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



ERD Case No. 201100663, EEOC Case No. 26G201100759C

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 September 21, 2012
staniel : 120 : 5


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


In her brief in support of her petition for commission review, the complainant asserts that the ALJ should not have granted the respondent's motion to dismiss her complaint on statute of limitations grounds because there were numerous disputed factual issues that should have been addressed at a hearing, including the existence of various acts of discrimination that occurred after April 1, 2010, and the specific date when she knew or should have known that she was being discharged. She asserts that her complaint alleged discrimination under two separate theories: (1) discrimination based upon a hostile work environment that she suffered due to harassment, and (2) discrimination because she was discharged due to her disabilities. She also asserts that the respondent waived its statute of limitations defense with respect to her claim of a hostile work environment. The commission does not agree that there were any disputed factual issues that warranted a hearing or that the respondent waived any affirmative defense, and agrees with the ALJ that the complainant's complaint was untimely filed.

The complainant was hired by the Medical College of Wisconsin ("MCW" or "respondent") on May 13, 2009 for a one-year post-doctoral fellowship. She told her supervisor at time of hire that she was physically unable to euthanize animals and harvest their organs due to asthmatic attacks, extreme anxiety, hyperventilation and nausea associated with that activity. As a result, a technician in her supervisor's lab performed those activities until February 2010, when the technician left the lab. At that time, the complainant's supervisor told her that she must begin to perform those activities. When she resisted, her supervisor told her that she would be dismissed if she did not begin to do that work and, in fact, discharged her on March 19, 2010. Prior to that date, she had requested accommodation for a disability, and had obtained medical certification of that disability, although she had not yet provided it to MCW. She was subsequently reinstated by the department chairperson and notified in an email dated April 1, 2010 that she would remain employed as a post-doctoral fellow through May 12, 2010 and that her work in the department would not involve her previous supervisor. That email contained a specific notification to her that the reinstatement provided her with restored employment and salary, and approximately six weeks to find new employment. Ultimately, she negotiated continued employment with MCW until June 30, 2010.

The complainant filed her complaint with the equal rights division on March 4, 2011, alleging discrimination based upon disability, pregnancy and national origin, as well as a claim of retaliatory discharge. The last paragraph of the complaint reads as follows:

On April 1, 2010, Dr. Traktman e-mailed MCW General Counsel that Dr. Stanitsa's position had been reinstated "until May 12, 2010." No action was ever taken on Dr. Stanitsa's accommodation request.  Dr. Stanitsa eventually negotiated that termination date to June 30, 2010. She was terminated from MCW on that date on the basis of her disability and/or in retaliation for filing an accommodation request.  The complainant did not amend her complaint at any time thereafter. After investigation, an equal rights officer found no probable cause to believe that MCW had discriminated against the complainant due to her pregnancy or her national origin, but found probable cause on her disability claims. Specifically, she found probable cause to believe that MCW may have violated the Wisconsin Fair Employment Law ("WFEA" or "Act") by discriminating against the complainant in terms or conditions of employment because of her disability, by refusing to reasonably accommodate a disability, by terminating complainant because of her disability, or by discharging complainant because she opposed a discriminatory practice under the Act.

The complainant appealed the no probable cause findings, and the case was certified to a hearing. Before the matter was assigned to an ALJ for a hearing, the respondent filed a motion to dismiss the complaint on the ground that the complaint was untimely filed. An ALJ was assigned to the matter, and she granted respondent's motion to stay discovery in the matter until the respondent's motion to dismiss was decided. She advised the complainant to file a response to the motion to dismiss. Upon receiving the response, which included an affidavit by the complainant, she requested copies of documents that the complainant had referenced in the response to be provided to her and to the respondent. She provided a briefing schedule to the parties, and issued her decision after that schedule was completed, finding that the complaint was untimely filed.

The WFEA requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). This statute of limitations is an affirmative defense that may be waived by the respondent. Failure by the respondent to raise an affirmative defense in its answer may be held to constitute a waiver of the defense. Wis. Admin. Code § DWD 218.2(2). An answer is not required to be filed by a respondent until 21 days after a hearing on the merits has been scheduled. Wis. Admin. Code § DWD 218.2(1).

