TERRELL CHYPHES, Complainant

INDEPENDENCE CORRUGATED, Respondent

On August 31, 2010, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision dismissing the complainant's complaint in the above-captioned matter. The ALJ dismissed the complainant's complaint due to his failure to respond within twenty (20) days to a letter sent by certified mail to the complainant's last known address. The reason for the ALJ's certified mail being sent to the complainant was that the respondent had filed a motion to dismiss the complainant's complaint based on the complainant's failure to respond to the respondent's discovery requests.

A notice regarding appeal rights attached to the ALJ's decision informed the parties that in order to obtain a review of the decision by the Labor and Industry Review Commission, a written petition "must be received" by the Equal Rights Division within twenty-one (21) days from the date of the decision, or the decision will become final." (Emphasis in original.) Accordingly, the last day on which a timely petition for review of the ALJ's decision could be received by the Division was September 21, 2010.

On September 24, 2010, the ERD mailed written notice to the parties stating that the case has now been closed because a timely petition for review had not been received by the Division.

Subsequently, on October 26, 2010, the ERD received written correspondence from the complainant stating that he "did not receive [the] hearing date letter by mail [due] to the fact of me moving and having my address changed." The complainant's correspondence states that "When I changed my address [at the Post Office] I assumed all my mail would come to me..." The complainant also states that he answered "yes" to the change of address application question "will you be changing addresses within the next 6 months".

The record shows that previously on October 28, 2009, the ERD mailed an Initial Determination to the parties which found no probable cause to believe that the respondent had violated the WFEA by discriminating against the complainant in terms or conditions of employment, compensation, promotion or termination of employment because of race. The Initial Determination was mailed to the complainant at 235 E Townsend, Milwaukee, Wisconsin 53212. The complainant filed a timely written appeal on November 30, 2009 (The 30th day, Friday, November 27th was a furlough day for state employees and consequently the ERD's office was closed that day. That made Monday, November 30th the last day on which to file a timely appeal.). Subsequently, on December 17, 2009, the ERD mailed notice to the parties stating that the matter was certified to a hearing on the issue of probable cause. The complainant's notice was mailed to him at the 235 E Townsend address in Milwaukee. There is nothing in the case file which indicates that the ERD's December 17 correspondence was returned by the Post Office as undeliverable.

The record shows that thereafter on July 20, 2010, the ERD mailed a Notice of Hearing to the complainant, that on July 30, 2010, it mailed a copy of the ALJ's certified letter to the complainant, that it mailed to the complainant on August 31, 2010, a copy of the ALJ's decision dismissing his complaint, that on September 24, 2010, it mailed written notice to the complainant stating that the case has now been closed because a timely petition for review had not been received, and that the ERD had correctly addressed and mailed all of this correspondence to the complainant's last known address-235 E Townsend, Milwaukee, Wisconsin 53212. All of this mail sent to the complainant was returned by the Post Office with the statement, "Not Deliverable as Addressed, Unable to Forward", with the exception of the ERD's written correspondence stating that the case had been closed, which the Post Office returned with the statement "Insufficient Address, Unable to Forward".

The complainant does not claim that he notified the ERD of his address change. However, it was the complainant's responsibility to notify the ERD of an address change and he was informed of this responsibility. As part of his discrimination complaint the complainant was asked to complete an Equal Rights Process Information Sheet. Included on this sheet was a section titled "Availability/Contact Information", which included in parenthesis the following information: "(Important! The complainant must notify the Equal Rights Division if there is a change of address or telephone number. If we are unable to locate the complainant, the complaint may be dismissed.)"

Further, it appears that the reason for the complainant's failure to receive mail the ERD had sent to him beginning on July 20, 2010 and thereafter was because the change of address form he completed for the Post Office to forward his mail was limited to six (6) months. As noted above, the complainant states that he answered "yes" to the Post Office change of address application question "will you be changing addresses within the next 6 months". It was not until July 20, 2010, that the Post Office began returning mail the ERD had sent to the complainant with the notice "Not Deliverable as Addressed, Unable to Forward". Surely, if the complainant had a change of address request in effect for the Post Office to forward his mail to him at the address where he resided as of July 20, 2010, the Post Office would not have been returning mail the ERD had sent to the complainant with the notice "Not Deliverable as Addressed, Unable to Forward".

Section 111.39(5), Stats., which requires the filing of a petition for review within 21 days, contains no provision allowing the commission to accept late petitions when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner's control. Green v. Kimberly-Clark/Badger Globe Mill (LIRC, 04/09/92). The only 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). This exception is not applicable here. First, the record indicates that the cause of any delay in the complainant's receipt of a copy of the ALJ's decision was most directly attributable to his failure to notify the ERD, as required, if he had a change of address. Second, even assuming for purposes of argument that an exceptional delay in the receipt of a copy of the ALJ's decision caused by the Post Office is within the intendment of the statute, there is nothing which indicates that the Post Office caused the complainant's delay in receiving a copy of the ALJ's decision. Instead, the record indicates that the complainant had filed with the Post Office a request for only a temporary change of address for six (6) months and then after the expiration of those six months failed to submit another change of address request for the Post Office to forward his mail to another address. Thus, ultimately, any delay in the complainant's receipt of a copy of the ALJ's decision was entirely the fault of the complainant.

Accordingly, in the absence of a timely filed petition, the Labor and Industry Review Commission has no 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 December 9, 2010
chyphte . rpr : 125 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Kenneth B. Chang

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