Wis.LIRC ER Decision: Collum - December 17, 1998 - Procedure - Statute of limitations - allegation that an employment action within the limitations period was discriminatory, no allegation that the action was the consequence of some earlier action

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

RUDOLPH COLLUM, Complainant

GATEWAY TECHNICAL COLLEGE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801262, EEOC Case No. 26G981084

The complaint in this matter was dismissed by the Administrative Law Judge, ruling on an appeal from a Preliminary Determination, on the grounds that the complaint was not filed within the 300-day statute of limitations provided for in Wis. Stat. � 111.39 (1). For the following reasons, the commission now sets aside the Decision And Order of the Administrative Law Judge.

Background -- The complaint alleged discrimination on the basis of race, sex, and age. In the section of the complaint where the complainant is asked to state "what did the respondent do?", an attached document was referred to. The attached document clearly addressed itself, at least in part, to an involuntary transfer of Complainant from his position in Student Services in Kenosha to a position in the Instructor Program in Racine. The complaint asserted that Complainant was notified of the proposed transfer on June 19, 1997 and that the transfer became effective on August 1, 1997. (1 )

However, the statement attached to the complaint in response to the "what did the respondent do?" question, also mentioned (among other things) that the Complainant was subject to a "dual- seniority status." It also stated that "the dual-seniority status...ha[s] caused [the Complainant] to endure job transfers he otherwise could have avoided."

The statement attached to the complaint contained a specific assertion of violation of the law by actions described in two separate, numbered paragraphs:

"The college has committed a continuing violation of employment discrimination and labor laws by:

"(1) Transferring Mr. Collum, under threat of layoff or termination, out of his position in its Student Services division in Kenosha to its Instructor Position on the Racine campus under the pretext of budgetary constraints, while maintaining a white female named Esta Lewin in a similar position who was under the age of 40 and had accumulated less systemwide seniority than Mr. Collum. The transfer was effective as of August 1, 1997. Mr. Collum received notification of the proposed transfer on June 19, 1997; and

"(2) Maintaining a dual system of seniority applicable only to Mr. Collum without the consent of Mr. Collum and further required Mr. Collum to spend a considerable amount of time and money to gain certification as a counselor for its Student Services division in reliance upon his expected continued employment at that division, which time and money has caused Mr. Collum to suffer losses by virtue of the discriminatory transfer of Mr. Collum into the Adult School Instructor program on the Racine Campus, as a pretext for discriminatory treatment."

After the complaint was filed and served, the Respondent filed a response which contained extensive assertions of fact as to matters including a settlement agreement entered into in 1991 between Respondent and the labor organization representing employes of Respondent including Complainant, which affected Complainant. Respondent asserted that the settlement had been reviewed with Complainant on February 13, 1992, and Respondent also asserted that "the dual system of seniority is maintained with the consent of Mr. Collum's union representative...as a result of the negotiated settlement...Mr. Collum was able to keep his position contingent on both his dual seniority as well as his agreement to complete his counseling certification." Respondent's letter concluded by stating, "Because Mr. Collum is alleging his dual seniority is discriminatory and he has known of this status since December of 1991, his allegations are time-barred."

In response to this, Complainant (by his attorney) submitted a letter to the ERD which addressed the timeliness issue. It emphasized that the notification to Complainant that he would be transferred, and the effective date of the transfer, were both within the statute of limitations. The letter continued by asserting that no agreement relating to dual seniority for Complainant is contained in the applicable collective bargaining agreement, that "there is no dual seniority as it affects Mr. Collum during the relevant period," and that "[a]n attempt to go back to events that occurred in 1991 is pretextual and is an attempt by Gateway Technical College to avoid the bargain terms of the contract in order to engage in discriminatory actions directed at Mr. Collum."

Thereafter, an Investigator for the Equal Rights Division issued a Preliminary Determination finding that the complaint was untimely. Complainant appealed this Preliminary Determination, and it was reviewed by an Administrative Law Judge.

The Administrative Law Judge's Analysis -- The Administrative Law Judge concluded that the initial complaint alleged only the discriminatory imposition of a "dual-seniority" status and the subsequent effects (including the 1997 transfer) of that "dual-seniority" status. He also concluded that the theory that the 1997 transfer was itself motivated by an intent to discriminate was a new theory that had not been raised in the complaint and had not been made the subject of an amended complaint. He then held, that

1) the imposition of a "dual-seniority" status on Complainant in the early 1990's did not constitute a "continuing violation," and that the complaint was therefore untimely as concerned that action by the Respondent; and that

2) the allegation concerning the involuntary transfer in 1997 merely involved an "effect" of the imposition of a "dual-seniority" status on Complainant in the early 1990's. On the authority of Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988), he held that the complaint was also not timely as concerned that transfer in 1997.

On that basis, he ordered the complaint dismissed with prejudice.

The Imposition Of "Dual-Seniority" Status In The Early 1990's -- The commission does not necessarily disagree with the decision of the Administrative Law Judge, that an allegation that the imposition of "dual-seniority" status on Complainant in the early 1990's was discriminatory could not be treated as timely on a "continuing violation" theory. Given the assumption which the Administrative Law Judge seems to have made about what was alleged and what the facts were, his ruling is in accord with the rule that the continuing violation theory is inapplicable to a single, completed act of alleged discrimination. While the "continuing violation" theory may be applicable to mere continuity of employment, without more, it is insufficient to prolong the life of a cause of action for employment discrimination. Hyler v. Nekoosa Papers (LIRC, 01/28/91). If an allegation of discriminatory imposition of "dual-seniority" status some years ago is actually being pursued in this case, and if the facts show that what occurred was of that nature, then it would be appropriate to hold that such allegations are time- barred.

