Wis.LIRC ER Decision: Riley, Evelyn - May 24, 1999 - Statute of limitations - when 'filed'

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

EVELYN A RILEY, Complainant

VAN GALDER BUS CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802431, EEOC Case No. 26G981693

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 May 24, 1999
rileyev.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the federal and state government "hold to the statement" that once a document is mailed via the United States Postal Service, that document is deemed to have been served on the individual, whether or not the document was received or executed. The complainant contends that she mailed her complaint to the Equal Rights Division (hereinafter "Division") on October 25, 1997, and that her complaint should be deemed to have been "served" upon the Division at that time, and "continues to be executed." This argument fails. The complainant has failed to cite to any legal authority in support of her interpretation of federal and state law, and the commission is unaware of any legal rule that once a document is mail it is "served." To the contrary, the Division's rules specifically provide that a discrimination complaint is considered to be "filed" only upon the physical receipt of the document by the Division. See Wis. Admin. Code � DWD 218.02(6). The rules contain no exception for complaints which are mailed in a timely fashion, but which are not received by the Division.

Moreover, even if there were some basis to consider a complaint timely filed based upon the date on which it was mailed to the Division, the commission would not be inclined to do so in this case, since, like the administrative law judge, it doubts that any timely complaint was ever mailed. It is implausible that the complainant would have filed a discrimination complaint in October of 1997 and, although receiving no acknowledgement from the Division, would have made no attempt to follow up on the matter for over eight months. Further, the complainant's July 16, 1998 complaint-- the first correspondence from the complainant of which the Division has any record-- makes no reference to a previous complaint and restates the same allegations that the complainant allegedly raised in her October, 1997 complaint. For these reasons, the commission believes that the July 16 complaint was, in fact, the first complaint that the complainant attempted to file.

Next, the complainant asserts that she believes her complaint was timely received by the Division, which then failed to follow proper procedures for processing the complaint. In support of this assertion, the complainant contends that one of her former co-workers heard the respondent discussing her complaint in December of 1997, leading her to believe that the complaint was received by the Division and that the respondent was notified of the complaint. The commission finds this argument unpersuasive. The Division has no record of the receipt of any complaint dated October 25, 1997 and, notwithstanding the complainant's contention that she heard a rumor the respondent had received a copy of her complaint by December of 1997, the commission sees absolutely no reason to believe this was the case. The Division first notified the respondent of a complaint by the complainant on August 4, 1998, at which point the respondent promptly submitted a response to the Division, the tenor of which strongly suggests that the respondent had no knowledge of any previous complaint. As stated above, there is nothing in the file to indicate that the Division received any correspondence from the complainant prior to her July 16 complaint, and the complainant's speculation that the Division received a complaint which it failed to process is without merit.

In her petition, the complainant also reiterates her argument that she has been employed by Mr. Green since October of 1995 and explains that she has been a business associate of Mr. Green's through "multi-level marketing." The complainant maintains that the respondent's actions have caused her unwarranted stress, leading her to cut back on her hours of work, and have adversely affected her work quality and productiveness. The complainant, therefore, suggests that she has stated a complaint for post-discharge harassment by the respondent. Again, this argument fails. To begin with, the commission shares the administrative law judge's skepticism that any genuine employment relationship exists between the complainant and Mr. Green. In her complaint, the complainant alleged that the respondent harassed her "through [her] friends," and in Mr. Green's July 11, 1998 letter to the Division, he indicated that he was employed by the respondent and referred to his personal friendship with the complainant. Neither the complaint nor Mr. Green's initial correspondence make any mention of an employment relationship and, to the contrary, both suggest that the relationship was purely a personal one. Further, even if an employment relationship could be established, the complainant's complaint does not include any allegation that the post-discharge harassment-- which allegedly consisted of asking the complainant's friends questions about personal topics, such as where the complainant worked and what her vacation plans were--had an adverse effect upon the complainant's employment opportunities. While, in her petition for review, the complainant suggests for the first time that the respondent's actions have caused stress for her, which has led her to cut back on her hours of work and has affected the quality of her work, these new allegations are not sufficient to place her claim within the scope of the Wisconsin Fair Employment Act. Assuming that the respondent's actions actually resulted in the type of stress described by the complainant, the commission nonetheless remains unpersuaded that there is any significant connection between those actions and an employment relationship or that the respondent's actions impaired the complainant's future employment opportunities.

For the reasons set forth above, the commission agrees with the administrative law judge that the complainant's complaint was untimely with respect to the allegations relating to the termination of her employment and preceding incidents. Further, the commission agrees that the complainant has not stated any cognizable claim for relief with respect to her allegations of post-discharge harassment. Accordingly, the dismissal of her complaint is affirmed.

cc: Dennis M. White

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