wisconsin.gov home state agencies subject directory link link link
Wisconsin Labor and Industry Review Commission - Home Page

The Wisconsin Equal Rights (ER) Decision Digest -- Sections 700-711.3     

[Previous Sections]      [Next Sections


700 PROCEDURE

710 Complaint  

711 Timeliness

A Complainant’s letter to the Equal Rights Division satisfied the requirements for a cognizable complaint.  It was signed by the Complainant.  It included his name and address.  It provided sufficient information from which the Equal Rights Division could identify and contact the Respondent, and it included a statement of the underlying allegations.  The Complainant later submitted a formal complaint form, which was received more than 300 days after the alleged violation.  Because the initial letter was filed within 300 days, the complaint was timely.  Lobacz v. Wisconsin Dept. of Corrections (LIRC, 11/03/05)

An affirmative defense that a complaint was not filed within the statute of limitations period must be raised in a pleading or by a motion, or it is deemed waived. It was error for an Administrative Law Judge to dismiss a portion of a complaint on the basis of untimeliness where the Respondent had not raised the statute of limitations issue in a timely-filed answer and had not make any argument about the statute of limitations until after the hearing. Reddin v. Neenah Joint School Dist. (LIRC, 08/24/04).

Even if the Complainant had been unsure for several months where to file his complaint, this would not be considered a viable reason for late filing. Ignorance of one’s rights does not suspend the operation of the statute of limitations. Adam v. DNR (Wis. Personnel Comm., 12/20/02).

The Wisconsin Fair Employment Act contains no exception to the running of the statute of limitations where the Complainant is a minor. Mittelsteadt v. A.J. Air Express (LIRC, 01/16/98).

Ignorance of one's rights does not suspend the operation of the statute of limitations. Burt v. Wisconsin Lottery (Wis. Personnel Comm., 04/05/91).

The Administrative Law Judge erred by dismissing one of the Complainant's claims on the basis of untimeliness where the Respondent had not raised the statute of limitations issue in a timely filed answer. Blohm v. Holiday Inn (LIRC, 01/31/90).

A showing of actual prejudice to the Respondent is not necessary for the enforcement of a statute of limitations against the Complainant. Kaufman v. UW-Eau Claire (Wis. Personnel Comm., 01/09/86).

The Act's requirement that a complaint be filed within 300 days of the alleged act of discrimination is not jurisdictional; rather, it is a statute of limitations. An employer's stipulation prior to hearing that a complaint was timely filed constitutes a waiver of the affirmative defense that the complaint was not timely filed. County of Milwaukee v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).

The date of the Equal Rights Division's receipt of the Complainant's letter complaining of discrimination is the date to be used for measuring timeliness, even where the letter was unsworn and otherwise did not meet the technical requirements for a complaint. These technical defects could be cured later by an amended complaint, which could be filed even after the statute of limitations period had run. Lasiewicz v. Watertown Metal (LIRC, 08/31/83); Goodhue v. University of Wis. (Wis. Personnel Comm., 11/09/83).

Because the 300 day requirement for filing a charge of discrimination can be waived, a Complainant who files late is entitled to present facts to the Equal Rights Division which would justify a waiver. The burden of establishing the justification rests with the Complainant. The Equal Rights Division has no duty to investigate on its own to determine whether a waiver should be granted. Wadsworth v. DILHR (Milwaukee Co. Cir. Ct., 1983).

[ Introduction to the ER Digest]       [ Subject Matter Index - Full) ]
[ Subject Matter Index - Hypertext)]       [ Alphabetical Topic List ]       [ Case Table ]

711.1 Measurement of timeliness

Section DWD 218.03(5), Wis. Admin. Code, deems a complaint filed with the ERD when it is received by the EEOC. This is true even though the general rule is that a complaint is only deemed filed when it is physically received by the Equal Rights Division. This case was remanded for further proceedings to determine whether an Intake Questionnaire the Complainant filed with the EEOC qualified as a "charge" under federal law. If it did, the "charge" was timely filed for federal and state purposes and the Complainant would be deemed to have filed a timely complaint with the Equal Rights Division. Aldrich v. LIRC, 2012 WI 53, 341 Wis. 2d 361, 814 N.W.2d 433. ("Aldrich II")

The statute of limitations does not begin to run until the facts which would support a charge of discrimination were apparent (should have been apparent) to a person with a reasonably prudent regard for his rights. In this case, the Complainant was notified on January 22, 2004 that his job was being eliminated. However, it was not until September of 2004 or thereafter that he first learned that younger employees were going to be performing his job duties. The Complainant's complaint was timely because it was filed within 300 days of the date he had an inkling that someone else might be performing his duties. Anchor v. Wisconsin Dept. of Workforce Development (LIRC, 01/04/12).

