Wis.LIRC ER Decision: Germaine, Xiaohong Zhang - February 13, 2014 - 711 711.1 - Statute of limitations, timeliness of complaint - A writing identifying the parties, signed by complainant or representative, including complainant's name and address, providing sufficient information to identify and contact respondent, and including a allegations, establishes filing date for timeliness purposes, if it is later "perfected" and accepted by ERD as a complaint -- 300-day filing period begins to run when facts that would support a claim of discrimination were apparent, or should have been apparent, to a person with a reasonably prudent regard for her rights - No "default judgment" for a respondent's untimely response to letter from ERD investigator; default judgments are not available under the WFEA

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

XIAOHONG ZHANG GERMAINE, Complainant

SUSSEK MACHINE CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201203380, EEOC Case No. 26G201301088C

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 13, 2014
zhangxi_rsd . doc : 107 : 711 711.1

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complaint in this matter was dismissed on October 2, 2013 by an officer of the Equal Rights Division (ERD) because it did not meet the statutory requirement that a complaint of discrimination under the Wisconsin Fair Employment Act (WFEA) be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). The complainant appealed the dismissal, and the matter was reviewed by an administrative law judge (ALJ), who affirmed the dismissal by a decision dated January 17, 2014. The complainant has petitioned the commission for a review of the dismissal.

The complainant's petition to the commission was signed by the complainant's husband, John Germaine, for Xiaohong Zhang Germaine, the complainant. In addition to serving in the role of representative for his wife in this case, Mr. Germaine has pursued a complaint of his own against the respondent (ERD Case No. CR201001982), which has followed a separate track through the ERD and the commission. In the petition for review in this matter, Mr. Germaine made numerous references to the hearing held in his own complaint. Those references have no bearing on the issue of the timeliness of the complaint in this matter, and will not be addressed.

The commission finds the following facts to be completely supported by the record: 1) that the complaint in this matter is the only accepted complaint that the complainant has filed with the ERD; 2) that the date of filing of the accepted complaint was April 23, 2013; 3) that there was an earlier filing by the complainant, on October 15, 2012 that the ERD was unable to process because of missing information on the complaint form, making it an "unperfected" complaint; and 4) that the last event described in the accepted complaint as a discriminatory act occurred on or about July 30, 2008, more than four years before the complainant's first filing with the ERD. These findings are in accordance with the findings of the ALJ.

Discussion

A filing by a complainant, even though flawed, that identifies the parties, is signed by the complainant or authorized representative, includes the complainant's name and address, provides sufficient information to identify and contact the respondent, and includes a statement of allegations, is sufficient to secure the date of filing as the filing date for timeliness purposes, if the flawed filing is later perfected and accepted by the ERD as a complaint. Lobacz v. Wisconsin Dep't of Corrections, ERD Case No. CR200500096 (LIRC Nov. 3, 2005). The complainant's filing of October 15, 2012 meets this standard. The commission, then, considers the filing date of the unperfected complaint, October 15, 2012, as the date by which timeliness should be considered.

The 300-day filing period begins to run when facts that would support a claim of discrimination were apparent, or should have been apparent, to a person with a reasonably prudent regard for her rights. Anchor v. Wisconsin Dep't of Workforce Development, ERD Case Nos. CR200501702 & CR200504414 (LIRC Jan. 4, 2012). The last act in the accepted complaint that appears to state a cognizable claim of discrimination against the respondent was an alleged breach of the complainant's contract of employment on or about July 30, 2008. It is apparent from the complaint that at the time of this event the complainant was aware of the facts that would support a claim of discrimination, so the 300-day filing period began on or about that date. The last acceptable filing date, then, was on or about May 26, 2009, the 300th day after July 30, 2008. The complainant's filing date for purposes of timeliness, as noted above, was October 15, 2012, so the complaint was filed nearly three and one-half years after the latest acceptable filing date.

The complainant asserted in her petition that her complaint should not be considered untimely because she had a "workplace harassment" case filed within 300 days of the respondent's breach of contract. Although there is a principle under which the filing date of a complaint can be deemed to "relate back" to the filing date of an earlier filed complaint when both complaints have arisen from the same transactions or set of facts (Shidell v. Sears, et al., ERD Case No. CR200303801 (LIRC Aug. 30, 2005)), that principle does not apply here. There is no record that the complainant ever filed a "workplace harassment" complaint against the respondent in 2008. Mr. Germaine filed his own complaint against the respondent on October 20, 2008 (ERD Case No. CR200803688), but it did not arise from the same set of facts as the present complaint did, and could not have done so, since the complainant was not the complaining party.

The complainant also asserted in her petition that she should be entitled to a default judgment because when the case was in investigation, the respondent did not timely respond to a letter from the ERD asking the respondent to respond to the complaint within 45 days. The due date for the response was September 2, 2013; the respondent filed its response on September 17, 2013. This argument is rejected. Default judgments are not available under the WFEA. Kemp v. Heinen, et al., ERD Case No. 199804076 (LIRC Oct. 27, 2000); Casetta v. Zales Jewelers, ERD Case No. 200204189 (LIRC June 14, 2005).

The complainant also argued that the respondent could not raise a statute of limitations defense "after the conclusion of the hearing." This argument is one aspect of Mr. Germaine's mixing of his own complaint with the complaint under consideration here. There has been no hearing in the complainant's case; the only hearing to which Mr. Germaine could be referring is his own hearing, which is not relevant to the timeliness of the complaint in this matter.

The commission has not identified any other arguments in the petition for review that require any further comment than that they are irrelevant to the issue of the timeliness of the complaint.

cc: Attorney Amy O. Bruchs

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