STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

THERESA M. GARNER, Complainant

UNIVERSITY OF WISCONSIN-MILWAUKEE, Respondent A

UNIVERSITY OF WISCONSIN - MILWAUKEE POLICE DEPARTMENT, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. CR200403960, EEOC Case No. 26GA500011


Complainant, Theresa M. Garner, filed the complaint in this matter on October 5, 2004, naming University of Wisconsin - Milwaukee and University of Wisconsin - Milwaukee Police Department as respondents and alleging that respondents had violated the Wisconsin Fair Employment Act in various respects described therein. An investigation by the Equal Rights Division of the Department of Workforce Development resulted in an Initial Determination, issued on February 4, 2005, concluding that there was no probable cause to believe that respondents violated the Act as alleged in the complaint. Garner filed a timely appeal of this Initial Determination.

Subsequently, the respondents filed a motion to dismiss the complaint on the grounds that it failed to state a claim under the Act. An administrative law judge (ALJ) for the Equal Rights Division issued a decision on June 8, 2005, dismissing the complaint on that basis (1) . The complainant filed a timely petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the materials in the file on the basis of which the ALJ made his decision. Based on its review, and for the reasons stated in the Memorandum Opinion attached hereto, the commission now makes the following:

ORDER

The decision of the ALJ to dismiss the complaint in this matter (ERD Case No. 200403960) for failure to state a claim under the Wisconsin Fair Employment Act, is set aside. The complaint in this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed February 10, 2006
garneth3960 . rrr : 110 :

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Background -- Theresa Garner began working for University of Wisconsin - Milwaukee in February, 2003. Her employment there ended in June, 2003. Thereafter, Garner filed a number of complaints against UW-Milwaukee alleging various forms of discrimination. The present case arises out of a complaint which Garner filed against UW-Milwaukee and its Police Department, in October, 2004. That complaint focused on events occurring subsequent to the end of Garner's employment with UW-Milwaukee and had to do with continued contacts between Garner and UW-Milwaukee.

The ALJ dismissed the complaint, without a hearing, based on the theory that the complaint did not state a claim for relief under the Fair Employment Act. Garner petitioned for review of this decision by the commission.

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim upon which relief may be granted if it appears that even if what is claimed by the complainant is assumed for purposes of analysis to be true, a decision in favor of the respondent would nevertheless be required as a matter of law. See, e.g., Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

A threshold question in such cases is what should be looked to in order to determine "what is claimed by the complainant" for purposes of making such an analysis. This question takes on greater importance in situations such as this one, in which a large volume of material bearing on the parties' allegations has been filed subsequent to the complaint.

The commission has long adhered to the approach that a decision on whether a complaint states a claim under the Act should be based on looking to what the complaint alleges and to "any other assertions of the complainant which provide an indication of the nature of the claim". See, Alvey v. Briggs & Stratton (LIRC, 11/27/91). (2)   In doing this, the commission has not looked strictly and exclusively at the language of the complaint, nor has it routinely considered absolutely everything which the complainant has managed to get into the file. Instead, it has taken an approach in which the complaint is the starting point, and in which additional assertions made by the complainant may then be looked at to the extent necessary to provide details concerning claims already alleged in the complaint, all with the goal of getting a fair idea of what the complainant contends he or she will prove in order to support the allegations made in the complaint. See, e.g., Lau v. Latec Credit Union (LIRC, February 7, 2003); Newton v. St. Gregory Education & Christian Formation Committee (LIRC, December 10, 1997); Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995); Olson v. Lilly Research Laboratories (LIRC, June 25, 1992).

With this in mind, the commission first considers the allegations of the complaint, and then turns to other assertions of the complainant which provide more detail about the claim where this is necessary to understanding what the claim stated in the complaint involves or extends to. 
 

