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

JOYCE ALDRICH, Complainant

BEST BUY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200400999, EEOC Case No. 260200303250C


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The complainant filed a timely petition for review. (1)

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed May 21, 2009
aldrijo2 . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

In Aldrich v. LIRC, 2008 WI App. 63, 310 Wis. 2d 796, 751 N.W.2d 866, the court of appeals concluded as did the circuit court, contrary to LIRC's affirmance of an ALJ's decision granting respondent's Motion to Dismiss Joyce Aldrich's WFEA complaint claims of sex and age discrimination in her terms and conditions of employment, that Aldrich's state employment discrimination claims under the WFEA were not barred by the doctrine of claim preclusion following the dismissal of her federal court action on those same discrimination claims. Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983). The court explained that Aldrich's state claims were not barred under the doctrine of claim preclusion because the exclusive means of asserting a WFEA claim is through the Department of Workforce Development's Equal Rights Division and because had Aldrich raised the WFEA claims in federal court, the court would not have had jurisdiction to consider them. Aldrich, 2008 WI App. 63, 8, 9.  In so holding, however, the court also recognized that "Where appropriate, the doctrine of issue preclusion will prevent re-litigation of identical issues decided in federal court." 2008 WI App. 63, 14. (Italicization emphasis in original.) 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, 551, 525 N.W.2d 723 (1995).

On May 23, 2008, the commission remanded the matter to the ERD for a hearing on Aldrich's discrimination claims. On July 8, 2008, the ERD issued a notice of hearing on Aldrich's claims of discrimination in terms and conditions of employment (demotion) because of sex and age. The respondent subsequently filed a Second Motion to Dismiss. The respondent argued that Aldrich's demotion claim was untimely both under the applicable regulations and by operation of issue preclusion. The respondent argued that to the extent Aldrich intends to assert a constructive discharge claim, her failure to have alleged such a claim precludes her from doing so under controlling LIRC authority and as a result of the federal court's factual and legal findings against her.

After receiving the briefs submitted by the parties, the ALJ concluded that Aldrich's "claims of age and sex discrimination in regard to terms and/or conditions of employment (demotion) were untimely filed and that [Aldrich's] attempt to amend her complaint to include a claim of unlawful constructive discharge was also untimely."

In her petition for review, Aldrich argues that the ALJ "erroneously interpreted and applied the doctrine of issue preclusion. A correct interpretation of issue preclusion compels a different result than that rendered by [the ALJ's] granting of Respondent's Second Motion to Dismiss." 
 

Background

In a "Charge of Discrimination" that was filed with the Equal Employment Opportunity Commission on February 10, 2004, and cross-filed with the Equal Rights Division, Aldrich alleged that she was demoted on March 27, 2003, "because of my sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended and because of my age (DOB 11/16/61) in violation of the Age Discrimination in Employment Act of 1967."

By transmittal letter dated February 17, 2004, the EEOC notified the ERD that Aldrich's charge of employment discrimination was initially received by the EEOC on February 10, 2004, and that pursuant to the worksharing agreement the charge was to be initially processed by the EEOC. The ERD physically received a copy of Aldrich's charge of discrimination on February 18, 2004. This is shown on bottom portion of the transmittal letter. The bottom portion of this transmittal letter further indicates that on March 11, 2004, the ERD sent to EEOC the following response: "This will acknowledge receipt of the referenced charge and indicate this Agency's intention not to initially investigate the charge at this time." Also on March 11, 2004, the ERD notified the parties that the worksharing agreement between the EEOC and ERD specifies that the agency which originally receives the complaint will process it first and therefore the ERD would take no action pending EEOC's processing of this complaint.

On January 14, 2005, the EEOC issued a Dismissal and Notice of Rights on Aldrich's charge of discrimination, which stated that the EEOC was closing its file on this charge because it was unable to conclude that the information obtained establishes violation of the statutes.

By letter dated March 3, 2005, the ERD notified Aldrich that it had been advised that her case had been dismissed by the EEOC and that if she wished for the ERD to conduct an independent investigation of this complaint that she had to make a written request for such investigation by March 23, 2005. On March 21, 2005, the ERD received a written request from Aldrich for an investigation of her case by the ERD.

However, pursuant to the EEOC's Notice of Suit Rights letter that the EEOC included with its dismissal of Aldrich's charge of discrimination, Aldrich commenced a civil action against the respondent by filing a federal complaint in the United States District Court for the Western District of Wisconsin. As a result, the ERD held its investigation of the case in abeyance.

