KEVIN A BRANTNER, Complainant
GOODWILL INDUSTRIES, 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 the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed February 19, 2010
brantke . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Kevin Brantner appeals from the ALJ's decision which dismissed Brantner's complaint in its entirety based on his failure to comply with the 300-day statute of limitations.
Brantner filed a complaint with the Equal Rights Division on April 20, 2009, in which he alleged that the Work Force Center in Great Lakes, Illinois discriminated against him on the basis of disability (1) by terminating his employment at the naval base on January 1, 2007, (2) and subsequently by failing to hire him based on a May 27, 2008 determination that he no longer qualified for the Javits-Wagner-O'Day (JWOD) program food service position because his disability no longer qualified him for the program. With respect to his termination, Brantner asserted that someone had forged his name and signature on a payroll deduction form for transportation and that due to this form being falsely completed, he lost his job at the Naval Base on 1-1-07.
In a letter to Brantner dated April 21, 2009, an equal rights officer (ERO) informed Brantner that the Division could not accept his complaint because he stated that his food service position was at a naval base in Illinois and that his complaint was filed against a business that was in Illinois. The ERO informed Brantner that if he performed the work in Illinois and not Wisconsin, then the ERD had no authority to accept his complaint. The ERO further advised Brantner to call her to discuss his case as it could not be accepted as written.
Following a discussion the ERO had with Brantner and his counselor, Brantner filed a second complaint with the ERD on May 1, 2009, in which this time he alleged that Goodwill Industries of Milwaukee, Wisconsin discriminated against him on the basis of disability. Also, in this complaint Brantner listed his disability as "Mental Retardation". Brantner alleged that his disability "had something to do with [his getting] terminated" and that after his termination he re-applied and was informed that his "disabilities no longer qualified me for employment through Great Lakes." In this complaint, Brantner refers to the date of "7/1/08" as the date of his "termination letter from Great Lakes/Goodwill." (3)
The ERO concluded that Brantner's May 1, 2009 complaint needed further clarification. Based on information that Brantner had provided in the May 1 complaint and the sticky notes he had attached to his documents, on May 6, 2009, the ERO sent a re-written complaint to Brantner for him to review and sign if he found it to be accurate.
On May 8, 2009, the ERD received the ERO's re-written complaint which Brantner had signed. In this complaint, Brantner alleged that he worked in food service at the Great Lakes Naval Base; that he was placed in this job by Goodwill Industries of Wisconsin; that he was terminated on January 29, 2007, because of his attendance; that he re-applied for work at Great Lakes but "they" determined that his "disabilities no longer qualify" so he couldn't work in their program; and that this was decided on May 27, 2008, but he didn't receive the notice by mail until July 1, 2008.
On May 13, 2009, the ERD served a copy of the May 8, 2009 complaint on the respondent, Goodwill Industries.
Goodwill Industries of Southeastern Wisconsin, Inc., ("Goodwill") filed a response to the complaint on June 15, 2009. Goodwill asserted that the ERD lacked jurisdiction due to the fact that: 1) Brantner had insufficient contacts with Wisconsin, i.e., he did not work in Wisconsin for Goodwill and his only contact with Wisconsin was that he lived here; and 2) Brantner did not file his complaint within 300 days of the alleged adverse employment action-he filed his complaint on May 8, 2009, regarding employment decisions made in January 2007 and May of 2008.
Goodwill asserted that its mission was to provide work opportunities and skill development for people with barriers to employment and that in the pursuit of this mission it engaged in various business and human service activities including operation of the food service program at Great Lakes Naval Base.
Goodwill acknowledged that Brantner was hired as a Food Service Worker at Great Lakes Naval Base through the JWOD program (now known as Ability One), whereby Goodwill specifically hires individuals with disabilities in order to help them overcome barriers to employment created by their disabilities.
Goodwill acknowledged that Brantner was originally hired as a Program participant by Goodwill in November of 2004. Goodwill asserted that Brantner worked as a Food Service Worker until January 31, 2008, when he was terminated due to attendance issues.
