Wis.LIRC ER Decision: Geasland - July 27, 1999 - Procedure; appeal of preliminary determination, appeal of initial determination of no probable cause

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

CARLA M. GEASLAND, Complainant

SOCIETY INSURANCE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801973, EEOC Case No. 26G981412

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 record contained in this matter. Based on its review, and for reasons set forth more fully in the memorandum opinion attached to this decision, the commission hereby issues the following:

DECISION

The decision of the administrative law judge (copy attached) is affirmed insofar as said decision affirms the preliminary determination which dismisses that portion of the complaint alleging sexual harassment in December 1996. The commission has no authority to review the matters relating to the initial determination. To the extent the administrative law judge addressed the matters relating to the initial determination in his decision, those issues were not before him, and the mere fact that they were discussed in his decision does not confer review authority to the commission over those issues.

Dated and mailed July 27, 1999
geaslca.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Carla Geasland, filed a complaint with the Equal Rights Division on June 3, 1998, alleging that she was discriminated against on the basis of her sex with respect to compensation and in her terms and conditions of employment. Subsequently, by letter dated June 20, 1998, Ms. Geasland sought to amend her complaint to add claims that she was sexually harassed at the company Christmas party in December 1996 and again apparently shortly before the December 1997 Christmas party, and an additional claim of differential treatment in her terms or conditions of employment based upon her sex in April or May of 1997.

In response to Ms. Geasland's June 20, 1998 letter the division advised her to complete a charge of discrimination form. Ms. Geasland completed and filed an amended charge of discrimination form with the division on September 15, 1998.

Counsel for the respondent objected to the allegation of sexual harassment at the December 1996 Christmas party as being untimely.

On March 1, 1999, the division issued two determinations regarding Ms. Geasland's claims. One was a Preliminary Determination and Order which dismissed as untimely Ms. Geasland's allegation of sexual harassment at the 1996 Christmas party. The second was an Initial Determination which concluded there was no probable cause to believe that the respondent had violated the Wisconsin Fair Employment Law by discriminating against Ms. Geasland with respect to compensation because of her sex or by discriminating against her in her terms or conditions of employment because of her sex, or that the respondent had engaged in or permitted sexual harassment of Ms. Geasland in December 1997.

Preliminary determinations are the result of the department's preliminary review of a complaint to determine, among other things, whether the complaint was timely filed. Wis. Admin. Code, � DWD 218.05(1). Amended complaints must also meet the requirements of DWD 218.05(1). See Wis. Admin. Code, � DWD 218.03(6). An appeal of a preliminary determination dismissing a complaint must be filed within 20 days of the date of the order. If a timely appeal is filed, the matter is referred to the hearing section for a review by an administrative law judge, who shall issue a decision which shall either affirm, reverse, modify or set aside the preliminary determination. If the administrative law judge reverses or sets aside the preliminary determination, the complaint is remanded for investigation. If the administrative law judge affirms a preliminary determination which has dismissed a complaint, the matter may be appealed to the Labor and Industry Review Commission. Section DWD 218.05(3).

After the department has determined that a complaint satisfies all the requirements of � DWD 218.05(1), the department conducts an investigation of the complaint. Section DWD 218.06(1). This investigation may include requesting and examining various records and documents and taking statements from witnesses. At the conclusion of the investigation an initial determination of either probable cause or no probable cause is issued. If an initial determination of no probable cause is issued, a complainant must file within 30 days a written request for hearing. If no timely written request for hearing is filed, the initial determination's order of dismissal shall be the final determination of the department. Section DWD 218.08(2). The administrative rules provide no further right of appeal upon a complainant's failure to file a timely appeal of an initial determination of no probable cause.

As noted above, on March 1, 1999, the division issued a preliminary determination dismissing as untimely Ms. Geasland's allegation of sexual harassment at a 1996 Christmas party, and an initial determination of no probable cause to believe that the respondent had discriminated against her on the basis of sex with respect to compensation or in her terms or conditions of employment, or that the respondent had engaged in or permitted sexual harassment of her in December 1997.

