GREGORY B JACKSON, Complainant
AURORA HEALTH CARE, 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 August 24, 2004
jacksgr . rsd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant filed his charge of race and disability discrimination on February 12, 2004, and an amended charge on February 23, 2004. In the original charge, the employee identified the subject adverse employment action as the rejection of his employment application prior to interview, and stated that he learned of this rejection on March 14, 2003, in a conversation with one of the respondent's recruiters. In the amended charge, the complainant stated that, "On 3/14/03, 1 was informed by one of the recruiters that they decided not to proceed any further because they didn't like the way that I answered a couple of questions."
The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. See, Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983); Mittelsteadt v. AJ Air Express (LIRC Jan. 16, 1998); Ault v. Allen Bradley Co. Inc. (LIRC Feb. 5, 1998). The complaint here was filed 335 days after 3/14/03.
In his March 6, 2004, argument to the department, the complainant contends that he was "wrongfully operating on the premise that the complaint needed to be filed within 335 days from the respondent's decision." The complainant does not explain how he formed this impression, and at no time states that the respondent provided this misinformation to him. Ignorance of the law does not toll the statutory filing period. Gruhle v. . Random Lake School District, ERD Case No. 199702881 (LIRC June 19, 1998). Moreover, the elements required for application of the doctrine of equitable estoppel are not present here.
The complainant also asserts in this argument that he consulted an attorney within the 300-day filing period, but was unable to afford to have this attorney file his complaint, and that he misplaced the relevant paperwork during his move in the summer of 2003. However, the complainant was not required to be represented by an attorney in order to file a charge of discrimination with the department. To the extent that the complainant may be arguing that his attorney was negligent in representing him, it is well settled that an allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations. See, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991), Squires v. Montex, Inc. (LIRC March 15, 2002), Johnsrud v. Prairie du Chien Memorial Hospital, ERD Case No. 200100738 (LIRC June 21, 2002). In addition, there is no basis for tolling the statutory limitations period due to the complainant's carelessness in misplacing relevant forms or documents.
In his petition for commission review, the complainant argues for the first time that, because the respondent did not complete the recruitment process set out in its written policies by conducting a drug screening of the complainant, his application was not yet ripe for rejection and is still open as a result, and the limitations period could not have started to run.
However, the operable date from which the limitations period here would run is not dependent on completion by the respondent of the steps or formalities of the application/ selection process (Gholar v. Time Warner Cable, ERD Case No. 199803759 (LIRC July 8, 1999)), or on realization of the effects of this process (Belli v. Village of Greendale, ERD Case No. 199701509 (LIRC Dec. 15, 1998)), but instead on the date that the complainant was made aware that the respondent did not intend to hire him. The complainant acknowledges that this occurred on March 14, 2003.
To the extent that the complainant may be arguing that the limitations period should have been tolled because the subject employment action constituted a continuing violation, discrete employment actions, such as the subject refusal to hire, are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. AMTRAK v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (1); Lau v. Latec Credit Union, ERD Case No. 200103183 (LIRC Feb. 7, 2003).
Attorney Mary Pat Ninneman
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(1)( Back ) The commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues even though, for example, Title VII refers to "practice" while the WFEA refers to "discrimination." See, e.g., Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (LIRC June 21, 2002).