HARRY WILLIAMS, Complainant
FOUR POINTS SHERATON HOTEL, Respondent
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 that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed March 21, 2008
williha . rsd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On June 11, 2007, the Equal Rights Division received a discrimination complaint from Harry Williams alleging that the respondent discriminated against him on the basis of conviction record. Williams was a banquet floater for the respondent. The complaint stated in part as follows:
...I was required by the Respondent to fill out an application form. On the application form I indicated that I had a felony conviction. I worked two events for the respondent. On August 10, 2006 I was informed that my employment was terminated because of my felony conviction.... (Bold text added.)
In response to Williams' complaint the respondent's director of human resources, Susan Pierce, asserted in part that a review of the number of days from the time Williams stated he was notified of his termination-August 10, 2006-to the time he filed his complaint on June 11, 2007, exceeded the 300-day filing period. Pierce therefore requested that Williams' complaint be dismissed as untimely.
(The date, June 11, 2007, is 305 days after the date August 10, 2006.)
On July 2, 2007, an equal rights officer (ERO) sent a letter to Williams along with a copy of the respondent's response to his complaint and requested that he explain why he believed his complaint was timely. The ERO's letter included an explanation that the 300 day time limit could be waived if he had a good reason for being unable to file within the time limit, such as a period of incarceration or a period of incapacitation due to a physical or mental impairment.
According to the ERO's Investigator Log notes, Williams called on July 3, 2007, and informed the ERO that:
He didn't file within 300 days because he didn't know there was a statute of limitations and that he should be able to file a discrimination complaint at any time no matter how many days have passed. He was not ill or incarcerated and unable to perform day-to-day business tasks.
On July 5, 2007, the ERO issued a Preliminary Determination and Order dismissing Williams' complaint on the grounds that it did not meet the timeliness requirements under the WFEA.
On July 9, 2007, Williams filed an appeal of the dismissal of his complaint stating:
The real issue here is when I was notified of my termination. Which was not in writing (sic). I called Susan Pierce not on the day of receiving her letter but sometime later. And she told me over the phone that I could no longer work at the Four Points Sheraton because of a felony conviction. The letter was dated Aug. 10, 2006. The reson (sic) why I was terminated and when I found out (sic) why I am filing this appeal. (Bold text added.)
The ALJ issued a decision on August 3, 2007, affirming the Preliminary Determination. Citing Hoefs v. Perlman-Rocque, Whitewater (LIRC, 09/16/92), the ALJ noted that an individual has 300 days from the date that his or her employer informs the employee of the termination decision to file a complaint with the Division. The ALJ then stated, "Although Mr. Williams implies in his appeal letter that he did not know of his termination until some time after August, 10, 2006, the ALJ believes that the explanation he gave the ERO during their telephone conversation on July 3, 2007 is the more likely reason for his untimely filing of the complaint." The ALJ further noted that "ignorance of one's own rights does not suspend the operation of a statute of limitations", citing Hilmes v DILHR, 147 Wis. 2d 48, 56, 433 N.W.2d 251 (Ct. App. 1988).
The statute of limitations for filing discrimination complaints is set forth in Wis. Stat. § 111.39(1) and provides as follows:
The department may receive and investigate a complaint charging discrimination...in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination...occurred....
On appeal, Williams requests that the commission find that his complaint was timely filed pursuant to the "discovery rule" because he was not made aware of the facts supporting a claim for conviction record discrimination until on or after August 17, 2006.
The discovery rule is read into the statute of limitations and postpones the beginning of the limitations period from the date the complainant is wronged to the date when the complainant discovers he or she has been injured. Lange v. Federal Express (LIRC, 02/22/93). See generally, Cada v. Baxter Health Care Corp., 920 F.2d 446 (7th Cir. 1990); Hansen v. A. H. Robbins, 113 Wis. 2d 550, 335 N.W.2d 578 (1983).
The limitations period does not begin to run until the facts that would support a charge of discrimination were apparent or should have been apparent to a person with a reasonably prudent regard for his or her rights. Reeb v. Economic Opportunity Atlanta, 516 F.2d 924 (5th Cir. 1975); Washington v. United Water Services (LIRC, 08/15/03); Oehlke v. Moore-O-Matic (LIRC, 07/26/88); Lange, supra.