Aldrich's federal court action alleged gender and age discrimination when she was demoted in March 2003, and that she was constructively discharged from her employment in January 2004. The respondent moved for summary judgment and the Honorable John C. Shabaz granted the respondent's motion in a Memorandum and Order dated September 21, 2005. Summary judgment rested on the court's findings that Aldrich's demotion claim was time barred and that she had failed to exhaust her administrative remedies with respect to her constructive discharge claim. Judge Shabaz made the following factual and legal findings on the timeliness of Aldrich's demotion claims:

On August 27, 2003 plaintiff filed an EEOC charge questionnaire. The EEOC assigned a charge number to her case, 260-2003-00325C. Wendy Martin, an EEOC investigator, advised plaintiff by letter dated August 29, 2003 that her charge could not be filed until she obtained more information. Plaintiff filed her formal charge on February 10, 2004 alleging that she was discriminated against when she was demoted from the position of Merchandising Manager in March 2003. Defendant received notice of the February charge and filed its response in May 2004.
. . .
It is well established that an employee must file a Title VII claim within 300 days of the alleged discriminatory incident. 42 U.S.C. § 2000e-5(e)(1); Dasgupta v. University of Wisconsin Bd. of Regents, 121 F.3d 1138, 1139 (7th Cir. 1997).

Plaintiff contends that her charge was actually filed August 27, 2003 when she filed her intake questionnaire with the EEOC. The Court has held that completing an intake questionnaire can constitute a formal charge where it satisfied the requirements for a formal charge and was considered such by the Commission. Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 542-44 (7th Cir. 1988). But in Perkins v. Silverstein, 939 F.2d 463, 470 (7th Cir. 1991), the Court held that an intake questionnaire was not sufficient to constitute a charge where the EEOC informed the employee that his questionnaire contained insufficient information.
. . .
In plaintiff's case the August 29, 2003 letter sent by Wendy Martin to plaintiff stated in pertinent part as follows:

I have been assigned to contact you regarding the questionnaire that you mailed to us in the above captioned matter. Despite several attempts, I have been unable to reach you. It is necessary that I speak with you to obtain all of the information that I need to draft your charge.

This letter makes the plaintiff's case the same as Perkins because plaintiff's questionnaire contained insufficient information. The EEOC did not consider it a formal charge even though it assigned it a case number. Plaintiff's formal charge which notified the defendant of plaintiff's allegations was not filed until February 10, 2004. Accordingly, plaintiff's claim concerning her March 23, 2003 demotion was time barred because it occurred more than 300 days prior to filing the charge with the EEOC.

Plaintiff argues that she is entitled to equitable tolling because she was provided misinformation by the EEOC. She alleges that she filed the questionnaire and was told by an EEOC representative that when she filed her questionnaire her case would be filed. The August 29, 2003 letter plaintiff received from Wendy Martin corrected this misinformation and provided her the opportunity to supply the information in order that a formal charge could be filed within the statute of limitations period. Plaintiff is not entitled to equitable tolling. Early v. Bankers Life and Cas. Co, 959 F.2d at 81. Accordingly, plaintiff's claim concerning her demotion is time-barred and will be dismissed.

(Mem. and Order at 4-7.)

Judge Shabaz made the following factual and legal findings on Aldrich's constructive discharge claim:

Plaintiff also pursues a constructive discharge claim. Defendant argues that plaintiff did not exhaust her administrative remedies on this claim. In Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir. 2005), the Court held that claims brought in judicial proceedings must be within the scope of the charges filed with the EEOC.

Plaintiff's EEOC charge concerned only her March 2003 demotion. Although she subsequently amended her charge with a document entitled "More Charges of Discrimination", this document did not include any allegation that she was constructively discharged. Her claim that she was constructively discharged almost a year later is not within the scope of her EEOC charge or amendment. Accordingly, her constructive discharge claim must be dismissed because she has failed to exhaust her administrative remedies and the time for doing so has expired.

(Mem. and Order at 7.)

Based upon the above factual and legal findings, Judge Shabaz granted the respondent's motion for summary judgment and ordered that judgment be entered in favor of the respondent against Aldrich dismissing her complaint and all claims contained therein with prejudice and costs.

