Wis.LIRC ER Decision: Belli - December 15, 1998 - Statute of limitations - maintenance of promotional eligibility list which is alleged to be discriminatory, not a "continuing" act

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN G BELLI, Complainant

VILLAGE OF GREENDALE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701509, EEOC Case No. 26G971039

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: December 15, 1998
bellibr.rsd : 164 : 6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The issue presented in this case is whether the complainant has raised a timely challenge to the respondent's promulgation, use and maintenance of a promotional eligibility list which is alleged to be discriminatory. It is undisputed that the eligibility list was promulgated in December of 1995, well in excess of 300 days before the complaint was filed, and that it was last used as a basis for denying the complainant a promotion in that same month. However, the complainant contends that the respondent's continued maintenance of the eligibility list throughout the limitations period renders his complaint timely under a continuing violation theory.

As the administrative law judge explained in her decision, a continuing violation can be shown under one of two theories: a continuing course of conduct or a continuing pattern or practice of discrimination. Jeanpierre v. City of Milwaukee (LIRC, September 1, 1993). A continuing pattern or practice of discrimination refers to an openly espoused discriminatory policy that affects an entire class of individuals, such as, for example, a continuing requirement that employes perform Sunday work, Hyler v. Nekoosa Papers, Inc. (LIRC, January 28, 1991), or the continued maintenance of different facilities for men and women, Malecki v. Vic Tanny Int'l. of Wis. (LIRC, August 7, 1992). 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. For example, where an employe has been the victim of unlawful sexual harassment within the 300-day period before the complaint was filed, she may bring suit challenging all related sexually harassing conduct, including that occurring outside the limitations period. Eckstein v. City of Neenah (LIRC, August 31, 1995).

Here, the complainant argues that his complaint should be considered timely under a continuing course of conduct theory because, although the discriminatory policy was promulgated outside the limitations period, it was still in effect at the time he filed his complaint. The commission does not find this argument persuasive. A continuing course of conduct requires that some discrete, separate act of discrimination take place during the limitations period. That did not occur in this case. As stated above, the eligibility list was compiled more than 300 days before the complaint was filed, and the complainant has not raised any contention that the respondent used an eligibility list that was tainted with discrimination in order to deny him a promotion within the limitations period. While the continued existence of the eligibility list might be considered a lingering effect of past discrimination, no discrete act of discrimination can be found by virtue of the fact that the eligibility list had not yet been rescinded at the time the complaint was filed.

In his petition the complainant also makes the argument that, by being denied a promotion, he has been discriminated against in pay within the 300-day limitations period. However, the denial of a pay increase is a predictable consequence of the denial of a promotion, and it cannot be considered a separate act of discrimination. In considering whether a continuing course of discriminatory conduct exists, the emphasis is not upon the effects of earlier employment decisions, but upon whether any present violation exists. Delaware State College v. Ricks, 449 U.S. 250, 24 FEP Cases 827, 830 (1980). Thus, while the complainant is now earning less than might be the case had different employment decisions been made prior to the running of the statute of limitations, this fact cannot be used to revive an otherwise stale discrimination complaint.

In his petition the complainant attempts to compare his case to Forster v. Abbyland Processing (LIRC, March 22, 1995), in which a complainant was found to have been discriminated against in compensation. However, the commission fails to see any connection between the instant case and Forster. While the complainant points out that in the Forster case the commission noted that the 300-day statute of limitations is not a rule of evidence, the decision in Forster addressed the question of whether evidence pertaining to incidents occurring more than 300 days prior to the filing of the complaint could be considered relevant to a determination of whether adverse employment actions occurring within the limitations period were discriminatory. The Forster decision does not stand for the proposition that incidents occurring outside of the limitations period can form the basis for a timely complaint, and the complainant's reliance on that decision in support of such an argument is misplaced.

Finally, the complainant makes the argument that he was represented by an attorney who did not file the complaint in a timely manner. The complainant maintains that he expected his interests would be protected and that he should not have to suffer the consequences of his previous attorney's mistakes. This argument fails. The complainant has not previously raised such an argument and he has not now presented any facts or circumstances warranting a conclusion that his attorney was responsible for the untimeliness of the complaint. Moreover, even if the complainant could demonstrate that his complaint was late due to negligence on the part of his attorney, the commission is unpersuaded that such a circumstance would justify tolling the statute of limitations. See Osegard v. WPS (LIRC, August 13, 1998)(appeal pending).

For the reasons set forth above, the commission concludes that the limitations period in this matter commenced to run in December of 1995 and, further, that the complainant has not set forth any circumstances justifying tolling of the statute of limitations. Accordingly, the dismissal of the complaint is affirmed.

cc: Mary L. Hubacher

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