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

GLORIA RIVAS, Complainant

CITY OF MILWAUKEE BUILDING INSPECTION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601483, EEOC Case No. 26G980111

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

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 24, 1999
rivasgl.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant suggests that her case should be treated differently from the cases cited by the respondent in its motion to dismiss because her appeal was only three days late. The complainant points out that the administrative code does not address situations in which an appeal is only three days late. The complainant contends that she believes an additional 72 hours was "timely" considering her traumatic circumstances. Finally, she points out that she previously filed a timely appeal of an initial determination in this case, but rather than ordering a hearing, the administrative law judge remanded the matter for further investigation and determination. The complainant suggests that, since this was not her first letter of appeal, it should be considered timely. The complainant's arguments fail. While the administrative rules do not specifically address appeals that are only three days late, just as they do not specifically address appeals that are ten or twenty days late, the rules clearly provide that any appeal filed more than 30 days after the date of the initial determination will be considered untimely and that, in the absence of a timely appeal, the initial determination's order of dismissal will be considered the final determination of the department. Wis. Admin. Code § DWD 218.08(1) and (2). The rules contain no exception for appeals that are only a few days late, nor is there an exception for appeals that are late due to compelling personal circumstances, even extremely tragic ones. Finally, while the complainant may have filed a timely appeal of a previous determination, that fact has no bearing on the instant case, which involved a separate determination with a separate deadline for filing an appeal. Where the complainant failed to file a timely appeal of the determination in question, that determination must be considered the final determination of the department. Accordingly, the dismissal of the complaint is affirmed.

cc: Leonard A. Tokus

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