JEARLEAN B HOOTSELL, Complainant
WAUKESHA COUNTY DEPT OF HEALTH SERVICES, Respondent
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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and Mailed June 9, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In a complaint filed on July 30, 2010, the complainant alleged that she applied for two positions with the respondent in early 2006 and was not hired because of her race. In her complaint the complainant referenced an article that appeared in the Milwaukee Journal Sentinel on May 25, 2010, regarding a federal lawsuit that was filed against the respondent for race discrimination by an individual named Bernadine Matthews. The complainant contended that the discrimination against Ms. Matthews occurred at approximately the same time as she submitted her applications for similar positions and that she believed she too was discriminated against.
In a timely filed answer, the respondent argued that the complaint was time-barred, having been filed four years too late. An Equal Rights Officer from the Equal Rights Division (hereinafter "Division") sent the complainant a letter asking for a response. In an e-mail to the Equal Rights Officer dated November 1, 2010, the complainant explained that "Last year January 2009" Bernadine Matthews telephoned her to inform her about Ms. Matthews' discrimination complaint. The complainant stated that she filed her complaint after Ms. Matthews' telephone call.
The Division issued a preliminary determination on November 30, 2010, dismissing the complaint as untimely. The preliminary determination stated that, "It is reasonable to believe that the Complainant was made aware that she may not have been considered for the positions that she applied for because of her race in January 2009, when Ms. Matthews contacted her," but that the complainant waited to file her complaint until nineteen months after she had reason to believe that she may have been discriminated against.
The complainant filed an appeal of the preliminary determination in which she asserted, in relevant part:
". . . This matter did not come to my attention until January 2009, per phone call from Bernadine Matthews, became qualified for disability in February 2009. I filed in a timely manner from the date of newspaper article, and Ms. Matthew [sic] phone call to me."
On March 31, 2011, an administrative law judge for the Division issued a decision affirming the dismissal of the complaint as untimely. The administrative law judge noted that she was not making any finding on whether the statute of limitations began to run in 2006 because, even if it began to run in January of 2009, the complaint was still late. The administrative law judge stated that the complainant, at the very least, was required to file a complaint of employment discrimination within 300 days of the January 2009 telephone conversation.
In her petition for commission review the complainant argues that she made an error and that the telephone call from Ms. Matthews was in January of 2010, not January of 2009. The complainant states that in January of 2009 her husband was in grave condition and that he passed away in February of 2009. She does not explain why these circumstances, as unfortunate as they are, led her to make an error about the date of the telephone call.
The commission has held that it is inappropriate to resolve a factual dispute regarding timeliness without an evidentiary hearing, unless the complainant's contentions are inherently incredible. See, Rome v. Fiduciary Real Estate, ERD Case No. CR200801068 (LIRC Sept. 18 2009). In this case, the commission believes that the complainant's assertions made in her petition for review with regard to when she talked to Ms. Matthews are inherently incredible and do not warrant further hearing.
In November of 2010 the complainant sent an e-mail to an Equal Rights Officer for the Division stating, "Last year January 2009 Ms. Bernadine E. Matthews telephoned me. . ." (emphasis added). The fact that the complainant referred to something as happening "last year" in an e-mail sent in 2010 suggests that the call took place in 2009, not in 2010. Further, the Equal Rights Officer issued a preliminary determination finding that, based on the date January, 2009, the complaint was untimely. If the complainant had mistakenly provided the wrong date, it seems likely that she would have realized this when she read the preliminary determination and would have attempted to correct the error. Instead, the complainant continued to assert in her appeal of the preliminary determination that the telephone call was made in January of 2009. It was only when the administrative law judge clearly explained that the complainant needed to have filed her complaint within 300 days of her conversation with Ms. Matthews that the complainant contended she had made an error and that the conversation really took place in January of 2010. The commission finds the contentions made in the complainant's petition for review to be self-serving and inherently incredible.
The complainant was aware of the facts that would support a charge of discrimination by January of 2009, but did not file a complaint until July 30, 2010, well in excess of the 300 day deadline. (1) The dismissal of the complaint as untimely is, accordingly, affirmed.
Attorney Mary E. Nelson
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(1)( Back ) The commission makes no finding on whether the statute of limitations began to run prior to January of 2009, since, even relying upon the later date, the complaint was untimely.