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

JOANNA RANGEL, Complainant


ERD Case No. 8850598, EEOC Case No. 26G880748

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on December 17, 1991. Complainant filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:


The FINDINGS OF FACT and CONCLUSIONS OF LAW of the Administrative Law Judge (copy attached) are modified as follows:

1. Delete FINDING OF FACT number 4 and substitute therefor the following:

4. "Upon her hire, Ms. Rangel decided to keep a journal of her treatment by the City. She had never done this at any previous job. Keeping a journal had been suggested by Rod Thorson, who was then the Elkhorn City Attorney. Ms. Rangel interpreted his suggestion as an indication that she would be treated differently because of her sex. Ms. Rangel's journal entries were not entirely accurate, but rather reflected her interpretation of what was said or done, as colored by her expectation that she would be treated differently because of her sex."

2. Delete the first sentence of FINDING OF FACT number 11 and substitute therefor the following:

"After Gary Hislop was hired he, Martin Rafferty (who was still the City Administrator, but who now worked for Elkhorn only part-time) and Lyle Peterson (who was City Treasurer and Finance Director and served as Rafferty's assistant), began a study which was to form a basis for a reorganization of the city government."

3. In FINDING OF FACT number 12, delete "in June of 1987" and substitute therefor "on April 10, 1987."

4. In the last sentence of FINDING OF FACT number 14, delete "wasn to" and substitute therefor "was not."

5. In FINDING OF FACT number 16, delete the first sentence and substitute therefor the following:

"Upon receipt of the call from Gary Hislop, Martin Rafferty decided to terminate Ms. Rangel's employment and, in consultation with the City Attorney, Lyle Peterson, and Gary Hislop, to draft a letter of termination."

6. Delete FINDINGS OF FACT numbers 17 and 18 and substitute therefor the following:

"17. Martin Rafferty informed the City Council on July 20, 1987 that in-house janitorial service had been eliminated as part of an effort to go to an outside contract for cleaning. The Common Council did not approve a bid for a cleaning contract until September 21, 1987.

18. Martin Rafferty used Ms. Rangel's absence, and the presence of contracted services, to terminate Ms. Rangel's employment. Among Martin Rafferty's reasons for terminating the employment of Ms. Rangel was his dissatisfaction with her performance. Sex was not a factor in Martin Rafferty's termination of the employment of Ms. Rangel."

7. Delete the Administrative Law Judge's CONCLUSIONS OF LAW and substitute therefor the following:

"1. Respondent City of Elkhorn is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Respondents John Hoffman, Tom O'Connor, Charles Van Dyke, Gene Hoffman, Ray Dooley, Gerhardt Immega, and Martin Rafferty were all agents of the City of Elkhorn at all material times herein and were 'persons' within the meaning of sec. 111.321, Stats.

3. The complaint in this matter is barred by the 300-day statute of limitations contained in sec. 111.39(1), Stats. insofar as it alleges sexual harassment and discrimination on the basis of sex, race or national origin in regard to privileges and conditions of employment.

4. Respondents did not discriminate against Complainant because of sex, race or national origin, in violation of the Wisconsin Fair Employment Act, in connection with the termination of Complainant's employment in July 1987."

As modified, the FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed September 30, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Statute of Limitations -- The parties' arguments concerning the statute of limitations extend to the question of exactly what the ALJ ruled when the matter arose at hearing. While it appears to the Commission that the most accurate characterization of the ALJ's ruling is probably that which he provided in his decision, it is ultimately unnecessary for the Commission to resolve this argument. The ALJ allowed both parties to present all evidence they deemed relevant to the positions they were asserting, and neither party has claimed that the ALJ's ruling prejudiced them from presenting their cases with respect to their positions on the statute of limitations question. At this point, all that is necessary is for the Commission to resolve the question, of whether any part of the complaint is barred by the statute of limitations.

Respondent did not assert the statute of limitations as a defense in a timely filed answer, but in the circumstances of this case the Commission does not find a waiver of the defense. Wisconsin Administrative Code sec. Ind 88.11(2) provides merely that the failure to timely raise the defense "may" be held to constitute a waiver. Here, a number of factors militate against the finding of a waiver.

The principal purpose of the rule concerning timely assertion of the statute of limitations defense is to assure that the complainant against whom it is asserted will have enough advance notice of the assertion of the defense to prepare to meet it at hearing. Where that purpose is defeated, there is good reason to hold the defense to have been waived. Conversely, where there is adequate notice prior to hearing and little or no impairment of complainant's ability to prepare a response, there is less reason for such a holding. Here, the defense was asserted in an answer filed approximately two weeks before the first day of hearing. Additionally, the hearing actually continued over many more days; Complainant was still presenting her case in chief over six months later. Finally, Complainant did not herself object that the statute of limitations was raised late, either when the untimely answer was filed, or at the first day of hearing: it was the ALJ who first raised that matter of the untimeliness of the defense. Given all of these circumstances, the Commission will not hold that the defense was waived.

The 300th day prior to the filing of the complaint was May 12, 1987. At that point, Complainant had already been off work for a month, and she never returned to actual employment with the City. (1)  The only act complained of herein which occurred within 300 days of the filing of the complaint was the termination.