However, the problem is that the questions raised by those "ifs" cannot be answered at this point. Assuming that the Complainant actually intended to complain about some act or acts done in the early 1990's as separate, distinct acts of discrimination for which he was seeking a ruling and a remedy, the Complainant's assertions as to the facts relevant to such an allegation cannot be considered established. Dismissals prior to hearing should generally be based only on the allegations of the complaint and on any other allegations made by the Complainant which may be taken as indications of the Complainant's assertions as to the facts, such as assertions made by the Complainant to the Equal Rights investigator, sworn testimony of the Complainant given in a discovery deposition, assertions made by or on behalf of the Complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for the Complainant in written argument submitted in response to a motion to dismiss. Tucker v. Rock County (LIRC, 07/02/92). In this case, the information about the supposed imposition of a "dual- seniority" status is contained almost entirely in submissions by the Respondent. The Complainant has not conceded the correctness of the assertions made in Respondent's response to the case, but has simply argued that those assertions about past events are not particularly relevant.

Determination of the viability of a "continuing violation" theory is a fact-specific endeavor, which may not always be possible at a preliminary stage of a proceeding, before facts have been clarified by hearing. In this case, the commission believes that it is not possible, looking simply at the allegations of the complaint and on the other matters in the record which may be treated as representations by Complainant as to what he contends the facts are (i.e., the letter from his attorney), to make a definitive pronouncement one way or the other on the question of whether the "continuing violation" theory is viable here.

As is noted below, this matter is being remanded for further proceedings. If and when the facts concerning such an allegation are made clear, then a decision on the viability of the allegation can be made consistent with standards such as those discussed in Hyler v. Nekoosa Papers, supra. However, the commission believes that at this point, such a determination is premature.

The Involuntary Transfer in 1997 -- The commission disagrees with the analysis of the Administrative Law Judge on the question of whether the allegation as to the involuntary transfer in 1997 was untimely. The Administrative Law Judge's decision is based not on the facial allegations of the complaint but on his interpretation of the allegations, and that interpretation is not supported by the complaint.

Specifically, the commission does not agree with the Administrative Law Judge, that the Complainant "clearly" filed his complaint under the theory that the Respondent had discriminated against him by imposing this dual seniority status, that "[a]ny reasonable person reading his complaint would reach that conclusion," that "a fair reading of the complaint reveals that it does not allege an act of discrimination based upon sex, race and age in June of 1997 that is separate from the complained about dual seniority," and that the complaint "alleges only the dual seniority issue and the allegedly discriminatory effects of that dual seniority." The commission believes that the complaint is, at best, ambiguous on these questions.

For example, the allegation that

"Mr. Collum has been the sole employe in the Gateway Technical College system to be subject to a dual- seniority system that has in fact allowed the institution to discriminatorily disregard Mr. Collum's District-wide seniority to his personal detriment"

can be read as an allegation that the initial imposition of the dual-seniority status was motivated by a discriminatory intent -- but it can also be read as an allegation that the existence of the dual-seniority status has allowed the employer to subsequently engage in other actions that have themselves also been motivated by a discriminatory intent. In addition, the allegation in the complaint concerning "the discriminatory transfer of Mr. Collum into the Adult School Instructor program on the Racine Campus, as a pretext for discriminatory treatment" can be read as an allegation that the real motivation for the transfer was an animus based on race, sex, and age, and that any explanation of the transfer which invokes the dual-seniority matter is pretextual.

While the complaint is ambiguous in some respects, it is clear in others: it clearly complains about a specific, concrete employment action (an involuntary transfer) which occurred within the 300 days prior to the filing of the complaint; and it clearly alleges that, in some way, this specific employment action was caused by a discriminatory motivation related to Complainant's race, age, and sex. Furthermore, the complaint may be read to allege that the discriminatory motivation was present and had an effect at the time of the specific recent decision to transfer Complainant, and that the "dual-seniority status" is merely a pretext intended to disguise this current discriminatory motive.

Under these circumstances -- where there is a clear allegation that a specific employment action occurring within the statute of limitations period was discriminatory, and where there is not a clear allegation from the Complainant that this specific employment action was merely the automatic consequence of some earlier employment action -- the commission believes that it is premature to dismiss the complaint on statute of limitations grounds based on interpretation of the legal theory thought to be incorporated in the complaint.

For the reasons stated above, the commission makes the following:

ORDER

The "Decision And Order On Appeal Of Preliminary Determination" issued by the Administrative Law Judge in this matter is set aside, and this matter is remanded to the Equal Rights Division for further proceedings consistent with the foregoing.

Dated and mailed: December 17, 1998
collumr.rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc:
Robert E. Hankel, Attorney for Complainant
Kaye K. Vance, Attorney for Respondent

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Footnotes:

(1)( Back ) This is consistent with the fact that on the face of the complaint, in the section where the complainant is asked (under "Dates") to state when "the above actions" first happened, the Complainant entered "June 19, 1997," and that in the section where the complainant is asked to state on what date it last happened, the Complainant entered "August 1 1997 and continuing through the present."