STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GERALD PATE JR., Complainant

MILWAUKEE ATHLETIC CLUB, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700003, EEOC Case No. 26G970407

The Complainant has filed a petition for review by the commission of an administrative law judge's order in this matter.

Wis. Stat. § 111.39(5) provides that any party who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order, that 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 parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner 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.

Section LIRC 1.02 of the Wisconsin Administrative Code provides in relevant part as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. "Received" means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

Wis. Admin. Code § LIRC 4.01 provides in relevant part as follows:

"A petition for commission review of the findings and order of a department of workforce development administrative law judge under s. 111.39 (5) or 106.04, Stats., shall be received within 21 days from the date of mailing of the findings and order to the parties . . ."

The administrative law judge's order having been dated and mailed on July 9, 1998, the last day on which a timely petition for review could have been filed was July 30, 1998. The petition for commission review was received on August 3, 1998.

Complainant did not provide any explanation for the lateness of his petition for review. It may be, that the Complainant failed to receive the copy of the Order of Dismissal which was mailed to his last-known address because he had moved and he did not inform the Division of the change in his address. However, the exception in Wis. Stat. § 111.39(5)(c) concerning situations in which the commission is satisfied that the party was prejudiced because of exceptional delay in receipt of a copy of the decision, is applicable only to cases where the exceptional delay is the fault of the ERD, and it is not applicable to cases in which the exceptional delay is the party's fault -- such as cases in which a party did not keep the ERD informed of his or her current address. See, Lacy v. Briggs & Stratton (LIRC, 07/09/91), Hadelli v. Essco, Inc. (LIRC, 04/09/92).

The commission therefore finds that the petition for commission review was not timely, and that the petitioner was not prejudiced because of exceptional delay in the receipt of a copy of any findings and order, within the meaning of section 111.39(5) of the statutes. 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:

DECISION

The petition for review is dismissed.

Dated and mailed: August 26, 1998
pateger2.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: Attorney Kathleen Rinehart

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