RONETTE B JESSIE, Complainant

GENERAL MOTORS LLC, 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, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

The administrative law judge's "Ruling on Respondent's Motion To Dismiss" issued on November 4, 2014 is set aside. This matter is remanded to the Equal Rights Division for further proceedings consistent with the attached Memorandum Opinion.

Dated and mailed  January 15, 2015
jessiro_rrr . doc : 164 :  711.1

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Procedural background

In a somewhat difficult to decipher complaint, filed on September 26, 2012, the complainant appears to be alleging that the respondent discriminated against her based upon a disability in the terms and conditions of her employment, and did not accommodate her disability in 2005, leading her to go on an extended medical leave of absence. The complainant further alleges that when she was ready to return to work in February of 2012, the respondent would not reinstate her because of her disability and notified her that her employment had been terminated.

On December 27, 2013, the Equal Rights Division (hereinafter "Division") issued an initial determination finding no probable cause. In dismissing the complaint, the Equal Rights Officer for the Division reasoned that the respondent had articulated a legitimate non-discriminatory reason for its actions: the complainant's seniority was broken in 2011 pursuant to the terms of a labor agreement, and she no longer had a right to reinstatement, but would need to apply for work as a member of the general applicant pool. The initial determination did not specifically address the issues of discriminatory terms and conditions of employment or failure to accommodate the complainant's disability, but found no probable cause with respect to those issues, as well.

The complainant filed a timely appeal of the no probable cause determination, and the matter was certified to hearing. However, prior to any hearing, the respondent filed a motion to dismiss the complaint as time-barred, and the administrative law judge granted the motion. The complainant has petitioned for commission review of the dismissal of her complaint by the administrative law judge.

Discussion

The respondent's argument in support of dismissal, as set forth in its brief to the administrative law judge, is as follows:

"A complainant must file a charge of discrimination with the EEOC or ERD within 300 days of the alleged discrimination. Here, Jessie commenced a disability leave in October 2005 and terminated from her employment with GM on April 1, 2010, more than two years prior to the date on which she filed the instant Complaint. Accordingly, her Complaint must be dismissed because it was not timely filed."

(General Motors LLC's Brief In Support Of Its Motion To Dismiss, dated April 28, 2014, p. 7)(citations omitted).

In a decision granting the respondent's motion to dismiss, the administrative law judge made the following factual findings:

• the Complainant, Ronette Jessie, began her employment with the Respondent, General Motors (GM) or its predecessor, on May 1 of 2000 in Janesville, Wisconsin;
   
• while employed by the Respondent, the Complainant was a member of the United Auto Workers (UAW) union;
   
• in October of 2005, the Complainant began a disability leave;
   
• the Respondent's Janesville facility was the only facility that the Complainant worked at for the Respondent;
   
• the Respondent's Janesville facility closed in 2008 while the Complainant was still on disability leave;
   
• the Complainant was terminated on April 1 of 2010 based on the Respondent having calculated pursuant to paragraphs 64(e) and 106 of the UAW-GM National Agreement that the Complainant had been on disability leave for a longer time than she had worked for the Respondent;
   
• paragraph 106 of the UAW-GM National Agreement indicated as follows:
   

 Employees who are known to be ill supported by satisfactory evidence, will be granted sick leave automatically for the period of continuing disability. Except as otherwise provided in Paragraph (111)(c), seniority of such employees shall accumulate during sick leave and shall be broken, figured from the date the sick leave started, on the same basis as provided in Paragraph 64(e) for laid off employees breaking seniority. Not later than thirty (30) calendar days prior to such loss of seniority, Management will send a letter to each affected employee's last known address as shown on the Company records reminding them of the fact that their seniority is subject to being broken as provided above. A copy of such letter will be furnished promptly to the Chairperson of the Shop Committee. However, failure through oversight to send this letter to such employees or furnish a copy to the Chairperson of the Shop Committee will not be the basis for any claim.
 
