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

DEANNA TALLEY-RONSHOLDT, Complainant

MARQUETTE UNIVERSITY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199804190, EEOC Case No. 26G990227

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, except that it makes the following modifications:

1. Paragraph 2 of the administrative law judge's CONCLUSIONS OF LAW is deleted.

2. The following paragraph is inserted as paragraph 2 of the CONCLUSIONS OF LAW:

"Ms. Talley-Ronsholdt's claim of sex discrimination with respect to her terms and conditions of employment is barred by the Wisconsin Fair Employment Act's 300-day statute of limitations."

3. The following paragraph is inserted as paragraph 3 of the CONCLUSIONS OF LAW:

"Ms. Talley-Ronsholdt failed to establish that Marquette discriminated against her on the basis of her sex in violation of the Act when it terminated her employment.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed February 13, 2001
tallede.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Deanna Talley-Ronsholdt, a female, began employment with Marquette University as an assistant professor of biochemistry in 1977, and subsequently became tenured as an associate professor. Talley-Ronsholdt was a faculty member in the Department of Basic Health Sciences, which was initially housed in Marquette's School of Dentistry until sometime in 1996 when that department was moved to the newly created School of Health Sciences. In the spring of 1993, after several years of student complaints about the complainant's teaching performance and attitude toward students, Dean Kenneth Zakariasen suspended the complainant's teaching responsibilities. The complainant's supervisor at the time was Dr. Robert Iorio, Chair of the Department of Basic Health Sciences. The complainant was subsequently permitted to teach again, but the aforementioned problems were found to have continued. On April 4, 1996, Dean Zakariasen informed the complainant that he would recommend the termination of her employment; however, Dean Zakariasen left the employ of the respondent shortly thereafter. Subsequently, on April 26, 1996, interim dean, Dr. Thomas Rypel, informed the complainant that he concurred with Dr. Zakariasen's recommendation to terminate her employment. Dr. Jack Brooks, Dean of the newly created School of Health Sciences, also supported this decision.

The complainant was therefore not given a contract for the 1996-1997 school year. However, the complainant's salary and benefits were continued pending resolution of the recommendation to terminate her employment. Eventually, a mediation team was formed in an attempt to negotiate an agreement of the matter, but this endeavor failed.

In an effort to resolve the matter, Dr. David Buckholdt, Vice President of Academic Affairs, wrote to the complainant presenting an option to her whereby he would request Dean Brooks and Department Chair, Dr. Iorio, to identify appropriate instructional support tasks which did not require that she take primary instructional responsibility for classes. Dr. Buckholdt stated that the complainant then might return to the role of primary instructor one day. He also advised the complainant that under this option she would be expected to resume her scholarly work immediately, and to show evidence of progress as evidenced by publication and attempts to obtain external funding for her research.

Subsequently, in accordance with Dr. Buckholdt's proposal, Dean Brooks informed the complainant by letter dated August 14, 1997, that she would be assigned to supervised teaching situations and that her duties would include "leading discussion groups in chemistry and biochemistry courses, assisting in supervised laboratories in our anatomy courses, and participating in a new molecular biology laboratory when it is developed." Dean Brooks informed the complainant that for the fall semester of the 1997-1998 academic year "Your primary duty this semester is to prepare for future instruction in anatomy laboratories. Another duty will be to help with chemistry and biochemistry discussion sections." To accomplish these goals, Dean Brooks informed the complainant that she would be required to do the following:

"Attend all laboratory and lecture sessions in BAHS (1) 130
Attend the Thursday laboratory session and all lecture sessions in BAHS135
Four lectures on dental biochemistry in BAHS 413 and proctoring of exams
Lead a discussion section for BAHS 005/006 and proctor exams"

In September 26 and October 9, 1997 memos to the complainant, Dr. Linda Vaughn, the new Chair of the Department of Basic Health Sciences, discussed her concern that the complainant was not participating in the BAHS 135 laboratory sessions that would help her learn human anatomy. In the October memo Dr. Vaughn stated that this was important so that the complainant could teach anatomy next semester in BAHS 015. Further, with respect to an asserted inability by the complainant to help in the gross anatomy labs due to sensitivity to the preservatives, Dr. Vaughn noted that in their August meeting Dr. Brooks had asked her to provide medical documentation that she was medically unable to perform this task. Dr. Vaughn requested that the complainant obtain and present the medical documentation to Dr. Brooks within a month, as the department needed to plan for her responsibilities for the following semester.

