STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WENDY BUTKE (GUILD), Complainant

CUSTARD'S LAST STAND, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603366

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, except that it makes the following modification:

In the second sentence of paragraph 5 of the FINDINGS OF FACT, the number "320" is deleted and the number "321" is substituted therefor.

DECISION

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

Dated and mailed: January 27, 1998
butkewe.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Section 111.39(1) of the Wisconsin Statutes requires that a complaint of discrimination be filed no more than 300 days after the alleged discrimination occurred. The date on which an act of unlawful discrimination occurs is when the employer acts and the employe knows about it. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).

The ALJ held in this case that the complainant was aware of the alleged handicap discrimination by the respondent on September 21, 1995, that she did not file her complaint of discrimination until August 7, 1996, that she failed to file her complaint of alleged discrimination within the 300-day statute of limitations period, and that she failed to establish any basis for tolling the statute of limitations.

On appeal, the complainant continues to cite her various problems (both medical and nonmedical) as cause for her failure to file her complaint timely. However, the evidence shows, as found by the ALJ, that:

"During the 300 days after the last date of alleged discrimination, Butke lived independently and was legally responsible for her own care for substantial periods of time. She made decisions regarding her medical care, arranged for disability assistance and foster home placement, and even attended vocational school. For the vast majority of the 300 days after the alleged discrimination occurred, Butke was capable and competent to act to file a complaint against the Respondent. Even though she was in foster care for just over five months, Butke has not proven that she was medically incapable of taking action regarding her complaint or that she was in any way totally incapacitated from acting on her legal interests. She demonstrated that she was competent to make and follow up on medical treatment plans and that she was competent to arrange a change in her foster home placement during that time period."

(Finding of Fact 11)

The complainant also apparently asserts that she would have presented at the hearing a "note" that a Dr. Wilfong had written to the respondent but for the respondent's objections which led to the rejection of other evidence that she had attempted to enter into the record. The contents of this note is not known. In any case, since the complainant had not submitted notice 10 days prior to the hearing of any exhibits (or witnesses) which she intended to use at the hearing as required by Wis. Admin. Code ILHR 218.17, it is likely that an objection would have been raised and this note also excluded.

Further, the complainant apparently asserts that she would have had Dr. Wilfong and another physician testify in her behalf at the hearing since they had said that they would help her in any way they could, but she understood the doctors to have said that she needed "some kind of paper from an attorney." In addition, she asserts that she mentioned this to the ALJ but "don't recall him ever telling me that I could (subpoena) the doctors because I thought they had to have this special paper from an attorney and I couldn't get an attorney." This argument also fails. The case file shows that following a telephone conversation with the complainant on September 24, 1997, the ALJ sent her a letter dated September 30, 1997, reminding her of the need to exchange witness names and copies of the exhibits with the respondent at least 10 days prior to the hearing, and also specifically advising her that if she had any procedural questions to feel free to contact the department. The case file also shows that the department sent to the complainant a list of attorneys who might assist her with her case.

Accordingly, the commission has affirmed the ALJ's dismissal of the complainant's complaint.

cc: Shirley May

Appealed to Circuit Court.  Affirmed June 29, 1998.

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