JAMES FRANKLIN, Complainant,

VS.

J & J MOTORS, Respondent.

CONCLUSIONS OF LAW

I. It is concluded that Franklin was given to believe by Respondent that he was laid off in December 1981 because work had substantially slowed down and that when things picked up again he would be able to return to work. It is further concluded that Respondent selected Franklin for layoff because of his age and had no intention of recalling him. Respondent continued to put him off when he asked if things were getting better. At the same time Respondent retained the younger workers, while hiring other younger workers. Furthermore, it wasn't until sometime between August and December 1982, that Franklin found out about the hiring of Burnham, a younger person. Franklin then realized that he would not be recalled and felt he was being discriminated against. This occurred within ISO days prior to filing his complaint. It was stipulated that the allegation in the complaint referred to the employment decision of lay off and failure to recall occurring 12-31-81 and continuing. If an employer is guilty of a continuing violation, a challenge is timely even if the first discriminatory act against the complaining party took place before the 180 day period, if the violation continued in to that period. Roberts v. North American Rockwell Corp. 650 F.2d 823 (6th Cir. 1981), 26 EPD 231,885.

If Franklin had been clearly terminated on December 31, 1981, that date would be the date discrimination could have occurred and the complaint is required to be filed within 180 days of that act. But here by stipulation of the parties, consideration was also to be given to the failure to recall Franklin. The facts support the conclusion that Franklin expected to be recalled. Respondent didn't tell Franklin when he came back to check on the economic status of the business that he had been terminated and would not be recalled. They told hint things were still bad. Then they hired someone who was younger than Franklin knowing Franklin wanted to return to work. The argument that this was a continuing violation squares with the allegations in the complaint. The alleged discriminatory acts that continued were stated in the complaint. The allegation is not just that he was unfairly laid off, but that he was not recalled when there was an opening and a younger person hired. It is recognized that the statute of limitations, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect employers from the burden of defending charges arising from employment decisions which are long past. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-464 (1975). However, in cases where there is an ongoing policy of discrimination, there is also an ongoing violation of the Civil Rights Act. Roberts v. North American Rockwell Co . 650 F.2d 823 (6th Cir. 1981) 26 EPD 131,885. When a continuing discriminatory employment practice is alleged, the complaint may be timely filed notwithstanding that the conduct alleged is comprised in part of acts outside the charge filing period. Patterson v. Am. Tobacco Co., 586 F.2d 300, 304 (4th Cir. 1978).

2. IT IS CONCLUDED that the complaint was timely filed and the Iowa Civil Rights Commission has jurisdiction of this case.

Signed this 5th day of August 1988.

IONE G. SHADDUCK

Administrative Law Judge,

copy to: Teresa Baustian, AAG, ICRC

Gary L. Wiegel, Attorney at Law
114 East Monroe, P.O. Box 488
Mt. Pleasant, Iowa 52641