NORMA M. OEHLKE, Complainant

MOORE-O-MATIC, INC., Respondent

On August 7, 1987, an administrative law judge (ALJ) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter, concluding that the Complainant's complaint of age discrimination with respect to layoff and failure to recall was barred by the statute of limitations.

The Complainant subsequently filed a timely petition for review of the ALJ's decision by the Commission. Both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

That the decision of the ALJ (copy attached) is modified as follows:

In paragraph 6 of the FINDINGS OF FACT, the date "March 13" is deleted arid the date "March 3" is substituted therefor.

This change was made to correct what appears to have been a typographical error as to the date the Complainant was laid off work.

As modified, the decision of the ALJ is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin, July 26, 1988

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

This case involves a 58-year-old female who was laid off from work on March 3, 1983, not recalled, and who subsequently filed a complaint of discrimination on June 28, 1984.

The Administrative Law Judge concluded that the Complainant's charges filed on June 28, 1984, were barred by the statute of limitations because they were filed more than 300 days after the alleged discrimination. With respect to the claim of discriminatory layoff on March 3, 1983, the ALJ stated that the Complainant was aware that she was being laid off at the time the layoff occurred causing the statute of limitations to begin to run at the time of the layoff, and that such layoff occurred more than 300 days prior to when the Complainant filed her complaint. He further stated that a layoff was not a continuing violation for purposes of measuring the timeliness of the complaint and that there were no facts of record that would toll the running of the statute of limitations on the claim of layoff discrimination.

With respect to the Complainant's claim of discrimination in regard to recall, the ALJ stated that a discriminatory refusal to recall could not occur unless and until there was an actual decision on recall made by the Respondent, that the Respondent made a series of five recalls, the last of which occurred on July 11, 1983, causing the alleged discriminatory failure to recall to occur no later than July 11, 1983.  The ALJ noted that this did not end this inquiry, however, because the point at which the statute of limitations begins to rung here is not merely the point at which the alleged discrimination occurred, but rather the point at which the Complainant became aware, or should reasonably have been aware that she had not been recalled while most others had and that she was not likely to be recalled. The ALJ found that by no later than the end of August, 1983, the Complainant herself was obviously aware that she had not been recalled, that she knew others had been recalled while she had not and that she probably knew she was not going to be recalled. Further, he found that even if by the end of August 1983, it had not occurred to the Complainant that she was not going to be recalled, the facts which were known to her at that time were such that she is chargeable with such awareness because a reasonably prudent person would be expected to have taken some sort of action with regard for their rights at that point. In this regard the ALJ noted that the Complainant had been laid off and told she would be recalled when things picked up and things picked up and Complainant was aware of this but she was not recalled; that Complainant had knowledge that recalls were taking place and experienced disappointment over the fact that she was not being recalled; aril that the Complainant then saw an August 4, 1983, advertisement by the employer soliciting new employes to do work which she had previously done, but yet she made absolutely no attempt whatsoever to contact the Respondent to obtain clarification of her status or her position.

On appeal to the Commission the Complainant argues that the Respondent has waived the statute of limitations defense because the Respondent raised this defense in its answer which was filed late.

The Complainant asserts that this matter was first noticed for hearing on November 7, 1985, (1)   that the Wisconsin Administrative Code, sec. IND 88.11(2) specifies that the Respondent "shall file an answer within 10 days after the date of the notice of hearing," making the Respondent's answer due November 17, 1985, but that the Respondent did not file its answer until January 2, 1986. The Complainant further asserts that the only reason given as to why the answer in this case was filed 6 1/2 weeks late, and confirmed by the initial ALJ, was that the Department does not enforce sec. IND 88.11(2);  however, an administrative agency is required to abide by its own rules and that use of the term "shall" in the rule requires that the answer be filed within 10 days.

The Complainant asserts that sec. 802.06(1), Wis. Stats., is a parallel rule to IND 88.11(2) and asserts that in Hedtcke v. Sentry Insurance Co., 109 Wis. 2d 461, 326 N.W. 2d 727 (1982), our supreme court has indicated that parties are not free to ignore such rules. Sec. 802.06(1), Wis. Stats., is a rule governing court civil actions and states that a defendant shall serve an answer within 20 days after the service of the complaint on the defendant. However, the issue before the supreme court in Hedtcke, was whether the circuit court had abused its discretion in granting Sentry additional time to serve and file its answer. Sec. 801.15(2), Wis. Stats., granted the circuit court power to enlarge the time for serving an answer. In determining the issue before it, the supreme court stated that an order enlarging the time for performing an act must be based on a finding of excusable neglect which the court defines as that neglect which might have been the act of a reasonably prudent person under the same circumstances, which is not synonymous with neglect, carelessness or inattentiveness.

