MURRAY JAMES, JR., Complainant

ASSOCIATED SCHOOLS, INC., Respondent

The above-captioned matter is before the Commission following the circuit court and court of appeals' dismissal, for lack of jurisdiction, of the Respondent's petition for judicial review of the Commission's March 24, 1989 decision in this case.  In its decision, the Commission held that it had authority to review James' petition for review of that portion of an Administrative Law Judge's (ALJ) decision denying him permission to amend his discrimination complaint against Associated Schools, Inc., and denied Associated Schools' motion to dismiss James' petition for commission review.

Based upon a review of the record in its entirety, and for the reasons set forth in the Memorandum Opinion portion of this decision, the Labor and Industry Review Commission hereby issues the following:

The Respondent's "Motion to Renew Motion to Dismiss the Complainant's Petition" is denied. That portion of the Administrative Law Judge's decision denying Complainant permission to amend his complaint to add claims of constructive discharge is affirmed.

Dated and mailed November 27, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

This case has an extensive procedural history which must be set forth in order to discuss the various issues and arguments the parties have raised before the Commission.

The case began on February 11, 1987, the date Complainant Murray James, Jr. apparently filed his complaint of discrimination with the Department. James, a male, alleged unlawful sex discrimination in that the Respondent Associated Schools had, on January 8, 1987, denied him a promotion to the position of Division Sales Manager and told him he would have to be demoted from his position of District Manager to the position of Sales Representative.

Thereafter, in an Initial Determination issued on July 5, 1987, an investigator for the Equal Rights Division (ERD) concluded that there was probable cause to believe the Respondent had discriminated against the Complainant because of sex (male) in regard to "promotion and constructive discharge."

A review of the investigator's decision shows that while she concluded that there was probable cause to believe there had been sex discrimination in regard to promotion, her decision had actually failed to make any findings at all on this issue. In fact, in part II of the Initial Determination the investigator had erroneously set forth that Complainant was alleging that he had been denied a promotion to the position of District Sales Manager when the Complainant had alleged a denial of promotion to the position of Division Sales Manager.

As for the conclusion of probable cause to believe Complainant had been constructively discharged, Complainant's February 11, 1987 complaint shows that it contained no such allegation. In the investigator's decision she states in paragraph E of the findings that Complainant had resigned on January 7, 1987, the same day he was demoted from District Manager to the position of Sales Representative. Nothing else is said in regard to this January 7 resignation. Later, in paragraph G, the investigator states that on January 13, 1987 Complainant agreed to return to work. In paragraph H she states that on March 9, 1987, Complainant again resigned. Addressing the March 9 resignation, and apparently referencing a statement from the Complainant, the investigator states in paragraph H that the reasons given to her for the resignation were that Complainant was given old leads to check out and that Respondent was making his job very difficult to perform.

The Complainant had apparently been unrepresented at all times commencing with the filing of his complaint through the issuance of the Initial Determination. A letter in the file dated July 29, 1987, however, indicates that as of this date Complainant had retained an attorney to represent him.

Conciliation of the matter was unsuccessful or waived, and the matter was certified to he on August 12, 1987. Thereafter, on August 18, 1987, Complainant commenced various methods of discovery against Respondent, which included a request for admission to the following statement:

"3. While employed by the Respondent, the Complainant earned the following amounts: during calendar year 1985, $13,681; during calendar year 1986, $33,921; from January 1, 1987 to the time of Complainant's constructive discharge, $5,440."

The Respondent was unrepresented at the time of Complainant's discovery requests.

On October 12, 1987, having not received a response to its discovery requests, Complainant filed a Motion to Compel Discovery and Deem Matters Admitted, and the ERD issued notice that a hearing on the matter would be held on October 30, 1987. On the day of this hearing Complainant received Respondent's response to the discovery requests. Respondent's response to the request for admission number 3 was: "Admit." ALJ Pamela Rasche subsequently issued an order in the matter on November 10, 1987, finding, among other things, that "those matters contained in the request (for admissions) was admitted."

Following a subsequent motion and notice of hearing concerning sanctions against Respondent relating to other discovery matters, Respondent retained local counsel, who filed notice of such retainer with the ERD on December 8, 1987.

In a letter to Rasche dated January 21, 1988, Respondent's counsel referenced a December 11, 1987 conference with Complainant's counsel involving the question of whether Respondent had indeed admitted that Complainant was constructively discharged by Respondent. In this letter Respondent's counsel disputed that Respondent had made any such admission and characterized the constructive discharge claim as "the ultimate issue in controversy." Respondent's counsel inquired of Rasche if it was her belief that Respondent had admitted to constructively discharging Complainant when she issued her November 10 order.

In response, Rasche issued a letter on January 22, 1988, stating, in part, as follows:

"I did not mean in any way to imply in my order that Respondent also admitted that Complainant was constructively discharged by Respondent. This remains an issue which will have to be resolved at hearing."

This matter did not end, however, until after Respondent's counsel had filed a formal motion with the ALJ on March 30, 1988, requesting that she confirm the extent of Respondent's admissions, or in the alternative, allow Respondent to file an amended answer to the request for admissions. An affidavit and brief in support of the motion accompanied this motion, and the Respondent's brief included the following statement:

"Complainant has clouded and confused the record with regard to whether Respondent has admitted the ultimate issue in controversy, constructive discharge, a legal conclusion. Respondent has opposed that contention continuously from the time the charge was filed."

At this point, Complainant essentially agreed to allow Respondent to file an amended answer. Rasche issued an order to this effect on June 3, 1988. In an amended answer to Complainant's request for admissions filed on June 11, 1988, Respondent acknowledged his salary earnings during the periods inquired about, but asserted that Complainant had voluntarily terminated the employment relationship.

