STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

CHRISTOPHER P VAN DEREL, Complainant

KETTLE MORAINE HARDWOODS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201402845, EEOC Case No. 26G201500039C

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.

DECISION

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

Dated and mailed April 30, 2015
vandech_rsd . doc : 107 :  711.3

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


MEMORANDUM OPINION


The complainant petitioned for commission review of an ALJ's decision which affirmed a Preliminary Determination by the Equal Rights Division, dismissing his complaint on the grounds that it was not filed within the statute of limitations of the Wisconsin Fair Employment Act (WFEA). Under Wis. Stat. § 111.39(1), a complaint of employment discrimination must be filed no more than 300 days after the alleged discrimination occurred.

The time period to file a complaint begins to run when the facts that would support a charge of discrimination become apparent to the complainant, or should have become apparent to a person with a reasonably prudent regard for his or her rights. Anchor v. State of Wisconsin, Dept of Workforce Development, ERD Case Nos. CR200501702 & CR200504414 (LIRC Jan. 4, 2012). According to the complaint, the complainant became aware that his employment was being terminated, and was aware of the facts that supported his allegation that his termination was an act of disability discrimination, no later than September 16, 2013, when he received a letter from the respondent informing him of the termination. The 300 days to file his complaint, then, began to run on September 16, 2013. The 300th day after September 16, 2013 was July 13, 2014. The complaint was not filed until September 12, 2014, the 361st day after September 16, 2013.

The Equal Rights Division issued a Preliminary Determination informing the complainant that his complaint was being dismissed for untimely filing. The complainant appealed the Preliminary Determination, but did not present any explanation in his appeal for missing the filing deadline. The ALJ, affirming the dismissal, noted that under certain circumstances the 300-day time limit for filing a complaint can be extended, or "tolled," but observed that the complainant had raised no arguments addressing timeliness. In his petition for commission review, the complainant addressed this issue for the first time.

The complainant attributed the lateness of his complaint to three factors. First, he alleged that shoulder surgery on November 11, 2013, along with pain and months of physical therapy caused him to miss the filing deadline. Second, he alleged that in the year following his termination he dealt with anxiety and depression, which made it difficult for him "to make the decision to file a complaint." Third, he mentioned that on some unspecified date he contacted the Equal Rights Division and thought he was told that he had a year to file a complaint. The complainant provided no documentation of his physical or mental condition, and no detail concerning the contact with the Equal Rights Division.

The deadline for filing complaints under the WFEA is subject to being extended through the principles of equitable tolling and equitable estoppel. See Schulke v. Mills Fleet Farm, ERD Case No. 201000011 (LIRC June 4, 2010). Equitable tolling may be appropriate when a complainant's failure to comply with the statute of limitations is attributable to his or her medical condition, but only if it is established through medical evidence that because of the condition the complainant was "entirely incapable of bringing a legal action." Kiefer v. Caring Alternatives, LLC, ERD Case No. CR201002702 (LIRC Apr. 29, 2011); Brantner v. Goodwill Industries, ERD Case No. 200901415 (LIRC Feb. 19, 2010); Wilson v. Doskocil Foods, ERD Case No. CR200202555 (LIRC July 30, 2003). The medical evidence must show that the incapacity lasted essentially throughout the filing period, leaving the complainant unable, during any periods of capacity, to file a timely complaint. Durham v. Emjay Corp., ERD Case No. 199604888 (LIRC Mar. 26, 1997); Wilson, supra. A complainant's vague and conclusory statements, without a particularized description of how a medical condition adversely affected the capacity to function, are not sufficient. Schulke, supra.

The complainant's references to his physical and mental condition do not meet the legal standard for equitable tolling. First, he did not support his statements with any medical documentation. Second, he did not provide a particularized description of how his medical conditions made him entirely incapable of bringing a legal action. The complainant's having shoulder surgery two months after termination, his being in pain, and his experiencing months of physical therapy, fail to demonstrate an inability to engage in the acts of obtaining an Equal Rights Division complaint form, completing it, and mailing or delivering it to the Equal Rights Division. As to the complainant's references to depression and anxiety, he did not allege that they made him incapable of functioning or of understanding his right to file a complaint, but that they made it difficult for him to make the decision to file. Indecisiveness does not meet the standard required for extending the filing deadline. Third, the complainant did not provide an explanation of the duration of his physical and mental disabilities sufficient to support a conclusion that they lasted essentially throughout the 300-day filing period. For these reasons, the commission concludes that the complainant has not shown a basis for extending the filing deadline due to medical incapacity.

Equitable tolling may also be appropriate when the untimeliness of a complaint was due to some error of the agency. Schulke, supra. The complainant's reference to making contact with someone at the Equal Rights Division, and his thought that the employee told him he had a year to file a complaint, however, is too vague to support equitable tolling. The complainant did not make a definite claim that the employee told him that he had a year to file; instead he said only that he thought the employee told him he had a year. The complainant then did not make clear the extent to which he relied on what he thought he was told-instead, he fell back on his own confusion as the reason for his late filing: "This is why I filed late, I have not been able to focus and be of right mind." Finally, he failed to state when his contact with the Equal Rights Division was made; it may have been made after the 300-day period already lapsed, in which case it would have been irrelevant.

The commission concludes that complainant's reference to his contact with the Equal Rights Division, like his reference to his medical condition, is insufficient to extend the filing deadline.

Therefore, the commission affirms the decision of the ALJ.


cc: Attorney Timothy C. Kamin

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