With respect to the rules of civil procedure, it should be noted that sec. 802.06(8) specifically provides that various defenses may be waived.

In this case, the Complainant asserts that excusable neglect or good cause for not filing the answer within 10 days having not been found, the Respondent's answer should have been stricken, or at the very least, the affirmative defense should have been stricken.

Finally, the Complainant asserts that the affirmative defense having been waived by the Respondent, it cannot be raised sua sponte by the ALJ in his decision.

Sec. 88.11, applicable at the time relevant herein provided in its entirety, as follows:

"IND 88.11 Answer. (1) CONTENT. An answer is a written statement which admits those allegations in the complaint which the respondent believes are true, denies those allegations which the respondent believes are false or which the respondent has insufficient knowledge to answer, and asserts any matters constituting a defense.

(2) FILING AND SERVICE. Each respondent shall file an answer within 10 days after the date of the notice of hearing. The department shall serve a copy of the answer upon all other parties."

There is no question that the Respondent filed its answer late. However, there is also no question as to whether the Department properly enlarged the time for the Respondent to file its answer. The dispositive question here is what consequence should result from the Respondent's filing of a late answer. According to the Complainant, the result should be that the Respondent has waived its statute of limitations defense. However, sec. 88.11 as quoted above does not speak to what consequence should follow the filing of a late answer. Unlike the rules governing civil actions under ch. 802, Wis. Stats., neither the Wisconsin Administrative Code nor the Wisconsin Fair Employment Act provide any penalty (e.g., Waiver of defense) for a respondent's failure to file its answer timely. (2)  

The absence of any penalty for failure to file an answer within 10 days of the notice of hearing would explain the Department's practice of not strictly enforcing the 10-day requirement. The Complainant has maintained that sec. IND 88.11(2) requires that an answer be filed within 10 days and that the Department is required to enforce its rules. But what enforcement action was the Department to take when the rules provided no penalty for filing a late answer? As noted, absent any penalty for the filing of a late answer the Department had established a practice of not enforcing the 10-day requirement. (3)   The Department's practice cannot be held to constitute an abuse of discretion when no penalty existed for filing a late answer.

Absent the provision of a specific penalty for the late filing of an answer, and considering that the purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party, the only reasonable avenue to pursue is to determine whether the filing of a late answer has unfairly prejudiced the Complainant. Here the Respondent filed its answer raising the statute of limitations as an affirmative defense more than 2 months prior to the hearing. At no time has the Complainant claimed any unfair prejudice. Indeed, no valid claim of unfair prejudice could be made under the circumstances presented here. The Complainant had ample opportunity to prepare her response to the Respondent's affirmative defense. Cf. Mamos v. School Committee, Wakefield, 533 F.Supp. 989, 30 FEP Cases 1051 (D. Mass. 1983).  School Committee did not waive defense to former teacher's Title VII action of statute of limitations by its failure to assert it until 9 months after complaint had been filed and 8 months after it had filed original answer, where neither delay in asserting defense nor prejudice to former teacher from delay was substantial.

Finally, it cannot be said that the ALJ raised the affirmative defense sua sponte in his decision. Rose Ann Wasserman ruled on the first day of the hearing that the statute of limitations defense was available to the Respondent and would be dealt with during the hearing in conjunction with the question of whether the alleged discrimination took place. Testimony on both matters was taken during the hearing.

The Complainant has also argued that even if it is determined that the Respondent's late answer should be allowed, the Respondent still waived the statute of limitations because it never raised the defense in either its principle or reply post-hearing briefs. The Complainant has cited no authority for such contention. The fact is, the failure of the Respondent to brief the matter did not dispose of this issue, an issue that was clearly raised in the answer to the complaint and pursued during the course of the hearing. Because the statute of limitations defense was raised in the Respondent's answer, pursued during the hearing, and because sec. 111.39(1), Wis. Stats., provides that the Department may only receive and investigate complaints of discrimination filed no more than 300 days after the alleged discrimination occurred, the ALJ was required to decide that question. The ALJ did not raise sua sponte the statute of limitations affirmative defense.

