DOROTHEA M KRENTZ, Complainant

CAREW TRUCKING INC, Respondent

An administrative law judge 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 issues the following:

The administrative law judge's Order of Dismissal dated November 30, 2012, is set aside and this matter is remanded for a hearing on the question of whether the complaint was timely filed and, provisionally, on the merits of the case.

Dated and mailed February 7, 2013
krentdo : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Procedural History

On July 15, 2011, the complainant filed a discrimination complaint in which she alleged the following:

"While I was employed at Carew, I was a dump truck driver, hired Sept. 17, 2004. In December of 2008, I was diagnosed with breast cancer and needed a double mastectomy in the month of July, 2009 and needed reconstructive breast surgery in months to follow and unable to work until doctor's release on October 19, 2009.

"October 20, 2009 I called the truck supervisor and told him I was able to come back to work and at that point he said it was slow and they didn't need me and that the truck I was driving was only licensed through October of 2009. So I was considered to be laid off.

"At the beginning of April, 2010, I called to the HR Department to check when I should report back to work and was told to call back in May of 2010. I called back in May of 2010 and the HR person informed me that they put an existing male employee in the truck I was driving because his position was eliminated. They told me it was still slow and didn't know what they were going to do for trucks and drivers. But in the beginning of June, 2010, they hired a younger new male employee as a dump truck driver and 2 or 3 more new male employees after that to drive dump truck and never called me back to work. I called back numerous times every month and they told me it was still slow even after hiring 2-3 new male employees.

"In October of 2010, I called to check by [sic] status of employment, and the HR person told me he was going to be calling me in November to let me know I was going to be terminated and since I called he would just tell me now that I was terminated instead of November.

"After serious consideration, I am filing this complaint. I feel I was terminated because I am a woman, over 50 years old and having had a medical condition of breast cancer which required multiple surgeries."

In the portion of the complaint form that asks for the date of the most recent discrimination, the complainant, who drafted her complaint without assistance of counsel, wrote the date May 1, 2010. In the portion of the complaint form asking for respondent information, the complainant indicated that the name of the respondent was "Carew," and that the address was 1811 W. Edgewood Dr., Appleton, WI. The Equal Rights Division (hereinafter "ERD") served the complaint on Carew Concrete & Supply Co., Inc., located at the address supplied by the complainant.

On October 26, 2011, the respondent's attorney wrote a letter to the ERD in which he argued that the ERD had no jurisdiction over the complaint because the wrong employer was named. The respondent contended that the complainant was never employed by Carew Concrete & Supply Co., Inc.

On January 10, 2012, the complainant filed an amended complaint. The amended complaint was identical to the original except that the respondent was identified as Carew Trucking, Inc. rather than just "Carew."

On January 18, 2012, the respondent's attorney submitted a letter to the ERD investigator in which he contended that the complainant named the wrong employer in her original complaint, and that her amended complaint, which named the correct employer, was untimely.

On April 17, 2012, the ERD issued an initial determination finding probable cause to believe that the complainant was discriminated against in the terms and conditions of her employment and discharged from her employment based upon her sex, age and disability, and that the respondent refused to hire her on the same basis. The respondent's jurisdictional arguments raised in its January 18 letter were rejected.

On July 20, 2012, a hearing notice was issued with a hearing scheduled for October 26, 2012. However, prior to the hearing the respondent filed a motion to dismiss on the ground that the complaint was untimely and named the wrong employer. The respondent contended that the complainant's employment was terminated on October 19, 2009, at which time she was permanently laid off, and that she did not maintain any recall rights with the respondent. The respondent also contended that on her complaint the complainant indicated that the last date of discrimination was May 1, 2010, but that her complaint was not filed until 440 days afterwards. It maintained that, although the complainant contended she contacted the respondent in October of 2010, she did not allege that any discriminatory action took place on that date.

