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

CHRISTOPHER G JOHNSON, Complainant

LAKELAND ENTERPRISES OF RHINELANDER INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700057, EEOC Case No. 26G970424

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 April 17, 2000, dismissing the complainant's complaint of alleged disability discrimination. A notice regarding appeal rights attached to the ALJ's decision informed the parties that in order to obtain a review of the ALJ's decision by the Labor and Industry Review Commission, a written petition must be received by the Equal Rights Division within 21 days of the date of the ALJ's decision or the decision would become final. The last day on which to timely petition for a review of the ALJ's decision was May 8, 2000. The complainant's petition for review was not received by the division until May 22, 2000.

In the absence of a timely filed petition for commission review, 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 complainant's petition for review is dismissed.

Dated and mailed June 16, 2000
johnsch . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant has requested "permission to file a late Petition" in this matter. As reasons therefor, complainant's counsel has asserted that the decision in this matter was not issued until one year after the hearing, that the complainant indicated to counsel that he did not understand the time deadline which requires that the petition be received by the department on the twenty-first day, and that the petition was filed very shortly following the time limit set by statute and thus has not prejudiced the respondent.

These assertions fail. Administrative delay in issuing a decision does not constitute grounds allowing commission consideration of an untimely filed petition. The commission's authority to review a petition of a dissatisfied party is set forth in Wis. Stat., § 111.39(5). Under this statute a petition for review must be filed within 21 days of the date of the examiner's (ALJ's) decision in order for the commission to have authority to act on the findings and order of the ALJ. The only exception, not claimed here and therefore not applicable, is that the commission may extend the time in which to file a petition by another 21 days if the commission is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order of the ALJ. That is, that there was an exceptional delay in a party's receipt of the decision after the mailing of the ALJ's decision. The complainant's indication to counsel that " he " did not understand that petitions for review were required to be received by the department within 21 days is without merit. The notice of appeal rights attached to the ALJ's decision specifically advised the parties 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." (Underscoring in original). Further, the ALJ's decision and attached notice of appeal rights indicates that these items were also sent to counsel for the complainant, upon whom it was incumbent to advise the complainant regarding the 21-day appeal period. Finally, neither the fact that the petition was filed "very shortly following the time limit set by statute" nor the fact that the respondent may not have been prejudiced, has any bearing on the commission's ability to review a decision of an ALJ where the petition for review of that ALJ's decision was not timely filed. As previously stated above, the commission's authority to review a petition of a dissatisfied party is defined in Wis. Stat. § 111.39(5), and under this statute the commission has no authority to act unless a timely petition for review has been filed. Consequently, the commission must dismiss the complainant's petition as untimely.

cc:
Christine R. H. Olsen
John H. Zawadsky

Appealed to Circuit Court. Affirmed February 16, 2001.

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