On October 9, 1997, the complainant sent a memo of her own to Dean Brooks, responding to Dr. Vaughn's October 9, 1997 memo. In this memo, among other things, the complainant complained about having asthma and being in a gross anatomy laboratory, and various conditions asserted to exist in an anatomy lab and classroom. She concluded this memo stating:

"I am concerned about conditions which pose a health threat to me and those around me. I do not believe that we are acting in a manner that minimizes the development and spread of disease or attempts to consider the well being of all. I cannot follow the logic of why a biochemist is more suitable to teach anatomy than someone trained in anatomy. I assume that Dr. Buckholdt's supervisor would prefer that my physician not know that an official at Marquette University had asked a biochemist with asthma to be in a gross anatomy laboratory, providing instruction in gross anatomy. A physician would find that peculiar and might have to report the matter."

In a memo to the complainant dated October 14, 1997, Dean Brooks informed her that it was important that she take advantage of all learning opportunities before the start of her active laboratory instruction next semester, and requested that she provide medical documentation that she could not participate in the gross anatomy laboratory for health reasons by November 15, 1997.

By memo dated November 25, 1997, Dean Brooks informed the complainant that since she had not provided the requested medical documentation, she would be assigned to participate in the gross anatomy laboratory in the spring semester. Apparently the complainant then informed Dean Brooks that she had not supplied the requested medical documentation because the respondent had the data on file. Dean Brooks responded by letter dated January 12, 1998, stating that the respondent did not have the medical information on file, that the only information it had was several years old, and that it did not deal specifically with her ability or inability to participate in the gross anatomy laboratory instruction. Dean Brooks requested that the complainant deliver the appropriate medical documentation to him by January 26, 1998.

The complainant did not provide medical documentation showing that she was unable to participate in anatomy instruction. In a letter to the complainant dated February 26, 1998, after relating the lengthy period in which the complainant was found to have performance problems and the respondent's efforts to correct these problems, including the respondent's most recent effort to provide her a structured opportunity to develop skills in anatomy that would permit her to assist in supervised anatomy laboratory teaching situations, Dr. Buckholdt informed the complainant that he had no recourse but to institute the termination process since she had willfully refused to accept the gross anatomy assignment, in violation of s. 306.02(2) of the Faculty Statutes, or to provide documentation to verify her contention that she was medically unable to complete her assignments. Subsequently, on May 6, 1998, the Board of Trustees of Marquette University unanimously approved a resolution authorizing the termination of the complainant's employment. The complainant's last day of employment was June 15, 1998.

On December 16, 1998, the complainant filed a charge of discrimination with the EEOC alleging that the respondent subjected her to unequal terms and conditions of employment and discharged her based on her sex. A copy of this charge was sent to the Equal Rights Division per the complainant's request. Included in the particulars of the complainant's charge was the claim that Dr. Iorio became Chair of the Department of Basic Health Sciences in 1990, that he was not supportive of her research and teaching, and that other male professors were not treated similarly. Further, she claimed that around 1995 Dr. Brooks became Vice Chair and that he and Dr. Iorio continued with Dr. Iorio's nonsupport of her. The EEOC investigated the charge of discrimination initially. The case file contains correspondence that the parties sent to the EEOC during its investigation of the discrimination charge. The EEOC dismissed the discrimination charge, apparently on February 23, 1999, and issued the complainant a right-to-sue letter. The basis for the EEOC's dismissal is not known, as there is no copy of the EEOC decision in the case file. The complainant apparently did not commence a federal lawsuit within the 90-day time period following the issuance of the right-to-sue letter.

