JUDY A PHILLIPS, Complainant
WHEATON FRANCISCAN HEALTHCARE
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 decision issued by the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed April 11, 2008
phillju . rsd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Judy Phillips filed a complaint with the Equal Rights Division on August 16, 2007, alleging that the respondent discriminated against her because of her race with respect to the termination of her employment. Phillips listed October 17, 2006, as the date of the most recent discrimination. In her discrimination statement, after stating that on October 17, 2006, she was called into the manager's office and informed that she was being terminated for being four minutes late for a meeting on October 11, 2006, Phillips stated in part as follows:
On 10/11/06 a white (Caucasian) female walked into [the] meeting after I did. I was shown by another employee of her walking in. I asked [the] white female a week later [if] she [was] reprimanded or did Sue say anything and she said "no".
In its response to Phillips' complaint, the respondent noted that Wis. Stat. § 111.39(1) requires that a complaint charging discrimination be filed no more than 300 days after the alleged discrimination occurred, and stated that Phillips' complaint must be dismissed as untimely. The equal rights officer provided Phillips a copy of the respondent's response and offered her an opportunity, if she believed that she had good cause for filing the complaint after the statutory deadline, to provide a statement regarding the circumstances.
Phillips responded by letter dated October 7, 2007, asserting that she had "actually filed [a] discrimination [complaint] against Wheaton Franciscan on October 27, 2006 and [the] Equal Rights [Division] received [it] on November 7, 2006", but an ERO had returned it to her stating she needed to: complete section 2 by providing the complete name, address and telephone number of the respondent; complete section 3 by checking a basis within the Division's jurisdiction for the alleged discriminatory action taken against her; and complete section 4 by stating why she believed she was treated differently. Apparently Phillips was considering whether to file a complaint alleging harassment or a complaint regarding her termination of employment, because in her October 7 response Phillips admits that "I knew I could file on discrimination but was it going to be for harassment or for terminating me for the point system and not another white female". Phillips also admitted in her October 7 response that the ERD had sent information to her regarding harassment in the workplace so she would know the type of harassment that was covered under the WFEL and what she could file a complaint about. Apparently, Phillips was required to respond with the necessary information within 10 days but failed to do so. (1)
In addition, in her October 7 response Phillips asserted, "I started to get depressed from the whole thing, especially my unemployment took 6 weeks which I did receive because Wheaton Franciscan did not respond. I had no insurance because of my termination so I didn't go to Dr. for medication. I just recently started feeling better. I was also counting business days when counting for timely filing, it was just a mistake."
Following a Preliminary Determination and Order which dismissed Phillips' discrimination complaint for failure to meet the timeliness requirements under the Wisconsin Fair Employment Law, Phillips filed an appeal. After reviewing the parties' position in this matter, the ALJ agreed that Phillips' complaint was filed beyond the 300-day statute of limitations period and therefore dismissed Phillips' complaint.
As the ALJ indicates in her decision, Phillips' main argument on appeal was that despite the untimeliness of her complaint, she does not believe she should be prevented from pursuing her complaint because she believes the respondent has violated the WFEL.
However, Wisconsin Statute Section 111.39(1) provides, in relevant part, as follow:
The department may receive and investigate a complaint charging discrimination...in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination...occurred. (Emphasis added.)
The date on which an act of unlawful discrimination occurs is when the employer acts and the employee knows about it. Hilmes v. DILHR, 147 Wis. 2d 48, 50, 433 N.W.2d 251 (Ct. App. 1988).
Phillips alleges in her discrimination complaint that the respondent discriminated against her because of her race, black, with respect to her termination of employment on October 17, 2006, when it terminated her for being late for a meeting on October 11, 2006. Based upon the commission's reading of Phillips' complaint, Phillips knew on October 11, 2006, that a white female worker was also late for a meeting that day and that one week following that date the white worker informed Phillips that she had not been disciplined for being late for the October 11 meeting. Phillips did not file her complaint of discrimination with the ERD until August 16, 2007. Phillip's discrimination complaint was filed more than 300 days after the alleged discrimination occurred and was therefore untimely.
While Phillips has asserted that she had "actually filed [a] complaint on October 27, 2006", she admits that that complaint was returned to her to supply missing needed information, including information regarding a basis as the alleged reason for her discrimination claim. Phillips effectively admits that a claim of race discrimination with respect to her termination of employment had not been raised in this complaint because she admits to not knowing whether to pursue a claim for harassment or a claim regarding the termination of her employment. Despite assistance from the ERD, Phillips apparently never supplied the information requested by the Division within the specified time. However, without the requested information, particularly an alleged basis for her claim of discrimination, the ERD was in no position to investigate whether there had been any violation of the WFEL by the respondent. As previously noted, department records show that the complaint Phillips asserts was "filed" on October 27, 2006, was closed one month later on November 27, 2006.
Phillips has further asserted that she started to get depressed about the whole thing, especially because it took 6 weeks to resolve her unemployment insurance claim because Wheaton Franciscan did not respond to that claim. Further, Phillips asserts that she did not go to a doctor because she had no medical insurance due to the termination of her employment, and that she just recently started feeling better. While mental incapacity may sometimes justify tolling the statute of limitations, that is only where the complainant has provided sufficient evidence to show that the mental condition rendered the complainant unable to pursue his or her legal rights throughout the 300-day charge-filing period. Wilson v. Doskocil (LIRC, 07/30/03). Aside from the lack of medical documentation, however, there is nothing in Phillips' October 7 letter to support a finding of mental incapacity. Indeed, Phillips' letter indicates that following her termination of employment with the respondent, not only was she considering on what basis to pursue a claim of discrimination against the respondent, she was also pursuing a claim for unemployment insurance benefits. Further, as indicated in the next paragraph, Phillips was aware of the 300-day statute of limitations for filing a discrimination claim, but simply made a mistake in her calculation of the 300 days.
Phillips has also indicated, as reason for not timely filing her complaint, that she made a mistake in calculating the 300-day period because she was counting business days. While the doctrine of equitable tolling may suspend the running of the statute of limitations for a period in which the complainant is "excusably ignorant" of his or her statutory rights, excusable ignorance does not mean ignorance of all the filing periods and technicalities contained in the law, nor does it mean ignorance of specific guidelines. Berg v. Agape of Appleton, Inc. (LIRC, 09/22/06)(internal citations omitted).
Finally, it should also be noted that contrary to her August 16, 2007 complaint allegation, in her letter dated January 17, 2008, to appeal from the Preliminary Determination and Order, Phillips states that it was "one year later", rather than one week, when she spoke to the white female and was told that she (the white female) was not disciplined for being late for the October 11, 2006 meeting. Assuming Phillips is attempting to assert that she did not discover that she had a claim for alleged race discrimination until one year after her discharge, this assertion fails. First of all, it is completely contradictory to her August 16 complaint allegation, a document she signed certifying that, under penalties of law, was true and correct to the best of her knowledge and belief. Second, nowhere in Phillips' letter dated October 7, 2007, is there any suggestion that she did not know whether or not the white female had been disciplined for being late for the October 11, 2006 meeting. In fact, what Phillips does state in her October 7 letter is that "I knew I could file on discrimination but was it going to be for harassment or for terminating me for the point system and not another white female".
cc: Attorney Stacie J. Andritsch
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