STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
MARK J. BENZING, Complainant,
BLACKHAWK TECHNICAL COLLEGE,
Decision No. 28598-A
(complaint filed on 7-11-97)
Mr. Mark J. Benzing, 2022 Dewey Avenue, Beloit, Wisconsin
53511, appearing on his
Mr. Peter Albrecht, Godfrey & Kahn, Attorneys at Law,
131 West Wilson Street, Suite 202,
P.O. Box 1110, Madison, Wisconsin 53701-1110, appearing on behalf of Blackhawk
EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER GRANTING PRE-HEARING
MOTION TO DISMISS
On July 11, 1997, the above-named Complainant filed a complaint with the
Employment Relations Commission (WERC) alleging that the above-named Respondent had
committed prohibited practices within the meaning of Secs. 111.70(3)(a)1 and 3, Stats., of
the Municipal Employment Relations Act (MERA). On August 13, 1997, the Commission
appointed the undersigned Marshall L. Gratz, a member of its staff, to act as Examiner to
make and issue Findings of Fact, Conclusions of Law and Order pursuant to Sec. 111.07(5),
Stats. On August 15, 1997, Respondent District filed a motion to dismiss the complaint
without conducting a hearing. The Examiner thereafter sought and obtained various
written clarifications of the Complaint,
an answer from Respondent to the Complaint, and written statements of the parties' positions
regarding the motion to dismiss, the last of which was received by the Examiner on October
Based on the pleadings and arguments submitted, the Examiner issues the following
Findings of Fact, Conclusions of Law and Order Granting Motion to Dismiss.
FINDINGS OF FACT
1. The Complainant, Mark J. Benzing is a person who resides at 2022 Dewey
2. The Respondent, Blackhawk Technical College (also referred to herein as the
District), is a municipal employer with offices at 6004 Prairie Road, County Trunk G,
3. On July 11, 1997, Complainant filed with the WERC a complaint alleging that the
Respondent committed prohibited practices within the meaning of Secs. "111.70(3)1 and 3",
Stats., [which the Examiner interprets to have been intended to be Secs. 111.70(3)(a)1 and
3, Stats.] based on the following alleged facts:
a. That on July 11, 1996, Respondent issued Complainant an evaluation
untrue statements that Complainant "spoke obscene when I referred to [Respondent's
Facilities Manager/Supervisor Jeff Amundson] and other administrative staff members. And
also that I become argumentative and upset often."
b. That Respondent issued that evaluation "Primarily to retaliate and harass me
prior complaints, and grievances that I filed against the respondent, in which . . .
was one of the ones whose actions were complained of." And,
c. "[T]hat another member of the same department . . . has been known to
obscene and vulgar language when speaking to . . . Amundson, and never received any
statement mentioning this fact on her evaluation/assessment."
4. The evaluation referred to in the complaint was, in fact, issued to and received by
Complainant on June 11, 1996, not July 11, 1996.
5. As of June 11, 1996, Complainant had reason to know both the contents of the
evaluation which he received on that date, and the nature of any grievances and complaints
that he had filed prior to that date.
6. The complaint was filed more than one year from the date of the prohibited
alleged in the instant complaint that were based on the facts noted in Finding of Fact 3.a. and
CONCLUSIONS OF LAW
1. Viewing the complaint in the light most favorable to Complainant, the prohibited
practices alleged in the instant complaint based on the facts noted in Finding of Fact 3.a.
3.b., above, are time-barred by the one-year statute of limitations contained in Sec.
2. Viewing the complaint in the light most favorable to Complainant, the complaint
allegations referred to in Finding of Fact 3.c., above, do not, in and of themselves,
a prohibited practice within the meaning of Sec. 111.70(3), Stats.
3. Under no interpretation of the facts alleged in the instant complaint would the
Complainant be entitled to relief from WERC.
