DEBRA JEANNE KARNS, Complainant
MADISON NEWSPAPERS 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 conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed May 31, 2007
karnsde . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
Debra Karns petitions for a review of the ALJ's decision, which found no probable cause to believe the respondent violated the WFEA by discriminating against her in her terms and conditions of employment or termination of employment because of her sex, and no probable cause to believe the respondent violated the Act by discriminating against her because she opposed a discriminatory practice under the Act or by discharging her because she opposed a discriminatory practice under the Act.
The respondent Madison Newspapers publishes two daily newspapers, the Wisconsin State Journal and the Capital Times. There are two Wisconsin State Journal district managers and one Capital Times district manager at each of four warehouse distribution centers. The duties of a district manager include providing supervision and guidance to the newspaper carriers, (1) overseeing operations at the distribution centers, running a route list by using a computer to pull up a list of a carrier's subscribers and providing "backup carrier coverage for other district managers in event of illness or accident and while 'on-duty District Manager.' "
The three district managers had alternating work schedules for Sundays and holidays. On the other days of the week, the Wisconsin State Journal district managers were scheduled to work but not required to be at the warehouse.
The respondent also employs a coordinator at each warehouse, whose primary task involves preparing the newspapers for delivery for the district managers' carriers. Until sometime in August 2002, R.B. Robinson was the coordinator at the Wright Street warehouse. After August 2002, Mary Moubry became the coordinator at the Wright Street warehouse.
Karns, a female, was a district manager at the respondent's Wright Street warehouse. In July 2002, Karns, who had been a district manager for the Capital Times, became a district manager for the Wisconsin State Journal. Karns' hours of work were from 3 a.m. to 11 a.m. Del Grimsled, a male, was the other Wisconsin State Journal district manager at the Wright Street warehouse. The respondent employed two males as Wisconsin State Journal district managers at each of its other three warehouses. Because Grimsled did not finish his job with the Milwaukee Journal Sentinel until anywhere from 3 a.m. to 5 a.m., he was not available to work during the early morning hours for the respondent. However, in Grimsled's absence his wife, who was a Wisconsin State Journal carrier, would perform Grimsled's duties of expediting (preparing newspapers for delivery by the carriers) and running route lists.
Karns asserts on appeal that her complaint of discrimination has nothing to do with retaliation, discrimination against her because she opposed a discriminatory practice or the respondent discharging her because she opposed a discriminatory practice under the Act. Karns asserts that her complaint is exclusively about discrimination regarding her terms and conditions of employment on the basis of her sex because unlike the operations at the other three warehouses, Grimsled was not available to "share" in the responsibilities of the district manager and Moubry was refusing to run route lists. Karns asserts this caused additional work for her2(2) but that the respondent did nothing about it. Karns complained about this situation in correspondence to management on three occasions, the last time in a January 2, 2004 e-mail. Shortly thereafter in January 2004, Phil Stoddard, the respondent's director of circulation, telephoned Karns and told her to stop the complaining or he would stop the complaining for her. Karns viewed Stoddard's phone call as threatening so she then went to Brent Cochems, who was her supervisor at the time in January 2004, and told him that if Grimsled wasn't going to come in it was imperative that Moubry run route lists for her.
Subsequently, on March 12, 2004, Karns completed a "Leave of Absence/Short Term Disability Form" for a medical leave, which she stated was to begin on March 15 and end on May 23, 2004.
While Karns was out on medical leave, Stoddard gave Grimsled an ultimatum that he choose between working for the Milwaukee Journal Sentinel or the respondent, and Grimsled chose to quit his employment with the respondent. Grimsled's last day of work was Friday, April 30, 2004.
On May 18, 2004, Karns sent a fax to Lauren Petranech in the respondent's human resources office, in which she stated she would be unable to return to work at the end of her Family/Medical Leave due to the continuation of her serious health condition. Karns stated that "Dr. Dan Malone, a leading specialist in the field of Chronic Fatigue Syndrome, has confirmed this diagnosis and is aiding in the treatment."
