EVELYN T. DYKSTRA, Complainant

RHODES INTERNATIONAL 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. Based on its review, the commission makes the following:

The February 7, 2012 decision of the ALJ in this matter is set aside, and the case is remanded to the Equal Rights Division for a hearing before an ALJ, to be followed by a decision by that ALJ based on findings of fact and conclusions of law drawn therefrom, on the issue of whether the complaint should be dismissed based on application of the statute of limitations.

Dated and Mailed  March 29, 2012
dykstraev . rpr : 110 : 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complaint in this matter, which alleges discrimination in regards to treatment at work and eventual discharge, was filed on August 10, 2011. It is not disputed, that the complainant was informed of her discharge on September 21, 2010, and that she did not work for the respondent again. The complaint was thus filed 323 days after the complainant last worked for, and was discharged by, the respondent.

The respondent raised the objection that the complaint was filed after the 300-day statute of limitations had run. An ERD investigator issued a preliminary determination under Wis. Adm. Code § DWD 218.05(2) dismissing the complaint on statute of limitations grounds. The complainant appealed that preliminary determination. An ALJ subsequently issued a decision, on February 7, 2012, affirming the preliminary determination.

The complainant then filed a petition for commission review. In that petition for review, the complainant asserted that she had been told by the employer that she was "eligible for re-hire" and would be considered for employment at the next busy season; that she "was promised to be reinstated"; that she "had reasonable reliance on the employer to re-hire her in the near future"; that the respondent "[led her] to believe that the reason for the termination was a mistake and that she would be called back in to work through a temporary agency for seasonal employment"; that she had reason to believe the employer would re-hire her; that it was only after the next busy season came and went without her being re-hired (while others were) that she began to realize that the employer did not have any intention to re-instate her employment; and that when she attempted to contact the respondent about re-hire her attempts were "hindered" and she was met with delays and unreturned calls and refusals to accept her calls.

The complainant also asserted in her petition for review that she "went to the EEOC in person to file a complaint . . . within the 300-day statute of limitations," but that the EEOC "did not assist [her and her spouse] in filing any paperwork and they had to seek auxiliary counsel within their limited income in order to file proper documentation of their complaint."

Given the assertions made by the complainant in her petition for review, it appears that she is contending that there is a basis for application of the doctrine of equitable estoppel against the respondent.

Equitable estoppel -- sometimes referred to as fraudulent concealment -- comes into play if the defendant takes active steps to prevent the plaintiff from suing in time, such as by hiding evidence or promising not to plead the statute of limitations. The granting of equitable estoppel should be premised upon (1) "a showing of the plaintiff's actual and reasonable reliance on the defendant's conduct or representations" and (2) "evidence of improper purpose on the part of the defendant or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct."

Schulke v. Mills Fleet Farm, ERD Case No. 201000011 (LIRC, June 4, 2010).

In addition, the assertions the complainant makes in her petition for review about having gone to the EEOC during the statute of limitations period could raise issues of the kind that are now pending before the Supreme Court in Joyce Aldrich v. LIRC, No. 2010AP1785, having to do with the significance of a party having completed an intake questionnaire with the EEOC. The complainant's assertions in this respect are not so clear that it can be definitely determined that she would be considered to have filed a complaint with the ERD by operation of Wis. Adm. Code § DWD 218.03(5) if her assertions were true; however, her assertion that she "went to the EEOC in person to file a complaint...within the 300-day statute of limitations," suggests that this could be appropriate.

Whether the complainant could successfully invoke equitable estoppel against the respondent, and whether she could show a timely filing with the ERD by operation of Wis. Adm. Code § DWD 218.03(5), depend in part on factual issues. However, no hearing has yet been held.

The commission believes that due process requires that the complainant be provided an opportunity for hearing at which she may attempt to prove the matters she is asserting. See, Arlen Wolfe v. Lindgren Reinforced Enclosures, ERD Case No. CR200700108 (LIRC, Aug. 21, 2008). For these reasons, it sets aside the ALJ's decision and remands for such a hearing to be held.

NOTE: This decision is not a final one for purposes of judicial review, and it is not appealable at this time. See, Deering v. LIRC and Beverly Enterprises, No. 2011AP803 (Ct. App. Dist. IV, March 15, 2012).

cc: Steven M. DeVougas, Attorney for Respondent

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