4. The WERC therefore lacks jurisdiction of the instant complaint.
1. Respondent's motion to dismiss is granted.
2. The Case 67 Complaint filed on July 11, 1997 is dismissed.
Dated at Shorewood, Wisconsin, this 16th day of December, 1997.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Marshall L. Gratz, Examiner
BLACKHAWK TECHNICAL COLLEGE
EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
GRANTING PRE-HEARING MOTION TO
PROCEDURAL BACKGROUND AND POSITIONS
OF THE PARTIES
The Case 67 complaint was filed on 7-11-97. In it, Complainant Benzing alleged the
During the afternoon of July 11, 1996 I was given
evaluation/assessment from Facilities
Manager/Supervisor, in which allegations were made by the Supervisor, that I spoke obscene
when I referred to him and other administrative staff members. And also that I become
argumentative and upset often. Both allegations are
untrue and were incorporated into my
yearly evaluation/assessment; primarily to retaliate and harass me for prior
grievances that I filed against the respondent, in which the Facilities Manager/Dept.
Supervisor Jeff Amundson, was one of the ones whose actions were complained of.
The Sections of the statutes I believe have
been violated are, 111.70(3)[a]1 and 3, of
the Wisconsin Statutes.
Also, I want to add the fact/allegation, that
another member of the same department that
the complainant is in has been know to use obscene and vulgar language when speaking to
the Facilities Manager/Supervisor, Jeff Amundson, and never received any statement
mentioning this fact on her evaluation/assessment. The remedy complainant seeks is
whatever the Commission and/or their appointee deems reasonable.
Be advised that the twenty-five dollar filing
fee accompanied this complaint.
In correspondence dated 7-15-97, and again in a formal
filed on 8-15-97,
Respondent District requested that the Case 67 be dismissed as on the grounds that the
complaint was not filed within the applicable one-year statute of limitations. More
specifically, the District asserted that the evaluation/assessment referenced in the Case 67
complaint was, in fact, issued to Complainant Benzing on 6-13-96, such that the Case 67
complaint was filed 13 months after the act or occurrence alleged in the complaint. The
District attached to its correspondence and motion a copy of what purports to be an
assessment bearing signatures purporting to be those of Complainant Benzing and of
evaluator, Facilities Manager Jeff Amundson, both with handwritten dates of "6-11-96."
On 8-17-97, the Examiner issued a notice of hearing in the above matter along with a
letter inquiring of Complainant Benzing, in pertinent part, as follows:
I have received Mr. Albrecht's motion to dismiss Case
67 on the grounds that the
complaint was not filed within the one year statute of limitations for initiating a prohibited
Before ruling on that motion . . . I
want to give Mr. Benzing an opportunity to state
his position on those matters.
Specifically, I would like to know
Mr. Benzing's answers to the following questions:
1. Does Mr. Benzing dispute Mr.
Albrecht's contention that the performance
evaluation was issued to Mr. Benzing on June 11, 1996?
2. If Mr. Benzing does not dispute
that the performance evaluation was issued to
him on June 11, 1996, then
a. is there any reason why the
complaint in Case 67 should not be dismissed on the
grounds that it was filed after the one year statute of limitations had run on prohibited
practice allegations based on that performance evaluation; . . . .
I respectfully request that Mr.
Benzing put his responses to the above in writing and
in the mail to Mr. Albrecht and to me as soon as possible . . . That way I will hopefully be
in a position to rule on these matters well enough in advance of the hearing to provide the
parties with reasonable notice as to what matters will be the proper subject for the
September 23 and (if necessary) 24 hearing.
. . .
The Examiner subsequently wrote the parties on 9-5-97, as
This is to confirm the status of the above cases following
our recent telephone
communications. Due to mail delivery delays, Mr. Benzing has requested until September
14, 1997, to respond in writing to the questions
set forth in my letters of August 17 and 21. Mr. Albrecht does
not object to that
request. I have granted Mr. Benzing's request.
However, to provide time for Mr.
