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

PATRICIA  J  SALLIS, Complainant

AURORA HEALTH CARE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200603336


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter affirming a Preliminary Determination and Order which dismissed as untimely the complainant's amended complaint allegations that the respondent discriminated against her on the basis of race, sex and age with respect to compensation. The complainant filed a petition for review.

The commission has considered the petition and the position of the parties. Based on its review of this matter, for the reasons stated in the Memorandum Opinion attached to this decision the Labor and Industry Review Commission issues the following:

DECISION

Assuming for purposes of argument that the commission could consider the complainant's petition for review of the administrative law judge's decision, the commission nevertheless concludes that the complainant's amended complaint must be dismissed since it was filed more than 300 days after the alleged discrimination occurred and because equitable tolling does not allow the complainant to avoid the bar of the statute of limitations.

Dated and mailed December 3, 2010
sallipa . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Aurora Health Care employed Patricia Sallis as a Loss Prevention Security Officer from October 1982 until August 16, 2006, when it terminated her employment.

On August 17, 2006, Sallis filed a charge of discrimination with the EEOC which was cross-filed with the ERD. Sallis's charge alleged that she was discriminated against on the basis of her race (black), sex (female) and age (45) with respect to discipline for attendance, and with respect to her August 8, 2006 suspension from work and subsequent discharge on August 16, 2006. Sallis's EEOC charge listed the date, October 15, 2005, as the earliest date of discrimination and the date, August 16, 2006, as the latest date of discrimination.

Sallis's claim of discrimination was initially processed by the EEOC since it was initially filed there.

On September 5, 2007, the EEOC issued a Dismissal & Notice of Rights letter in the matter. The EEOC stated that it was closing its file because it was unable to conclude that a violation of the statutes had been established.

On September 7, 2007, Sallis filed a request for the ERD to investigate her discrimination claim.

On September 7, 2007, Sallis also filed with the ERD an "Amended complaint" alleging race, sex and age discrimination with respect to compensation, i.e., her failure to receive a merit raise in 2006 and because her hourly wage was less than that of her co-workers. Sallis's amended complaint listed the date "04/2006" as the date this discrimination began and also as the most recent date of this alleged discrimination.

The respondent filed an answer to Sallis's amended complaint. The respondent asserted that Sallis's amended complaint claim did not arise out of the facts and circumstances of her original complaint allegations of discipline for attendance, suspension and discharge, and that the amended complaint was filed well beyond the 300-day statute of limitations and should be dismissed as untimely.

On November 8, 2007, an ERD equal rights officer (ERO) issued a Preliminary Determination and Order (PDO) dismissing Sallis's compensation claims raised in her amended complaint, stating that this complaint did not meet the timeliness requirements under the WFEA.

Also, on November 8, 2007, the ERO issued an Initial Determination concluding that there was no probable cause to believe that the respondent violated the WFEA by terminating Sallis's employment because of her race, sex or age. On November 16, 2007, the ERO issued an Amended Initial Determination which added the conclusion that there was no probable cause to believe that the respondent violated the Act by discriminating against Sallis in her terms or conditions of employment because of her race, sex or age.

On November 28, 2007, Sallis filed an appeal from the PDO.

On December 5, 2007, Sallis commenced a federal court action alleging that Aurora discriminated against her based on her race, sex and age in violation of both Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967.

On December 14, 2007, Sallis filed an appeal from the Amended Initial Determination of No Probable Cause.

In a decision issued on February 21, 2008, ALJ James Schacht affirmed the PDO's finding that Sallis's compensation claims raised in her amended complaint did not meet the timeliness requirements under the WFEA.

ALJ Schacht's decision issued on February 21, 2008, included a Notice of Appeal Rights enclosure stating that this decision was a final decision.

Wisconsin Administrative Code § DWD 218.21(1) provides, in relevant part, that:

Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division. (Emphasis added.)

On February 22, 2008, however, the ERD re-issued ALJ Schacht's decision with an "Amended Notice of Appeal Rights". In this notice to the parties the ERD stated:

Enclosed is a Decision and Order by an Administrative Law Judge affirming the Preliminary Determination and Order which dismissed part of the Complainant's complaint.

