BAHRI BEGOLLI, Complainant

HOME DEPOT USA 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 August 11, 2011
begolba . rsd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review and supporting briefs the complainant argues that the purpose of the hearing was to decide whether discrimination occurred in the hiring process, yet the first and only objective of the administrative law judge was to prove that a decision had been delivered, and not how that decision was reached. The complainant's argument fails. While the case was noticed for hearing on the question of whether the respondent refused to hire the complainant because of national origin/ancestry, the administrative law judge was obligated to address the timeliness issue before proceeding to the merits of the case. The Wisconsin Fair Employment Act requires that a complaint be filed no more than 300 days after the alleged discrimination, and the law requires that the department determine whether the complaint was filed within the time period set forth in the statute if that issue is raised in writing by the respondent. See, Wis. Stat. § 111.39(1); Wis. Admin. Code § DWD 219.05(1)(d). Here, the respondent did raise the issue of timeliness in its written position statement submitted to the equal rights officer, and the initial determination held that, while the complaint would be considered timely for purposes of the determination, the respondent would reserve the right to raise the timeliness issue should the complaint proceed to a hearing. At the hearing the respondent did renew its motion to dismiss on the basis of timeliness, and the administrative law judge appropriately considered that motion. Having concluded that the complaint was, indeed, untimely, the administrative law judge correctly dismissed without deciding the question of whether discrimination occurred.

Next, the complainant argues that the respondent should have provided him with written notice that it would not be hiring him and that, in the absence of such notice, there is no basis to count the 300-day statutory period. Again, this argument fails. There is no legal requirement that an employer provide a job applicant with written notice of the employment decision, and the respondent credibly testified that it was not its practice to do so. For purposes of calculating when the statute of limitations begins to run the question is not whether the complainant received written notice, but when the complainant knew or reasonably should have known of the wrong that was committed against him. See, Lange v. Federal Express, ERD Case No. 9002040 (LIRC Feb. 22, 1993). In this case, the respondent's witness, Randi Kiel, testified that she telephoned the complainant on August 27, 2007, and informed him that he was not going to be hired. Ms. Kiel offered credible and detailed testimony about the conversation, which was supported by notes taken during the telephone call. Immediately thereafter, Ms. Kiel prepared e-mails documenting the conversation, which she sent to several other members of the respondent's management team. Although the complainant denied having received a telephone call from Ms. Kiel, stating that he was out of town on August 27, the commission does not find that denial to be persuasive. The complainant provided inconsistent stories with regard to whether he spoke with Ms. Kiel, and with respect to his whereabouts on the day of the conversation in question. Moreover, as the respondent pointed out at the hearing, the complainant has a cell phone, and could have spoken with Ms. Kiel even if he was out of town. Ms. Kiel's testimony, by comparison, was credible and consistent, and was supported by her contemporaneous notes and e-mails. Under all the circumstances, the commission agrees with the administrative law judge that, as of August 27, 2007, the complainant knew that he was not going to be hired. Consequently, the complaint filed on June 26, 2008, was outside of the 300-day statute of limitations and properly dismissed as untimely.

The complainant maintains that he was denied an opportunity to fully present his case. He contends that, in the middle of Randi Kiel's cross-examination, she limited her availability to participate further on the pretext that she had to leave to take care of her children. The complainant contends that he was therefore not able to challenge her false and inconsistent statements and e-mails to prove she was not the "early bird" who announced that a decision had been made. This argument fails. The record reveals that, during the complainant's cross-examination of Ms. Kiel, which lasted for approximately fifty transcript pages, the respondent's attorney notified the administrative law judge that the witness was paying a babysitter to watch her sick child and asked that a time limit be placed on the testimony. Shortly thereafter the complainant completed his cross-examination and stated he had no more questions. The respondent then asked a few follow-up questions, after which the complainant stated that he might have an additional follow-up question, but could not recall what it was. At that point the witness was dismissed. Based on the foregoing, the commission sees no reason to believe that the complainant was denied a full and fair opportunity to cross-examine Ms. Kiel.

The complainant also makes an argument that the administrative law judge's decision was supposed to be sent to him within 100 days, but the decision took 372 days to arrive. The complainant asks what happened to the legal obligation of the Division to resolve a case within a one-year time limit. However, the Wisconsin Fair Employment Act contains no mandatory time limits within which decisions must be issued. Zebrowski v. Woman's Club of Wisconsin, ERD Case No. 200500165 (LIRC Nov. 28, 2007). Moreover, the commission notes that the administrative law judge made no representation that the decision would be issued within 100 days and, to the contrary, stated that she was dismissing the complaint based upon timeliness and that the complainant would not be receiving a written decision for some time.

The commission has considered the remaining arguments raised by the complainant in his petition and briefs, but finds them similarly unpersuasive. Because the evidence establishes that the complaint was not timely filed, the dismissal of the complaint is affirmed.

cc: Attorney Jennifer L. Ciralsky

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