• the Complainant did not receive a letter at least 30 days prior to her loss of seniority;
   
• the Respondent at some later point recognized that it had made an administrative error in the calculation, and that the Complainant should not have been terminated until April 21 of 2011;
   
• the Respondent at some point adjusted the Complainant's termination date to April 21 of 2011 so as not to impact any benefits the Complainant might be eligible for as a former employee of the Respondent;
   
• on or about January 24 of 2012, the Complainant obtained a note from a physician indicating she could return to work on February 6 of 2012 subject to restrictions;
   
• as the Complainant's seniority had been broken, the Janesville facility had been closed and the Complainant had no seniority at any other of the Respondent's plants, the Respondent was not able to re-employ the Complainant under the UAW-GM agreement;  (1)
   
• on February 29 of 2012, the Complainant was notified by the Respondent's Benefits & Service Center that her disability benefits, that she had received since commencing leave in October of 2005, would expire on March 31 of 2012;
   
• on or around April 24 of 2012, the Complainant received a doctor's note indicating she could return to work as of May 6 of 2012 without restrictions.
   

Based on the above facts, the administrative law judge concluded that the complainant was discharged at the latest on April 21, 2011, pursuant to the operation of a union contract, and that her complaint, filed on September 26, 2012, was untimely.

To the extent the complainant is alleging that the respondent failed to accommodate her disability by placing her on a leave of absence in 2005 or that it otherwise discriminated against her in the terms and conditions of her employment based upon disability, that portion of her complaint is time-barred and can no longer be heard. However, the commission disagrees with the administrative law judge's analysis as it pertains to the complainant's allegation that she was discharged and/or denied reinstatement into the job in 2012.

The 300-day statute of limitations period begins to run when the complainant knew or reasonably should have known of the wrong that was committed against him or her. See, Washington v. United Water Services, ERD Case No. CR199902104 (LIRC Aug. 15, 2003), citing Lange v. Federal Express (LIRC, Feb. 22, 1993).

In this case, it appears that the respondent decided to terminate the employment relationship with the complainant on April 1, 2010, pursuant to the terms of a union contract, but failed to notify the complainant of this by letter, as required by the contract. The respondent subsequently realized it had erred in its calculation of the proper termination date, and that the complainant's employment did not in fact terminate until April 21, 2011. The respondent adjusted the termination date accordingly. However, there is nothing to indicate that the respondent informed the complainant of this fact, and it appears that it never communicated with her in any way about her employment status prior to her inquiries in 2012. Cognizant of these facts, the respondent has not contended that the complainant either knew or should have known that her employment was terminated as of April 21, 2011. While, under ordinary circumstances, the commission might conclude that an employee had some responsibility to remain apprised of her employment status during the course of a lengthy leave of absence, given that the respondent both failed in its contractual obligation to send the complainant written notice of the termination and miscalculated the termination date, the commission does not believe that it is reasonable to conclude the complainant should have known of the change in her employment status prior to her efforts to return to work.

The complainant filed her discrimination complaint on September 26, 2012, within 300 days of the date on which she first contacted the respondent to discuss returning to work (which occurred on or about January 24, 2012), and within 300 days of being advised that the respondent considered the employment relationship to be terminated (in April of 2012). Her complaint, insofar as it alleges that the respondent discharged her or refused to reinstate her to the job based upon her disability, was therefore not untimely. While the fact that the employment relationship may have already ended before the complainant sought reinstatement, leaving her without reinstatement rights, might provide the respondent with a substantive defense to the complainant's allegations, it does not render her allegations time-barred.

For the reasons set forth above, the commission has set aside the administrative law judge's decision dismissing the complaint on statute of limitations grounds and is remanding this matter for a probable cause hearing on the complainant's allegations as they pertain to the discharge and the respondent's refusal to reinstate her to the job. It is contemplated that the decision issued by the administrative law judge will include findings and conclusions with regard to the those issues, and that it will include a dismissal of the portion of the complaint pertaining to failure to accommodate a disability and discriminatory terms and conditions of employment.

cc: Attorney Emily M. Petroski

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(1)( Back ) The respondent has not explained how, when, or whether it notified the complainant of these facts. Although not reflected in the administrative law judge's decision, the initial determination issued by the Division indicates that it was only when attempting to purchase medications in April of 2012 that the complainant learned her insurance had run out and discovered she no longer had a job with the respondent. 

uploaded 2015/01/28