CAMERON L. DIETER, Complainant
RICHLAND CENTER FOUNDRY, LLC, 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
July 24, 2012
dieterca.rsd.doc . rsd : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This case arose from a complaint alleging age discrimination. A preliminary determination was issued dismissing the complaint on the grounds that it was not filed within the 300-day statute of limitations. The complainant appealed. The ALJ assigned to the matter held an evidentiary hearing on the facts relevant to the timeliness issue. He then decided that the complaint had been untimely and that there was no basis to apply equitable tolling, and so he affirmed the dismissal of the complaint. The complainant then petitioned for commission review.
Facts - The complainant was born in 1942. He began working for the respondent, a foundry, in 1964. He did production work for some years, and then in the 1970s he began doing supervisory work.
As of May, 2008, the complainant was working as the supervisor of the "No Bake" department. At that time, he was temporarily laid off due to lack of work. When he was called back, in July, 2008, he was no longer supervisor of No Bake, but was given a position as supervisor in Inventory and Production Control. An employee in his 40s had been given the complainant's old position of No Bake supervisor. The complainant knew this, and he believed that it was unfair. He told the respondent's General Manager, Gerszewski, that he wanted his old position back, but Gerszewski told him he was not going to get it.
It is clear that the complainant feels strongly that his replacement as supervisor of No Bake in 2008 by a younger man was age discrimination. However, he did not file a complaint alleging discrimination at that time, and the statute of limitations ran on those events long before the complaint was eventually filed in this matter in October 2010.
The complainant was again laid off on February 9, 2009. This layoff is another adverse employment action that is also a focus of the complaint which the complainant eventually filed in October 2010. However, the statute of limitations is also a problem with respect to that layoff, since it was well more than 300 days from the February 2009 layoff until the October 2010 filing of the complaint.
The issue in this case is whether there is any basis to find that the statute of limitations should not be applied to require dismissal of the complaint.
The complainant's arguments have focused mostly on his claims about what was said to him when he was laid off in February 2009, and thereafter, about whether or when he might be called back. However, there are disagreements about the facts concerning this.
Based on its review of the record, the commission agrees with the findings of the ALJ that when the complainant was laid off in February, 2009, Gerszewski did not tell the complainant anything that would have led him to believe that the layoff would be brief, but the complainant for some reason formed that belief on his own.
Another area of factual dispute involves what was said to the complainant when he periodically (1) returned to the respondent to ask about when or whether he'd be recalled. The commission has carefully considered the evidence in the record on this issue. It believes that the complainant's testimony about what he was told by Gerszewski on the occasions when he returned to respondent inquiring about recall, is inconsistent. The commission does not credit the initial claims of the complainant about supposed statements by Gerszewski; it finds the more believable testimony from the complainant is his concession that Gerszewski "did not make a promise that I could come back to work, nor did he say that I was ever coming back." The commission believes that the complainant was, just as he testified, making "automatic assumptions" that he would be called back, and relying on the questionable logic that because Gerszewski never told him he did not have a job at RCF, that meant that he did have a job there.
The commission also credits the testimony by Gerszewski that when the No Bake molding operation was restarted on 3rd shift in August, 2009, the complainant was offered the supervisor position on that shift, but declined it.
Discussion - As noted, the issue here is whether there is any basis to avoid application of the statute of limitations on equitable grounds, because of actions or statements by the respondent. Specifically, the complainant's contention is that he was continually led to believe that the respondent was going to call him back and that this led him to put off filing a complaint.
There are two distinct equitable concepts that can be relevant to situations where an action is not commenced within a statute of limitations.
Equitable tolling comes into play where, despite due diligence, an employee is unable to obtain vital information bearing on the existence of his claim, i.e., he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant. Equitable tolling can also be applied when the untimeliness of the complaint was due to errors by the fair employment practice agency, or when failure to comply with the statute of limitations is attributable to the complainant's medical condition. Equitable estoppel comes into play if the respondent takes active steps to prevent the complainant from filing a complaint in time, such as by hiding evidence or promising not to plead the statute of limitations. Application of equitable estoppel should be premised on a showing of the complainant's actual and reasonable reliance on the respondent's conduct or representations, and evidence of improper purpose on the part of the respondent or of the respondent's actual or constructive knowledge of the deceptive nature of its conduct. Schulke v. Mills Fleet Farm, ERD Case No. ERD Case No. 201000011 (LIRC, June 4, 2010).
