismissed. It is the complainant's responsibility to keep the department informed of his mailing address. There is nothing which indicates that the ALJ's decision had not been mailed to the complainant's last known address. Further, it is evident that the complainant became aware of, and had actually received a copy of the ALJ's decision, well before the end of the 21 day appeal period. Moreover, even assuming that it could be held that the complainant had been prejudiced because of exceptional delay in the receipt of a copy of the findings and order of the ALJ, section 111.39(5)(b), Stat., contemplates that a request for an extension of time to file a petition be made prior to the expiration of time for filing a petition. After October 30, 1998, the commission was no longer empowered to grant a request for extension of time for filing a petition.

Accordingly, 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 ALJ, and therefore issues the following:

DECISION

The complainant's petition for review is dismissed.

Dated and mailed: November 27, 1998
brostri.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: Attorney Linda L. Hale
Attorney Keith A. Watts

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Footnotes:

(1)( Back ) Chapter DWD 218 previously existed as Chapter ILHR 218. Chapter ILHR 218 was renumbered Chapter DWD 218 under s. 13.93(2m)(b)1., and corrections made under s. 13.93(2m)(b)6. and 7., Stats., Register, November, 1997, No. 503.