Williams states that he is registered with UNITE HERE Local 122, a labor union for hotel and restaurant employees, and that he was referred to the respondent in June or July of 2006. Williams states that he worked two events for the respondent prior to August 8, 2006. Williams states that on August 8, the respondent mailed a letter to UNITE HERE instructing it to remove him from its available banquet floater list.
Williams asserts that the letter provides no explanation as to why the respondent wished to remove him from the banquet floater list.
Williams has attached a copy of the August 8 letter to his brief. The letter reads in its entirety as follows: "Please remove Harry Williams Jr., [his SS# was here] from our available Banquet Floater list. As you know, we require each Banquet Floater to complete an Application for Employment and pass a background screening at the time they are first assigned to an event at the Four Points. After reviewing the Application for Employment and completing a background check we are terminating Mr. Williams from our payroll. If you have further questions, please feel free to contact my office at 615-8039." (Bold text added.)
In addition to this attachment, Williams has submitted an affidavit regarding this matter. It essentially repeats what is stated in this memorandum opinion.
Williams states that he received UNITE HERE's letter from the respondent on August 10 and after that he contacted the respondent to inquire why he was no longer allowed to be on its banquet floater list. Williams asserts that he is not certain of the exact date that he called the respondent but is certain it was between 7 and 14 days after he received the respondent's letter on August 10. Williams asserts that in response to his inquiry, the respondent told him that it does not hire convicted felons.
Williams admits he was not aware there was a statute of limitations but asserts he did not know that it was important that he explain that although he was informed he could no longer work for the respondent on August 10, he did not become aware of the facts that would support his charge of discrimination until at a minimum, August 17, 2006.
Williams further acknowledges that he spoke with the ERO on July 3, 2007, and that he made the statements attributed to him in the ALJ's decision. However, Williams asserts that when he made these statements, he still did not understand the difference between his receipt of the respondent's letter on August 10 and his conversation with the respondent on or after August 17, 2006, and did not explain same to the ERO.
Williams asserts that upon receipt of the Preliminary Determination dated July 5, 2007, he realized his complaint would have been timely had he explained that he became aware of the one critical fact which supports his charge of discrimination on or after August 17, 2006. Williams asserts that when he filed his pro se appeal on July 9, 2007, he tried to explain this critical issue stating, "I called Susan Pierce not on the day I received her letter but some time later and she told me that I could no longer work at the Four Points Sheraton because of a felony conviction." (Bold text added.)
Williams asserts that the ALJ's decision does not address his argument that although he became aware that he was wronged by the respondent on August 10, 2006, he did not discover he was injured and was not made aware of the one critical fact supporting his discrimination complaint until at a minimum 7 days later. Williams asserts that the ALJ's decision misunderstands and/or mischaracterized his argument as "an incredible attempt to, after the fact, deny that he was aware of his discharge on August 10, 200."
In his brief on appeal Williams makes the following argument in support of his assertion that he was not aware of the critical facts that would support a charge of discrimination on August 10, 2006:
...There were many possible explanations for his discharge on August 10, 2006. Perhaps the Respondent contacted one of Mr. Williams' former employers and received a poor reference, determined Mr. Williams lied on his application, based its decision on his credit history, had a downturn in business, had an employee return from leave, was forced to reinstate another employee that it discriminated against or was not happy with his performance in the two days he worked. Each and every one of these reasons are (sic) plausible and non-discriminatory. Neither Mr. Williams nor a person with a reasonably prudent regard for his rights similarly situated to Mr. Williams could possibly have known that he was the victim of discrimination on August 10, 2007 (sic). Mr. Williams had worked for the Respondent for only two days which distinguishes his plight from other cases where a pattern of differential treatment during the course of employment or isolated statements giving an inference of discrimination could and should have made an individual aware of the facts to support a charge of discrimination. Mr. Williams had nothing that could possibly have given him facts to support a complaint of discrimination.
After being advised of his discharge, Mr. Williams did exactly what a reasonably prudent person would do and what the Labor and Industry Review Commission cases required him to do, he contacted the Respondent and asked for an explanation....
Should the Commission decide that Mr. Williams should have been aware of discrimination on August 10, 2006, and, therefore, filed within 300 days thereof, it will essentially be holding that Wisconsin Employees should blindly file complaints without any factual support. The Commission will be sending a clear message to employees that they should not bother to...attempt to determine whether or not their discharge is legitimate or discriminatory but, rather, file a complaint, just in case factual support for their case becomes apparent at some future point. This will lead to an influx of merit-less discrimination complaints which will overwhelm the ERD.
