On June 11, 2001, respondent filed a motion to dismiss this case for untimely filing. In a ruling dated September 24, 2001, the Commission deferred ruling on this motion pending the completion of an evidentiary hearing on the motion. This hearing was conducted on December 7, 2001. The statement of the issue for this hearing to which the parties agreed is:

Whether a reasonable person in complainant's position would have understood by the end of the meeting on January 6, 2000, that an official and final decision had been made to terminate his employment.

The parties were permitted to file post-hearing briefs and the schedule for doing so was completed on May 17, 2002. The hearing examiner issued a proposed decision on June 11, 2002, and the parties were given until July 11, 2002, in which to file written objections or to request oral argument before the commission. Complainant notified the commission on July 9, 2002, that he was no longer represented by counsel and had decided to proceed pro se. At complainant's request, he was granted an extension until August 12, 2002, to file objections or request oral argument. On August 12, 2002, complainant filed a request for oral argument, and specific objections to the proposed decision. He supplemented the submission on August 22, 2002, and the respondent filed its response on September 6, 2002.

By letter dated September 23, 2002, the Commission notified the parties that Commissioner Kelli Thompson had been appointed to the Commission, and provided the parties a period of time in which to raise any objection to Commissioner Thompson's participation in the consideration of this matter. After complainant objected, the Commission issued a ruling on November 18, 2002, that overruled the complainant's objection. (1)

The Commission convened for oral argument of the parties on December 11, 2002. During the course of the argument, complainant requested an opportunity to decide if he wanted to obtain a transcript of the evidentiary hearing that was the basis for the proposed decision so that the parties could supply page and line citations for testimony referenced in oral arguments: Complainant ultimately informed the Commission on January 3, 2003, that he wanted a transcript.

The Commission received the transcript on April 1, 2003. The parties filed their page and line citations by April 15, 2003.

After reviewing the parties' oral arguments, as augmented by their submissions regarding the transcript, the commission adopts the findings of fact set forth in the proposed decision with a few minor changes. However, it replaces the conclusions of law and discussion sections with those it sets forth below. The reasons for these changes are as set forth in the discussion below.

1. Complainant was employed by the University of Wisconsin-Stout from September 1990 until his termination in January 2000. Complainant held a position classified as a Facilities Repair Worker 3 (FRW 3) in respondent's Maintenance Department. This FRW 3 position was covered by a collective bargaining agreement.

2. In this FRW 3 position, complainant spent the majority of his time performing the following worker activities: roof inspection, minor roof repair, ceiling tile repair, assisting the pipefitter; vinyl baseboard installation, shelf installation, minor carpentry repair, and sign construction and installation.

3. In this FRW 3 position, complainant worked in a unit in which three FRW 3's, one FRW 2, Maintenance Mechanics, Carpenters, and Craftsworkers worked as a team to complete maintenance and repair activities.

4. Some days, light work, i.e., work activities not requiring heavy lifting (over 50 pounds) or frequent bending, twisting, or climbing, was not available for the FRW's in complainant's unit. There: was not enough light work available in this unit to have kept an FRW busy full time.

5. Due to problems complainant experienced with back pain, complainant requested and was granted a medical leave beginning March 1, 1999. This leave was approved by Wayne Argo, UW-Stout Director of Human Resources. Argo had campus-wide authority to hire, fire, and discipline classified staff. This authority had been delegated to Argo by the UW-Stout Chancellor.

6. On December 14, 1999, complainant's treating physician signed a report detailing complainant's work restrictions resulting from his back condition. In this report, the physician indicated that complainant's work restrictions were permanent; imposed a 20-pound lifting restriction; and limited complainant's bending, twisting, squatting, and climbing to no more than 2.5 hours per day.

7. Respondent received this report on or after December 14, 1999. It was reviewed by complainant's supervisors and by Argo.

8. Donna Weber is respondent's affirmative action officer, and reports directly to the UW-Stout Chancellor. Weber is responsible for reviewing and approving disability accommodation requests for all campus employees. She had not been involved in reviewing or granting complainant's request for medical leave and, prior to January 6, 2000, she was not familiar with complainant's medical condition or with the restrictions imposed by complainant's physician. Prior to January 6, 2000, and other than as indicated in Finding 7, above, complainant had not requested an accommodation.

9. Argo scheduled a meeting for January 6, 2000, and invited to this meeting complainant; Mark Amthor, complainant's union representative; Donnie Moats, Superintendent of Buildings and Grounds and complainant's second-level supervisor; Michael Abrahamson, Maintenance Supervisor and complainant's first-line supervisor; and Weber. Each of these individuals, including Argo, was present at the meeting.