Complainant argues that the earlier alleged acts of discrimination in privileges and conditions of employment may be reached under the "continuing violation" theory since one act -- the termination -- occurred within 300 days of the filing of the complaint. In these circumstances, the commission does not agree. To establish the continuation of an ongoing course of conduct into the statute of limitations period, a complainant must demonstrate "substantial relationship" or a "substantial nexus" between the timely and untimely claims. Sabree v. Carpenters and Joiners, 921 F.2d 396 (1st Cir. 1990), Roberts v. Gadsden Memorial Hospital, 835 F.2d 793 (11th Cir. 1988). A relevant factor is whether the timely and untimely acts involved the same type of discrimination, tending to connect them in a continuing violation. Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir. 1983), cert. denied 107 S. Ct.. 232 (1986). The only timely act here, a termination of employment following from the elimination of a position, is a significantly different type of act from an alleged ongoing course of discrimination in privileges and conditions of employment. There is a substantial discontinuity between the untimely claims and the timely claim.

The chronological aspect of that discontinuity is also significant. It is more than merely the three months during which Complainant had ceased to work for the City because of her work injury. Rafferty ceased to be Complainant's supervisor and in January 1987 Hislop took his place. The Commission accepts his testimony that, although Complainant initially came to him with many complaints about how she was being treated, he gave her advice on how to handle the situations and her .complaints stopped. The conclusion that any problems in privileges and conditions of employment ceased in early 1987 is further confirmed by the fact that no journal entry later than January 21, 1987 was offered into evidence, and no testimony was offered of any specific event of alleged discrimination in privileges and conditions of employment occurring later than that last entry -- almost six months before the termination.

Complainant relies on Williams v. Atchison, Topeka and Santa Fe Railroad, 627 F. Supp. 752 (W. D. Mo. 1986), as authority for the proposition that the "short period of medical leave did not end the chain of the continuous violation." In Williams, however, even though there were no specific allegations by the plaintiff of acts of discrimination in the last 180 days of his employment, the plaintiff continued in active employment right up to his termination, and the court thus concluded that the demonstrated discriminatory working environment was also continuing. Thus the case is distinguishable.

The Commission therefore concludes that all of the allegations of discrimination in privileges and conditions of employment are time-barred. The evidence concerning these allegations has therefore been considered only to the extent that it is relevant to the timely allegation that the termination was discriminatory.

Merits -- The ALJ indicated in his Memorandum Opinion that he did not find Rafferty credible in his claim that the janitorial position was eliminated solely for economic reasons. He also indicated that Rangel's credibility was questionable, stating that he believed that she did not accurately record in her journal exactly what was said or done, but only her "interpretation" thereof. The Commission agrees with these judgments of the ALJ as to the credibility of Rafferty and Rangel. However, with respect to the matter of the conflict in the testimony between Rod Thorson and John Hoffman, the ALJ made no decision. It appears from the ALJ's equivocal finding (he found that it was either Thorson or Hoffman) as to who suggested the journal, that he had no impressions as to which of the two was more credible. Because of this indication that there was nothing in what the ALJ observed of the two witnesses that allowed him to resolve the dispute over their credibility, the Commission felt free to make its own determination on the matter, based on the content of their testimony. In concluding that Thorson was more credible, and that it was in fact Hoffman who had suggested the journal to Rangel, the Commission considered Thorson's concession that his recollection of his discussions with Hoffman around the time of Complainant's hire was "pretty dim," the ALJ's impression that Rangel (who asserted that Hoffman had suggested the journal) was not entirely credible, and the fact that the keeping of a journal to record evidence of supposed discrimination for future reference is the type of thing much more likely to be suggested by an attorney like Thorson.

Rafferty asserted that the termination of Rangel occurred simply because her position was being eliminated so that the City could achieve a savings by going to an outside contractor for janitorial services. The ALJ found, and the Commission agrees, that to a significant degree Rafferty was in fact motivated by a desire to get rid of Rangel. However, it is well established that in order to prevail on a claim of discrimination, a complainant must prove not only that an asserted reason for an employment action was a pretext, but that it was a pretext for discrimination. Kovalic v. DEC International, 161 Wis. 2d 863, 876-78, 469 N.W.2d 224 (Ct. App. 1991). The ALJ found, and the Commission again agrees, that Rafferty's disguised desire to rid himself of Joanna Rangel did not arise from bias based on sex (or race or national origin), but rather from a genuine dissatisfaction with her as an employe. That dissatisfaction appears to have arisen from Rangel's attitude toward her employment and her inability or unwillingness to perform certain job functions.

NOTE: The parties disputed whether the individual respondents were proper parties. Because it agrees with the ALJ on the question of discrimination, with the result that the complaint is dismissed as against these respondents as well as against the City, the Commission sees no purpose to be served in addressing the matter. The Commission thus leaves to another day, and expresses no opinion on, the question of whether agents of an employer whose allegedly discriminatory acts are committed within the scope of their agency, are appropriately named as separate respondents in their own rights when the employer is also named.

The Commission was in general agreement with the findings and conclusions of the Administrative Law Judge and has affirmed his basic rationale and result for that reason. The modifications made to the ALJ's Findings of Fact correct a number of minor errors only. The Commission modified the ALJ's Conclusions of Law, and substituted its own Memorandum Opinion, prinicipally in connection with its different conclusion on the statute of limitations question.


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(1)( Back ) Complainant testified specifically that her leave due to carpal tunnel syndrome began on April 10, 1987. Based on this testimony, and on the absence of any evidence that the leave did not begin until June, 1987, the Commission corrected the ALJ's Finding of Fact on that point.


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