ROBERT E RINGLE, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, 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 April 27, 2006
ringlro . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Robert Ringle filed a complaint of discrimination against the respondent on December 12, 2005, alleging that the respondent had discriminated against him in violation of the WFEA on the basis of age on January 18, 1985, at which time he resigned from his teaching position when given the choice of accepting an unsatisfactory rating or resigning. In his complaint Ringle asserted that for all his years of teaching he had only satisfactory or better ratings and evaluations, and that he "did not agree largely, almost totally," with the ratings. Ringle further included the following assertions in his complaint:

I thought at the time, 1985, this was an effective way of getting rid of older workers. I did not feel I could prove intent of age discrimination in a way satisfactory to State and Federal agencies; I, therefore, did not file a complaint of age discrimination until now. Later events proved me correct.

It was later after March 29, 2005 that I heard on the radio that the Supreme Court decided that age discrimination did not have to be intended as long as effectively age discrimination had taken place. It is because of that decision I am filing my complaint within 300 days of when I first discovered I was able to file.

An equal rights officer for the department issued a Preliminary Determination dismissing Ringle's complaint, stating that the alleged act of discrimination occurred twenty years ago and was beyond the WFEA's 300 day statute of limitations and therefore untimely.

Ringle filed an appeal of the dismissal of his complaint, indicating, for purposes relevant here:  1) that he was not "eligible" to file and believed that he was not "eligible" to file a complaint before March 29, 2005, as it was his understanding that "one had to intend discrimination in order to be proven to have actually committed age discrimination", which he knew he could not prove;   2) that he "knew of the 300 day requirement, but 300 from what?";   3) that today "one needs to prove actual discrimination with or without any intent.";   4) that he "chose March 29, 2005 since it was the earliest date I had for the Supreme Court decision and I could not possibly know of my right to complain until then", and that the statute of limitations period begins to run when the complainant knew or reasonably should have known of the wrong that was committed, citing Lange v. Federal Express (LIRC, 02/22/93) and Oehlke v. Moore-O-Matic (LIRC, 07/26/88).

In the ALJ's decision dismissing Ringle's complaint, the ALJ noted that the 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, citing Washington v. United Water Service (LIRC, 08/15/03), and indicated that in Ringle's situation the statute of limitations began to run on January 18, 1985, because Ringle states in his complaint that at the time in 1985 "he suspected that the MBSD"s (sic) actions were 'an effective way to get rid of older workers.' "

In his petition for review, after noting (correctly) that the ALJ's decision at one point states that his resignation date was "January 18, 2005", Ringle reiterates that he did not believe/know he had a case of age discrimination until well into 2005 and that "[u]sing March 29, 2005, as the earliest possible date for my knowing of a case...[n]o reasonably prudent person could have been more timely than I was." Further, Ringle states, "I did not state or mean to state that I believed or suspected in 1985 that I was a victim of age discrimination as understood in law and by the ERD. I wrote that I thought at the time, 1985, this was an effective way of getting rid of older workers, not that I thought or believed or knew at the time that I had a case. I did not know I had a case of age discrimination earlier than March 29, 2005."

The Wisconsin Fair Employment Act requires that a complaint be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). The 300-day filing limit is not a jurisdictional prerequisite to suit. It is a statute of limitations subject to waiver, estoppel and equitable tolling. Milwaukee County v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).

Ringle's citing of the Lange and Oehlke decisions is a reference to the discovery rule. The discovery rule functions to delay the initial running of the statutory limitations period, but only until a complainant has discovered or, by exercising reasonable diligence, should have discovered (1) that he or she has been injured, and (2) that this injury has been caused by another party's conduct. Ferrill v. City of Milwaukee, 295 F. Supp. 2d 920, 923 (2003). But, as further pointed out in Ferrill:

However, it is important to note that "[a] plaintiff's action accrues when he discovers that he had been injured, not when he determines that the injury was unlawful." Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995). Thus, when the adverse employment action (i.e. the injury) was the termination of employment, the action accrues when the plaintiff was advised of the termination, not later when he discovers facts leading him to believe that he was the victim of discrimination. See id. In situations where the plaintiff discovers the facts necessary to bring a discrimination charge only after the 300 day period has run, the doctrine of equitable tolling comes into play. See id.

295 F. Supp. 2d at 924.

The doctrine of equitable tolling "permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990). If a reasonable person in Ringle's position would not have known until March 29, 2005, that his employment had been terminated in possible violation of the WFEA's prohibition against age discrimination, he could appeal to the doctrine of equitable tolling to suspend the running of the statute of limitations for such time as was reasonably necessary to conduct the necessary inquiry. Id. However, "[t]he qualification 'possible' is important. If a plaintiff were entitled to have all the time he needed to be certain his rights had been violated, the statute of limitations would never run -- for even after judgment, there is no certainty." Id.

Under the principles of the discovery rule set forth above, the beginning of the limitations period was not delayed or postponed for Ringle and began running on January 18, 1985, because he knew of the termination of his employment (i.e., the injury) on January 18, 1985 and that this injury was caused by the respondent.

Furthermore, the doctrine of equitable tolling does not permit Ringle to avoid the bar of the statute of limitations because his complaint assertions clearly indicate that he believed his employment had been terminated in possible violation of the Act's prohibition against age discrimination. Specifically, Ringle's complaint assertions that for all his years of teaching he had only satisfactory or better ratings and evaluations, that he "did not agree largely, almost totally," with the ratings and that at the time in 1985 he thought this was an effective way to get rid of older workers but did not feel he could prove there was intentional discrimination.

Finally, it should be noted that Ringle's reference to the U. S. Supreme Court's decision regarding age discrimination is apparently a reference to the case of Smith v. City of Jackson Mississippi, 544 U.S. 228, 125 S. Ct. 1536 (2005)(Disparate impact claims of discrimination may be brought under the ADEA). It is evident from Ringle's complaint assertions that he is not alleging a disparate impact claim. A disparate impact claim is one in which a party alleges that an employer's facially neutral employment practice is discriminatory because it results in a statistically significant impact on a protected group. What Ringle is asserting is that the respondent wrongfully gave him an unsatisfactory teaching performance rating and then gave him the choice of accepting this unsatisfactory rating or resigning. A claim of being given an alleged unsatisfactory rating based on one's age and then provided the choice of accepting this rating or resigning, whether this had involved just Ringle or other protected age employees, is not a facially neutral employment practice. Ringle's claim is a disparate treatment claim in which discriminatory intent is an element of proof that must be established.

cc:
Office of City Attorney
City of Milwaukee

Appealed to Circuit Court. Affirmed November 20, 2006.

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