DENICE A MORGAN, Complainant
KRAFT FOODS INC, Respondent
On March 16, 2007, the Equal Rights Division of the Department of Workforce Development mailed to the parties a copy of administrative law judge (ALJ) Deborah Cohn's decision which dismissed Denice Morgan's complaint of alleged race and sex discrimination in the above-captioned matter. The Division apparently mailed a copy of the ALJ's decision to Morgan at "6245 Garden View Lane, Chicago IL 60443", although a note on the inside front cover of the case file indicates that as of January 16, 2007, Morgan's address was 6245 Garden View Lane, Matteson, Illinois 60443.
Based upon the March 16, 2007 mailing date of the ALJ's decision, Morgan had to file a petition with the Division by April 6 in order to obtain commission review of the ALJ's decision. By letter dated April 13, the Division notified the parties that it had closed the case because a timely petition for review had not been received. This notice was sent to Morgan at 6245 Garden View Lane, Matteson, IL 60443.
Morgan did not file a petition with the Division until April 25, 2007. The envelope containing Morgan's letter petition shows a postmark date of April 23, 2007 by a Chicago, Illinois Post Office. However, her letter petition that was in the envelope is dated March 22, 2007. To further complicate matters, the back of Morgan's envelope showed a return address of "6425 Garden View Lane 60443", and did not list a city as part of the return address.
Accordingly, by letter dated May 7, 2007, the commission requested that Morgan provide a written response, by May 22, to the following questions:
1. During March and/or April of 2007, was your address 6245 Garden View Lane or 6425 Garden View Lane? (The envelope in which your petition is contained has your return address as 6425 Garden View Lane.)
2. If your address was 6425 Garden View Lane during March and/or April of 2007, had you previously lived at 6245 Garden View Lane?
3. When (on what date) did you receive the ALJ's decision in the mail? (Your letter petition is dated March 22, 2007.)
4. When (on what date) did you mail your petition for review to the Equal Rights Division?
Morgan did not provide a written response to these questions by May 22, but she did call the commission on May 25 and spoke to the commission's Office Management Supervisor. As shown by the note taken of their conversation, Morgan "Said she got the letter we sent saying she should respond by 5/22....(Morgan) Said she had sent her letter (i.e., her petition) before and didn't know what more we were looking for."
However, nothing in the body of Morgan's letter petition provides an answer to any of the questions she was asked in the commission's May 7 letter.
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); Wis. Admin. Code DWD § 218.21(2). The only exception under which a late petition for review 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).
Morgan's failure to respond to the questions asking if in March and/or April of 2007 her address was 6245 Garden View Lane or 6425 Garden View Lane and if she had previously lived at 6245 Garden View Lane make it impossible for the commission to determine with certainty whether or not on March 16 the Division had mailed a copy of the ALJ's decision to Morgan's last known address. However, having been given an opportunity to clarify what her mailing address was in March and April of 2007 and failing to do so, Morgan has failed to present any reason to question whether or not a copy of the ALJ's decision had been mailed to her last known address. Furthermore, even assuming for purposes of argument that the Division had incorrectly mailed a copy of the ALJ's decision to 6245 Garden View Lane when it should have been sent to 6425 Garden View Lane, or that it was addressed to Chicago, Illinois as opposed to Matteson, Illinois, Morgan's failure to respond to the questions asking on what date she received the ALJ's decision in the mail and on what date she mailed her petition for review, fails to present any reason to question whether or not she had actually received a copy of the ALJ's decision with ample time to timely file her petition for review.
Indeed, with the same zip code (60443) for the Chicago and Matteson, Illinois address, the copy of the ALJ's decision that the ERD mailed to Morgan would likely have arrived at the same place. In addition, because Morgan's letter petition is dated "March 22, 2007", it could be concluded that even assuming the Division had mailed a copy of the ALJ's decision to an incorrect address number and city, Morgan had actually received a copy of the ALJ's decision no less than 6 days after the mailing of the decision and thus had ample time (over two weeks) to file her petition with the Division.
Based on the foregoing, the Labor and Industry Review Commission concludes that Morgan failed to file a timely petition for review of the administrative law judge's decision and that she was not prejudiced because of exceptional delay in the receipt of a copy of the ALJ's decision, within the meaning of the applicable statutes. In the absence of a timely filed petition for review, the commission is without authority to review the decision of the administrative law judge and therefore issues the following:
The complainant's petition for review is dismissed.
Dated and mailed June 15, 2007
morgade . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Denice A. Morgan
Attorney Pam D. Parrish
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uploaded 2007/06/18