WILLIAM L. WILSON, Complainant
BURNETT COUNTY SHERIFF'S DEPARTMENT, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter. A timely petition for review was filed.
Based on its review of the record, the Labor and Industry Review Commission now makes the following:
1. In a complaint filed with the Equal Rights Division on July 13, 1992, the complainant, a male employed by the respondent as a jailer/dispatcher, alleged that he was discriminated against because of his age, sex and handicap with respect to being denied a change of shift. Specifically, he asserted that by letter from Dr. Edwin Smelker dated April 22, 1991, a request was made of Sheriff Don Taylor for a different shift which would enable him to sleep during the night hours to aid in his recovery from post-traumatic stress but that such request was denied, that he was told that because of his age and time in at work he should consider taking early retirement or disability, that said denial was later put in writing by letter dated May 1, 1991, (1) and that while his request was denied, the same request by a female was honored on June 6, 1992. Further, he apparently also asserted that although his job description was the same as that of the female, unlike she, he was demoted on May 20, 1991 (i.e., asked to turn in his deputy card and to cease making off-duty stops), and his deputy card had not been reinstated as of July 6, 1992.
2. Following a hearing on the merits of the complaint, the ALJ determined that neither the complainant's sex nor his age were factors in the respondent's refusal to reassign him to the day shift, and that his deputy card was revoked to avoid placing him in an unnecessarily stressful situation which might pose a danger to himself or the public. Accordingly, the ALJ concluded that the respondent had not discriminated against the complainant because of his age or sex when it refused to temporarily reassign him to the day shift, and had not discriminated against him because of his age, sex or handicap when it revoked his deputy card.
3. However, the ALJ found that temporarily assigning the complainant to the day shift would not have posed a hardship on the respondent, and therefore that by refusing to accommodate his handicap through temporarily assigning him to the day shift, the respondent had violated the Wisconsin Fair Employment Act. As a remedy, the ALJ ordered the respondent to cease and desist from unreasonably refusing to accommodate Wilson's handicap and to henceforth make a reasonable effort to ascertain whether or not requests such as the one denied in this case will, in fact, create a hardship for the department. The respondent was also ordered to pay the complainant attorney's fees and costs totaling $3,572.75.
4. The respondent filed a petition for review of the ALJ' s decision asserting, among other things, that the ALJ committed error in finding unlawful handicap discrimination and in failing to find that the complainant's complaint was barred by the Act's 300-day statute of limitations. The complainant has not filed a petition for review of the ALJ's decision.
5. The commission does not reach the merits of the complainant's handicap discrimination claim as it finds that resolution of the statute of limitations issue disposes of this matter in its entirety.
6. Section 111.39(1), Stats., requires that a complaint of discrimination be filed no more than 300 days after the alleged discrimination occurred. The date on which an act of unlawful discrimination occurs is when the employer acts and the employe knows about it. Hilmes v. DILHR, 147 Wis. 2d 251 (Ct. App. 1991). Here, the complainant knew without question on May 1, 1991, that the respondent would not grant his request for a transfer to the day shift as an accommodation for his post-traumatic stress condition. The date when the complainant filed his complaint alleging handicap discrimination, July 13, 1992, is in excess of 300 days from May 1, 1991.
Based on the above FINDINGS OF FACT, the commission makes the following:
The complainant's complaint of alleged handicap discrimination, insofar as it alleges that the complainant was denied a change of shift, was filed more than 300 days after the alleged discrimination occurred and therefore was not timely filed as required under s.111.39(1), Stats.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission now therefore issues the following:
Insofar as the decision of the administrative law judge finds that the respondent discriminated against the complainant in violation of the Act when it refused to accommodate his handicap by temporarily assigning him to the day shift and orders make-whole relief on said claim, this decision and order is set aside and said claim of handicap discrimination is dismissed.
