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

JAMES O WHITE, Complainant

SOUTHWEST LOGISTICS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200200911, EEOC Case No. 26GA200933


An administrative law judge (ALJ) 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.

Wisconsin Stat. § 111.39 (5) 106.04 (10)(b) provides, in relevant part, as follows:

"(a) Any respondent or complainant 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.

"(b) 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 last-known address of the respondent the findings and order shall be considered final... 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."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wisconsin Admin. Code § LIRC 4.01 provides, in relevant part, as follows:

"A petition for commission review of the findings and order of a department of workforce development administrative law judge under s. 111.39 (5) or 106.04, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . ."

The administrative law judge's decision having been dated and mailed on April 24, 2003, the last day on which a timely petition for review could have been filed was May 15, 2003. The petition for review was received June 2, 2003.

Enclosed with the ALJ's April 24, 2003, decision was a notice of appeal rights which stated that a petition for review must be received by the Equal Rights Division within twenty-one days from the date of the decision, or the decision would become final; and providing two addresses for the Equal Rights Division (ERD) to which the petition could be sent.

In a letter which had been erroneously addressed and sent to the EEOC on May 21, 2003; received by the EEOC on May 27, 2003, and then forwarded to ERD, and received by ERD on June 2, 2003, Robert J. Murphy, counsel for the complainant, petitioned for review of the ALJ's decision and stated as follows, in relevant part:

Through the vagaries of the mail the Notice of Appeal Rights did not reach attorney Robert J. Murphy until May 2, 2003 so this Petition for Review is timely.

The commission does not have the authority to review the decision of an administrative law judge unless a timely petition for review of the ALJ's decision has been filed. Quinonez v. Brotoloc Health Care System, ERD Case No. 199701271 (LIRC April 9, 1998); Johnson v. Lakeland Enterprises of Rhinelander Inc., ERD Case No. 199700057 (LIRC June 16, 2000). The only exception applies when a party has been prejudiced by exceptional delay in the receipt of the ALJ's decision. Even if Attorney Murphy's representation that he did not receive a copy of the ALJ's decision until May 2, 2003, is true, this would not establish exceptional delay or prejudice, i.e., there were still 13 days within which to file a timely petition and complainant has offered no reason for failing to do so. It should also be noted that, as stated in the notice of appeal rights, the appeal period is measured from the date of the decision, i.e., May 24, 2003, not the date a party received it.

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 Wis. Stat. § 111.39 (5).

DECISION

The petition for review is dismissed.

Dated and mailed June 20, 2003
whiteja . rpr : 115 : 9   

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


cc: 
Attorney Robert J. Murphy
Attorney Lisa A. Riniker


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uploaded 2003/06/27