Albrecht to submit any reply the District may have
to Mr. Benzing's response, and to provide time for me to rule on the motions to dismiss, I
am canceling the hearing previously scheduled in these matters for September 23-24, 1997.
. . .
By letter dated 9-15-97 and received by the Examiner on
9-18-97, Complainant Benzing
responded to the Examiner's above inquiries as follows:
I will first reply to the questions you ask in your letter
dated August 17, 1997.
First question: I don't dispute the fact that
the performance evaluation was issued to me,
the complainant, on June 11, 1996.
Second question: (a) yes, because of the
fact that the complainant, was not aware of the
allegations stated in his amended complaint, and in his amended complaint until November
or December of 1996. Since the complainant was informed personally by the custodial
department's lead person (who has been known for past the or more years by most members
of the custodial department to use vulgar language, mostly on a daily basis and in the
presence of the department Supervisor/Facilities Manager, J. Amundson) that she didn't
have any statements or complaints on her performance evaluation, regarding, her use of
. . .
The District responded by letter dated 10-2-97 and received
Case 67 - The Performance Evaluation Case
In his response, the Complainant
concedes that the performance evaluation was
issued in June, as opposed to July of 1996. He asserts, however, that he was not aware of
the disparate treatment until November or December of 1996. That is when the Complainant,
allegedly, became aware that a similarly situated co-worker did not receive a poor evaluation
even though she also allegedly used vulgar language. This information is irrelevant and does
not defeat the Motion to Dismiss.
The Complaint alleged retaliation and harassment.
Specifically, the Complainant
alleged that the poor evaluation was issued to "retaliate and harass" him for bringing prior
complaints. This is not a discrimination case. Accordingly the date that the Complainant
may have become aware of more favorable treatment given to a similarly situated co-worker
is irrelevant to the issue of when the statute of limitations began to run. (While the treatment
of a co-worker could, arguably, be used as evidence to support a retaliation claim, it has no
impact on the date that the statute of limitations should have begun to run.) When the
Complainant received a performance evaluation that he believed was unjustifiably poor, he
knew or should have known, as of the date that he received the evaluation, the facts
sufficient to file his retaliation claim. Because he received that evaluation approximately
thirteen months before filing his Complaint, the College believes that the Complaint was not
. . .
Respondent District seeks dismissal of the complaint without a hearing. "Because of
drastic consequences of denying an evidentiary hearing, on a motion to dismiss the
complaint must be liberally construed in favor of the complainant and the motion should be
granted only if under no interpretation of the facts alleged would the complainant be entitled
to relief." E.g., Unified School District No. 1 of Racine County, Wisconsin, Dec. No.
15915-B (Hoornstra with final authority for WERC, 12/77), at 3.
Here, Respondent District seeks dismissal of the complaint on the grounds that the
Commission lacks jurisdiction of its subject matter because the prohibited practices alleged
in the complaint are time-barred by the applicable one-year statute of limitations set forth
in Sec. 111.07(14), Stats.
That Section reads, "The right of any person to proceed under this section shall not
extend beyond one year from the date of the specific act or unfair labor practice alleged." It
has been strictly construed by the Commission and by reviewing Courts in the sense
that a complaint filed 366 days after the act complained of was dismissed as untimely. City
of Madison, Dec. No. 15725-B (WERC, 6/79), aff'd, Dec. No. 79-CV-3327 (CirCt Dane,
In determining when the statute begins to run, the Commission has applied what it
characterized as "our general holdings that the statute of limitations begins to run once a
complainant has knowledge of the act alleged to violate the Statute. [citations
omitted]." State of Wisconsin, Dec. No. 26676-B at 5 (WERC, 11/91). However, in
same decision, the Commission reaffirmed its decision in (Johnson v.) AFSCME Council
24, Dec. No. 21980-C (WERC, 2/90) in which it had rejected a complainant's contentions
that she was not obligated to file her complaint within one year of the act alleged (February
and March 1982 Union notifications that it decided not to arbitrate her grievance) because
she did not discover the allegedly arbitrary nature of that act until 1984. State of
Wisconsin, Dec. No. 26676-B, supra, at 5.
