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

JAMES MARANO, Complainant

DAIMLERCHRYSLER CORP, Respondent A

UNITED AUTOWORKERS LOCAL 172, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199803462, EEOC Case No. 26G990299

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order in the above-captioned matter dismissing the complainant's complaint against the respondents. A timely petition for review was filed.

Based upon a review of the matter, and for reasons set forth in the memorandum opinion portion of this decision, the Labor and Industry Review Commission hereby issues the following:

ORDER

The decision of the administrative law judge is affirmed insofar as it dismisses the complainant's complaint against the DaimlerChrysler Corporation, and insofar as it dismisses the complainant's complaint against the United Auto Workers, Local 72, it is set aside and remanded to the Equal Rights Division for investigation and a determination as to whether there is probable cause to believe that a violation of the Act has been committed.

Dated and mailed June 16, 2000
maranja.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, James Marano, appeals from the ALJ's affirmance of a preliminary determination and order which dismissed his complaint, alleging discrimination with respect to termination of employment, against Respondent A, DaimlerChrysler Corporation (DaimlerChrysler), and Respondent B, United Auto Workers, Local 72 (UAW), on the ground that it was filed more than 300 days after the date of the termination of his employment. (1)   Further, the ALJ also dismissed Marano's complaint against the UAW, stating, "because the Complainant has failed to allege in the complaint any actions taken by Respondent B that would violate the Act. Therefore, the Complainant has failed to state a claim against Respondent B." Some of the bases Marano included for his claim of discrimination were "use of lawful substances" (i.e., products), arrest record, creed and ancestry. Marano filed his complaint without the assistance of counsel.

Based upon information in the case file, by letter dated March 20, 1997, DaimlerChrysler mailed a notice to Marano, who had been laid off work, informing him that he was to report for work on March 24, 1997, and that a failure to report within five days of March 24 would result in the loss of his seniority per the labor agreement with the UAW. Marano failed to report for work within five days of March 24, 1997, resulting in the termination of his employment. Marano's complaint alleging that his employment had been discriminatorily terminated was filed with the Equal Rights Division on October 13, 1998.

As noted in the ALJ's decision, DaimlerChryler sent the March 20, 1997 letter notifying Marano to report to work to Marano at P.O. Box 238, Pleasant Prairie, WI 53158, that the letter was returned by the post office stamped "attempted, address not known," that as a result of Marano's failure to report to work on March 24, 1997, or within 5 days thereafter, DaimlerChrysler acted in accordance with the March 20, 1997 letter and terminated his employment, that Marano was aware that the labor agreement between the DaimlerChrysler and UAW required him to keep DaimlerChrysler informed of his address at all times, that according to DaimlerChrysler's records Marano notified DaimlerChrysler that his address was P.O. Box 238, Pleasant Prairie, WI 53158 on March 26, 1994, and that according to DaimlerChrysler's records the next time Marano notified DaimlerChrysler that he had a new mailing address was September 8, 1998, on which date Marano submitted a form notifying DaimlerChrysler that his new address was 969 Wood Rd. #121, Kenosha, WI 53144.

Apparently after DaimlerChrysler received notice of Marano's new address, DaimlerChrysler informed Marano that his employment had been terminated in 1997 based upon his failure to report to work when recalled. At a "Restoration Meeting" held between DaimlerChryler, Marano and UAW representatives on September 18, 1998, the reason for Marano's termination of employment was reviewed. It was determined at that meeting that the recall notice was sent to Marano's address of record on March 20, 1997, and therefore his termination of employment was sustained. DaimlerChrysler subsequently sent Marano written confirmation of the results of the "Restoration Meeting" by letter dated September 24, 1998. Marano apparently filed a grievance over his termination sometime in 1998, but subsequently "The Union withdrew this grievance without precedent and the Corporation consented to the withdrawal."

Marano maintains that he did keep DaimlerChrysler informed of his address, and that DaimlerChrysler was aware of his address because of other letters he had received. However, as noted by the ALJ, Marano has failed to supply anything to support these claims. As found by the ALJ:

"...The Complainant alleges that he has documents to support his claims, but the Complainant has not provided the documents to the Division either during the investigation or on appeal. While the Complainant submitted two documents to the Administrative Law Judge on appeal which he claimed proved that Respondent A knew his address on March 30 (sic), 1997, the documents provided by the Complainant do not support his claim. (The ALJ identified these documents and why they did not support his claim in footnote 2 of the decision.) Also, although the Complainant claims to have told Respondent A his new address on Wood Road prior to March of 1997, the Complainant does not explain why he notified Respondent A of his address on Wood Road on September 8, 1998. Given the Complainant's failure to provide any specific details or supporting documents to show that he had notified Respondent A of his new address prior to September 8, 1998 and the fact that he filed an address change on September 8, 1998, the Administrative Law Judge determines that the Complainant failed to comply with the requirement of the union contract to notify Respondent A of his address in a timely manner. The Complainant has also not shown that Respondent A was aware of his address prior to September 8, 1998."

(ALJ decis. p. 3)

The labor agreement provided that "Employees shall notify the management of any change of address and a copy of the notification will be given the employee."

