MARCIA LANGE, Complainant
FEDERAL EXPRESS, Respondent
An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 29, 1991, dismissing the Complainant's complaint as untimely. Complainant filed a timely petition for review of the ALJ's decision, and both parties subsequently submitted written argument to the commission.
Based upon a review of the evidence in its entirety, the Labor and Industry Review Commission hereby issues the following:
1. Complainant, a female, was hired at Respondent's Appleton, Wisconsin station as a part-time courier in December 1983, and later became a full-time courier in July 1984. As a full-time courier Complainant would deliver freight to various stops in the morning, and then during the afternoon she would make additional stops for pickup of freight to be delivered to another location.
2. Beginning in 1984, Complainant encountered a number of medical conditions necessitating leaves of absence from work. First, she had a tubular pregnancy. Next, she incurred a shoulder injury and then later she sustained a work-related back injury. Finally, beginning in July 1987, Complainant took a leave of absence due to a knee injury. She did not return to work from her knee injury until March 1988. The Complainant's return to work from her knee injury is the subject of her complaint herein.
3. The Respondent's Personnel Policy and Procedure Manual states that positions for employes on medical leave will remain available for a maximum of three months; that an employe who returns from a leave exceeding three months and finds his former position unavailable will be considered displaced. Displaced employes are defined as those employes who have been removed from their "assigned positions" through no fault of their own, e.g., through an extended medical leave of absence. Displaced employes who meet or exceed the position requirements for a lateral transfer, downbid or demotion are to be offered the position. The displaced employe policy states that it is Respondent's policy to make every effort to secure placement of displaced employes within the company.
4. The Respondent also has a modified duty program for full-time employes who are temporarily unable to perform the full range of their regular job duties and have been released by their physician to return to work in a limited capacity. Employes are permitted to work under this program only if management "identifies legitimate duties which comply with the limitations imposed by the physician. . . . "
5. Karen Leinen was the senior manager at the Appleton station at the time of Complainant's leave of absence for her knee injury. Complainant reported to Leinen, as well as to operations managers at the Appleton station. Steve Brandmeyer was one of such operations managers until July 1989, when he became the acting senior manager. Leinen accepted a transfer to Denver. Brandmeyer became the senior manager in October 1989.
6. On October 12, 1987, after Complainant had been on medical leave for her knee for about 90 days, Leinen wrote on Complainant's employe calendar (mechanical record of employe's leave time, exemplary/disciplinary actions, etc.) to reflect a discussion had with Complainant, stating that " . . . (a)lso advised Marcia that once she began long-term disability, I was able to fill her position and once she returned to work she must accept the first available position within the courier classification regardless of shift or status or her refusal to accept that position would be considered her voluntary resignation." (Comp. Ex. 10-S) Complainant began her longterm disability leave in November 1988. Apparently sometime after that, Leinen filled Complainant's position of full-time courier with another person.
7. Prior to Complainant's return to work in March 1988, she and Leinen had several conversations by phone. According to Complainant, Leinen told her that she "could not come back to work unless I was 100 percent and released from my doctor with 100 percent." Leinen could not recall this conversation. Leinen testified that whether or not Complainant could return to work was dependent upon whether or not there was available work outside the courier classification. Leinen stated that there was no work available to offer Complainant under the modified duty program. Leinen testified that her longstanding practice was to bring an employe back under the modified duty program. Both Complainant and Leinen agree that Complainant had previously worked under the modified duty program in December 1986. At that time Complainant worked as an operations agent.