The commission is not persuaded by Williams' argument. First of all, Williams' complaint statement itself specifically indicates that on August 10, 2006, he believed the respondent had discriminated against him. His complaint states, "On August 10, 2006 I was informed that my employment was terminated because of my felony conviction." (Bold text added.) Second, it seems crystal clear that the reason Williams came to this belief on August 10 was because he had been required to fill out an application for employment, on which he indicated he had a felony conviction, and because of what Pierce had stated in the August 10 letter. That letter stated, "As you know, we require each Banquet Floater to complete an Application for Employment and pass a background screening at the time they are first assigned to an event at the Four Points. After reviewing the Application for Employment and completing a background check we are terminating Mr. Williams..." (Bold text added.) Again, Williams' complaint specifically mentions that the respondent had required him to fill out an application, on which he indicated that he had a felony conviction.
As noted above, Williams attempts to make one believe he was not aware of facts that would support a charge of discrimination on August 10 because the employer could have had any of a number of reasons for deciding to terminate his employment (such as receiving a poor reference, lying on his application or basing the decision on his credit history). This argument may have had some validity were it not for the fact Williams specifically mentions in his complaint that the respondent required him to fill out an application on which he indicated he had a felony conviction, and the fact that Pierce's August 10 letter specifically references his requirement to fill out an application for employment and pass a background screening.
Williams may very well have called Pierce between 7 and 14 days after receiving her letter on August 10, 2006. However, based on the above, it is unreasonable to conclude that Williams did not believe on August 10, 2006, that he had been discriminated against. Armed with the knowledge that he had been required to fill out an application on which he indicated he had a felony conviction and the knowledge that the respondent required him to pass a background check and was terminating his employment after completing that background check, surely Williams was aware of critical facts that would support a charge of discrimination on August 10, 2006. Armed with these facts on August 10, 2006, Williams would not have been "blindly" filing a complaint without support had he done so at that time. Furthermore, it is hard to imagine how an individual could believe that he was discriminated against unless he was aware of enough critical facts that would cause him to come to this belief. The commission is convinced the record in this case indicates that on August 10, 2006, Williams had available to him sufficient facts that would support a charge of discrimination on the basis of conviction record.
Consequently, Williams' assertion that he called Pierce between 7 to 14 days after August 10, 2006, is irrelevant.
The respondent's response to Williams' appeal brief is twofold. First, the respondent argues that Williams' affidavit and the statements of facts in his brief should not be considered by the commission because Wis. Stat. § 111.39(5) dictates that the commission's action is to be taken "based upon review of the evidence submitted" and because the commission will neither address nor review documents submitted for the first time on appeal, citing, Butler v. City of Madison (LIRC, 11/27/00). Second, the respondent argues that Williams' argument that he did not learn about the reasons for his termination until "at least 7 days" after the August 10, 2006 letter is a new argument on appeal, and, moreover, this assertion contradicts his complaint statement that "On August 10, 2006 I was informed that my employment was terminated because of my felony conviction." Further, the respondent argues that the ALJ addressed and dismissed Williams' attempt to invoke the discovery rule in her decision; she determined that his assertion that he learned of the discrimination during a later phone call was not credible.
In reply, Williams argues as follows: (1) that Wis. Stat. � 111.39(5) presupposes there has been an investigation of the complaint, a hearing has been held and that the hearing examiner has made written findings and an order after the hearing. He argues that the ERO "failed to provide Mr. Williams with the opportunity to provide a written response to the ERO's July 2, 2007 letter advising him of the respondent's response, and issued a Preliminary Determination and Order on July 3 (sic), 2007" (1); that the ALJ's decision was based only upon the telephone conversation he had with the investigator and his appeal letter, and the ALJ did not provide him with the opportunity to present an affidavit or other evidence/argument relative to the timeliness of the complaint; and (2) that § DWD 218.05, Preliminary review of complaints, is the applicable regulation and LIRC cases interpreting this section clearly and unequivocally hold that an ALJ must conduct a hearing on appeals of Preliminary Determinations which turn on disputed factual issues in order for the requirements of due process to be met, citing, Bedynek-Stumm v. City of Madison (LIRC, 11/30/01).