On July 19, 1988, the Division issued a Notice of Hearing on the merits of Complainant's complaint, setting forth the issue as whether Respondent discriminated against the Complainant because of sex (male) in regard to promotion and constructive discharge. The hearing was scheduled to be held on October 25, 1988.

On October 24, 1988, a "Motion for Clarification of Notice of Hearing" was filed by Respondent's counsel and a second ALJ then heard arguments from the parties on this motion on October 25, the date the hearing was scheduled to take place.

After allowing the parties to be heard on the matter, the ALJ concluded that a hearing could not be conducted on the promotion issue because that issue had never been investigated, and that no hearing could be conducted on the demotion issue because it had not been properly noticed in the notice of hearing. (There was also a need to amend the Initial Determination to state a conclusion that there was probable cause to believe Complainant had been discriminated against in regard to demotion from the position of District Manager to Sales Representative.) Finally, with respect to the matter of alleged constructive discharge, the ALJ granted Complainant leave to file an amended complaint containing such allegation, along with argument as to whether this amended complaint should be accepted.

Subsequently, on October 31, 1988, Complainant filed a Motion for Order Approving Amendment of Complaint together with a proposed amended complaint seeking to add to his original complaint a charge that he was constructively discharged on January 8, 1987, and again on March 9, 1987. The Complainant included supporting arguments. Respondent then filed a brief in opposition to approving amendment of the complaint. In a decision issued on December 1, 1988, the ALJ remanded the promotion and demotion issues to the investigative bureau for further proceedings and denied Complainant's motion for an order approving amendment of his complaint to add the constructive discharge allegations.

On December 21, 1988, the Complainant filed a petition for Commission review of that portion of the ALJ's order denying Complainant's motion for an order approving amendment of his complaint, and a brief in support thereof.

On January 5, 1989, Respondent filed a motion to dismiss Complainant's petition for review, and supporting brief, with the Commission. Reply briefs were then submitted by the Complainant and Respondent. The Respondent argued that: (1) The Commission was without jurisdiction because administrative agencies have only those powers expressly granted to them by the Legislature; (2) LIRC's only authority to review Department (ALJ) decisions is expressed in sec. 111.39(5). Namely, where a  party is dissatisfied with the "findings and order of the examiner," and that those findings and order of the examiner clearly refers to only those findings and orders which are issued after an adjudication of a complaint on the merits, with a full evidentiary hearing; (3) that LIRC itself had repeatedly held that its jurisdiction was limited to review of only final orders of the Department entered after an adjudication on the merits of the complaint (citing cases); and (4) that sec. Ind 88.03 (concerning Department preliminary review of complaints filed) provided for Department determination of whether a complaint has been filed within the prescribed time (i.e., 300 days after the alleged discrimination occurred), with no review by LIRC but review by court; and that LIRC has also expressed in Chester v. International Harvester (LIRC, 6/5/80), that it is without jurisdiction to review a Department decision refusing to accept, for lack of timeliness, a complaint filed with the Department.

In a decision dated February 3, 1989, the Commission denied Respondent's motion to dismiss Complainant's petition and stated that it would rule on the merits of the Complainant's petition. In rejecting the Respondent's arguments, the Commission noted that: (1) Administrative agencies not only possessed powers expressly granted to them by statute but also those powers which were fairly and necessarily implied by statute unless there was reasonable doubt as to the existence of such implied power; (2) that nowhere in the WFEA was there any language that the Commission only had review authority after an adjudication of the complaint on the merits with a full evidentiary hearing; that under Respondent's interpretation of the Act, the Commission could not review an ALJ's determination under a number of circumstances, including where an ALJ had issued a decision finding no probable cause to believe discrimination had occurred, or a decision dismissing a complaint due to a complainant's failure to appear for a hearing or failure to proceed with his or her case at the hearing; (3) that the Respondent misconstrued the cases cited for the proposition that LIRC itself had declared that LIRC's jurisdiction was limited to only final Department orders entered after an adjudication on the merits of the complaint (noting, however, that LIRC's general practice was to decline review of non-final ALJ orders based on the policy considerations of avoiding unnecessary delays and disruption of the orderly process of adjudicating cases before the Department) ; and (4) that because the issue of timeliness involved in the ALJ's refusal to receive and process the Complainant's amended complaint in the instant case had arisen after the preliminary review stage identified in sec. Ind 88.03, and had been decided by the ALJ while the matter was proceeding to a hearing on the merits, the ALJ's order was subject to review by the Commission.

Respondent was subsequently permitted to file a "petition for rehearing" of the Commission's February 3 decision, and leave was also granted to the ERD's Director of Legal Services Bureau to file a brief. LIRC affirmed its earlier February 3 order in a decision issued on March 24, 1989.

In the Commission's March 24 decision there was discussion about whether James' appeal of the ALJ's order denying his motion to amend his complaint constituted an appeal of a "non-final" or interlocutory order, and whether LIRC had (or should exercise) any authority over such appeals. The Commission again found that it had jurisdiction, stating that that portion of the order Complainant had appealed from was a "final" order in that the refusal to allow Complainant to amend his complaint to add a claim of constructive discharge had completely disposed of that claim as the Department contemplated no further proceedings with respect to it. (1)

Respondent filed a petition for judicial review of the Commission's decision pursuant to sec. 111.395 and Chapter 227, alleging that the Commission lacked subject matter jurisdiction to review Complainant's petition for review. The court ruled that because LIRC's preliminary decision that it had authority to decide whether the ALJ properly refused to permit Complainant to amend his complaint did not adversely affect any substantial interest of Respondent as provided under sec. 227.52, and that Respondent was not a person aggrieved as provided under sec. 227.53, that Respondent's petition for judicial review was premature and unavailable, and the court did not have jurisdiction to proceed. Respondent then appealed to the court of appeals, which affirmed the decision of the circuit court in a decision dated March 21, 1991. The Respondent did not seek review in the Wisconsin Supreme Court.

