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

VICKI HINDES, Complainant

BURGER KING RESTAURANTS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200003311

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 December 15, 2000, affirming a Preliminary Determination that had dismissed the complainant's complaint on the ground that it failed to state a claim for relief under the Wisconsin Fair Employment Act.

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" (emphasis in original) within 21 days of the date of the ALJ's decision, or the decision would become final. Accordingly, the last day on which a timely petition could have been received was January 5, 2001. The complainant's petition for review was not received until January 16, 2001.

In the absence of a timely filed petition for commission review, however, the commission has no authority to review the decision of the administrative law judge. The commission therefore issues the following:

DECISION

The complainant's petition for review is dismissed.

Dated and mailed February 13, 2001
hindevi.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On appeal, the complainant apparently contends that the reason her petition was filed late had something to do with an attorney. She writes:

"I had a lawyer and he tried to petition about Burger King and this is the first I heard of it as I got fired from my job.The lawyer didn't hear so I was to send out this letter today (apparently on or about January 12, 2001, as this is the date of the post mark on the envelope containing the letter) so here it is again."

The complainant's argument fails. First, the record shows that a copy of the ALJ's decision was mailed to the complainant's last known address. Second, there is absolutely no correspondence in the entire case file that even remotely suggests the possibility that the complainant had an attorney. The Equal Rights Division normally requires that attorneys representing a party file a notice of retainer with the division when the party has indicated she (or he) is represented by an attorney.

The complainant's remaining contention is not exactly clear. Her petition regarding this contention reads as follows:

"...this sure is not no Equal Rights as you wait until the last min that's not fair at all..What do you do wait to long so you don't have to help some people right?"

In any case, there was no "last minute action" on the part of the division in this case. After returning the complainant's first two complaints that she had filed with the division (September 25, 2000, and October 4, 2000) for further clarification, the division accepted for processing her third complaint filed on November 15, 2000. On November 17, 2000, the division issued a Preliminary Determination dismissing the November 15 complaint because it failed to state a claim for relief under the Wisconsin Fair Employment Act. The complainant appealed the dismissal of her complaint in a letter filed with the division on November 22, 2000. On December 15, 2000, less than one month later, an administrative law judge for the division issued a decision affirming the Preliminary Determination that dismissed the complainant's complaint. A notice attached to the ALJ's decision advised the complainant that any party who was dissatisfied with the ALJ's decision could file a petition for review of the decision by this commission, and that such petition "must be received" by the division within 21 days from the date of the ALJ's decision or that decision would become final.

Accordingly, the commission must dismiss the complainant's untimely petition as it has no jurisdiction to review an ALJ's decision where a timely petition has not been filed.

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uploaded 2001/02/14