Wis.LIRC ER Decision: Wanta, Hilary - October 17, 2003 - Procedure - timeliness of complaint - where complainant fialed to specify when he learned of his discharge, it is appropriate to consider collateral sources in the record - these establish here that he learned of his discharge more than 300 days before filing his complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

HILARY WANTA, Complainant

TOWER AUTOMOTIVE INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200204004,

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.

DECISION

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

Dated and mailed October 17, 2003
wantahi . rsd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

It is the complainant's burden to establish that he complied with the 300-day filing requirement of Wis. Stat. § 111.39 (1), not the respondent's burden to establish that the complainant failed to do so. The commission agrees with the administrative law judge that the complainant has failed to meet this burden.

Since, despite being represented by counsel, the complainant failed to specify in his complaint when he became aware of his termination, it is appropriate for the commission to consider collateral sources for that information. See, Olson v. Lilly Research Laboratories, ERD Case No. 9001499 (LIRC June 25, 1992). The commission agrees with the administrative law judge that information derived from these collateral sources, including the substance of related communications from and through the complainant's union representatives and attorneys, establishes that the complainant was aware of the subject termination no later than October 15, 2001, and probably no later than June 8, 2001. Both of these dates are more than 300 days before the date complainant filed his charge, i.e., September 23, 2002, and the commission concludes as a result that the complainant failed to satisfy the 300-day filing requirement of Wis. Stat. § 111.39(l).

Complainant contends that the respondent failed to provide "personal notice" to him of his termination. However, the complainant's argument accompanying this contention apparently relates to the requirements for service of process. Those are not the requirements applicable here. See, e.g., Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988). The proper question is when the complainant was aware or should have been aware that respondent had terminated his employment. Marano v. DaimlerChrysler Corp., ERD Case No. 199803462 (LIRC June 16, 2000).

Since, as concluded above, the complainant was aware of his termination no later than October 15, 2001, and this is dispositive of the timeliness issue under consideration here, it is not necessary for the commission to determine whether the complainant should have been aware of his termination on some earlier date.

cc:
Attorney Richard J. Steinberg
Attorney Richard A. Hooker

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