The Administrative Law Judge has concluded that part of the complaint is untimely and must be dismissed. The Initial Determination previously determined that there is no probable cause with respect to other allegations in the complaint. A hearing will be held on the appeal of the determination of no probable cause. The Administrative Law Judge's decision to affirm the dismissal of part of the complaint may be appealed to the Labor & Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent notice of appeal rights when a final decision on the entire complaint is issued.
...
Note: This decision is re-issued to amend the appeal rights only. No appeal for this case until the final decision is issued on the entire case.

(Italicization emphasis added. Bold text and underlining in original.)

On November 20, 2009, the ERD issued ALJ Grandberry's decision on Sallis's appeal from the November 16, 2007 No Probable Cause Amended Initial Determination. ALJ Grandberry concluded that there was no probable cause to believe that the respondent discriminated against Sallis, in violation of the Act, by terminating Sallis because of her race, sex and age, and no probable cause to believe the respondent discriminated against Sallis, in violation of the Act, in regard to the terms and conditions of her employment because of her race, sex and age.

The Notice of Appeal Rights enclosure attached to ALJ Grandberry's decision provided the following information to the parties:

The attached decision is a final decision. Any party who is dissatisfied with the attached Decision and Order of the Administrative Law Judge (or with earlier nonfinal decisions which could not be appealed until a final order was entered) may file a written petition for review by the Labor and Industry Review Commission.

The Petition for Review must be received by the Equal Rights Division within twenty-one (21) days from the date of the decision, or the decision will become final.
...

(Italicization emphasis added; underlining in original.)

The ERD received a faxed petition for review from Sallis on December 11, 2009. The petition states as follows:

This is an appeal of the Decision and Order of the Administrative Law Judge, John A. Grandberry, of the Equal Rights Division to the Labor and Industry Review Commission in an employment discrimination case where the Complainant, Patricia J. Sallis (Sallis), alleged that the Respondent, Aurora Health Care (Aurora), violated the Wisconsin Fair Employment Act, sec. 111.31-111.395, Stats., (Act) by discriminating against her in regard to the terms or conditions of her employment because of race, by terminating her employment because of race, by discriminating against her in regard to the terms or conditions of employment because of sex, by terminating her employment because of sex, by discriminating against her in regard to the terms of (sic) conditions of her employment because of age, and by terminating her employment because of age.

(Emphasis added.)

Sallis's petition for review of ALJ Grandberry's decision next mentions the November 8 and November 16, 2007 amended Initial Determination of no probable cause, her appeal, that the matter came on for hearing on September 19, 2008, after postponement of the original hearing date of June 25, 2008, and then raises six claims of error for appeal.

Subsequently, on December 30, 2009, Sallis filed an appeal of ALJ Schacht's decision which affirmed the Preliminary Determination and Order's dismissal of Sallis' compensation claims raised in her amended complaint. December 30, 2009, was more than 21 days from the date of ALJ Grandberry's final decision issued on November 20, 2009. In this petition, Sallis states:

In the Amended Notice of Appeal Rights dated and mailed on February 22, 2008 it is stated "The Administrative Law Judge's decision to affirm the dismissal of part of the complaint may be appealed to the Labor & Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued."

Due to the multiple letters of appeal rights I received concerning the decision by ALJ Schacht, and the fact that the other ALJ decision by John A. Grandberry in the underlying ERD case was not received until nearly two years later, in November, 2009, I was confused about my appeal rights, especially because I am not an attorney and these are complex matters. 
   

DISCUSSION

Wisconsin Administrative Code DWD § 218.05(2) and (3) provide, in relevant part, as follows:

(2) PRELIMINARY DETERMINATION DISMISSING COMPLAINT. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1) [e.g., the Act's time period for filing a discrimination complaint]. ...

(3) APPEAL OF PRELIMINARY DETERMINATION. ... If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. ... If the decision affirms the preliminary determination, it may be appealed to the labor and industry review commission if it is a final decision and order as defined in s. DWD 218.21(1).

Wisconsin Administrative Code § 218.21(1) and (2) provide as follows:

DWD 218.21 Petition for review by the labor and industry review commission.

