CHERYL JEANPIERRE, Complainant
CITY OF MILWAUKEE, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 21, 1992. Complainant filed a timely petition for review by the commission.
Based upon a review of the record in its entirety, and for reasons more fully set forth in the attached Memorandum Opinion, the Labor and Industry Review Commission issues the following:
The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed September 1, 1993
/s/ Pamela I. Anderson, Chairman
/s/ Richard T. Kreul, Commissioner
/s/ James R. Meier, Commissioner
On October 6, 1988, the complainant herein filed a complaint of sex discrimination against the City of Milwaukee. Responding to question seven on the complaint which asked what the respondent had done that she believed was discriminatory, the complainant stated: "The Respondent has not provided me with compensation and benefits equal to those provided to males who perform the same work as I do." Under section 9 which asks for the complainant's discrimination statement, complainant alleged as follows:
I was discriminated against because of my sex (female):
1. I am one of 26 sworn officers employed by the Milwaukee Fire Department serving in "paramedic" classifications. All of the "paramedics" are women.
2. The Milwaukee Fire Department also employs "fire fighter/paramedics" who perform the same duties and responsibilities on a daily basis as "paramedics." All of the "fire fighter/paramedics" are male.
3. As a female "paramedic," I am not compensated in a manner equal to male "fire fighter/paramedics." For example, male "fire fighter/paramedics" are covered by the Fireman's Annuity and Pension Plan which provides superior contribution and benefits to that of the Employees' Retirement System to which female "paramedics" belong. Male "fire fighter/paramedics" do not have Social Security contributions deducted from their salary whereas female "paramedics" do. The annual uniform allowance for male "fire fighters/paramedics" is $150 more than that of female "paramedics."
In the section of the complaint asking for the most recent date the respondent is believed to have acted against her, the complainant stated "continuing violation."
The ALJ dismissed the complainant's complaint as having not been filed timely. Section 111.39(1) provides that the department may receive and investigate a complaint charging discrimination or discriminatory practices in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination occurred. In Hilmes v. DILHR, 147 Wis. 2d 148, 433 N.W.2d 251 (Ct. of App. 1988) the court held that the date on which an act of discrimination "occurs" is when the employer acts and the employe knows about it, not when the effects of the action are most painful. However, a claim alleging discriminatory actions occurring more than 300 days prior to the filing of the complaint may nevertheless be found timely if such action constituted a "continuing violation" of discrimination. There are two basic continuing violation theories: The continuing course of conduct theory, and the continuing pattern or practice of discrimination theory. The continuing course of conduct theory applies when an individual complainant has been subjected to a series of separate, but related discriminatory acts, at least one of which takes place within 300 days of the filing of the complaint. The continuing pattern or practice of discrimination theory requires the presence of a continuing discriminatory practice against a class of individuals and a continuing employment relationship. The continuing violation theory is considered to be one of the most confusing theories of' employment discrimination law, Berry v. Board of Supervisors, L.S.U., 715 F.2d 971, 32 FEP Cases 1567 (5th Cir. 1983).
In dismissing the complaint on grounds of untimeliness, the ALJ concluded that the complaint did not allege a violation that continued beyond the date she actually stopped working on January 27, 1987, nor would the continuing violation theory allow her to allege a violation that continues beyond January 27, 1987. As reason therefore, the ALJ found that the complaint was worded as if the complainant was currently working, and contained no reference to her injury or the nature of the benefit she received after stopping work. The ALJ found that the complaint was that the complainant received unequal benefits for doing the same work, not of receiving different benefits upon injury or retirement than a similarly situated male; that the claim of receiving different benefits upon injury and retirement than a similarly situated male would have received is beyond the scope of the complainant's complaint. Further, the ALJ found that even if the claim of receiving different benefits upon injury and retirement was not beyond the scope of the complaint, the continuing violation theory would not prevent complainant's complaint from being found to be untimely. As set forth below, to the extent the ALJ's decision holds that the complainant's complaint would be barred under the continuing violation theory even if her complaint contains a claim of receiving different benefits upon injury and retirement, the commission disagrees with such holding.
With respect to the continuing violation theory, the ALJ cited the case of EEOC v. AT&T Technologies, Inc., 45 FEP Cases 568 (N.D. ILL. 1987) (previously followed by the commission in Hyler v. Nekoosa Papers, Inc. (LIRC, 1/28/91)), in which the court held that a plaintiff could successfully claim a continuing Title VII violation by showing that an employer maintained an openly espoused discriminatory policy, that the violation continued into the relevant time period and that the plaintiff remained employed and subject to the policy during the limitations period (i.e., within 300 days of filing the complaint). The ALJ set forth the issue in this case as what it means for the complainant to remain "employed and subject to the policy." (1) He then concluded that where the complainant alleges discrimination in benefits, the "complainant only remains 'employed and subject to the policy,' as long as he or she actually receives compensation for work." In this case, the ALJ found that date to be complainant's last day of work, January 27, 1987, resulting in complainant's failure to establish that the alleged violations constituted a continuing violation.
