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

GAILE BIGGERS, Complainant

MARQUETTE UNIVERSITY SCHOOL OF DENTISTRY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601704, EEOC Case No. 26G961162

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.

DECISION

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

Dated and mailed October 27, 1997
biggega . rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Gaile Biggers, appeals from the ALJ's affirmance of a preliminary determination which found that her complaint was untimely because it was filed more than 300 days after the alleged discrimination had occurred.

Ms. Biggers filed her complaint of discrimination with the Equal Rights Division on April 24, 1996. She alleges in her complaint that "Over the past several years, beginning sometime in 1992, my white co-workers in the School of Dentistry, Office of the Dean, were reclassified to higher pay ranges....Several years past and by accident I discovered the change in their status after the death of a co-worker."

Information that had been presented before the division shows that the co-worker who had died was Shirley Garinger and that her death had been announced at the respondent sometime in January 1995. Further, the information presented shows that the complainant's co-workers' positions were reclassified in 1994, that there was a job posting (including its classification) for a replacement for Ms. Garinger on January 20, 1995, and that a Ms. Dee Powers began work as Ms. Garinger's replacement on April 1, 1995.

Section 111.39(1) of the Wisconsin Fair Employment Act requires that a complaint be filed with the division within 300 days after the alleged discrimination occurred. Based on the information presented, Ms. Biggers was aware, or should have been aware, of the alleged discrimination by January 20, 1995. April 24, 1996, is 15 months from January 20, 1995. Therefore, Ms. Bigger's complaint was not timely.

On appeal Ms. Biggers first argues that she did not learn of her co-workers' upgrades until "in 1995." However, the information presented shows that in January 1995, Ms. Biggers knew or should have known about the upgrades that her co-workers had received. Next, she then admits to having learned of a single co-worker's upgrade in January 1995, but asserts that it was not until August 1995 that she became aware of a "pattern and practice of discrimination going on." This assertion, however, appears to be inconsistent with her complaint allegation that "by accident I discovered the change in their (her co-workers') status after the death of a co-worker (Shirley Garinger)." (emphasis added) Ms. Bigger's complaint allegation identifies the death of her co-worker as the time that she learned that the positions held by her co-workers had been upgraded. Moreover, since the information presented also shows that in early 1993 Ms. Biggers had been requested by the respondent to (but failed to) prepare a "Position Evaluation Questionnaire" (like the one she completed in March 1992 and stated the title and grade level she felt was appropriate for her position) while Ms. Biggers concedes awareness of a co-worker's upgrade in January 1995, it is reasonable to conclude that Ms. Biggers either knew or should have known by January 1995 that the respondent had undertaken consideration of reclassification of all positions.

Finally, it should also be noted that the complainant appears to fault an individual employed with the division who assisted her file her complaint for the language used in the complaint. She asserts that the complaint did not clarify that she did not and should not have known of the discriminatory practice until within the 300-day limitations period. However, by her signature on the complaint the complainant acknowledged that she had read the complaint and that to the best of her knowledge, information and belief it was true and correct. And in any event, as shown by section IV. C of the subsequently issued preliminary determination, the complainant had an opportunity to make clear her claim as she was provided with the respondent's response to her complaint which raised an issue as to the timeliness of her complaint but "she was unable to provide any information to refute the fact that her allegations are untimely."

cc: Cynthia M. Bauer

Appealed to Circuit Court.  Reversed and remanded by Circuit Court September 14, 1998.

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