MICHAEL HOPKINS, Complainant
CITY OF KENOSHA, 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 August 22, 2003
hopkimi2 . rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commission
On March 17, 2003, Michael Hopkins filed a complaint against the City of Kenosha with the ERD alleging discrimination on the basis of race, national origin, ancestry and retaliation. This complaint was assigned ERD Case #200301115. On March 28 Hopkins submitted an amendment to this complaint.
On March 31, 2003, an equal rights officer issued a Preliminary Determination dismissing Hopkins' complaint on the grounds that it failed to state a claim on which relief could be granted. Hopkins filed a timely appeal and the matter was assigned to ALJ Lawent for review.
ALJ Lawent issued a decision dismissing Hopkins' complaint as untimely.
Lawent noted that the respondent had discharged Hopkins on April 24, 2002. Further, he noted that Hopkins' amended complaint indicated the first alleged act of discrimination occurred in August 1999.
Lawent stated that it appeared Hopkins was alleging he was discriminated against because in the period from January to March 2003, and ongoing, the respondent was investigating a magazine subscription filled out naming an employee of the city and treating it more seriously than the respondent had treated alleged "...malicious actions against me (the Complainant) depicting & desperging (disparaging) my sister & ancestry (race)." (Underlining and bold text in original.) Hopkins had been employed by the City of Kenosha's Fire Department.
Lawent states that "These alleged actions against the Complainant appear to relate to events that occurred during his employment such as the alleged posting of pornographic pictures of Hispanic women." (Underlining emphasis added.)
Lawent held that Hopkins' March 17, 2003 complaint was untimely because the alleged actions against him occurred sometime between August 1999 and his April 24, 2002 termination, and because Hopkins' March 17, 2003 complaint was filed more than 300 days after the alleged discriminatory events. (Underlining emphasis added.)
Lawent further noted that the 300-day statute of limitation was subject to exceptions, including waiver, estoppel, equitable tolling and the continuing violation theory. However, Lawent found there was nothing that warranted an exception to the 300-day time limit because Hopkins knew or should have known at the time the events occurred during his employment that the alleged posting of pornographic pictures of Hispanics arguably constituted a basis for a discrimination claim, and that he may not now use a post-termination event as a basis to file a claim regarding his employment that is otherwise untimely. (Underlining emphasis added.)
Hopkins argues in his petition for review that his complaint is not untimely, and asks the commission to review ERD Case #200204404 when reviewing this matter. Hopkins apparently asserts that his claim is timely because mention was made of the pornographic pictures depicting Hispanic women (i.e., his sister) in ERD Case #200204404.
ERD Case #200204404 involved a complaint Hopkins filed against the Police & Fire Commission of Kenosha. The commission issued a decision in that case on March 28, 2003.
Hopkins' assertion that his complaint in ERD Case #200301115 is timely based on his complaint involved in the commission's decision in ERD Case #200204404 fails. There was a reference to "the showing of pornographic material that disparages Hispanic women" in the commission's decision in ERD Case #200204404. However, that was a reference to his complaint filed with the Police & Fire Commission of Kenosha as "an aggrieved person" under Wis. Stat. § 62.13 regarding alleged events that had occurred after the City of Kenosha no longer employed him.
It was repeatedly pointed out in the commission's March 28, 2003 decision, however, that the Equal Rights Division's authority to act under the Wisconsin Fair Employment Act was limited to complaints of employment-related acts of discrimination. Hopkins was then no longer an employee of the City of Kenosha, and therefore was not alleging any act of employment-related discrimination.
Hopkins' March 17, 2003 complaint alleging discrimination by the City of Kenosha between August 1999 and April 24, 2002, was filed more than 300 days after the alleged discriminatory events claimed in the March 17 complaint and therefore untimely. As correctly noted by the ALJ in the instant case, Hopkins may not use a post-termination event as a basis to file a claim regarding his employment that is otherwise untimely.
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