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

ALAN MOELLER, Complainant


ERD Case No. CR200003908, EEOC Case No. 26GA10354

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision (ruling on a motion) 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. Respondent's motion to dismiss for untimely filing is granted, and this case is dismissed.

Dated and mailed January 27, 2003
moellal . rsd : 115 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In his petition for commission review, the administrator of complainant's estate (hereafter "personal representative"] makes several arguments.

The personal representative argues in essence that respondent's objection to the timeliness of the subject complaint should be deemed to have been waived since respondent's motion to dismiss for untimely filing wasn't filed until May 21, 2002, i.e., after the investigation of this case was concluded and the matter had been noticed for hearing. However, respondent presented its timeliness objection to the investigator, who addressed it in his initial determination, and expressly stated that "[r]espondent may raise timeliness as an issue at hearing, should this no probable cause finding be appealed." As a consequence, the personal representative can hardly claim surprise. In addition, there is no statutory or administrative rule requirement that such a motion be presented at any particular time, and the circumstances present here support the ALJ's decision to accept and decide the motion.

The personal representative further contends that the filing deadline should be equitably tolled since the respondent failed to properly respond to open records requests filed by complainant which had a bearing on the subject matter of this complaint. However, it would not be reasonable to conclude from the available information that the records requested by the complainant were necessary in order for him to form a belief that he'd been retaliated against, or in order for him to prepare his complaint. The information supplied by the parties here supports the conclusion that the complainant had formed the belief that he'd been retaliated against at or even prior to the date of his termination, i.e., January 18, 2000. Moreover, a complainant need provide only a general statement describing the underlying allegedly retaliatory action in order to satisfy the very liberal pleading requirements of the Wisconsin Fair Employment Act (WFEA), and the available information shows that the complainant had already articulated at least the general basis for his belief that he'd been the victim of WFEA retaliation at or near the date of his termination. As a result, it must be concluded that the dispute engaged in by the complainant and respondent relating to his post-termination open records requests did not deprive the complainant of information necessary for him to formulate his complaint and does not, as a result, justify the untimely filing.

The personal representative appears to contest the failure of the ALJ to convene an evidentiary hearing on the subject motion to dismiss. The ALJ, however, is not required to do so in the absence of a request by a party for such a hearing, and the personal representative does not assert that such a request was presented to the ALJ.

The personal representative also appears to argue that the respondent cannot claim surprise because the complainant had filed a complaint with the U.S. Department of Labor on or around April 26, 2000. However, it is irrelevant whether respondent was or was not surprised. The requirement is that a WFEA complaint be filed within 300 days of the date the subject retaliation occurred unless a reason exists for the filing deadline to be equitably tolled. Awareness by a respondent party that the complainant believes that he has been retaliated against, or that the complainant intends to file a complaint, does not satisfy the test for equitable tolling.

The personal representative argues that the filing should be rendered timely through operation of the doctrine of continuing violation. However, there are at least two fundamental flaws in this argument. First of all, complainant has never alleged as a basis for this complaint or any other equal rights complaint any of the acts of retaliation which allegedly occurred subject to his termination. Second, an allegation of termination stands alone, i.e., a termination is regarded as a discrete and completed personnel action which may not be rendered timely through its possible connection to other personnel actions. See, Josellis v. Pace Industries, ERD Case No. CR200100081 (LIRC June 21, 2002). The continuing violation doctrine is clearly not applicable here.

The personal representative claims in his petition that post offices were closed on the 300th day, i.e., November 13, 2000, and, as a result, filing was not required until the next day, the date of actual filing. However, the personal representative has not offered any evidence to rebut or even address respondent's contention that post offices were not closed on November 13, 2000. The personal representative goes on to argue that, because 2000 was a leap year, this "added one additional day to the tolling." Although it isn't clear what is meant by this, it appears that the argument here is that the subject complaint was actually filed on the 300th, not the 301st, day. However, a review of the calendar for 2000 reveals that November 14, the date of filing, was the 301st, not the 300th, day.

Finally, the personal representative contends that complainant's cancer prevented him from timely filing his complaint. However, the letter from complainant's treating physician upon which the personal representative is relying, does not indicate that complainant's illness and treatment rendered him unable to timely file this complaint. Instead, this letter states that complainant's illness and treatment seriously impaired his ability to function during much of the interval between March 9, 2000, and May 18, 2001. This letter does not specify the degree of impairment or the actual time period during which the impairment existed. Moreover, complainant's actions indicate that he was aggressively pursuing his disputes with respondent during much of the 300-day filing period. For example, complainant was filing detailed open records requests and engaging in lengthy correspondence at least through March 25, 2000; he filed a notice of claim with respondent on May 11, 2000; he filed a complaint with the U.S. Department of Labor on or around April 26, 2000; and he actually prepared and mailed the subject complaint, according to the personal representative, on November 9, 2000. These actions by complainant belie the contention that he was unable because of his physical condition to timely file this complaint.

cc: Attorney Oyvind Wistrom

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