On May 23, 1991, after return of the record to LIRC, a briefing schedule was issued so the parties could submit their arguments on the merits of Complainant's appeal. Subsequently, however, Respondent's counsel filed a "Motion to Renew Respondent's Motion to Dismiss Complainant's Petition for Review," and the earlier briefing schedule was modified to include arguments on Respondent's motion.

Motion to Renew Respondent's Motion to Dismiss Complainant's Petition

Respondent's asserted grounds for renewal of its motion to dismiss Complainant's petition is that since the Commission's ruling on Respondent's initial motion to dismiss and petition for rehearing, the commission issued a decision in Local 322, Allied Industrial Workers of America v. Johnson Controls (LIRC 9/11/90), and that the Commission's decision in Johnson Controls is totally inconsistent and incompatible with the Commission's ruling in the instant case.

Complainant argues that Respondent's motion should be denied. Complainant's assertions include the following: (1) That Respondent's motion is frivolous and without merit for Respondent continues to raise this issue without any additional support since filing its earlier motions on January 4 and February 23, 1989; (2) that viewed in the context of Respondent's conduct throughout this matter, which includes the delayed filing of the instant motion until 27 of the 31 days granted Respondent to file its brief under the original May 23, 1991 briefing schedule had elapsed, and the various delayed requests for extension of time to file its brief in circuit court and the court of appeals, Respondent's motion is filed merely to generate delay; and (3) that as both the circuit court and court of appeals found that Respondent was not harmed by the Commission's assertion of jurisdiction in this matter, Respondent continues to have no standing to challenge the commission's jurisdiction at this time; that no action has yet been taken by LIRC that affects the School's interest to any greater degree than was the case on April 14, 1989 when Respondent first filed an appeal in circuit court.

The Respondent has made a number of arguments in response to the assertions made by Complainant. Without detailing the specifics of those arguments, the commission simply concludes that in light of Respondent's contention that the Commission's decision in Johnson Controls is inconsistent with the position the Commission took in its ruling on Respondent's earlier motion to dismiss the Complainant's petition, the Respondent's motion should be considered by the Commission. (2)    However, as shown below, the Commission's decision in Johnson Controls is not at all inconsistent or incompatible with the Commission's earlier rulings in the instant case, and Respondent's motion to dismiss the Complainant's petition must again be denied.

The Johnson Controls case involved a complaint of alleged sex discrimination with respect to the employer's fetal protection program. While the case was proceeding to a hearing on the Complainant's complaint of sex discrimination, the employer filed a motion with the ALJ seeking dismissal of the complaint based on the doctrine of res judicata. After the ALJ issued a decision denying such motion, the employer petitioned to the Commission for a reversal of the ALJ's order denying its motion to dismiss. The Commission declined to accept the Respondent's petition, stating that it has repeatedly held it would not accept petitions for review of "non-final" ALJ decisions; that if the Commission's policy were otherwise, the Equal Rights Division's ability to schedule and complete hearings on complaints of alleged discrimination would be an exercise in futility.

Respondent apparently contends that the Commission's ruling in Johnson Controls is inconsistent and incompatible with its ruling in the instant case because the Commission accepted Complainant James' petition for review of a "non-final" ALJ decision, but in Johnson Controls the Commission refused to accept the petition for review of the ALJ's non-final decision, stating that "The commission has repeatedly held that it will not accept petitions for review of non-final ALJ decisions." Complainant apparently further argues that the very reasons cited by the Commission as support of its refusal to accept the petition for review in Johnson Controls apply in the instant case.

However, Johnson Controls is readily distinguishable from the instant case. In Johnson Controls the ALJ's denial of the motion to dismiss did not result in a complete termination of the Department's processing of the Complainant's claim of sex discrimination. Instead, the sex discrimination issue remained in the same posture that it stood before the Respondent's motion to dismiss. Namely, proceeding to a scheduled hearing on Complainant's complaint of alleged sex discrimination. It is because of this reason that the Commission declined to accept the Respondent's petition, stating that if the Commission did accept petitions in such cases, the "Equal Rights Division's ability to schedule and complete hearings on complaints of alleged discrimination would be an exercise in futility. The Division's ability to reach a final decision in cases would become the exception rather than the rule. Hearings before the Division would be constantly interrupted and shifted back and forth between the Division, the Commission, and possibly even the courts." In the instant case, the ALJ's denial of James' motion to amend his complaint did completely dispose of the constructive discharge claim. There was no further action contemplated by the Division' on that claim. Thus, none of the concerns associated with the Division's ability to schedule, complete and reach final decisions in cases, as expressed by the Commission in Johnson Controls, are applicable to the instant case.

