GORDON KEUP, Complainant

MAYVILLE METAL PRODUCTS, Respondent

An administrative law judge (AL J) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter on May 12, 1995, dismissing the complainant's complaint on the ground that it had failed to meet the timeliness requirements under the Wisconsin Fair Employment Act, section 111.39(1), Stats. A timely petition for review was filed.

Based upon a review of the record, and for reasons set forth in the memorandum opinion portion of this decision, the commission hereby issues the following:

The decision of the administrative law judge is hereby set aside and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed June 22, 1995
keupgorv . rpr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

BACKGROUND

The complainant was employed by the respondent until his discharge on July 10, 1992. In early January 1993, he contacted the Milwaukee District Office of the Equal Employment Opportunity Commission (EEOC) regarding his discharge. In a letter dated January 6, 1993 (Exh. 3), the EEOC advised the complainant that additional information was needed to "prepare the papers necessary for a charge of discrimination to be filed." The complainant was instructed to complete an Intake Questionnaire enclosed with the letter and to return it to the EEOC. The letter informed him that an investigator would subsequently contact him by telephone for an interview. The January 6 letter also advised the complainant that "a charge must be signed and received in our office within 300 days of the date the alleged act of discrimination occurred."

The complainant completed the Intake Questionnaire (Exh. 2), supplying among other things, his full name and address, telephone number, date of birth, the full name and address of the respondent and approximate number of employes, the date the alleged discrimination last occurred (7/10/92), the names of the individuals at respondent believed to have discriminated against him, the basis upon which he believed that action was taken against him (age-over 40), and a clear statement as to why he believed that he was discriminated against because of his age. (He was the oldest and highest paid employer he had been led to believe that he was doing well in his job; he was never told that he was not performing as expected; he was replaced by another employe two days after he was let go and that he had three meetings with the personnel director and was given a different reason each time.)

At the bottom of the second page of the Intake Questionnaire completed by the complainant was some standard language about how the Intake Questionnaire form was covered by the Privacy Act of 1974. A statement included in this section of the form reads: "PRINCIPAL PURPOSES: The purpose of this questionnaire is to solicit information to enable the Commission to avoid the intake of matters not within its jurisdiction."

The complainant signed the Intake Questionnaire and it is dated "1-20-93." The lower right hand corner on the first page of this questionnaire contains a date stamp showing that it was received at the Milwaukee district office on February 11, 1993. (The case file contains a letter dated March 12, 1993, from the EEOC stating that "Since your initial contact, we have not heard from you or received the additional information needed in order for us to process your complaint. This office is still ready to assist you if you wish to pursue this matter." (emphasis added) The March 12 letter goes on to request that the complainant contact the writer of the letter within 10 days. This letter is curious in view of the EEOC's February 11, 1993, date stamp of the Intake Questionnaire completed by the complainant.)

As far as can be determined, the complainant complied with all the instructions given him by the EEOC. A letter dated May 3, 1993, was sent by the EEOC to the complainant which reads, in part, as follows: "Enclosed are your potential charge of employment discrimination and affidavit which were prepared after our recent conversation." The complainant was instructed to sign, date and return the complaint and affidavit. The May 3 letter advised the complainant that if the EEOC did not hear from him within 30 days it would discontinue the processing of his charge. No statement appears in the letter advising him that the documents had to be received by a certain date (i.e., May 6, 1993) in order to be timely. The complainant signed the complaint and affidavit on May 6, 1993, and mailed them to the EEOC.

The EEOC complaint appears in the case file. It contains a date stamp showing that it was received at the Milwaukee district office on May 10, 1993. The EEOC evidently concluded, based upon the complainant's Intake Questionnaire, that he had filed a timely "charge" of discrimination since it notified the Equal Rights Division that pursuant to its worksharing agreement the complainant's charge of discrimination would initially be investigated by the EEOC. By letter dated July 14, 1994, the EEOC notified the complainant that it was terminating its processing of his age discrimination complaint. (It was the EEOC's practice, due to limited investigative resources, to attempt to correct alleged unlawful employment practices through conciliation but to terminate its investigation if conciliation was unsuccessful and allow the state agency to complete the investigation. EEOC failed to resolve the matter through conciliation.) At this point the ERD began processing the complainant's complaint of age discrimination. An initial determination of no probable cause was issued. The complainant appealed and a hearing was then scheduled. At the hearing the respondent moved to dismiss the complaint on the ground that it had not been received within 300 days of the alleged discrimination. The ALJ agreed and dismissed the complaint.

DISCUSSION

The ALJ dismissed the complaint for failure to meet the timeliness requirements of section 111.39(1) of the Wisconsin Fair Employment Act. That section provides, in part, that "The department may receive and investigate a complaint charging discrimination, discriminatory practices ...if the complaint is filed with the department no more than 300 days after the alleged discrimination ...." Filed means physically received by the department. Ind 88.01(6). The date May 10, 1993, is exactly 304 days from July 10, 1992. However, under federal law the complainant's claim of discrimination was considered as having been received timely, and having been received timely in the federal forum made it timely before the ERD.

