State of Wisconsin

Labor and Industry Review Commission

Michael Young	Public Accommodation Decision^[1]
Complainant
City of Eau Claire, Steve Adams & Tom Wagner
Respondents	Dated and Mailed:
ERD Case No. CR201701796	January 4, 2018
	youngmi1.doc:164

The decision of the administrative law judge (copy attached) is affirmed, subject to modification.  Accordingly, the complaint of discrimination is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner /s/_____________________________________ David B. Falstad, Commissioner

Procedural History

On June 30, 2017, the complainant filed a complaint with the Equal Rights Division (hereinafter “Division”) of the Department of Workforce Development, in which he alleged that the respondent discriminated against him by denying him the full and equal enjoyment of a place of public accommodation or amusement based upon his race.  On July 10, 2017, the respondent filed a statement of position with the Division in which it contended, among other things, that the complaint should be dismissed for failure to comply with the statute of limitations.  The complainant was given an opportunity to respond to the argument that his complaint should be dismissed as untimely, but did not do so.  On September 13, 2017, an Equal Rights Officer for the Division issued a preliminary determination dismissing the complaint on the basis of timeliness.  The complainant filed a timely appeal of the preliminary determination and the matter was assigned to an administrative law judge.  On October 27, 2017, the administrative law judge issued a decision dismissing the complainant’s complaint because it was filed beyond the 300-day statute of limitations.  A timely petition for commission review was filed by the complainant.  

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following:

Modifications

1.  The last paragraph on page 2 of the administrative law judge’s Decision is deleted and the following is substituted therefor:

“The date of the alleged discrimination being July 14, 2016, the last date on which a timely complaint could have been filed was May 10, 2017.  The complainant’s complaint was not filed until June 30, 2017, and was, therefore, untimely.”

2. The first paragraph on page 3 of the administrative law judge’s Decision (the “Decision” paragraph) is deleted, and the following is substituted therefor:

“The complainant’s complaint was not filed with the Equal Rights  Division until more than 300 days after the alleged act of discrimination, beyond the statute of limitations set forth in Wis. Stat. § 106.52(4)(a)(1).”

Memorandum Opinion

In his petition for commission review the complainant argues that it was not quite a year when he filed his complaint.  However, a complainant does not have a full year in which to file a complaint.  Rather, by statute the complaint must be filed no more than 300 days after the alleged discrimination.  By that measure, the complainant’s complaint was untimely.

The complainant also contends that the Equal Rights Division would not accept his complaint any sooner.  He elaborates that the Division returns his complaints and calls the police when he files complaints.  This argument also fails.  The commission has reviewed the case file and sees nothing to indicate that the complainant attempted to file a timely complaint but was prevented from doing so by the Equal Rights Division.

NOTE:     The administrative law judge concluded that the Division lacks jurisdiction over the complaint because it was not filed within the statutory time limits.  However, while the commission agrees with the administrative law judge that dismissal was appropriate, given the untimely filing of the complaint and the objection raised by the respondent, it does not agree that the 300-day filing limit in the Public Accommodations and Amusements Act, Wis. Stat. § 106.52(4)(a), is a jurisdictional requirement.

In a case involving the Wisconsin Fair Employment Act, the court of appeals held that the 300-day filing limit contained in Wis. Stat. § 111.39(1) is not a jurisdictional requirement, but rather a statute of limitations which is subject to waiver, estoppel, and equitable tolling.  Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335 N.W.2d 412 (Wis. Ct. App. 1983).[2]  The court of appeals based its conclusion on a review of the explanatory notes to the budget bill in which the 300-day limit was introduced, which state, in relevant part:

“Equal Rights Cases.  Sections 1007, 1010, 1053 and 1054 of the statutes, relates to the placing a statute of limitations on equal rights cases. . .” 

Based on that note, the court found that it was clear the executive intent behind section 1053 of the budget bill (the provision applying to the Wisconsin Fair Employment Act), was to make that section a statute of limitations and not a statute concerning subject matter jurisdiction. 

The 300-day filing limit in the Public Accommodations and Amusements Law, which includes identical language to that in the Fair Employment Act, stems from section 1007 of same budget bill referenced in the explanatory note cited above.  Consequently, the commission concludes that, as with the Fair Employment Act, the 300-day filing limit contained in the Public Accommodations and Amusements Law is meant to be a statute of limitations and is not a jurisdictional requirement.  Accordingly, the commission has modified the administrative law judge’s decision to the delete the erroneous reference to jurisdiction.

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] The commission has consistently followed this ruling.  See, Blohm v. Holiday Inns, ERD Case No. 8652100 (LIRC Jan. 31, 1990); Mittelsteadt v. AJ Air Express, ERD Case No. 199604033 (LIRC Jan. 16, 1998); Ault v. Allen Bradley Co. Inc., ERD Case No. 199700008 (LIRC Feb. 5, 1998); Reddin v. Neenah Joint School District, ERD Case No. CR200301251 (LIRC Aug. 24, 2004); Scott v. A O Smith Corporation, ERD Case No. CR201102327 (LIRC Jan. 15, 2014).