(1) APPEALS LIMITED TO FINAL DECISIONS AND ORDERS. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

(2) REQUIREMENTS FOR FILING PETITION FOR REVIEW. The petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties. The petition shall be filed with the division's Madison or Milwaukee office.

Wisconsin Statute § 111.39(5)(a) provides that "Any respondent or complainant who is dissatisfied with the findings and order of the examiner [i.e., administrative law judge] may file a written petition with the department for review by the commission of the findings and order." However, only if a respondent or complainant files a petition for review within 21 days from the date that a copy of the findings and order is mailed does the commission acquire jurisdiction to review the examiner's decision. Wis. Stat. § 111.39(5)(b); see also, Wis. Adm. Code § DWD 218.21(2), supra.

Sallis asserts that her appeal of ALJ Schacht's decision should be considered timely by the commission and her amended complaint remanded for investigation.

Citing the commission's decision in Heinritz v. Lawrence University (LIRC, 09/30/93)(appeal deadline does not begin to run if information as to appeal rights is incorrect), Sallis asserts that the ERD's notice of appeal rights did not comply with Wis. Stat. § 227.48(2).

Wisconsin Statute § 227.48(2) provides that:

Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as respondent. No time period specified under s. 227.49(1) for filing a petition for rehearing, under s. 227.53(1)(a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this section.

Sallis asserts that the appeal deadline was misstated in 3 separate documents: (1) the November 8, 2007 PDO which stated that an appeal should be filed within "20 days" when it should have been within "21 days"; (2) ALJ Schacht's February 21, 2008 decision stating that it was a final decision with a "21 day" deadline for appeal to LIRC; and (3) ALJ Schacht's decision with the Amended Notice of Appeal Rights. With respect to the ALJ's decision with the amended notice of appeal rights, Sallis asserts that this decision did not state that it was a final or nonfinal decision, only that "this decision is re-issued to amend the appeal rights only. No appeal for this case until the final decision is issued on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued."

Only Sallis's third assertion warrant's any attention. The November 8, 2007 PDO issued by the ERD did not misstate the deadline for appealing this decision. Wisconsin Administrative Code § 218.05(3) specifically states that:

(3) The complainant may appeal from an order dismissing a complaint under sub. (2) [Preliminary determination dismissing complaint] by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based.

(Emphasis added.)

As for Sallis's second assertion, whether or not ALJ Schacht's February 21, 2008 decision correctly or incorrectly stated the appeal deadline, on the very next day the ERD re-issued ALJ Schacht's decision with an amended appeal rights notice which informed Sallis that ALJ Schacht's decision could only be appealed after a final decision was issued on the entire case; that no appeal could be taken from ALJ Schacht's decision. Consequently, the appeal rights notice that was controlling was that stated in ALJ Schacht's February 22, 2008 re-issued decision.

It is Sallis's assertion regarding the third "misstated appeal deadline" that is more problematic. Sallis asserts that ALJ Schacht's re-issued decision with the Amended Notice of Appeal Rights did not state that it was a final or nonfinal decision. Further, Sallis apparently asserts that while working on the 21-day deadline to appeal ALJ Grandberry's November 20, 2009 decision she called the ERD to inquire about a "final" PDO decision as ALJ Schacht's February 21, 2008 "Final Decision" was rescinded and replaced with the decision issued on February 22, which was not clear as to whether it was a final or nonfinal decision, and that she never received a call back from the ERD as she requested.

Sallis also asserts that she has been "prejudiced by exceptional delay of the final decision of no probable cause". Apparently Sallis's claim is that she was prejudiced with respect to filing an appeal of ALJ Schacht's decision because "almost two years" elapsed from the time ALJ Schacht's February 2008 decision was issued until the issuance of ALJ Grandberry's November 2009 final decision.

The respondent has not specifically addressed Sallis's claims of confusion about her appeal rights and attempt to obtain clarification from the ERD.

Even assuming the commission could consider Sallis's petition of ALJ Schacht's decision to be timely filed, however, for the reasons stated below the circumstances presented in this case do not warrant a remand of Sallis's amended complaint for investigation.