Aldrich did not appeal Judge Shabaz's dismissal of her complaint. Instead, she requested an independent investigation by the ERD. On June 6, 2006, the ERD issued an Initial Determination which found probable cause to believe the respondent may have violated the WFEA by discriminating against Aldrich in terms and conditions of employment because of her sex and age, and certified the matter to a hearing on the merits. What followed was the respondent's motion to dismiss Aldrich's ERD case on the basis of the doctrine of claim preclusion, the commission's affirmance of the ALJ's decision granting that motion and the subsequent reversal by the circuit court and court of appeals. The matter is now before the commission pursuant to Aldrich's petition for review which asserts that the ALJ "erroneously interpreted and applied the doctrine of issue preclusion." 
 

DISCUSSION

To determine whether the doctrine of issue preclusion applies the courts apply a two-step analysis: "(1) whether issue preclusion can, as a matter of law, be applied, and if so, (2) whether the application of issue preclusion would be fundamentally unfair." Estate of Rille v. Physicians Insurance Company et al., 2007 WI 36, 36, 300 Wis. 2d 1. Under the first step, it must be determined "whether the issue or fact was actually litigated and determined in the prior proceeding by a valid judgment in a previous action and whether the determination was essential to the judgment." Id., 37. Under the second step, it must be determined "whether applying issue preclusion comports with principles of fundamental fairness." Id., 38.

The five following factors are generally considered in determining whether application of issue preclusion satisfies notions of fundamental fairness: 1) could the party against whom preclusion is sought have obtained review of the judgment as a matter of law; 2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; 3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; 4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and 5) are matters of public policy and individual circumstances involved that would render the application of [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action? Estate of Rille, 2007 WI 36, 61; Lindas v. Cady, 183 Wis. 2d 547, 561 (1994); Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993).

An issue submitted on a motion for summary judgment is an issue actually litigated for purposes of issue preclusion. "An issue may be submitted and determined on a...motion for summary judgment..." Restatement (Second) Judgments, § 27, comment d (1982).

Like Title VII and the ADEA, the WFEA has a 300-day statute of limitation for filing claims of discrimination. Wisconsin Statute § 111.39(1) states that "The department may receive and investigate a complaint charging discrimination...if the complaint is filed with the department no more than 300 days after the alleged discrimination...occurred..."

Additionally, Wis. Admin. Code § DWD 218.03(3) provides as follows:

A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person's duly authorized representative....Each complaint shall contain all of the following information:

(a) The name and address of the complainant.
(b) The name and address of the respondent.
(c) A concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination...

Further, Wis. Admin. Code § DWD 218.03(5) provides as follows:

A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

Finally, Wis. Admin. Code § DWD 218.02(6) states that " 'Filing' means the physical receipt of a document."

In written arguments to the ALJ Aldrich argued that issue preclusion does not apply because the issue before the ERD is whether her intake questionnaire satisfied the "complaint" requirements of the WFEA, an issue the federal court did not decide. Aldrich argues that under the WFEA the statute of limitations is based upon when a "complaint" is filed, not a "charge". Aldrich argues that Wis. Admin. Code § 218.03(3) defines what constitutes the filing of a complaint and that the intake questionnaire she filed with the EEOC satisfied the requirements that must be met under § 218.03(3). Aldrich then goes on to assert that unlike the ERD, under federal law there is a 2-step process where the aggrieved party is generally required to fill out an intake questionnaire and then the party is dependent on the EEOC investigator to act in a timely manner to take the information from the intake questionnaire and prepare the charge. Further, Aldrich asserts that there is a distinction in federal case law between intake questionnaires and charges, a distinction that does not exist under the WFEA.

Aldrich's argument against the applicability of issue preclusion to her demotion claims rest on a flawed premise. That is, that the date of filing of a cross-filed complaint can be determined independently of federal law. Aldrich's argument that if a charging party's initial submission to the EEOC satisfies the requirements of Wis. Admin. Code § DWD 218.03(3) then the charging party's claim is timely under the WFEA ignores several fundamental points.

It ignores the fact that Wis. Stat. § 111.39(1) requires that a complaint be filed with the ERD -- not the EEOC -- to stop the running of the WFEA's statute of limitations. Further, Wis. Admin. Code § 218.02(6) defines "filing" to mean the physical receipt of a document. Aldrich chose to file her charge with the EEOC, which was cross-filed with the ERD pursuant to the agencies' worksharing agreement. As the federal court already decided, "Plaintiff's formal charge which notified the defendant of plaintiff's allegations was not filed until February 10, 2004. Accordingly, plaintiff's claim concerning her March 23, 2003 demotion was time barred because it occurred more than 300 days prior to filing the charge with EEOC." The ERD did not physically receive any document-not an intake questionnaire, not her EEOC charge of discrimination, nothing-prior to February 18, 2004. The date, February 18, 2004, is more than 300 days after the demotion on which her age and sex claims are based.

