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

LANDY GHOLAR, Complainant

TIME WARNER CABLE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803759

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 July 8, 1999
gholala.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that he never received any notice his employment was terminated on November 4, 1995, and, further, that he was told it was merely a formality for him to submit an application for reemployment and that his job was being held for him until his criminal case was resolved. Consequently, the complainant contends that the 300-day statute of limitations did not begin to run in his case. These arguments fail. The complaint indicates that the respondent refused to allow the complainant to return to work due to pending criminal charges and that the respondent's discriminatory conduct began on November 4, 1995. Thus, it is clear from the face of the complaint that, whether or not the respondent provided him with formal notice of the termination of his employment, the complainant was aware of the facts that would support his claim of discrimination as of November 4, 1995, more than three years before the complaint was filed. Moreover, while the complainant now maintains that his March 4, 1996 application for reemployment with the respondent was a mere formality, the fact remains that, prior to filing that application, the complainant was not working for the respondent in spite of the fact that he had been released from custody and/or the criminal charges against him had been disposed of in his favor. Therefore, "formality" or not, as of the date of his application the complainant was surely aware of facts sufficient to support his claim of discrimination. Finally, the commission notes that the respondent declined to rehire the complainant and, while the complainant has neglected to explain when this decision was communicated him, he clearly knew or should have known within 300 days of having submitted the application that the respondent did not intend to reinstate him. Under all of the circumstances, the commission is convinced that the complainant became aware of the facts giving rise to his claim of discrimination well in excess of 300 days prior to the filing of his complaint. Accordingly, the dismissal of the complaint as untimely is affirmed.

cc:
Jerome J. Shimek
Mary Pat Ninneman

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