DENNIS CLARKE COTTON, Complainant

BAND BOX INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed. Accordingly, the complainant's complaint is dismissed with prejudice.

Dated and mailed December 7, 2007
cottode . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On May 9, 2007, the Equal Rights Division mailed a notice of hearing to the complainant at his last known address -109 W. Clifton Street, in Tomah, Wisconsin. The hearing notice stated that the hearing would be held at 9 a.m. on August 15, 2007, at the Monroe County Courthouse in Sparta, Wisconsin.

On August 15, after no appearance by the complainant, at 9:30 a.m. the ALJ adjourned the hearing. After adjourning the hearing, the ALJ, who previously had no cell phone coverage but now had cell phone coverage, saw that he had a message from the Milwaukee ERD office. The message was that the complainant had called the Milwaukee office at about 9:25 a.m., said he was in Madison and unable to get to Sparta and asked the ALJ to call him at a cell phone number-(608) 957-9568. For several days beginning on August 15, the ALJ called the complainant's cell phone number but only got a message saying the number was temporarily out of service. (Regarding the complainant's message, per a letter the ALJ sent to the complainant at his last known address dated August 20, 2007, the complainant had stated that he was staying in Madison, had some transportation problem getting to Sparta, and also asked if the hearing could be rescheduled but did not leave an address. The ALJ's letter advised the complainant that pursuant to Rule DWD 218.18(4), that if within 10 days of the hearing he showed good cause in writing for his failure to appear, he may reopen the hearing. The Post Office returned the ALJ's letter to the ERD with the note "RETURN TO SENDER NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD").

On August 31, 2007, the ALJ issued a decision which was sent to the complainant's Tomah address, dismissing his complaint based on his failure to appear at the hearing and having not shown good cause in writing for his failure to appear within 10 days of the hearing.

The Post Office returned the August 31 decision to the ERD with a notice indicating that the complainant's address had been 2314 Allied DR APT 3, Madison, Wisconsin, and that the forwarding time for mail at this address had expired.

On October 3, 2007, the ERD sent a letter to the complainant at the Allied Drive address stating that the case had now been closed by the Division.

Subsequently, on October 30, 2007, the ERD received a letter from the complainant requesting reinstatement of his complaint, along with a copy of the Division's October 3 letter. The Division forwarded the complainant's letter to the commission as a petition for commission review of the ALJ's decision. In the October 30 letter, the complainant indicates as reason for his failure to appear at the hearing that he had no transportation because at the last minute the person(s) he made arrangements with for transportation to the hearing weren't able to follow through. The complainant further indicates that when he learned this he made several calls to the ERD and even made an effort to get a ride with the ALJ. The complainant's letter shows that his mailing address is P.O. Box 45701, Madison, Wisconsin 53744. 
 

DISCUSSION

The question presented in this case is whether or not the commission even has the authority to consider the complainant's petition explanation for his failure to appear at the scheduled hearing in this matter. The commission concludes that it does not.

The ALJ's decision dismissing the complainant's complaint for failing to appear at the hearing was mailed to the parties' last known addresses on August 31, 2007. The Division did not receive a petition for review of that decision from the complainant until October 30, 2007, two months later. However, in order for the commission to acquire jurisdiction (i.e., authority) to review an ALJ's decision, a written petition must be received from the party within 21 days from the date the decision was mailed.

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). 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.

The complainant has not offered an explanation for the lateness of his petition but it is evident that the cause for the complainant's failure to file a timely petition is his failure to keep the ERD apprised of his current address. With respect to Availability/Contact Information, The Equal Rights Process Information Sheet the complainant completed and returned with his Discrimination Complaint informed him, in bold text, "Important! The complainant must notify the Equal Rights Division if there is a change of address or telephone number...."

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, such as, in this case, a complainant's failure to keep the Division informed of his or her address is not within the intendment of the statute.

cc: Attorney Mark L. Goodman

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uploaded 2007/12/10