10. Complainant understood that the purpose of the meeting was to discuss his physical limitations/permanent medical restrictions.

11. Amthor, based on the information he had received from Argo, understood that the purpose of the meeting was to discuss complainant's permanent medical restrictions. Based on his experience as a union representative, Amthor also understood that, based on this purpose, the meeting was a pre-termination hearing and that complainant would be terminated unless an available position which met his permanent medical restrictions, and for which he was qualified, was found for him.

12. Moats, based on the information he had received from Argo, understood that the purpose of the meeting was to discuss if it was possible for complainant to return to his FRW 3 position given his permanent medical restrictions.

13. Abrahamson, based on the information he had received from Argo, understood that the purpose of the meeting was to determine if complainant could perform the duties of his FRW 3 position given his permanent medical restrictions.

14. The discussion at the meeting of January 6 included the following:

1. Argo and Moats indicated to complainant that, if he couldn't perform the duties assigned to his FRW 3 position, he would be terminated.
    
2. Complainant acknowledged that he could no longer perform all the duties assigned to his FRW 3 position. Complainant asserted that he could perform the duties of a position structured to consist only of "light work." Argo and/or Moats indicated that it would not be a reasonable accommodation to assign all the heavy duties to the other FRW positions.
    
3. Weber reviewed complainant's position description and his permanent medical restrictions. The possible accommodation of complainant's permanent medical restrictions was discussed, including the use of equipment to assist him with lifting and transporting materials. It was concluded and communicated to complainant at the meeting by Weber that even with the use of such equipment, complainant's FRW 3 position required extensive twisting, bending, squatting, and climbing which could not be reasonably accommodated, and it was her conclusion that he could not perform the essential functions of his FRW 3 position with or without accommodation. At the end of the meeting, complainant asked Weber if there would be any follow-up, and she told him there would not.
    
4. After the discussion noted in a., b., and c., above, complainant was provided information about classifications to which he may be able to transfer/reinstate, termination benefits, reinstatement rights, and training/retraining opportunities.
    
5. At the end of the meeting, Argo stated, among other things, words to the effect that, "We all agree then that Gary can't perform the duties on his position description. " No one responded to this statement.
    
6. At the end of the meeting, Argo advised complainant that he should see Mary Kay Sankey, Benefits Manager, to discuss his benefits.

15. Argo testified at hearing, and the commission finds, that he told complainant during the January 6 meeting that he would be terminated effective the next day, and that complainant would receive a letter from respondent to that effect.

16. Respondent decided, during the January 6th meeting, to terminate complainant's employment effective the next day, and communicated this to complainant and the others present at the meeting.

17. In a letter dated January 10, 2000, and received by complainant on January 12, 2000, Argo stated as follows, as relevant here:

This letter is to notify you that your employment with the University of Wisconsin-Stout was terminated effective January 7, 2000, because of your inability to perform your assigned job duties. This decision was made as a result of the discussion held with you and your union representative on Thursday, January 6 and supporting medical evidence which was shared with you at that meeting.

18. Complainant filed this complaint with this commission on November 6, 2000, which was 299 days after he received Argo's January 10, 2000, letter on January 12, 2000.

1. It is complainant's burden of proof to establish that his charge was timely filed.

2. A reasonable person in complainant's position would not have understood at the end of the January 6, 2000, meeting that an official and final decision had been made by respondent to terminate his employment effective the next day, because at that time there was no written notice of termination as required by s. 230.34(1)(b), Stats.

3. Complainant has sustained his burden of proof.

4. This complaint was timely filed.

The main bone of contention between the parties involves what was said at the January 6, 2000, meeting, and how what was said should be interpreted. However, in the commission's opinion, the current motion can be resolved on the basis of a few undisputed facts.

Following the January 6, 2000, meeting at which the complainant's impending discharge was discussed, he received on January 12, 2000, a January 10, 2000, letter from Wayne Argo (the university's personnel manager), which stated:

This letter is to notify you that your employment with the University of Wisconsin-Stout was terminated effective January 7, 2000, because of your inability to perform your assigned job duties. This decision was made as a result of the discussion held with you and your union representative on Thursday, January 6 and supporting medical evidence which was shared with you at that meeting.