The posture of the instant case after the ALJ denied the motion to amend the complaint to add the constructive discharge claim was no different than if the ALJ had dismissed the constructive discharge claim for failure to establish probable cause to believe that said alleged discrimination had occurred, while retaining the other aspects of the Complainant's complaint. The ERD routinely forwards to LIRC and LIRC reviews appeals of the no probable cause portion of cases where the Department has retained some other aspect of the case. Indeed, with respect to such "non-final" Department decisions, ever since the creation of LIRC, the Commission has reviewed timely appeals of the portion of an ALJ's decision which has been dismissed, even though another portion of the complainant's complaint has been retained for further proceedings before the Department. See, for example, Weiss v. Wisconsin Telephone Co., (LIRC 8/26/77); Neddle v. Oswald Jaeger Baking Co., (LIRC 8/12/80); Williams v. Ray-O-Vac E & D and D. Whitaker, (LIRC 7/23/81); Kleiner v. Wis. DOT, (LIRC 10/29/82); Michaud v. Midwest Breeders Cooperative, (LIRC 3/9/83); Christy Lynn Sanfilipo v. North Central Security Agency, (LIRC 9/24/86); Robertson v. Eshac, Inc., (LIRC 1/29/86); Jensen v. F.W. Woolworth Co. and Gary Schley, (LIRC 5/22/87); Davis v. Zbigiew Grzeszkiewicz, (LIRC 5/12/88); and Blohm v. Holiday Inns, Inc., et al., (LIRC 1/31/90).

While the Respondent has concededly recognized that the constructive discharge claim may be severed and separately reviewed, it argues, however, that in this case the Complainant's only avenue of appeal is to circuit court, as provided under sec. Ind 88.03, Wis. Admin. Code, and that LIRC has no jurisdiction to review the Department's order. (3)   However, the Commission finds that the procedure set forth in sec. Ind 88.03 does not apply because the ALJ's refusal to permit amendment of the complaint to add the claim of constructive discharge arose after the preliminary review stage identified in sec. Ind 88.03 and had been decided by the ALJ while the matter was proceeding to a hearing on the merits. When the ALJ issued his ruling on the motion to amend the complaint, the Department had already conducted an investigation and issued the required Initial Determination as to cause under Ind 88.07 which follows the sec. Ind 88.03 preliminary review, conciliation under sec. Ind 88.09 had failed, the matter had been certified to hearing, a notice of hearing and complaint had been issued pursuant to sec. Ind 88.10, and the Respondent had filed its answer to the complaint as required under sec. Ind 88.11. After the matter had progressed to this point, it is difficult to comprehend why the ALJ's decision and order on the motion to amend the complaint should not constitute a decision and order reviewable by the Commission.

Moreover, the procedural scheme outlined in sec. Ind 88.03 indicates that the Complainant's petition is properly before the Commission and that sec. Ind 88.03 does not apply in this case. Under sec. Ind 88.03, the Department's investigative bureau is to first decide whether a complaint has been timely filed. Section Ind 88.03(1) provides that the "department shall review every complaint filed to ascertain . . . whether it (the complaint) has been filed within the time period prescribed by the act." Section Ind 88.03(2) then provides that upon timely appeal from an order dismissing a complaint under sub. (1) the "administrator (of the division) or a person designated by the administrator (i.e., an ALJ), shall review the preliminary determination and shall either affirm, reverse, modify of (sic) set aside the preliminary determination and order." (emphasis added) Ind 88.03 provides no authority for an ALJ to decide in the first instance whether a complaint has been timely filed with the Department. However, here the question of whether Complainant's complaint (amended) had been timely filed was first decided by the ALJ. The fact that no authority exists under Ind 88.03 for an ALJ to decide in the first instance whether a complaint has been timely filed clearly shows that that section was not applicable in the instant case.

Accordingly, the Commission again denies Respondent's motion to dismiss the Complainant's petition for review.

Merits of Complainant's Petition to Reverse Ruling Denying Complainant's Motion to Amend His Complaint to Add Claim of Constructive Discharge

Complainant's proposed amended complaint which was filed with the ALJ on October 31, 1988, contains the following assertions:

"7. On January 8, 1987, I was demoted from District Manager to a sales representative.

8. On January 8, 1987, I was constructively discharged by the Respondent because of my sex (male) when I was demoted to a sales representative

9. On or about January 12, 1987 my wife was contacted by the Respondent and informed that the Respondent wanted to rehire me as a sales representative.

10. Thereafter, I was rehired as a sales representative by the Respondent under conditions where I did not have to attend weekly sales meetings and did not have to have any contact with Cheryl Lewark, Linda Raatz, or the Milwaukee District Sales Office. The Respondent agreed to these conditions and I again was employed by the Respondent.

11. After I became reemployed by the Respondent, I received sales leads by mail from the Respondent.

12. On or before 3/9/87, the sales leads I received from the Respondent were old and limited to areas the Respondent knew or should have known were unlikely to produce actual enrollment contracts (sales).

13. On or before 3/9/87, the Respondent required I attend weekly sales meetings in the Milwaukee District Sales Office.

14. On or about 3/9/87, I was constructively discharged by the Respondent because of my sex (male) due to all of the foregoing reasons."

As previously noted, the Department issued a Notice of Hearing stating that this case would be heard on October 25, 1988. Complainant's first argument on appeal is that the filing of his amended complaint should be approved because he had good cause, as provided under sec. Ind 88.04(2), Wis. Admin. Code, for failure to file the amendment to his complaint at least ten days prior to the hearing.

Section Ind 88.04(2) provides that "(s)ubject to the approval of the department, a complaint may be amended no later than ten days before hearing unless good cause is shown for the failure to amend the complaint prior to that time." As grounds for his "good cause" claim, complainant argues that he had been unrepresented by counsel at the time he filed his original charge on February 11, 1987 and throughout the Department's investigation, including when the Department issued its Initial Determination on July 7, 1987, that during this investigation the investigator apparently learned that his employment ended on March 9, 1987 and the investigator's Initial Determination found probable cause to believe, in part, he was constructively discharged, that the Department's 7/19/88 Notice of Hearing indicated that the issue of constructive discharge was a matter for hearing, and that at no time during the Department's investigation did the Department notify him that the investigation had revealed the appearance that Respondent had engaged in discrimination other than that alleged in the complaint as provided under sec. Ind 88.06(2). (4)    In short, Complainant apparently argues that he cannot reasonably be held to have known that the issue of constructive discharge was not properly before the Department or properly a matter for hearing.