In a letter dated March 15, 1999, and filed with the division on March 16, 1999, Ms. Geasland stated that she respectfully requested to appeal the "preliminary decision," after which she listed three specific reasons therefor.

The case file shows that subsequently by letter dated April 12, 1999, the division notified the respondent's counsel that the "Preliminary Determination" had been appealed, and advised him that if he wished a written response could be filed within two weeks. The April 12 letter further stated that the case was assigned to Administrative Law Judge John Grandberry "who will issue a decision affirming, reversing or modifying the Preliminary Determination." (Bold text added) This letter also shows that Ms. Geasland and Wayne Pankratz, who is listed as an attorney and is apparently the father of Carla Geasland, was sent a copy of the April 12 letter. Mr. Pankratz had been involved in assisting his daughter with her complaint before the division at least as of August 1998, according to correspondence in the case file. Mr. Pankratz apparently formally became her representative in January 1999. (The preliminary determination and the initial determination also both show that Mr. Pankratz was mailed copies of these decisions. Appeal rights regarding each determination were stated on the determinations.)

On May 7, 1999, Administrative Law Judge John Grandberry issued an order affirming not only the preliminary determination, but in addition, "dismissing" the remaining issues of sex discrimination in regard to compensation, discrimination on the basis of sex with regard to terms and conditions of employment, and a "separate" issue alleging that the respondent engaged in or permitted sexual harassment, on the ground that the complainant did not file a timely appeal of the initial determination dismissing those claims.

The primary issue presented by the appeal in this case involves an issue which the commission actually has no authority to decide. That issue is whether or not Ms. Geasland had appealed the initial determination. While Ms. Geasland may have intended that her March 15, 1999 letter also appeal the initial determination, whether or not her letter constituted an appeal of the initial determination is not an issue which the commission has authority to decide. As evidenced by its April 12, 1999 letter, the department clearly viewed Ms. Geasland's March 15 letter as appealing only the preliminary determination, not the initial determination. As provided in Wis. Admin. Code, � DWD 218.08(2), an initial determination's order of dismissal is final if no appeal is filed. But more importantly, the administrative rules do not provide the commission authority to review a department determination that an initial determination of no probable cause was not appealed. (1 )

Also, ALJ Grandberry erred in electing to include in his decision an order "dismissing," on the ground that Ms. Geasland did not file a timely appeal of the dismissal of the initial determination, Ms. Geasland's claims of sex discrimination regarding compensation, her terms and conditions of employment and the (1997) sexual harassment claim. The issues relating to the initial determination were not before him. Again, as evidenced by its April 12, 1999 letter, the department had determined that there had only been an appeal filed of the preliminary determination, and this was the only issue assigned to the ALJ to decide. The commission does not obtain authority to review the matters contained in the initial determination of no probable cause merely because of the ALJ's reference to that matter in his May 7, 1999 decision.

The only issue which the commission is authorized to decide is whether the ALJ correctly concluded that the preliminary determination dismissing that portion of Ms. Geasland's complaint pertaining to alleged sexual harassment at a Christmas party in 1996 was untimely. The record indicates that he did. Whether Ms. Geasland's amended complaint charging sexual harassment in December 1996 is viewed as having been filed on September 15, 1998, or relates back to her original complaint filed on June 3, 1998, that claim was time barred since it was not filed until well over 300 days after the alleged discrimination occurred. As provided under Wis. Stat. � 111.39(1), the department may receive and investigate a complaint charging discrimination only if the complaint is filed with the department no more than 300 days after the alleged discrimination occurred.

cc: Wayne E. Pankratz
David B. Kern

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Footnotes:

(1)( Back ) Ms. Geasland's only recourse appears to be that of pursuing this matter informally before the Equal Rights Division, or by seeking a writ of mandamus action against the division in court.