LAURIE YARIE (SCHROEDER), Complainant
THE PUMPHOUSE, Respondent A
HOWARD WAGNER, Respondent B
An Administrative Law Judge of the Equal Rights Division issued a decision and order on July 17, 1990, in which he found that the Respondents did not discriminate against the Complainant because of sex in violation of the Wisconsin Fair Employment Act when they refused to allow her to return to work on July 3, 1989. He also found that Respondents discriminated against the Complainant because of sex in violation of the Wisconsin Fair Employment Act when, upon the Complainant's return to work on April 21, 1990, they paid her a lower rate of pay and assigned her to less desirable duties than she had formerly had. The Complainant did not file a petition for review from the no discrimination finding. Respondents filed a petition for review from the discrimination finding.
Based on a review of the record in its entirety, the Commission has concluded, for the reasons set forth in the attached Memorandum Opinion, that the issue of whether the Respondents discriminated against the Complainant with respect to the terms upon which she was reemployed on April 21, 1990 was not properly before the Administrative Law Judge in this matter, and it therefore makes the following:
The FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER of the Administrative Law Judge dated July 17, 1990 are modified as follows:
As so modified, the FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER of the Administrative Law Judge are affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed September 14, 1990
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
The complaint in this matter, filed on August 7, 1989, alleged only that the Complainant was pregnant, that she took a leave of absence, and that when she returned to go back to work the employer would not let her because she was pregnant, claiming that she had asked for and been granted a leave of absence for the entire term of her pregnancy. The Initial Determination, which was issued on November 29, 1989, focused quite specifically on the particular allegations of the complaint, and found that the Complainant became pregnant on or around May 1, 1989, that she told the employer in June 1989 that she wanted to go on a leave of absence, that she attempted to return from this leave of absence in July 1989, and that the employer refused to allow her to return to work at that time. Efforts at conciliation were unsuccessful, and the matter was certified to hearing on January 23, 1990.
The Complainant's child was born on February 21, 1990.
In April 1990, while the case was awaiting assignment of a hearing date, the Complainant again sought to return to work, and the employer agreed to take her back. The employe returned to work on April 21, 1990 and worked one day. She was assigned to do only cleaning, whereas prior to her pregnancy she performed other functions as well, and she was paid only $3.80 per hour, whereas prior to her pregnancy she had been paid $4.00 per hour. She apparently worked only one day, thereafter quitting her employment.
A Notice of Hearing was issued on May 16, 1990 scheduling the matter for hearing on July 12, 1990. The Notice of Hearing indicated that the hearing would be held to determine whether the Respondents, "as alleged in the attached complaint," violated the Wisconsin Fair Employment Act "by discriminating against the Complainant in terms of employment because of pregnancy." The "attached complaint" was the complaint filed on August 7, 1989, which addressed only the question of the refusal to allow the Complainant to return from leave in 1989 and which did not raise the issue of the terms upon which the Complainant was allowed to return to work in April 1990.
Hearing was held on July 12, 1990 as scheduled. Neither party was represented by counsel. At. the hearing, testimony was taken from the Complainant not only as to the circumstances relating to her leaving work in 1989, but also as to her return to work in 1990. When the Administrative Law Judge issued his decision, he made findings of fact and conclusions of law on the circumstances of the Complainant's return to work in April 1990. He concluded that, while there was no discrimination with respect to the refusal to allow the Complainant to return from her leave of absence in 1989, there was discrimination with respect to the terms upon which she was allowed to return to work in April 1990. The Respondents have filed a petition for review from this discrimination finding.
When an allegation of discrimination has not been made the subject of a properly filed complaint, it should not be made the subject of a decision. Hanson v. Waukesha Bearings (Industrial Commission, November 18, 1976); Rau v. Mercury Marine (LIRC, May 19, 1977),. affirmed Rau v. DILHR (Dane County Circuit Court, February 21, 1979); Rudd v. The Rising Sun (LIRC, November 4, 1982); Marchant v. Breakthru Marketing Services (LIRC, February 5, 1988). Additionally, there should be neither hearing nor a decision on the merits of an allegation of discrimination until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher and Indermuehle v. Metal Industries (Industrial Commission, November 17, 1976); AMC v. DILHR and Basile (Dane County Circuit Court, October 3, 1977); Marchant v. Breakthru Marketing Services, supra. Finally, neither findings nor order should be made on allegations of discrimination not identified as issues for hearing in the notice of hearing. Price v. Lakeside School Board (Industrial Commission, November 17, 1976); Hanson v. Waukesha Bearings, supra; Rudd v. The Rising Sun, supra. In this case, the issue of whether the Respondents discriminated against Complainant because of sex (pregnancy) in respect to the terms upon which Complainant was reemployed in April 1990 was not raised by the original complaint, and it was never raised in an amended complaint filed with the Division. The issue was also never investigated or made the subject of a determination of probable cause. Finally, the Notice of Hearing in this matter identified the sole issue for hearing as being that raised in the complaint, which was whether there had been discrimination in the refusal to allow Complainant to return to work after, her leave of absence when she sought to in 1989, and it failed to identify any issue relating to the circumstances of the Complainant's actual return to work in April 1990. The Administrative Law Judge was therefore without authority to make findings, conclusions and orders concerning that issue.
The only issue properly presented in this case, was whether the Respondents discriminated against the Complainant because of sex with respect to the failure to allow her to return to work in July 1989 when she sought to. The Administrative Law Judge appropriately dealt with that issue and made findings and conclusions disposing of it. The Commission's decision is intended to limit the findings, conclusions, and order to that issue, as it should have been limited by the Administrative Law Judge.
The Commission would note that it has not "reversed" the findings and conclusions of the Administrative Law Judge with respect to the issue of discrimination in April 1990, but has merely deleted or set aside such findings and conclusions. The issue should not have been the subject of litigation and decision, and in legal contemplation, it has not been the subject of litigation and decision. The issue never having been properly before or properly resolved by the Equal Rights Division, it is still open. The Complainant is free, should she so choose, and subject to the 300-day statute of limitations provided for in sec. 111.39, Stats., to file a complaint with the Division alleging that discrimination took place with respect to the terms upon which she was allowed to return to work in April 1990. If such a complaint is filed, the Division will conduct an investigation and the matter may, at that time, proceed through the process in such a fashion as to allow a proper resolution of the issue.
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