Further, Complainant cites Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984), as support for his position that LIRC should approve his amended complaint. In Hiegel, the court held that fundamental unfairness resulted in excluding evidence of sex discrimination in hiring because the complaint and Notice of Hearing were limited to allegations of sex discrimination in compensation, because the complainant had been unrepresented and had had assistance from the Department in drafting her complaint, and because the hearing was only a probable cause hearing. It was also noted that had complainant been allowed to amend her complaint when the hearing was held, it would have been timely filed.

The Commission agrees with the ALJ's bases for rejecting the arguments made by Complainant. In addition to finding that Complainant's arguments suffered from a number of shortcomings, including the fact that the constructive discharge claim had never been made in writing in a complaint (5),  that Complainant did obtain legal representation within only a few days after issuance of the Initial Determination (6),  and that such counsel presumably would (or should) have been familiar with the statutes and rules of practice under which the Department operated as well as the fact that no claim of constructive discharge existed in Complainant's complaint and that by virtue of sec. Ind 88.06(2) this presented a problem, the ALJ noted a more fundamental difficulty in Complainant's argument, stating that:

"Wisconsin Administrative Code Chapter Ind 88.04(2) is a purely procedural rule, intended primarily to restrict the addition of new issues to pending cases shortly before hearing, when the more appropriate course would be to present those issues in new complaints. That rule does not and cannot have the effect of negating the 300-day statute of limitations which is contained in sec. 111.39(1), Wis. Stats." Memorandum Opinion, p. 11.

Section 111.39(1) provides that the Department may receive and investigate a complaint charging discrimination if the complaint is filed with the Department no more than 300 days after the alleged discrimination occurred. Complainant James' proposed amended complaint was first filed with the Department on October 31, 1988. In this amended complaint, James alleges that he was constructively discharged by the Respondent on January 8, 1987, and again on March 9, 1987. However, even the most recent date of alleged constructive discharge occurred more than 600 days prior to the filing of his amended complaint. Thus, a basic problem presented by Complainant's attempt to amend his complaint is the statute of limitations.

Before beginning a discussion regarding the statute of limitations, however, a second "good cause" argument complainant makes for allowing him to amend his complaint must be discussed. There are two aspects of this argument. First, Complainant argues that Respondent had early and adequate notice that he intended to pursue a claim of constructive discharge. Complainant argues that even if Respondent did not read the Initial Determination and had not, while unrepresented, read Complainant's discovery request that a claim for constructive discharge was being made against it, Respondent thereafter retained counsel as of December 8, 1987, and that as early as December 11, 1987, Respondent's counsel was put on notice that constructive discharge was a part of Complainant's claim. Complainant argues that Respondent's awareness that the constructive discharge claim was part of his claim is demonstrated by the following: (1) Respondent's 1/21/88 correspondence to ALJ Rasche in which Respondent's counsel describes the issue of constructive discharge as "the ultimate issue in controversy;" (2) ALJ Rasche's letter of 1/22/88 in which she refers to constructive discharge, stating "This remains an issue which will have to be resolved at hearing;" (3) Complainant's 1/28/88 correspondence in which Complainant sets forth his position regarding Respondent's (alleged) admission of his constructive discharge; and (4) various portions of Respondent's 3/30/88 Motion to Confirm Extent of Admissions, or in the Alternative, Motion for Leave to File an Amended Answer to the Request for Admissions, and the accompanying affidavit and brief in support of such motion. In particular, Complainant cites Respondent's 3/30/88 brief wherein Respondent asserts that Complainant has clouded and confused the record about whether Respondent has admitted the ultimate issue in controversy, constructive discharge, and then goes on to assert that "Respondent has opposed that contention continuously from the time the charge was filed."

Secondly, Complainant apparently contends that the conduct and positions taken by the Respondent as described above establish good cause for his failure to amend his complaint no later than ten days prior to the hearing. Complainant argues that this is so because it was not until Respondent's 10/22/88 Motion for Clarification of Notice of Hearing (received by the Department on 10/24/88, the day before the scheduled hearing) that Respondent first contended that constructive discharge was not an issue in the case. Complainant argues that Respondent was thus not only equitably estopped (7)  from raising this "eleventh hour" motion, but Respondent had waived any objection it may have had with respect to a hearing on this issue.

The Commission finds that the ALJ also correctly rejected these good cause arguments by the Complainant. First, based on the facts evident in this case, the ALJ noted that "Where an issue is not raised by a complaint, not raised in any writing filed by the Complainant during the course of the investigation, and never disclosed by the investigator to the Respondent as an issue for investigation, and where the investigation does not allow the Respondent to be heard on this issue, that the Division's Investigative Bureau is without authority to issue an Initial Determination making a conclusion on that issue, and the Division is without authority to conduct a hearing on the issue." ALJ Memorandum Opinion, p. 8. In short, the above situation simply made it impossible for the Department to conduct a hearing on Complainant's constructive discharge claim notwithstanding his equitable estoppel argument. Moreover, directly related to Complainant's equitable estoppel argument, Respondent points out that Complainant's failure to file an amended complaint could not have been caused by Respondent's "resistance" to Complainant's construction placed on "a certain Request for Admissions" (i.e., the dispute over whether Respondent admitted Complainant had been constructively discharged), since the first time Respondent attempted to address this issue was 1/21/88, and at that time the 300-day limitations period had already expired as to all matters Complainant sought to address his proposed amended complaint. (8)

Secondly, the ALJ acknowledged Complainant's frustration over Respondent's having waited until the eve of the hearing to raise the issue of whether the issue of constructive discharge could be litigated when it had never been raised in a complaint, but noted that there was no ready procedural pathway by which Respondent could have or was required to have objected to the scope of the Initial Determination and the Notice of Hearing exceeding the scope of the complaint. See ALJ Memorandum Opinion, p. 9. Finally, as to waiver, the ALJ simply finds that there was nothing in Respondent's conduct which can be said to have caused it to have acquiesced in the prosecution against it of a claim of constructive discharge not raised by the complaint, and, in any event, it was difficult to see how a waiver theory could justify the Division in conducting a hearing on an issue as to which no complaint had ever been filed.

