BRENDA L TRAVERS, Complainant

WHEATON FRANCISCAN HEALTHCARE, 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, except that it makes the following modifications:

1. Replace the third sentence of the quotation in finding of fact 25 with the following:

2. Vicki had stated that if a person has three write-ups within one year they may be terminated

3. Replace the first sentence of the second paragraph of the memorandum opinion with the following:

4. In this case, the parties agree that the Complainant was informed of the Respondent's alleged act of discrimination - the termination of her employment - upon receipt of a letter dated July 5, 2007 (Exhibit 5), but they disagree as to when she received it.

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

Dated and mailed June 30, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

This is an appeal from an ALJ's decision that affirmed a Preliminary Determination dismissing a complaint on the grounds that it was not filed within the Wisconsin Fair Employment Act's 300-day statute of limitations, found in Wis. Stat. § 111.39(1). That statutory section provides that a complaint must be filed with the Equal Rights Division no more than 300 days after the alleged discrimination occurred in order to be considered by the Division.

The complainant requests that oral argument be granted by the commission in this case because there are substantial procedural issues of statewide significance relating to the statute of limitations and to the issue of appropriate sanctions against the respondent based upon its submission of prejudicial and defamatory surprise evidence against the complainant. Wis. Admin. Code § LIRC 1.06 allows oral argument "if it determines that an issue would be more clearly presented by oral argument." However, a note to that provision states that the commission "does not consider oral argument to be necessary because review is on the basis of the record, the parties have the right to file briefs, and oral argument delays disposition of the petition." In this case, the parties have filed detailed briefs, a transcript was prepared of the evidentiary hearing, and the commission sees no reason to hear oral argument on the issues. The request is denied.

In her petition for commission review, the complainant argues that the ALJ improperly placed the burden of proof on her in the matter of the statute of limitations. However, the commission has previously dealt with this issue, holding that the burden of proof lies with the complainant to establish compliance with the 300-day filing requirement of Wis. Stat. § 111.39(1). See Wanta v. Tower Automotive Inc., ERD Case No. 200204004 (LIRC Oct. 17, 2003); Bedynek-Stumm v. City of Madison, ERD Case No. CR 200003354 (LIRC Nov. 30, 2001).

The complainant, acknowledging that the 300-day statute of limitations begins to run in a discharge case when the employee is informed of the discharge, takes issue with the ALJ's factual finding that the complainant was given notice of her discharge on July 5, 2007. She argues that she was not notified of her discharge until she received a letter in the mail on July 9, 2007. However, the ALJ held a lengthy evidentiary hearing on just that issue and made numerous findings of fact in support of her ultimate finding that the complainant was informed of her discharge in person in a meeting on July 5th. In so finding, the ALJ concluded in her memorandum opinion that the respondent's version of events was "slightly more credible" than the complainant's version. After a review of the record, the commission agrees that the respondent's version of events was more credible than the complainant's version.

In addition, the October 23rd letter cited by the complainant as evidence in support of her position was never offered by the complainant as an exhibit at the hearing and was not received into evidence, nor was the respondent questioned about it. Notwithstanding that the letter also provides support for the respondent's position, the commission's rules, at Wis. Admin. Code § LIRC 1.04, provide that review by the commission shall be based on the record of the case. Since this letter is not part of the record of the case, the commission has not considered it.

The complainant also asserts that, having identified July 25, 2007 in her complaint as the date of the most recent discriminatory action by the respondent, she has alleged a continuing violation, including a hostile work environment. However, there is no reference in her complaint to an event on July 25, 2007, nor was there testimony from her at the hearing about a specific discriminatory action on that date. It may be that she is referring to the last stage of her internal appeal process. Nevertheless, the law is clear, as the ALJ noted at the hearing, that an internal grievance or request to rescind an adverse employment decision does not extend the statute of limitations. See Hoefs v. Perlman-Rocque, ERD Case No. 9100368 (LIRC Sept. 16, 1992) (citing the Wisconsin Supreme Court's decision in Jicha v. DILHR, 169 Wis. 2d 284, 485 N.W.2d 256 (1992) relating to the statute of limitations in the Wisconsin Family and Medical Leave Act).

The complainant further asserts that the ALJ's ability to properly assess witness credibility was tainted by the respondent's questioning of the complainant as to a retail theft charge to which she had previously pled guilty and the criminal complaint offered by the respondent as Exhibit 11, and requests that the commission declare a mistrial. The commission disagrees, and denies the request. In fact, the ALJ excluded the exhibit because the respondent had failed to disclose the exhibit prior to hearing as required under the procedural rules, and because the exhibit unfairly surprised the complainant at hearing. However, more important, it is the ALJ's responsibility in all hearings to assess the credibility of the witnesses and to determine the weight, if any, to be given to testimony and exhibits. In so doing, ALJs are frequently presented with hearsay and prejudicial or inflammatory statements. This case is no different and the commission, having reviewed the record, sees no evidence that the ALJ's findings or conclusion were improperly influenced by the exhibit that she excluded or by the testimony about the retail theft charge.

The complainant's argument that the respondent's motion to dismiss should be stricken is without merit. The respondent made no motion to dismiss. In addition, the complainant's request for attorney's fees and costs is denied. The complainant did not prevail on any of her arguments, including that the hearing was defective.

cc:
Attorney Joseph F. Owens
Attorney Mitchell W. Quick
Attorney Stacie J. Andritsch

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