DANIEL AVANT, Complainant

MILWAUKEE AREA TECHNICAL COLLEGE, Respondent

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

The applicable statutes provide that a 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. Wis. Stat. § 111.39 (5), Wis. Stat. § 106.52 (4)(b).

In addition, Wisconsin Administrative Code § LIRC 1.02 provides, in relevant part, as follows:

All petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order . . .

The ALJ's decision having been dated and mailed on April 15, 2011, the last day on which a timely petition for review could have been filed was May 6, 2011. The petition for review was filed on May 19, 2011. It was thus late.

The complainant does not dispute that his petition for commission review was late. Instead, he relies on an assertion that he received the ALJ's decision late because of problems with mail.

Specifically, the complainant asserts that he lost a job on February 28, 2011, that on March 15, 2011 his house at 5324 North 49th Street, was foreclosed, and that by April 15, 2011 he became homeless. He asserts that he put his things in storage, and that a friend took him in. He explains that due to his homeless condition, he got a post office box. He asserts that when he went to the post office, the postal person told him that there were times when the mail can get lost in the process of moving. He also asserts that he sometimes found other people's mail in his post office box. He thus appears to be claiming that because of problems with his post office box, he did not receive the ALJ's decision on time.

The commission does not find the complainant's explanation to be persuasive.

The only basis for overlooking the lateness of a petition for commission review is to find that the petitioner was prejudiced because of exceptional delay in the receipt of a copy of the decision, under Wis. Stat. § 111.39(5)(b). Treige v. Servicemaster Clean, ERD Case No. CR200802826 (LIRC, June 25, 2010). However, the assertions the complainant has made in an attempt to explain why his petition for review was late, even if true, would not establish any exceptional delay in receipt of the decision that was not the complainant's own fault.

The complainant has not claimed, that he ever told the Equal Rights Division that he got a post office box and that he wanted the Division to use that address. There is also no indication in the Division's file that the complainant ever told it about the post office box. Thus, at the time the decision was sent out in this case, the only mailing address the Division had for the complainant was his address at North 49th Street, and it properly sent the decision to that address.

The complainant also has not claimed that he ever put in a change of address order with the Post Office to have mail addressed to his old North 49th Street address forwarded to his post office box.

If the reason that a complainant does not receive his copy of the ALJ's decision is that he had not kept the Equal Rights Division informed of his current address, this does not constitute an "exceptional delay" within the meaning of the statute. Cotton v. Band Box, ERD Case No. CR200602715 (LIRC Dec. 7, 2007).

From what the complainant has said in his petition for commission review, it appears that the reason he did not receive the ALJ's decision promptly is that he did not take reasonable steps to keep the Division informed that his mailing address had changed and he did not take reasonable steps to ensure that mail to him at his old address would be forwarded to his current address.

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 the decision, within the meaning of the applicable statutes.

The petition for review is dismissed.

Dated and mailed August 11, 2011
avantda.rpr : 110 :  794

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

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