8. Complainant was released to return to work without restriction effective March 25, 1988. She returned to work on March 29, 1988. Complainant testified that when she returned to work she was offered the position of part-time cargo handler and told by Leinen that this was the only position available at the Appleton station. Leinen testified that the part-time cargo position was the only position available at the Appleton station, but there was a full-time courier position available in Green Bay which was offered to Complainant. Leinen stated that she and Complainant had a general discussion about Complainant's general wellness, her ability to handle the duties of the courier position and the fact that there were no courier positions available at the Appleton station either just before or right after Complainant's release to return to work. According to Leinen, the Green Bay position was offered to Complainant but given the need for an additional 30-40 minutes in travel time to get to Green Bay, plus concerns by the Complainant herself that the duties of a courier might cause further injury to her knee, Complainant decided to accept the cargo handler position. Complainant resided in Omro, Wisconsin, which is south of Appleton. Green Bay, of course, is north of Appleton. Complainant testified that she could not recall Leinen offering her the courier position in Green Bay.
9. Leinen testified that because of the offer of the Green Bay job to Complainant, Respondent's displaced people policy did not apply to her. Leinen stated that it did not apply because under such policy what Respondent was obligated to provide Complainant was a courier position within a reasonable amount of travel time from where she used to work, i.e., 50 miles, and only if there was nothing available within that parameter would Complainant have been displaced.
10. Complainant signed a letter dated April 13, 1988, from Respondent outlining the terms and conditions of the cargo handler position. Complainant was earning $12.83 per hour as a full-time courier when she began the leave for her knee injury. The part-time cargo handler position had a lower rate of pay ($9.28 per hour) and provided fewer benefits. Also, the cargo handler position was in a different job classification than the courier classification. As a cargo handler, Complainant was responsible for assisting couriers unload the freight picked up by the couriers, loading freight into containers which were to be placed on airplanes, cleaning the hanger and washing trucks. In this position Complainant no longer had a delivery route.
11. Complainant understood that Respondent's policy was that one must stay in any position taken for six months. According to Complainant, she had been told this by Leinen. Leinen testified that if there was no statement that the Complainant must remain in the job for six months in the letter outlining the terms and conditions of a job offer, she never told Complainant that she had to remain in the cargo handler position for six months before she could apply for another position. Complainant's April 13, 1988 letter does not state that Complainant had to remain in the cargo handler position for six months.
12. In October 1988, after working six months as a cargo handler, Complainant became a customer service agent (CSA). In this position Complainant worked at a drive-up location where customers dropped off freight weighing up to 75 pounds. According to Complainant, Leinen had suggested that she take this position because it was a good career move. Complainant also testified that she was told that if she could pass a CSA test before attending training for this position she would be eligible for a higher rate of pay. Complainant never took this test. Complainant apparently blames Leinen for her failure to take the test before she began training. Complainant was paid only $6.90 per hour as a CSA due to her failure to take the test. According to Leinen, she did not suggest that Complainant take the CSA position, this was the Complainant's idea. Leinen also testified that all Complainant had to do was obtain a certain score on the test which would have allowed her to classify Complainant as a senior service agent, and thus, a big difference in pay, but Complainant never took the test. Leinen stated that she never hindered Complainant from taking the test, and in fact had encouraged Complainant to take it.
13. Beginning in May 1988 and continuing up until the Complainant filed her charge of discrimination in August 1990, the Respondent had posted notice of several courier position vacancies. These vacancies included positions in and around the Appleton area. In addition to possession of the skill and knowledge to perform the job, Respondent's procedure for selecting an applicant involves giving priority to those applicants who are full-time within the same job classification and then next to those who are part-time within the same job classification. The various job classifications at Respondent included ramp agent, courier, courier handler, cargo handler and CSA. Complainant testified that other than a part-time courier position which Respondent awarded to another female, she did, not apply for the various courier job vacancies because she was outside the courier classification and had no chance of getting those jobs.
14. Respondent did not impose any barriers on Ms. Lange's ability to obtain other jobs that were not imposed upon similarly situated males.
15. Complainant became a courier handler in September 1989. Although not completely sure, Complainant believed this had been a posted position which she had signed up for. Thereafter, in January 1991, she became a part-time courier, thereby once again returning to the courier classification.
