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

VIRGINIA A GOEHRING, Complainant

INTREPID CO & FINANCIAL GROUP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803251, EEOC Case No. 26G990091

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on November 16, 1999, dismissing the complainant's complaint of alleged sex discrimination and retaliation. The last day on which a timely petition for review could have been filed was December 7, 1999. The complainant's petition for review was not filed until December 8, 1999.

In the absence of a timely filed petition for commission review, the commission is without authority to review the decision of the administrative law judge, and therefore issues the following :

DECISION

The complainant's petition for review is dismissed.

Dated and mailed December 29, 1999
goehrvi.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The Wisconsin Fair Employment Act, § 111.39(5)(a) provides that any party who is dissatisfied with the findings and order of the hearing examiner (i.e., administrative law judge) may file a written petition with the department for review of the findings and order by the commission.

Wisconsin Administrative Code, § LIRC 4.01 provides that a petition for commission review of the findings and order of a department of workforce development administrative law judge under § 111.39(5) shall be received within 21 days from the date of mailing of the findings and order to the parties by the equal rights division of the department.

Wisconsin Administrative Code, § DWD 218.21(2) provides that 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.

Further, § 111.39(5)(b) of the Act provides that 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.

On November 16, 1999, the division mailed to the parties the administrative law judge's findings and an order which dismissed Ms. Goehring's claims of sex discrimination and retaliation. December 7, 1999, was therefore the last day on which a timely petition for review could be filed. The division inadvertently used an old address for Ms. Goehring when it mailed her decision, but the post office forwarded the decision to her at her new address. The post office apparently forwarded the decision to Ms. Goehring on November 19, 1999. Ms. Goehring acknowledges receiving the administrative law judge's decision on November 22, 1999. However, Ms. Goehring did not file a petition for commission review of the administrative law judge's decision with the department until December 8, 1999. Ms. Goehring's petition was filed one day late.

Ms. Goehring requests that her petition be accepted, apparently because it was filed within 21 days of either November 19, 1999 or November 22, 1999. This request must be denied. Section 111.39(5)(b) authorizes the commission to extend the time for filing a petition where it is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the administrative law judge's findings and order. However, the granting of an extension of time to file a petition under this provision is based on a party's failure to receive the order promptly. Ms. Goehring does not claim that there was an exceptional delay in the receipt of the administrative law judge's decision. Indeed, she admits receiving the decision on November 22, 1999, a mere six days after it was mailed to her. Ms. Goehring still had over two weeks in which to file a petition with the department after receiving the decision. She has not asserted that because of her receipt of the decision on November 22, 1999, she was prevented from filing a timely petition by December 7, 1999.

Accordingly, the commission finds that Ms. Goehring's petition was not filed timely, and that she was not prejudiced because of an exceptional delay in the receipt of a copy of the findings and order of the administrative law judge.

cc: Lisa Montague Ingalls

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