ROGER E. ELLER, Complainant

CHR HANSEN INC, 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 January 31, 2002
ellerro . rsd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, Roger Eller, alleged in a complaint filed with the department on January 16, 2001, that the respondent discriminated against him on the basis of disability and age. Eller alleged that on August 17, 1999, he was demoted from his supervisory position and advised that his pay would be decreased in subsequent years. Eller alleged that his initial wage reduction from $22.72 per hour to $20.31 was to take place January 1, 2000, but was not implemented until he received his paycheck on March 24, 2000. Eller alleged that in late 2000 he was advised that no further wage cuts would be implemented, however, on or around January 5, 2001, he was advised that a further wage decrease would be implemented, thereby reducing his pay to $17.31 per hour. Eller alleged that prior to August 17, 1999, the respondent had become aware that he suffers from learning disabilities and that when he was demoted on August 17 he was replaced by a person under age 40.

The department issued a preliminary determination and order dismissing Eller's complaint on the ground that it had not been timely filed, and the preliminary determination and order was affirmed on review by the ALJ. Eller petitions for a review of the ALJ's decision.

In his petition Eller asserts that the ALJ's decision is erroneous on matters of law and fact and not based upon the substantial evidence in the record, but he fails to specifically identify how or why it is erroneous and not supported by substantial evidence.

Wisconsin Statute Section 111.39(1) requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred. Discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. Hilmes v. DILHR, 147 Wis. 2d 48, 50, 433 N.W.2d 251 (Ct. App. 1988).

Eller argued before the department that the discrimination did not occur until his wages were actually decreased on March 24, 2000 and January 1, 2001. Further, he argued that by virtue of his continued employment with the respondent that the discrimination was ongoing and continuing.

Eller's arguments fail. As noted by the ALJ, assuming the respondent discriminated against Eller, it did so when it informed him of his demotion and accompanying reduction in pay that was part and parcel of the demotion. The respondent made the decision to demote Eller and reduce his pay on August 17, 1999, and this decision was communicated to Eller on August 17, 1999. Discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. Hilmes. Based upon the 300-day statute of limitations contained in s. 111.39(1), Wis. Stats., Eller had until June 12, 2000, to file his complaint of alleged disability and age discrimination. Eller's continued employment did not make the action taken by the respondent ongoing and continuing discriminatory conduct. The respondent's August 17, 1999 decision to demote Eller with a corresponding reduction in pay does not constitute a continuing violation. Eller's argument that his continued employment caused the alleged discrimination to be ongoing and continuing discriminatory conduct amounts to a claim about the present effects of alleged past discriminatory conduct. The present effects of past discrimination theory involves a situation in which the adverse effects of a past discriminatory act continue into the limitations period. This theory was rejected by the United States Supreme Court in United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)(In considering allegations of a continuing violation, "the emphasis should not be placed on mere continuity; the critical question is whether any present violation exists.") Again, the violation in this case, if there was a violation, occurred when Eller was informed of his demotion and accompanying reduction in pay that was part and parcel of the demotion.

cc: 
Attorney Daniel J. O'Brien
Attorney John J. Kalter

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