In August, while Karns was out on a medical leave, the respondent sent a letter to Karns notifying her of the termination of her employment effective on August 10, 2004.
Karns initially filed a discrimination complaint with the Division on December 15, 2004. The Wisconsin Fair Employment Act requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). The 300th day before December 15, 2004, is February 19, 2004.
Karns' complaint sets forth the following allegations: 1) That she was treated differently than the other male district managers because in every warehouse except the Wright Street warehouse the district managers shared the responsibility of running the warehouse, being available for coverage of the other district manager in the event of illness, vacation or other emergency, and the coordinator ran the route lists so the district manager did not have to come in to work every day; 2) that Mary Moubry, whose job was to run route lists, refused to run these lists, and when she brought this to the attention of Stoddard (apparently some time after August 2002 but before January 2004), he told her Moubry did not have to run the lists; 3) that she was downgraded in a mid-2003 performance review because her complaint level increased during the months of December 2002 and January 2003 while out on a medical leave when another individual should have been covering for her; 4) that she took a Family and Medical Leave in December 2003 for surgery on her vocal cords to remove a cyst and instead of making Grimsled available in the warehouse, the respondent called her back on January 14, 2004, five days before her doctor said she should return on January 19; 5) that in three written requests to management she asked that management address the problem of Grimsled not assisting in the warehouse or doing his assigned duties and after the third request made in a January 2, 2004 memo, Stoddard informed her (in January 2004) to stop complaining or he would stop the complaining for her; 6) that in January 2004 she brought to the attention of Lori Becker in Human Resources that Grimled's practice of having his wife perform his district manager duties to Human Resources was against company rules and was informed that the rules did not apply to Grimsled because he did not punch a clock, but then when she asked if she could bring someone in to help her Becker responded that she was so angry with her she (Becker) had to leave the room; 7) that her health continued to deteriorate all the while working under these conditions, ultimately forcing her to take off work for health reasons on March 15, 2004, and while out for the medical leave in May 2004 the respondent terminated the employment of her daughter and son-in-law, who were carriers for the Wisconsin State Journal, in retaliation for reporting discriminatory practices at work to management; and 8) that after she took off from work on March 15, 2004, the respondent changed its short term disability policy from allowing an employee to have off 180 consecutive days for a medical leave to allowing only a rolling 180 days off in a 12 month period, and terminated her employment on August 10, 2004.
As the ALJ notes in her Memorandum Opinion, the majority of the allegations regarding Karns' terms and conditions of employment that she claims were discriminatory are untimely. These include the incidents cited as items 2 through 6 above because these alleged incidents all occurred before February 19, 2004. Karns, citing Cada v. Baxter Health Care Corp., 920 F.2d 446 (7th Cir. 1990), however, argues that the discovery rule postpones the beginning of the statute of limitations period from the date when the plaintiff is wronged to the date when she discovered she has been injured. Further, Karns argues that it wasn't until her termination that she realized she had been discriminated against due to her gender. While it is true that the discovery rule functions to delay the initial running of the statute of limitations period, it does so only until facts that would support a charge of discrimination are apparent or should have been apparent to a person with a reasonably prudent regard for his or her rights. See, e.g., Washington v. United Water Services (LIRC, 08/15/03); Lange v. Federal Express (LIRC, 02/22/93), citing Reeb v. Economic Opportunity Atlanta, 516 F.2d 924 (5th Cir. 1975). Karns' assertion that it wasn't until her termination that she realized she had been discriminated against due to her gender fails. Karns admits that when she initially started working for the Wisconsin State Journal that Tim Fee, her supervisor at the time, told her Grimsled was not available to work in the early morning. T. 49. She admits that she would see the other district managers (all males) at the respondent's main office on Fish Hatchery Road (where district managers would go to pick up product samples and bundle labels), or at one of the other warehouses when she went to get route lists because she couldn't get them at her warehouse. T. 99. Further, she had complained about Grimsled's unavailability in correspondence to Stoddard on three different occasions during the period from March 2003 to January 2004. The facts supporting Karns' basis for her claim of sex discrimination with respect to her terms and conditions of employment were known to her more than 300 days before she filed her discrimination complaint.
