MIR M. S. HADELLI, Complainant

ESSCO INCORPORATED, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 17, 1992, dismissing the Complainant's complaint of alleged discrimination. Accordingly, the last day on which a timely petition for commission review could be filed was February 7, 1992. Complainant's petition for review was filed on March 2, 1992.

In the absence of a timely filed petition, the Labor and Industry Review Commission has no jurisdiction to review the Administrative Law Judge's decision and therefore issues the following:

The Complainant's petition for review is dismissed and the decision of the Administrative Law Judge issued on January 17, 1991 constitutes the FINAL ORDER herein.

Dated and mailed April 9, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Section 111.39(5) of the Wisconsin Fair Employment Act requires that a dissatisfied party file his or her petition for Commission review with the Department within 21 days of the examiner's findings and order. Section Ind 88.19 of the Wisconsin Administrative Code which implements the Act further provides as follows: "The petition shall be filed . . . within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties."

Section 111.39 (5) (b) of the Act also contains a provision which provides as follows: "If the commission is satisfied that a respondent or complainant 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."

The examiner's (Administrative Law Judge/ALJ) decision was mailed to the Complainant's Wilmington, Delaware address on January 17, 1992. The last page of the decision indicates that Complainant's attorney (located in Milwaukee) was also mailed a copy of the decision. In a letter by Complainant dated January 22, 1992, sent by certified mail, and which was received by the Department on January 27, 1992, the Complainant stated as follows:

"I am writing you to advise you that I have a new addrass. My case was tried in December of 1990 and Since I have not received a decision yet I thought it was because of my change of addrass notice did not reach you. If the decision has not yet been rendered, I will patiently wait for it."

Complainant's letter disclosed that he had a new address in Flushing, New York

The next day, January 28, 1992, the Department sent a letter to Complainant acknowledging his January 22 letter, and stating that the decision in this case was issued on January 17, 1992 and mailed to his last address per the Department's records because it did not have his new address. The Department's letter stated that it was enclosing another copy of the ALJ's decision. The January 28, 1992 letter indicates that Complainant's attorney was sent a copy.

A subsequent February 14, 1992 Department letter to the parties and their attorneys informed them that the case had been closed because a timely petition for review had not been received.

On March 2, 1992, the Department received a letter from the Complainant stating that he could not afford to pay his attorney to seek to reopen his case and requesting the Department to review his case.

For the reasons set forth below, the Commission concludes that the exceptional delay provision contained in sec. 111.39 (5) (b) of the Act is not applicable in the instant case, a result of which requires that the Complainant's petition for review be dismissed for failure to be filed within the required 21 days.

First, it appears that the cause of the delay in Complainant's receipt of the ALJ's decision was due to the Complainant's failure to apprise the Department of his new address. The Department's January 28, 1992 letter indicates that Complainant had not timely notified the Department of his new address. Complainant's letter of January 22, 1992, does not contradict this, although it does suggest he may have attempted to provide notice of his change of address at some undisclosed time prior to January 22. In any case, assuming that Complainant had previously attempted but had been unsuccessful in notifying the Department of his address change, there is nothing which indicates that this was due to the fault of the Department. The file shows that previously on June 8, 1989, the Complainant had provided the Department with advance notice of his move from Wisconsin to Wilmington, Delaware. Clearly the Complainant should not be allowed to complain of prejudice because of exceptional delay in the receipt of the ALJ's decision due to his own failure to notify the Department of his address change. Second, one would also have to assume that Complainant's attorney failed to receive prompt notice of the ALJ's decision and that there was no communication between Complainant and his attorney after the ALJ's decision was mailed. Third, based on the Department's January 28, 1992 mailing of a second copy of the ALJ's decision to Complainant at his new address, and allowing three days for mail delivery to Complainant (1/31/92), Complainant still had one full week in which to file a petition for review. Finally, commenting on the exceptional delay provision in Airco, Inc., Ohio Medical Products. Division v. LIRC, Case No. 80-CV-3959 (4/30/81), the court stated that "since the extension of time is based on the failure of the petitioner to receive the order promptly, the statute contemplates the request for extension to be made prior to the expiration of the time for filing has expired, not after the fact." (emphasis added)  In the instant case, no request for extension had been made by Complainant prior to the expiration of time for filing a petition.

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