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

ROBERT FERGUSON, Complainant

RENT-A-CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604792

The Complainant has filed a letter which has been treated as a petition for review by the commission of an administrative law judge's order in this matter.

Section 111.39(5), Stats. provides that any party 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, that 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 parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner 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.

Section LIRC 1.02 of the Wisconsin Administrative Code 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 . . ."

Wis. 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 order having been dated and mailed on December 30, 1997, the last day on which a timely petition for review could have been filed was January 20, 1998. The petition for commission review was received on January 26, 1998.

The order of dismissal in this case (1) was mailed to the Complainant along with two separate sheets containing instructions on ways in which he could obtain review of the order.

One sheet was on letterhead of the State of Wisconsin Department of Workforce Development. It bore the heading "NOTICE OF APPEAL RIGHTS REVIEW BY THE LABOR AND INDUSTRY REVIEW COMMISSION", and it indicated that any party who was dissatisfied with the decision could file a written petition for review by the Labor and Industry Review Commission. It stated expressly that such a petition had to be received "by the Equal Rights Division," and it listed the addresses of the two offices of the Equal Rights Division, at 819 North 6th Street in Milwaukee and at 201 East Washington Avenue in Madison.

The other sheet which was enclosed with the Order of Dismissal was on letterhead of the Equal Employment Opportunity Commission (which contained the mailing address of the EEOC, at 310 West Wisconsin Avenue in Milwaukee), it bore the heading "YOUR RIGHT TO REVIEW BY THE EEOC", and it indicated that to secure a review "by the U.S. Equal Employment Opportunity Commission (EEOC)" a request had to be sent "to the EEOC" at the address shown on the letterhead. The sheet also contained the prominent, underlined statement, "[t]his does not affect your appeal rights with the State FEP agency."

The Complainant was thus advised very clearly and specifically about his separate rights to obtain separate reviews by two separate agencies of two separate governmental units which were located at two separate addresses, and about the procedures for doing so, including where he was required to send his requests for review. He thereafter wrote to the EEOC, and in his letter he expressly and unambiguously requested review by the EEOC. Furthermore, he did not send a copy of this letter, or any other letter, to the Wisconsin Equal Rights Division within the 21-day period which had been described in the sheet explaining how he could obtain review by the Labor and Industry Review Commission.

The Complainant thus did not file a petition for review by the Labor and Industry Review Commission with the Equal Rights Division within the time required by statute. The first written communication from the Complainant which could be treated as a petition for review was not received by the Equal Rights Division until January 26, which was after the last day on which a petition could have been timely filed under Wis. Stat. § 111.39 (5) (b).

There has been no claim that there was any exceptional delay in the Complainant's receipt of his copy of the order of dismissal, and the fact that he sent his request for review to the EEOC on January 6, 1998 tends to establish that in fact the Complainant received his copy of the order of dismissal very shortly after it was mailed on December 30, 1997.

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 any findings and order, within the meaning of section 111.39 (5) of the statutes. 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 petition for review is dismissed.

Dated and mailed: February 19, 1998
fergusr.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: Lisa Bergersen, Attorney for Respondent

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Footnotes:

(1)( Back ) This case arose out of a complaint filed with the Equal Rights Division alleging race and religious discrimination and sexual harassment. After a finding of probable cause, the matter was certified to hearing. The complaint was dismissed on December 30, 1997 after the Complainant refused to submit to having his deposition taken.