Turning to the validity of the statute of limitations defense, as previously noted the ALJ found that the Complainant's charge of age discrimination with respect to layoff was barred because it was filed more than 300 days after her layoff. The Complainant has not argued on appeal that the statute of limitations with respect to her layoff began to run on a date later than March 3, 1983, that a layoff constitutes a continuing act of discrimination, or that there are facts in this record that would toll the running of the statute of limitations on her claim of layoff discrimination. The Commission agrees with the ALJ's determination.

With respect to recall, the ALJ concluded that the Complainant knew, or should have reasonably known by the "end of August 1983," that the Respondent was never going to recall her and thus her complaint of June 28, 1984, was also untimely as to this issue. However, the Complainant argues that she filed her complaint within 300 days of the time at which a reasonable person should have concluded that she was not going to be recalled. Specifically, the Complainant contends that it would have been within reason for her to have taken until September 2, 1983, rather than the end of August (i.e., August 31) to reach the conclusion that she was not going to be recalled. The date, September 2, 1983, is within 300 days of June 28, 1984. Both parties recognize the appropriateness of employing the "discovery rule" (rule that a claim does not accrue until the the injury is discovered or in the exercise of reasonable  diligence should be discovered). The ALJ has properly identified what Title VII case law states as the test to be applied:  Whether or not the facts that would support a charge or claim of discrimination should be apparent to a person with a reasonably prudent regard for his or her rights similarly situated to the Complainant. See Reeb v. Economic opportunity Atlanta, Inc., 516 F.2d 924, 11 FEP Cases 235 (5th Cir. 1975).

In support of her position, the Complainant asserts that at the time of her layoff on March 3, 1983, she was told by her foreman that she would be recalled, that later in the spring (May 1983) she was reassured by a company official that she would be recalled, that there was no requirement that the Complainant check in with the Respondent periodically while on layoff, that earlier in her career the Complainant had been laid off for as long as 11 months before being contacted to return to work and that the Complainant was never informed that she had been terminated.

The Commission agrees with the ALJ's determination on this question. None of the points raised by the Complainant (e.g., that she was told she would be recalled, that early in her career she had been laid off for 11 months) effectively dispute the fact that by the end of August 1983, facts that would support a claim of discrimination should have been apparent to a person with a reasonably prudent regard for her rights. Namely, the Complainant was told that she would be recalled when things picked up, things subsequently picked up and the Complainant was aware of this but she was not recalled; she had general knowledge that recalls were taking place and experienced disappointment over the fact she had not been recalled; and then, in the face of all this, she sees an August 4 advertisement by the Respondent soliciting new employes to do work which she had previously done. As noted by the ALJ, this last development is particularly significant since employers typically will recall employes on layoff before hiring new employes.

Realizing the criticalness of what the August 4 advertisement should have imparted to her, the Complainant then attempts to dilute its importance by arguing (1) that even the ALJ believed that after the August 4 ad there was a "process of realization involved, that it would be only gradually that (the Complainant) or any reasonable person would realize she was not going to be recalled," because the ALJ did not date the time at which the Complainant should have realized she was not going to be recalled from August 4, but rather the end of August 1983 -- that is August 31, 1983;  and (2) that August 31, the latest date on which the ALJ concluded the statute of limitations should begin to run, was a Wednesday, that September 2 was a Friday, and that in order for the Commission to affirm the ALJ  here, the Commission must conclude that it would have been reasonable for the Complainant to wait until August 31 to conclude the Respondent was not going to recall her, but it was not reasonable for her to have waited until the end of the same week, 2 days later;  that given the inability of anyone to determine one particular day on which the statute of limitations should unquestionably have begun to run, to cut this claim off by a mere 2 days is unfair.

Assuming, arguendo, the "end of August 1983" means August 31, 1983, the Commission believes the Complainant distorts the ALJ's decision. The ALJ did not find that upon seeing the August 4 ad that there would be a "gradual process of realization" before the Complainant would realize she was not going to be recalled. What the ALJ found was that even after the August 4 ad by Respondent, the Complainant made absolutely no attempt whatsoever to contact the employer to obtain clarification of her status and that this did not exhibit conduct of a person with a reasonably prudent regard for her rights. The ALJ found that applying the "reasonable person" test of focusing on what facts were known to the person and what such a person would have thought and done, a reasonable person would have taken some sort of action by the end of August 1983. See ALJ's Mem. Op., pp. 10 &11 . Thus, the important point here is not whether August 31 ended on a Wednesday or that only 2 days exist between August 31 and September 2, the point is that even after seeing the August 4, 1983 ad, the Complainant did not exercise a reasonably prudent regard for her rights. In fact, the Complainant never even contacted the employer until May 1984, and at that time it was with respect to the conversion of her group health insurance coverage.

