GEORGE T WASHINGTON, Complainant

UNITED WATER SERVICES, 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 August 15, 2003
washige2 . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review the complainant argues that the doctrine of equitable estoppel should be applied in this case because the respondent deliberately strung him along until the statute of limitations had run out. In support of this assertion, the complainant maintains that the respondent stalled his return to work by telling him it could not see any "immediate" ability for him to return to work and could not accommodate him "at the present time." Finally, the complainant points out that the respondent did not discharge him on August 4, 1998, but on August 31, 2000, and maintains that the statute of limitations should not begin to run until the latter date. The commission finds these arguments unpersuasive, for the reasons set forth below.

The doctrine of equitable estoppel, also known as "fraudulent concealment" applies to situations in which 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. Josellis v. Pace Industries, Inc. (LIRC, June 21, 2002), citing Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir. 1995). Equitable estoppel is available only if the employee's untimely filing was the result of a deliberate design by the employer or actions that the employer should have understood would cause the employee to delay filing his charge. Among other factors, the granting of equitable estoppel should be premised upon a showing of the employee's actual and reasonable reliance on the employer's conduct or representations, and evidence of improper purpose on the part of the employer or of the employer's actual or constructive knowledge of the deceptive nature of its conduct. Josellis, citing Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir. 1986).

The doctrine of equitable estoppel is inapplicable in this case. The respondent clearly conveyed that it could not accommodate the complainant's current restrictions and that it would not have any work for him unless his permanent restrictions were modified or lifted. Even if the respondent's use of the terms "immediate" or "at the present time" could be construed as leaving open the door to future accommodations, this was clearly contingent on there being a change in the complainant's restrictions. There was nothing false or fraudulent about the respondent's statements to the complainant, and the commission sees no reason to believe that it was deliberately attempting to mislead the complainant or otherwise prevent him from filing a timely discrimination complaint.

Moreover, the complainant did not delay in filing his complaint in reliance on any deceptive language or misrepresentations by the respondent. On April 9, 1998, the respondent sent the complainant a letter in which it stated, "At the present time, United Water Service does not have any work available within your restrictions. The company may have no other choice but to terminate your employment unless your permanent restrictions are modified or lifted." The complainant retained counsel and, on April 14, 1998, the complainant's attorney wrote a letter to the respondent in which he stated, as follows:

"We are in receipt of a letter sent to Mr. Washington from Larry D. Osieczonek indicating Mr. Washington was being terminated due to his injuries and restrictions placed on him by his treating physician, Carl J. Frank, M.D.

"We wish to inform you at this time that to terminate Mr. Washington because of his restrictions would be a violation of current employment law and carries stiff penalties."

The correspondence cited above strongly suggests that the complainant became aware of a potential discrimination complaint as early as April of 1998, notwithstanding the respondent's use of the term "at the present time." Moreover, even assuming the complainant was not aware he was being denied an accommodation at the time and believed the respondent intended to accommodate him at some future date, it is clear he had formed the belief that he was being discriminated against by August 14, 1998, as evidenced by the fact that his attorney prepared a complaint to be filed with the United States Equal Employment Opportunities Commission (EEOC), in which it was alleged that the complainant had been denied a reasonable accommodation and his employment terminated on that date. Although that EEOC complaint was never filed, (1)   it is apparent that, as of the date noted on that document, the complainant had arrived at the opinion he had been discriminated against by the respondent on the basis of a disability. Having formed this opinion, the complainant was obligated to preserve his rights by filing his Fair Employment Act claim within 300 days. Consequently, even if it could be found that the respondent attempted to mislead or misrepresent facts to the complainant in order to prevent him from filing a timely complaint -- and the commission wishes to emphasize that it does not find this to be the case -- the doctrine of equitable estoppel cannot be applied where the complainant's failure to file a timely complaint was not shown to be in reliance on such misrepresentations.

The statute of limitations period begins to run when the complainant knew or reasonably should have known of the wrong that was committed against him. See, Lange v. Federal Express (LIRC, Feb. 22, 1993). Stated somewhat differently, a statute of limitations begins to run when the facts that would support a charge of discrimination are apparent or would be apparent to a person with a reasonably prudent regard for his or her rights. See, Oehlke v. Moore-O-Matic (LIRC, July 26, 1988). On or before August 14, 1998, the complainant realized that the respondent was not going to accommodate his permanent restrictions, and had formed the belief that this was discriminatory. Although in his petition the complainant emphasizes that the respondent did not tell him it would never have a job for him, leaving open the possibility that something might change in the future, the complainant understood that any hope for future employment would require a modification to his permanent restrictions, something which was unlikely to occur. Moreover, even if the complainant had reason to believe his permanent restrictions might some day be lifted, the hope that changed circumstances may lead to a future job does not alter the fact that the complainant believed he was being discriminated against at the time the accommodation was originally requested and denied. That the complainant and his attorney failed to act on this belief until after the statute of limitations had already elapsed is not the fault of the respondent.

Finally, regarding the complainant's argument that the statute of limitations should not begin to run until the respondent completely terminated the employment relationship on August 31, 2000, this ignores the fact that the complaint in this matter alleged only a failure to provide an accommodation and not a discriminatory discharge. That the complainant became aware of the facts supporting his reasonable accommodation complaint prior to August 31, 2000 is evidenced by the fact that he filed the complaint on June 16, 1999, more than a year before the official discharge date. As set forth above, the statute of limitations for the complainant's reasonable accommodation complaint began to run by August 14, 1998, if not earlier. Accordingly, the dismissal of the complaint as untimely is affirmed.

cc: 
Michael T. Sheedy
Barry L. Chaet

Appealed to Circuit Court. Affirmed March 15, 2004. Appealed to the Court of Appeals. Affirmed  February 7, 2005 (unpublished summary disposition).  Petition for Supreme Court review denied.

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(1)( Back ) In his reply brief the complainant argues, for the first time, that the reason he did not file the complaint with the EEOC is that he had been assured by the respondent that he was not terminated and was persuaded by the respondent that he should take a leave of absence. The complainant contends that he believed he would be returned to work on or about December 14, 1998. There is nothing in the record to support this new assertion.

uploaded 2003/08/20