16. James Smith, a male, returned to work on May 1, 1990 from a long-term leave involving a non-work-related back injury. Smith was released at that time to return to work with a 30 lb. lifting restriction. Smith had been a courier prior to the start of his leave of absence. At the time of Smith's release to return to work Respondent had a position available due to another employe leaving her job. Respondent permitted Smith to work in this position under its modified duty program. He was classified as an operations agent. Smith's classification as an operations agent was only a temporary classification and he thus did not lose his courier status while working under the modified duty program. Smith's lifting restriction was subsequently removed and on June 10, 1990 he was assigned to a full-time courier position called a swing driver. A shortage of couriers due to injuries and the fact that Respondent had entered its "prime vacation months" had created a need for additional couriers in June. In December 1990, Smith was assigned to a permanent full-time courier route.
17. On August 3, 1990, the Complainant filed a charge of discrimination against the Respondent. Her complaint can be summarized as alleging the following: (1) that upon her return to work from a leave of absence exceeding 90 days for a non-work-related knee injury she was not permitted to return to her courier position but was required to start out as a new employe at any open position at the bottom of the pay scale and as a part-time employe; (2) that although Respondent's Personnel and Procedure Manual states that an employe on sick leave for more than 90 days must be returned to his or her former position or be referred to a displaced people program permitting such individual to apply for any job for which he or she is qualified, she was not permitted to apply for positions which opened; and (3) that she had just recently learned that another male who had been on leave for a nonwork-related injury for more than 90 days and that upon his return to work Respondent created a new courier position and I returned him to his courier position.
18. Facts that would support a charge of discrimination did not become apparent to Complainant until June 1990. Accordingly, her complaint of discrimination filed herein is timely.
Based upon the above FINDINGS OF FACT, the commission issues the following:
1. The Respondent, Federal Express, is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The Complainant, Marcia Lange, is an employe of the Respondent.
3. Complainant's complaint of discrimination filed herein is timely.
4. The Complainant failed to establish by a preponderance of the evidence that the Respondent violated the Act by discriminating against her on the basis of her sex with respect to terms and conditions of employment.
5. The Complainant failed to establish by a preponderance of the evidence that the Respondent violated the Act by barring her from employment because of her sex.
Based upon the above CONCLUSIONS OF LAW, the Commission therefore issues the following:
That the complaint of Marcia Lange filed in this matter is dismissed.
Dated and mailed February 22, 1993
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
Although apparent from Complainant's charge of discrimination that she is only alleging discrimination on the basis of sex with respect to terms and conditions of employment (i.e., failure to be returned to her courier position after a leave of absence or referred to the displaced people program) and being barred from the opportunity to apply for various positions, the ALJ concluded that such charge included a claim of promotion discrimination and caused the Notice of Hearing to include such claim. (1) As the commission views this case, however, the issues presented are: (1) was the complaint timely filed?; (2) and, if so, (2) was the Complainant discriminated against because of her sex with respect to terms or conditions of employment, or barred from employment because of her sex?
TIMELINESS OF COMPLAINT
Section 111.39(1) of the Wisconsin Fair Employment Act (WFEA) requires that a complaint of discrimination be filed with the Department no more than 300 days after the alleged discrimination occurred. Title VII of the Civil Rights Act of 1964 likewise contains a limitations period within which a complaint must be filed. In Delaware State College v. Ricks, 449 U.S. 250, 24 FEP Cases 827 (1980), where the plaintiff was denied tenure on March 13, 1974, given a one-year terminal contract, and then filed his complaint of discrimination in April 1975, the court held that the filing limitations period commenced at the time the tenure decision was made and communicated to the plaintiff and therefore his complaint was untimely. The court noted that the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful. 24 FEP Cases at 830. Similar language was used by a Wisconsin court in Hilmes v. DILHR, 147 Wis. 2d 48, 52, 433 N.W.2d 251 (Ct. App. 1988), where the court was called upon to interpret sec. 111.39(1) of the WFEA.
As reason for dismissing Lange's complaint herein, the ALJ reasoned that because Federal Express "made known the decisions Ms. Lange alleges to be discriminatory long before October of 1989," her complaint is untimely and "(t)he fact that Federal Express's treatment of James Smith in 1990 made what had previously occurred painful to Ms. Lange does not affect the running of the 300-day statute of limitations under the facts presented."