The complaint -- The complaint in this matter (ERD Case No. 200403960), filed in October, 2004, named UW-Milwaukee and UW-Milwaukee Police Department as respondents, and it alleged in material part as follows:

1.  Joely Urdan, December 26, 2003, I filed a discrimination complaint with ERD, EEOC, & Equity Diversity Office. Urdan then claimed out of retaliation for filings these complaint that I phone Stephens numerous time + then hung up. All such accusations were false, out of retaliation because I filed a discrimination/ retaliation complaint.

2.  Employment related because I was eligible for interviews because I passed the Office Support State exam ranking was # 1 out of 271 test takers. UWM-Joely Urdan sent a threatening, unexplained letter trying to coerce & intimidate me with a restraining order from coming on campus or interviewing or talking to any employees at UWM. Her allegation were false & I wrote her several times requesting (all) names, dates of the false claims, UWM would not provide or justify the claims she made. So I was afraid that if I were to come on campus she would enforce a restraining order against me & would not be able to continue or get rehired at UWM with a restraining order. I would not be able to work at UWM with a restraining order either.

3.  This complaint originally relates back to my complaint of discrimination based on race (black) and retaliation for filing with the Dept. of Equity/Diversity and the Respondents. In comparison, to co-Worker's in a similar circumstance, similar duties, similar rules, regulation applicable, non-color person was treated differently in the same department. Such persons were not harassed, singled out, mistreated, lied upon during my employment. This is why I believe race was a factor in filing this complaint.

This complaint is fairly specific as to what the respondent is alleged to have done wrong. It alleges that the respondent engaged in two wrongs: the first was the making of false claims or accusations that Garner had made numerous "hang up" calls to someone named Stephens, and the second was threatening Garner that the University would seek a restraining order to prevent her from coming on campus. 
 

Other assertions by complainant about what she will try to prove -- Although the second complaint is fairly specific as to what the respondent is alleged to have done wrong, it is somewhat indefinite as to when these things happened and as to who was involved. As noted above, the commission has recognized that in deciding the question of whether a complaint states a claim under the Act, it can be appropriate to look beyond the complaint to "any other assertions of the complainant which provide an indication of the nature of the claim." Here, the nature of the claim made by the complaint can be clarified by looking at position statements and materials which Garner submitted to the ERD investigator during the course of the investigation. In regard to the allegation concerning false claims or accusations that Garner had made numerous "hang up" calls to someone named Stephens, information submitted by Garner to the ERD investigator indicates that this basically concerns a criminal complaint filed on August 22, 2003, concerning alleged unlawful use of a telephone by Garner. In regard to the allegation concerning the threat to seek a restraining order, information submitted by Garner to the ERD investigator indicates that this threat was made in a June, 2003 letter to Garner from Senior UW-Milwaukee Legal Counsel Monica Rimai.

Thus, considering both the text of the complaint in this matter and "other assertions of the complainant which provide an indication of the nature of the claim," it appears that what is being claimed is that UW-Milwaukee was in some fashion responsible for Shawnette Stevens filing a criminal complaint against Garner, in August, 2003, alleging that Garner was making repeated "hang-up" calls. It also appears that it is being claimed in that complaint that UW-Milwaukee was responsible for a threat being made to Garner, in June, 2003, that UW-Milwaukee might seek to obtain a restraining order against her.
 

Discussion -- The complaint in this matter clearly alleges that the respondents did certain things for a reason which is prohibited under the Wisconsin Fair Employment Act (race, filing of previous complaint of discrimination). The important question in this case, as to whether or not the complaint in this matter states a claim under the Wisconsin Fair Employment Act, has to do with whether the things the respondent is alleged to have done because of those reasons are sufficiently related to employment that the alleged wrongs could be considered employment discrimination. A number of commission decisions issued over the past 15 years have addressed this issue.