Based on Complainant Benzing's response to the Examiner's inquiries, it is
that the evaluation/assessment referred to in the Complaint was issued more than one year
before Complainant filed the instant complaint. Complainant had reason to know the
contents of the evaluation when he received it on 6-11-96, and he was aware on that date of
whatever grievances and complaints he had filed prior to that date.
However, Complainant Benzing argues that his complaint is nonetheless timely
he first became aware within the one-year limitations period preceding its filing, that the
District did not criticize a fellow employe in her evaluation/assessment for using obscene
language when speaking to Amundson.
When the Commission has been presented with such contentions in other cases, it has
applied the reasoning developed by the United States Supreme Court in Local Lodge No.
1424 v. National Labor Relations Board (Bryan Mfg. Co.), 362 US 411 (1960), 45
LRRM 3212 for addressing the significance of events outside of a statutory limitations
period. See, e.g., CESA No. 4, Dec. No. 13100-E (Yaffe, 12/77), aff'd Dec. No. 13100-G
(WERC, 5/79), aff'd Dec. No. 79CV316 (CirCt Barron County, 3/81). See also,
School District of Clayton, Dec. No. 20477-B (McLaughlin, 10/83), aff'd by
operation of law, -C (WERC, 11/83); Moraine Park Technical College, Dec. No.
25747-B,C (McLaughlin, 3/89), aff'd -D (WERC, 1/90), aff'd sub nom. Anderson v.
WERC, 163 Wis.2d 966 (CtApp III, 1991)(per curiam, unpublished).
In the Bryan case, the United States Supreme Court addressed two basic situations
which pose the central questions, as follows:
. . . The first is one where occurrences within the . . .
limitations period in and of
themselves may constitute, as a substantive matter, unfair labor practices. There, earlier
events may be utilized to shed light on the true character of matters occurring within the
limitations period; and for that purpose (the statute of limitations) ordinarily does not bar
such evidentiary use of anterior events. The second situation is that where conduct occurring
within the limitations period can be charged to be an unfair labor practice
only through reliance on an earlier unfair labor practice. There
the use of the earlier
unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative
current unfair labor practice. Rather, it serves to cloak with illegality that which was
otherwise lawful. And where a complaint based upon that earlier event is timebarred, to
permit the event itself to be so used in effect results in reviving a legally defunct unfair
Bryan, supra, 362 U.S. at 416-17, 45 LRRM at 3214-3215. In
Technical College, Dec. No. 25747-C, supra, at 5, Examiner McLaughlin described
the Bryan analysis under MERA as follows:
The Bryan analysis, read in light of the provisions of Secs.
111.07(14), Stats., requires two determinations. The first is to isolate the "specific act
alleged" to constitute the prohibited practice. The second is to determine whether that act
"in and of (itself) may constitute, as a substantive matter" a prohibited practice.
In the instant case -- viewing the facts in the light most
favorable to the Complainant --
the specific act alleged is the District's non-criticism of Complainant's fellow employe for
that employe's alleged use of obscene language when speaking to her supervisor,
Amundson. Clearly, that alleged act (of non-criticism) would not, in and of itself, constitute
a prohibited practice under MERA.
Therefore, based on both the Johnson case and on the Bryan analysis, above, all of
prohibited practices alleged in the instant complaint are time-barred by the Sec. 111.07(14),
Stats., statute of limitations; under no interpretation of the facts alleged would the
complainant be entitled to relief; and the Commission lacks jurisdiction of the entire
Accordingly, the Examiner has granted the District's pre-hearing motion to dismiss
Case 67 Complaint.
Dated at Shorewood, Wisconsin this 16th day of December, 1997.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Marshall L. Gratz, Examiner