P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOSE ALBINO, Complainant


ERD Case No. CR200602498, EEOC Case No. 26G200601473C

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 evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed July 25, 2008
albinjo . rsd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complainant alleged that he was discharged based upon his disability on January 24, 2005. The statute of limitations for filing a complaint under the Wisconsin Fair Employment Act is 300 days after the alleged discrimination. Wis. Stat. 111.39(1). Therefore, in order to be timely, the complaint had to be filed no later than November 20, 2005. However, the complaint in this matter was not filed until July 28, 2006. Although the complainant contends that he was incapacitated and could not file his complaint within the 300-day deadline, the medical documentation he has submitted does not support this assertion. To the contrary, the documentation submitted by the complainant suggests that any such incapacity was limited to the time period extending from October 2005 until January 2006, approximately 92 days total, only 51 of which fell during the 300-day limitations period. There is nothing to indicate that the complainant was too impaired to understand or act on his legal rights during the first 249 days of the 300-day period. Even if the statute of limitations were to be tolled for the 51 days in which the complainant's psychiatrist contends he was incapacitated during the limitations period, he would have needed to file his complaint by February 20, 2006, in order for it to be considered timely filed. (1)    A limited period of incapacity does not toll the running of the statute of limitations indefinitely. Accordingly, the dismissal of the complaint is affirmed.

NOTE: In the petition for commission review the complainant states that "new information is and will be provided." The complainant indicates he will require a translator. The commission's general counsel notified the complainant by letter that the commission does not hold hearings and that its review is based upon the evidence already submitted to the administrative law judge. The complainant was advised that if he wished to supplement his petition in any manner he must do so by April 30, 2008. The complainant did not avail himself of this opportunity.

Elizabeth Albino
Attorney Kelly J. Smitsdorff

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(1)( Back ) The administrative law judge found that the period of incapacity extended until January 31, 2006. However, the psychiatrist's note indicated that the complainant's incapacity had resolved "by January." Absent evidence of a later date, the commission interprets this to mean that the complainant was not incapacitated as of January 1, 2006. Even using the January 31 date, however, the complainant would have been expected to file his petition by March 23, 2006.

uploaded 2008/07/28