Next, having found no continuing violation, the ALJ concluded that the complainant was required to file her complaint within 300 days of the latter of: (1) The last day complainant actually worked; or (2) the date the ALJ found that facts that would have supported a charge of discrimination were or would have been apparent to a similarly situated person with a reasonably prudent regard for their rights. Based upon such factors as the differences in social security withholding, clothing allowance, the manner in which the paramedic positions were advertised, the employe's retirement system application complainant signed upon hire and the type of working relationship complainant had with male fire fighter/paramedics, the ALJ concluded that a similarly situated person with a reasonably prudent regard for her rights would have known facts that would have supported a charge of discrimination while working for the respondent. Further, he concluded that a ruling that complainant did not know facts that would support a charge of discrimination until after her injury would also have resulted in a finding of untimeliness, since she testified that she learned she would receive lesser benefits on retirement than she would have if she had been a fire fighter/paramedic with coverage under the fire fighters' retirement plan two months before November of 1987 (i.e., September 1987) and that September 1987 is also more than 300 days prior to the date she filed her complaint.
In disagreement with the ALJ's decision, the complainant argues on appeal that her complaint did allege that the violation was continuing and "did allege disparate retirement benefits based upon sex." These arguments fail. It is true that in the box on the complaint form which asks for the most recent date the respondent acted against her the complainant stated "continuing violation." However, it is the substance and nature of an allegation, not a simple assertion that an alleged violation is continuing, that determines whether the alleged violation constitutes a continuing violation. As found by the ALJ, the complainant's complaint fails to allege a violation that continues beyond January 27, 1987. It fails to do so because the complaint is worded as though the complainant were currently working for the respondent, and contains no reference to her January 27, 1987 injury or to the nature of the benefits (disability or retirement) she received after that date. The complaint is thus simply that complainant received unequal benefits for doing the same work, not of having received different benefits upon injury or retirement than a similarly situated male. While complainant argues that she "did allege disparate retirement benefits based upon sex," her complaint indicates that retirement benefits was only cited as an example of how she was not receiving benefits in a manner equal to male fire fighter/paramedics for doing the same work, not because of an allegation that she had received disparate retirement benefits upon injury and/or retirement than a similarly situated male would have received. As noted by the ALJ, no allegation has been made that there was anything discriminatory about the city's benefit plan in and of itself, it is alleged to be illegal only because it was provided as a benefit for work that was the same as male fire fighter/paramedics who received a greater benefit package.
Next, apparently further pursuing the argument that she had alleged a continuing violation, complainant also argues that the ALJ failed to adequately address the fact that she "continued to be an employe of the city until February 29, 1988, the effective date of her retirement." The jist of this argument is that the 300-day statute of limitations period would not begin to run until February 29, 1988, thereby making her complaint of October 6, 1988, timely. This argument also fails, When discussing the continuing violation theory, the ALJ correctly noted that the complainant could successfully claim a continuing violation by showing that the employer maintained an openly espoused discriminatory policy, that the violation continued into the relevant time period, and that the complainant remained employed and subject to the policy during the limitations period. That is subject to the discriminatory policy, within 300 days of filing the complaint. While the complainant may have remained "employed" by the respondent until February 29, 1988, she did not remain subject to the policy until February 29, 1988. As noted by the ALJ, where the complainant alleges discrimination in benefits, the complainant only remains employed and subject to such a discriminatory policy as long as she actually receives compensation for work. This reasoning makes sense because it is the actual performance of work which generates the entitlement to the benefits. Complainant was no longer subject to the discriminatory 'policy after January 27, 1987, because she no longer performed any work after January 27, 1987.
Additionally, the complainant cites the case of Derouin v. Louis Allis Division, 618 F. Supp. 221, 37 FEP Cases 941 (E.D. Wis. 1985), in support of her claim that her complaint was not time barred. In Derouin, two female plaintiffs alleged that the respondent had discriminated against them on the basis of sex in the payment of their salaries while supervisors. Further, they claimed that the pension benefits which they had accumulated were based upon unlawful salaries. The employer there had failed to pay all supervisors alike since those who were promoted to the position of supervisor from lower paying positions would receive lower salaries due to the employer's policy which provided that a promotional salary increase be within a specified percentage of the employe's salary in his or her previous position. The female plaintiffs contended that this payment scheme perpetuated the low salaries paid for traditional women's jobs such as those from which they were promoted. The employer argued that the plaintiff's claims were barred by the relevant statute of limitations since the low salaries of which the plaintiffs complained were based upon their entering salaries upon promotion in 1976 and 1978, both events which had occurred more than two years before their complaints had been filed. The court rejected the employer's argument. The court stated that the plaintiff's cause of action is prolonged even where the alleged act of discrimination is beyond the statute of limitations if the initial act continues to manifest itself throughout the period of employment, and that the act of paying a discriminatorily low wage occurs not only when the pay level is set, but continues as long as the discriminatory pay differential continues, citing, respectively, the cases of Jenkins v. Home Insurance Company, 635 F.2d 310, 24 FEP Cases 1990 (4th Cir. 1980) and Satz v. ITT Financial Corporation, 619 F.2d 738, 22 FEP Cases 929 (8th Cir, 1980). The court held that based on Jenkins and Satz, it follows "that the plaintiffs' cause of action would continue as long as they were employed and/or received pension benefits based upon a salary that was set through discriminatory procedures."