The Complainant next makes some attempt to argue that the ALJ was inaccurate with respect to his findings and decision about the Complainant's actual awareness that she was not going to be recalled. However, in view of the Commission's agreement with respect to the ALJ's conclusion that the Complainant should have reasonably known that she was not going to be recalled, the Commission sees no reason to address the Complainant's claims about her actual knowledge.

The ALJ also recognized the possibility that the Complainant could be understood to assert that there was a wrong done to her on each occasion on which a new employe was hired instead of her being recalled (e.g., 1983 spring and fall new hires and 1984 spring new hires), however, he rejected such claim. The ALJ found that such a claim for discrimination was entirely too open-ended, and would extend forward in perpetuity as long as the Respondent continued to hire persons;  that it ignores the reality of the situation which is that there comes a point at which the employer who has laid off and not recalled employes ceases to even consider recalling those laid off and is therefore incapable of making discriminatory determinations on whether or not to recall them.

The Complainant contends that the ALJ incorrectly concluded that the hiring of these employes could not form the basis for a claim of discrimination. The Complainant argues that she is not asking that the potential for a claim of discrimination be extended into perpetuity, she is suggesting that the potential for discrimination in hiring new employes instead of recalling a laid off employe exists for some reasonable time period under all the circumstances present here. Specifically, the Complainant argues that the Respondent's business was seasonal, being subject to peak periods and layoffs, and that the Complainant had previously been laid off for as much as 11 months and then recalled by Respondent. She argues that  the fall of 1983 was certainly a time at which it would still be reasonable to consider that she might be recalled and that the act of hiring new employes insteading of recalling her could form the basis for a claim of discrimination.

The Commission believes the ALJ's analysis makes good sense. There comes a point in time at which the employer that has laid off and not recalled employes ceases to even consider recalling those laid off and is therefore incapable of making discriminatory determinations on whether or not to recall those laid off. In this. case the commission believes the date August 4, 1983, when the employer's ad appeared soliciting LTEs for hire provides an objective date for that point in time. Regardless of the seasonal nature of the employer's business, or that the Complainant had once been on layoff for 11 months, the Complainant could not have reasonably considered that she might be recalled after the August 4, 1983 advertisement for new hires. She knew that the Respondent was soliciting employes to perform work which she had previously performed. As noted by the ALJ, "employers typically will recall everybody they plan on recalling before they begin hiring new employes." ALJ's Mem. Op., p. 11. The Complainant's 11-month layoff came during the first 3 or 4 years of her employment when she was working part-time. Further, the Complainant has not testified, nor was there evidence to show, that the Respondent had hired LTEs during the midst of her 11-month layoff.

The ALJ further commented that he believed that the complete inaction of the Complainant in the face of her knowledge that applications for new employes were being accepted made it extremely difficult to accept her claim that an act of discrimination occurred each time a new employe was hired instead of recalling her because if an employer does not know that an employe is interested in obtaining a position, the employer will most certainly not be considering that person and, thus, is incapable of making a discriminatory decision excluding her or him from consideration. The Complainant has argued, however, that the ALJ's line of reasoning with respect to her inaction upon seeing the August 4 advertisement places all of the burden on the Complainant to act and that the situation could be viewed another way. Specifically, the Complainant argues that the Respondent was certainly considering and rejecting her in favor of the new employes each time a new employe was hired (and therefore capable of making a discriminatory decision) because the Respondent had reason to think that she was still interested in returning to work when it hired the new employes. In support of her position the Complainant argues that the Respondent certainly knew at the time she was laid off that she wanted to return to work, that the Respondent never informed her that her job was terminated and therefore the Respondent had no right to expect that she would submit a new application for employment, and that Respondent never received any indication that she was not interested in returning to work. However, it would seem that the very fact that the Respondent publicly advertised that it was seeking to hire individuals to perform work that had previously been done by the Complainant is a clear indication that the employer was no longer considering the Complainant for employment. Moreover, even if the employer knew that the Complainant was interested in returning to work, when the employer placed the August 4, 1983 ad for new hires, it was effectively communicating that it sought to hire someone other than the Complainant and thus caused the statute of limitations on her claim of discriminatory failure to recall to begin to run.

