Wis.LIRC ER Decision: Osegard - August 13, 1998 - Statute of limitations - Mental illness tolling statute of limitations, attorney allegedly negligent

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

SHERRIE OSEGARD, Complainant

WISCONSIN PHYSICIANS SERVICE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702741, EEOC Case No. 26G971601

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 modification:

The following is appended to the end of the first paragraph of the administrative law judge's decision:

"In an amended complaint filed on December 15, 1997, the complainant also alleged that her discharge on February 5, 1996 was because she had reported sexual harassment on the part of her supervisor."

DECISION

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

Dated and mailed: August 13, 1998
osegash.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 makes the argument that, although her complaint was untimely, the statute of limitations should be extended in her case. First, the complainant contends that her psychological condition did not permit her to file a timely complaint. In support of this contention, the complainant submits a letter signed by her consulting psychologist, who opines that during the last months of 1996 and the beginning months of 1997 the complainant suffered from depression which was the cause of sleep difficulties, tearfulness, physical complaints, bad dreams, and short-term memory loss.

Mental illness tolls a statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and thus from understanding his legal rights and acting upon them. Miller v. Runyon, 5 AD Cases 415, 417 (7th Cir. 1996). Assuming there are circumstances under which mental illness might toll the statute of limitations for filing a complaint under the Wisconsin Fair Employment Act (hereinafter "WFEA"), the commission is unable to conclude that such circumstances exist in this case. Nothing in the psychologist's description of the complainant's symptoms suggests that the complainant's depression prevented her from understanding her legal rights and acting upon them, and the commission sees no reason to believe this was the case. To the contrary, in the "overview of events" prepared by the complainant, she indicates that in February of 1997, during the period when her depression was at its most severe, she met with Congressman Gunderson's Chief of Staff about filing a complaint regarding her application for family and medical leave and, further, attended a worker's compensation hearing. The commission further notes that the 300-day filing period in this case began to run on February 5, 1996, well before the complainant manifested the adverse symptoms described by her psychologist. Given these circumstances, the commission sees no reason to conclude that the complainant's depression rendered her incapable of filing a WFEA claim during the 300-day filing period.

The complainant also argues that the statute of limitations should be extended because, although she trusted her attorney to handle all of her legal affairs, he failed to provide her with effective representation. The commission is similarly unpersuaded by this argument. To begin with, it is unclear from the complainant's "overview of events" whether the complainant ever told her attorney she believed she had been discriminated against or that she wanted him to file a discrimination complaint on her behalf, and it appears that the attorney was retained primarily for the purpose of representing the complainant with respect to a worker's compensation claim. Further, the complainant's "overview" suggests that she had no contact with her attorney for an entire year after their second meeting, and the complainant does not contend that she ever asked the attorney to update her on the status of her discrimination claim. While the attorney is expected to take the initiative in filing a discrimination complaint for his client, the complainant is also charged with some responsibility for protecting her rights. See Jacobson v. Pitman-Moore, Inc., 624 F. Supp. 937, 39 FEP Cases 1274 (D. Minn. 1985), aff'd without opinion, 786 F.2d 1172, 44 FEP Cases 928 (8th Cir. 1986). Although her attorney may have indicated he would handle her legal affairs, the complainant was not justified in taking a completely passive approach after retaining legal counsel.

Finally, even if it could be found that the complainant's attorney was negligent in his representation of her and that the complainant did not share any responsibility for his failure to file a timely discrimination complaint on her behalf, the commission is nonetheless unpersuaded that this is a matter which would permit tolling of the statute of limitations. While it may not be fair for the complainant to suffer because of the negligence of her attorney, it is similarly inequitable to penalize the respondent for that negligence. (1 ) Consequently, the commission believes that the complainant's remedy for negligent legal representation must lie elsewhere.

For the reasons set forth above, the commission sees no basis to extend the statute of limitations in this case and believes that the complainant's request for such an extention must be denied. Accordingly, the administrative law judge's dismissal of the complaint is affirmed.

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Footnotes:

(1)( Back ) "The statute of limitations is short . . . in most employment cases because delay in the bringing of suit runs up the employer's potential liability; every day is one more day of backpay entitlements. We should not trivialize the statute of limitations by promiscuous application of tolling doctrines." Cada v. Baxter Healthcare Corp., 54 FEP Cases 961, 965 (7th Cir. 1990).