Goodwill asserted that Brantner subsequently sought re-employment with Goodwill through a community-based organization; that the medical information supplied for Goodwill to determine if Brantner was eligible under the Program showed that Brantner suffers from Borderline Intellectual Functioning; that upon comparing Brantner's diagnosis with the Program guidelines, Goodwill determined that he was not eligible for the Program; (4) that as a result Brantner was not considered for re-employment; and that this decision was made by Goodwill in May 2008.
Also, with respect to having sufficient contacts with Wisconsin to be covered under the WFEA, Goodwill noted that LIRC has issued a number of decisions addressing "geographical jurisdiction", and asserted as follows:
In Hatfield v. Aurora Building Maintenance (LIRC, 11/17/95), the LIRC said:
The Wisconsin Fair Employment Act contains no provision expressly governing the geographical extent of its coverage, but some suppositions about it seem beyond dispute. Thus, it is obvious that if (for example) a Wisconsin employer with a workplace in Wisconsin fires a Wisconsin resident who works in that Wisconsin workplace, the Wisconsin Fair Employment Act is potentially applicable to a claim of discrimination connected with the discharge; it seems equally obvious that if an Alaskan employer with a workplace in Alaska fires an Alaskan resident who works in that Alaskan workplace, the Wisconsin Fair Employment Act is not applicable to any claim of discrimination brought in connection with the discharge. Somewhere in the range in between these two hypothetical examples there must be a line dividing the cases over which the State of Wisconsin has jurisdiction from those over which it does not. [footnote omitted] There have been a few decisions issued by the commission which have provided some guidance as to how the line is drawn.
The Commission reviewed a number of factual scenarios from multiple cases in Hatfield and then stated:
Although they have dealt with disparate factual situations, the results in Buyatt [v. C.W. Transport (LIRC, 07/25/77)], Gray [v. Walker Manufacturing Co. (LIRC, 07/21/82)] and Birk [v. Georgia Pacific (LIRC, 08/03/90)] are consistent with the view that the location of the employment is the most important factor. In Buyatt and Birk, in which jurisdiction was found, the activities of the employees of which constituted their employment appear to have taken place to some significant degree with the State of Wisconsin. In Gray, by way of contrast, it does not appear that the employe's (sic) employment took place to any significant degree within the state. (Underlining and bold text in original.)
A construction of the Buyatt-Gray-Birk rule which views discrimination as "occurring" where the employment takes place, is also most consistent with the purpose expressed in the Wisconsin Legislature's Declaration of Policy in sec. 111.31(2), Stats., to the effect that "[i]t is the intent of the legislature [in enacting the Wisconsin Fair Employment Act] to encourage the full, nondiscriminatory utilization of the productive resources of the state."
In the present case Complainant has stated no connection between his employment with Goodwill and Wisconsin, other than the fact that he lives in Wisconsin. He was not employed by Goodwill in Wisconsin, did not apply to become employed by Goodwill in Wisconsin and did not and would not have worked for Goodwill in Wisconsin. Therefore, there is no jurisdiction under the WFEA as to Complainant's employment issues with Goodwill.
On June 30, 2009, Brantner filed a reply to Goodwill's response to his complaint. Brantner asserted, among other things, that he was "fired on 01-01-07 not on 01-31-08".
In a Preliminary Determination and Order issued on August 28, 2009, an investigator for the ERD decided that the Division did not have jurisdiction over Brantner's complaint claims and dismissed his complaint. The investigator found that Brantner was discharged from the Great Lakes Naval Base Facility on January 29, 2008, and that his complaint filed on May 8, 2009, was filed more than 300 days after his discharge. Further, the investigator found that on May 27, 2008, Goodwill Great Lakes, located in Illinois made the decision that Brantner's disability no longer qualified him for its food service program at the Great Lakes Naval Base, and that the Division had no jurisdiction as the employment that Brantner was seeking was in the State of Illinois and the decision not to rehire him was made in the State of Illinois.
Brantner filed an appeal from the Preliminary Determination and Order with the ERD on September 2, 2009. In his appeal, Brantner asserted that he was fired "12-31-07 not 01-29-08. Brantner also asserted that he didn't "know where they came up with Borderline Intellectual functioning (sic) which I don't I got 3180 updated 08-31-09 which is Mental Retardation". (5) Further, Brantner asserted he "thought they fired me for my disability now they are saying for my attendance".
