JENNIFER L. DRABEK, Complainant
MAJOR INDUSTRIES, 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 materials which were in the record before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own, except that it makes the following modification:
In paragraph 7 of the ALJ's "Chronology Of Events," delete "August 31, 2001" and substitute therefor "August 31, 2007."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and Mailed June 9, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The complainant was an office assistant with the respondent, a manufacturing company. She filed a complaint alleging that the respondent discriminated against her because of pregnancy or maternity by not recalling her to work from a layoff. An ALJ issued a decision affirming dismissal of the complaint on the grounds that it was not filed within the WFEA's 300-day statute of limitations. The complainant petitioned for review.
Facts (1) - The complainant last worked for respondent in May, 2007, after which she was off work due to ankle surgery and recovery. In mid-June, 2007, while she was still off work for medical reasons, she was told that she was being temporarily laid off due to the respondent's economic problems. In late Summer 2007, at which time she had still not been recalled to work, she notified the respondent that she was pregnant. She gave birth to her child on April 14, 2008; she had still not been recalled at that time. The complainant then had a number of contacts with the respondent in Spring 2008 about returning to work after the birth of her child. In a phone contact in May 2008 she learned that the respondent had hired someone to fill her office assistant position. She was initially told and believed that this person was hired as a temp to fill the position only until she could return. She initially requested to be allowed to return to work 12 weeks after the birth of her child (which would have resulted in a return date of July 7), and she then requested to be allowed to return on July 21. However, by some time in June the complainant learned from the respondent that it was going to keep the replacement employee in her old position permanently, and that she would not be returned to her old job. She was in fact never recalled or re-employed by the respondent. The complainant had a number of further contacts with the respondent over the following months about the possibility of her returning to employment with the respondent. After a number of contacts in April 2009, the complainant filed a complaint on June 1, 2009, alleging that the respondent had discriminated against her because of her pregnancy or maternity.
Timeliness of the complaint -- The statute of limitations for filing discrimination complaints under the Wisconsin Fair Employment Act is set forth in Wis. Stat. § 111.39(1) and provides as follows:
The department may receive and investigate a complaint charging discrimination...in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination...occurred....
The critical date for statute of limitations purposes is the 300th day prior to the date of filing of the complaint. As noted above, the complainant filed her complaint alleging pregnancy/maternity leave discrimination, on June 1, 2009. The 300th day prior to that date, was August 5, 2008. If the 300-day statute of limitations period began to run before August 5, 2008, then it expired before the complaint was filed, and the complaint is untimely.
As the ALJ correctly noted, the general rule is that the 300-day statute of limitations begins to run when the employee is informed of the particular employment action that is at issue in the case. In some situations, though, the commencement of the statute of limitations period can be considered to be postponed to the date on which the employee discovers sufficient information to support a claim of discrimination:
The discovery rule is read into the statute of limitations and postpones the beginning of the limitations period from the date the complainant is wronged to the date when the complainant discovers he or she has been injured. Lange v. Federal Express (LIRC, 02/22/93). See generally, Cada v. Baxter Health Care Corp., 920 F.2d 446 (7th Cir. 1990); Hansen v. A. H. Robbins, 113 Wis. 2d 550, 335 N.W.2d 578 (1983). The limitations period does not begin to run until the facts that would support a charge of discrimination were apparent or should have been apparent to a person with a reasonably prudent regard for his or her rights. Reeb v. Economic Opportunity Atlanta, 516 F.2d 924 (5th Cir. 1975); Washington v. United Water Services (LIRC, 08/15/03); Oehlke v. Moore-O-Matic (LIRC, 07/26/88); Lange, supra.
Williams v. Four Points Sheraton Hotel (LIRC, March 21, 2008). The ALJ decided that the complainant knew before the end of July, 2008 that she was not going to be recalled or reemployed and that there was reason to suspect that this involved discrimination. The ALJ concluded that, applying the "discovery" rule, the complainant had enough information at her disposal before the end of July, 2008 to support a claim of discrimination based on pregnancy or maternity. The commission agrees.
In 2007 and continuing into 2008, the complainant knew that she was on layoff from her office assistant position for economic reasons. She also knew that the respondent was fully aware of the fact that she had been pregnant and had given birth to a child in mid-April 2008. According to the complainant, shortly after her child was born, the respondent contacted her and asked her if she was interested in returning to work and, if so, when she would be able to return. The complainant knew that she told the respondent, that she was interested in returning but wanted to be on maternity leave for 12 weeks after the birth of her child and could return to work from maternity leave as of July 21, 2008. As of the beginning of May, 2008, the complainant believed that the respondent was holding her office assistant position for her and would recall her to that position when she was available to return to work in July, 2008 upon the end of her requested maternity leave.
However, the complainant then learned, in May, 2008, that the respondent had hired someone to do her old office assistant job -- and by some time in June, 2008 she was informed that this person had been hired on a permanent basis. And although the complainant was also told that "maybe" fill-in work in other areas could be found for her, this did not happen. The 12th week after the birth of her child passed, and then her requested return-to-work date of July 21 passed, and the complainant was still not re-employed by the respondent in any capacity.
The commission believes that by July 21, 2008, given the facts of which the complainant was aware, it would have been apparent to a person with a reasonably prudent regard for her rights, that the respondent had decided not to recall or re-employ the complainant, and that this might have been because of her pregnancy and/or maternity leave. The statute of limitations must thus be considered to have begun to run at that point. Because the complaint was then not filed until June 1, 2009, more than 300 days later, it was untimely.
For all the foregoing reasons, the commission agrees with and affirms the decision of the ALJ.
NOTE: At the close of its brief to LIRC, respondent requested an award of attorneys fees and costs pursuant to Wis. Stat. § 227.483, "Costs Upon Frivolous Claims."
The respondent never raised this claim under § 227.483 when this case was before the ALJ, and the ALJ did not address that issue in her decision. LIRC has previously indicated that considers it implicit in the language of § 227.483 that a party must request such a finding prior to the end of the proceedings before the hearing examiner, and that a party who seeks a ruling on a request under § 227.483 must necessarily make such a request before the ALJ issues his or her final findings and order in the case. Henderson v. Dept. of Corrections (LIRC, March 19, 2009). In such circumstances, and only in such circumstances, can LIRC then review the ALJ's ruling on such a request. Thus, the scope of the issues arising under § 227.483 in any particular case before LIRC will be defined by the scope of the argument the party made to the ALJ when presenting the request to them. LIRC cannot act on a request under § 227.483 made for the first time before LIRC. Kutschenreuter et ano. v. Roberts Trucking (LIRC, April 21, 2011).
Furthermore, the respondent provides absolutely no argument in support of its request. Indeed, it does not even actually assert that either of the grounds stated in subs.(3) (a) and (b) of the statute exist; it merely quotes part of the statute, with some underlining.
For these reasons, LIRC declines to take any action on the respondent's request for an award of attorneys fees and costs under § 227.483.
cc:
Attorney Sara J. Ackermann
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