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

TINA DURHAM, Complainant

EMJAY CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604888, EEOC Case No. 26G970327

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: March 26, 1997
durhati.rsd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Section 111.39(1) of the Wisconsin Fair Employment Act requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred. The complainant in this case filed a charge of discrimination with the department on December 10, 1996. She apparently alleges that she was discriminated against throughout her employment, including when the respondent terminated her employment on January 5, 1996. The complainant has not alleged that anything else discriminatory occurred after January 5, 1996.

Since the last act of discrimination alleged by the complainant occurred on January 5, 1996, and the complainant's complaint was not filed with the department until December 10, 1996, her complaint was untimely as it was filed more than 300 days after any alleged act of discrimination.

The complainant acknowledges that her complaint is late but has asserted that it was late due to "medical/physical problems." Specifically, the complainant has asserted that she "was dealing with the stress...(from) suffering a miscarriage after Emjay terminated my position" and that she "was so distressed with losing my child that was all that I was thinking about at that time."

While mental incompetence has sometimes been found to be a justifiable basis for tolling the statute of limitations for filing a charge of discrimination, there is nothing in this case which shows justification for tolling the Act's 300-day statute of limitations. The complainant has not indicated when after her termination that she suffered a miscarriage. Assuming that her miscarriage occurred sometime after January 5, 1996, there was a period of time prior to the miscarriage in which she could have filed her charge of discrimination. More importantly, though, even assuming the complainant's miscarriage occurred on the date that she was discharged, while the complainant asserts that she was "stressed" and "distressed" as a result of the miscarriage, she has presented no competent medical evidence to show that she was incapable of handling her affairs or unable to comprehend her legal rights during the entire 300 day period following her discharge. Under the circumstances, there is nothing which supports tolling the Act's 300-day statute of limitations.

cc: JOAN C. MCDONAGH

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