DONNA L. DODSON, Complainant

MILWAUKEE WIRE PRODUCTS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on May 9, 2002, dismissing the complainant's complaint of alleged disability and race discrimination. Wis. Stat. § 111.39(5) of the Wisconsin Fair Employment Act requires that petitions for review be filed, i.e., received within 21 days of the ALJ's decision. The complainant's petition was not received until June 4, 2002, making it five days late. Wisconsin Administrative Code, Ch. DWD 218, which implements the WFEA, however, states that "The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties.." DWD § 218.21(2)(emphasis added). The case file shows that a copy of the ALJ's decision was not mailed to the last known address of the complainant. Due to the failure of a copy of the ALJ's decision to be mailed to the complainant's last known address, the commission has determined that the complainant's petition filed on June 4 cannot be dismissed as untimely.

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 conclusions in that decision as its own, except that it makes the following modifications:

1. In paragraph 7 of the FINDINGS OF FACT, the second and third sentences are deleted and the following sentences are substituted therefor:

"At some point while assigned to Milwaukee Wire, Dodson's supervisor, Scott Berget, had informed her that Milwaukee Wire had a "two-week low time" coming up. That is, a period of production slowdown. According to Dodson, Berget told her that she should not worry as she was going to be hired by Milwaukee Wire. Dodson also states that Berget told her she would serve a ninety-day probationary period."

2. Paragraph 8 of the FINDINGS OF FACT is deleted.

3. Paragraph 9 of the FINDINGS OF FACT is deleted and the following is substituted therefor:

"During production slowdowns Milwaukee Wire returns temporary employees to their agencies to protect its regular workforce. On November 19, 1998, Dodson received a phone call from D.C. Personnel and was told that the respondent did not need her anymore. Dodson understood that a production slowdown was the reason Milwaukee Wire did not need her anymore, but she expected to be called back to work when production picked up. Dodson, along with other temporary employees were returned to their respective agencies at the same time."

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

Dated and mailed September 26, 2002
dodsodo . rmd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complainant, a white female, was employed by a temporary-staffing agency and assigned to work for the respondent, Milwaukee Wire Products, as a general helper to perform light assembly work. The complainant began work for the respondent in August 1998. On November 19, 1998, the complainant received a phone call from the temporary-staffing agency during which she was informed that the respondent did not need her anymore.

The complainant claims that she was discriminated against by the respondent on the basis of race and disability with respect to the termination of her employment. The complainant alleges that on November 16, 1998, a black worker struck her in the back, causing injury to her back. The complainant alleges that on November 18, 1998, her supervisor put her on light duty, but after working on light duty for only 5 hours on November 18, 1998, her temporary-staffing agency notified her on November 19, 1998, that she was not needed at the respondent any more. Further, the complainant alleges that she was discriminated against on the basis of race because the black worker who struck her was not terminated while she was terminated.

The complainant has failed to establish probable cause to believe that the respondent discriminated against her on the basis of disability or race. First of all, with respect to the complainant's alleged disability, the medical evidence presented at the hearing shows that the complainant had returned to work on November 18 without any medical restrictions. Also, while the complainant states that she was given "light duty" on November 18, 1998, she admits that she had never given her supervisor a doctor's statement indicating that she needed any accommodation at work in order for her to perform her work. Moreover, the complainant herself admits that her supervisor told her there would be a two-week "low time" (i.e., a two-week slowdown in production), and that this work slowdown was the reason she stopped working at the respondent. Further, the evidence shows that the respondent uses temporary employees to supplement its regular workforce and that during production slowdowns it returns the temporary employees to their agencies to protect its regular workforce from layoff. Also, the complainant herself acknowledges that at least two other temporary employees were sent back to the temporary-staffing agency along with her.

While the complainant asserted that she expected to be called back to work by the respondent, the evidence fails to suggest that her alleged disability was the reason she was not called back to work. The record does indicate that at some unknown date after the complainant had stopped working for the respondent she was diagnosed as having a bulging disk. However, assuming that having a bulging disk constituted a disability, the complainant presented no evidence to show that the respondent ever became aware that she had been diagnosed as having a bulging disk. Moreover, the complainant was unable to present any evidence that the respondent had recalled any temporary employee back to work.

The record fails to establish reason to believe that the complainant's alleged disability was the reason for the termination of her employment at the respondent.

The record also fails to indicate reason to believe that the complainant's race had anything to do with the termination of her employment at the respondent. First of all, the evidence shows that the complainant and the black worker who had allegedly struck her were not similarly situated. The black worker was a full-time employee of the respondent and thus part of the respondent's regular workforce. As previously noted, during production slowdowns the respondent returns temporary employees to their agencies to protect regular employees from layoff. Furthermore, of the two employees that the complainant acknowledges were sent back to the temporary staffing agency along with her, she stipulated that one was a black male and that she believed the other, Talena Walker, was a black female. The complainant failed to establish that the respondent ever called any temporary employee back to work.

cc: Attorney Daniel J. Finerty

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uploaded 2002/10/04