CAROLYN A SELIMI, Complainant

WELLPOINT, Respondent
(FORMERLY COBALT CORP)

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.

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

Dated and mailed November 29, 2005
selimca . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The ALJ concluded that Carolyn Selimi's claim that the respondent violated the WFEA by discriminating against her in her terms and conditions of employment because of her age was untimely, and that she had failed to prove that there is probable cause to believe the respondent violated the Act by terminating her employment because of her age. Selimi asserts that the ALJ's decision should be overturned and a ruling made in her favor.

Selimi was employed as a Benefit Analyst for the respondent, an insurance company that sold and administered the benefit plans of the insurance sold. On January 3, 2002, the respondent terminated the complainant's employment.

Referencing her complaint allegation that she was discriminated against in her terms and conditions of employment, which she asserts is the "real issue" in this matter, Selimi argues that her claim of age discrimination was not given fair consideration because the ALJ accepted the respondent's assertion that this claim was untimely. Selimi alleged that a co-worker who was age 51 and she, age 52, on November 14 and 15, 2001, respectively, were presented with negative performance evaluations, threatened with termination and given unreasonable amounts of work to be completed. Selimi asserted that this was part of the respondent's plan to replace her. and her co-worker with two younger workers in their 30s. Selimi did not file her discrimination complaint until September 27, 2002, however. September 27, 2002, was 316 days after November 15, 2001. Selimi asserts that her allegations of discrimination in terms and conditions are timely because she did not know she had a case of age discrimination until after December 4, 2001. Her assertion fails. The Wisconsin Fair Employment Act requires that a complaint charging discrimination must be filed with the department no more than 300 days after the alleged discrimination. The statute of limitations period begins to run when the complainant knew or reasonably should have known of the wrong that was committed against her. Lange v. Federal Express (LIRC, 02/22/93). See also, Oehlke v. Moore-O-Matic (LIRC, 07/26/88)(The statute of limitations begins to run when the facts that would support a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for his or her rights.) Selimi admits that she suspected age discrimination was occurring in November 2001.

After suspecting age discrimination, at some point Selimi requested discrimination complaint forms from the EEOC and ERD. In order to supply information regarding an EEOC complaint form. question that asked how many individuals in her department were in the protected age group, on January 3, 2002, Selimi used her company computer, in violation of company policy, to access and print confidential information about the employees in her department for her own personal use. The confidential information Selimi accessed and printed contained her co-workers' social security numbers, home addresses, type of insurance they carried with the respondent, the number of people in their families, as well as their ages. A co-worker became extremely upset upon discovering printed confidential information about her lying in the printer tray and notified the department supervisor. Selimi knew that she was not allowed to access medical records for her own personal use as she had received training regarding the respondent's Electronic Communications Usage & Security Policy. Selimi admitted to having printed the confidential information when questioned by her supervisor. Upper management level personnel were then notified and after reviewing the matter determined that the appropriate course of action was to terminate Selimi's employment due to violating the company's Electronic Communications Usage & Security Policy.

Selimi apparently asserts that because it is stated in the Electronic Communications Usage & Security Policy that a violation of the policy "will subject you to discipline, up to and including termination", her termination was not mandated under company policy. Nevertheless, the evidence fails to establish reason to believe that Selimi was discharged because of her age. Termination of employment was permitted for a violation of the policy, and the evidence showed that the respondent had terminated the employment of two employees who were in their twenties for violating the company's Electronic Communications Usage & Security Policy.

Selimi has also argued that on August 27, 2004, her attorney told her that she no longer wanted to take her case, that this lawyer "took up my discovery time", and that her August 29, 2004 letter request for an extension of time to obtain an attorney and to conduct discovery was denied but should have been granted. Selimi further asserts that another attorney that she obtained had a scheduling conflict at the last minute. (It was apparently this attorney which Selimi spoke of in a letter to the ALJ dated November 7, 2004. Selimi stated she was writing so close to the hearing date of November 12, 2004, because she had expected to hear from her new attorney before now, that her last contact with this attorney was on November 2 and that since then she had not heard from him.) Finally, Selimi apparently argues that on the day of the scheduled hearing (November 12, 2004) a postponement was warranted because she had to represent herself at the hearing since the attorney she had obtained the day before the hearing withdrew from representing her later that night because of a conflict of interest objection by the respondent. The respondent's objection was that up until about three or four months prior to the hearing, Selimi's newest attorney had worked for the respondent handling privacy and confidential issues and would inevitably be using knowledge that he had gained while representing the respondent in his representation of Selimi.

Selimi's arguments fail. Selimi was first advised on March 30, 2004, when a no probable cause initial determination was issued on her charge of discrimination, that she may wish to consult with an attorney for legal advice and subsequently notified on April 28, 2004, when her complaint of discrimination was certified to hearing, that "Parties who expect to be represented by an attorney at the hearing, and have not yet retained one, should do so immediately." The April 28 certification hearing notice further requested the parties to have their attorney file a notice of retainer with the ERD's Hearing Section to ensure that the attorney would receive the notice of hearing and all other communications from the Department. An information sheet attached to the notice of hearing mailed to the parties on May 13, 2004, further advised the parties that "The division will not normally postpone a hearing because a party wants to keep looking for an attorney or because their attorney needs more time to prepare." The case file also indicates that beginning with a letter to the parties dated May 17, 2004, and again in each of the letters to the parties dated. May 28, 2004, June 24, 2004 and June 30, 2004, the ALJ notified the parties that they should immediately begin discovery if they were planning to conduct discovery, that the parties should not anticipate that the ALJ would extend the period for discovery, that all discovery must be completed by August 20, 2004, and that any and all discovery motions must be filed no later than August 27, 2004. Notice of hearing changes dated June 2, 2004 and July 6, 2004, also advised the parties that all discovery must be completed by August 20, 2004.

While it is unfortunate that Selimi's first two attorneys, for whatever reason, apparently chose not to represent her after initially having agreed to do so, and that her third attorney withdrew as her counsel due to a conflict of interest, the record indicates that Selimi had had sufficient time to obtain an attorney. When a Complainant has had a sufficient amount of time to make arrangements for legal representation, any failure to obtain such representation will not be grounds for a postponement. Surin v. Toney (LIRC, 06/25/92). Selimi had more than seven months to obtain legal counsel capable of representing her at the November 12, 2004 hearing.

Further, while Selimi indicates that her first attorney took up her discovery time, it is also clear from the case file, as noted by the ALJ's September 1, 2004 letter to the parties in response to Selimi's August 29, 2004 letter, that prior to Selimi's August 29 letter the department had never been notified that she was represented by counsel. Thus, the ALJ had mailed none of her letters, containing her exhortations that all discovery must be completed by August 20, 2004 to Selimi's first attorney. The record is unclear as to why there had been a failure to inform the department that Selimi had obtained counsel to represent her. The record is also unclear whether or not Selimi, despite receiving letters addressed to her from the ALJ stating that all discovery must be completed by August 20, 2004, and on which there was no indication that her attorney was sent a copy, had failed to apprise her attorney that all discovery must be completed by August 20, 2004. In any case, it was within the ALJ's discretionary authority to set a date by which all discovery had to be completed. The ALJ's purpose in setting the August 20 deadline for completing discovery was to ensure that all discovery was completed before the scheduled hearing to avoid any need for a postponement of the hearing due to a discovery dispute, and to ensure that the parties had adequate time to prepare for the hearing. It was not, an abuse of discretion for the ALJ to refuse to extend the time for discovery under the circumstances presented in this case.

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Robert I. Wertheimer

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