As stated earlier, a basic problem presented by Complainant's attempt to file an amended complaint is the statute of limitations requirement that a claim of discrimination be filed within 300 days after the alleged discrimination occurred. The fact that James' proposed amended complaint was filed well over 300 days after the alleged discrimination occurred, however, does not automatically mean that he is foreclosed from filing the constructive discharge claim. There are circumstances where a complainant may be allowed to file a claim of discrimination even though the filing of the complaint occurs beyond the 300-day limitations period. For example, the tolling doctrines of equitable estoppel and equitable tolling allow a complaint to avoid the bar of the statute of limitations. The former comes into play if a respondent takes active steps to prevent the complainant from suing in time. Cada v. Baxter Health Care Corp., 54 FEP Cases 961 (7th Cir. 1990). The latter doctrine comes into play where a complainant, despite due diligence, is unable to obtain vital information bearing on the existence of his claim (i.e., information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the respondent). Id. Neither of these circumstances has been shown to have existed in this case.

Similarly, equitable tolling may apply when the untimeliness of the complaint was due to errors by the fair employment practice agency. Graves v. State of Colorado, 30 FEP Cases 1344 (D. Colo. 1982). The Complainant has suggested that because the Department's investigation revealed an appearance that Respondent had engaged in discrimination other than that alleged in, the complaint, but the Department failed to advise Complainant to amend his complaint pursuant to sec. Ind 88.06(2), this constitutes an agency error sufficient to toll the statute of limitations on his constructive discharge claim. As noted earlier, that section states that if during an investigation it appears that the respondent has engaged in discrimination against the complainant other than that alleged in the complaint, the Department may advise the complainant that the complaint should be amended to so allege.

The commission agrees with the ALJ's conclusion that the investigator's failure to advise James to amend his complaint does not constitute the type of situation which would warrant a tolling of the limitations period. As noted by the ALJ:

"There is no indication that the Division's representatives in any way misled or misinformed Mr. James about his rights and responsibilities in connection with the processing of claims under the Fair Employment Act. . . . The only thing which the Equal Rights Division did which could be construed as misleading the Complainant in some sense as to the necessity of filing an amended complaint was to actually issue the Initial Determination making a finding on the constructive discharge claim when it had not in fact been raised. However, Mr. James, who was not represented by counsel during the investigation, did obtain legal representation within only a. few days of the issuance of the Initial Determination. The question of whether the Division's issuance of the Initial Determination making a finding on an issue not raised can be said to have misled Mr. James into thinking that he did not need to file an amended complaint must therefore be evaluated in a different light than it would if Mr. James had continued to be operating without counsel. Mr. James' attorney would presumably have reviewed the complaint and the Initial Determination and would presumably have been familiar with the statutes and rules of practice under which the Division operates. He should thus have noted that, although there was a finding in the Initial Determination on constructive discharge, there was no claim of constructive discharge in the complaint. He should have been aware, by virtue of the provisions of Wisconsin Administrative Code Chapter Ind 88.06(2) if for no other reason, that this presented a problem." ALJ Memorandum opinion, p. 10.

Nothing in the case law suggests that the ALJ erred. The case law indicates that something more than passive conduct on the part of agency officials must have caused the individual's failure to prosecute his or her claim. For example, in Graves, supra, the court found that the agency's conduct in rebuffing and frustrating the employe, who had made several timely attempts to file her charge of discrimination, had discouraged and delayed her, and thus tolled the running of the limitations period. In Stutz v. Depository Trust Co., 24 FEP Cases 63 (S.D. N.Y. 1980), incorrect advice given by the agency prevented the plaintiff from timely filing a retaliation claim. Furthermore, case law indicates that the doctrine of equitable tolling is inapplicable where a plaintiff is represented by counsel. See, for example, Leite v. Kennecott Copper Corp., 558 F. Supp. 1170, 31 FEP Cases 390 (D. Mass.), affirmed, 720 F.2d 658, 33 FEP Cases 1520 (1st Cir. 1983) ; and Needham v. Beecham, Inc. , 515 F. Supp. 460, 26 FEP Cases 235 (D. Maine 1981). In Needham, it was stated that the courts have repeatedly held that equitable tolling is inappropriate when the plaintiff has consulted counsel during the statutory limitation period. Also, see Smith v. American President Lines Ltd., 571 F.2d 102, 16 FEP Cases 712 (2nd Cir. 1978), where the court stated that when one has retained counsel within the period in question, he has access to a means of acquiring knowledge of his rights and responsibilities. In the instant case, the Complainant had retained counsel on July 29, 1987, and several months still remained before the expiration of the 300-day statutory filing period.