The WFEA and Wis. Admin. Code provide for only one circumstance under which the ERD will be deemed to have constructively received a charge of discrimination. Section DWD 218.03(5) provides that: "A complaint which is deferred to the department by a federal...employment opportunity agency with which the department has a worksharing agreement complies with the requirements of [§ 218.03(3)] and is considered filed when received by the federal...agency." (Emphasis added.) The EEOC received Aldrich's charge of discrimination on February 10, 2004. See, e.g., September 21, 2005 federal court decision; EEOC transmittal letter to ERD dated February 17, 2004. Thus, at most, Aldrich can argue that the charge filing date for her WFEA claims is February 10, 2004. However, February 10, 2004, is also more than 300 days after the demotion upon which her claims are based.

Aldrich claims, however, that the plain language of § DWD 218.03(5) indicates that the date of filing is when a "complaint," not a "charge," is received by the federal agency. Aldrich claims that the respondent is attempting to impose a requirement that a complaint under the WFEA satisfy all of the requirements of a charge under federal law and that in support of this interpretation the respondent misconstrues the holding of the commission's decision in Keup v. Mayville Metal Products (LIRC, 06/22/95). Aldrich argues that the only thing Keup held was that a charge timely filed with the EEOC is deemed timely received by the ERD; that Keup did not address the issue presented in this case -- whether an intake questionnaire that constitutes a complaint under the WFEA, but does not constitute a charge under federal law, satisfied the statute of limitations under the WFEA. Aldrich's arguments fail.

First of all, Aldrich's February 10, 2004 charge of discrimination is the only document that the ERD received from the EEOC. Therefore, under the agencies' worksharing agreement the "complaint" for purposes of DWD 218.03(5) is Aldrich's February 10, 2004 charge. (2)    Second, in Keup, the commission considered whether a cross-filed charge was timely under the WFEA, based upon an earlier filed intake questionnaire submitted to the EEOC. The commission did not look to see whether the questionnaire met the requirements set forth in § DWD 218.03(3) as Aldrich suggests is necessary. Rather, the commission began with the fundamental requirement that the statute of limitations under the WFEA requires the physical receipt of a complaint by the ERD within the limitations period. Next, the commission then analyzed whether complainant Keup's intake questionnaire satisfied the charge filing requirements under federal law. For instance, the commission cited Steffen v. Meridian Life Insurance Co., 859 F.2d 534 (7th Cir. 1988)(information contained in the Intake Questionnaire contained sufficient information to satisfy the EEOC regulations concerning the sufficiency of charges and plaintiff made clear to the EEOC's Intake Officer that he intended to activate the Act's machinery) and Early v. Bankers Life, 959 F.2d 75 (7th Cir. 1992) (Intake Questionnaire that plaintiff filled out satisfied the requirements for a formal charge because it contained all the information that a charge would have contained -- it made clear who was being charged by whom with what -- and because both he and the EEOC treated the filled-in questionnaire as the formal charge.) In Keup, the commission thus concluded that "under federal law the complainant's claim of discrimination was considered as having been received timely, and having been received timely in the federal forum made it timely before the ERD." [See also, Mozden v. Brakebush Brothers Inc., (LIRC, 03/30/07)(analyzing whether complainant's alleged earlier filing of unspecified "papers" to the EEOC would constitute charge under federal law)]. Conversely, if Aldrich's claim of discrimination was not timely received in the federal forum then it would not be considered timely received by the ERD. Both Keup and Mozden thus stand for the proposition that, for an intake questionnaire to stop the statute of limitations under the WFEA, the complainant must show that the intake questionnaire constituted a charge under federal law.

The federal court specifically held that Aldrich's intake questionnaire did not constitute a charge because it did not contain sufficient information to be a charge and because the EEOC did not consider it to be a formal charge. Since the question of whether Aldrich's intake questionnaire constituted a charge under federal law has already been litigated and determined by the federal court, the doctrine of issue preclusion can be applied to bar Aldrich's demotion claim before the WFEA absent a showing that it would be fundamentally unfair to be applied in this case.

