SANDEE RAE BERG, Complainant

AGAPE OF APPLETON INC., Respondent

An administrative law judge (AU) 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 AU. Based on its review, the commission agrees with the decision of the AU, 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 September 22, 2006
bergsa . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad

/s/ Robert Glaser, Commissioner

The complainant petitions for a review of the ALJ's decision, which dismissed her complaint of discrimination on the grounds that she had failed to file her complaint within 300 days after the alleged discrimination occurred.

Section 111.39(1) of the Wisconsin Fair Employment Act requires that a complaint charging discrimination be filed with department no more than 300 days after the alleged discrimination occurred. This statute reads as follows:

(1) The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred. The department may give publicity to its findings in the case.

The complainant first filed a charge of discrimination with the department on November 9, 2005, but due to the omission of additional necessary information a request was made for the additional information which she supplied in another complaint form filed on December 29, 2005. The complainant alleges that she was discriminated against on the basis of disability, which culminated in her discharge, of which she was notified on January 11, 2005. November 9, 2005, is 302 days from January 11, 2005, and therefore her complaint charging discrimination is untimely.

The complainant has alleged that she thought she had ten months, or until November 11, 2005, in which to file her charge of discrimination. She has also alleged that since her discharge she has "been depressed which can cause me to not think clearly and miscalculate how many days to file."

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).

Under the doctrine of equitable tolling, the running of the statute of limitations may be suspended for a period in which the complainant is "excusably ignorant" of his or her statutory rights. Olson v. Lilly Research Laboratories  (LIRC, 06/25/92). However, while "excusable ignorance" may toll a statute of limitations, excusable ignorance does not mean ignorance of all the filing periods and technicalities contained in the law, nor does it mean ignorance of specific guidelines. Van Deraa v. Asten Johnson (LIRC, 06/30/05); Gruhle v. Random Lake School District (LIRC, 06/19/98). Equity only requires that a plaintiff be generally aware that a statute has been passed that protects workers against discrimination. Olson, supra.

Also, while mental incompetence has sometimes been found to be a justifiable basis for tolling the statute of limitations, there is nothing in this case which supports a tolling of the Act's 300-day statute of limitations on that basis. In addition to the complainant's failure to affirmatively assert that her depression did, in fact, cause her to miscalculate the filing deadline, she has not submitted any medical evidence which would support a showing that her condition was so disabling that it rendered her incapable of filing a complaint of discrimination throughout the 300-day charge-filing period. Wilson v. Doskocil Foods (L[RC, 07/30/03); Durham v. Emjay Corp. (LIRC, 03/26/97).

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Ross W. Townsend

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