MARGARET A. VALERI, Complainant

DELCO ELECTRONICS - GENERAL MOTORS, Respondent

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an order of Dismissal in the above-captioned matter on February 28, 1992. Pursuant to sec. 111.39(5)(b), Stats., a timely petition must be filed within 21 days from the date that a copy of the findings and order is mailed. The Complainant filed a petition on March 25, 1992.

Based upon a review of the record in its entirety, and as more fully explained in the Memorandum Opinion, the Labor and Industry Review Commission issues the following:

1. The Commission accepts the Complainant's petition for Commission review as timely.

2. The decision of the Administrative Law Judge is reversed, and the matter remanded to the Equal Rights Division for hearing on whether the Complainant's complaint was filed within the 300-day statute of limitations. If the complaint is found to be timely filed, hearing shall then be scheduled on the issue of whether there is probable cause to believe the Respondent, as alleged in the complaint, violated the Wisconsin Fair Employment Law, secs. 111.31-111.395, Stats., by discriminating against Complainant in terms or conditions of employment with regard to handicap and/or sex. (1)

Dated and mailed July 17, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

TIMELINESS OF THE PETITION

The Administrative Law Judge's Order of Dismissal -- Lack of Jurisdiction was issued on February 28, 1992. Attached to the Administrative Law Judge's decision and order was a Notice of Appeal Rights -- Review by Court. This notice apprised both parties that a petition for review must be filed within 30 days after the decision is mailed and the petition must be filed in the office of the clerk of the circuit court for the county where the petitioner resides. The Equal Rights Division Hearing section incorrectly attached the circuit court notice of appeal rights. The correct notice of appeal rights should have referenced a petition to the Labor and Industry Review Commission, and noted that the time frame was 21 days and not 30 days.

The Complainant's petition was received on March 25, 1992, 26 days after the Administrative Law Judge's decision and order were mailed. Thus, although the Complainant's petition was received after the 21-day petition deadline provided pursuant to sec. 111.39(5)(b), the Complainant was incorrectly apprised of the time frame and filed the petition within 30 days stated on the notice of appeal attached to the Administrative Law Judge's decision.

Section 227.48(2) of the Administrative Procedures and Review chapter provides:

"Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to name as respondent. No time period specified under s. 227.49(1) for filing a petition for rehearing, under s. 227.53 (1) (a) for filing a petition for judicial review or under any other section permitting administrative review of any agency decision begins to run until the agency has complied with this subsection."

Because the Division failed to appropriately notify the Complainant of the correct time allowed for filing, the commission accepts the Complainant's petition as timely. Consequently, the Commission may review the Administrative Law Judge's order dismissing the Complainant's complaint.

REVIEW OF ADMINISTRATIVE LAW JUDGE'S ORDER OF DISMISSAL

On June 8, 1990, the Complainant filed a complaint alleging that the Respondent violated the Wisconsin Fair Employment Act, secs. 111.31-111.395, by discriminating against the Complainant in terms or conditions of employment because of a handicap and because of her sex. An Initial Determination issued on April 9, 1991, found no probable cause to believe that such discrimination occurred and the complaint was dismissed. The Complainant filed a timely appeal, and the matter was certified to hearing. Pursuant to the notice, a probable cause hearing was scheduled for March 6, 1992, before an Administrative Law Judge. Prior to hearing, the Respondent filed a motion to dismiss and memorandum. Based upon this motion and Complainant's response, the Administrative Law Judge issued an order dismissing the Complainant's complaint as untimely, finding that the discriminatory act complained of was communicated to the Complainant on or about April 19, 1989. Consequently, the Administrative Law Judge concluded that the Complainant's filing of June 4, 1990 was untimely, as it was not within the 300-day statute of limitations. The Administrative Law Judge cited both the Respondent's and Complainant's affidavits in support of his decision.

Recent Commission decisions highlight the procedure in which dismissal motions prior to hearing have been addressed by the commission. In Olson v. Lilly Research Laboratories (LIRC, 6/25/92), the Commission reasoned that an Administrative Law Judge may in appropriate circumstances, dismiss a complaint prior to hearing when it appears that even if what is claimed by the complainant is true, a decision in favor of the respondent is nevertheless required as a matter of law. However, making such an analysis should involve simply looking at what the complainant asserts. This must be done because summary judgment procedure as defined in sec. 802.08, Stats. is inapplicable in an equal rights proceeding. The Commission also explained in a previous decision that "there is no proceeding whereby respondent merely by filing a motion and supporting affidavit which disputes material facts alleged by the complainant, can somehow force the complainant to file responsive affidavits or risk having the case decided on the version of the facts advanced by the respondent. Respondent may file a motion raising an issue as to the adequacy of the complainant's claim, but in evaluating such an issue, the Administrative Law Judge should look simply to what the complainant alleges, and to any other assertions of the complainant which provide an indication of the nature of the claim." Betty Alvey v. Briggs and Stratton (LIRC, 11/27/91). Thus, following the procedure outlined in Olson and Alvey, the Administrative Law Judge and/or Commission may only review the complainant's assertions. In this case, these assertions can be found in the Complainant's complaint, her affidavit and brief in response to the Respondent's motion to dismiss. The Respondent's affidavit as to when the communication of the employe's seniority date occurred cannot be reviewed.

The Complainant's complaint does not specifically allege when the alleged discriminatory decision was made or when it was communicated to the Complainant. However, the Complainant suggests in her complaint that she became aware of the act when "the employer recently altered her seniority in a manner inconsistent with the collective bargaining agreement." The complaint was prepared on June 4, 1990 and received by the Division on June 8, 1990. Presumably recently refers to a date sometime in 1990.

Additionally, relevant portions of the Complainant's affidavit indicate communication of the extension of her seniority date in early spring of 1990. In the Complainant's own affidavit in opposition to the Respondent's motion she stated:

"In April of 1989, shortly after I had completed my apprenticeship, I was approached by a union representative, who asked me to sign an agreement to change my seniority date to that of November 2, 1983. I refused to sign such an agreement and I did not hear anything further on the matter.

In late February or early March of 1990, a new seniority list was posted which reflected the change in my seniority date to November of 1983. Prior to the posting of this list I was never made aware of any change in my seniority date. Also, to my knowledge, Mr. Mark Burbey's date has remained unaltered."

Based on these assertions, the Commission concludes that neither the Commission nor the Administrative Law Judge can conclusively determine that the Complainant's filing was untimely. The only reviewable document indicates that the communication of this alleged discriminatory decision occurred approximately four months prior to the Complainant's filing of her complaint. Although an argument can be made that the Complainant was aware of the act as of April 19, 1989, the fact is the Complainant has not asserted this and consequently this argument cannot be treated as an assertion by the Complainant. Resolution of when the employer made the alleged discriminatory decision and when that decision was communicated to the employe cannot be resolved without a hearing. A hearing will provide both parties with the appropriate forum to litigate this procedural issue and allow the Administrative Law Judge to assess the witnesses' credibility as to when the Complainant actually became aware of the change in her seniority date. The Commission notes that a hearing will not prevent the Respondent from requesting a dismissal or the Administrative Law Judge from ordering a dismissal. However, in view of the required procedure discussed in Olson and Alvey, a dismissal order under these circusmtances cannot be supported without a hearing on this issue.

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(1)( Back ) With the parties' agreement, the Department may wish to schedule the hearing with respect to the timeliness of the complaint and the hearing on probable cause at the same time in order to avoid having to schedule a second hearing if Complainant's complaint is found to be timely.

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