Williams notes that in Bedynek-Stumm, the commission stated that § DWD 218.05 contemplates a process in which the complainant's factual allegations are assumed to be factually true for purposes of analyzing the legal sufficiency of a complaint, and then, quoting from the decision states:
Carrying out this process without a hearing is acceptable precisely because, and only because, it involves assuming that the facts are as alleged by the complainant. The commission believes that where a decision that a complaint is legally insufficient is based on a version of facts that is contrary to that alleged by the complainant, there is a need for a hearing. (Emphasis in original.)
Williams then argues:
Here, Mr. Williams acknowledges that his complaint, on its face appears as though it was not timely filed. However, Mr. Williams' appeal letter cited above [i.e., his July 9, 2007 appeal letter] attempts to explain in layman's terms that he did not [discover] the essential facts supporting his complaint of discrimination until after August 10, 2006. Given the opportunity, Mr. Williams could have amended his complaint to reflect this critical factual issue that he did not understand at the time he filed his complaint.
Nevertheless, Mr. Williams['] appeal letter provides a factual dispute concerning the timeliness of his complaint. In issuing the Decision and Order on Appeal of Preliminary Determination without a hearing, not only did the ALJ fail to presume the facts presented by Mr. Williams were true but made a credibility determination against Mr. Williams relative to those facts.
Accordingly, at minimum, the LIRC must remand this case to the ERD for a hearing on the issue of timeliness before an ALJ.
The commission is not persuaded by Williams' argument. The situation presented in Bedynek-Stumm is not similar to the situation presented here.
In Bedynek-Stumm, the complainant's complaint was received more than 300 days after being informed on September 13, 1999 of a refusal to hire, but the complainant and a cover letter he had submitted along with his complaint both alleged that a complaint concerning the matter had been first filed with the MEOC in November 1999. The fact that the ERD had a work sharing agreement with the MEOC meant that this entitled his complaint to have been considered filed with the ERD when received by the MEOC. However, the ERO contacted the MEOC, was told by the MEOC that it had no records of the complainant having filed a complaint with it, and on that basis issued a Preliminary Determination and Order finding his complaint untimely. On appeal, an ALJ, relying significantly on a letter sent to the ERO by an investigations supervisor for MEOC, issued his decision stating there was "no documentation" that the complainant had filed a complaint with the MEOC, that "the information available indicates that the MEOC has no record of [Complainant] having filed a complaint...in November of 1999, and there is no record that any discrimination complaint from [Complainant]...was forwarded from the MEOC to the ERD."
The Bedynek-Stumm case differs from the instant case significantly. First, unlike the Bedynek-Stumm case, here the ALJ's decision that Williams' complaint is legally insufficient is based on a version of facts that is consistent with what Williams has alleged. Williams' June 11, 2007 complaint allegation was that on August 10, 2006, he was informed that his employment was terminated because of his felony conviction. Further, after filing this complaint, on July 3, 2007, he spoke with the Division's ERO and stated that he didn't file his complaint within 300 days from August 10, 2006 because he didn't know there was a statute of limitations and that he should be able to file a discrimination complaint at any time no matter how many days had passed. Second, any alleged disputed factual issue that exists in this case is a creation of the complainant's own inconsistent assertions. Third, armed with the knowledge that he had been required to fill out an application, on which he indicated he had a felony conviction, and the knowledge that the respondent required him to pass a background check and was terminating his employment after completing that background check, surely Williams was aware of critical facts that would support a charge of conviction record discrimination on August 10, 2006. Fourth, even assuming Williams' most recent assertion that he called Pierce between 7 to 14 days after August 10 and was told his employment was terminated because of his felony conviction is true, based on the record herein this only confirmed what he already believed.
Accordingly, based upon the above-stated reasons, the commission has affirmed the decision of the administrative law judge.
Attorney Douglas J. Carroll, Jr.
Attorney Patrick H. Madden
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) Williams argues that the ERO failed to provide him an opportunity to provide a written response to the ERO's July 2, 2007 letter because "[t]here is no evidence in the record that Mr. Williams had even received the July 2, 2007, letter before the Preliminary Determination and Order was issued the following day (sic)." While Williams may not have provided a written response to the ERO's July 2 letter, the ERO's Investigator Log indicates that he did provide an oral response. Furthermore, based on that oral response, it is clearly apparent that he had received the ERO's letter dated July 2, 2007.