JAMES FRANKLIN, Complainant,

VS.

J & J MOTORS, Respondent.

On February 29, 1988, this case was remanded to the Hearing Officer as the result of a Remand Order from the Iowa District Court for Henry County in their Cause #CL 1159-0387. Specifically, the remand is on the issue of jurisdiction under Iowa Code 601A. 15(12), which provides:

A claim under this chapter shall not be maintained unless a complaint is filed with the commission within 180 days after the alleged discriminatory or unfair practice occurred.

The original complaint was filed on December 23, 1982. The amendment filed on June 27, 1985, is not in issue since the charges based on alcoholism were dismissed. The Commission found that Franklin was laid off on December 31, 1981 (Finding of Fact #8). The filing of the complaint (12-23-82) was more than 180 days after the incident of layoff. In order for the Commission to have jurisdiction of this complaint, there would have to be a continuing violation or an incident occurring within the 180 days prior to December 23, 1982. If Franklin was terminated, as opposed to laid off, in December 1981, the complaint would have been untimely and the Commission would not have jurisdiction over the complaint. If, however, Franklin had been laid off in December 1981, the 180-day period would not have started to run until such time as Franklin became aware that he had actually been terminated with no intention to recall or laid off and not recalled because of his age on a date of hire falling within the 180-day period.

The following findings of fact go directly to that issue.

1. There was general agreement that in December 1981, the time Franklin left Respondent, the work had become slow. Transcript pages 24, 32, 38, 57, 60, 71, 81-82.

2. Franklin believed that he was laid off indefinitely because the work was slow. The fact that Pitsinger received a different impression of the conversation does not negate what Franklin believed. Transcript pages 24, 39. 57, 60, 61, 66, 67, 87, lines 10-11.

3. Franklin left his tool box at Respondent's place of business and returned there several times to ask about being recalled. Respondent admits the tool box was there almost a year. Transcript pages 26, 66-67, 87, lines 12-15, 103, lines 17-25, 104, line 1.

4. It wasn't until late in the fall (1982) that Franklin became aware that he would not be recalled. He became aware that Respondent was remodeling, was taking on another franchise and workers were being hired. One worker, a younger person, was hired in August 1982, which is within the 180 day time requirement. Transcript pages 28, 41-42, 28, 67, 87, lines 20-23

5. The term "laid off" was consistently used and accepted at the Hearing except for one instance when Respondent stated that Franklin was terminated. However, Respondent later admitted he didn't know which words he used when he talked with Franklin in December 1981. Transcript pages 66, 83-84, 85, 87, 103, lines 5-8, 105.

6. Any incident which occurred on or after June 27, 1982, would be within the 180 day period.

7. The complaint filed December 1982, when memories were fresh, alleged that Franklin was laid off for economic reasons and would be called back in June 1982. It was also alleged in the complaint that Franklin visited with Respondent from May through August 1982, inquiring about getting called back. Franklin was still inquiring about being called back in December of 1982, the month he filed the complaint. Four years later, at the public hearing, memories were fuzzy on dates but essentially the dates were the same as stated in the complaint.