Finally, Complainant James analogizes the instant case to a Title VII case where a defendant challenges a complaining party's right to bring issues before the district court for hearing which were not specifically alleged in the charge filed with the EEOC. When such circumstances are presented, unless the additional issues are found to "relate back" to the original charge filed with the agency they are subject to dismissal as untimely charges. In the 7th Circuit, which has followed the lead of the 5th Circuit, the standard enunciated for evaluating whether or not the additional issues are time- barred and thus prevented from being raised in the district court has been stated as follows:

"The correct rule to follow in construing EEOC charges for purposes of delineating the proper scope of a subsequent judicial inquiry is that 'the complaint in the civil action . . . may properly encompass any . . . discrimination like or reasonably related to the allegations of the charge and growing out of such allegations.' " Jenkins v. Blue Cross Mutual Hospital Insurance, Inc., 538 F. 2d 164, 13 FEP Cases 52 (7th Cir. 1976), quoting Danner v. Phillips Petroleum Co., 447 F. 2d 159, 162, 3 FEP Cases 858 (5th Cir. 1971).

James cites the results in three cases which have applied the above-quoted rule as support for reversal of the ALJ's denial of his Motion for Order Approving Amendment of Complaint. First, Complainant cites Aponte v. National Steel Service Center, 500 F. Supp. 198, 24 FEP Cases 609 (N.D. Ill. 1980). In Aponte, the complaining party who had alleged only retaliatory discharge in his charge before the EEOC was allowed to bring the additional claim of harassment before the court. In that case the court found that a reasonable relationship existed between the plaintiff's EEOC charge and his civil complaint and permitted the plaintiff to pursue the harassment claim on the theory that the alleged harassing acts may have been part of a design to force him out because of his prior complaints. Similarly, in Oxman v. WLS-TV, 595 F. Supp. 537 (N.D. Ill. 1984), a second case cited by Complainant, the court found a reasonable relationship between the EEOC charge alleging a discriminatory policy of discharging members of the plaintiff's protected class and the plaintiff's allegation of job assignment discrimination in his complaint before the court, to the extent that the job assignment scheme was part of the employer's overall plan aimed at discharging members of the plaintiff's class. In the third case cited by James, Roesel v. Joliet Brott Washer Co., 596 F.2d 183, 18 EPD para. 8862 (7th Cir. 1979), the court of appeals affirmed the lower court's decision allowing the plaintiff to amend her complaint on the last day of trial to allege sex discrimination with respect to pay for the period before her quitting. The defendant had opposed such amendment contending that the EEOC charge was limited to a claim of sex discrimination with respect to pay after her quitting and thus impermissibly expanded the scope of the original EEOC charge. The court of appeals rejected this argument, noting that: (1) the EEOC charge necessarily implied a claim with respect to the plaintiff's pay before her quitting; and (2) that the defendant had been put on adequate notice that the plaintiff was complaining about her pay during the period before her quitting.

In the context of the instant case, James argues that his amended complaint alleging constructive discharge because of his sex on January 8, 1987 and March 9, 1987, is reasonably related to and grows out of his original complaint alleging promotion and demotion discrimination on January 8, 1987, because the original allegations set forward the "method by which the school implemented its plan to get rid of him due to his sex." However, as noted by Respondent, the very allegations contained in James' proposed amended complaint belie his claim that his amended complaint relates back to his original complaint filed on February 11, 1987. For instance, while Complainant alleges that he was constructively discharged on January 8, 1987, his proposed amended complaint indicates that just two working days later, Respondent asked him to resume employment with Respondent, and that he agreed and was subsequently rehired by Respondent. (According to Complainant's 3/9/87 letter to the Equal Rights Investigator he contacted Respondent on 1/13/87 and agreed to return to work because of his financial condition.) A constructive discharge requires that an individual resign involuntarily to escape working conditions so intolerable that a reasonable person in his shoes would have felt compelled to resign. Bourque v. Powell Electrical Manufacturing Co., 617 F. 2d 61, 22 FEP Cases 1191 (5th Cir. 1980). A desire for reinstatement to Complainant's position belies his claim now that intolerable conditions underlay his January 8, 1987 resignation. See Bristow v. Daily Press, 770 F.2d 1251, 38 FEP Cases 1195 (4th Cir. 1985). Equally important, contrary to Aponte and Oxman, here the record shows that the Respondent had actually sought to rehire Complainant after Complainant had terminated the employment relationship, thereby negating any claim that the Respondent had implemented a "design" or "overall plan" to get rid of him because of his sex. Furthermore, unlike Roesel, there were absolutely no facts contained in James' original complaint from which it necessarily could be implied that such charge included a claim of constructive discharge.

Additionally, the Complainant's proposed amendment to his complaint to add the allegation that he was constructively discharged on March 9, 1987 also shows that that claim cannot avoid the statute of limitations bar. James' claim of having been constructively discharged on March 9, 1987, concerns events that occurred subsequent to his original complaint. In James' original complaint he alleges promotion and demotion discrimination occurring on January 8, 1987. The allegations of constructive discharge in connection with his March 9 separation of employment specifically relate alleged events that had occurred after his initial employment separation on January 8 and after he had again resumed employment with Respondent. The particular events complained of after his rehire involved being given sales leads alleged to be old and limited which were unlikely to produce sales, and a failure by Respondent to abide by an agreement made when rehired which provided that he did not have to attend weekly sales meetings. James' alleged 3/9/87 constructive discharge claim is thus comprised of an entirely different set of facts and circumstances than those set forth in his original complaint of promotion and demotion discrimination. As noted by Respondent, this new allegation by Complainant was not like or related to the original allegations of promotion and demotion discrimination since a constructive discharge is a different type of proscribed conduct that a failure to promote or demotion. Moreover, the time frames are different. The alleged failure to promote and demotion occurred in January 1987. The alleged March 9, 1987 constructive discharge occurred two months later, and was subsequent to the date the original complaint was filed.

