CHERYLL GIBSON KIEFER, Complainant
CARING ALTERNATIVES, LLC, Respondent
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 April 29, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This is an appeal from an ALJ's decision which affirmed a Preliminary Determination dismissing a complaint on the grounds that it was not filed within the Wisconsin Fair Employment Act's 300-day statute of limitations, which is found in Wis. Stat. § 111.39(1). That statutory section provides that to be considered by the Equal Rights Division, a complaint must be filed with the Division no more than 300 days after the alleged discrimination occurred.
The complaint in this case alleged harassment and discrimination because of disability, culminating in constructive discharge on September 13, 2009. It is not disputed that the complainant quit her employment with the respondent on September 13, 2009. The complaint does not allege that any acts of discrimination occurred after that date.
The 300th day after September 13, 2009, was July 10, 2010. However, the complaint was not filed until July 21, 2010. It is therefore clear that it was filed more than 300 days after the alleged discrimination occurred.
The commission agrees with the ALJ's conclusion that the complainant's appeal does not provide any basis for disregarding the lateness of the complaint. While the complainant has submitted statements that she has been diagnosed with Attention Deficit Disorder, this is not enough in this case. As the ALJ noted, the commission has held that a claim of mental disability would be sufficient to toll the running of the statute of limitations period only if it was established through medical evidence that the individual was "entirely incapable of bringing legal action" or discovering the vital information for the claim. Brantner v. Goodwill Industries (LIRC, Feb. 19, 2010), Berg v. Agape of Appleton (LIRC, Sep. 22, 2006). While the psychological consultation report which the complainant submitted with her petition for review does reflect a diagnostic impression including ADHD, neither this nor the report as a whole establishes that the complainant would have been "entirely incapable of bringing legal action" or discovering the vital information for her claim. The complainant was assessed as being "borderline" in terms of intellectual functioning, but the fact that she did end up getting her complaint filed, and that she understood about the effect of the statute of limitations when she found out about it, show that this was not necessarily something that made her entirely incapable of acting on her rights.
The complainant also explains her failure to file her complaint on time, by saying that she was not aware of what her rights were. The complainant made a statement that "in [her] workplace she never seen that poster that showed who [she] could talk to about her rights." However, even if the commission were to speculate that this statement by the complainant had to do with the informational poster that all employers are required by the Equal Rights Division to post in the workplace, (1) the complainant's statement is not an assertion that the employer did not have the poster up, but an assertion that she did not see it.
The complainant's other statements - including that she is a simple person and that if it's not in front of her she will never know what rights she has - indicate that the real problem here was that the complainant was not reasonably diligent about learning what her rights were. The Wisconsin Fair Employment Act does not recognize ignorance of one's rights as a basis for overlooking the statute of limitations. See, Adam v. DNR (Wis. Personnel Comm., Dec. 20, 2002), Burt v. Wisconsin Lottery (Wis. Personnel Comm., Apr. 5, 1991). It reflects an expectation that individuals will show a reasonably prudent regard for their rights. Washington v. United Water Serv. (LIRC, Aug. 15, 2003).
In her petition for review, the complainant basically relies on an argument that the commission should allow her case to be heard because she was wrongfully treated at work. However, this argument just assumes the outcome that the complainant wants. It has not been established, and the commission will not assume, that the complainant was in fact treated wrongly in a way which violated the Wisconsin Fair Employment Act. For the Equal Rights Division or the commission to even be able take up that question, there must be a timely filed complaint. Because there was no timely filed complaint here, the question cannot be taken up.
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(1)( Back ) DWD 218.23 Posting requirement. Every employer, employment agency, labor organization and licensing agency subject to the act shall post in conspicuous places upon its premises a poster prepared and made available by the department relating to the provisions of the act and this chapter.