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

EVELYN R REDDIN, Complainant


ERD Case No. CR200301251, EEOC Case No. 26GA301034

An administrative law judge 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 information submitted to the administrative law judge. Based on its review, the commission issues the following:


The Order issued by the administrative law judge on January 8, 2004, is set aside, and the matter is remanded for a hearing and decision on the merits of the complaint.

Dated and mailed August 24, 2004
reddiev . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



Procedural Background

On April 1, 2003, the complainant, an elementary school principal, filed a complaint in which she alleged she was discriminated against based upon her sex with regard to unequal pay or benefits. The complainant indicated that for many years her pay has been inequitable compared to male principals in the district, and that this situation was ongoing. The complainant appended a chart showing her salary relative to five male employees and a graph showing average salaries of male and female employees in the school district.

The initial determination, which was issued on October 17, 2003, found probable cause to believe that discrimination occurred. The matter was therefore certified to hearing.

On November 6, 2003, prior to the issuance of a hearing notice, the administrative law judge sent the following letter to the parties' attorneys:

"Dear Attorneys,

"I have been assigned to hear this case. In looking at the complaint, I note that no specific action by the Respondent is alleged to violate the Wisconsin Fair Employment Act. What is complained of is the result of a series of actions. There appears to be no disparate impact claim, since the sample size is too small and no specific practice by the respondent is mentioned. There appears to be no "equal pay" claim, since those compared are claimed to all be in the same job and the sample includes only one female.

"As I understand it, employees' pay generally results from a decision as to what compensation is to be received upon a person's hire, plus any decision to change that initial compensation rate. If I am to find a violation of the Wisconsin Fair Employment Act, I normally have to find that the person or persons who decided what the initial compensation would be, or what the raises would be, considered an illegal factor in doing so. It is normally the legality of the decisions that matter, not the resulting salaries or average salaries. Moreover, these series [sic] of discrete decisions do not constitute a continuing violation.

"I need to know what decision, or decisions, made by the Respondent regarding the Complainant are alleged to violate the Wisconsin Fair Employment Act by discriminating against her in compensation because of her sex before I will set this matter for hearing. If Mr. Westerhof [one of the complainant's attorneys] could get back to me in writing to explain that, or set up on [sic] conference call to deal with this issue, I would appreciate it."

(emphasis in original)

On November 26, 2003, the complainant's attorney sent the administrative law judge a letter explaining that the complainant's allegations made out a prima facie case on her Equal Pay Act claim, since to do so she needed only establish that the respondent paid different wages to employees of the opposite sex for performing substantially equal work. The complainant's attorney also stated that the complainant established a prima facie case of discrimination based on sex by alleging that she is a female, and that each time the respondent cut her paycheck it paid her less than it did her male counterparts. The complainant pointed out that, while the administrative law judge had raised the issue of whether the complainant's claims fell outside the 300-day limitations period, a continuing violation theory applied.

On December 8, 2003, the respondent's attorney sent a letter to the administrative law judge in which he argued that the complainant's salary was a direct result of her performance evaluations which were completed by a female, that there was no dispute that salary is based on a merit system and a factor other than sex, that it disputed the contention that the merit system is subjective, and that even if true, the complainant had produced no evidence that gender played a role in her evaluation and salary increases. In his letter, the respondent's attorney also stated, as follows:

"To be clear, the School District does not contend that Ms. Reddin's complaint of sex discrimination in compensation was not timely filed. Rather, the School District claims that if this case proceeds to hearing the only relevant evidence and only potential back pay claim relates to the salary Ms. Reddin received within the 300 days of the filing of her complaint. All of the federal circuits that have addressed this issue have found that while a plaintiff is not barred from bringing suit for pay discrepancies occurring within 300 days of the administrative charge, employees may not recover back pay for salary differentials outside of the limitations."

(citations omitted)(emphasis added)

On January 8, 2004, the administrative law judge issued an Order of Dismissal, in which he stated, in part:

"On November 26, 2003, the Division received a letter from Ms. Reddin's attorney. This letter does not identify any specific action by Neenah claimed to have violated the Act. Instead it argues that the mere existence of a disparity between the average male salary and the average female salary in a job classification violates the Act, however it arose, under two theories of law.

"On December 8, 2003, the Division received a letter from the attorney for Neenah. In this letter, Neenah argues that the disparity arose as a result of events that occurred outside the statute of limitations period and from raises resulting from performance evaluations.

"Ms. Reddin appears to claim that to comply with the Wisconsin Fair Employment Act, employers are responsible for continually analyzing and adjusting the average salary of male and female workers in each job classification to insure they are equal. . . This is not the law. The mere existence of a disparity does not violate the Act.