The Commission finds that the ALJ erred. As explained by the court in Cada v. Baxter Health Care Corp., 920 F.2d 446, 54 FEP Cases 961 (7th Cir. 1990), the "discovery rule" is read into the statute of limitations. The discovery rule postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured. In Cada the court notes that the discovery rule is implicit in the holding of Ricks. This is consistent with Wisconsin's adoption of the discovery rule for all tort actions adopted in Hansen v. A. H. Robbins, 113 Wis. 2d 550, 335 N.W.2d 578 (1983).
Also, regarding the commencement of the limitations period, in Reeb v. Economic Opportunity Atlanta, 516 F.2d 924, 11 FEP Cases 235 (5th Cir. 1975), the court stated:
". . . The . . . period did not begin to run . . . until the facts that would support a charge of discrimination under Title VII were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff."
(11 FEP Cases at 241)
As noted by Complainant's counsel, the issue is thus when Complainant knew or reasonably could have known of the wrong that had been committed against her. Complainant points to her limited education and the fact that even if she fully understood the terms of Respondent's complicated displaced people policy, the most she could have known was that Respondent had not applied the policy properly in her case, and then argues that the earliest date on which she could have realized that she was treated differently than a similarly-situated male was when James Smith was returned to his position of courier following a medical leave of absence in June 1990. The Commission agrees. It was not until Complainant observed what had happened with Smith that facts would support a charge of alleged discrimination would have become apparent to her.
The Commission concludes that the evidence fails to establish that the Respondent discriminated against the Complainant on the basis of sex with respect to her terms and conditions of employment, or that she was barred from employment because of her sex.
Complainant began her medical leave of absence in July 1987 and was released to return to work without restriction on March 25, 1988. The Complainant was unable to return to her courier job that she held prior to her leave of absence because Respondent had filled that position, as it was able to do under its work rules. Respondent had the right to fill Complainant's position when her absence exceeded 90 days.
Regarding the displaced people policy, testimony by the Respondent showed that this policy never became applicable to Complainant. Leinen testified that only if nothing was available within the courier classification (regardless of shift or whether full or part-time) within a reasonable amount of travel time from where the individual used to work, i.e., 50 miles, would Complainant become a displaced person. In this regard, Leinen testified that Complainant was offered a full-time courier position in Green Bay. Green Bay is 31 miles from Appleton where Complainant had worked prior to her medical leave. Leinen further explained that no written letter exists showing that the Green Bay position was offered to Complainant because Respondent's practice was to prepare such letters only when it was known that an employe was accepting the offer. Leinen testified that when that was the case the employe would be required to sign the letter and return it to the employer as confirmation of acceptance of the job offer. Complainant's Exhibit #5 showing Complainant's acceptance of the cargo handler position after her medical leave tends to confirm LeinenIs testimony about Respondent's practice with respect to job offers.
Complainant's testimony regarding the Green Bay courier job offer included the following: that she was "not aware of" being offered that job, that she "did not recall" having a discussion with Leinen in March 1988 about a Green Bay courier position and outright denial of ever having been offered such job. The Commission believes that the Complainant was in fact offered the position and that she has simply forgotten it. Having read the Complainant's deposition and hearing testimony, this is certainly plausible. For example, at her deposition Complainant not only could not state the month or year when she began employment with Respondent, she could not state the decade. At the hearing Complainant had difficulty stating when she had injured her knee, and whether it was 1987 or 1988 that she had returned to work from her knee injury. She also had poor recollection of other events. There were also several changes in her testimony between the time of her deposition to her' hearing testimony. The most notable is that at her deposition Complainant was sure that her knee injury was not work-related, but at the hearing she backed off, stating that she was uncertain. Additionally, at Complainant's deposition she was asked how it was she had returned to work in the part-time cargo handler position, and part of her response was "my route was given to someone else and it was the only job that was available at Federal Express at the ATW (Appleton) station." (emphasis added) This language suggests that Complainant had knowledge about the availability of a job outside the Appleton station, i.e., the Green Bay courier job. Other evidence also indicates that the Complainant was not a displaced employe. Specifically, the Respondent's displaced people policy states that placement of such employes is to be handled by the division head. Leinen, who was not the division head, secured alternative employment as a cargo handler for Complainant after Complainant had lost her courier job.
