P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. , 200100738
EEOC Case No. 26GA10960

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.


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

Dated and mailed June 21, 2002
johnsja . rsd : 164 : 2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


In the brief in support of her petition for commission review the complainant provides factual arguments that she maintains were inadvertently left out by her attorney and indicates that she wants to provide a "more complete picture of what went on." Specifically, the complainant asserts that she believed she was being placed on administrative leave on May 2, 2000, because the respondent felt she was responsible for making harassing telephone calls and that, once the respondent found out she did not make the telephone calls, she would be back at work. The complainant maintains that she was never told she was discharged, and had no reason to believe she would not be coming back from leave.

The complainant's statement of the facts in this matter has been fluid. The most current version of events offered in her petition is contradicted by the information the complainant presented when she originally filed her complaint with the Equal Rights Division on February 28, 2001, by the materials presented in support of her appeal of the preliminary determination, filed on August 23, 2001, and by a sworn affidavit prepared by the complainant in conjunction with a court proceeding against the respondent, which was submitted by the respondent along with its position statement to the Equal Rights Division. In the original version of her complaint the complainant alleged, in relevant part:

"On May 2, 2000, Mr. Brown placed me on administrative leave. I was offered a severance agreement such that I could receive pay for several weeks if I agreed to give up any and all right to file any claim against the hospital. Whether I signed the agreement or not, I would be terminated on May 23, 2000. I did not sign the severance agreement and I was terminated." (1)

Accompanying her complaint, the complainant submitted a copy of a memo to her from the respondent dated May 2, 2000, which advised her that, based upon concerns that she was not an effective leader, the respondent had decided to relieve her of her position. The memo specifically notified the complainant that, if she did not return the signed severance agreement on or before May 23, the respondent would formally sever the employment relationship at that time. Thus, the version of facts presented in the original complaint and supporting documentation submitted by the complainant, if assumed to be true, indicate that, although the termination did not go into effect until May 23, 2000, the complainant learned she was to be discharged on May 2, 2000 and, further, that the complainant was told the discharge was based upon concerns related to her job performance and was not subject to being rescinded if or when the respondent learned the identity of the individual responsible for the harassing telephone calls.

In addition, when the complainant filed her appeal of the preliminary determination dismissing the complaint, she submitted an affidavit signed by her secretary, Tania Baker, which indicates the complainant learned of her discharge on May 2, 2000. Ms. Baker's affidavit, which will be discussed in greater detail below, states that on May 2 the complainant told her she was "canned," packed up some of her personal possessions, and removed them from the premises. Finally, the materials before the commission include an affidavit signed by the complainant on October 2, 2000, in which she states that on May 2, she was informed she was being placed on administrative leave and that she would be terminated on May 23, whether she executed the severance agreement or not. The complainant's affidavit further states that she performed no work-related responsibilities for the respondent after May 2. The complainant's current contention that she thought she was placed on leave pending investigation of the telephone calls and had no reason to believe she would be discharged does not jibe with these earlier statements of the facts.

In her brief to the commission the complainant disputes the administrative law judge's finding that on May 2, 2000, she told her secretary, Ms. Baker, she had been "canned." The complainant insists this is not a word she would use and that Ms. Baker got this word from the respondent and its attorney, who attempted to pressure people into saying that the complainant stated, "I was canned." Recognizing that her alleged statement to Ms. Baker came to the administrative law judge's attention by virtue of Ms. Baker's sworn affidavit, which was submitted by the complainant, the complainant now maintains that Ms. Baker was really attempting to "clear things up" in her affidavit and explain that the respondent's attorney was the author of, "canned," but that "it didn't come out that way." There is simply no merit to this contention. Ms. Baker's affidavit states unequivocally, "On May 2, 2000, Ms. Johnsrud came back to her office after meeting with Hospital Administrator Harold Brown. She was upset and said to me that she had 'just been canned.'" Nowhere in the affidavit does Ms. Baker state that she was pressured into saying this by the respondent. To the contrary, she quite clearly attributes the statement to the complainant herself. While the complainant may wish to challenge the accuracy of Ms. Baker's affidavit, it is difficult for her to disavow it where it was submitted by her own attorney for use on her own behalf. Although the commission would not rely on Ms. Baker's affidavit as the sole basis to dismiss the complaint, when taken together with the complainant's own sworn statements, it lends support to the conclusion that, on May 2, 2000, the complainant understood she was being fired.

The complainant also takes issue with the administrative law judge's finding that she did not perform any work for the respondent after May 2. The complainant contends that, while she was not scheduled to be at work at the hospital after May 2, she did receive the usual calls at home regarding work issues and responded to those calls that requested her assistance. However, as the administrative law judge noted in her decision, this statement directly contradicts the assertion contained in the complainant's own sworn affidavit that, since May 2 she has performed no work- related duties or responsibilities for the respondent. While the complainant may now consider it more helpful to her case to claim that she continued to work for the respondent after May 2, her prior sworn submissions indicate otherwise.

Because the complainant's own assertions contained in her complaint and supporting documentation and in her October 2 affidavit, as well as the documentation she submitted along with her appeal, clearly demonstrate that the complainant was aware of her impending discharge on May 2, 2000, the commission agrees with the administrative law judge that the statute of limitations began to run on that date. Consequently, the complaint filed on February 28, 2001, was untimely.

In her brief to the commission the complainant also makes an argument that the attorney she was working with at the time the complaint was filed assured her she had until March 18, 2001 to timely file her complaint. The complainant contends that she asked her attorney to file the complaint sooner, but he failed to do so. She states that she therefore terminated her contract with the attorney and filed her own complaint on February 28, 2001. However, even if this argument -- which is raised for the first time in the complainant's petition for review -- had merit, it is well established law that an allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations. See, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991), Squires v. Montex Inc. (LIRC, March 15, 2002), Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, Aug. 31, 1995).

cc: Attorney Pamela M. Ploor

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(1)( Back ) The complainant's amended complaint states only that she was placed on administrative leave on May 2, 2000, and, when she did not quit, was discharged on May 23, 2000. However, this statement is not inconsistent with her earlier assertion that she was told on May 2 she could accept a severance package or be discharged on May 23. The commission further notes that in her amended complaint the complainant asserted that, on April 24, 2000, the respondent warned her it was thinking of terminating her employment. This contention stands in contradiction with the complainant's current assertion that she had no reason to believe she would not be coming back from leave.


uploaded 2002/06/24