RICKY B. LACY, Complainant

BRIGGS & STRATTON, 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 February 13, 1991. The last day on which a timely petition for Commission review could be filed was March 6, 1991. The petition for Commission review was received on March 21, 1991.

In the absence of a timely petition for Commission review, the Commission is without authority to review the decision of the Administrative Law Judge, and it therefore makes the following:

That the petition in this matter be dismissed.

Dated and mailed July 9, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

In his petition for review and a subsequent letter, the Complainant has explained his failure to file a timely petition for review by indicating that he was hospitalized between January 2, 1991 and March 1, 1991, with a discharge diagnosis of chronic paranoid schizophrenia. In a letter to the Division, he refers to "reasons that were out of my control" and the fact of his having been in the hospital for a long period of time resulting in his being unable to defend himself. It can be noted, that the document treated as the petition for Commission review was received on the 21st day after March 1, 1991, the date on which Complainant was apparently discharged from the hospital.

If the Commission had the authority to entertain late petitions for Commission review when the lateness of the petition was attributable to circumstances beyond the petitioner's control such that there was "good cause" for the untimeliness of the petition, these facts would be significant. However, the Commission lacks such authority. Unlike the situation which prevails under both the Worker's Compensation and Unemployment Compensation Acts, in which the Legislature has seen fit to include statutory provisions authorizing the Commission to accept late petitions for Commission review if a petitioner shows probable good cause that the reason for failure to timely file was beyond the petitioner's control, see secs. 102.18 (3) , 108.09 (6) (a) , Wis. Stats. , the Fair Employment Act contains no similar provision allowing a late petition to be considered on a general "good cause" basis. Rather, it provides only that a party who is dissatisfied with the findings and order of the examiner may file a written petition for review by the Commission, that if no petition is filed within 21 days from the date that a copy of the findings and order are mailed to the lastknown address of the parties the findings and order shall be considered final, that if a timely petition is filed the Commission may act, and that

"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." Section 111.39(4)(d), (5), Wis. Stats.

In applying this provision, the Commission has never held that a "good cause" standard can be read as implicit in this language. In the relatively few cases in which a late petition has been accepted, it has been accepted on the basis of a conclusion that the petition was mailed within such time as to warrant a reasonable belief that it would be received by the Commission on time and that the petition could therefore be "deemed timely." Foth v. American Motors Corporation (LIRC, January 8, 1985), Hasenohrl v. SFGP. Inc. (LIRC, June 27, 1988).

The Commission construes the "exceptional delay" language in sec. 111.39(6), Stats., to refer exclusively to exceptional delay in the receipt of a copy of any findings and order which is the responsibility of the Equal Rights Division. Exceptional delay in the receipt of a copy of a decision caused by the factors external to the Equal Rights Division, such as, in this case, the hospitalization of the Complainant, are not within the intendment of this section. To so construe the statutory language would be to in effect create a "good cause"/ "beyond control" exception. The fact that the Legislature expressly provided for such a standard in certain programs but failed to do so in the case of appeals from the Equal Rights Division persuades the Commission that such a construction of the language would be inappropriate. As sec. 111.39, Stats., now stands, the requirement of the filing of a timely petition for Commission review is, in effect, jurisdictional. It is up to the Legislature to determine that in circumstances in which reasons beyond a person's control result in their filing a petition late even though they received the decision timely, the petition may nevertheless be entertained. The Legislature has, to this point, not so determined.

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