JEFF DAVID VAN DERAA, Complainant
ASTEN JOHNSON, 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 June 30, 2005
vandeje . rsd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant represents that he first learned in December of 2004 from OSHA that the respondent "had an overexposure record of a hazardous chemical" which had not previously been disclosed to him.
The complainant filed this charge on December 17, 2004, alleging that he had been retaliated against for engaging in activities protected by WERKL when he was disciplined and then discharged by the respondent on June 16, 2003.
Pursuant to Wis. Stat. § 111.322(2m), as relevant here, it is an act of employment discrimination to discharge or otherwise discriminate against any individual because he files a complaint or attempts to enforce any right under WERKL. Presumably, the 300-day filing requirement stated in Wis. Stat. § 111.39(1) would apply to charges filed pursuant to this provision.
The final act of retaliation alleged by the complainant was his discharge on June 16, 2003. This was clearly more than 300 days prior to the date he filed the charge of retaliation at issue here, i.e., December 17, 2004.
Although the 300-day filing period is subject to equitable tolling, (1) the complainant has failed to offer any persuasive reason which would justify doing so here.
The complainant asserts that he was unaware until November of 2004 of his right to file a charge of retaliation based upon his exercise of rights under WERKL. However, 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); Jackson v. Aurora Health Care, ERD Case No. CR200400680 (LIRC Aug. 24, 2004).
The complainant also appears to be arguing that he did not believe that the respondent had acted improperly until he received notice in December of 2004 that the respondent "had an overexposure record of a hazardous chemical."
First of all, the statute of limitations in an equal rights case begins to run when the complainant receives actual or constructive notice of the allegedly discriminatory adverse employment action, not when the complainant forms a belief that he was discriminated against when this action was taken. See, Hilmes v. DILHR, 147 Wis.2d 48, 433 N.W.2d 251 (Ct. App. 1988) (discrimination occurs when the employer acts and the employee knows about it); Maynard v. Cummins, ERD Case No. CR200204705 (LIRC Jan. 28, 2004). The complainant received notice of his termination on or before June 16, 2003, and the limitations period would begin to run on that date as a result.
Moreover, the belief that the complainant asserts he first formed in December of 2004 is apparently not the belief that he had been retaliated against when he was disciplined and discharged by the respondent, the only basis for invoking the jurisdiction of the ERD and the commission here, but instead the belief that the respondent had violated WERKL by withholding from him information as to the nature and level of substances to which he had been exposed.
cc: Attorney Gregory B. Gill, Sr.
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