"In order to violate the Wisconsin Fair Employment Act, employers must do something within the statute of limitations which is illegal. Ms. Reddin has not identified any such action in the complaint, and when her attorney was given the opportunity to do so, also failed to identify such an action. Since Ms. Reddin has not made a claim under the Wisconsin Fair Employment Act, the undersigned Administrative Law Judge issues the following:


"That the complaint is this matter is hereby dismissed with prejudice."

The complainant has petitioned for review of that Order.


The respondent did not file a motion to dismiss in this case, and the question of whether the complainant stated a claim under the Wisconsin Fair Employment Act (hereinafter "Act") was taken up by the administrative law judge on his own motion. Although an administrative law judge does have the authority to dismiss a complaint, and may do so sua sponte, this authority only extends to instances where it appears that, even if what the complainant claims is true, a decision in favor of the respondent would be required by law. Such a dismissal should only be issued in cases where, based upon the assertions in the complaint, there is simply no way the complainant could prevail. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Jackson v. MATC and AFT (LIRC, July 16, 2003)(emphasis added).

Here, the complainant alleged that she was paid inequitably based upon her gender. That allegation, if proven, would state a claim for relief under the Act. In evaluating complaints of sex discrimination in compensation under the Act, the commission has looked to the analysis followed under the federal Equal Pay Act. Sahr v. Tastee Bakery (LIRC, Jan. 22, 1991); Schwinn v. Dodge County Cooperative (LIRC, Oct. 13, 1998). Under the Equal Pay Act analysis, a complainant must show that the employer pays employees of different sexes differently for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. If that showing is made, an employer is liable unless it proves that the pay differential is the result of a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or any factor other than sex. The Equal Pay Act analysis has been described as a strict liability test, in which it is not necessary to prove intent to discriminate: an employer that pays different wages is automatically liable unless it proves one of the defenses. Id. Consequently, where the complainant has alleged that she is a female, and that she is paid less than males who perform similar work, her allegations are sufficient to permit her to go forward, whether or not she is contending that the respondent engaged in intentional discriminatory conduct.

Moreover, while the administrative law judge may have believed that the complainant needed to provide additional facts showing a specific discriminatory employment decision resulting in the disparate pay, she should have had an opportunity to present such facts at the hearing, rather than being required to provide them to the administrative law judge in letter form prior to the hearing. The complainant does not have the burden of persuading the administrative law judge that she deserves to go forward before her complaint will be noticed for hearing, and the commission believes that the administrative law judge overreached in imposing such a requirement.

The commission also notes that, while the administrative law judge's dismissal is written as a dismissal for failure to state a claim, implicit in the decision is a conclusion that the complainant's allegations are untimely. The administrative law judge alluded to the limitations period twice in his dismissal order, and it is clear both from the Order and the administrative law judge's November 6 letter to the parties that he believed the complainant needed to allege that the respondent engaged in discriminatory conduct during the 300-day limitations period, beyond the simple issuance of an inequitable paycheck, but failed to do so.

To the extent the dismissal of the complaint is premised on a conclusion that it was untimely, the administrative law judge lacked authority to issue such a dismissal. The 300-day time limit is a statute of limitations which is subject to waiver, and is not a statute concerning subject matter jurisdiction. Milwaukee County v. LIRC, 113 Wis. 2d 199, 205, 335 N.W.2d 412 (1983). It is well-settled law that the affirmative defense of statute of limitations must be raised in a pleading or by a motion or be deemed waived. Id. at 206. The commission has found that it was an error for an administrative law judge to dismiss a portion of a complaint on the basis of untimeliness where the respondent has not raised the statute of limitations issue in a timely filed answer and did not make any argument about the statute of limitations until after the hearing. Blohm v. Holiday Inn (LIRC, Jan. 31, 1990). Here, not only did the respondent not raise timeliness as an affirmative defense in an answer, (1)   it specifically conceded that the complaint was timely and that the limitations period was relevant only in relation to the presentation of evidence and the respondent's potential liability for back pay. Where the respondent has not raised a statute of limitations defense, and has actually expressed a willingness to waive that defense, the administrative law judge was without authority to dismiss the complaint on that basis.

For the reasons set forth above, the commission believes that the administrative law judge's decision to dismiss the complaint without a hearing was in error. It has, therefore, set aside the administrative law judge's Order and remanded this matter to the Equal Rights Division so that the complainant may have an opportunity to present her case.

Attorney Mindy Rowland Buenger
Attorney Lori M. Lubinsky

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(1)( Back ) The administrative rules provide that, within 21 days after the date of a notice of hearing on the merits, each respondent shall file an answer to the allegations of the complaint upon which there is a finding of probable cause. Wis. Admin. Code DWD 218.12(1). The administrative law judge took up the statute of limitations issue sua sponte prior to issuance of the hearing notice and before the respondent had an opportunity to file its answer.


uploaded 2004/08/30