Section 1626.10 of the Age Discrimination in Employment Act Procedural Regulations provides that the EEOC may enter into agreements with state or local fair employment practice agencies and may engage the services of such agencies in processing charges assuring the safeguard of the federal rights of aggrieved persons. Section 1626.10(c) of the regulations state that:

"When a worksharing agreement with a State agency is in effect, the State agency will act on certain charges and the Commission will promptly process charges which the State agency does not pursue. Charges received by one agency under the agreement shall be deemed received by the other agency for purposes of s.1626.7." (1) (emphasis added)

Wisconsin is designated as a referral agency with which the EEOC has a worksharing agreement. Section 1626.09(b).

With respect to timeliness of charges, s.1626.7 of the regulations provides that in a case where the alleged discriminatory action occurs in a state which has its own age discrimination law and authority administering that law, charges shall be filed with the EEOC within 300 days of the alleged discriminatory action.

A "charge" is defined to mean "a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or about to engage in violations of the Act." Section 1626.3. "A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act (s) ...." Section 1626.06. Additionally, section 1628.8 of the regulations state as follows:

"(a) In addition to the requirements of s.1626.6, each charge should contain the following:

(1) The full name, address and telephone number of the person making the charge;

(2) The full name and address of person against whom the charge is made;

(3) A clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices;

(4) If known, the approximate number of employees of the prospective defendant employer...

(5) A statement disclosing whether proceedings involving the alleged unlawful employment practice have been commenced before a State agency charged with the enforcement of fair employment practice laws and, if so, the date of such commencement and the name of the agency.

(b) Notwithstanding the provisions of paragraph (a) of this section, a charge is sufficient when the Commission receives from the person making the charge either a written statement or information reduced to writing by the Commission that conforms to the requirements of s.1626.6."

The courts have held that a complainant's timely filing of an Intake Questionnaire with the EEOC may constitute a "charge" for purposes of the ADEA's 300-day filing period. For instance, in Steffen v. Meridian Life Insurance Co., 859 F.2d 534, 48 FEP Cases 173 (7th Cir. 1988), where the complainant had completed an Intake Questionnaire within the limitations period but did not file a charge challenging the alleged discriminatory action until after the limitations period had run, the court held that the Intake questionnaire satisfied the charge-filing requirement. The court explained that "The purpose of the charge-filing requirement is to provide the EEOC with sufficient information to notify an employer that it has been charged with discrimination and to provide the EEOC with the opportunity to investigate the alleged unlawful practice as well as to provide the EEOC with the opportunity to eliminate any unlawful practice through informal conciliation." Further, the court went on to state:

"...it would be a needless triumph of form over substance to hold that (Steffen's) completed Intake Questionnaire did not satisfy the ADEA's charge-filing requirement. As noted above, the information contained in the Intake Questionnaire contains sufficient information to satisfy the EEOC regulations concerning the sufficiency of charges. More important, Steffen made clear to the EEOC's Intake Officer that he intended to `activate the Act's machinery.' Steffen was sent to the EEOC for the sole purpose of preserving his right to bring suit by complying with the charge-filing requirement. He communicated that purpose to the EEOC and then followed the EEOC's instructions on how to satisfy the charge-filing requirement. Under these circumstances, the Intake Questionnaire clearly gave the EEOC more than reasonable notice that, by filing the Intake Questionnaire, Steffen intended to `activate the Act's machinery."

Similarly, as set forth above, complainant Keup's timely completed Intake Questionnaire contained sufficient information to satisfy the EEOC's regulations concerning the sufficiency of charges. In fact, Keup clearly supplied all the information required by the EEOC regulations. Further, he communicated his intent to "activate the Act's machinery" as evidenced by his completion and return of the Intake Questionnaire shortly after being providing such form. Complainant's exhibit no. 1 shows that the Intake questionnaire was received by the EEOC well within the 300 day statute of limitations period.

Other cases following Steffen include Downes v. Volkswagen of America, 59 FEP Cases 440 (N.D. I11. 1992)(Intake Questionnaire that employe completed on his initial visit to EEOC within 300 days of his removal from his position constitutes timely ADEA charge, even though he completed charge form 391 days after last allegedly discriminatory act, since information provided on questionnaire was in writing,- identified proper respondent and adequately alleged discriminatory acts against him.) and Early v. Bankers Life, 959 F.2d 75, 63 FEP Cases 363 (7th Cir. 1992)(Intake Questionnaire that complainant filled out satisfied the requirements for a formal charge because it contained all the information that a charge would have contained -- it made clear who was being charged by whom with what -- and because both he and the EEOC treated the filled-in questionnaire as the formal charge.)

Since the complainant's timely completed Intake Questionnaire that was submitted to the EEOC satisfied the charge-filing requirements for purposes of the ADEA's 300-day filing period, and since a "charge" received timely by the EEOC is also deemed to be received timely by the state agency with whom the EEOC has a worksharing agreement such as Wisconsin Equal Rights Division, the complainant's complaint before the ERD was erroneously dismissed.

Accordingly, the ALJ's decision dismissing the complaint in this matter must be set aside and the case remanded for further proceedings before the ERD.

cc: 
Allan D. Krezminski
Lisa A. Lopatka

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(1)( Back ) Ind 88.02(6) also provides that a complaint "is filed (with the division) when received by the federal (equal opportunity) ...agency."

uploaded 2001/11/16