Wis.LIRC ER Decision: Wolfe, Arlen - August 21, 2008 - Procedure - statute of limitations, untimely complaint - Complainant never disputed Respondent assertion as to complainant's last day of work, which made complaint untimely - after dismissal of complauint, Complainant first made contrary assertion that last day of work was later, making complaint timely - although "troubled" by inconsistency, commission concludes that due process requires allowing complainant an opportunity to prove at hearing that his last day of work was when he now claims it was

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

ARLEN WOLFE, Complainant

LINDGREN REINFORCED ENCLOSURES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200700108

In a decision issued on July 31, 2008, the commission affirmed the administrative law judge's dismissal of the complainant's harassment charge for failure to comply with the 300-day statute of limitations.

On August 13, 2008, the complainant filed a request for reconsideration of this decision.

The respondent has consistently asserted that the complainant's last day of work and, accordingly, last day he could have been harassed by the respondent, was November 30, 2005, and that the personnel file it maintained for the complainant reflects this. Throughout these proceedings, including the investigation, appeal of the preliminary determination to the administrative law judge (ALJ), and appeal of the ALJ's decision to the commission, the complainant did not challenge this assertion. The decisions issued at each of these stages were based upon the written submissions of the parties, not a hearing record. This was appropriate given that the material facts appeared during those stages, based upon the submissions of the parties, to be essentially undisputed.

However, in his request for reconsideration, the complainant asserts for the first time that his "last day of full work was December 14, 2005, and I came in on the morning of December 15, 2005 and told Dave Geiger Sr. that I had found a different job and was quitting...."

December 14, 2005, was within the actionable period here, i.e., December 1, 2005, through September 27, 2006.

Wisconsin Statutes § 111.39(5)(c) states as follows:

On motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence. The commission may on its own motion, for reasons it deems sufficient, set aside any final decision of the commission within one year from the date thereof upon grounds of mistake or newly discovered evidence, and remand the case to the department for further proceedings.

It is troubling that the complainant has waited until now to challenge the respondent's representation and records as to his dates of employment. The commission believes, however, that due process considerations require that the complainant be provided an opportunity to prove at hearing that he worked for the respondent, and was present at the respondent's work site, on or after December 1, 2005, the first day of the actionable period.

As a result, the commission is setting aside its decision and, pursuant to Wis. Stat. § 111.39(5)(c), remanding this matter to the department for further proceedings.

DECISION

The complainant's request for reconsideration is granted. The commission's July 31, 2008, decision is set aside. This matter is remanded to the department for further proceedings consistent with this decision.

Dated and mailed August 21, 2008
wolfear2 . rsd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Thomas O. McCarthy

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