ARLIN T CALVIN, Complainant

SUB-ZERO FREEZER CO, Respondent

An administrative law judge 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), Wis. Stat. § 106.52(4)(b).

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 November 6, 2015, the last day on which a timely petition for review could have been filed was November 27, 2015. The petition for review was filed on April 7, 2016.

The complainant states that he understood he had 21 days in which to file his petition, but contends that he did so. The complainant explains that he filed a petition on November 12, 2015 at the Dane County Clerk of Courts. He maintains that he was led to believe by the receptionist for the clerk of courts that he was able to file his petition through the Dane County Circuit Court and that, if this was incorrect, the judge would send him a letter advising him of that fact. Instead, the complainant states that he received a letter from the judge stating that there would be a scheduling conference on March 22, 2016. He states that it was subsequently decided that there would be a motion hearing on April 6, 2016, at which time the judge dismissed the case because the complainant filed his appeal with the circuit court rather than with the commission.(1) The complainant argues that if he had known he needed to file with the commission first he would have done so, but states he was under the impression that since his case had already been through the Equal Rights Division, he had a right to file through the circuit court. The complainant emphasizes that he is not represented by legal counsel.

The complainant's arguments are without merit. As stated above, a petition for review is deemed filed when it is actually received by the commission or the Equal Rights Division. No petition was received by the commission or the Equal Rights Division within 21 days of the date of the administrative law judge's decision. A petition filed with the Dane County Circuit Court does not satisfy this requirement.

While the complainant argues that he was justified in believing he could file his petition at the circuit court because he had already filed an appeal at the Equal Rights Division and because the clerk of courts indicated he could do so, these arguments fail. The "Notice Of Appeal Rights" that accompanied the administrative law judge's decision clearly stated that the petition for review should be mailed, faxed or delivered to the Equal Rights Division at one of two addresses set forth on the Notice. The complainant made a conscious decision to disregard those instructions and to attempt to file his appeal with the Dane County Circuit Court instead. Further, even assuming that a receptionist at the court told the complainant he could file his appeal there, this would not constitute a circumstance allowing the commission to accept the late appeal. The only exception permitting the commission to accept a late petition is where the petitioner has been prejudiced because of an exceptional delay in the receipt of a copy of the administrative law judge's findings and order. See, Wis. Stat. § 111.39(5)(b). That exception does not apply in this case. The complainant received the administrative law judge's findings and order in a timely manner. His petition was late because he failed to follow the instructions contained in the "Notice Of Appeal Rights" that was attached to the order.

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.

The petition for review is dismissed.

Dated and mailed April 29, 2016

calviar_rpr . doc : 164 : 5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

cc: Attorney Thomas Scrivner

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(1)( Back ) In support of these arguments, the complainant has supplied a copy of the Wisconsin Circuit Court Access records, which show that on November 12, 2015 the complainant filed a petition, described in the court records as "Motion for: Appeal final decision made by EEOC," and that the matter was ultimately dismissed on April 6, 2016 based on a motion from the respondent. 

uploaded 2016/05/12