ALFRED FRANKLIN, Complainant

D & S MANUFACTURING CO INC, Respondent

An administrative law judge (ALJ) 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 evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

Paragraph 15 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"In a conversation with Hein on or about June 7 of 2002, the Complainant was told by Hein that he was terminated."

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed July 31, 2006
frankal . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Alfred Franklin alleges that the respondent discriminated against him on the basis of disability in violation of the Wisconsin Fair Employment Act.

Wisconsin Statute § 111.39(1) of the WFEA requires that a discrimination complaint be filed with the department no more than 300 days after the alleged discrimination occurred. The date on which an act of discrimination occurs is the date an employee is notified of an allegedly discriminatory act, not when the effects of the action are most painfully felt. Hilmes v. DILHR, 147 Wis. 2d 48, 50, 433 N.W.2d 251 (Ct. App. 1988). The 300-day statute of limitations period begins to run when the facts that would support a charge or claim of discrimination should be apparent to a person with a reasonably prudent regard for his or her rights. Oehlke v. Moore-O-Matic (LIRC, 07/26/88). See also, Washington v. United Water Service (LIRC, 08/15/03) and Lange v. Federal Express (LIRC, 02/22/93).

Mr. Franklin first filed a complaint charging the respondent with disability discrimination with the department on April 9, 2003. This means that acts of alleged discrimination in this regard at any time prior to June 13, 2002, are outside of the 300-day statute of limitations period.

The record indicates that Mr. Franklin's claims of disability discrimination must be dismissed because his complaint regarding such claims was filed with the department more than 300 days after the alleged discrimination occurred.

On May 6, 2002, Mr. Franklin presented Sherrie Hein, the respondent's HR Manager, with a note from a physician stating he could not work from April 30, 2002, to May 14, 2002, because of back pain. A chiropractor had previously restricted Mr. Franklin from working from April 27, 2002, to May 4, 2002, because of his back condition. Mr. Franklin testified that within a day or two of May 6, 2002, the date when he discussed his back condition with Ms. Hein, that Ms. Hein informed him via the telephone that he was laid off work. Mr. Franklin testified that he did not believe there were other people laid off at that time and that, "I knew that I was not being laid off due to lack of work." (Summary of Proceedings, p. 6.) Mr. Franklin subsequently received a letter from Ms. Hein dated May 6, 2002, stating that he was being placed on unconditional layoff effective May 15, 2002. An unconditional layoff is a layoff in which the respondent did not intend to call the employee back to work although it still had the option to do so because this was not a termination of employment. Armed with these facts, a person with a reasonably prudent regard for his rights should have known these facts would support a charge of disability discrimination.

By letter dated June 7, 2002, Ms. Hein notified Mr. Franklin that the respondent had determined he would not be recalled to employment at the respondent and that the primary reason was his excessive absenteeism since his October 1, 2001 start date. This letter notified Mr. Franklin his employment was terminated effective June 15, 2002. With respect to his termination, Mr. Franklin acknowledged that when he started to work for the respondent he received the respondent's Employee Handbook and that based on the policies and procedures therein he understood that with regard to excessive absenteeism the respondent was required to give him a written reprimand for his first offense, then five days off work for his second offense and that he would not be discharged for excessive absenteeism until after his third offense. Mr. Franklin testified that he was never given a written reprimand for absenteeism and never received five days off for excessive absenteeism. (Summary of Proceedings, p. 7.) While a person with a reasonably prudent regard for his rights should have known that these were facts supporting a charge of disability discrimination with respect to termination of employment, Mr. Franklin argues that he did not learn of the termination of his employment until June 14, 2002.

The evidence does not support Mr. Franklin's assertion that he first learned of his termination on June 14, 2002. When initially questioned about when he received notice of the June 7, 2002 termination letter (which was on cross-examination), Mr. Franklin, who was living in Black River Falls where the respondent was located but used his brother's address in DeForest as his mailing address, testified that his best estimate was that his brother got the June 7 letter on June 9th or 10th and called him immediately. (Summary of Proceedings, p. 10.) In subsequent testimony on redirect examination and further cross-examination, however, Mr. Franklin attempted to suggest that he may not have received notice of his termination until as late as June 14th. Mr. Franklin testified, "Sometimes it would be two days and sometimes it would be a week (before he learned of mail sent to his brother's address). The mail system is not that exact." (Summary of Proceedings, p. 11.) "It would take six or seven days for the letter to get down to DeForest and sometimes it took two or three days." (Summary of Proceedings, p. 12.) However, Mr. Franklin's attempt to change his testimony about when he learned of his termination fails. First of all, the evidence shows that the respondent also sent a letter to Mr. Franklin identifying his COBRA rights on the same date that the June 7, 2002 termination letter was sent out. Mr. Franklin testified that his best estimate was that his brother got the COBRA letter on June 9th or 10th and called him immediately. As noted by the respondent, there is no reasonable inference other than that Mr. Franklin received notice of his termination at this same time. Furthermore, during testimony given on redirect and further cross-examination Mr. Franklin effectively admitted that he had known about the respondent's termination of his employment six or seven days prior to June 14th. On redirect Mr. Franklin testified, "It was probably a week to six days after I got notice of my termination before I actually received the written notice of it....I had had a conversation with Ms. Hein, and she said that they had sent me another notice of termination. I was forewarned that there was a letter coming. I did not receive the actual written notice until six or seven days later." (Summary of Proceedings, p. 11.)(Emphasis added.) Also, under further cross-examination Mr. Franklin testified that "[Ms. Hein] told me over the telephone, prior to me getting that letter, that I was terminated and that I would not be coming back to D & S Manufacturing. I do not know when I got the letter, but the letter was dated June 7, 2002....My conversation with Ms. Hein was before the date of the termination letter." (Summary of Proceedings, p. 12.) And while Ms. Hein testified that she did not recall having a conversation with Mr. Franklin prior to sending the June 7th letter, this does not diminish Mr. Franklin's effective admission to having received notice of his termination six or seven days prior to June 14th, as Ms. Hein indicated she would only have informed Mr. Franklin that he was terminated on June 7, the day she authored the termination letter.

(In paragraph 15 of the findings the ALJ states that "In a conversation with Hein prior to June 7 of 2002, the Complainant was told by Hein that he was terminated." However, as indicated in the paragraph immediately above, the testimony indicates that this conversation that Mr. Franklin had with Ms. Hein took place on or about June 7. For this reason, the commission has modified paragraph 15 of the ALJ's findings of fact.)

With respect to his termination, however, Mr. Franklin argues that Ms. Hein's "cursory statement is not sufficient to have informed Mr. Franklin that he may have been discriminated against so as to commence the 300 day time limit." The evidence is to the contrary, however, considering all that had occurred and what was known by Mr. Franklin. Specifically, that Mr. Franklin had been notified he was going to be laid off a day or two after his discussion with Ms. Hein on May 6, 2002, regarding his inability to work due to his back condition, that Mr. Franklin received a letter from the respondent dated May 6, 2002, stating that he was placed on unconditional layoff, that Mr. Franklin knew this layoff had not been due to lack of work, that Franklin knew that under the respondent's policies and procedures the respondent was required to give him a written reprimand for his first offense for excessive absenteeism, five days off for a second offense for excessive absenteeism, and that he would not be discharged for excessive absenteeism until after a third offense for excessive absenteeism but he had never received a written reprimand or five days off for excessive absenteeism. It should have been apparent to a person with a reasonably prudent regard for his rights to have concluded that these facts would support a charge or claim of disability discrimination with respect to termination of employment.

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc:
Attorney Michael J. Happe
Attorney William Smoler

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