The complainant did, however, request, as permitted, that the ERD process her charge of discrimination under the Wisconsin Fair Employment Law following the EEOC's dismissal of the case. Information that had previously been sent by the parties to the EEOC during its investigation was included in the investigation by the ERD. On August 31, 1999, an investigator for the ERD issued an initial determination concluding that there was no probable cause to believe that the respondent had violated the Wisconsin Fair Employment Law by terminating the complainant's employment because of sex, or by discriminating against her in terms or conditions of employment because of sex. The complainant filed a timely appeal of the no probable cause determination, and on October 22, 1999, the division issued a notice of hearing scheduling the case for hearing on January 28, 2000, on the issue of probable cause.

The complainant appeared for the hearing pro se. At the hearing before the start of testimony, the ALJ announced that what was at issue was only alleged discriminatory actions taken by the respondent within the 300-day period prior to the filing of the complaint. That is, actions going back to February 20, 1998. Despite this announcement, the ALJ later indicated that not only would he be determining whether or not there was probable cause to believe discrimination had occurred with respect to "the discharge process," which the respondent began on February 26, 1998, but also whether or not probable cause existed to believe discrimination had occurred with respect to the respondent's assignment of gross anatomy duties to the complainant in the fall of 1997.

At the conclusion of the complainant's hearing testimony, the respondent moved for a dismissal of the complaint, which the ALJ granted. Subsequently, a written decision by the ALJ was issued. The complainant filed a timely petition for commission review of that decision.

The complainant makes a number of arguments on appeal from the ALJ's decision. One argument she makes is that she received an inaccurate transcript of the hearing. She claims that the transcript changed some hearing testimony "to state entirely different things." She also claims that omissions occurred. However, a review of the tape recording of the hearing reveals that the transcript is highly accurate, with only minor, insignificant errors.

In support of her claim that she was discharged because of her sex, the complainant references alleged circumstantial evidence of gender discrimination that occurred years before her complaint filed on December 16, 1998, as proof that her discharge by the respondent was illegally motivated. Specifically, the complainant alleges that soon after Dr. Iorio was appointed her supervisor in 1990, she began receiving different treatment relative to that of similarly situated males. The complainant cites the following alleged different treatment:

"...limiting complainant's access to work-related information, funds to publish manuscripts, permission to attend research meetings, participation on departmental committees, ability to schedule her time, academic freedom in teaching, interference with her research program, and right to vacation. In addition, he created a life- threatening condition for her, and forced her to work in the condition. In response, complainant nearly died in late June, 1993. On June 15, 1998, when complainant exited the building after discharge, the condition still was operative, as it had been since the early 1990's. The condition was the placement of a window air conditioner completely within the building at complainant's work area, and running it continuously since the early 1990's. After Dr. Jack C. Brooks became dean, he took no steps to correct the situation."

However, the complainant may not reach back and rely on alleged discriminatory actions occurring more than 300 days before she filed her charge of discrimination on December 16, 1998, with EEOC. (2)   In this case, this means alleged conduct occurring prior to February 20, 1998. Wisconsin's Fair Employment Act contains a 300-day statute of limitations period. The Act requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination. Wis. Stat., 111.39(1).

Generally, allegations of alleged discrimination that occurred more than 300 days prior to the filing of the complaint are barred by the statute of limitations. An exception to this general rule does exist, however, under what is known as the "continuing violation doctrine." As stated by the court in Hardin v. S.C. Johnson & Son, 167 F.3d 340, 344, 78 FEP Cases 1542 (7th Cir. 1999), cert. denied, 120 S.Ct. 178, 83 FEP Cases 320 (1999), a case arising under Title VII:

"This doctrine is designed to `accommodate plaintiffs who can show that there has been a pattern or policy of discrimination continuing from outside the limitations period into the statutory limitations period, so that all discriminatory acts committed as part of this pattern or policy can be considered.timely.' " (citation omitted).