Sallis also argues that she "submitted one claim and it never should have been split up into two." Citing the commission's earlier decisions in Stone v. Milw. Bd. of School Directors (LIRC, 08/17/01) and Woodford v. Norwood Health Center (LIRC, 05/11/01), Sallis argues that the commission has stated that the Division's practice of issuing a preliminary determination to dismiss only some allegations contained in a complaint because they do not meet the preliminary review requirements of Wis. Adm. Code DWD § 218.05 do not comport with what is authorized under that administrative rule.

This is essentially what the commission stated in Stone and Woodford. At the time the Stone and Woodford cases arose, Wis. Adm. Code DWD § 218.05 read as follows:

(2) PRELIMINARY DETERMINATION DISMISSING COMPLAINT. The department shall issue a preliminary determination dismissing any complaint which fails to meet the requirements of sub. (1) [e.g., the Act's time period for filing a discrimination complaint]. ...

(3) APPEAL OF PRELIMINARY DETERMINATION. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. ...

(Emphasis added.)

Effective beginning on April 1, 2004, however, Wis. Adm. Code DWD § 218.05 was amended to read as follows:

(2) PRELIMINARY DETERMINATION DISMISSING COMPLAINT. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1) [e.g., the Act's time period for filing a discrimination complaint].

(3) APPEAL OF PRELIMINARY DETERMINATION. The complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. ...(1)

(Emphasis added.)

The amended language in Wis. Adm. Code DWD § 218.05(2) specifically authorizes the Division to dismiss portions of a complaint that fail to meet the requirements of sub. (1) effective as of April 1, 2004. (For reasons noted immediately below, it appears that Sallis's amended complaint could actually be considered a separate complaint, which the ERD dismissed in its entirety. The dismissal of the amended complaint did not dispose of her entire case before the ERD, however.)

Even if Wis. Adm. Code DWD § 218.05(2) and (3) continued to read the same today as it did at the time of the Stone and Woodford cases, Sallis's case was distinguishable from those cases. Sallis has not filed just one complaint, she has filed two complaints. The original complaint Sallis filed with EEOC that was cross-filed with the ERD, and the subsequent amended complaint that she filed with the ERD. A preliminary determination and order dismissing Sallis's amended complaint in its entirety would not have run afoul of DWD § 218.05(2) as it existed prior to April 1, 2004.

Conversely, assuming for purposes of argument that Sallis's amended complaint should be considered to be part of her original complaint, DWD § 218.05(2) as it read at the time of Sallis's amended complaint permitted the department to dismiss any portion of a complaint.

Wisconsin Statute § 111.39(1) provides, in pertinent part, as follows:

(1) 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. ...

The respondent asserts that if the commission decides to consider the untimely petition for review of the PDO dismissing Sallis's amended complaint, the commission should, nonetheless, affirm the PDO. The respondent points out that Sallis's amended complaint filed on December 7, 2007 with her new allegations of compensation discrimination did not arise out of the facts and circumstances of her original complaint alleging discipline, suspension and discharge discrimination. The respondent thus asserts that Sallis's amended complaint did not relate back to her original complaint, and was therefore filed well beyond the 300-day time limit, citing James v. Associated Schools, Inc. (LIRC, 11/27/91).

The commission has also previously considered the timeliness of amended complaints in Wilson v. Coplan's Appliance (LIRC, 10/10/89)(Where the allegations of the proposed amendment to a complaint are found to "arise out of the same facts and circumstances" alleged in the earlier timely filed complaint, the proposed amendment will be deemed to "relate back" to the earlier complaint for statute of limitations purposes) and Pulvermacher v. Regency Partners and Frederick Hendricks (LIRC, 04/28/93)(The amended complaint, insofar as it constituted a complaint against Mr. Hendricks, was the first complaint brought against him as a party respondent in this matter and was filed well beyond the 300-day statute of limitations. The amended complaint could not "relate back" to any earlier, timely complaint because no such complaint had ever been filed against Mr. Hendricks).

See also, 51 Am. Jur. 2d Limitations of Actions § 263 (2010):

If an amended complaint or petition does not introduce a new cause of action or make any new demand or substantially change the cause of action, but merely restates in a different form the cause of action originally pleaded, it relates back to the commencement of the action so as to avoid the operation of the statute of limitations, and may therefore be made even after the statute of limitations has run.

