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

LINDA M BROTHEN, Complainant

TIME WARNER CABLE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200804492, EEOC Case No. 26G-2009-00484C


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, except that it makes the following modification:

The fifth sentence in the first full paragraph on page 2 of the administrative law judge's Decision is deleted and the following substituted therefor:

"The complainant was told in the June 25, 2007 letter from the respondent that she would be eligible for medical benefits through COBRA, a federal law requiring employers with group health plans to offer employees the opportunity to continue their group health care coverage temporarily under the employer's plan if their coverage otherwise would cease due to a "qualifying event," including termination, layoff, or other change in employment status. If there was any doubt in her mind prior to receiving this letter, the respondent's notification to the complainant that she was eligible for COBRA coverage should have put her on notice that there was a change in her employment status. "

DECISION

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

Dated and mailed October 2, 2009
brothli . rmd : 164 :

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that after receiving the respondent's June 25 letter she called the respondent and was told that the letter was not terminating her employment and that she should apply for Medicare. The complainant contends that at no time was she told that the respondent was terminating her employment and that she continues to send the respondent resumes to this day hoping for a part-time position, but has been put on a "black list" because she is disabled. She states that it has been less than 300 days since she last sent the respondent her resume.

The complainant's arguments are internally inconsistent and conflict with other assertions made by the complainant throughout the course of these proceedings. In her complaint the complainant contended that her employment was terminated effective May 2, 2007, the date on which she received the letter from Hartford Insurance notifying her that her long term disability claim was cancelled, and alleged that she was wrongfully terminated because of her disability. It is clear from the face of the complaint that the complainant understood the end of her disability benefits meant the effective termination of her employment. The complainant's current allegation that she called the respondent and was told she was not terminated has been raised for the first time in her petition for review and is contradicted by the statements made in her complaint, which the complainant certified as being true and correct. Moreover, the complainant's contention that she has been sending the respondent resumes hoping for a part-time position -- which in a March 12, 2009 letter to the Equal Rights Officer the complainant contended she did on two occasions since May of 2007 -- further supports a conclusion that the complainant regarded the employment relationship as having ended after the May 2 letter, and that she understood she was no longer employed. Finally, regarding the complainant's contention that it has been less then 300 days since she last sent the respondent her resume, the commission notes that her complaint indicates the most recent act of discrimination occurred in May of 2007. While the complainant now seems to be suggesting that the respondent discriminated against her by failing to consider her for rehire because of a disability, that is a separate matter beyond the scope of the original complaint.

In her petition the complainant also argues that, contrary to the statement made in the administrative law judge's decision describing COBRA as a government program applying exclusively to former employees, COBRA coverage is not limited to former employees. The commission agrees that the administrative law judge's description of COBRA is inaccurate. COBRA is not a government program, but a federal law (The Consolidated Omnibus Budget Reconciliation Act of 1985) that requires most employers with group health plans to offer employees the opportunity to continue temporarily their group health care coverage under their employer's plan if their coverage otherwise would cease due to termination, layoff, or other change in employment status (referred to as "qualifying events.") A qualifying event is not limited to termination of employment, but includes (1) the death of a covered employee; (2) the termination (other than by reason of the employee's gross misconduct), or a reduction of hours, of a covered employee's employment; (3) the divorce or legal separation of a covered employee from the employee's spouse; (4) a covered employee becoming entitled to Medicare benefits under Title XVIII of the Social Security Act; or (5) a dependent child ceasing to be a dependent child of the covered employee under the generally applicable requirements of the plan and a loss of coverage occurs. The commission does, however, agree with the administrative law judge's reasoning that the respondent's notification to the complainant that she was eligible for COBRA coverage, coming on the heels of the letter from Hartford Insurance notifying her that her disability coverage had ended, should have further put her on notice that there was a change in her employment status. While the complainant now maintains that she believed the COBRA letter was triggered by her Medicare eligibility, her contention that the respondent suggested she apply for Medicare after it already sent her the letter suggests otherwise.

The commission has modified the administrative law judge's decision to more accurately describe COBRA. However, this minor modification notwithstanding, the commission agrees with the administrative law judge's ultimate conclusion that the complaint was untimely, and it affirms the dismissal of the complaint.

cc: Attorney Jamal M. Dawkins


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uploaded 2009/10/26