On November 30, 2012, an administrative law judge for the ERD issued a decision granting the respondent's motion, in part, and dismissing the complaint. The administrative law judge rejected the argument that the complainant had not named the correct employer in her original complaint; he concluded that by filing a complaint against "Carew," the complainant filed an actionable complaint against either entity, and that the fact Carew Concrete & Supply Co., Inc. initially responded was irrelevant. He further held that the amended complaint was merely a clarification and not a new allegation against a new employer. However, the administrative law judge agreed with the respondent that the initial complaint was untimely filed, stating:

"The complaint alleges that she was laid off in October of 2009, and that she was not rehired or hired in May or June of 2010, but she did not file her complaint until July 15, 2011. Under the WFEL, if an employer makes a decision to end someone's employment (without providing a definite date for them to return), regardless of whether they call it a lay-off or a termination, they are considered to have been discharged [sic] an employee or to have terminated their employment, so her employment was considered terminated in October of 2009. As of June of 2010, the complaint indicates that she understood that she was not being recalled or hired while young men were so she had the basis for a failure to rehire or hire case. Since her complaint indicates that her employment was already terminated and that she already knew that she was not going to be rehired, what occurred in October of 2010 (being told that she was now going to be considered by Carew to be terminated) did not materially affect her employment status. Mrs. Krentz already known [sic] she did not have, and was not going to get, a job working for Carew."

The complainant has filed a petition for commission review of the dismissal of her complaint. The portion of the decision finding that the complainant's original complaint named the correct employer has not been appealed and will not be addressed below. 

Discussion

The commission believes the administrative law judge's dismissal of the complaint based upon the respondent's pre-hearing motion was premature. Although the complainant asserted in her complaint that she was laid off in October of 2009, she contended that there was an ongoing employment relationship that lasted until October of 2010. The complainant stated that she talked to the respondent in April of 2010 about when she would be returning to work and was directed to call back in May of 2010. She stated that she then called every month until October of 2010, at which time she was notified she was being discharged. In support of her contentions, the complainant provided the investigator with a copy of her bank statement showing that the respondent continued to make deposits into her account until November of 2010 that are labeled "payroll." The respondent challenged the complainant's assertions, and contended that the October 2009 layoff was permanent and that there was no longer an employment relationship in October of 2010. In reaching the conclusion that the employment relationship was severed in October of 2009, the administrative law judge appears to have adopted the respondent's position and to have rejected the complainant's.

The question of whether a layoff is permanent and terminates the employment relationship is a fact-specific one. The parties in this case disagree about the nature and effect of the October 2009 layoff. It is inappropriate to resolve a factual dispute regarding the timeliness of a complaint without an evidentiary hearing. Hootsell v. Waukesha County (LIRC, June 9, 2011). Further, it is a fundamental denial of due process for an administrative law judge to make findings as to disputed facts and to resolve credibility issues without the benefit of a hearing. Rome v. Fiduciary Real Estate, ERD Case No. CR200801068 (LIRC Sept. 18, 2009), citing Burton v. United Government Services LLC, ERD Case No. 200303077 (LIRC Dec. 21, 2007) and Bedynek-Stumm v. City of Madison, ERD Case No. CR200003354 (LIRC Nov. 30, 2001). In this case, the question of whether there was an existing employment relationship that was terminated by the respondent within 300 days of the complaint is one that should be decided after the development of an evidentiary record and not based upon the administrative law judge's own opinions about the meaning of the term "layoff" or his assumptions about what may have been intended by the parties.

The commission notes that the respondent has also argued that, assuming the complainant was still considered an employee in October 2010 and was discharged, she has not alleged that she was subjected to discriminatory conduct occurring within 300 days of when she filed her complaint. The respondent points out that the complainant stated she was most recently discriminated against on May 1, 2010, and has not alleged an act of discrimination occurring in October of 2010. However, while the complainant did provide the date May 1, 2010 as the most recent date of discrimination, in the narrative portion of her complaint she alleged that thereafter she continued to call "numerous times every month" to check on the status of her employment until October of 2010, when she was told she was being discharged. The complainant stated that she felt her discharge was for discriminatory reasons. Based on the foregoing, it appears she is alleging that acts of discrimination continued to occur each month, culminating in her discharge in October of 2010, which contradicts the respondent's assertion that the complainant claimed no discrimination after May 1, 2010.

While the complaint may be somewhat vague as to what events the complainant is alleging were discriminatory and whether any of those events occurred within 300 days of the filing of her complaint, any resolution of these matters depends, at least in part, on making findings as to disputed facts. Since no hearing has been held, there is no basis for deciding that the complainant has not alleged any timely act of discrimination. The commission has, therefore, remanded this matter for a hearing and a new decision based upon the evidentiary record created at that hearing.

cc:
Attorney Peter Fox
Attorney John Thiel

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