In this case, the critical date for statute of limitations purposes (the 300th day prior to the filing of the complaint) is May 8, 2010. There must be an allegation of discriminatory conduct on that day or thereafter for the complaint to be considered timely. The complainant argues that her complaint is timely because she alleged harassing conduct by the respondent in her complaint and in submissions to the department investigator and to the ALJ, conduct that continued throughout May and June 2010 and that constituted a hostile work environment. In addition, she argues that she did not know and could not reasonably have known that she was being discharged until after her appeal of her corrective action was denied by the respondent on May 14, 2010.

In Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), the U.S. Supreme Court identified two classes of employment actions, i.e., discrete acts, such as termination, failure to promote, denial of transfer and refusal to hire, and repeated harassing acts that cumulatively form the basis for hostile work environment claims.  More recently, in Bowen v. LIRC, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164, the Wisconsin Court of Appeals, citing the reasoning in Morgan, held that a hostile work environment claim would be found timely even if only one hostile act occurred within 300 days before a complaint is filed, and even if the other acts comprising the hostile work environment were not shown to be part of a continuous unbroken course of conduct.

Hostile work environment

The complainant alleges that the respondent waived its right to assert a statute of limitations affirmative defense with regard to her hostile work environment claim because it did not address that claim in its motion to dismiss. However, this argument fails for two reasons. First, the complainant did not specifically allege a hostile work environment in her complaint, and the investigator for the department did not find probable cause to believe that the complainant may have been subject to a hostile work environment. Therefore, until it was specifically raised by the complainant, there was no reason for the respondent to be on notice of this claim. Second, as noted earlier, the waiver argument by the complainant is premature because a hearing on the merits had not been scheduled and, therefore, the case had not reached the point at which an answer was required to be filed by the respondent.

As to complainant's allegations regarding a hostile work environment, the ALJ correctly rejected that claim as untimely, since the last date the complainant worked in her previous supervisor's lab was March 19th, and her complaint did not include allegations of continuing harassment from her supervisor after that date. The ALJ noted that the general assertions in the complainant's subsequent affidavit, not part of her complaint, that harassment continued in May and June 2010 are not sufficient to make her claim timely, and that to allow such documents received after the filing of a complaint to become part of the complaint is "simply unworkable and violates all concepts which underpin the need for a statute of limitations." The commission agrees.

Although the Wisconsin Fair Employment Act embodies very liberal pleading requirements, there must be sufficient notification of the bases of the claims, including facts and pertinent dates, so that the respondent can properly respond to those claims. There is also the option of amending a complaint, if necessary, to add further claims of alleged discriminatory conduct. The complainant, represented by an attorney who drafted her complaint, did not amend her complaint to add a continuing violation claim or to include instances of harassing conduct continuing beyond May 8, 2012. Her affidavit, even if it were sufficiently specific about such actions, cannot substitute for a timely amended complaint and cannot negate or extend the statute of limitations requirement.

The complainant cites to previous cases decided by the commission in support of her argument that her affidavit should have been considered, including Tucker v. Rock County, ERD Case No. 9001178 (LIRC July 2, 1992) and Valeri v. Delco Electronics-General Motors, ERD Case No. 9051609 (LIRC July 17, 1992).

However, these cases do not stand for the proposition that simple assertions by a complainant through an affidavit can work to add additional charges or claims to an already filed complaint. Tucker involved a question of whether the "exclusive remedy" provision of the Workers' Compensation Act barred a complaint of handicap discrimination brought under the Fair Employment Act. Since no hearing was held, the commission accepted the complainant's submissions relating to medical records and a transcript of a Workers' Compensation proceeding at which she testified, in order to test the legal sufficiency of the discrimination claim she had made, ultimately affirming the ALJ's dismissal of her discrimination complaint. In Valeri, the commission looked to an affidavit by the complainant in order to attempt to discern when the alleged discriminatory action was made or was communicated to the complainant because the complaint did not contain a date for such decision or communication. Since the information was inconclusive in the complainant's affidavit, the commission decided that a hearing was necessary. That is not the case here, where the complaint clearly identified the dates when those allegedly discriminatory acts identified in the complaint occurred.

