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

JULIE A VAN OSS, Complainant

HUMANA / EMPLOYERS HEALTH INSURANCE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802433, EEOC Case No. 26G991532

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 19, 2000
vanosju.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that her rights should not be denied based upon her not having filed a timely appeal. The complainant indicates that she has more than one mental diagnosis that impairs her ability to function normally or to complete a task, particularly one that she considers traumatic. The commission is unpersuaded by this argument. The case file indicates that on January 27 the complainant drafted a lengthy objection to the initial determination, which was received by the department on February 9, two days after the deadline to file a timely appeal had elapsed. Given these facts, it appears that the complainant was able to write a letter of appeal in a timely manner, and the commission sees little reason to believe that her failure to file the document on time was due to a mental disability. More importantly, the administrative rules clearly provide that any appeal filed more than 30 days after the date of the initial determination will be considered untimely and that, in the absence of a timely appeal, the initial determination's order of dismissal will be considered the final determination of the department. Wis. Admin. Code § DWD 218.08(1) and (2). The rules contain no exception for appeals that are late due to compelling personal circumstances, even those caused by diagnosed mental impairments. Accordingly, the dismissal of the complaint is affirmed.

cc: Ronald T. Pfeifer

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