There are three viable continuing violation theories. Selan v. Kiley, 969 F.2d 560, 59 FEP Cases 775 (7th Cir. 1992). The first theory stems from " `cases, usually involving hiring or promotion practices, where the employer's decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the "violation" occurred.' " Id. at 565 (citation omitted). The second theory stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory. Id. at 565 (citation omitted). The third continuing violation theory stems from cases in which " `the plaintiff charges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open notorious policy .. In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory acts.' " Id. at 565 (citation omitted).

It is the third theory, if any, that is relevant here. Under the third theory, the question is "whether the defendants' acts were `related closely enough to constitute a continuing violation' or were `merely discrete, isolated, and completed acts which must be regarded as individual violations.' " Selan at 565. In Selan, the court cited the three factors enumerated in Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981, 32 FEP Cases1567 (5th Cir. 1983), that the Fifth Circuit suggested be used to make this determination. They are as follows:

"The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?"

Selan, at 565.

First of all, skipping right to the third Berry factor, the record in this case indicates that the alleged discriminatory actions in terms and conditions of employment cited by the complainant were actions that should have triggered the complainant's awareness of and duty to assert her rights much sooner than December 1998. Indeed, that this should have been obvious to the complainant is evident based on the very arguments the complainant has submitted to the commission. Specifically, in her written argument, the complainant accuses Dr. Iorio of having engaged in discriminatory conduct prior to 1990, and asserts that she began her employment under Dr. Iorio "in this climate." One would expect that an employee who had held such views of an individual before he became her supervisor would certainly be more alert to and assertive of her rights in the face of conduct believed to be discriminatory toward her after coming under that individual's supervision.

But what appears to be most decisive in precluding the complainant's use of the continuing violation theory in connection with her terms and conditions of employment claim is that the complainant is unable to point to any alleged discriminatory action occurring during the limitations period regarding this claim that can serve as the anchor for the earlier alleged conduct.

The complainant's claim with respect to the continuous running of the window air conditioner does not suffice. As noted by the court in Galloway v. General Motors, 78 F.3d 1164, 1167, 70 FEP Cases 341 (7th Cir. 1996), a "plaintiff may not base her suit (in some cases his suit) on conduct that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct." (Underlining emphasis added)(citations omitted). By the complainant's own admission, the alleged continuous running of the window air conditioner began in "the early 1990's." Clearly, by no later than the complainant's claimed near death in 1993, this should have triggered the complainant's awareness of and duty to assert her rights. Clearly, by then this should have indicated to her that the continued existence of the consequences of this act was to be expected without being dependent upon a continuing intent to discriminate.

The only other allegation the complainant makes regarding her terms and conditions of employment involves the respondent's assignment of gross anatomy duties to her in the fall of 1997. The complainant alleges that she was a biochemist with asthma who was assigned to be in a gross anatomy laboratory. Assuming for purposes of argument that this claim is in part about alleged sex discrimination, it also fails because it would not have been unreasonable to expect the complainant to sue before the statute ran on that conduct. Specifically, the act of assigning gross anatomy duties had the degree of permanence that should have triggered her awareness of and duty to assert her rights.

The termination proceeding that began in 1996 must be considered merely a discrete, isolated and completed act, and regarded as an individual alleged violation. Clearly, the initiation of termination proceedings against the complainant in 1996 had the degree of permanence that should have triggered the complainant's awareness of and duty to assert her rights. Indeed, the complainant pursued an appeal of the decision to terminate her employment to the respondent's Committee on Faculty.

Accordingly, the only viable claim that the complainant has is whether or not the respondent discriminated against her on the basis of her sex when it terminated her employment in 1998. As set forth in Dr. Buckholdt's February 26, 1998 letter to the complainant, the reasons given for her termination were as follows: The complainant had not adequately performed her academic responsibilities, the most egregious failure being the mistreatment of students that culminated in the refusal of the College of Nursing and School of Dentistry to let her teach their students; her minimal scholarship and service efforts had not improved with the increased time available since her suspension from teaching; and her willful refusal to accept, as part of the respondent's attempt to bring her teaching skills up to an acceptable level, the gross anatomy assignments, or to provide documentation that she was medically unable to complete those assignments.

