MARIE M. STONE, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on May 25, 2001. A timely petition for commission review was filed by the complainant, Marie Stone.

For reasons stated in the memorandum opinion attached to this decision, the Labor and Industry Review Commission has determined that the decision of the ALJ must be set aside and this matter remanded for further proceedings. The commission therefore issues the following:

The administrative law judge's May 25, 2001 decision issued in this matter is set aside, and this matter is remanded to the Equal Rights Division with instruction that it remand the matter to its Civil Rights Bureau for investigation and issuance of a new Initial Determination that addresses all of the allegations of Stone's complaint.

Dated and mailed August 17, 2001
stonema . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

BACKGROUND

Counsel retained by complainant Marie Stone at the time filed a complaint of disability discrimination with the Equal Rights Division on her behalf. The complaint states that Stone was appointed to the position of Building Service Helper I in 1988, and subsequently received a job offer for the position of Boiler Attendant Trainee contingent upon a pre-placement physical examination. The complaint then outlines various alleged actions the respondent took against her beginning on March 31, 1999, following two earlier medical reports that restricted her to a 25-pound lifting restriction and other limitations, including occasional but not repetitive bending. One of the medical reports was from a medical center that conducted pre-placement physical examinations for the respondent and the other was from Dr. Flatley, Stone's own treating physician.

The complaint alleges that on April 20, 1999, Stone consulted a Dr. Davito regarding her condition who recommended a 50 pound weight restriction and limited bending and stooping, but that the respondent refused to act upon Dr. Davito's recommendation and demanded clarification from Dr. Flatley. The complaint alleges that Stone then had an appointment with Dr. Flatley who opined that the respondent could follow Dr. Davito's recommended restrictions, and that Dr. Flatley communicated this position to the respondent by letter dated May 17, 1999.

The complaint alleges that on or about May 26, 1999, the respondent informed Stone "that it perceived that I am not physically qualified to perform the functions of a Boiler Attendant Trainee or a Building Service Helper I," and that the respondent suspended her employment on May 26, 1999, based upon a perceived disability.

The complaint also alleges various things that occurred after Stone's suspension from work. These allegations related to leaves of absences she took, and the effort she made to establish her ability to work. Included in the complaint as allegations regarding her effort to establish her ability to work were the following:

A. On September 1, 1999, her counsel communicated on her behalf to MPS a formal request for her return to her previous position effective immediately. That her treating physicians authorized her return. On September 2, 1999, MPS denied this request pending review of medical documentation from her physicians. (Paragraph 14)

B. On September 14, 1999, Dr. Davito provided a letter stating that she could return to her position with a maximum lifting restriction of 50 pounds and no repetitive bending and stooping. That MPS received this letter but refused to allow her to return without disclosure of her complete medical file. (Paragraph 15)

C. On December 15, 1999, MPS was provided with Dr. Davito's medical records regarding her treatment. (Paragraph 20)

D. On December 20, 1999, MPS requested direct discussion with Dr. Davito and Dr. Flatley regarding her treatment. (Paragraph 21)

E. On January 10, 2000, she authorized the disclosure of her medical records with Dr. Davito and Dr. Flatley to MPS. (Paragraph 22)

F. On February 15, 2000, MPS notified her counsel that it perceived that she was not medically qualified to perform as a Building Service Helper I or Boiler Attendant Trainee but that MPS would discuss alternative employment, General Educational Assistant at the hourly rate of $8.63. That she earned an hourly rate of $12.50 as a Boiler Attendant Trainee.." (Paragraph 23)

By letter to the ERD dated December 20, 2000, Stone's retained counsel withdrew as her attorney in this matter.

On February 8, 2001, an investigator for the Equal Rights Division issued two separate determinations regarding the complainant's complaint of alleged disability discrimination. One was a "PRELIMINARY DETERMINATION AND ORDER" and the other was an "INITIAL DETERMINATION-NO PROBABLE CAUSE." The preliminary determination and order decided that the complainant filed her complaint on August 10, 2000 (1), and that any alleged actions predating October 10, 1999 (sic) (2) were untimely. The preliminary determination and order therefore dismissed this portion of the complaint. The initial determination also dismissed the remainder of the complaint, deciding that there was no probable cause to believe the respondent had violated the Act by discriminating against the complainant in her terms or conditions of employment because of disability or by refusing to reasonably accommodate a disability.

Information regarding appeal rights was included in each determination issued by the division. The preliminary determination and order informed the complainant that dismissal of this portion of the complaint would become final unless written appeal was received by the division within 20 days after February 8, 2001. The initial determination informed the complainant that the dismissal of her complaint would become final unless written appeal was received within 30 days of February 8, 2001.

On February 21, 2001, the division received a facsimile transmission from Stone with the following heading:

"RE: Request for Appeal of Preliminary Determination and Order, dated February 8, 2001."

Stone noted in her appeal that the division decided that this portion of the complaint does not meet the timeliness requirements under the Act, and then followed with her response. Stone asserted that "The discrimination is still 'on going' to date" and referenced an enclosed "Summary of Events" last updated on December 18, 2000.