Dated and mailed September 29, 1995
wilsowi . rpr : 125 : 9
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ David B. Falstad, Commissioner
In arriving at the decision that the complainant's claim of handicap discrimination based on the respondent's denial of his request for a shift change must be dismissed, the commission has considered the question of whether or not the respondent had waived the 300-day statute of limitations defense.
Section Ind 88.11 of the Wisconsin Administrative Code provides that "Within 21 days after the date of a notice of hearing on the merits, each respondent shall file with the division an answer to the allegations of the complaint ....Any affirmative defense relied upon, including without limitation the statute of limitations, shall be raised in the answer unless it has been previously raised by motion in writing. Failure to raise the affirmative defense that a complaint is barred by the statute of limitations in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense."
The notice of hearing on the merits in this case was issued on December 17, 1993. The hearing was scheduled for February 3, 1994. Twenty-one days after the date of the notice of hearing on the merits was January 7, 1994. The respondent's answer to the complaint (although dated January 6 and containing a postmark of the same date) was filed (i.e., received by the division) on January 10, 1994, three days late.
However, in Rangel v. City, of Elkhorn, (LIRC, 9/30/92) , the commission held that sec. Ind 88.11 "provides merely that the failure to timely raise the defense 'may' be held to constitute 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." In Rangel, given the fact that the defense was asserted in an answer filed approximately two weeks before the first day of the hearing, that the hearing had continued over many days thereby allowing the complainant sufficient time to present evidence on the timeliness issue and the fact that the complainant had not objected that the statute of limitations defense was raised late, either when the untimely answer was filed or at the first day of hearing, the commission would not hold that the respondent had waived the statute of limitations defense by its failure to raise it in a timely filed answer.
As noted above, in this case the respondent's answer containing the statute of limitations defense was filed with the division just three days after January 7 on January 10, 1994. Therefore, there was still over three weeks in which to prepare a response to the defense before the hearing took place. Moreover, the record shows that a little over three weeks prior to the notice of hearing in a Request for Production of Documents to the respondent dated November 24, 1993, the complainant notified the respondent that pursuant to Rule 804.09 it was to produce for inspection and copying within thirty days, various documents, including "Copies of all documents sent to the Wisconsin Equal Rights Division or the Equal Employment Opportunity Commission in response to the complaint filed by plaintiff, William L. Wilson, against the Burnett County Sheriff's Department." The record shows that in response to this production of document request, the respondent supplied to the complainant a copy of the same response that it had originally submitted to the division in March 1993 when initially responding to the complainant's discrimination complaint. That response included the following assertions:
"1. Pursuant to Sec. 111.39(1), Wis. Stats., the Department of Industry, Labor and Human Relations lacks jurisdiction over this matter in that said complaint was not filed within 300 days after the alleged discrimination.
2. Pursuant to Sec. 111.39(1), Wis. Stats., the Complainant's discrimination complaint must be dismissed in that it was filed with the Department more than 300 days after the alleged discrimination."
The record does not show when the respondent actually complied with the production of document request; however, complainant's counsel's fee petition submitted to the ALJ indicates that he spent time reviewing the respondent's response to the production of document request on January 7, 1994. Thus, arguably, by virtue of this response, the respondent had "previously raised (the statute of limitations defense) by motion in writing" and need not have even raised this issue in a timely filed answer. At the very least, it alerted the complainant to the fact that the statute of limitations defense had been raised before the department. Further still, the same fee petition referred to above also shows that on January 7, 1994, the complainant's counsel spent time reviewing a "letter" from the respondent's counsel. On January 6, 1994, the respondent had sent the complainant a letter enclosing its answer to the complaint in which the statute of limitations defense was raised. It thus appears that complainant's counsel had actually received the answer within 21 days of the notice of hearing even though the department had not.
In addition to the above, at no time has the complainant ever objected that the statute of limitations defense was raised late, including either when the answer was filed untimely with the division or in response to the respondent's petition for commission review of the ALJ's decision.
Because of the above, the commission is unwilling to find that the respondent had waived the statute of limitations defense based on the late filing of its answer with the division.
