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

ALLEN RICHARD WELSH, Complainant

STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS, Respondent
 

FAIR EMPLOYMENT DECISION
ERD Case No. CR200501949

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 January 13, 2006
welshal . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The complainant was employed by respondent as a staff dentist and as a dentist supervisor in its correctional institutions. The complainant alleges that, during his employment, he communicated to his supervisor his concern that certain of respondent's staff dentists were providing inadequate periodontal care, and he developed a system to address this concern. The complainant further alleges that his supervisor was not fully supportive of his reform efforts in this regard and, immediately prior to the date the periodontal system he had developed was to be implemented, terminated the complainant's employment. The complainant does not dispute that this termination occurred on December 18, 2003.

The respondent asserts, and the subject termination letter confirms, that it offered as the reason for the complainant's termination allegedly inadequate care he had rendered certain of his patients, and the work rule violations this inadequate care represented.

The complainant's charge was filed on May 18, 2005, and alleges that his report of inadequate periodontal care by certain of respondent's staff dentists was protected by the Health Care Worker Protection Act (HCWPA), and that his termination was in retaliation for reporting this inadequate care.

The 300-day filing period specified in Wis. Stat. § 111.39(1), is made applicable to charges filed under the HCWPA by operation of Wis. Stat. § 146.997(4)(a). This 300-day filing limit is not a jurisdictional prerequisite, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. See, Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335, N.W.2d 412 (Ct. App. 1983); Kanter v. Ariens Co., ERD Case No. 200205229 (LIRC Sept. 23, 2005).

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. See, Hilmes v. DILHR, 147 Wis.2d 48, 433 N.W.2d 251 (Ct. App. 1988) (discrimination occurs when the employer acts and the employee knows about it); Maynard v. Cummins, ERD Case No. CR200204705 (LIRC Jan. 28, 2004); Van Deraa v. Asten Johnson, ERD Case No. CR200404531 (LIRC June 30, 2005). The complainant does not dispute that he received notice of his termination on December 18, 2003. The limitations period would begin to run on that date as a result.

The complainant's charge was filed more than 500 days after his termination.

In his appeal to the commission, the complainant argues that the filing deadline should be extended because respondent denied him access during the actionable 300-day filing period to those patient records underlying its allegations that he had provided inadequate patient care in violation of respondent's work rules, as well as those records relating to the level of care provided by other staff dentists, and, as a result, he had no reason to be aware during the actionable period that his termination may have been improperly motivated. The complainant asserts that he did not gain access to these records until 2005, as part of a related action before the Department of Regulation and Licensing, and filed this charge immediately thereafter.

It is not clear whether complainant's argument should be characterized as urging application of the doctrine of equitable estoppel (respondent acted improperly to deny complainant access to relevant records and such lack of access caused untimeliness) or the doctrine of equitable tolling (despite due diligence by complainant and through no fault of respondent, relevant records unavailable and such unavailability caused untimeliness). See, Beamon v. M & I Trust Co., 411 F.3d 854 (7th Cir. 2005); Cada v. Baxter Healthcare Corp., 920 f.2d 446 (7th Cir. 1990); Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir. 1995); Washington v. United Water Services, ERD Case No. CR199902104 (LIRC Aug. 15, 2003)(the doctrine of equitable estoppel applies to situations in which the defendant takes active steps to prevent the plaintiff from suing in time, such as by hiding evidence).

However, under either theory, complainant's argument would necessarily fail if, despite the absence of the referenced records, the complainant had reason to believe, or had formed the belief, during the actionable period, that his termination could possibly have been motivated by retaliation. See, Hill v. U.S. Dept. of Labor and TVA, 65 F.3d 1331 (6th Cir. 1995); Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279 (7th Cir. 1993)(person injured by an unlawful act need not sue until he knows, or should have known, not only that he was injured but also that he has been injured by a possibly wrongful act of the defendant); Olson v. Lilly Research Laboratories, ERD Case No. 9001499 (LIRC June 25, 1992).

The file in this matter contains a copy of an agreement entered into by the complainant and respondent on July 22, 2004, settling the action challenging his termination which the complainant had filed with the Wisconsin Employment Relations Commission. It is reasonable to assume that this action was filed pursuant to Wis. Stat. § 230.44(1)(c); was filed, as required, within 30 days of such termination, i.e., on or before January 17, 2004 (Wis. Stat. § 230.44(3)); and alleged that the complainant's termination was without just cause. The test for determining whether "just cause" exists for termination of a state employee is whether some deficiency has been demonstrated which can reasonably be said to have a tendency to impair his performance of the duties of his position or the efficiency of the group with which he works. Safransky v. State Personnel Board, 62 Wis.2d 464 (1974).

In appealing his termination to the WERC on or before January 17, 2004, the complainant was necessarily challenging respondent's characterization of the nature and quality of the treatment he had provided in the incidents cited as the basis for its discharge decision. This, however, is in direct conflict with the statement which forms the basis for the complainant's tolling argument in his appeal to the commission, i.e., that, until 2005, because of the respondent's denial to him of access to relevant records, he was "convinced...I was guilty of the violation of DOC Work Rules" cited by respondent as the basis for his termination. Obviously, however, complainant was convinced no later than January 17, 2004, that he was not guilty of these work rule violations in view of his filing of the WERC appeal.

Given the complainant's challenge of the respondent's termination decision during the actionable period, and the proximity in time between his supervisor's shelving of the complainant's periodontal reform system and his termination, the available information requires a conclusion that the complainant, during the actionable period, had reason to suspect, despite the respondent's alleged denial to him of access to certain records, that his termination could possibly have been motivated by retaliation. See, Hill, supra.; Olson, supra. The complainant does not assert that he had no reason to be aware of his rights under the HCWPA, and, given his status as a medical professional, and the requirement that equitable estoppel and equitable tolling be narrowly applied and limited to extraordinary circumstances (see, Hill, supra.), such an assertion would be not be persuasive.

cc: Attorney Kathryn R. Anderson


 

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