Sallis's September 7, 2007 amended complaint allegations of compensation discrimination in April 2006 did not arise out of the facts and circumstances of her original complaint alleging discipline, suspension and discharge discrimination. Sallis's amended complaint thus cannot be deemed to relate back to her original complaint filed on August 17, 2006, and was therefore filed well beyond the 300-day statute limitations period.

The issue regarding the timeliness of Sallis's amended complaint does not end here, however, as Sallis also argues (in her December 30, 2009 petition for review of ALJ Schacht's decision) that the concept of equitable tolling should prevent her amended complaint from being barred by the statute of limitations.

In Newbold v. Wisconsin State Public Defender, 310 F.3d 1013, 1015-1016 (7th Cir. 2002), the court stated:

Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if, despite all due diligence, she is unable to obtain vital information bearing on the existence of her claims. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990. It may be particularly appropriate if an administrative agency misleads a plaintiff. See Alsaras v. Dominick's Finer Foods, Inc., 248 F.3d 1156, 2000 WL 1763350, at 3 (7th Cir. 200) (tolling appropriate when EEOC representative told plaintiff she had a year rather than 300 days to file suit); Early v. Bankers Life and Cas. Co., 959 F.2d 75, 80 (7th Cir. 1992) (tolling appropriate when EEOC informed plaintiff he had completed all necessary paperwork for charge when he had only filled out intake questionnaire).

In her December 30, 2009 petition for review, Sallis makes numerous assertions, including assertions about being denied a promotion in 2002, suspended from employment in 2003, being given a disciplinary action for attendance in 2004, not issued an employee access card in 2005, being harassed by her supervisor twice at some unspecified time, and not being made aware of two positions created in 2005 and 2006 which were offered to a male and female with less seniority.

Sallis further includes the following assertions about what occurred after filing a charge of discrimination with the EEOC on August 17, 2006:

57. When the Complainant filed the charge for discrimination on or about August 17, 2006 the initial investigator advised the Complainant that the agency was not filing Retaliation Claims at this time.

58. The Complainant was then advised that she should file a wage discrimination complaint with the Wisconsin Equal Rights Division by a former co-worker[.]

59. On or about August 24, 2006 the Complainant went into the Wisconsin Equal Rights Division to file a complaint of discrimination and was directed back to the Equal Employment Opportunity Commission because she had already initialized the claim with this agency.

60. On or about August 24, 2006 the Complainant called [the] Equal Employment Opportunity Commission to amend the charge.

61. The Complainant was directed by the Investigative Supervisor Marian Drew that she would leave message with the assigned Investigator to her case that the Complainant was calling to amend her charge to include denial of benefits from the discharge, disparity of wages and a denial of a promotion.

62. The Complainant never received a call back concerning amending the claim with the EEOC Investigator assigned to the case.

63. In February of 2007 the Complainant called the EEOC office to check the status of her claims with the Investigator and discovered that the Investigator was on medical leave and the case had to be reassigned to a new Investigator.

64. After the case was assigned with a new Investigator, the Complainant came into the office and spoke to another Investigator about the amendment of her initial claim and the status of her complaint.

65. After the EEOC investigation was finalized and closed on September 5, 2007 it was discovered that the original EEOC claim was never amended and the case was released to the ERD for an investigation of the complaint under the state law.

66. The Complainant then on September 7, 2007 was allowed by the ERD to formally file a written amended complaint to deal with denial of benefit, disparity of wages and a denial of a merit wage and promotion.

Counsel for the respondent has attached to her brief copies of the federal district court's judgment granting respondent's motion for summary judgment on Sallis's federal court action alleging discrimination on the basis of race, sex and age in violation of Title VII and the Age Discrimination in Employment Act, and the Seventh Circuit Court of Appeal's Order affirming the district court's decision.

Counsel argues that "In her federal court action, Ms. Sallis made the same complaints that she asserted in her WFEA complaint-that she was disciplined, suspended and discharged because of her race, sex and age and that she was denied a merit increase and paid less than her co-workers because of her age, sex and race." (Emphasis added.)

Counsel argues that "While the doctrine of issue preclusion did not preclude the relitigation of Ms. Sallis' previously litigated issues, under the circumstances presented in this case, we ask that the Commission give great weight to the judgments of the District Court and the Court of Appeals."