The Complainant further asserts that while the ALJ emphasized that the discrimination here is based on the consideration and rejection of the Complainant in favor of another for a discriminatory reason, a claim for discrimination under the Act is not a claim based on someone having an improper thought, but is based on an employer implementing a mental decision by taking discriminatory action. In other words, the accrual of the claim is dated from the action implementing the mental decision, not from the mental decision. The Complainant argues that here the ALJ has identified the employer's action implementing the mental decision by pointing out dates on which others were recalled rather than the Complainant (i.e., May 9; 16, 23; June 20 and July 11, 1983); however, the Complainant argues that the decision continued to be implemented by a continued failure to recall the Complainant at a time when new employes were added.

The Complainant's arguments have now gone full circle. This was the initial argument that Complainant made and the ALJ rejected. As previously noted, this argument was rejected by the ALJ because such a claim was too open-ended, it would create a permanently continuing claim which would extend forward in perpetuity as long as the Respondent continued to hire people.

Finally, the Complainant argues, alternatively, that the Respondent's failure to recall her during the entire time period in 1983 and 1984 is "only one grouping of facts falling into a single unit or occurrence as a lay person would view them," that is, a single claim as set forth in Tamminen v. Aetna Casualty & Surety Co., 109 Wis. 2d 536, 557, 327 N.W. 2d 55 (1982) (quoting Ewing v. General Motors Corp., 70 Wis. 2d 962, 967, 236 N.W. 2d 200 (1975)).

Tamminen involved a medical malpractice claim in which one issue relevant here was:  when does the statute of limitations commence to run when a portion of the negligence occurred more than 3 years before the commencement of the action, but where the negligence was continuous during the entire course of treatment and a portion of the negligence occurred within the (3 year) statute of limitations? The supreme court found that where the negligence continued the statute of limitations did not commence until the negligent conduct ceased. Thus, Tamminen adopted the continuous negligent treatment doctrine. It did not adopt the continuous treatment doctrine.

Under the continuous treatment doctrine, the mere fact that there has been continuous treatment, whether negligent or not, for a condition occasioned by a prior negligent act is sufficient to start the statute of limitations running only at the end of the course of treatment. In other words, there may be cases where although the negligence ceased, the fact that there was scene treatment still taking place causes the statute of limitations not to commence until the end of all treatment. The continuous negligent treatment doctrine looks to whether there has been continuous negligent treatment for the same condition, noting that the claim is not complete until the last day on which the negligence occurred, and that it is from that last date that the timeliness of the claim is measured.

The Complainant analogizes her failure to be recalled in the fall of 1983 and spring of 1984 as a continuation of the wrongdoing (continuous negligent treatment) which would make her June 28, 1984 complaint fall within the limitations period. However, the pitfall with this analogy is that viewing the Complainant's failure to be recalled in the fall of 1983 and spring of 1984 as a continuation of the wrong doing (continuation of the negligent treatment) is that it too ignores the reality of the situation, which is that there comes a point at which the employer who has laid off and not recalled employes ceases to even consider recalling those laid off and is therefore incapable of making discriminatory (negligent) determinations on whether or not to recall them. Thus, the wrongdoing (negligent treatment) with respect to recall would not be continuing after that point. Although denied by the Complainant, the alternative argument that she presents would also open the way for a claim of discrimination to extend forward in perpetuity. The Commission agrees with the AIJ that the point at which the Respondent placed an advertisement seeking to hire new individuals was the point in time at which the employer's alleged discriminatory (negligent) treatment with respect to recall ceased to continue, thus causing the statute of limitations to commence at that point. Absent a showing of discrimination with respect to recall during the limitations period, the Complainant's complaint must be dismissed.

125

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(1)( Back ) The November 7, 1985 notice set forth a hearing date of February 19, 1986. However, this hearing date conflicted with a trial that Respondent's counsel had in another matter and a second notice of hearing was issued by the Department on December 2, 1986. That amended notice of hearing set forth March 4, 1986 as the new hearing date.

(2)( Back ) Effective July 1, 1986, the Wisconsin Administrative Code was amended to provide that failure to raise the statute of limitations defense in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense. Wisconsin Administrative Code, IND 88.11(2).

(3)( Back ) The Complainant was advised at the hearing on March 5, 1986, that the Department did not strictly enforce the 10-day requirement, but that a respondent seeking to raise an affirmative defense did have to submit an answer, otherwise any affirmative defense would be barred at the hearing.

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