WILLIAM R SCHULKE, Complainant

MILLS FLEET FARM, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal which dismissed the complainant's complaint in the above-captioned matter. The complainant filed a timely petition for commission review of the matter.

Based on it review, and for the reasons stated in the attached Memorandum Opinion, the commission agrees with the ALJ's Order of Dismissal and adopts it as its own, except that it makes the following modification:

The date "October 10, 2010", which appears near the bottom of the last paragraph on the first page of the Order of Dismissal, is deleted and the date "October 10, 2008" is substituted therefor.

Accordingly, the Labor and Industry Review Commission therefore issues the following:

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

Dated and mailed June 4, 2010
schulwi . rpr : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

The complainant, William Schulke, appeals from the ALJ's dismissal of his complaint following his appeal from a Preliminary Determination and Order which had dismissed his complaint. The Preliminary Determination and Order found that Schulke's complaint did not meet the timeliness requirements of the Wisconsin Fair Employment Act.

Schulke's complaint was received by the department on December 14, 2009. In the complaint, Schulke alleges that he was discriminated against on the basis of sex (male) and because he opposed discrimination in the workplace. Schulke states that he worked as a technician in the garage at the respondent and that in September 2007 a female was made Department Head of the Garage. Schulke states that on September 25, 2008, he received a 3-day suspension after being questioned about a number of incidents by the respondent's Loss Prevention Manager and that on October 10, 2008, the respondent's Regional Manager terminated his employment because he (Schulke) had supposedly stated he was going to get the Department Head of the Garage fired. Schulke alleges that he was harassed and discriminated against by the Department Head of the Garage and that he feels this happened because he "refused sexual advances from her. So she was trying to get rid of me." Further, Schulke states that he knew his job was in jeopardy when he got the 3-day suspension on September 25, 2008, and that he told management employees that the Department Head of the Garage "has never liked me and was trying to get me fired because I refused sexual advances from her."

The WFEA provides that the department may receive and investigate a complaint charging discrimination if the complaint is filed with the department no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). The 300-day period in which to file a complaint of discrimination is not a statute concerning subject matter jurisdiction, but a statute of limitations which may be waived. County of Milwaukee v. LIRC, 113 Wis. 2d 199, 205 (Ct. App. 1983). The respondent timely raised the statute of limitations affirmative defense after receiving the department's notice that Schulke had filed a complaint.

As correctly noted by the ALJ, the statute of limitations 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 (citing Washington v. United Service (LIRC, 08/15/03)). Facts that would support a charge of discrimination were apparent to Schulke at the time of his termination on October 10, 2008. As noted above, Schulke admits in his complaint that he knew his job was in jeopardy when he got the 3-day suspension on September 25, 2008, and that he told management employees that the Department Head of the Garage had never liked him and was trying to get him fired because he refused her sexual advances. Thus, the 300-day period began to run on October 10, 2008, which made August 6, 2009, the last day in which Schulke could file a timely complaint.

Schulke has indicated in correspondence sent to the department dated January 27, 2010, that: (1) after his discharge he twice contacted a manager at the respondent and informed the manager that an employee "could clear my name" but received no response; (2) he did call " 'Work Force Development' and explained the situation; at the time the gentleman did not think he could help me"; (3) after not receiving a response from the manager the second time he then asked the manager "to meet with upper management for me and received no response"; and (4) after that he was diagnosed with cancer.

Schulke appears to suggest that the respondent, an individual at "Work Force Development" and his health were all contributing factors in his failure to file his complaint within the 300-day limitations period. While a complainant may avoid the bar of the statute of limitations under the doctrines of equitable estoppel and equitable tolling, neither of those doctrines is applicable here.

"Equitable estoppel -- sometimes referred to as fraudulent concealment -- 'comes into play if the defendant takes active steps to prevent the plaintiff from suing in time,' such as by hiding evidence or promising not to plead the statute of limitations." Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir. 1995) (internal citation omitted). Furthermore, among other things, the granting of equitable estoppel should be premised upon (1) "a showing of the plaintiff's actual and reasonable reliance on the defendant's conduct or representations" and (2) "evidence of improper purpose on the part of the defendant or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct." Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284 (7th Cir. 1986) (internal citation omitted). Schulke's assertions fail to support a showing of any conduct by the respondent which prevented him from filing his complaint until December 14, 2009, any conduct or representations made by the respondent which he actually and reasonably relied upon as reason for not filing his complaint until December 14, 2009, or any evidence of improper purpose on the part of the respondent.

Equitable tolling comes into play where a plaintiff, despite due diligence, is unable to obtain vital information bearing on the existence of his claim, i.e., he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant. Cada v. Baxter Health Care Corp., 920 F.2d 446 (7th Cir. 1990). Again, the assertions made by Schulke in his complaint indicate that he possessed vital information bearing on the existence of his claim on October 10, 2008.

Courts have also applied equitable tolling when the untimeliness of the complaint was due to errors by the fair employment practice agency. See, e.g., Chappel v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979)(equitable modification is appropriate when EEOC misleads complainant about the nature of his rights under Title VII). The correspondence submitted by Schulke fails to support a showing that he was misled about his rights by the Equal Rights Division. In fact, correspondence the ERD received from Schulke on February 17, 2010, indicates that his first contact with the ERD was after the 300-day limitations period had passed. In the February 17 correspondence, Schulke states that: After telling management to talk to an employee in order to clear his name he then contacted "a work force division" and at that time they did not believe they could help me; and, after receiving no response to his request to meet with upper management "Next I found the Department of Workforce Development Equal Rights Division and contacted them only to find out time had expired." (Underlining emphasis added.)

Courts have also held that equitable tolling may be appropriate where the plaintiff's failure to comply with the statute of limitations is attributable to the plaintiff's medical condition. Brown v. Parkchester S. Condominiums, 287 F. 3d 58 (2d Cir. 2002). However, equitable tolling due to an alleged medical condition is denied where the plaintiff makes a "conclusory and vague claim, without a particularized description of how [his] condition adversely affected [his] capacity to function generally or in relationship to the pursuit of [his] rights." Boos v. Runyon, 201 F.3d 178 (2d. Cir. 2000). Here, Schulke has neither stated when he was diagnosed with cancer, nor submitted any medical documentation with information regarding his diagnosis of cancer and how it affected his capacity to function generally or in relationship to the pursuit of his rights.

Finally, Schulke has also asserted that he did not know there was a deadline for filing a complaint. However, ignorance of one's own rights does not suspend the operation of a statute of limitations. Hilmes v DILHR, 147 Wis. 2d 48, 55-56 (Ct. App. 1988).

cc: Attorney Christopher J. Harristhal

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