Based on the applicable case law and the facts in this record, the Commission concludes that the ALJ's denial of Complainant's Motion for Order Approving Amendment of Complaint should be affirmed.

125

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(1)( Back ) Under the Wisconsin appellate court system, there would be an appeal as a matter of right where a "final" order or decision has been issued. There, a final order or decision is defined as an order or decision that disposes of the entire matter in litigation as to one or more of the parties. Section 808.03(1), Stats. Non-final orders may be appealed by permission of the court under sec. 808.03(2), Stats. This section allows a court of appeals to grant an appeal of a non-final order if it determines that the appeal will: (a) Materially advance the termination of the litigation or clarify further proceedings in the litigation; (b) protect the petitioner from substantial or irreparable injury; or (c) clarify an issue of general importance in the administrative of justice. Section 808.03 governs civil actions, however, and is inapplicable to administrative proceedings.

(2)( Back ) It should be noted, however, that while asserting that Johnson Controls is inconsistent and incompatible with the Commission's earlier ruling in the instant case, the Respondent devotes the bulk of its 41-page initial brief on the Motion to Renew the Motion to Dismiss Complainant's Petition repeating its basic arguments made earlier when it first sought dismissal of the Complainant's petition for review. Specifically, those arguments are that the Commission's jurisdiction under the WFEA has been specifically limited in that the Act only provides for a review by LIRC after the conclusion of an evidentiary hearing where a finding and order is entered finding either discrimination or no discrimination; that the Commission itself has recognized its limitations and so held in the case of Opolka v. Kolbe & Kolbe Millwork, (LIRC 12/20/79) and Vega v. The Larsen Co., (LIRC 7/3/85) ; and that sec. Ind 88:03 provides for Department disposition of the Complainant's instant petition in that ascertaining whether a complaint has been filed within the prescribed time is subject to review only by the court when the Department rejects a complaint for lack of timeliness. All of these arguments were previously rejected by the Commission in its earlier decisions.

(3)( Back ) "Ind 88.03 Review of complaints. 

(1) PRELIMINARY REVIEW. The department shall review every complaint filed to ascertain whether the complainant is protected by the act, whether the respondent is subject to the act, whether the complaint states a claim for relief under the act and whether it has been filed within the time period prescribed by the act. Except where prevented by the anonymity requirements of s. 111.375(1), Stats., the department shall serve upon the parties a preliminary determination and order dismissing any complaint which fails to meet these requirements. 

(2) APPEAL TO THE ADMINISTRATOR. A complainant may appeal from an order dismissing a complaint under sub. (1) by filing a written request with the administrator of the division. The request shall be filed within 20 days after the date of the order and shall state specifically the grounds upon which it is based. If a timely request is filed, the administrator, or a person designated by the administrator, shall review the preliminary determination and shall either affirm, reverse, modify of (sic) set aside the preliminary determination and order. Such decision shall be served upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be referred for investigation. If the decision affirms the preliminary determination, it is the final decision of the department and shall be subject to review in court.

(4)( Back ) Ind 88.06(2) provides that "If during an investigation it appears that the respondent has engaged in discrimination . . . against the complainant other than that alleged in the complaint, the department may advise the complainant that the complaint should be amended to so allege. If the complaint is so amended, the department shall investigate the, allegations of the amended complaint as well as the allegations of the initial complaint."

(5)( Back ) Ind 88.02(2) requires that a complaint be written.

(6)( Back ) In Lopez v. City Bank, N.A., 808 F.2d 905, 42 FEP Cases 1153. (1st Cir. 1987), the court, noting that the complainant had been represented by counsel during a significant portion of the relevant time period, concluded that it was proper to refuse to toll the statute of limitations in that case.

(7)( Back ) Complainant cites Mercado v. Mitchell, 83 Wis. 2d 17, 26-27, 264 N.W.2d 532 (1978), wherein the court states that there are three elements to the doctrine of equitable estoppel: (1) action or inaction which induces, (2) reliance by another; (3) to his detriment.

(8)( Back ) In Complainant's reply brief to the Commission Complainant argues that the language in Respondent's 3/30/88 brief wherein Respondent refers to the constructive discharge issue stating "Respondent has opposed that contention continuously from the time the charge was filed," constitutes a "binding (factual) admission" of Respondent's "knowledge (he) was pursuing a constructive discharge claim" prior to any expiration of the limitations period. Complainant classifies this statement as a binding admission by Respondent under the doctrine of judicial admissions, asserting that the general rule is that in order for a statement to constitute a judicial admission, it must be clear, deliberate and unequivocal, and it must be a statement of fact rather than opinion, citing Kuzmic v. Kreutzman, 100 Wis. 2d 48, 301 N.W.2d 266 (Ct. App. 1980). Complainant contends the statement meets all of the Kuzmic tests. The Commission has considerable difficulty with the Complainant's argument here because this claimed "admission" is not only actually contrary to the record (for example, as noted above by the ALJ in the paragraph preceding this footnote), Respondent has argued before the ALJ and the Commission that it first attempted to address the issue regarding constructive discharge in a letter dated January 21, 1988. (See Respondent's 11/7/88 brief opposing Complainant's Motion for Order Approving Amendment of Complaint at p. 20, and Respondent's 7/1/91 Answering Brief at p. 31.) For these reasons the Commission cannot conclude that the statement Complainant has referenced constitutes a "clear, deliberate and unequivocal" statement of fact. In Fletcher v. Eagle River Hospital, 156 Wis. 2d 165, 456 N.W. 2d 788 (1990); the Wisconsin Supreme Court noted that whether a statement or purported concession is to be treated as a judicial admission rests in the sound discretion of the court.

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