This did not end the commission's consideration of this matter, however. The commission also noted that the respondent apparently said nothing about the statute of limitations defense at the hearing. Neither did the complainant's counsel, or the ALJ. Some additional questions that had to be considered therefore were: Need a respondent do more after raising the statute of limitations defense in its answer? Does the failure to do more cause the respondent to waive the statute of limitations defense? The commission concludes that these questions must be answered in the negative.
The administrative rules do not speak to these issues. The rules simply state that the statute of limitations defense shall be raised in the answer to the complaint unless previously raised by motion in writing.
And while the statute of limitations defense is an affirmative defense, on which the employer has the burden of proof, it appears clear that the proof necessary for resolution of the statute of limitations issue in this case required nothing more than a reading of the complaint. Specifically, for purposes relevant to the discussion here, the complaint shows that the complainant asserted that by letter from Dr. Edwin Smelker dated April 22, 1991, a request was made of Sheriff Don Taylor for a different shift which would enable him to sleep during the night hours to aid in his recovery from post-traumatic stress but that such request was denied and later put in writing by letter dated May 1, 1991. The complaint itself shows that it was stamped received by the division on July 13, 1992.
Also, an exception does exist to the 300-day filing period, known as the continuing violation doctrine, which can extend the time for filing a complaint of discrimination, but that doctrine is not applicable here. There are two basic continuing violation theories. One is the continuing course of conduct theory, which applies when an individual complainant has been subjected to a series of separate, but related discriminatory acts, at least one of which takes place within 300 days of the filing of the complaint. The second is the continuing discriminatory pattern or practice theory, under which a discriminatory policy or practice is considered to be a continuing violation as long as the discriminatory policy or practice remains in force and the complainant is subject to the discriminatory policy or practice.
Under this theory, a complaint of discrimination is timely if it can be shown that the discriminatory policy or practice was applied to the complainant within 300 days preceding the filing of a complaint.
The complainant's complaint of handicap discrimination does not allege that he was subjected to a series of related acts of discrimination, at least one of which took place within 300 days of July 13, 1992. Instead, it alleges that a discrete and isolated act of discrimination occurred in that the respondent denied his request for a transfer to accommodate his posttraumatic stress condition. This alleged act of discrimination occurred, at the very latest, on May 1, 1991, when he was informed in writing of the denial of his request for a shift change. This letter evidenced a sufficient degree of finality that should have triggered his awareness to assert his rights. While the complainant has also asserted that on June 6, 1992, the respondent honored a female employe's request for a transfer to the day shift, this does not convert his claim of handicap discrimination (refusing to reasonably accommodate handicap) into a continuing violation so as to render the May 1991 alleged act of discrimination timely. It may have presented a basis for a claim of sex discrimination, but alleged sex discrimination presents an entirely different subject matter than handicap discrimination.
Nor does the complaint allege that the respondent maintained a discriminatory policy or practice of not reasonably accommodating an employe's handicap which he remained subject to within 300 days of filing his complaint. In fact, his claim that the respondent did accommodate a female employe's handicap but not his, completely negates any argument for extension of the limitations period under the continuing discriminatory policy or practice theory.
Since the circumstances presented in this case do not warrant a finding that the respondent's late filing of the answer caused it to waive the statute of limitations defense, the administrative rules are silent as to whether or not a respondent need do anything further after raising the defense in its answer and the untimeliness of the complainant's claim of handicap discrimination regarding the denial of his request for a shift change is evident from simply reading the charge of discrimination, the commission concludes that the complainant's claim of handicap discrimination must be dismissed.
Guy T. Ludvigson
Michael F. Durst
Appealed to Circuit Court. Affirmed February 22, 1996.
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(1)( Back ) In the May 1 letter Sheriff Taylor stated, among other things, that "It does not seem to be a feasible solution to the problem to have you change shifts. This will only upset the rotation and create serious scheduling problems."