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

BEN ROWRY, Complainant


ERD Case No. CR200502585, EEOC Case No. 26GA501900

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 January 13, 2006
rowrybe . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


An incomplete charge, signed by the complainant on July 7, 2005, and postmarked July 6, 2005, was received by the department on July 8, 2005. In attempts to properly perfect the charge, the complainant filed additional complaint forms with the department on July 18, 2005 (signed July 15, 2005), July 25, 2005 (unsigned), and August 8, 2005 (signed August 4, 2005).

On these forms, the complainant stated that the last date he was discriminated against was September 7, 2004.

ERD issued a preliminary determination on October 7, 2005, dismissing the complainant's charge for failing to satisfy the statutory 300-day filing requirement. The complainant appealed this determination and, in a decision issued on December 9, 2005, an administrative law judge (ALJ) affirmed the dismissal. The complainant filed a timely appeal of the ALJ's decision with the commission

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); Kanter v. Ariens Co., ERD Case No. 200205229 (LIRC Sept. 23, 2005).

Since "filing" means the physical receipt of a document (Wis. Adm. Code § DWD 218.02(6)), the date of filing here is July 8, 2005, the date that the complainant's original, although incomplete, complaint form was received by ERD. Wis. Adm. Code § DWD 218.03(2).

July 8, 2005, is 304 days after September 7, 2004, the date the complainant cites as the last day he was discriminated against by the respondent. Clearly, as a result, the complainant's charge was filed outside the 300-day filing period.

The complainant asserts in his appeal to the commission that he sent an appeal letter on or about June 7, 2004. It is clear from other statements in his appeal, however, that he sent this letter to the respondent in an attempt to avoid termination, not to ERD or to any other authorized agency.

The complainant also encloses copies of correspondence relating to a consumer complaint he filed against the respondent with the Attorney General of Illinois. However, the Attorney General of Illinois does not have a work sharing agreement with ERD, or any other authority for accepting filings under the Wisconsin Fair Employment Act (WFEA), and filing a complaint with a consumer protection agency in another state does not otherwise satisfy the requirements for filing a WFEA complaint with the Equal Rights Division of the State of Wisconsin

The complainant also asserts in his appeal that he "did not know who to appeal to." 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); Van Deraa v. Asten Johnson, ERD Case No. CR200404531 (June 30, 2005).

Finally, the complainant argues that the respondent "stalled my appeal and that constitutes fraud." What the complainant is apparently referring to is the respondent's failure to forward his letter of June 7, 2004, to ERD. Equitable estoppel, sometimes referred to as fraudulent concealment, occurs where an employee is aware of his rights but does not make a timely filing due to his reasonable reliance on his employer's misleading or confusing representations or conduct. See, Josellis v. Pace Industries, Inc., ERD Case No. CR200100081 (June 21, 2002); Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir. 1995)(equitable estoppel comes into play if the defendant takes active and intentional steps to prevent the plaintiff from suing in time). The respondent had no duty to serve as the complainant's advocate or agent. Moreover, the complainant does not assert that the respondent provided misinformation to him about the complaint filing process or otherwise misled him in regard to this matter. As a result, the elements required for application of the doctrine of equitable estoppel are not present here.

cc: Attorney Miles S. Mittelstadt

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