In Pufahl v. Niebuhr (LIRC, August 16, 1991), the action allegedly taken for an unlawful reason (retaliation) was the respondent's action in contacting a city recreation department to report that the complainant was not a resident of the city on whose softball leagues she was participating. The administrative law judge had opined, in dismissing the complaint, that it was not covered under the WFEA because the respondent's action was not directly related to the complainant's employment.

Although the commission affirmed the result arrived at by the administrative law judge in Pufahl, it expressed a different view about the general question which the case illustrated. The commission rejected the notion that an adverse action had to be "directly" related an individual's employment, and it instead expressed the broader view that an adverse action could in some circumstances be subject to the anti-retaliation provisions of the Act even though its relationship to an employment opportunity was only indirect. Looking to federal court decisions issued under the parallel anti-retaliation provisions of Title VII, the commission initially cited as an example of an "indirect" effect on an employment opportunity, the giving of a bad reference to an ex-employee, which although it does not affect the employment relationship which had existed between employer and employee can tend to impair the employee's opportunities for future employment with other employers and thus bears a relationship to employment in general. The commission also cited as potential examples, such things as filing a lawsuit in tort seeking damages for defamation or malicious prosecution, or threatening criminal charges for allegedly making threatening phone calls to the employer. It noted that while such things might not directly implicate any employment opportunity, there could be an indirect effect upon future employment opportunities, in that, like giving a poor recommendation, action by a former employer to sue or criminally prosecute a former employee could effectively destroy that former employee's chances of future employment. The outcome in the particular case at hand was affirmed because the action alleged in that case -- contacting the city recreation department to report that Complainant was not a resident of the city on whose softball leagues she was participating -- simply bore no conceivable relationship whatsoever to any employment opportunity, past, present or future.

In Seeman v. Universal Foods Corp. (LIRC, 09/22/94), the action allegedly taken for an unlawful reason (retaliation) was the respondent's filing of an administrative complaint with the WERC claiming that the complainant was committing an unfair labor practice under the Wisconsin Employment Peace Act. (The complainant had previously filed a complaint of disability discrimination, the arbitrator in a grievance arising out of related facts had ruled against him, and it was the employer's theory that by continuing to pursue the disability discrimination complaint the complainant was refusing to abide by a final arbitration award). In its decision in that case, the commission concluded that the action was not sufficiently related to employment or an employment opportunity to constitute an illegal action under the WFEA. The commission distinguished the administrative unfair labor practice charge involved in that case from such things as poor recommendations which could effectively destroy a former employee's chances of future employment, defamation claims which were in effect an attack on the employee's truthfulness, or action causing the person to be arrested and prosecuted for criminal trespass. The commission indicated that what was important was whether the action caused potential harm that would affect the complainants' employment opportunities. Reasoning that the WERC complaint neither challenged the complainant's integrity as a human being nor had any negative implication with respect to his workplace activities, the commission concluded that the respondent's action neither did nor would impair his reputation or future employment opportunities, so that the action was not one subject to the Act.

In Stillwell v. City of Kenosha (LIRC, September 29, 1995), the action allegedly taken for an unlawful reason (retaliation) was respondent's commencement of a legal action against the complainant in which the respondent sought a court order for specific performance of what the respondent alleged was an agreement between it and the complainant to settle a discrimination complaint. The commission distinguished an action to enforce a settlement agreement from cases involving actions in tort alleging malicious prosecution or slander, in which the potential for an award of damages against the employee was presented.

In Peck v. Walworth County and William Weiland (LIRC, September 27, 1996), the action allegedly taken for an unlawful reason (retaliation) was the release by the complainant's former employer of the terms of a settlement agreement between the parties that the complainant asserted was to have been kept confidential. The commission concluded that the complaint did not state a claim under the WFEA, because no allegation had been made that the respondent's release of confidential settlement information had even an indirect relationship to the complainant's employment. The commission noted that the reason the complainant said she wanted the terms of the settlement to stay confidential were to avoid disclosure to members of her family who are employed by the respondent and who would be displeased with the terms. Also, the information to have been released was not information calling into question the complainant's character or work habits. Thus, the commission reasoned, the potential harm complained of was not sufficiently related to employment opportunities.

