HOLLY A TREIGE, Complainant
SERVICEMASTER CLEAN, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on January 14, 2010.
The Wisconsin Fair Employment Act provides, in Wis. Stat. § 111.39(5), as follows:
(a) Any respondent or complainant 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.
(b) 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 last-known address of the respondent the findings and order shall be considered final for purposes of enforcement under sub. (4) (d). If a timely petition is filed, the commission, on review, may either affirm, reverse or modify the findings or order in whole or in part, or set aside the findings and order and remand to the department for further proceedings. Such actions shall be based on a review of the evidence submitted. 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 ALJ's decision having been dated and mailed on January 14, 2010, the last day on which a timely petition for commission review could have been filed in this matter was February 4, 2010. No petition for review was file by that date.
On June 4, 2010, the Respondent, by counsel, filed with the ERD a "Motion To Reopen Proceedings," with a number of attached documents. The motion requested the ERD to "reopen" the matter, and to allow the Respondent an opportunity for hearing to defend on the merits or, in the alternative, to establish good cause for its failure to have appeared at the hearing which was held before the ALJ.
The ALJ responded by advising the parties that he believed he had no authority to take any action with respect to the case, and that consistent with Nabors v. Kelly IT Resources (LIRC, Oct. 6, 2006), he would be forwarding the case to the commission for it to determine whether the Respondent's "Motion To Reopen Proceedings" should be treated as a petition for commission review.
On June 18, 2010, the Respondent renewed its request directly to the commission.
Discussion - There is nothing in the WFEA, or in the ERD's administrative rules, which expressly gives an ALJ any authority to 'reconsider' a decision or to take any action with respect to a case once the ALJ's decision has been issued. Nabors v. Kelley IT Resources (LIRC, Oct. 6, 2006). While the commission has indicated that an ALJ may modify a decision if the 21-day period for petitioning for commission review of that decision has not yet run and if no petition for commission review has yet been filed, see, Wuest v. Motel 6 (LIRC, November 5, 1991), Wood v. Purolator Corp. (LIRC, June 11, 1991), it has long been established that an ALJ has no authority, under any circumstances, to modify a decision once the 21-day period for petitioning for commission review has expired. See, Foster v. Crest Building Maintenance Co. (LIRC, January 30, 1984); Cooper v. Janlin Plastics (LIRC, June 5, 1992). For this reason, the only thing the ALJ could do here, was what he did: refer the matter to the commission so that it could determine if the Respondent's "Motion To Reopen Proceedings" should be considered as an attempt to petition for commission review of the ALJ's January 14, 2010 decision.
The test for determining whether a writing filed with the ERD after the issuance of an ALJ's decision should be treated as a petition for commission review, has to do with its intent and purpose, specifically, whether it expresses dissatisfaction with the ALJ's findings and order and asks for review of or changes in the finding and order. Henderson v. Department of Corrections (LIRC, March 19, 2009), citing Nagy v. Fox Valley Tech. & Baldi (LIRC, November 22, 1995).
The Respondent's "Motion To Reopen Proceedings" asks that the underlying proceedings in front of the Equal Rights Division be reopened, and that it be allowed to present a substantive defense and to defend on the merits. It asks in the alternative that the matter be set for hearing to allow it to establish the requisite good cause for its failure to appear at the hearing before the ALJ and otherwise respond to the pending action to allow it to reopen the proceedings. It is implicit in the Respondent's motion, that it does not want the ALJ's January 14, 2010 decision to stand and that it seeks to have that decision set aside. While it is in the form of a request to the ALJ to "reopen" the proceedings, a party's characterization of a document filed with the ERD after the issuance of an ALJ's decision does not control the question of whether it should be treated as a petition for commission review. Henderson v. Department of Corrections. Given its substance it is appropriate to treat the Respondent's "Motion To Reopen Proceedings" as a petition for commission review of the ALJ's January 14, 2010 decision. Ibid.
As a petition for review, Respondent's "Motion To Reopen Proceedings" was clearly untimely, by several months. Under Wis. Stat. § 111.39(5)(b), the commission's power to act is limited to cases in which a timely petition has been filed, and if no timely petition is filed, the ALJ's decision is deemed "final." The question presented is thus whether the commission has any authority to act on the merits of this case.
The Respondent's explanation for the untimeliness of its attempt to have the ALJ's decision set aside, is that it was caused by the neglect of the attorney who was representing it at the time. However, even if this is true, it is irrelevant. In marked contrast to other statutes which provide that lateness of a petition for commission review may be excused if it occurs for reasons beyond the control of the petitioner, 1(1) the Wisconsin Fair Employment Act's requirement that a petition for review be filed within 21 days contains no provision allowing the commission to accept late petitions even when it appears that there is good cause for the lateness of the petition or the lateness of the petition resulted from factors beyond the petitioner's control. Green v. Kimberly-Clark/Badger Globe Mill (LIRC, 04/09/92). Even if a party's failure to file a timely petition is the fault of their attorney, this does not excuse the lateness of the appeal or provide the commission with any authority to act on the petition. See, e.g., Lackey v. Miller Brewing Co. (LIRC, 07/06/87), Laskowski v. Beloit (LIRC, 03/30/89).
The only statutory exception under which a late petition may be considered, applies when LIRC is satisfied that a party has been prejudiced because of exceptional delay in the receipt of a copy of the Administrative Law Judge's decision. Under these circumstances, LIRC may extend the time in which to file a petition by another twenty-one days. Wis. Stat. § 111.39(5)(b). However, there is no conceivable argument for the application of that exception here. Materials attached to the Respondent's "Motion To Reopen Proceedings" show that a certified copy of the ALJ's January 14, 2010 decision was mailed to both the Respondent (using its "doing business as" name and its correct mailing address), and to its counsel of record, on the day the decision was signed and issued by the ALJ. The Respondent has also made no assertion that the decision was not in fact received by both it and its counsel in due course after this mailing. On the contrary, it has expressly asserted that the reason for the lateness of its reaction to the ALJ's decision was neglect by counsel. The "exceptional delay in receipt" exception cannot be invoked here.
The commission therefore finds that the Respondent's "Motion To Reopen Proceedings" filed on June 4, 2010 was not timely as a petition for review of the ALJ's February 4, 2010 decision in this matter. The commission further finds that the Respondent was not prejudiced because of exceptional delay in the receipt of a copy of the ALJ's February 4, 2010 decision. The commission therefore issues the following:
The Respondent's petition for review (its June 4, 2010 "Motion To Reopen Proceedings") is dismissed.
Dated and mailed June 25, 2010
treigho . rpr : 110 :
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, commissioner
/s/ Ann L. Crump, commissioner
Attorney Josh Johanningmeier
Attorney Jack W. Ebbott
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(1)( Back ) See, Wis. Stat. � 108.09(6)(a), Wis. Stat. � 102.18(3).