MARY A LAU, Complainant

LATEC CREDIT UNION, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a ruling on a motion to dismiss filed by respondent 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 information submitted to the ALJ. Based on its review, the commission rules as follows:

Factual and Procedural Background

The complainant, whose date of birth is June 3, 1944, was employed by respondent from July 16, 1979, through January 2, 2001. Complainant filed this age discrimination complaint on August 24, 2001. In her complaint, complainant alleges that she was discriminated against in regard to the following (1):

(1) Respondent required her to relocate to different space within the New Holstein office twice after the facility was remodeled in December of 1996. The second of these moves occurred in late 1999 or early 2000.

(2) Respondent directed that complainant be reassigned from its New Holstein office to its Kiel office. Complainant received notice in June of 2000 that this reassignment would be effected September 6, 2000. (2)

(3) "Jobs given to younger person." Complainant explained that this referred to her not receiving higher level training and resulting loan/credit card duties. These duties were assigned to co-worker Karen Lisowe (dob 5/20/63; seniority date 10/10/88) in January of 2000 after she had received the relevant training. This is the only instance cited by complainant in support of this allegation.

(4) Respondent directed complainant to perform back-up teller duties, which are generally regarded as less desirable duties, more frequently than younger co-worker Lisowe who was at the same position classification level. This began in January of 2000 and continued until complainant's separation in January of 2001.

(5) Respondent constructively discharged complainant in January of 2001.

After an initial determination finding probable cause was issued by an ERD investigator, but before the scheduled hearing, respondent filed a motion to dismiss for untimely filing and for failure to state a claim for relief. The ALJ granted the motion, and complainant filed a petition for commission review of the ALJ's ruling.

Motion to Dismiss for Untimely Filing

Allegations (1), (2), and (3)

The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). The actionable 300-day period for this complaint would be October 28, 2000, through August 24, 2001. It is obvious that none of the incidents underlying allegations (1), (2), or (3) occurred within this period. Complainant argues, however, that the complaint should be regarded as timely filed in regard to these allegations through application of the continuing violation doctrine. The commission disagrees.

Discrete employment actions are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). (3)

The U. S. Supreme Court's decision in AMTRAK v. Morgan clarified the state of the law regarding the continuing violation doctrine's application in equal rights cases. In this decision, the Supreme Court identifies two classes of employment actions, i.e., discrete acts, and harassing acts underlying hostile work environment claims, and holds that discrete acts are generally not subject to application of the continuing violation doctrine but harassing acts generally are. In its decision, the Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, award of compensation. The Court addressed the EEOC's and certain circuits' prior application of the continuing violation doctrine to serial or systemic violations and concluded that, "There is simply no indication [in the relevant language of Title VII] that the term 'practice' converts related discrete acts into a single unlawful practice for the purpose of timely filing. . . . We have repeatedly interpreted the term 'practice' to apply to a discrete act or single 'occurrence' even when it has a connection to other acts." As an example, the Court cites to its decision in Bazemore v. Friday, 478 U.S. 385, 92 L.Ed 2d 315, 106 S.Ct. 3000 (1986) where, in considering an allegedly discriminatory salary structure, it concluded that, "each week's paycheck that delivered less to a black than to a similarly situated white is a wrong actionable under Title VII."

Applying these principles to the present allegations, it is concluded that complainant's reassignment to the Kiel office, failure to receive the loan/credit card training/duties, and office moves were discrete acts not falling within the actionable period and not susceptible to application of the continuing violation doctrine.

Allegations (4) and (5)

Given the Court's holding in AMTRAK v. Morgan, each time complainant was directed to perform back-up teller duties would be considered a discrete act. As a result, the complaint was untimely filed as it relates to those back-up teller assignments pre-dating the actionable period. (4)   However, complainant also alleges that certain of these assignments occurred between October 28, 2000, the date the actionable period commenced, and January 2, 2001, the date of her separation. The complaint was timely filed as to these later assignments.

Since complainant's separation from employment occurred during the actionable period, the complaint was timely filed as to her constructive discharge allegation.