Further, the ALJ went on to find that Marano's claim that the discovery rule should be used to allow the tolling of the statute of limitations in this matter because he was unaware that he had been terminated until September 1998 could not be sustained. Under the "discovery rule" a claim accrues, and the statute of limitations begins to run, on the date the injury is discovered or reasonably should have been discovered. Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 335 N.W.2d 578 (1983). As indicated by the ALJ, Marano's argument, that since he did not know that he had been terminated until September 1998 the statute of limitations should not have begun to run until September 1998 when he knew that he had been terminated, fails to address the second part of the discovery rule. That is, that the statute of limitation also begins to run on the date that the individual, exercising reasonable diligence, reasonably should have discovered the injury. The ALJ concluded, based on the case file and the documents submitted by the parties, that Marano's address changed sometime prior to March 20, 1997, that Marano was aware that he was required to notify DaimlerChrysler of his current address in a timely manner, that Marano failed to notify DaimlerChrysler of his address in a timely manner, that as a result of Marano's failure to exercise reasonable diligence to protect his rights by notifying DaimlerChrysler of his new address he was not notified of his recall and was unaware that his employment had been terminated, and that since it was Marano's failure to act in a diligent manner that caused him to be unaware that his employment had been terminated, no basis could be found for applying the discovery rule. (See ALJ's decision, pp. 3-4)

The commission agrees with the conclusions that the ALJ reached with respect to Marano's complaint against the respondent, DaimlerChrysler, and her dismissal of Marano's complaint against DaimlerChrysler as untimely.

The commission does not, however, agree with the ALJ's conclusions that Marano's complaint against UAW was untimely and that "the Complainant has failed to allege in the complaint any actions taken by Respondent B that would violate the Act. Therefore, the Complainant has failed to state a claim against Respondent B."

First, while Marano's complaint itself does not specifically allege any actions taken by UAW that would violate the Act, during the investigation of his complaint by an equal rights officer and thereafter, Marano specifically indicated in correspondence to the division that his complaint against UAW was that it had failed to represent him in "good faith" due to his use of a lawful product. (2)   Several examples follow. In correspondence dated August 8, 1999 (received by the division on Aug. 10), Marano questioned why he was required to prove the timeliness of his complaint against the UAW, asserting that it was the UAW's failure to represent him in good faith that caused him to be determined to be untimely on a so-called ``no show'' to begin with. Marano asserted that it was considered routine for employes who had not kept up their addresses to be reinstated who had the amount of seniority that he had. Marano subsequently further clarified his claim in correspondence to the division dated August 22, 1999 (received by the division on Aug. 25). In that correspondence Marano asserted that he was told that UAW agrees with the company that despite his seniority date of 1973, there was a better candidate for rehire down the seniority line or off the street, and that he was also told that "so-called `missed operations' from years before I was laid off are reliable proof of my mental instability do (sic) to use of a lawful substance (product) that I have not used at all for years." (3) (Emphasis in bold text added). Further, subsequently in correspondence to the division dated September 11, 1999, following the equal right's officer's issuance of the August 27, 1999 preliminary determination dismissing his complaint, Marano wrote:

"...UAW...is responsible for unlawfully not representing me because it is unlawfully discriminating v. me `for use of a lawfull substanec (product) and they are to date not being held responsibel but being justified for not defending me for untimeliness when they were leagally obliged to defend me for being acqused of and terminatie for being untimely."

(Emphasis in bold text added).

In correspondence to the division dated September 23, 1999, Marano asserted, "...it was the UAW's lawful obligation to bargain for me in good faith when I was terminated for being terminated for being untimely and they did not because they are unlawfully discriminating v. me for use of a lawful substance (product)." (Emphasis in bold text added). Finally, included amongst the material that the division received from Marano on October 12, 1999, was a copy of a letter that he had sent to the National Labor Relations Board dated October 10, 1999, which stated, in part as follows:

"I ought not to be appealing the dismissal of my complaint for being untimely because even if I was untimely this is the kind of mistake that a 1973 (hired) in and laid off in good standing (employe) can make so that the UAW bargains him back to work in countless cases automatically. I was not however represented `in good faith' because the UAW is unlawfully discriminating against me for `use of lawful substance' and because I bombastically and self-respectfully protest against such corrupt union practices as discriminating against an employee for `use of a lawful substance.' "

Wisconsin Statute, § 111.321, provides, in relevant part, that "...no...labor organization...may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of...use or nonuse of lawful products off the employer's premises during nonworking hours." Wisconsin Statute, § 111.322(1), provides, in relevant part, that it is an act of employment discrimination "...to discriminate against any individual...in terms, conditions or privileges of...labor organization membership because of any basis enumerated in s. 111.321."

Marano has stated a claim under the Fair Employment Act.

As noted above, UAW representatives attended the "Restoration Meeting" held on September 18, 1998, and Marano filed a grievance over his termination but the union subsequently withdrew the grievance. It is clear from Marano's correspondence referenced above that he is complaining that in September 1998, after he learned that his employment had been terminated in 1997, UAW allegedly failed to represent him in good faith with respect to his termination of employment due to his use of lawful products.

A complainant who is unrepresented when filling out his or her complaint should not have that complaint read narrowly so as to prevent him or her from introducing evidence on issues which are closely related to those raised in the complaint. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).

Second, since Marano's complaint of discrimination against UAW was filed on October 13, 1998, and his complaint is about alleged conduct of the UAW occurring in September 1998, or thereafter, his complaint clearly falls within 300 days after the alleged discrimination.

Accordingly, the commission has affirmed the ALJ's decision insofar as it dismisses Marano's complaint against DaimlerChrysler, and, insofar as the ALJ's decision dismisses Marano's complaint against UAW, Local 72, the commission has set aside and remanded this aspect of the complaint to the division for an investigation and determination of whether or not probable cause exists to believe that a violation of the Act has been committed.

cc:
William R. Nowak
Millie Smith

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Footnotes:

(1)( Back ) Wis. Stat., § 111.39(1), requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred.

(2)( Back ) Per the case file, alcohol is the lawful product Marano is referring to.

(3)( Back ) Marano also appears to be raising a claim of disability discrimination by reason of mental illness.