ROBERT F DELYON, Complainant

WAL-MART STORES INC, Respondent

An administrative law judge 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.

The applicable statutes provide that a 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 last-known address of the respondent 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. Wis. Stat. § 111.39(5).

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

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed . . .

The administrative law judge's decision having been dated and mailed on August 11, 2006, the last day on which a timely petition for review could have been filed was September 1, 2006. A petition for review was filed on October 5, 2006. The complainant has not alleged that he was prejudiced because of exceptional delay in the receipt of a copy of the decision.

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 the applicable statutes.

The petition for review is dismissed.

Dated and mailed October 27, 2006
delyoro . rpr : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission has a number of concerns about the procedures employed by the Division in this case. For instance, the commission questions the administrative law judge's decision to issue a 20-day letter, as well as his decision to dismiss the complaint based upon the complainant's failure to respond to that letter when, subsequent to the issuance of the 20-day letter but prior to the dismissal, the complainant's attorney filed a notice of appearance and requested copies of all documents and scheduling notices associated with the file. The commission is similarly concerned about the fact that the complainant's attorney was apparently not provided with notice of the scheduled hearing until after the hearing date had elapsed and was not sent a copy of the dismissal decision, although one was sent to the respondent's attorney.

However, in the absence of a timely filed petition for commission review, the commission lacks jurisdiction to address these matters. The complainant's petition was not filed until October 5, 2006, well after the deadline for filing an appeal had already elapsed. The commission has considered whether there are any circumstances that would permit it to entertain the complainant's late petition, but concludes there are none. The dismissal decision was mailed to the complainant at his last known address, as required by the statute. Although it is a courtesy for the department to send a copy of the dismissal to the complainant's attorney, the statute does not expressly require it to do so. Further, because the complainant's attorney was sent a copy of the case file on August 17, 2006, it appears that the complainant's attorney did receive a copy of the decision within the appeal period, and in ample time to file a timely appeal. The commission also notes that the complainant's attorney was notified on September 12, 2006, that the case was closed because no petition had been filed, but waited more than 21 days after the issuance of that document to file the complainant's petition. Under all the facts and circumstances, the commission is unable to conclude that the complainant filed a timely petition for review or that he was prejudiced because of exceptional delay in the receipt of a copy of the decision. The petition for review, is therefore, dismissed.

cc:
Attorney Michael F. Roe
Attorney Katherine Stotler Bayt

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uploaded 2006/10/30