Issue preclusion refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995).

In Sallis's federal court action, the court dismissed her claims that were not included in the EEOC charge. The court stated:

Before proceeding to the merits of plaintiff's claims, I note that plaintiff alludes in her brief to numerous alleged acts of discrimination that were not included in her Equal Employment Opportunity Commission ("EEOC") charge or in her complaint in the present case. Any claims that were not raised in plaintiff's EEOC charge cannot be pursued in court and, therefore, must be dismissed. See, e.g., Teal v. Potter, 559 F.3d 687, 691 (7th Cir. 2009) (" '[A] Title VII plaintiff cannot bring claims in a lawsuit that were not included in her EEOC charge.' "). Plaintiff raised only two claims in her EEOC charge: (1) her claim that in 2004 Aurora disciplined her for excessive absenteeism and that this discipline was motivated by her race, sex and age, and (2) her claim that her discharge on August 16, 2006 was motivated by race, sex and age. (Ninneman Aff., Oct. 15, 2008, Ex. 1.) I address the merits of these two claims below. All other claims are dismissed as outside the scope of the EEOC charge. (Bold text emphasis added.)

[In a footnote the court mentioned Sallis having attempted to raise a retaliation claim and an EEOC investigator advising her to drop that issue. The court stated that assuming this advice excused Sallis' failure to assert a retaliation claim in her EEOC charge she had not produced enough evidence to survive summary judgment on this claim. The court noted that Sallis' only evidence of retaliation was that after Aurora suspended her pending its investigation into her actions during the night she spent in her car, but before it decided to terminate her, Sallis presented Aurora with a letter from an attorney suggesting Sallis was being singled out for disparate treatment due to her race, sex and age. The court noted that timing alone is generally not sufficient to raise an inference of retaliation, however, and, that in this case, the timing of Aurora's decision was not suspicious because Aurora had suspended Sallis and commenced its investigation into her actions before receiving any complaint about discrimination.]

As indicated above, counsel states that while the doctrine of issue preclusion did not preclude the relitigation of Ms. Sallis' previously litigated issues, the respondent nevertheless asks that the Commission give great weight to the judgments of the District Court and the Court of Appeals.

While perhaps it would be appropriate for the commission to give great weight to the courts' judgments in terms of Sallis's claims of discipline for attendance and suspension and discharge because of her race, sex and age, the same cannot be said with respect to Sallis's amended complaint claims of compensation discrimination because of her race, sex and age. A statute of limitations issue is raised with respect to Sallis's compensation claims. The statute of limitations issue was not decided by the federal court. As noted above, what the district court stated that it was addressing was the merits of Sallis's claims that her discipline for excessive absenteeism in 2004 and her discharge on August 16, 2006 were motivated by race, sex and age, and that "All other claims are dismissed as outside the scope of the EEOC charge." (Bold text emphasis added.). The case law indicates that the substantive scope of a lawsuit has nothing to do with the statute of limitations. For example, in Luddington v. Indiana Bell Tel. Co., 796 F. Supp. 1550 (S.D. Ind. 1990) the court stated:

The Seventh Circuit has stated that "the judicial complaint in a Title VII case can embrace not only the allegations in the administrative charge but also " 'discrimination like or reasonably related to the allegations of the charge and growing out of such allegations'...." Malhotra [v. Cotter & Co.], 885 F.2d [1305 (7th Cir. 1989] at 1312 (quoting Hemmige v. Chicago Pub. Schools, 786 F.2d 280, 283 (7th Cir. 1986) ). In Malhotra, the Seventh Circuit held that the plaintiff's claim regarding racial harassment was barred in the Title VII action because he had only alleged failure to promote, not racial harassment, in his administrative charge. However, the Court went on to hold that the plaintiff's failure to include retaliation in his administrative charge was not fatal and adopted the general rule that "a separate administrative charge is not prerequisite to a suit complaining about retaliation for filing the first charge." Id. at 1312. The doctrine of "like or reasonably related," however, has nothing to do with the statute of limitations, but rather the substantive scope of the lawsuit. (Bold text added.)