Stone did not file an appeal of the initial determination. Also, Stone's appeal of the preliminary determination made no reference to the initial determination. Pursuant to Wis. Admin. Code § DWD 218.08(2), this would mean that the initial determination became final.

Stone's appeal of the preliminary determination was referred to ALJ Schacht for review of the preliminary determination. The ALJ issued a decision affirming the preliminary determination. The ALJ noted that Stone's appeal alleged a continuing violation but that discrete actions such as that alleged to have occurred on May 26, 1999, were not part of a continuing violation, and, even if they were, maintaining a continuing violation claim would have required appealing both determinations because the investigator divided the complaint into what happened before October 10, 1999, and what occurred on or after that date. Further, noting that Stone's appeal did not appear to allege that her complaint was timely regarding the decision made by the respondent on or about May 26, 1999, the ALJ determined that there was no basis for even considering that allegation to be timely.

DISCUSSION

Although not specifically articulated by Stone in her petition for review, the commission concludes that Stone's complaint should never have been divided into what happened before October 10, 1999, and what occurred on or after October 10, 1999. The reason (and a suggested better procedure for handling complaints that contain both legally viable allegations and legally inadequate ones) was stated by the commission in a note in the recently decided case of Woodford v. Norwood Health Center (LIRC, 5/11/01). There the commission stated as follows:

"Wis. Admin. Code Ch. DWD 218.05, 'Preliminary Review Of Complaints,' provides that the department shall review every complaint filed to determine whether the complainant is protected by the act, whether the respondent is subject to the act, whether the complaint states a claim for relief under the act, and whether the complaint was filed within the time period set forth in the act (if that issue is raised in writing by the respondent). The rule also provides that 'the department shall issue a preliminary determination dismissing any complaint which fails to meet [those] requirements' (Emphasis in original).

If a complaint contains some allegations that satisfy the requirements described in DWD 218.05, it would clearly be improper to dismiss the entire complaint just because it also contains some allegations that do not satisfy those requirements. However, DWD 218.05 authorizes only one type of action, and it is precisely that: dismissing the entire complaint. It does not speak of dismissing individual allegations which do not meet those requirements. By contrast, DWD 218.07(3), which relates to Initial Determinations finding no probable cause, does expressly provide for dismissing individual allegations of a complaint. That this is provided for expressly in one section of the rules is reason to question whether it is fair to treat it as being implied in another section of the rules, a section that seems, by its express terms, to involve only the situation of dismissing an entire complaint. (Emphasis in original)

An alternative way of handling complaints which contain both legally viable allegations and legally inadequate ones, would be to submit them to the normal probable cause/no probable cause investigation process and to issue an Initial Determination finding 'no probable cause' as to the legally inadequate allegations (with reference to their legal problems as the rationale for the 'no probable cause' decision). That would result in a more conventional form of 'split decision,' one the ERD has rules and procedures in place to deal with. It would also appear to comport better with the language of the rules."

The fact that Stone's complaint herein was not handled in a manner that comports with the department's rules means that the issuance of a preliminary determination to handle what happened before October 10, 1999, and an initial determination to handle what occurred on or after that date, is null and void. It is for this reason that the commission has remanded this matter to the ERD with instructions that it remand the case to the Civil Rights Bureau for an investigation and issuance of an initial determination that addresses all of the allegations of Stone's complaint.

While the Civil Rights Bureau will need to conduct its own investigation before reaching a determination as to whether or not Stone's complaint alleges a continuing violation, the commission provides the following as a guide when it makes such determination.

The Wisconsin Fair Employment Act requires that a complaint charging discrimination be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1).

The continuing violation doctrine is an equitable exception to the 300-day limitations period. The continuing violation doctrine allows a complainant to get relief for a time-barred act by linking it with an act that is within the limitations period. Selan v. Kiley, 969 F.2d 560, 564 (7th Cir. 1994). For purposes of the limitations period, courts treat such a combination as one continuous act that ends within the limitations period. Id. There are three viable continuing violation theories:

"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.' (Citing Stewart v. CPC International, Inc., 679 F.2d 117 (7th Cir. 1982 )). The second theory stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory. Id.. 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. This brand of continuing violation has also been referred to as a 'serial violation,' (Citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 183 (1st Cir. 1989)), and as a 'pattern of ongoing discrimination.' Santos v. Rush-Presbyterian-St. Luke's Med. Ctr., 641 F. Supp. 353, 357 (N. D. Ill. 1986)..

Under the third theory, the question is.whether the defendant('s) 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.' Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983). The Fifth Circuit has suggested three factors to consider in making this determination:

The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing 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 the 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? Id.."

Selan, 969 F.2d at 565.

cc: MaryNell Regan

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(1)( Back ) The commission notes that there is correspondence from Stone's counsel in the case file indicating that the complaint may have been filed with ERD on April 19, 2000.

(2)( Back ) As noted in the ALJ's decision, 300 days before August 10, 2000, is actually October 15, 1999.

uploaded 2001/08/27