Motion to Dismiss for Failure to State a Claim for Relief

It will be concluded that a complainant has failed to state a claim for relief in a WFEA case if, even if what is claimed by the complainant is true, she cannot prevail as a matter of law. Olson v. Lilly Research Laboratories, ERD Case No. 9001499 (LIRC June 25, 1992) (5)

Respondent first argues that the complainant does not assert that the younger co- worker (Lisowe), who she alleges wasn't assigned the less desirable back-up teller duties as frequently as she, was similarly situated to complainant in terms of her job duties and responsibilities, and that this would be required for a showing of disparate treatment. However, complainant does assert in her deposition and briefs that she and this younger co-worker were at the same classification level and, as a result, because she was the more senior employee, complainant should have been assigned back-up teller duties on a less frequent basis than the co- worker. It will, of course, be complainant's burden at hearing to prove that she and Lisowe were actually similarly situated, but that is not the proper burden at this stage of the proceedings.

Respondent further argues that complainant does not assert that her immediate supervisor, Sharon DeCoster, who made the back-up teller assignments, discriminated against her. However, complainant does assert in her deposition that, although DeCoster was responsible for the back-up teller assignments and did not discriminate against complainant in carrying out this responsibility, she was accountable to Gerry Tiedt who did discriminate against complainant by requiring DeCoster to assign complainant to these back-up teller duties more frequently than Lisowe.

Finally, respondent contends that complainant "cannot prove that she was discharged or terminated from the Respondent," because she testified at her deposition that she would not say she was forced to retire, but just that she chose to do so for health reasons. However, a review of her entire deposition testimony reveals that complainant claims that the frequent discriminatory back-up teller assignments were causing her great stress, that she sought medical treatment as a result, and that her continuing health problems created by this stress led her to conclude that she had no choice but to resign. This is a classic constructive discharge scenario, and demonstrates that complainant has asserted that her separation from employment with respondent was not voluntary.

It is concluded as a result that complainant's charge of age discrimination does not fail to state a claim for relief in regard to allegations (4) and (5).

Other Arguments

Because the investigator made reference to disparate impact, the parties argued the applicability of a disparate impact analysis to this case. For purposes of clarification, the commission notes that, as she has indicated, the complainant is not advancing a disparate impact theory here.

The complainant also appears to argue that her complaint should not be dismissed because the investigator found probable cause and, as a result, she is entitled to a hearing. However, a complaint is subject to dismissal if it fails to satisfy a subject matter jurisdiction requirement, if it fails to satisfy the statute of limitations, or if it fails to state a claim for relief, regardless of what the outcome of the investigation has been. Wis. Adm. Code § DWD 218.10; Olson, supra.

The complainant throughout this case has also attributed her problems in the workplace to her seniority and to her union activities. As respondent has correctly pointed out, seniority and participation in union activities do not bestow protected status under the WFEA, and actions taken solely on these bases do not violate the WFEA  However, complainant does not assert that these were the sole bases for her complaint, but instead that the subject actions were also taken because of her age.

Commission's Conclusion

The complainant has failed to show that her complaint was timely filed as to allegations (1), (2), and (3). The complainant has succeeded in showing that the complaint was timely filed and properly stated a claim for relief as to allegations (4) and (5).

The ruling of the ALJ is set aside, and this matter is remanded for action in accordance with the above.

Dated and mailed February 7, 2003
laumary . rrr : 115 : aty   

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

cc: 
Attorneys John E. Thiel and Rebecca L. Kent
Attorney Carey J. Reed

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(1)( Back ) It was somewhat difficult to discern the precise basis for the complaint. This list is a refinement of information derived from the complaint as well as from the ERD investigation, the respondent's deposition of complainant, and the briefs filed by the parties.

(2)( Back ) To settle a contract grievance filed by complainant challenging this reassignment, respondent agreed not to effect it.

(3)( Back ) The commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues even though, for example, Title VII refers to "practice" while the WFEA refers to "discrimination." See, e.g., Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (LIRC June 21, 2002).

(4)( Back ) However, evidence relating to those earlier assignments could be considered relevant to the issues remaining here if offered at hearing.

(5)( Back ) The parties have also characterized the subject motion as one for summary judgment. However, even if the commission were to entertain it as such in regard to the remaining allegations, the case as it has developed to date presents genuine issues of material fact, and the existence of such issues would defeat a motion for summary judgment.

uploaded 2003/02/14