WILLIAM WRIGHT, Complainant

COMPUTER PEOPLE UNLIMITED, Respondent

An administrative law judge (ALJ) for the Equal Rights Division ("ERD") of the Department of Industry, Labor and Human Relations issued a decision in this matter on February 15, 1995. The decision was served on the parties by mail on that date, with a Notice Of Appeal Rights which advised them that any party dissatisfied with the ALJ's decision could file a written petition for review by the Labor and Industry Review Commission ("LIRC") within twenty-one (21) days of the date of the ALJs decision. The last date on which a petition for review by LIRC could be timely filed was therefore March 8, 1995.

On March 3, 1995 the ERD received a copy of a letter from Complainant's counsel to Ms. Mary Burks at the Equal Employment Opportunity Commission in Milwaukee. That letter recited, "[w]e are in receipt of the Administrative Law Judge James Schacht's Order of Dismissal in this matter dated February 15, 1995. We disagree with the State Agency's decision and respectfully request that the EEOC review this action." In response, a legal secretary at the ERD sent out a form letter to Complainant's counsel, with a copy to Respondent's counsel, indicating inter alia "[w]e have received your Petition for Review. The case is being forwarded to the Labor and Industry Review Commission..." On March 6, 1995, Respondent's counsel sent both LIRC and Complainant's counsel a letter questioning whether the letter to the EEOC had been intended to be a petition for LIRC review.

On March 10, 1995 the commission received a letter from Complainant's counsel indicating that "Complainant' s Petition for Review" was enclosed. Also enclosed was a document denominated "Complainant's Petition For Review," which requested LIRC review of the February 15, 1995 decision of the ALJ. Neither the letter, nor the "Petition For Review," contained any assertion that the earlier letter from Complainant's counsel to the EEOC had been intended as a petition for review by LIRC, or any reference whatsoever to that earlier correspondence. Neither the letter, nor the "Petition For Review," contained any explanation of why they were being filed more than 21 days after the date of the ALJ's decision.

The copy of the letter from Complainant's counsel to the EEOC which the ERD received on March 3, 1995 did not request the Labor and Industry Review Commission to review the ALJ's decision. It was expressly directed to a specific agency of a different jurisdiction, the federal government. It was clear and unambiguous in showing an understanding that the ALJ's decision was the product of a state agency. It reflected an apparent understanding of the fact that the EEOC conducts investigations of complaints of discrimination under federal laws within its jurisdiction after state "deferral agencies" such as the Wisconsin ERD conduct investigations under their state laws, and that in the course of such EEOC investigations the EEOC reviews and considers the state determinations. The commission is therefore satisfied that the letter was neither the product of any confusion about the identities and roles of the agencies in question, nor an attempt to request LIRC review.

Thus, the only petition for LIRC review filed in this matter was the one received by LIRC on March 10, 1995. This petition was not timely under sec. 111.39(5), Stats. There is also no basis on which to find that Complainant or Complainant's counsel were prejudiced by any exceptional delay in receipt of the ALJ' s decision within the meaning of sec. 111.39(5) (b), Stats.

In the absence of a timely filed petition for commission review, the commission is without authority to review the decision of the ALJ, and it therefore issues the following:

Dated and mailed March 28, 1995
wrighwi . rpr : 110 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

NOTE: The commission wishes to note that, even if it had accepted the petition and reached the merits, it would have affirmed the decision of the ALJ. Schactner v. DILHR, 144 Wis.2d 1, 422 N.W.2d 906 (Ct. App., 1988),  Norris v. DILHR, 155 Wis.2d 337, 455 N.W.2d 665 (Ct. App. 1990), and Marson v. LIRC, 178 Wis.2d 118, 503 N.W.2d 582 (Ct. App. 1993) establish as a general matter that the ERD and LIRC do not have jurisdiction under the Fair Employment Act to address allegations of handicap discrimination that relate to conditions arising from work-related injuries that are subject to the Workers Compensation Act. Both in his complaint to the ERD, and in the Application for Hearing he filed with the Workers Compensation Division, Complainant affirmatively asserted that his discrimination claim concerned a condition which, because it was allegedly aggravated beyond normal progression by work exposure, was subject to the Worker's Compensation Act.

Complainant asserts generally that the Complainant's WC claim was "denied by both the [employer] and its insurance carrier as being a viable claim for Workers Compensation coverage." However, what is significant in these cases is whether or not the Complainant has asserted that a condition is job-related. The fact that the employer may dispute work-relatedness in the WC forum does not relieve the Complainant of the effects of his or her initial representation that the condition is work-related. Complainant has asserted that he was denied accommodation of, and discharged because of, a handicap that is also a condition subject to the Workers Compensation Act. Therefore, even if there had been a timely petition for review the commission would have been required to affirm the ALJ's order dismissing the complaint.
 

cc:
Judith M. Paulick
Timothy G. Costello

Ed. Note: The Schachtner and Norris Court of Appeals decisions on which the NOTE postion of this decision rested were effectively overruled by Byers v. LIRC, 208 Wis. 2d 388, 561 N.W.2d 678 (1997).

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2009/02/03