The question of fundamental fairness is "bottomed in guarantees of due process which require that a person must have had a fair opportunity procedurally, substantively and evidentially to pursue the claim before a second litigation will be precluded." Estate of Rille, 2007 WI 36, 60 (internal quotation omitted).

The first fairness factor asks could the party against whom preclusion is sought have obtained review of the judgment as a matter of law. Aldrich could have appealed the federal court's finding that her charge was untimely to the Seventh Circuit Court of Appeals. However, she chose not to.

The second fairness factor asks is the question one of law that involves two distinct claims or intervening contextual shifts in the law. Aldrich's claims in her federal court action and her claims before the ERD are exactly the same. However, Aldrich raises a question of fairness concerning contextual shifts in the law. Aldrich argues that until recently, the Federal Circuit Courts of Appeal were split on what constitutes a "charge" and whether an intake questionnaire can constitute and satisfy the requirements of a "charge". Aldrich notes that this was recently addressed by the United States Supreme Court in Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (2008). In Federal Express, the Court held that an intake questionnaire an employee filed with the EEOC constituted a "charge" under the ADEA where the form contained her name, address and telephone number, as well as those of her employer, an allegation that she and other employees had been the victim of age discrimination, and in a supplemental affidavit requested the EEOC to force the employer to end the age discrimination.

However, as noted by the respondent:

Courts are called upon to make decisions on uncertain questions of law on a daily basis. If shifts or developments in legal precedent provided the grounds to collaterally attack a prior decision, the finality of judgments would be fatally undermined, a point that courts have not hesitated to recognize. See Morgan v. Dept. of Energy, 424 F.3d 1271, 1276 (Fed. Cir. 2005)(holding that to allow intervening developments in law to justify reconsideration of same set of facts "would effectively gut the doctrine of [issue preclusion]"); O'Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062, 1069 (3d Cir. 1991)(refusing to allow relitigation of issue based upon evolving jurisprudence, finding that to do so would "greatly undermin[e] the twin goals of [issue preclusion]-avoidance of repetitive litigation and the promotion of finality of judgments").

Under Restatement of the Law (Second) Judgments (1982), § 28(2)(b) of the exceptions to the general rule of issue preclusion provides as follows:

Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances...(2) The issue is one of law and...(b) a new determination is warranted in order to take account of an intervening change in the applicable legal context...

With respect to change in applicable legal context, comment c of the Restatement (Second) of Judgments also supports application of the doctrine of issue preclusion in this case. Comment c provides as follows:

In determining whether the applicable legal context has changed...it is important to recognize that two concepts of equality are in competition with each other. One is the concept that the outcomes of similar legal disputes between the same parties at different points in time should not be disparate. The other is that the outcomes of similar legal disputes being contemporaneously determined between different parties should be resolved according to the same legal standards. Applying issue preclusion invokes the first of these concepts, treating temporally separated controversies the same way at the expense of applying different legal standards to person similarly situated at the time of the second litigation.

(Italicization emphasis added.)

The third fairness factor asks do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue. Clearly, the quality or extensiveness of Aldrich's federal court action was not less than what she would have received before the ERD.

The fourth fairness factor asks have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second. The same burdens of persuasion that applied in Aldrich's federal court action would apply in her claim before the ERD.

The final fairness factor asks are matters of public policy and individual circumstances involved that would render the application of issue preclusion to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

Aldrich argues that public policy and individual circumstances indicate that issue preclusion should not be applied in this case. Aldrich argues that as her affidavit (attached to her response to the respondent's Second Motion to Dismiss) indicates, she acted diligently in filing her intake questionnaire and charge of discrimination, that she was not in control of when the information in the intake questionnaire was processed by an EEOC investigator and changed into a formal charge, that all she could do was wait until the EEOC investigator contacted her for more information, completed and sent the formal charge to her for signature, and that by the time this occurred it was too late.

However, the respondent points out the following:

The Federal Court considered each and every argument that Aldrich has made in this regard. Indeed, the affidavits attached to Aldrich's response, which detail her alleged diligent pursuit of her claims, are from the Federal Court action. The Federal Court found those arguments unavailing, based in large part on the EEOC's clear notification to Aldrich long before the expiration of her statute of limitations that it required more information before it could accept her Charge. Aldrich obviously believes that the Federal Court "got it wrong," and the Division should therefore make things right. Disregarding the Federal Court judgment for such a reason, however, would undermine the integrity of the judicial process.

(Underlining and bold text in original.)

