JEANE WILSON, Complainant

DOSKOCIL FOODS, 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 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.

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

Dated and mailed July 30, 2003
wilsoje . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

On September 21, 2000, the respondent notified the complainant, Jeane Wilson, that it was terminating her employment due to excessive absenteeism. On May 13, 2002, 599 days later, Wilson filed a complaint charging the respondent with disability discrimination with respect to her termination of employment.

An Equal Rights Officer for the department issued a preliminary determination dismissing Wilson's complaint because it had not been filed with the department within 300 days after the alleged discrimination occurred as required by law. Following a written appeal by Wilson, ALJ Wasserman issued a decision affirming the preliminary determination's dismissal of Wilson's complaint.

Wisconsin Statute § 111.39(1) requires that a complaint charging discrimination be filed with the department no more than 300 days after the alleged discrimination occurred.

Wilson asserted that she did not file her complaint within 300 days after her termination due to the memory loss she developed after suffering a stroke. Wilson asserted that she had short-term memory. Wilson initiated a union grievance with respect to her discharge on the day after the termination of her employment. Apparently Wilson suffered a stroke sometime during the course of the 4-step grievance.

Citing cases arising under federal discrimination laws, for example, Lopez v. Citibank, 808 F.2d 905, 907 (1st Cir. 1987), the ALJ noted that in rare cases, courts have held that memory loss or other forms of mental incapacity may permit equitable tolling of the statute of limitations (i.e., suspension of the running of the statute of limitations), but only where the mental incapacity rendered the employee unable to pursue legal action within the time limit for filing charges. Further, the ALJ noted that where an employee has failed to adequately document the existence of the claimed mental incapacity, the courts have concluded that tolling was not justified, citing O'Connor v. North American Phillips Lighting Corp., 1989 WL 118224, 1989 U.S. Dist. LEXIS 11338 (N.D. Ill. 1989).

Additionally, citing Durham v. Emjay Corp. (LIRC, 03/26/97), the ALJ noted that similarly the commission has held that mental incapacity may sometimes justify tolling the statute of limitations, but only where the complainant has provided sufficient evidence to show that the mental condition rendered the complainant unable to pursue his or her legal rights throughout the 300-day charge-filing period.

The ALJ concluded that there was insufficient evidence to justify application of the equitable tolling doctrine in Wilson's case. The ALJ noted that like the O'Connor case, Wilson's claim of mental incapacity was "vague and undocumented." Like the Durham case, Wilson failed to present any competent medical evidence regarding her alleged mental incapacity. Further, the ALJ found that moreover, Wilson failed to adequately explain a glaring contradiction: On the one hand Wilson acknowledges that after her stroke, she continued to actively pursue her union grievance, even attending a number of meetings related to her grievance; yet, on the other hand Wilson claimed that the memory loss caused by her stroke prevented her from filing a complaint with the Equal Rights Division.

The ALJ concluded that in light of the fact that Wilson was able to actively pursue her grievance after her stroke, it appears that her stroke did not render her "incapable of handling her affairs or comprehending her legal rights" throughout the 300-day charge-filing period, the standard articulated in the Durham case.

In her petition for review of the ALJ's decision, Wilson asserts that the reason she continued her grievance meetings was because the chief union steward set them up. Further, Wilson asserts that she could not drive and that she had to have someone drive her to the grievance meetings and pick her up afterwards. Wilson also apparently asserts that she could not understand everything at her grievance meetings, and that she was not able to say some things due to speech and memory problems after her stroke.

Although Wilson's stroke may have had some adverse effects on her physical and mental capabilities, a complainant is only entitled to a tolling of the statute of limitations when his or her incapacity reaches such a level that he or she was incapable of filing a complaint within the requisite time period. Moody v. Bayliner Marine Corp., 664 F. Supp. 232, 237 (D.C. E.D. N.C. 1987). Wilson has not met this burden. Wilson has not submitted any medical evidence, or a statement from her physician, which would support a showing that her condition was so disabling that it rendered her incapable of filing a complaint of discrimination with the ERD throughout the 300-day charge-filing period.

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uploaded 2003/08/12