In Riley v. Van Galder Bus Co. (LIRC, May 24, 1999), the complainant alleged that a former employer was harassing her by asking the complainant's friends questions about personal topics, such as where the complainant worked and what her vacation plans were. The commission reasoned that there was no allegation that these actions had an adverse effect upon the complainant's employment opportunities. The commission was, it stated, "unpersuaded that there is any significant connection between those actions and an employment relationship or that the respondent's actions impaired the complainant's future employment opportunities."

Based on the principles reflected by these decisions, the commission concludes that the allegations with which the complaint in this matter is concerned, do state a claim under the Fair Employment Act.

In Pufahl, the commission noted that "[l]ike giving a poor recommendation, or no recommendation at all, action by a former employer to sue or criminally prosecute a former employer could effectively destroy that former employee's chances of future employment." Commencing a proceeding to obtain a restraining order against a former employee would be comparable. It would reflect very poorly on a person to have a former employer take such a step. In addition, as Garner observed in her complaint, a restraining order preventing her from coming on the UW-Milwaukee campus or having contact with UW-Milwaukee employees would directly affect her opportunities not merely to be employed by UW-Milwaukee, but even to seek such employment. It should also be noted that it could affect such opportunities with respect to other employers which interacted with UW-Milwaukee employees or had a presence on the UW-Milwaukee campus. Employment with or connected to UW-Milwaukee obviously forms a not-insignificant part of the overall employment opportunities available in the Milwaukee areas.

In addition, the matter of the criminal complaint alleging that Garner had made harassing phone calls also appears to fall within the range of what has been recognized as stating a potential claim for retaliation against a former employee. In Pufahl, the commission looked to a federal court decision, Atkinson v. Oliver T. Carr Co., 40 FEP 1041 (D.D.C. 1986), as standing for the proposition that "threatening an equal rights complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions". What Garner alleges here goes beyond threatening criminal charges, to the actual filing of a complaint with a police department.

For the foregoing reasons, the commission concludes that the dismissal of the complaint in this matter (ERD Case No. 200403960) should be set aside and the matter sent back for hearing on the issue of probable cause.

In closing, the commission wishes to emphasize that it decides here only that if Garner is able to prove facts supporting her claim, she may be entitled to a decision in her favor. The qualification, that this depends on Garner being able to prove the facts necessary to support the claim, requires no further explanation. With respect to the qualification that if she does so she may be entitled to a decision in her favor, the commission would make the following observations.

In Stillwell v. City of Kenosha, supra, the commission said this concerning the issues presented in cases where the commencement of some kind of legal proceeding against a former employee was alleged to be an act of unlawful retaliation:

The theory of the City is that it did not bring the action out of any kind of desire to retaliate against or punish Stillwell for having brought that complaint, but in good faith to enforce what it believed to be a valid settlement agreement entered into by Stillwell through her attorney . . . Stillwell does not seem to have seriously disputed the legal premise of this argument when it was made below (that such an action, if brought in good faith merely in an attempt to enforce what the party believes is a valid, binding settlement, is not unlawful), and there is support for it.

There do not appear to be any reported decisions dealing with the question of whether actions in contract to enforce alleged settlement agreements violate anti-retaliation provisions. However, there have been cases involving actions in tort alleging malicious prosecution or slander, and holding that even these kinds of actions may be viewed as non-retaliatory if they are brought in good faith and in an effort to rehabilitate an employer's reputation from the effects of what it genuinely believes to be false charges. [citations omitted] . . . the commission believes that it is a reasonable construction of the WFEA's anti-retaliation provision, that it does not necessarily make unlawful an employer's attempts to judicially enforce an alleged settlement agreement if the enforcement action has a colorable basis and is brought in good faith and without any punitive motive.