On the basis of the record before the commission, this letter was ineffective as a matter of law to have effectuated complainant's discharge effective January 7, 2000, as it purports to do, because management must provide written notice of discharge before taking disciplinary action. See Board of Regents v. Wisconsin Personnel Commission, 2002 WI 79, para. 33, 254 Wis. 2d 148, 169, 646 N. W. 2d 759 (2002):

[T]he statutes require the appointing authority to provide notice to the employee prior to any disciplinary action. See Wis. Stat. s 230.34(1)(b) (requiring the appointing authority to "furnish to the employee in writing the reasons for the [disciplinary] (2) action. (emphasis added)

A concomitant of this conclusion is that the oral discussion at the January 6, 2000, meeting could not have provided effective notice of the respondent's decision to terminate complainant's employment regardless of what management said. All that management could have done at that point would have been to have provided complainant with verbal notice of its intent to discharge complainant, which intent could only be carried out by written notice in accordance with s. 230.34(1)(b), Wis. Stats.

In Hilmes v. DILHR, 147 Wis. 2d 48, 52-53, 433 N. W. 2d 251 (Ct. App. 1988), the court held that the 300-day statute of limitations provided by the WFEA at s. 111.39(1), Wis. Stats., (3)  begins to run from the date of notice of termination. There was no issue in Hilmes about whether the employer's notice was effective when conveyed. (4)   However, commission precedent indicates that an oral expression of intent to terminate, which by law can not be effective notice of a discharge, should not be considered effective notice for purposes of s. 111.39(1), Wis. Stats.

In Piotrowski v. DER, 84-0010-PC; 3/16/84, the employee was verbally informed of the denial of her reallocation request in October 1983, but did not receive written denial of the reallocation decision until December 27, 1983. Her appeal of this decision filed January 11, 1984, was timely pursuant to s. 230.44(3), Wis. Stats., when measured from the date of written notice of the denial, but untimely when measured from the date of verbal notice. The commission held as follows:

[T]he secretary of the Department of Employment Relations has adopted the following rule:

ER-Pers 3.04. Notice of reallocation or reclassification. Approvals or denials of reallocations or reclassifications shall be made to the appointing authority in writing. The appointing authority shall immediately notify the incumbent in writing.

In the absence of the specific requirements set forth in the administrative rules, the Commission would be inclined to define the term "notify" as it is used in s. 230.44(3), Stats., to include written or verbal notice. This result would be consistent with the general definition of the term ....

However, as applied to reclassification and reallocation decisions, the Secretary has adopted a more stringent definition of "notify" that requires. written notice to both the appointing authority and to the position incumbent. In order to comport with the requirements set forth in s. I: R Pers 3.04, Wis. Adm. Code, the thirty day period for filing an appeal does not commence until an appellant has received written notice of a reallocation or reclassification decision.

Similarly, since the statutes require that notice of discipline be given in writing to an employee prior to the effectuation of the disciplinary action, see Brenon, id., verbal notice of an impending disciplinary action should not be considered effective notice for purposes of triggering the statute of limitations provided in s. 111.39(1), Wis. Stats. Cf. Clark v. Resistoflex Co., 854 F. 2d 762, 765 (5th Cir. 1988):

The operative date from which the 180-day filing period begins to run is "the date of notice of termination, rather than the final date of employment." Determination of when notice has been communicated to an employee is based on an objective standard, focusing upon when the employee knew, or reasonably should have known, that the adverse employment decision has been made. In the Supreme Court's language in Ricks, the relevant inquiry is when [the employer] may be considered to have "established its official position -- and made that position apparent" to [the employee]. (emphasis added) (citations omitted)

Adverting to the actual issue for hearing, (5)  a "reasonable" person would have known that he or she could not be disciplined without written notice in accordance with s. 230.34(1)(b), Wis. Stats. Cf. Jabs v. State Board of Personnel, 34 Wis. 2d 245, 251, 148 N. W. 2d 853 (1967) (State employee has implied duty to be familiar with civil service code provisions applicable to her situation).  Therefore, complainant's contention that after the January 6" 2000, meeting he did not believe he had been terminated because he understood that certain civil service processes were required to terminate a classified employee, was not only reasonable but also in conformity with s. 230.34(1)(b), Wis. Stats.

Respondent's motion to dismiss for untimely filing is denied.

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(1)( Back ) This issue has been rendered moot by Commissioner Thompson's resignation from the commission effective January 11, 2003.

(2)( Back ) Brackets in original.

(3)( Back ) This provision requires that a complaint be filed within 300 days after the alleged discrimination occurred.

(4)( Back ) The court's language implies that the notice was in writing; the decision does not identify what type of entity the employer was.

(5)( Back ) "Whether a reasonable person in complainant's position would have understood by the end of the meeting on January 6, 2000, that an official and final decision had been made to terminate his employment. "

uploaded 2005/06/22