AMY I WASHBURN, Complainant

DARROW & DIETRICH SC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph 5 of the administrative law judge's FINDINGS OF FACT:

"In 2005 two male law clerks who were employed by the respondent out of its Random Lake office, Kyle Kaufman and Bryan Kautzer, were admitted to the bar and promoted to attorney positions. Attorney Hawley made the decision to promote Kaufman and Kautzer. He did so without consulting attorneys Darrow or Dietrich."

2. The following paragraph is inserted after paragraph 6 of the administrative law judge's FINDINGS OF FACT:

"As a non-salaried employee, the complainant was expected to punch a time clock. She was also expected to answer phones as part of her job. Male legal assistants were also expected to punch a time clock and to answer phones."

3. The following paragraph is inserted after paragraph 9 of the administrative law judge's FINDINGS OF FACT:

"In September of 2006 the respondent split up into two separate law firms. Attorney Hawley formed the firm of Hawley, Kaufman & Kautzer, S.C., while attorneys Darrow and Dietrich formed the firm of Darrow & Dietrich, S.C."

4. The FINDINGS OF FACT are renumbered to reflect the additions above.

5. The fourth paragraph of the administrative law judge's CONCLUSIONS OF LAW is deleted and paragraph 5 is renumbered accordingly.

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

Dated and mailed October 18, 2011
washbam . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In her petition for commission review the complainant argues that the administrative law judge erred in failing to grant her motion to compel and request for postponement of the hearing. The complainant maintains that the respondent's delay in producing documents severely affected her right to take and preserve evidence and that the denial of the request for postponement had a negative impact on her procedural and substantive due process to rights to take and preserve evidence and to adequately prepare her case for hearing. The commission has considered this argument, but does not find it persuasive. The complainant's motion to compel discovery was not filed until a week before the scheduled hearing, days after her witness and exhibit list were already due. The commission agrees with the administrative law judge that the complainant should have taken steps to resolve her discovery disputes much earlier than she did, rather than waiting until it was so close to that hearing date that the complainant considered it necessary to ask for a postponement. Further, although the complainant asserts that her rights were violated, she has not explained how she was prejudiced by virtue of the administrative law judge's rulings. As the administrative law judge explained in his letter dated March 6, 2009, the documentation the complainant sought showing the salaries of the respondent's shareholders would not have been relevant to her allegations that she was treated less favorably than male employees. Even if the administrative law judge had ordered the respondent to produce the documents and had postponed the hearing until the complainant could review them, they would have had no bearing on the outcome of the case. The commission, therefore, sees no reason to believe that the administrative law judge's rulings had any prejudicial effect on the complainant's ability to present her case.

The complainant also argues that the administrative law judge denied her due process rights by, among other things, refusing to allow her testify in narrative form and refusing to allow witnesses to refer to documents. The complainant contends that she left the hearing feeling that the entire process was designed to bully her into giving up. However, the commission's review of the record reveals no reason to believe that the complainant received anything other than a full and fair hearing. Nothing in the record suggests that the administrative law judge behaved in an inappropriate manner or "bullied" the complainant. The complainant testified at length and presented documents on her behalf. She has not identified any additional evidence that she would have presented had she been given further opportunities to do so.

Next, the complainant argues that the respondent's reasons for terminating her employment were pretextual. The complainant contends that there was no financial crisis at the firm, that she did not commit malpractice, and that her job performance was not substandard. The complainant argues that, to the contrary, she was discharged in retaliation for having protested gender discrimination. However, the commission can see no reason to doubt the credibility of the respondent's testimony as to why it decided to terminate the complainant's employment. Further, and more importantly, the record contains absolutely no evidence that would permit a conclusion that the discharge was in retaliation for protected conduct. The complainant never told the respondent she believed she was being treated unfairly or that she felt she was being discriminated against based upon her sex. While in her brief the complainant maintains that it would have been futile to do so, and that futile gestures are not required, the fact remains that an employer who is unaware the employee is complaining of discrimination has nothing to retaliate against. A retaliation claim requires the complainant to have actually engaged in some protected activity.

Finally, the complainant contends that the administrative law judge erred in failing to find that she was discriminated against in terms and conditions of employment when compared to male employees. The complainant contends that males who graduated from law school but were not yet admitted to the bar were hired as law clerks, whereas similarly situated females were hired as legal assistants. She further contends that she was not promoted to an attorney position when she was admitted to the bar, despite an available opening, and despite the fact that lesser qualified males were promoted. These arguments fail. The male employees to whom the complainant compares herself, Kyle Kaufman and Bryan Kautzer, were not similarly situated to the complainant. The complainant was hired to work out of the Sheboygan law office by attorneys Darrow and Dietrich. She was advised at the time she was hired that the respondent was not interested in hiring another attorney and that if she was looking for an attorney position she should look elsewhere. Kaufman and Kautzer were law clerks working out of the Random Lake office; they were hired prior to when the complainant began her employment and reported to a different supervisor. Kaufman and Kautzer were promoted to attorney positions in 2005, approximately two years before the complainant was admitted to the bar. The supervisor who decided to promote Kaufman and Kautzer did so without consulting the attorneys in the Sheboygan office, who would not have approved of the decision had they been asked. In fact, the firm broke up in 2006, partly because the complainant's supervisor, Attorney Darrow, did not agree with the decision to add Kaufman and Kautzer to the firm. At the time the complainant was admitted to the bar, Darrow & Dietrich, S.C. was a two person law firm with no additional attorney position available. The complainant's situation is not comparable to that of Kaufman or Kautzer, and the fact that they were hired as law clerks and promoted to attorney positions while the complainant was not is not proof that the complainant was discriminated against based on her sex.

The commission has considered the remaining arguments raised by the complainant in her petition for review, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to show probable cause to believe she was discriminated against as alleged, the dismissal of her complaint is affirmed.

NOTE: The commission notes that the administrative law judge concluded that certain claims of discrimination raised by the complainant were untimely. However, the 300-day time limit is a statute of limitations which is subject to waiver, not a statute concerning subject matter jurisdiction, and it is well-settled law that the statute of limitations is an affirmative defense which must be raised in a pleading or by a motion or be deemed waived. Milwaukee County v. LIRC, 113 Wis. 2d 199, 205-206, 335 N.W.2d 412 (1983). The commission has held that it was an error for an administrative law judge to dismiss a portion of a complaint on the basis of untimeliness where the respondent had not raised the statute of limitations issue in a timely filed answer and did not make any argument about the statute of limitations until after the hearing. Blohm v. Holiday Inn, ERD Case No. 8652100 (LIRC Jan. 31, 1990).

The respondent points out in its brief that it was not required to file an answer, pursuant to Wis. Admin. Code § DWD 218.12(1). However, the respondent could have filed a motion to dismiss portions of the complaint based upon timeliness, but did not do so. Nor does the record reflect that the respondent raised timeliness as an issue at the hearing. Given the circumstances, the commission concludes that any timeliness issues were waived by the respondent, and that the administrative law judge erred in relying on timeliness as a basis to bar some of the complainant's claims. The commission has therefore deleted the administrative law judge's conclusions of law regarding timeliness and has added additional factual findings with respect to the issue or issues the administrative law judge held were untimely.

cc: Attorney James Conway

Appealed to Circuit Court.  Affirmed, July 12, 2012.

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