SEAN P PARKER, Complainant

TRI-COUNTY MEMORIAL HOSPITAL, INC., 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 record which was before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own.

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

Dated and Mailed March 25, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

This is an appeal from an ALJ's affirmance of a Preliminary Determination dismissing a complaint on the grounds that it was not filed within the Wisconsin Fair Employment Act's 300-day statute of limitations, see, Wis. Stat. § 111.39(1).

The complaint in this matter was filed on June 25, 2010, and it alleged that Tri-County Memorial Hospital, Inc. violated the Wisconsin Fair Employment Act when it terminated Sean Parker from employment "as of August 31, 2009."

June 25, 2010 was 298 days after August 31, 2009. However, while the effective date of the complainant's termination was August 31, 2009, it is not disputed that the complainant was actually given express oral and written notice of his discharge on August 26, 2009. He was specifically advised on that day that he was being placed on a paid leave of absence effective immediately and that his employment would be terminated on August 31, 2009. August 26, 2009, the day on which the complainant was informed that he was being terminated, was 303 days before the filing of the complaint on June 25, 2010.

The complainant relies in part on the argument that the statute of limitations began to run only on the effective date of the complainant's termination. However, it is well established that the 300-day statute of limitations under the WFEA begins to run, with respect to a termination of employment, on the date that the employee is notified that they are being terminated, not on the effective date of the termination. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988). "[T]he 300-day statute of limitations in the Fair Employment Act begins to run when the employer makes the discriminatory decision and communicates it to the employe, not merely when the decision becomes effective". Olson v Lilly Research Laboratories (LIRC, 06/25/92), citing Hilmes.

The complainant's other argument is that the statute of limitations should be deemed to have been equitably tolled.

The commission discussed equitable tolling in Schulke v. Mills Fleet Farm (LIRC, 06/04/10), in which it stated:

"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)...

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)...

The complainant argues that he "was led to believe that Respondent would look in to" the objections he raised to the reasons he was given for his termination on August 26, 2009. He also argues that the respondent hid its real reasons for terminating him, providing varying and different reasons for the decision in the months following the termination, including in November 2009 and again in December 2009.

The ALJ correctly held, citing Schulke, supra, that to invoke equitable estoppel there must be evidence of active steps to prevent timely filing of a complaint, such as hiding evidence or promising not to plead the statute of limitations, and that what the complainant is asserting does not constitute this. The commission agrees with the ALJ that the alleged promise to look into the complainant's disagreement with the reasons for his termination did not include any request not to file a complaint or even any indication that an investigation could result in reversal of the discharge. It also agrees with the ALJ's observation that there is no basis to find that any changes to or supplementation of the explanation for the discharge interfered in any way with the complainant coming to the conclusion that discrimination had occurred.

The commission is also unpersuaded by the complainant's argument that the statute of limitations should be tolled because the respondent allegedly hid the real reasons it terminated the complainant. As early as October 7, 2009, just 6 weeks after he was informed of his termination, the complainant had already retained counsel, and that counsel was informing the respondent that they believed the complainant had been disparately treated and terminated in violation of the WFEA. If the respondent took any active steps to prevent the complainant from arriving at the conclusion that he had been discriminated against, it would be only during this short period of time after that termination that this would be relevant. However, the complainant does not persuasively explain what the respondent allegedly did during this period of time that managed to prevent him from forming the opinion that he had been discriminated against. Nor does he explain how, if he indeed had been prevented from forming that opinion by something the respondent did, he then came to form that opinion by early October.

The commission does not believe that anything the respondent did was responsible for the complainant not coming to the opinion that he had been discriminated against. Indeed, the commission finds it to be more likely that the complainant was of the opinion that he had been discriminated against from the very first point at which he was informed of his termination on August 26. Given the facts and circumstances here it sees no basis for applying the doctrine of equitable tolling, and for that reason it affirms the decision of the ALJ.

cc:
Attorney Jessica T. Kirchner
Attorney Thomas H. Taylor

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