While there is the period of time within the statute of limitations period (from February 19, 2004, until Karns took a Family and Medical Leave beginning on March 15, 2004), during which Grimsled continued to be unavailable to work during the early morning hours for the respondent and Moubry presumably continued to refuse to run route lists, Karns has failed to establish reason to believe that the respondent discriminated against her in her terms and conditions of employment during this period because of her sex. For example, Karns testified that because Moubry refused to run route lists Grimsled's wife would run the route lists needed for Grimsled's district. T. 63. Thus, not only did Moubry not run route lists for Karns, Moubry also did not run them for Grimsled, who is a male. In addition, what the evidence shows is that there is a working relationship agreement among district managers to cover each others job duties. No evidence was presented to establish that "sharing" of duties was a job requirement of the district managers. Indeed, as the complainant's witness, Gary Quamme, testified on cross-examination: "I don't know if it's [covering another district manager's district] a requirement. I do it because he covers mine, I cover his when we go on vacation....Yes [it is kind of a working relationship]." T. pp. 18-19.
Despite Karns' assertion on appeal, her discrimination complaint does include a claim of retaliation. Karns' complaint alleges that while out on medical leave in May 2004, the respondent retaliated against her for reporting discriminatory practices by terminating the employment of her daughter (Jessica Bingham) and son-in-law (Beau Bingham), who were carriers for the Wisconsin State Journal. However, in order to violate the WFEA's prohibition against retaliation, an employer's action or decision must have been made because of an actual, subjective belief that the person retaliated against was raising some kind of claim that discrimination was occurring, or was otherwise engaging in protected activity. See, for example, Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00); Norton v. City of Kenosha (LIRC, 03/16/94); Matthew v. Bassett Bedding (LIRC, 10/27/03); Cangelosi v. Robert E. Larson & Associates (LIRC, 11/09/90). Karns failed to produce any evidence that she had ever complained to management that she was being treated differently because of her sex.
Finally, Karns has failed to establish reason to believe the respondent terminated her employment because of her sex. It should first be noted that Karns claims she was "constructively discharged". However, to find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. Cole v. Northland College (LIRC, 03/19/01), citing Waedekin v. Marquette University (LIRC, 03/05/91); Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc., (LIRC, 01/10/92). Karns admits that she did not resign but had received a letter from the respondent telling her that she was terminated. T. 106-107. Furthermore, Karns has failed to present evidence which establishes reason to believe that the respondent discriminated against her because of her sex with respect to her working conditions.
Karns' complaint allegation is that after she took off from work for a medical leave on March 15, 2004, the respondent changed its short term disability policy from allowing an employee to have off 180 consecutive days for a medical leave to allowing only a rolling 180 days off in a 12 month period, and terminated her employment on August 10, 2004. What Karns has failed to establish, however, is how or why this amounted to evidence that the respondent terminated her employment because of her sex.
NOTE: For reasons unknown, the exhibits received at the hearing in this matter became separated from the case file. However, except for Complainant's Exhibit 8, the parties have included copies of the exhibits (some by Karns, some by counsel for the respondent) entered into evidence with their briefs and thus the commission had this documentary evidence when reviewing the case. Further, according to the transcript, Complainant's Exhibit 8 represented Karns' complete March 2003 review, but the specific document of interest contained in this exhibit was a document marked as Complainant's Exhibit 4. T. 54. Karns has included a copy of Complainant's Exhibit 4 with her reply brief.
cc: Attorney Mark P. Tilkens
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