In summation, considerable evidence exists to show that Complainant was never a displaced employe.
Further, there was no evidence to show the availability of a courier position at the Appleton station when Complainant sought a return to work. In an attempt to prove otherwise, Complainant cites Complainant's Exhibit #35 which shows.that on April 18, 1988, one Jon Hahnemann left a courier position to become a ramp agent. Further, in an effort to suggest that she was discriminated against on the basis of sex, Complainant notes Leinen's testimony that Leinen normally knew of job openings two to three weeks in advance and then argues that a male, Mark Kessler, was hired in May 1988 to fill the position, again citing Complainant's Exhibit #35. Complainant's argument fails. First, Complainant's Exhibit #35 does not show that Kessler filled a courier position in May 1988. What it does show, however, is that a female, Karen Rooyakkers, was made a courier on May 2, 1988. (3) In any case, it was on or about March 25, 1988, when Complainant was released by her physician to return to work, that Leinen made arrangements for Complainant to return to work. March 25 was more than three weeks prior to April 18, 1988. Complainant returned to work on March 29, 1988.
While Smith's courier job was also filled by another individual when he was out on medical leave for a non-work-related injury, Smith was never a displaced employe either. Smith was released to return to work on May 1, 1990 with a 30-lb. lifting restriction. At the same time, another individual at the Respondent, Janine Koski, who was employed as a CSA at a drive-thru location, was leaving her job and thereby created a job vacancy. Respondent therefore elected to permit Smith to work under its modified duty program. Smith was classified as an operations agent when working under the modified duty program. Since the work performed under the modified duty program constitutes only a temporary placement, the individual actually never loses their original classification. For this reason, Smith was never a displaced employe.
Regarding the CSA work that Smith performed under the modified duty program, it should be noted. that testimony at the hearing showed that the positions of courier, cargo handler and customer service agent required the ability to lift up to 75 pounds alone and up to 150 pounds with assistance, and that Respondent would not permit individuals to return to work in such positions unless they are able to perform 100 percent. of those duties. (TR 221) This fact is of some significance because included in Complainant's claim of. sex discrimination with respect to terms and conditions of employment is the argument that Leinen told her she "could not come back to work unless she was 100 percent and released from my doctor with 100 percent." In short, Complainant argues that she should have been allowed to return to work under the modified duty program as Smith had been.
The evidence fails to establish sex discrimination in this regard. First, Complainant's assertion as to what Leinen told her is undoubtedly in reference to returning to work as a courier. (In fact, Complainant's Exh. #3, an exhibit which Complainant herself sought to have admitted to prove that she had been told she had to be 100 percent but was rejected as hearsay, confirms this.) In any case, Smith was not allowed to return as a courier either. Secondly, Leinen had allowed Complainant to return to work in December 1986 under the modified duty program. Like Smith, Complainant was then classified as an operations agent and part of the duties she performed in that classification included accepting packages over the counter. (TR 347) This function was a task normally performed by CSAs. Thirdly, as previously noted, Respondent permits employes to work under the modified duty program only if management identifies legitimate duties which comply with the limitations imposed by the physician. Complainant has not only failed to specify exactly when it is she contends she could have returned with restrictions and what those restrictions would have been, she has also failed to establish that the Respondent had work available that would have met her restrictions. Finally, there is testimony by Leinen that. if there was work outside the Complainant's classification, it would have been offered to Complainant, as it was her longstanding practice to do this for employes.