Furthermore, the Restatement (Second) of Judgments § 28 lists the following reasons as to why issue preclusion should not be applied under the fifth factor:

There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action, (b) because it was not sufficiently foreseeable at the time of the initial action that the issue would arise in the context of a subsequent action, or (c) because the party sought to be precluded, as a result of the conduct of his adversary or other special circumstances, did not have an adequate opportunity or incentive to obtain a full and fair adjudication in the initial action.

None of the reasons listed above for not applying issue preclusion apply in this case. Aldrich was a party in the initial federal court action. Like the federal law, the WFEA has a 300-day statute of limitation in which to file a claim of discrimination. Thus, it was foreseeable that the timeliness of Aldrich's EEOC Charge would also arise in her proceeding before the ERD. Finally, Aldrich had an adequate opportunity and incentive to obtain a full and fair adjudication in the initial action.

Accordingly, Aldrich's demotion claim must be dismissed as untimely.
 

Constructive discharge claim

Aldrich admits that her charge of discrimination did not include a constructive discharge claim, and that this claim was not investigated by the ERD. Aldrich argues, however, that her constructive discharge claim could be discerned from another document titled "More Charges of Discrimination" that she filed with the EEOC. Further, Aldrich suggests that the appropriate procedure at this point is for the ERD's equal rights officer to investigate this claim and, if necessary, for her to be allowed to amend her complaint to elaborate on this claim.

Aldrich's argument that her constructive discharge claim could be discerned from another document she filed with the EEOC was rejected by the federal court. As noted above, the court found that:

Plaintiff's EEOC charge concerned only her March 2003 demotion. Although she subsequently amended her charge with a document entitled "More Charges of Discrimination", this document did not include any allegation that she was constructively discharged. Her claim that she was constructively discharged almost a year later is not within the scope of her EEOC charge or amendment. Accordingly, her constructive discharge claim must be dismissed because she has failed to exhaust her administrative remedies and the time for doing so has expired.

As noted by the ALJ:

The U.S. District Court determined essentially that the Complainant had failed to timely amend her "Charge of Discrimination" that had been filed with the EEOC to include a claim of constructive discharge. Issue preclusion is determined to also apply to the issue of whether the Complainant had timely amended her "Charge of Discrimination" to include an allegation of constructive discharge.

Had the Complainant's federal charge been deemed to have been timely amended, it generally could be argued that the Complainant's state claims should be considered to have been timely amended in light of the worksharing arrangement between the EEOC and the ERD. However, since the Complainant's federal charge has been determined by a federal court not to have been timely amended (and in the absence of any evidence that the Complainant independently timely amended her state claims by separate correspondence to the ERD), any attempt by the Complainant to argue now that her state claims should be deemed to have been timely amended must fail.

Further, with respect to being allowed to amend her complaint now, as noted by the respondent:

Aldrich filed her EEOC Charge after the alleged constructive discharge occurred, but as found by the Federal Court, her Charge did not include that claim. From the outset of [the] Federal Action, Best Buy challenged Aldrich's inclusion of the constructive discharge claim. Aldrich nonetheless made no attempt to amend her WFEA complaint to include a claim for constructive discharge-until now. The statute of limitations on this claim ran five years ago. (Emphasis in original.)

For the above-stated reasons, Aldrich's constructive discharge claim must also be dismissed as untimely.

cc:
Attorney Peter M. Reinhardt
Attorney Amy Schmidt Jones



Appealed to Circuit Court.  Vacated and remanded, June 9, 2010.   Appealed to the Court of Appeals.  Circuit Court decision reversed and LIRC decision reinstated, Joyce Aldrich v. LIRC, 2011 WI App __, __ Wis.2d __, __ N.W.2d __ (No. 2010AP1785, May 18, 2011, recommended for publication).

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Footnotes:

(1)( Back ) The complainant's petition for review was filed on April 9, 2009. The petition for review did not request that a briefing schedule be issued. The commission did not receive a request from the complainant for a briefing schedule until May 14, 2009. However, by then the commission had already reviewed the case but not yet issued its decision in the matter. The commission therefore denies the complainant's request for a briefing schedule. Wis. Admin. Code LIRC 1.07.

(2)( Back ) Indeed, in the ERD's response sent to the EEOC after receiving the EEOC's February 17, 2004 transmittal letter on February 18, 2004, the ERD indicated that "This will acknowledge receipt of the referenced charge and indicate this Agency's intention not to initially investigate this charge at this time." (Emphasis added)

 


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