The commission notes that the ALJ does rely on an assertion made by the complainant in her affidavit that she was actively seeking employment with other employers after the April 1, 2010 email from the department chair, thereby indicating that she was aware she had been discharged. In addition, the ALJ utilizes the substance of the April 1st email, a document that she solicited from the complainant because the complainant had referred to it in her brief in opposition to the respondent's motion to dismiss. This information provided by the complainant is helpful and appropriate in evaluating the claims she has made, but cannot be used to add a new charge of discriminatory acts occurring in May and June of 2010.


With regard to her termination, the complainant argues that she did not actually know of her termination until at least May 14th when her appeal of a previous corrective action was denied by a representative of MCW's human resources department. She also argues that since MCW did not follow the formal procedure for discharge contained in its handbook, the April 1st email was not effective as a discharge. She asserts that there is, therefore, a disputed and material fact - the date that she became aware that she would be discharged - and that an evidentiary hearing was required to resolve that issue.

However, as noted by the ALJ, the complainant's assertion is not credible. The complainant's appeal of the corrective action was pending at the time of the April 1st email, when she received personal notification of the ending of her employment. The fact that MCW proceeded with the appeal process of her corrective action was irrelevant to her discharge, but related to whether her record would contain that disciplinary action. In this regard, the 300-day statute of limitations begins to run when the employer makes the allegedly discriminatory decision and communicates it to the employee (1), not when the decision becomes effective. Hilmes v. DILHR, 147 Wis. 2d 48, 52-53, 433 N.W.2d 251 (Ct. App. 1988). See also Carson v. Premier Medical Staffing Services LLC, ERD Case No. CR200903022 (LIRC, May 7, 2010) (limitations period begins to run when facts supporting a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for her rights); Welsh v. Wisconsin Dep't of Corrections, ERD Case No. CR200501949 (LIRC Jan. 13, 2006) (limitations period begins to run when the complainant receives actual or constructive notice of the allegedly discriminatory adverse employment action). In addition, as the complainant concedes, even though an employee may attempt to overturn a discharge by utilizing the employer's internal appeal procedure, that action does not toll the statute of limitations period. Hoefs v. Perlman-Rocque, Whitewater, ERD Case No. 9100368 (LIRC, Sept. 16, 1992).

In her decision, the ALJ found that the complainant would have known that her employment was going to be terminated after receipt of the April 1st email. The commission agrees. As noted in the ALJ's decision, the April 1st email (2) contained a specific notification to the complainant that she was being given restored employment and salary and approximately six weeks to find new employment. Accordingly, the statute of limitations period would have begun to run at that time, and a timely complaint would have to have been filed by January 26, 2011.

The complainant's assertion that she did not know or did not have adequate notice of her discharge is not reasonable or credible, and cannot be the basis of a genuine issue of material fact just because she asserts it. The commission has held that it is not necessary to hold an evidentiary hearing in a statute of limitations case when the complainant's contentions are inherently incredible. See Hootsell v. Waukesha County Dept. of Health Services, ERD Case No. 201002816 (LIRC June 9, 2011) (complainant's assertions as to when she learned of similar discriminatory actions toward another job applicant inherently incredible, do not warrant hearing); Rome v. Fiduciary Real Estate, ERD Case No. CR200801068 (LIRC Sept. 18, 2009). An evidentiary hearing was not necessary in this case to
determine when the complainant was on notice that she was being discharged, as it was obvious from the April 1st email.

As to the complainant's argument that MCW did not follow its formal procedure for discharge, that may be an argument going to her discrimination claim, although it should be noted that she did complete her one year fellowship. However, as to whether she had notice of an allegedly discriminatory adverse employment action on April 1, 2010, there can be no dispute.

Attorney Jacob Miota
Attorney Marna Tess Mattner

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(1)( Back ) The commission notes that a fair argument could be made that the allegedly discriminatory discharge occurred on March 19th. However, it is not necessary to decide that question because the complainant's complaint was untimely with regard both to her discharge on March 19th and to her notification of temporary reinstatement and discharge on April 1st.

(2)( Back ) The complainant asserts that she was not properly notified because the April 1st email was directed to others and only copied to her. However, she does not dispute that she received it and, as noted above, it had statements directed to her personally that related to the ending of her fellowship with MCW. She was, therefore, clearly on notice of the allegedly discriminatory action being taken against her.


uploaded 2012/12/07