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

STEPHEN LEE, Complainant

BED, BATH & BEYOND, Respondent

ERD Case No. CR201000434

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 March 25, 2011


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner


It appears that the complainant went to the respondent on May 27, 2008 in connection with a job opening there, and was not hired. He then filed a complaint with the ERD alleging that the respondent had discriminated against him because of arrest/conviction record in regard to hire. That complaint was dismissed by an ALJ on June 25, 2009 and the dismissal was affirmed by the commission on August 14, 2009. (ERD Case No. CR200801805).

In July, 2009, (1)  the complainant went to the EEOC and filed a complaint alleging race discrimination in connection with the same May 27, 2008 events which were the subject of his earlier complaint. This was, of course, well beyond the 300 day period provided for in Wis. Stat. § 111.39(1).

The complaint was initially investigated by the EEOC, which ultimately closed the case based on its inability to conclude that any violation of the law had taken place. The case was then investigated by the ERD, which found no probable cause to believe that discrimination had occurred. The complainant appealed, and the matter was certified to hearing. The respondent then filed a motion to dismiss the complaint on the grounds that it was not filed within the statute of limitations. The ALJ granted the motion, and the complainant has petitioned for review.

The complainant argues that because his complaint was filed with the EEOC it is a federal complaint under Title VII and that therefore different legal requirements apply to it than to a complaint filed with the ERD. The heart of his argument is his assertion that the 300-day statute of limitations in Wis. Stat. § 111.39(1) is "not applicable to" complaints which were filed with the EEOC.

That assertion is not correct. The provisions of Wis. Stat. § 111.39(1) apply to "complaint[s]". The department may receive and investigate complaints if they are filed with the department no more than 300 days after the alleged discrimination; that is the extent if its power.

Complainant's argument that there is some difference in the applicability of the 300-day statute of limitations as to complaints filed first with the ERD, versus those filed first with the EEOC, rests largely on his assertion that

Pursuant to Wis. Adm. Code DWD 218.03(5) the only requirement of a Complaint deferred to ERD by a "Federal" agency is that the Complaint comply with Wis. Adm. Code DWD 281.03(3).

This also is not correct. Wis. Adm. Code § DWD 218.03(5) states,

(5) DATE OF FILING OF COMPLAINT DEFERRED BY ANOTHER AGENCY. A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

This does not, in any way, state that "the only requirement of" a complaint filed with another agency and deferred to ERD is that the complaint comply with Wis. Adm. Code DWD 281.03(3). In fact it does not say anything about what "requirements" may apply to complaints. It merely states that a complaint filed with another agency and deferred to ERD will be deemed to comply with "the requirements of sub. (3)," such as they are, and that it shall be deemed to have been filed when it was received by the other agency.

Wis. Adm. Code § DWD 218.03(3) states:

(3) FORM AND CONTENT OF COMPLAINT. A complaint shall be written on a form which is available at any division office or on any form acceptable to the department. Each complaint shall be signed by the person filing the complaint or by the person's duly authorized representative. The signature constitutes an acknowledgment that the party or the representative has read the complaint; that to the best of that person's knowledge, information and belief the complaint is true and correct; and that the complaint is not being used for any improper purpose, such as to harass the party against whom the complaint is filed. Each complaint shall contain all of the following information:

(a) The name and address of the complainant.

(b) The name and address of the respondent.

(c) A concise statement of the facts, including pertinent dates, constituting the alleged act of employment discrimination, unfair honesty testing or unfair genetic testing.

This subsection also does not purport to say that it describes the "only" requirements that a complaint may be subject to. It simply describes requirements involving matters of "Form" and "Content." The requirement as to when a complaint must be filed is not contained in the rules at all, but rather in the statute, in Wis. Stat. § 111.39(1). It thus applies to all complaints.

In addition to the argument that the WFEA's statute of limitations somehow does not apply to complaints filed with the EEOC, the complainant also argues that if it did, "it was ERD's duty to investigate the 300 day statute of limitations and then dismiss the Complaint on that basis and not let it proceed any further." That is incorrect.

It has long been established that the statute of limitations is an affirmative defense which may be considered waived if it is not timely raised. For that reason the ERD generally waits to take up the issue of whether a complaint is timely until a respondent raises the issue. This is reflected in the ERD's rules:

Wis. Adm. Code § DWD 218.05 Preliminary Review of Complaints. (1) Review of complaint. The department shall review every complaint filed to determine all of the following:
. . .
(d) Whether the complaint was filed within the time period set forth in the act, if the issue is raised in writing by the respondent.

(emphasis added). In this case, the respondent submitted a position statement to the ERD investigator disputing the complainant's contention that he had been discriminated against, but it did not raise the issue of the timeliness of the complaint. Thus, under Wis. Adm. Code § DWD 218.05(1)(d), the investigator appropriately did not take up the issue. However, after the case was certified to hearing following the investigator's issuance of an initial determination finding no probable cause to believe that discrimination had occurred, the respondent raised the issue, and at that point it was properly addressed by the ALJ.

The respondent did not waive the defense of statute of limitations by not raising it in the course of the investigation. The ERD's rules effectively provide, in Wis. Adm. Code § DWD 218.12(2), that the defense of statute of limitations is not waived unless a respondent fails to raise it in an Answer required under Wis. Adm. Code § DWD 218.12(1). The requirement to file such an Answer only arises upon issuance of a notice of a hearing on the merits.

Conclusion - The complaint in this matter about the complainant's May 27, 2008 effort to be hired by the respondent, was filed in July, 2009, long after the 300-day statute of limitations in the WFEA had run. The respondent timely asserted the untimeliness of the complaint as a defense. The complainant's arguments that the statute of limitations does not apply to complaints first filed with the EEOC, and that the ERD should have addressed the issue sooner, are without merit. The ALJ's Decision should therefore be affirmed.

cc: Attorney Warren E. Buliox


Ed. Note: This decision is reproduced here as affected by a corrective amendment issued on March 31, 2011.

Appealed to Circuit Court.  Affirmed, December 21, 2011.

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(1)( Back ) As the date of filing, the ALJ used July 28, 2009, which was the day the complainant filed his actual EEOC complaint. The complainant uses July 13, 2009, which was the day he filed an EEOC "Intake Questionnaire". LIRC has previously held that the date of filing of an EEOC "Intake Questionnaire" can be used as the date of filing for statute of limitations purposes. Keup v. Mayville Metal Products (LIRC, Jun. 22, 1995). However, as the ALJ noted in footnote 4 of her decision, it makes no difference which date is used, as both are well over 300 days after the date of May 27, 2008 when the complainant was not hired.


uploaded 2011/04/05