With respect to Sallis's assertions numbered 60 thru 62 above, it should be noted that in correspondence to the ERO dated October 29, 2007, in answer to a request that she respond to Aurora's claim that her amended complaint was untimely, Sallis stated the following:

The AMENDED COMPLAINT against Aurora Health Care was filed in a timely manner. Initially I was directed to The Equal Rights Division to deal with the wage/benifets (sic) issues. I had started my discrimination complaint with the EEOC immediately after I was terminated from Aurora in August 2006. Since my case was already being investigated by the EEOC the ERD agent advised me to address the wage/benifets (sic) issues with the EEOC investigator as referenced in the attached letter from Marian Drew, from the EEOC. I also came into the EEOC office prior to the closing of my EEOC case to address the wage/benifet (sic) case against Aurora Health Care and no reference of this meeting was recorded in my file.

The attached letter Sallis refers to was apparently an email. It reads as follows:

From: MARIAN DREW
To: LLANAS, LILI
Date: 8/24/2006 5:13:07 PM
Subject: Patricia Sallis, 443-2006-03140

You recently drafted Patricia Sallis' charge against Aurora. She left a msg for you and called me re: amending her charge. She has some wage/benefit issues that she tried to take to ERD but was referred back to us. I told her that you will sort out whether this is something that should be added to her charge. She indicated that she was entitled to some PTO and sick leave before she was discharged. It sounds like she lost those benefits as a result of her discharge and if that is the case (& R' practice), I told her it would be part of a remedy consideration if a violation is established. She also mentioned a promotion she was denied 2 years ago and I told her we'd consider that background info since it's untimely. (Emphasis added.)

Hand written at the bottom of this email is the following:

3/28:
3/6
Patricia Sallis

Left voc msg. on CP's cell # - CP not at home #.

(Sallis's amended complaint filed with the ERD on September 7, 2007 does not mention PTO and sick leave benefits not being received as a result of her discharge. What Sallis alleges in this amended complaint is that she "did not receive a merit raise in 2006" because of her race, sex and age; that she received a "meets expectations" on her April 2006 performance evaluation and in previous years was always told whether or not she would receive a raise and how much her raise would be, but was not notified after this performance evaluation; and that she further believes Aurora discriminated against her because her hourly wage was less than that of her coworkers. In Sallis's appeal of the PDO dismissing the amended complaint, however, she does mention that as a result of her "illegal firing" she lost pay for over 600 hours of vacation and sick leave. Also included in her assertions are claims of males with less service receiving wages comparable to what she was receiving and being denied a promotion two years before her discharge.)

As for Sallis's amended complaint compensation claims she simply provides the date "4/2006" as the date the date this alleged discrimination began and the most recent date of this discrimination. (Information in the case file indicates that Sallis's 2006 performance review was signed by Moraza and Sallis on March 16, 2006, and the respondent's Director/Administrator on March 17, 2006.)

Using the date, April 1, 2006, as the date on which the statute of limitations began to run, Sallis would have had until January 25, 2007 to file a complaint alleging compensation discrimination in order to meet the WFEA's 300-day limitations period.

Sallis's amended complaint was filed more than 300 days after the alleged discrimination occurred and the doctrine of equitable tolling does not allow her to avoid the bar of the statute of limitations.

Equitable tolling does not allow Sallis to avoid the bar of the statute of limitations for the following reasons.

First, there is no basis for finding that the ERD's action in referring Sallis to the EEOC to file an amended complaint warrants a tolling of the statute of limitations on those claims. The ERD did nothing to mislead Sallis about filing an amended complaint. In fact, the ERD's action in referring Sallis back to the EEOC was entirely appropriate since Sallis had initially filed her original complaint with the EEOC and the EEOC was still processing that complaint. Pursuant to the worksharing agreement between the EEOC and ERD, because the charge of discrimination was initially received by the EEOC the charge of discrimination was to be initially investigated by the EEOC and not the ERD.