On September 16, 2009, the parties were notified that an ALJ for the Equal Rights Division would be issuing a decision on Brantner's appeal
On September 25, 2009, the ERD received a response from Goodwill regarding Brantner's appeal. Goodwill asserted that the Preliminary Determination dismissed Brantner's complaint because 1) the complaint was filed outside of the statute of limitations, preventing the ERD from exercising jurisdiction; (6) and 2) Brantner applied for employment in Illinois and was refused employment in Illinois without any connection to Wisconsin being stated that would be sufficient to provide ERD jurisdiction, and that Brantner's appeal letter failed to address either of these issues.
The ALJ issued a decision in the matter on September 28, 2009. After noting a discrepancy in the date of Brantner's termination of employment in Brantner's May 8, 2009 complaint [i.e., January 29, 2007] and the Preliminary Determination [i.e., January 29, 2008], the ALJ held that:
Whichever termination date is used, it is clear that the Complainant filed his complaint regarding the termination of his employment more than 300 days after the Complainant was discharged. Therefore, the Complainant has failed to comply with the 300-day statute of limitations for filing a WFEA complaint. The investigator dismissed the Complainant's complaint as untimely and the Administrative Law Judge determines that the Investigator's decision was correct.
ALJ decision, p. 2.
Further, the ALJ stated that:
The Administrative Law Judge notes that the Investigator utilized the May 8, 2009 date, the date that the Complainant filed his third complaint with the Division regarding his employment at the Great Lakes Naval Base, as the date that his complaint of discrimination was filed. However, the Complainant initially filed his complaint against Goodwill Industries alleging essentially the same facts on May 1, 2009. Since the complaints are essentially the same, the Administrative Law Judge determines that the appropriate date for determining the statute of limitations is May 1, 2009. The Administrative Law Judge is not considering the Complainant's initial complaint filed on April 20, 2009 as a viable complaint against the Respondent, Goodwill Industries, since the Complainant's April 20, 2009 complaint lists a completely different respondent than Goodwill Industries.
Id. (Underlining emphasis in original.)
Finally, with respect to ERD jurisdiction regarding Brantner's employment in Illinois, the ALJ noted that it was not clear from the investigator's Preliminary Determination and Order how the investigator determined that the decision not to rehire Brantner was made in the State of Illinois. The ALJ then further noted that while there was case law involving a complicated analysis of whether such employment is covered under the WFEA, it was not necessary to determine whether Brantner's claim regarding the denial of employment at the Great Lakes Naval Base in Illinois is a viable claim under the WFEA because the ALJ determines that the complaint should be dismissed as untimely. The ALJ then stated:
In the Complainant's complaints filed on May 1, 2009 and May 8, 2009, the Complainant claims that he was informed by a letter that he received on July 1, 2008 that the Respondent would not consider him for re-employment at the Great Lakes Naval Base. Using the May 1, 2009 dates as the filing date of the complaint, the Complainant's complaint that he was denied re-employment by the Respondent because of his disability would only be within the statute of limitations if the Complainant had been made aware of this decision on or after July 5, 2008. Since the Complainant's May 1, 2009 complaint and his May 8, 2009 complaint make it clear that the Complainant was notified that he would not be considered for re-employment with the respondent on July 1, 2008, the Administrative Law Judge determines that the Complainant's claim regarding the Respondent's failure to rehire [him] was untimely.
ALJ decision, p. 3.
In Brantner's petition for review and written argument to the commission, relevant to the timeliness of his claim(s) against Goodwill, Brantner argues that he "filed" his complaint on "April 27, 2009 which was under 300 days". Apparently as evidence of this, Brantner has submitted a copy of the re-written complaint the ERO sent to him on May 6, 2009, on which appears his signature and "4-27-09" as the date he signed it. Brantner's argument fails. First of all, Brantner must be limiting his claim of meeting the timeliness requirement to his claim that he received notice on July 1, 2008, that his disability no longer qualified him for employment and therefore could not be re-hired, and not his claim that his employment was terminated on December 31, 2007. In any case, Brantner could not possibly have "filed" this complaint with the Division on April 27, 2009, since the ERO had not prepared this complaint for him to review and sign until May 6, 2009. Furthermore, the complaint Brantner claims was filed on 4-27-09 itself shows the ERD's date stamp of May 8, 2009, as the date that it was received (i.e., filed) at the ERD.
