SHARON WEBSTER, Complainant

APPLETON PAPERS INC, Respondent

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.

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

Dated and mailed December 23, 2002
webstsh . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The ALJ's dismissal of the complainant's complaint on the grounds that it was not timely filed was apparently done pursuant to and under authority of § DWD 218.10 of the Wisconsin Administrative Code. This provision states that a complaint may be dismissed based upon the conditions set forth in § DWD 218.05(1)(including whether the complaint was filed timely) after the case has been certified to hearing. (1) This provision also states that in determining whether to dismiss the complaint, the ALJ may consider, among other things, the documents presented by any party.

Sharon Webster's complaint asserts that in January 1969 her employment was terminated due to a pregnancy and that she was hired back as a new employee on July 21, 1969, causing her to lose 5.5 years of seniority and vacation. Continuing, the complainant asserts that in 1976 she filed a grievance with the union and thereby had her original seniority date of December 9, 1963 reinstated. Lastly, and the basis for her present complaint, the complainant asserts that on May 15, 2002, it was brought to her attention that she had lost 6 months of retirement benefit service (as a result of her January 1969 termination). She filed her complaint alleging sex discrimination with the division on June 5, 2002.

Webster's situation is very similar to the situation that confronted the plaintiff in United Airlines, Inc. v. Evans, 431 U.S. 553 (1977). There, the plaintiff was forced to resign her position as a flight attendant in February 1968 pursuant to United's "no marriage rule." However, because such no marriage rule was held to violate Title VII, the plaintiff was later rehired in February 1972, but as a new employee without the benefit of her previous seniority. Under the collective bargaining agreement between United and the union, seniority was irrevocably lost or broken after separation from employment of flight attendants who resigned or whose services were severed for just cause. On February 21, 1973, more than five years after her original termination, the plaintiff filed a charge of discrimination because of United's failure to give her credit for her pre-1972 seniority. While agreeing that the plaintiff was correct in pointing out that the seniority system gave present effect to a past act of discrimination, in Evans, the Court stated:

But United was entitled to treat that past act as lawful after (the plaintiff) failed to file a charge of discrimination within the 90 days then allowed by (Title VII). A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

431 U.S. at 558.

Further, addressing the seniority system's continuing impact on the plaintiff's pay and fringe benefits the Court stated:

But the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists. She has not alleged that the system discriminates against former female employees or that it treats former employees who were discharged for a discriminatory reason any differently from former employees who resigned or were discharged for a nondiscriminatory reason. In short, the system is neutral in its operation.

Id.

The principles of Evans equally apply to the complainant's situation, although it is the respondent's Retirement Plan and not the seniority system that causes her lost months of Benefit Service.

A copy of this plan was submitted to the Equal Rights Division by the respondent and appears in the case file. Throughout the complainant's tenure at the respondent, the respondent has maintained a Retirement Plan for its employees. Under the Retirement Plan, the retirement benefits of any individual employee are based upon that employee's years of Benefit Service. With respect to service between July 1, 1953 and January 1, 1972, the Retirement Plan provides that for each 12-month period from July 1 through June 30 ending prior to July 1, 1967, and each of the calendar years 1968 through 1971, where the employee has 1,800 or more compensated hours a full year of Benefit Service is granted. However, where the employee's total compensated hours is less than 1,800, one-twelfth of one year of Benefit Service is granted for each 150 hours.

The respondent states that as a consequence of the time the complainant was not employed during 1969, she had only 750 compensated hours for that year, and as a result received five-twelfths of a year credit toward her Benefit Service.

Like the plaintiff in Evans, the complainant has waited years (in this case some 30 years) beyond her original termination in January 1969 before filing a charge of discrimination with respect to her loss of Benefit Service. Wisconsin Statute § 111.39(1), however, requires that a complaint charging discrimination be filed no more than 300 days after the alleged discrimination occurred. (2)   Discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. Hilmes v. DILHR, 147 Wis. 2d 48, 50 433 N.W.2d 251 (Ct. App. 1988).

The complainant apparently suggests, however, that her June 2002 complaint should be considered timely filed because she discovered in May 2002 that her retirement package did not include six months of Benefit Service from January 1969 until July 1969. This argument fails, however. The respondent has maintained its retirement plan throughout the complainant's employment. Thus, she knew or should have known back in 1969, when her employment was terminated in January and she was later rehired in July, what effect her loss of hours of work would have on her Benefit Service for the year 1969.

The complainant's claim here simply boils down to a claim about the present effects of a past act of discrimination. However, like the plaintiff in Evans, she has not alleged that she is being treated differently under the Retirement Plan than any other employee, male or female, who worked fewer than 1,800 compensated hours in 1969. She has not alleged that the respondent's Retirement Plan is discriminatory. A neutral retirement plan cannot alone constitute a present discriminatory practice.

cc: Attorney John J. Kalter

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(1)( Back ) This case was certified to hearing at the same time the investigator's Initial Determination was issued on October 23, 2002.

(2)( Back ) The Act's 300-day statute of limitations became effective on July 1, 1977. Chapt. 29, Laws of 1977. Apparently, a six-year statute of limitations applied to causes of action arising prior to July 1, 1997. Tucker v. Harley-Davidson Motor Co., 454 F. Supp. 738, 741 (E.D. Wis. 1978). Webster thus would have had until January 1975 to file a complaint of sex discrimination.

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