(emphasis added). What is important here is the recognition that while a legal action brought against a former employer may be unlawful retaliation, it may also be lawful if it was brought in good faith, without the intent to retaliate, but only in order to vindicate what the party believes are their legal rights. Similarly, while the threat to make or the making of a criminal complaint alleging that a former employee made harassing phone calls may be unlawful retaliation, it may also be lawful if it was done in good faith, without the intent to retaliate, based on a genuine belief about the matters being alleged.

Garner may or may not be able to offer evidence sufficient to support her claim under these standards. However, it cannot be said that it is so clear that Garner will be unable to do so, that she can be denied the opportunity. The commission's decision is simply that the matter should be allowed to proceed to hearing.

NOTE: The commission has noted that the threat to seek a restraining order against Garner, which is a subject of Garner's October, 2004 complaint in this matter, appears to have been made in a letter dating to June, 2003. There is no indication anywhere in the complaint or in any of the subsequent submissions which have been made by Garner, that she would attempt to prove that any threat to pursue a restraining order was made at any time after this. Although noting the potential statute of limitations issue this may present, the commission does not decide the case based on this issue, for the following reasons.

In Reddin v. Neenah Jt. Sch. Dist. (LIRC, August 24, 2004), a case in which an administrative law judge sua sponte took up the question of whether a complaint failed to state a claim under the Act, the commission noted that it appeared that the administrative law judge had based his decision to dismiss the complaint in part on a conclusion that it was untimely. The commission concluded that this was error, stating:

[T]he 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.

In Reddin, the employer had not raised the statute of limitations as a defense. The commission noted that it had previously held, in Blohm v. Holiday Inn (LIRC, Jan. 31, 1990), that it was 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 had not made any argument about the statute of limitations until after the hearing.

In this case as well, the respondent has not raised the statute of limitations as a defense. While the respondent did mention the time elapsed since the letter threatening a restraining order in its Motion to Dismiss, it did so merely by way of making an off-hand comment about the allegation being "particularly curious" given that lapse of time. This simply cannot be taken as adequate to constitute an assertion of an affirmative defense of statute of limitations, especially considering that the author was an attorney who would presumably have been perfectly capable of drafting an express assertion of that defense. Thus, this case appears to present a situation like that in Reddin and Blohm, in which although the commission can see a potential statute of limitations issue, it will not decide the matter based on that issue because it is a defense which needs to be raised by the respondent, and it has not yet been so raised. (3)

cc: Joely Urdan, Attorney for Respondent



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Footnotes:

(1)( Back ) The complainant had also filed an earlier complaint, naming University of Wisconsin - Milwaukee as respondent, in February, 2004 (ERD Case No. 200400867). The respondent's motion to dismiss extended to both complaints, and the ALJ issued a single decision which dismissed both. The commission is addressing the two complaints in separate decisions because the different outcomes arrived at result in different procedural postures with respect to right to appeal.

(2)( Back ) In evaluating the legal sufficiency of a complainant's claim, assertions about the facts made by the respondent in an effort to establish that the claim is not cognizable under the Act, are not to be considered. Alvey; Olson v. Lilly Research Laboratories (LIRC, June 25, 1992). This is because in a process in which a complainant's assertions are assumed to be factually true for purpose of analyzing the legal viability of the complainant's claim, contrary factual assertions by the respondent are simply not relevant.

(3)( Back ) Pursuant to the rules of the Equal Rights Division, the defense of statute of limitations will not be considered waived unless a respondent fails to raise that defense in an Answer to the complaint. Wis. Admin. Code DWD 218.12(2). A respondent is not required to file an Answer until there has been a determination that probable cause exists and a Notice of Hearing on the merits is issued. Wis. Admin. Code DWD 218.12(1). In this case, no obligation to file an Answer to the complaint has yet arisen because there has been no determination of probable cause and no notice of hearing on the merits.

 


uploaded 2006/02/13