WILLIAM J MAYNARD, Complainant

CUMMINS NPOWER LLC, Respondent A

CUMMINS INC, Respondent B

CUMMINS GREAT LAKES INC., Respondent C

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, except that it makes the following modifications:

That part of the ALJ's decision beginning with the fifth paragraph and continuing through the tenth paragraph is deleted and the following substituted in order to more accurately reflect the commission's decision rationale:

The statute of limitations in an equal rights case begins to run when the complainant receives actual or constructive notice of the allegedly discriminatory adverse employment action, not when the complainant forms a belief that he was discriminated against when this action was taken. To conclude otherwise would compromise the certainty and finality that a statute of limitations brings to the litigation process. Although a respondent's subsequent treatment of similarly situated employees could be relevant to the issue of discrimination, it does not serve to toll the limitations period.

The complainant was aware in December of 2001 that the new corporate entity would not be employing him in any capacity, and that he was being involuntarily separated as a result. In March of 2002, the complainant learned that a younger person had been selected for a regional leader position with the new corporate entity for which he believed he was qualified; and the complainant's termination was effected on March 29, 2002.

Neither the fact that the complainant may not have formed a belief that he had been discriminated against in regard to his involuntary separation until he learned that a younger person had been selected for the regional leader position, nor the fact that his termination was not effected until March 29, 2002, would operate to toll the statute of limitations. The operative date for computing the complainant's 300-day filing period would be the date in December of 2001 when he learned the new corporate entity would not be employing him.

Complainant argues, however, that LIRC's decision in Oehlke v. Moore-O-Matic, Inc., ERD Case No. 8401191 (LIRC July 26, 1988), and the Personnel Commission's decision in Sprenger v. UW-Green Bay, Case No. 85-0089-PC-ER (Wis. Pers. Comm., Dec. 30, 1986) dictate a different result, i.e., that the statute of limitations did not begin to run until the complainant discovered in March of 2002, upon learning that a younger person had been selected for the regional leader position, that he had been the victim of discrimination.

However, the fact situations and the relevant issues resolved in Oehlke and Sprenger are clearly distinguishable from those under consideration here. Both Oehlke and Sprenger involve the failure of the respondent to recall the complainant from layoff. Unlike the situation here, where notice of a discrete personnel action was provided on a date certain, the respondents in Oehlke and Sprenger never provided actual notice of their decisions not to recall the complainants. The resolution of the timeliness issue in those cases essentially centered on determining when the complainants received constructive notice that the respondents had decided not to recall them, i.e., when they reasonably should have discovered that they were injured, not when the complainants formed the belief that such failure to recall them was discriminatory. In both cases, the commissions effectively decided, relying upon the application of the reasonable person standard, that such notice was received, and the statute of limitations began to run as a result, when the complainants became aware that the respondents had placed advertisements to fill or had filled the positions they had been performing at the time of layoff. Neither of these cases stands for the proposition urged by complainant here that the statute of limitations begins to run when the complainant forms the belief that he has been discriminated against.

Moreover, even if some sign of discrimination more than mere notice of termination were required to trigger the running of the statute of limitations, the circumstances surrounding the act of notice here certainly should have provided such a sign to the complainant. It should have been apparent to a 65-year-old CEO with 43 years of experience who is told that, despite the fact that all or part of the operation he has overseen is continuing but he will not be a part of it even though he has asked to be, that something other than the quality of his credentials may be at work, even without knowing what the successor corporation intended to do with other current managers. This is so regardless of whether the use of the word "retirement" during the December 2001 discussion could reasonably be interpreted as age-related or as direct evidence of age discrimination.

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

Dated and mailed January 28, 2004
maynawi . rmd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Attorney Jeralyn B. Wendelberger
Attorney Mark P. Tilkens

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uploaded 2004/01/29