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

SANDRA L GRUHLE, Complainant

RANDOM LAKE SCHOOL DISTRICT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702881, EEOC Case No. 260970875

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 modifications:

The administrative law judge's ORDER is deleted and the following is substituted therefor:

"That the complaint in this matter is dismissed with prejudice."

DECISION

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

Dated and mailed: June 19, 1998
gruhlsa.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that, had she been aware of the EEOC Guidelines, she certainly would have pursued her position. The complainant maintains that she did not know the district was required to accommodate her needs until she read the Social Security application in November of 1996. She also contends that the 300-day filing requirement for filing an EEOC complaint is not a commonly known parameter. The complainant is evidently arguing that the statute of limitations should be tolled based upon her ignorance of the law. Her argument lacks merit. While "excusable ignorance" may toll a statute of limitations, excusable ignorance does not mean ignorance of all the filing periods and technicalities contained in the law, nor does it mean ignorance of specific guidelines, such as those issued by the United States Equal Employment Opportunity Commission. Rather, the question to consider is whether the complainant was generally aware that she had a legal right to be free from discrimination. See Olson v. Lilly Research Laboratories (LIRC, June 25, 1992). The complainant's assertions that she was ignorant of her rights are unpersuasive, for the reasons set forth below.

In her complaint the complainant alleged that she repeatedly requested reasonable accommodations for her handicap prior to her resignation, suggesting that the complainant was, in fact, aware of her legal right to be free from handicap discrimination. Indeed, in earlier correspondence to the department the complainant asserted that she was aware of the Americans With Disabilities Act but presumed it did not apply to her. It is, therefore, clear that the complainant was aware of the existence of laws prohibiting discrimination, and her incorrect assumptions about the applicability of the law to her case do not serve to extend the filing period for the complaint. Moreover, the complainant originally asserted that the reason she did not file a timely complaint was because it would have been "akin to professional and economic suicide" to do so, from which the commission infers that the complainant knew she could file a complaint but consciously elected not to. Based upon the foregoing, the commission is in agreement with the administrative law judge that the complainant's untimely complaint should be dismissed.

NOTE: The administrative law judge concluded that the Division lacked jurisdiction over the complaint because it was not filed within the statutory time limits. However, the 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, January 16, 1998); Ault v. Allen Bradley Co. Inc. (February 5, 1998). The commission has modified the administrative law judge's order to eliminate the reference to a lack of jurisdiction.

cc: Jeffrey A. Schmeckpeper

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