CHESTER MOZDEN, Complainant

BRAKEBUSH BROTHERS INC, Respondent

An administrative law judge 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:

1. In the first sentence of the administrative law judge's Decision, the date "November 28, 2005" is deleted and the date "September 20, 2005" is substituted therefor.

2. In the last paragraph beginning on page 2 of the administrative law judge's Decision, the date "November 28, 2005" is deleted and the date "September 20, 2005" is substituted therefor.

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

Dated and mailed March 30, 2007
mozdech . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

The administrative law judge found that the complaint in this case was filed on November 28, 2005, the date on which the complainant's charge, filed with the United States Equal Employment Opportunities Commission (EEOC), was received by the Wisconsin Equal Rights Division (ERD). However, because a charge received by the EEOC is also deemed to be received by the state agency with which the EEOC has a worksharing agreement, including the Wisconsin ERD, the date on which the charge was received by the EEOC will constitute the filing date for purposes of the Wisconsin Fair Employment Act. See Age Discrimination in Employment Act Procedural Regulations, 29 CFR ch. XIV, § 1626.10(c); Keup v. Mayville Metal Products (LIRC, June 22, 1995). A transmittal letter from the EEOC to the ERD indicates that the complainant's charge was initially received by the EEOC on September 20, 2005. The commission, therefore, finds that the complainant's ERD complaint was also filed on that date, and has modified the administrative law judge's decision to reflect that fact.

In his petition for commission review the complainant suggests that his charge was filed on an even earlier date: He states that he submitted "papers" to the EEOC in May of 2005. In support of this assertion, the complainant has provided documentation showing that on May 23, 2005, a certified letter was sent by the complainant to the EEOC in Washington, D.C., which was signed for and received on June 10, 2005.

EEOC regulations do not require that a charge take any particular form and specify that a charge is filed when the EEOC receives from the person making the charge a written statement naming the prospective respondent and generally alleging the discriminatory act or acts. See Age Discrimination in Employment Act, EEOC Procedural Regulations, 29 CFR ch. XIV, § 1626.6. In this case, while it does appear that the complainant sent something to the EEOC that was received on June 10, 2005, the complainant has not explained what "papers" were submitted, and it is not clear whether he provided the EEOC with information sufficient to constitute a charge. While under other circumstances, the commission might consider it necessary to order further hearing, the commission declines to do so in this case because, even if it could be found that the complainant's charge was filed on May 23, 2005, a charge filed on that date would nonetheless be considered untimely.

In his complaint the complainant makes the following allegations:

"In 2002, a payroll computer granted me 240 hours of vacation time. In 2003 and 2004, I was denied a vacation (time off). I deny taking any more than two weeks of vacation during this period. This computer error also affected employees who were less than 40 years of age and these younger employees have been allowed to take a normal two-week vacation every year."

On the portion of the charge form in which the complainant was asked to provide dates of discrimination, he indicates that the earliest date of discrimination was December 1, 2003, and that the latest date of discrimination was December 31, 2004. He has checked the box indicating that the discrimination against him is a "continuing action."

The respondent contends that the complaint should have been filed within 300 days of December 2002, at which time the complainant was first put on notice that the vacation time would have to be repaid. However, the complaint does not allege that the complainant was discriminated against when the respondent decided he needed to repay the vacation time, but, rather, when it denied him vacation time over the next two years while granting vacation time to younger employees similarly affected. The clock begins to run when the complainant knew or reasonably should have known of the wrong that was committed against him. Washington v. United Water Serv. (LIRC, Aug. 15, 2003); Lange v. Federal Express (LIRC, Feb. 22, 1993). There is nothing in the complaint or case file which specifically addresses the question of when the complainant learned or reasonably should have learned of the alleged disparate treatment. While the complaint indicates that the discrimination began on December 1, 2003, it seems unlikely that almost an entire year would have elapsed since the complainant was told he could not take vacation before he either knew or reasonably could have known of the alleged disparate treatment. However, even giving the complainant the benefit of the doubt and concluding that he could not reasonably have been expected to learn of the alleged discrimination until December 1, 2003, the fact remains that he nonetheless failed to file a charge within 300 days of that event, having done so at the very earliest on May 23, 2005.

The commission has also considered the complainant's contention that the statute of limitations can be extended until the end of his employment based upon a continuing violation theory, but concludes it cannot. A continuing violation theory is not generally applicable to discrete acts, such as termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, and awards of compensation. See, Lau v. Latec Credit Union (LIRC, Feb. 7, 2003). In this case, the denial of vacation time would constitute a discrete act of discrimination, from which a complaint could have been filed within 300 days. Even assuming, for the sake of argument, that the complainant first learned of the disparate denial of vacation time on December 1, 2003, there is nothing in the complaint to indicate that he requested and was denied vacation time thereafter, and the complainant's letters to the administrative law judge suggest he did not. In one such letter, dated November 24, 2006, the complainant asserts that he did not request vacation time after being told he was ineligible, and states that, "The only time I asked for time off was to go to the dentist, doctor or hospital for tests. . ."

Absent any reason to believe that the complainant is alleging that an additional act or acts of discrimination occurred after he discovered he would need to pay back the vacation time, while younger workers would not, the commission sees no basis to extend the statute of limitations beyond 300 days from the first date of discrimination alleged. Consequently, even if the complainant could prove that a charge was filed in May of 2005, such charge would nonetheless be dismissed as untimely.

cc: Attorney Dennis M. White

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