Second, with respect to the EEOC, according to Sallis's December 30, 2009 petition assertions, when she called the EEOC to amend her complaint on August 24, 2006, Marian Drew stated that she would leave message with the assigned investigator that she was calling to amend her charge, that she (Sallis) never received a call back concerning amending her claim from the assigned investigator and that in "February 2007" when she called the EEOC she discovered that the investigator was on medical leave and the case had been reassigned to a new investigator. Further, Sallis mentions subsequently going into the EEOC (at some unspecified time) and speaking to another investigator about amendment of her complaint and not realizing until September 5, 2007, when the EEOC closed its investigation of her case, that her complaint had not been amended to include her wage claims.2(2)

The commission does not find it either reasonable, or an exercise of due diligence on Sallis's part, for Sallis to have waited some six months (from August 24, 2006, until "February 2007") for a call back from the EEOC about amending her complaint before again contacting the EEOC "to check the status of her claims". Sallis knew in August 2006 that she wanted to amend her complaint to allege discriminatory compensation. Sallis has cited nothing which prevented her during the six month period after August 24, 2006, from either again contacting the EEOC by phone to initiate the process of amending her charge, or physically going to the EEOC's office and filing an amended charge. Indeed, Sallis had gone to the EEOC's office to file her original charge of discrimination. Furthermore, even assuming that the 300-day period in which Sallis had to file a charge of compensation discrimination extended to some point beyond January 25, 2007 her claim of equitable tolling fails. Sallis merely asserts that at some unspecified time after February 2007 she "came into the office and spoke to another Investigator about the amendment of her initial claim", but did not discover that her EEOC claim was never amended until September 5, 2007. Sallis has not asserted that on this visit to the EEOC the investigator refused or prevented her from filing an amended charge. Further, the EEOC procedural regulations require, among other things, that a charge of discrimination be signed. § 1601.9 ("A charge shall be in writing and signed and shall be verified."). Clearly, Sallis had to have known well before September 5, 2007, whether or not she had signed a charge alleging compensation discrimination.

Accordingly, the commission concludes that Sallis's amended complaint must be dismissed as untimely since it was filed more than 300 days after the alleged discrimination occurred.

 

NOTE: The commission offers the following suggestions for consideration by the Equal Rights Division. That the Division:

1. Amend DWD 218.05(3) to read:

"(3) APPEAL OF PRELIMINARY DETERMINATION. The complainant may appeal from an order dismissing a complaint, or any portion of a complaint, under sub. (2) by filing a written appeal with the department.

2. Amend DWD 218.21(1) to read:

"(1) APPEALS LIMITED TO FINAL DECISIONS AND ORDERS. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire case and leaves no further proceedings on the case pending before the division.

3. Label decisions that are "nonfinal" as "nonfinal" decisions. Have the nonfinal decision specifically inform the parties that the nonfinal decision may not be appealed until a final decision is issued which disposes of the entire case and leaves no further proceedings on the case pending before the division.

4. In the Notice of Appeal Rights enclosure of final decisions, amend the first paragraph to read as follows:

The attached decision is a final decision. It disposes of the entire case and leaves no further proceedings on the case pending before the division. Any party who is dissatisfied with the attached Decision and Order of the Administrative Law Judge (or with earlier nonfinal decisions which could not be appealed until a final decision and order was entered) may file a written petition for review by the Labor and Industry Review Commission.

cc: Attorney Mary Pat Ninneman


Appealed to Circuit Court.  Affirmed  July 12, 2011.  Appealed to the Court of Appeals.  Affirmed, in unpublished per curiam decision, February 26, 2013.

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Footnotes:

(1)( Back ) The first sentence in Wis. Adm. Code 218.05(3) should likely also have been amended to read as follows: "The complainant may appeal from an order dismissing a complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1)"

(2)( Back ) The ALJ stated the following with respect to Sallis's claims about the EEOC:

Ms. Sallis's references to communications to the EEOC could be understood to allege that she raised allegations regarding compensation to the EEOC, so it was not her fault that the EEOC did not amend the complaint to include such allegations. There are at least two problems with that argument. First, the EEOC is a separate agency from the Division, and the Division has no responsibility for its actions. Second, when a file is closed by the EEOC, the Division does not receive copies of the EEOC's files. Information regarding discussions about the scope of the complaint or requests for any amendments is simply not available. The Division simply does not have the information to judge or correct the EEOC's actions. As a result, the argument raised by Ms. Sallis that the amendment should be considered timely because of EEOC's actions or lack of action is rejected.

 


uploaded 2010/12/07