In this case, the ALJ concluded that there was no basis for overlooking the statute of limitations here on equitable grounds. The commission agrees.
The complainant clearly has no basis whatsoever for arguing that the effect of the statute of limitations can somehow be avoided on equitable grounds so as to allow the events of 2008 (his layoff in May 2008 and his replacement as supervisor of No Bake upon his recall in July 2008) to be reached. In his complaint, and in his testimony, he clearly acknowledged that when he came back from his layoff in 2008, he learned that had been replaced as No Bake supervisor by a younger man, he asked for his old job back and was told, "no, this is the way its going to be," and he thought this was "unfair" and it "bothered him".
The remaining question is whether the complainant has any basis for arguing that the effect of the statute of limitations can somehow be avoided on equitable grounds so as to allow his layoff in February 2009 (and the respondent's subsequent failure to recall him) to be reached.
The commission does not believe that the standards for applying equitable tolling are met here. No errors by a fair employment practice agency are involved, and no issue is presented as to a medical condition of complainant somehow affecting his ability to file a complaint. Also, nothing indicates that the complainant was unable to obtain vital information bearing on the existence of his claim, i.e., that he could not obtain information necessary to decide whether the injury was due to wrongdoing and, if so, wrongdoing by the defendant. The facts relevant to his claim were before him at all times.
The commission also does not find the standards for applying equitable estoppel to be met here either. However the facts are viewed here, they provide no basis for disregarding the complainant's delay in filing a complaint.
Even if it were the case, as the complainant contends, that statements by the respondent led him to the belief that his layoff in February 2009 was going to be brief, perhaps only about 3 weeks or so, he would or should have known when those few weeks passed and he was not recalled, that what the respondent had told him was unreliable and that it was definitely possible that the respondent had no intention of recalling him.
As noted above, though, the commission found the testimony of Gerszewski to credibly and persuasively establish that when the complainant periodically contacted Gerszewski thereafter to ask about the prospects for being called back, Gerszewski repeatedly told him that the layoff was indefinite, and gave him no indication as to when or whether there might be a position open for him. The assertions in the complaint, that "[e]verytime I went to see him he would always say you will be back to work here so I feel he played with my mind for 18 months," and that every time the complainant went back the respondent "always told me I had a job," are simply not supported by the most credible and persuasive evidence about what happened. On the contrary, the evidence credited by the commission is that the respondent did not make a promise that the complainant could come back to work and did not say that he was ever coming back.
It appears most likely that what happened here is that the complainant persuaded himself that he had good prospects for being recalled and for that reason did not file a complaint. He first persuaded himself that he would be recalled in just a few weeks, and when that did not occur he ignored the implications of that fact. He then persuaded himself that, although it was clear that the layoff was going to be indefinite, he still somehow had an assurance of being recalled, and he continually ignored the fact that Gerszewski was giving him no such assurances.
However, as noted above, application of equitable estoppel should be premised on a showing of the complainant's actual and reasonable reliance on the respondent's conduct or representations, and evidence of improper purpose on the part of the respondent or of the respondent's actual or constructive knowledge of the deceptive nature of its conduct. These things are not established here by the credible and persuasive evidence. Given what Gerszewski said, it was unreasonable of the complainant to rely on those statements in the manner he did -- to (in his words) "automatically assume" he was going to be called back, and to (in his words) take the fact that Gerszewski never said he did not have a job there, as meaning that he did have a job there. Furthermore, the conduct and statements of the respondent were not deceptive, and there is no indication of any improper purpose to dissuade the complainant from pursuing his right to file a complaint.
For all of the foregoing reasons, the commission affirms the decision of the ALJ.
Attorney Fred Gants,
Quarles & Brady LLP
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(1)( Back ) It is not disputed that the complainant came in at least monthly, if not more frequently, to see Gerszewski and ask about the possibility of recall.