STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
PAUL H. BEIMBORN, Complainant
MARK KUETHER CONSTRUCTION, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199802719
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 April 19, 2000
beimbpa.rsd : 110 :
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
Complainant Paul Beimborn filed a discrimination complaint form with the Equal Rights Division on July 13, 1998. The issue presented in this case is whether the Equal Rights Division properly dismissed his complaint for failing to allege anything constituting a violation of the Wisconsin Fair Employment Act (WFEA).
In response to the question on the complaint form, "What law do you believe was violated?", he checked "Fair Employment" and wrote in, "Wi. Fair Employment Law's, #2, #4, #5, and #6". (1)
In the next section of the form, which states:
BASIS: You must list a basis for your complaint. (For example: "sex- female"," "race-African American," "handicap-visual impairment," "age- 58" etc.)
What is the basis for your complaint?
Beimborn wrote the following:
Again, Wi. Fair Employment Laws numbers #2, #4, #5, #6 - creed, disability + age Marks behavior, rude, hostile, nuts, harrassment, intimadation, totally out of control at times
In response to the next section of the form,
STATEMENT: What did the respondent do?
List each action you believe was discriminatory. (For example: I was terminated, not hired, disciplined more harshly, retaliated against, etc) Then, say why you were treated differently because of the basis listed above.
Some of this is explained in my 50 page letter, that I will call (letter) from now on. Also enclosed is a five page breif statement on marks harassment.
This was followed by what actually amounted to 60 pages of handwritten material.
The Equal Rights Officer to whom the complaint was assigned wrote back to Beimborn on August 11, 1998 indicating that the complaint could not be "accepted" as submitted. The letter indicated that the complaint was much too long, and it explained that the ERD did not have authority to accept and investigate general complaints about rude, hostile and intimidating behavior by employers. The letter then specifically addressed the indications on the complaint form that the bases for the complaint were creed, disability and age discrimination, and posed specific questions which it would be necessary for Beimborn to address in order to clarify his allegations. These included questions about what his alleged disability was, what his age was, and what his creed or religion was. The letter closed by indicating that if Beimborn wished to resubmit his complaint he should telephone the Equal Rights Officer to discuss the matter.
It appears that Beimborn called and spoke to the Equal Rights Officer on August 17, 1998. Following this, there was an absence of any activity in the case for over a year and a half. This period of inactivity is unexplained in the file. However, it can be inferred from the Equal Rights Officer's letter of August 11, 1998, that she was waiting for Beimborn to submit a complaint that addressed the problems she had noted in her letter. Beimborn did not submit anything to the ERD during this period.
On February 17, 2000, the Equal Rights Officer sent Beimborn a letter which summarized what had happened in the case to that point, and which was accompanied by a "Preliminary Determination" letter which dismissed the complaint. This was clearly intended as a Preliminary Determination under Wis. Admin. Code Ch. DWD 218.05, "Preliminary Review of Complaints." Beimborn filed more papers with the ERD, which were treated as an appeal. Pursuant to DWD 218.05, an ALJ reviewed the matter.
The ALJ issued a decision on March 23, 2000 which affirmed the dismissal of the complaint. The ALJ noted that Wis. Admin. Code Ch. DWD 218.03(3) provides that a complaint "shall contain . . . a concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination.," and that Wis. Admin. Code Ch. DWD 218.05 provides that "the department shall review every complaint filed to determine . . . [w]hether the complaint states a claim for relief under the Act." The ALJ found that the complaint in this case failed to meet either of these standards.
Beimborn appealed. Based on its review, the commission is satisfied that the decision to dismiss the complaint was appropriate.
As noted, Wis. Admin. Code Ch. DWD 218.03(3) provides that a complaint "shall contain . . . a concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination.." The complaint in this case came nowhere even close to satisfying this standard. A complaint which contains such an extremely long and rambling statement of allegations effectively frustrates any attempt an employer might make to respond to it or an investigator might make to analyze and evaluate it.
More significantly, the complaint in this case failed to contain any clear allegations which, if true, would constitute a violation of the WFEA.
The meaning of Beimborn's allegation as to "creed" discrimination is disclosed in his narrative where he states his "belief or Creed" as having to do with "quality work, w/speed & accuracy as well as the customer in mind." The term "creed" is not defined in the WFEA, but it should be interpreted to refer to a "system of religious beliefs." AMC v. DILHR (Bartell), 101 Wis. 2d 337, 305 N.W.2d 690 (1981). What Beimborn refers to is not a creed or religion as covered by the WFEA. Given these circumstances, it was appropriate for the ALJ to conclude that the complaint failed to state a claim for relief under the WFEA based on alleged creed discrimination.
Beimborn's lengthy complaint narrative contains only a few statements touching upon the matter of age, and they are ambiguous. At one point he mentions his boss "harassing older employes and favoring his newer ones," but it is unclear if "older" here refers to chronological age or length of service, and the reference to "newer" employes makes it seem likely that it is the latter. At another point, he talks of his boss "taking advantage of his age related reliability." Neither of these situations clearly allege discrimination because of age as contemplated by the WFEA. In addition, there is nothing in the complaint indicating how old Beimborn is. Given these circumstances, it was appropriate for the ALJ to conclude that the complaint failed to state a claim for relief under the WFEA based on alleged age discrimination.
There are references in the complaint to Beimborn having hernias, having had back surgery some years in the past, and having had work accidents in which he was injured. However, there is no clear allegation - indeed, there is not even any unclear allegation - of the employer allegedly discriminating against Beimborn because of these conditions. Even if they were considered to be handicaps, the complaint simply does not state a claim for relief under the WFEA based on alleged handicap discrimination.
The complaint, with its tediously detailed explication of every grievance Beimborn acquired in his years of work for this employer, undercuts the references to "creed, disability [and] age" which are found on the face of the complaint form. The complaint narrative makes it clear that what it really concerns are not things covered by the WFEA. Beimborn alleges hours of work/overtime issues, he alleges Workers Compensation issues, he alleges every kind of poor supervisory practice imaginable, and he alleges every kind of poor carpentry practice imaginable, but what he does not allege with any clarity is any conduct which would constitute a violation of the WFEA.
For the foregoing reasons, the commission agrees that the complaint in this matter
"fail[ed] to state a claim for relief under the WFEA," within the meaning of
Wis. Admin. Code Ch. DWD 218.05. For that reason, the complaint was appropriately
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(1)( Back ) These numbers are unexplained. They have no reference to section numbers in the Fair Employment Act or to numbers elsewhere in the complaint or the materials submitted with it.