Brantner's further petition argument that he was fired on December 31, 2007, only makes his May 1, 2009 discrimination complaint claim that much more untimely.
Brantner also argues that he "never re-applied [for employment] in the spring of 2008". However, it was Brantner who submitted the JWOD Program determination dated May 27, 2008, with his complaints and who complains that this determination declared him ineligible for hire under the JWOD Program because his "Disabilities no longer qualify".
Finally, it should also be noted that while Brantner asserts that he has a disability of "mental retardation", the record in this case provides no reason to conclude that his mental condition prevented him from identifying Goodwill as his employer or that it caused his delay in filing a complaint against Goodwill. "Mental incapacity could be sufficient to toll (i.e., suspend) the filing period, but only if the individual was 'entirely incapable of bringing legal action' or discovering the vital information for the claim." Chaney v. The City of Chicago, 1996 U.S. Dist. LEXIS 18509, citing Barnhart v. United States, 884 F.2d 295, 300 (7th Cir. 1989), cert. denied, 495 U.S. 957, 109 L. Ed. 2d 743, 110 S. Ct. 2561 (1990). Brantner has not established this. First, Brantner has neither affirmatively asserted that his mental condition prevented him from timely filing a complaint against Goodwill, nor has he submitted any medical evidence which would support a showing that his mental condition was so disabling that it rendered him incapable of filing a timely complaint. Furthermore, the case file shows the following: (1) correspondence addressed to the Department of Workforce Development from an attorney dated July 11, 2007, stating that the attorney had been asked by Brantner to contact DWD regarding Goodwill's response to Brantner's claim for unauthorized deduction of transportation costs because of Brantner's alleged signature on the payroll deduction form; (2) that Brantner stated on the ERD processing information sheets attached to his discrimination complaints that at the end of March 2008 he had filed a complaint in this matter with Senator Herb Kohl's office; and (3) correspondence dated April 6, 2009, from Representative Paul Ryan which indicates that Brantner had contacted Rep. Ryan about his employment related problem at the military base and that Rep. Ryan had enclosed contact information for the Federal Equal Employment Opportunity Commission for Brantner to contact for guidance on how to pursue his complaint(s).
Attorney Jason A. Kunschke
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(1)( Back ) Brantner listed the following as his disabilities in this complaint: "Borderline Intellectual Functioning", Cardiac Disability and Vision Impairment.
(2)( Back ) In the Equal Rights Process Information Sheet Brantner completed which was attached to the discrimination complaint Brantner indicated that his employment ended on "12-31-07".
(3)( Back ) Again, however, in the Process Information Sheet attached to his May 1, 2009 complaint Brantner lists the date "12-31-07" as the date his employment ended. Also attached to this complaint is a document titled, JWOD Program & Food Service Eligibility Determination, which states that Brantner's disabilities "no longer qualify". The document is dated May 27, 2008. At the top of this document is the handwritten statement, "Came to me 7-1-08", apparently written by Brantner to indicate that this was the date he received this document.
(4)( Back ) Goodwill asserted that while Borderline Intellectual Functioning (BIF) may have been considered a covered condition in 2004 when Brantner first was employed by Goodwill, the regulatory agency that covers the Program clarified the Program requirements after 2004 and that BIF no longer qualifies under the definition of a "severe disability", therefore Goodwill had to reject Brantner as an applicant under the Program.
(5)( Back ) Previously in faxed correspondence to the ERD investigator which was received on July 2, 2009, Brantner asserted, "They say (Great Lakes) that I do not qualify for the JWOD program because of the BIF diagnosis (diagnosed from Racine Unified [School District] 20+ years ago), but my diagnosis from 1990 states that I have mental retardation. ..."
(6)( Back ) Goodwill noted that in his appeal Brantner argues that his termination date was 12-31-07 instead of 1-29-08, which make his complaint that much more untimely.