MAXINE CARSON, Complainant

PREMIER MEDICAL STAFFING SERVICES LLC, 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, except that it makes the following modifications:

The second paragraph of the decision is deleted.

The last two paragraphs of the decision (the paragraph starting on the bottom of page 2 of the decision and continuing onto page 3, and the following paragraph on page 3) are deleted.

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

Dated and mailed May 7, 2010
carsoma . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

On September 17, 2007, the complainant filed with ERD a charge of race/color discrimination against the respondent (Case No. CR200703344). The adverse actions which formed the bases for this charge were the suspension of her employment the week of July 29, 2007; and allegedly negative employment references provided by the respondent. In this charge, the complainant states:

So when they [the respondent] find out about this, I will be terminated.

The complainant corresponded with ERD in regard to this 2007 charge on November 25, 2007. In this correspondence, the complainant stated, as relevant here:

...They gave [white employee] days and told me wasn't anything available. They gave [white employee] 40 hrs a week and I had 8, or 16-24 hrs a week. I believe that's discrimination....

Now I didn't get any warning I was discharged until I spoke with Unemployment on 11/20/07...

[As the remedy I am seeking], [e]ither Premier reinstate me or pay me for unjustly treatment.

The present charge was filed on August 25, 2009, and alleges that the complainant was retaliated against for engaging in a protected fair employment activity, i.e., the filing of the earlier charge in September 2007. The adverse action alleged in this charge was the respondent's failure to offer the complainant any work after September 2007.

The respondent argues that it discharged the complainant on September 17, 2007, and, consequently, her 2009 charge of retaliation was filed outside the 300-day actionable period.

The department issued a preliminary determination finding that the complainant's 2009 charge was not timely filed, and, in a decision issued on March 18, 2010, an ERD ALJ affirmed this preliminary determination.

The Wisconsin Fair Employment Act requires that a complaint be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite to suit. It is a statute of limitations subject to waiver, estoppel and equitable tolling. Milwaukee County v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).

The 300-day filing period begins to run when the facts that would support a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for his or her rights. See, Washington v. United Water Service, ERD Case No. CR199902104 (LIRC Aug. 15. 2003); Lange v. Federal Express, ERD Case No. 9002040 (LIRC, Feb. 22, 1993); Oehlke v. Moore-O-Matic, ERD Case No. 8401191 (LIRC July 26, 1988).

The date the filing period begins to run is not necessarily the date of the adverse action, but is instead the date the complainant discovers she has been injured. See, Lange, supra.; Williams v. Four Points Sheraton Hotel, ERD Case No. CR200702147 (LIRC March 21, 2008).

Here, the complainant appears to be arguing that, as far as she knew, she was not in fact ever discharged by the respondent but remained on active status at least until January 18, 2009; and, on that date, during the ERD hearing on her earlier charge (Case No. CR200703344), she first became aware of her discharge and first had reason to believe that this discharge had been retaliatory. Consequently, according to the complainant, the retaliation charge she subsequently filed on August 25, 2009, was timely filed.

However, the information provided by the complainant herself belies this argument. As set forth above, the complainant admits that she was aware no later than November 20, 2007, that the respondent considered the employment relationship to have been severed, and the resulting separation to have been a discharge. After that date, there would have been no reason for the complainant to have considered the employment relationship to be a continuing one. The complainant acknowledges this in her November 25, 2007, correspondence to ERD in which one of the remedies she requests is reinstatement. Moreover, as demonstrated by her own words, the complainant would have had reason to believe in November 2007 that she had been retaliated against. Specifically, the complainant states in her September 2007 charge, as set forth above, "So when they [the respondent] find out about this, I will be terminated." This statement by the complainant does not support her contention that, until the January 2009 hearing, she did not believe, and had no reason to believe, that she had been the victim of unlawful retaliation. See, Rheaume v. State of Wisconsin, ERD Case No. 200603362 (LIRC May 23, 2008). See, also, Ringle v. Milwaukee Board of School Directors, ERD Case No. 200504613 (LIRC April 27, 2006), citing Ferrill v. City of Milwaukee, 295 F.Supp.2d 920 (2003)(a plaintiff's action accrues when he discovers he has been injured, not when he determines the injury was unlawful).

Accepting, for purposes of this analysis, that November 20, 2007, was the actionable date from which the 300-day filing period should be measured, rather than the September 17, 2007, date of discharge asserted by the respondent, the complainant's charge would still not have been timely filed, i.e., August 25, 2009, is 644 days after November 20, 2007.

Finally, the complainant appears to argue that the respondent's admission to the alleged retaliation at the January 2009 hearing somehow tolls the running of the statute of limitations for the charge under consideration here. It does not. A fact of which the employee had no reason to be aware during the 300-day filing period cannot have affected her actions or inactions during this filing period. This alleged admission first came to the complainant's attention in January 2009 and could not, as a result, have led to her inaction during the November 2007-September 2008 filing period.

The complainant's charge is required to be dismissed because it was not filed within the 300-day actionable period.

cc: Attorney Barry L. Chaet

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