HELEN MAE STROMMEN, Complainant
CROSS PLAINS CITGO STATION, Respondent A
DAR SHAN DHALIWAL, Respondent B
MIAN AHMAD, Respondent C
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on October 31, 2006. A petition for commission review of the ALJ's decision was not filed until February 14, 2007.
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:
The petition for review is dismissed.
Dated and mailed March 29, 2007
stromhe . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
On October 31, 2006, the ALJ issued a decision in this matter concluding that Respondent A, Cross Plains Citgo Station, and Respondent C, Mian Ahmad, the owner and operator of the Cross Plains Citgo Station, discriminated against Helen Strommen by terminating her employment because of her age in violation of the WFEA. As a result, the ALJ ordered Respondents A and C to pay the complainant her attorney's fees totaling $960.00, and to make her whole for all lost wages that she would have earned from January 5, 2004, through June 22, 2006, subject to applicable statutory offsets, after which interest at the rate of 12 percent per annum, simple interest, was to be added to such sum.
The ALJ's decision lists the addresses for both the Cross Plains Citgo Station and Mr. Ahmad as 2575 Main Street, Cross Plains, WI 53528. A cover letter regarding notice of appeal rights attached to the ALJ's decision indicates that a copy of the decision was mailed to each of the respondents at the Cross Plains, Wisconsin address. There is nothing in the case file which indicates that the decisions mailed to Respondents A and C were returned by the Post Office as undeliverable.
On December 1, 2006, the Equal Rights Division mailed a letter to the parties stating that it did not receive a timely petition for review in this case and therefore the decision and order of the ALJ were final.
The case file shows that the ERD's December 1 mail sent to Mr. Ahmad was returned to the ERD. This mail shows it was received back at the ERD on December 13, 2006. It is stamped with Post Office notices to "RETURN TO SENDER", and also that there is "NO FORWARD ORDER ON FILE" and "UNABLE TO FORWARD". The address, "2575 Main Street, Cross Plains, WI 53528", is crossed out and written next to it, apparently by the ERD, is that on "12-13-06" it was "Resent to" "1914 STATE ROAD LA CROSSE WI 54601".
The case file also contains the mail the ERD sent to Mr. Ahmad at 1914 State Road, La Crosse, WI 54601, on December 13, 2006. Attached to this mail is a notice by the Post Office which states, "RETURN TO SENDER", "NOT DELIVERABLE AS ADDRESSED" and "UNABLE TO FORWARD". This mail shows that it was received back at the ERD on December 26, 2006.
On January 30, 2007, the Section Chief for the ERD's Civil Rights Bureau, pursuant to a Wisconsin Circuit Court Access computer search, obtained an address of 2611 15th St, La Crosse, WI 54601 for Mr. Ahmad. The case file shows that by letter that same date, the Section Chief wrote to Mr. Ahmad, informing him, among other things, that an ALJ with the ERD had issued an order on October 31, 2006, finding that he and the Cross Plains Citgo Station discriminated against a former employee, and that he had failed to comply with the notice that he was to submit a compliance report.
Per notes in the case file, on January 31, 2007, Mr. Ahmad left a voice mail message for the Section Chief indicating that he had never received anything from the ERD, and on February 1 Mr. Ahmad told the Section Chief, among other things, that "He never got this & wants to know how to appeal."
On February 14, 2007, the ERD received from Mr. Ahmad a written petition for review of the ALJ's decision and order dated October 31, 2006. In his petition, Mr. Ahmad asserts:
"I did not receive any letter or information regarding the order or decision by the administrative law judge until the 31st of January, 2007. I called Mr. Jim Chiolino section chief civil rights bureau on receiving this information. He advises me that if I write a letter to you, maybe my right to appeal within 21 days of the order may be extended.
I have been out of the Cross Plains Citgo since December 2005...."
Mr. Ahmad then goes on to address the merits of the case in the remainder of his letter.
Wisconsin Statute § 111.39(5) provides, in relevant part as follows:
"(a) Any respondent or complainant who is dissatisfied with the findings and order of the examiner [i.e., the administrative law judge] 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 for purposes of enforcement under sub. (4)(d). (1) If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. 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."
Mr. Ahmad asserts that he did not receive notice of the ALJ's October 31, 2006 findings and order until January 31, 2007.
The case file indicates, however, that if Mr. Ahmad did not receive notice of the ALJ's decision until January 31, 2007, it was because of his failure to keep the department apprised of his current address. First of all, as noted at page 5 of the ALJ's October 31 decision where the ALJ addresses the issue of damages ending at a certain point (in 2004) because Mr. Ahmad was allegedly no longer involved in the operation of the Cross Plains Citgo Station after 7 or 8 months, the ALJ rejected that basis for ending the complainant's award of damages stating:
"He [Mr. Ahmad] gave no specific date that he ended operation of the station and gave no proof that he was no longer involved in the operation of the station. In fact, the Cross Plains Citgo Station is the only address the Division has for Ahmad, and he clearly still receives his mail there because he was aware of and attended the [June 22, 2006] hearing."
There is nothing in the case file between the June 22, 2006 hearing date and the date the ALJ's decision was mailed to the parties on October 31, 2006, which indicates Mr. Ahmad had notified the Division that he had a new address.
Second, as noted above, the ALJ's October 31, 2006 decision and the attached notice of appeal rights shows that the decision was mailed to Mr. Ahmad's last known address -- the 2575 Main Street, Cross Plains address. There is nothing in the case file which indicates that the decision mailed to either the Cross Plains Citgo Station or Mr. Ahmad was returned to the Division by the Post Office as undeliverable.
Finally, as also noted above, it was not until December 13, 2006, when the Division received back its December 1, 2006 letter to Mr. Ahmad, that the Division first learned Mr. Ahmad was no longer at the Cross Plains address, and not until the end of January 2007, at which time the Division first learned of Mr. Ahmad's new address.
The commission's authority is limited to review of written petitions received by the Division within 21 days after a copy of the ALJ's decision is mailed to the last known address of the parties. Wis. Stat. § 111.39(5). Mr. Ahmad's copy of the ALJ's decision was correctly mailed to his last known address.
The only statutory exception under which a late petition may be considered by the commission is when the commission is satisfied that the party has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision. Under these circumstances, the commission may extend the time in which to file a petition by another 21 days. Wis. Stat. § 111.39(5)(b). However, this exception is not applicable here. The "exceptional delay" referenced in this statute refers exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Harris v. State of Wisconsin, University of Wisconsin Madison (LIRC, 10/31/05); Lacy v. Briggs & Stratton (LIRC, 07/09/01). Exceptional delay in the receipt of a copy of a decision caused by factors external to the Equal Rights Division is not within the intendment of the statute. Id., Harris, Lacy.
Under the circumstances presented, the commission has dismissed Mr. Ahmad's petition for review due to a lack of jurisdiction by the commission.
NOTE: Subject to an appeal to circuit court by Mr. Ahmad, this matter remains before the Equal Rights Division for the purpose of securing compliance with the order of the administrative law judge.
Attorney James T. Winch
Attorney Thomas P. Shannon
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(1)( Back ) This reference to section 111.39(4)(d) relates to the fact that the findings and order of the department ALJ shall have the same force as other orders of the department and be enforced as provided in s. 103.005, and that any person aggrieved by noncompliance with the order may have the order enforced specifically by suit in equity.