State of Wisconsin

Labor and Industry Review Commission

Donald Piontek	Fair Employment Decision[1]
Complainant
Curative Network
Respondent	Dated and Mailed:
ERD Case No. CR201502981	November 20, 2017
	piontdo_rsd: 164

The administrative law judge’s decision issued in this matter on October 6, 2017 is set aside, and the commission substitutes its own decision addressing the timeliness of the petition for review.  

The complainant’s petition for commission review was filed late and is, therefore, dismissed.  Accordingly, the administrative law judge’s decision dated June 28, 2016 remains in effect. 

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner /s/
	____________________________________
	David B. Falstad, Commissioner

Procedural Posture

On June 28, 2016, an administrative law judge for the Equal Rights Division (hereinafter “ERD”) of the Department of Workforce Development issued a decision in this matter, finding no probable cause to believe that the complainant was retaliated against for having filed a prior discrimination complaint.  The administrative law judge’s decision was accompanied by a notice of appeal rights informing the complainant that he had 21 days in which to file a petition for review by the commission.  Thus, the latest the petition could have been filed was July 19, 2016.  On July 22, 2016, at which point no petition for review had been filed, the ERD closed its file with respect to this case. 

Over a year later, on September 27, 2017, the complainant submitted a petition for commission review of the administrative law judge’s decision.  On October 6, 2017, an administrative law judge from the ERD issued a decision dismissing the petition for review on the basis of timeliness.  However, the ERD lacked jurisdiction to issue any decision addressing the timeliness of the complainant’s petition.  The administrative law judge’s June 28, 2016 decision finding no probable cause became final when no petition for review was filed within 21 days.  Wis. Stat. § 111.39(5)(b).  Consequently, the ERD closed its file on this matter on July 22, 2016.  It is well established that an administrative law judge has no authority to take any further action with respect to a decision after the 21-day appeal period has run and the file has been closed.  Treige v. Servicemaster Clean, ERD Case No. CR200802826 (LIRC June 25, 2010).  Thus, although Wis. Admin. Code § DWD 218.21(2) requires that a petition for commission review be filed with the ERD, the ERD’s only role upon receipt of the petition is to forward it to the commission.  The commission decides whether the petition was timely and, if not, whether there was an exceptional delay in the receipt of the administrative law judge’s decision that would warrant extending the deadline for filing an appeal, per Wis. Stat. § 111.39(5)(b).[2]

In light of the foregoing, the commission has set aside the administrative law judge’s October 6, 2017 decision, and it will treat this matter as having been sent to the commission for its initial review and processing of the complainant’s petition.

Timeliness of Petition

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).

Wisconsin Admin. 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 administrative law judge’s decision having been dated and mailed on June 28, 2016, the last day on which a timely petition for review could have been filed was July 19, 2016.  The complainant’s petition was not filed until September 27, 2017, and was clearly untimely.

In his petition, the complainant argues that he received the administrative law judge’s decision, but that he cannot read or write and could not find anyone who would help him with his appeal.  The complainant contends that he contacted the Milwaukee office of the ERD, but received no assistance.  He explains that on September 21, 2017, he contacted the ERD’s Deputy Administrator, and that individual assisted him writing in his petition. 

While the commission is sympathetic to the complainant’s situation and considers it unfortunate that the complainant did not receive the assistance he required in a timely manner, the Wisconsin Fair Employment Act does not permit the commission to accept a late petition, even if the petition was late for reasons beyond the petitioner’s control.  Because the petition for commission review was not filed timely, and where the complainant was not prejudiced because of exceptional delay in the receipt of a copy of the decision, the petition for review must be dismissed.  The administrative law judge’s June 28, 2016 decision finding no probable cause therefore remains in effect.

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] See, for example, Lacy v. Briggs & Stratton, ERD Case No. 8950726 (LIRC July 9, 1991); Lindell v.  St. Croix Valley Memorial Hospital, ERD Case No. 199602641 (LIRC Dec. 10, 1997); Brost v. Perry Graphics Communications Inc., ERD Case No. 199604822 (LIRC Nov. 27, 1998); White v. Southwest Logistics, ERD Case No. CR200200911 (LIRC June 20, 2003); Morgan v. Kraft Foods Inc., ERD Case No. CR200502509 (LIRC June 15, 2007); Thomas v. ITT Technical Institute, ERD Case No. CR200703942 (LIRC May 29, 2008); Chavez v. Blue Harbor Resort, ERD Case No. CR201000076 (LIRC Jan. 4, 2010); Vanderkin v. Ultra Mart Foods, ERD Case No. CR200900833 (LIRC Feb. 10, 2011); Calvin v. Sub-Zero Freezer Co., ERD Case No. CR200402657 (LIRC April 29, 2016).