COLLEEN LINDELL, Complainant

ST CROIX VALLEY MEMORIAL HOSPITAL, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on October 7, 1997, dismissing the complainant's complaint of discrimination. The last day on which a timely petition for review could have been filed was October 28, 1997. The complainant's petition for review was not filed until November 6, 1997.

In the absence of a timely filed petition for commission :review, the commission is without authority to review the decision of the administrative law judge, and therefore issues the following:

The complainant's petition for review is dismissed.

Dated and mailed December 10, 1997
lindeco . rpr : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

Pursuant to § 111.39(5) of the Wisconsin Fair Employment Act, a party who is dissatisfied with the findings and order issued by the administrative law judge may file a petition for commission review within 21 days of the date of issuance of the administrative law judge's findings and order. On

October 7, 1997, the administrative law judge issued a decision dismissing the complaint based upon the complainant's failure to demonstrate that there was probable cause to believe she was discriminated against on the basis of her sex. The last day on which a petition for commission review could be filed was October 28, 1997. However, the complainant's petition for review was not received until November 6, 1997 and was, therefore, untimely.

The complainant explains that she mailed her petition on October 13, 1997, and is shocked that the Division did not receive it. It appears, based upon documentation in the file, that the complainant's petition was mailed in a timely fashion, but that it was returned to her because it lacked adequate postage. Thus, while the complainant may have originally mailed her petition on October 13, 1997, as she alleges, due to her failure to affix sufficient postage, it was not actually received by the Division until November 6, 1997. Wisconsin Statute § 111.39(5), which requires the filing of a petition for review within 21 days in order for the commission to have authority to proceed, contains no provision allowing the commission to accept late petitions, even if it appears that there is good cause for the untimeliness or that the lateness of the petition resulted from factors beyond the petitioner's control. Consequently, the commission must dismiss the complainant's petition as untimely.

cc: James M. Dawson

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/06/15