Complainant cites the quoted language from Derouin in support of her claim, and argues that the ALJ had clearly disregarded this decision. (2) Consistent with Derouin, the clear majority of circuits do hold that discrimination in the payment of wages is a continuing violation. See vol. 2, page 9A-78, A. Larson and L. Larson, Employment Discrimination, section 48.13(g)(4) (1993). The courts reason that each paycheck at the discriminatory rate is a separate violation of Title VII, so that there is a present violation of the statute for as long as the employe is paid at that rate. Id.
The commission finds the Derouin case to simply be inapposite to complainant Jeanpierre's case. The reason is that unlike the Derouin case, Jeanpierre's complaint is not a complaint about her wages. Unlike Derouin, complainant does not claim that she received discriminatory wages which continued to manifest itself in the nature of the retirement benefits she received. Jeanpierre's complaint alleges discrimination in benefits provided to her for doing the same work, a discriminatory practice which she remained subject to only as long as she actually received compensation for work. Complainant received no compensation for work after January 27, 1987. Thus, complainant simply was no longer subject to the policy of receiving unequal benefits after January 27, 1987. Complainant may have continued to suffer from the effects of the past discrimination, but there was no present violation which had continued into the limitations period.
On the matter of complainant not having alleged discriminatory wages, the commission acknowledges that the complainant's complaint states that she was not provided with "compensation and benefits equal to those provided to males who performed the same work," but it is quite clear based upon her discrimination statement in her complaint that she was speaking of compensation other than wages. Specifically, complainant's discrimination statement alleges that she was "not compensated" in a manner equal to male fire fighter/paramedics, listing as examples: coverage under the firemen's annuity and pension plan versus the employe's retirement system, and in deduction of social security and uniform allowance differences, All of these items pertain to matters which would generally fall under the category of employe benefits.
Finally, the complainant contends that the rationale of the ALJ's decision could result in an employe, who was discriminated against insofar as retirement benefits, being time barred 300 days after the date of hire, if the employe was informed of facts, at the time of hire, upon which a similarly situated person with a reasonable prudent regard for his or her rights would have known would support a charge of discrimination. If the complainant had claimed that she had received discriminatory wages which continued to manifest itself in the nature of retirement benefits or that the retirement benefits were discriminatory in and of itself, and the ALJ had nevertheless found her complaint untimely, then the complainant might have a valid argument. Indeed, in EEOC v. First National Bank of Chicago, 740 F. Supp, 1338, 53 FEP Cases 564 (D.C. N.D. ILL. 1990), where the court considered the very argument stated above by complainant, the court concluded that this situation "would put a new employee to the cruel choice of suing his employer soon after his hiring, or surrendering his rights," and therefore held that the period for filing a charge did not begin to run until the retiree receives specific notice that he in fact would receive discriminatory benefits rather than when he first becomes aware that the discriminatory policy exits. Again, however, unlike the First National Bank of Chicago which involved a challenge to the employer's benefit policy itself, Jeanpierre's complaint herein does not allege that the retirement benefits she received were themselves discriminatory (nor that she had received discriminatory wages which continued to manifest itself in the nature of retirement benefits), only that such benefits were discriminatory because they were compensation for work that was substantially similar to that of male fire fighter/paramedics who received a greater benefit package. Complainant was simply no longer subject to the discriminatory policy after January 27, 1987, because she no longer received any compensation for work after January 27, 1987. The nature of the complainant's claim requires that it be filed within 300 days of her last day of work, or not later than 300 days from the date on which a person with a reasonably prudent regard for her rights would have known facts sufficient to support a charge of discrimination. Here both instances occurred more than 300 days prior to the filing of her complaint.
Lastly, the commission notes that while the ALJ makes the alternative finding that even if the claim of receiving different benefits upon injury and retirement is not beyond the scope of her complaint the continuing violation theory would not prevent her complaint from being found to be untimely, the commission does not agree with this statement. The commission is unable to discern anything in the decision which would support this alternative finding. It would appear to the commission that if the complaint alleged unequal benefits upon injury and retirement, the complainant's complaint of October 6, 1988 would have been timely. Complainant did not stop receiving injury benefits until January 1988, which would have caused the statute of limitations to begin running at that time. October 6, 1988, is within 300 days of that time. The payment of retirement benefits occurred even later, beginning on or around February 29, 1988. The commission finds that the complaint simply fails to allege that complainant received different benefits upon injury or retirement than a similarly situated male would have received.
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