With respect to the College of Nursing and the School of Dentistry's refusal to allow her to teach their students, the complainant asserts, as evidence that this reason given for her termination by the respondent is unworthy of credence, that the semester that she was discharged she was assigned to teach anatomy to nursing students and assigned to present biochemistry lectures to dental students. This argument fails. It is clear from the record that these teaching assignments given to the complainant were supervised teaching settings that had a goal of improving her teaching skills.

Further, the complainant asserts that statistical evidence involving the representation of full-time women in her department from 1977 until the 1997- 1998 school year when she was discharged, provides evidence of gender discrimination, and therefore gender discrimination must be considered as motive for her discharge. Apparently, the complainant argues this is so because in 1997 she was the only female out of the 15 full-time faculty in her department and that after her discharge there was only one full-time female faculty member in her department. Statistical evidence may constitute some evidence to support a showing of intentional discrimination against her as an individual. Riordan v. Kempiners, 831 F.2d 683, 698, 44 FEP Cases 1355 (7th Cir. 1987). However, here the complainant's statistical evidence has no probative value due to the absence of any examination of the underlying employment decisions, and the motives of the decision-makers involved in those decisions. The complainant also attempts to make a case by her assertions that of the three full-time female faculty members that were hired between 1977 and 1997, only one was granted tenure, and that Dr. Iorio was involved in two of the three females not receiving tenure. This argument also fails. The alleged basis cited by the complainant for one of the females not receiving tenure was purely hearsay, and she failed to cite any basis for the other female not receiving tenure.

Finally, the complainant has attributed various alleged comments and conduct to Drs. Iorio and Brooks as indicating "direct evidence" of discrimination. However, direct evidence of discrimination refers to "...direct evidence that the employment decision at issue was based upon an impermissible factor." McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 686, 55 FEP Cases 115 (7th Cir. 1991). What must be shown is that the employer actually relied on her gender in making its decision. Id. Not only do the alleged comments and conduct cited by the complainant relate to alleged incidents having nothing at all to do with the complainant's termination of employment, they relate to alleged incidents occurring at some unknown period prior to 1990.

The commission has carefully considered the arguments raised by the complainant. However, the commission concludes that the record fails to show reasonable ground for belief that the respondent terminated her employment on the basis of her sex. Accordingly, the commission has affirmed the ALJ's dismissal of her complaint against the respondent.

NOTE: The ALJ's written decision does not include specific conclusions of law as to the complainant's claims of sex discrimination with respect to her terms and conditions of employment and her termination of employment. Instead, the ALJ has made a conclusion of law stating only that "Ms. Talley-Ronsholdt failed to establish that there was probable cause to believe that Marquette violated the Wisconsin Fair Employment Act as alleged" (apparently referencing his earlier recital of the complainant's claims described in the "BACKGROUND" section of the decision). (Bold emphasis added.) The complainant did allege two distinct discriminatory actions. The decision fails to make clear the ALJ's basis for disposing of each alleged discriminatory action. This becomes quite evident when the ALJ's "SUMMARY OF DECISION" statement is read. The summary states: "The Complainant failed to establish any evidence that her sex played any role in the Respondent's decision to terminate her employment." The summary of decision statement makes absolutely no mention of the sex discrimination with respect to terms and conditions of employment issue.

It could be that the ALJ's decision specifically fails to mention the terms and conditions claim because he realized that a timely complaint had not been filed with respect to that claim. Whatever the case, it is believed that it is more appropriate that a specific conclusion of law be made with respect to each alleged discriminatory action at issue in a case. For this reason, the commission has modified the decision deleting paragraph 2 of the conclusion of law, and inserting two new conclusions of law.

cc: E. Vanessa Jones

Appealed to Circuit Court. Affirmed August 14, 2001.

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Footnotes:

(1)( Back ) Basic Health Science.

(2)( Back ) Complainant Talley-Ronsholdt's December 16, 1998, complaint filed with the EEOC was cross-filed with Wisconsin's Equal Rights Division, with whom it has a worksharing agreement.

uploaded 2001/02/14