STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

MATTHEW P JOHNSON, Complainant

BRP US INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201300356, EEOC Case No. 26G201300492C

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 April 11, 2014
johnsma_rsd . doc : 107 : 5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION


The complainant alleged that the respondent terminated his employment on February 22, 2012 because of his disability. He also alleged that February 22, 2012 was the day he was notified of his termination, which meant that the time period for him to file his complaint under the Wisconsin Fair Employment Act (WFEA) began to run that day. Olson v. Lilly Research Laboratories, ERD Case No. 9001499 (LIRC June 25, 1992) ("[T]he... statute of limitations in the Fair Employment Act begins to run when the employer makes the discriminatory decision and communicates it to the employe, not merely when the decision becomes effective. Hilmes v. DILHR, 147 Wis.2d 48, 52-53, 56, 433 N.W.2d 251 (Ct. App. 1988).").

The statute of limitations for filing a complaint is 300 days after the alleged discrimination. Wis. Stat. § 111.39(1). The last day for filing in this case, then, was December 18, 2012. The complainant did not file his complaint until February 4, 2013, 48 days after the expiration of the period for filing.

An investigator for the Equal Rights Division issued a Preliminary Determination dismissing the complaint for untimely filing. The complainant appealed, and an administrative law judge affirmed the dismissal. During the investigation and the appeal to the administrative law judge, the complainant's explanation for not filing within the statutory time period was that from about March to September 2012, he assumed his attorney was taking care of filing necessary paperwork, and he was unaware that he could file a complaint on his own.

The administrative law judge, accepting the complainant's explanation as true, correctly declined to toll (i.e., suspend) the statute of limitations. It is well established that "an allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations." Johnsrud v. Prairie du Chien Memorial Hospital, ERD Case No. 200100738 (LIRC June 21, 2002). It is also well established that an individual's unawareness of his right to file is not grounds for overlooking the statute of limitations. Kiefer v. Caring Alternatives, LLC, ERD Case No. CR201002702 (LIRC Apr. 29, 2011).

In his petition to the commission, the complainant abandoned his earlier explanation, and asked to be excused from the 300-day time limit because during that period he was found by the Social Security Administration (SSA) to have become disabled. He enclosed a copy of a letter from the SSA indicating that the date he became disabled under the rules of the SSA was November 1, 2012. The complainant indicated in his petition that a mental condition was a basis for the SSA's disability determination, but he submitted no information from a medical provider about his mental condition, and there is none in the file of this case.

The commission has held that a claim of mental disability may be sufficient to toll the running of the statute of limitations, but only if it was established through medical evidence that the individual was "entirely incapable of bringing legal action" or discovering vital information for the claim. Brantner v. Goodwill Industries, ERD Case No. 200901415 (LIRC Feb. 19, 2010); Kiefer, supra. There is no evidence that that is the case here. To the contrary, the information in the file demonstrates that the complainant was very aware of his rights prior to November 1, 2012, having hired a lawyer to represent him, and that after that date, despite having become disabled under SSA rules, he maintained an ability to respond to requests for information and meet deadlines for pursuing this matter. The file shows that after November 1, 2012 the complainant wrote a three-page statement of discrimination (January 31, 2013), filed his complaint with the ERD (February 4, 2013), drafted a two-page response to the respondent's assertion of untimely filing (March 31, 2013), sent several follow-up e-mails to the ERD investigator (April 19, May 6, and June 4, 2013), drafted and filed a timely appeal from the investigator's Preliminary Determination (July 1, 2013), and drafted and filed a timely petition for commission review (March 30, 2014). There is no basis in the file in this matter to conclude that as of November 1, 2012 the complainant became incapable of bringing or maintaining a legal action, or understanding vital information concerning his claim.

The commission therefore affirms the decision of the administrative law judge dismissing the complaint for having been untimely filed.

 

cc: Attorney Christopher Nickels

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