This brings us to Complainant's claim that she was not permitted to apply for positions which opened at Respondent. Actually, Complainant makes this claim in association with her allegation that Respondent had failed to treat her as a displaced employe, but as shown above, Complainant never became a displaced employe as that term is defined by Respondent. In any event, the essence of the Complainant's claim here is that once she became a cargo handler, this took her out of the courier classification which made it next to impossible to again obtain a courier position since Respondent gave priority to those already in the courier classification while Smith was returned to his courier classification in June 1990.
There is no evidence, however, to show that Respondent's priority selection procedure was used in a discriminatory manner or that Smith had been accorded any special treatment. For example, the evidence shows that Joni Helphrey had obtained a courier position over other male applicants in July 1989. Further, the evidence showed that Complainant had applied and was selected (probably by Brandmeyer) to become a courier handler in September 1989, and that in March 1990, Complainant had been offered a full-time courier position but turned it down due to family considerations. James Smith, as previously noted, never lost his courier classification. Brandmeyer testified that at the time Smith was released to return to work without restriction, Respondent had a need for an additional swing driver courier position. In this regard, Brandmeyer testified that: (1) the prime vacation months for employes in Wisconsin are June to August; that between 1988 and 1990, the vacation time of the employes increased substantially due to the increased seniority of the workforce (employes get two weeks vacation after one year, three weeks vacation after five years, and four weeks after ten years; about 40-50 percent of the employes went over the five-year mark between 1988 and 1990); and (2) that between April 1990 and December 1990, the Respondent had nine different couriers out on disability leave. Further, there was testimony by Leinen that when Complainant returned to work in March 1988, there was no need for an additional swing driver as the work complement had less vacation time and the alarming number of courier disabilities that existed during 1990 were not prevalent during 1988. (TR 370-371)
With regard to employe disabilities, Complainant contends that Respondent's justification for hiring Smith as a swing driver is an after-the-fact rationale, asserting that those out on leave returned either before or in June and that there was only one instance of an individual being out from June until September 1990. However, the major problem with Complainant's argument here is that the Respondent could not know for sure when an employe would in fact actually return to work and therefore would have had to take necessary steps to insure that all its routes could be covered in June. Secondly, while the evidence shows that there were employes who did in fact return to work in June, the disabilities continued with several employes taking leaves of absence in September and October.
Finally, Complainant contends that since no couriers resigned, retired or were discharged from June 1990 through September 1991, vacation time could not have declined from the summer of 1990 through the summer of 1991, but no new swing driver or courier positions were created in 1991 for the purpose of filling vacations. Fully cognizant, however, that Respondent's justification for creating Smith's swing driver courier position included the fact that there were numerous disabilities, Complainant then went on to essentially argue that that could not justify Respondent's actions, citing five alleged instances of couriers on leave in 1991. This argument also fails. Complainant's Exhibit #35 shows that there were only three couriers on leave during 1991. Moreover, only one of these absences had occurred during the same time that Respondent experienced it prime vacation season. The Respondent's failure to employ additional swing drivers during 1991 therefore cannot be said to constitute evidence of sex discrimination as alleged by Complainant.
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(1)( Back ) In his decision, the ALJ finds that the events complained of were more than 300 days prior to the filing of the complaint, states as his sole conclusion of law that the complaint is untimely and dismisses the complaint for that reason, but nevertheless makes findings indicating that Complainant was not discriminated against with respect to terms and conditions of employment, or being barred from employment or denied promotions because of her sex.
(2)( Back ) The Respondent raised the timeliness issue in its Answer and again at the hearing.
(3)( Back ) Exhibit #35 shows Mark Kessler as having continuously been a courier since his hire on July 11, 1983. The only change shown on this exhibit for the year 1988 for Kessler occurred on "10/02/88." (It is not clear from the record as to what change had occurred on 10/02/88.) Complainant's Exhibit #6, identified as a compilation of job postings for the position of courier does show that a Mark Kessler was selected for a courier position in May 1988, but no actual job posting could ever be located by Respondent for this posting. Based on the limited information available, it could be that the May 1988 listing of Kessler's name was simply erroneous.