There is no legal requirement that an employer provide a job applicant with written notice as to whether the applicant will be hired. The Respondent credibly testified that it was not its practice to do so. For purposes of calculating when the statute of limitations begins to run, the question is not whether the Complainant received written notice that he was not selected for the job, but when the Complainant knew or reasonably should have known of the wrong that was allegedly committed against him. Begolli v. Home Depot (LIRC, 08/11/11).

In some situations the commencement of the statute of limitations period can be considered to be postponed until the date on which the employee discovers sufficient information to support a claim of discrimination. The limitations period does not begin to run until the facts that would support a charge were apparent or should have been apparent to a person with a reasonably prudent regard for his or her rights. Drabek v. Major Industries (LIRC, 06/09/11).

Section DWD 218.03(5), Wis. Admin. Code, provides that a complaint filed with another agency and deferred to the Equal Rights Division will be deemed to have been filed when it was received by the other agency. The date of filing of an EEOC 'Intake Questionnaire' can be used as the date of filing for statute of limitations purposes if the EEOC accepts that as the date of filing. The Intake Questionnaire is a form which the EEOC has complainants fill out prior to the drafting of the official complaint form. Lee v. Bed Bath & Beyond (LIRC, 03/25/11).

Discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. In this case, the Complainant suggested that the adverse effects of his earlier license suspension were not experienced until more than 300 days later, when his license was reinstated with restrictions and he attempted unsuccessfully to find work. The Complainant?s complaint was not timely filed. Holmen v. Department of Regulation & Licensing (LIRC, 05/27/10).

The operable date from which the statute of limitations period runs in a failure-to-hire case is not dependent on the Respondent's completion of the entire application or selection process. Nor is it dependent on when the Complainant realized the effects of this process. Rather, it is dependent on the date that the Complainant was made aware that the Respondent did not intend to hire him. Jackson v. Aurora Health Care (LIRC, 08/24/04).

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. 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. Washington v. United Water Serv. (LIRC, 08/15/03), aff'd. sub nom. Washington v. LIRC (Milwaukee Co. Cir. Ct., 03/15/04); aff'd, Ct. App. Dist. I, summary disposition, 02/07/05.

It is the Complainant’s burden to establish that he complied with the statutory 300-day filing requirement. It is not the Respondent’s burden to establish that the Complainant failed to do so. Wanta v. Tower Automotive (LIRC, 10/17/03).

Since the Complainant (despite being represented by counsel) failed to specify in his complaint when he became aware of his termination, it was appropriate to consider collateral sources for that information. In this case, information derived from these collateral sources, including the substance of communications from and through the Complainant’s union representatives and attorneys, established that the Complainant was aware of the subject termination more than 300 days before he filed his complaint. The complaint was, therefore, untimely. Wanta v. Tower Automotive (LIRC, 10/17/03).

The Complainant may not use a post-termination event as a basis to file a claim regarding his employment that is otherwise untimely. Hopkins v. City of Kenosha (LIRC, 08/22/03).

Complainant, a State employee, was asked to attend a meeting to discuss his permanent medical restrictions on January 6; at the meeting, he was told that since he could not perform his assigned duties his position would be terminated effective the next day.  In a letter dated January 10 (received by him on the 12th), the  Complainant was told his employment was terminated effective January 7. The Complainant filed a complaint of discrimination with the Personnel Commission more than 300 days after January 6. The complaint was timely.  Sec. 230.34(1)(b), Stats., requires an appointing authority to provide written notice to State employees at the time of any demotion, suspension, discharge or layoff, and therefore, the Respondent's letter was ineffective as a matter of law to discharge Complainant effective January 7.  Further, all that management could have done in the oral discussion on January 6 was to provide Complainant with verbal notice of its intent to discharge him, which intent could only be carried out by written notice.  Since the statutes require that notice of discipline be given in writing to a State employee prior to the effectuation of disciplinary action, verbal notice of an impending disciplinary action should not be considered effective notice for purposes of triggering the statute of limitations provided in sec. 111.39(1), Stats. Patera v. UW System (Personnel Comm., 05/16/03).

The Division's rules specifically provide that a discrimination complaint is considered to be "filed" only upon the physical receipt of the document by the Division.  The rules contain no exception for complaints which are mailed in a timely fashion, but which are not received by the Division.  Riley v. Van Galder Bus Co. (LIRC, 05/24/99).

The Equal Rights Division returned a complaint which had been filed by a Complainant requesting that the Complainant supply additional information. The Complainant filed another complaint form including the additional information; however, the second complaint was received more than 300 days after the last act of alleged discrimination. The first complaint which was filed was adequate, at least to establish the commencement of a proceeding, even if certain elements of the complaint required correction or expansion. Essentially, this situation involved an original complaint and an amended complaint. Tobias v. Jim Walter Color Separations (LIRC, 08/13/97). Reversed, Rock Co. Cir.Ct., June 19, 1998;  Cir. Ct. decision reversed and LIRC decision reinstated  sub nom.  Jim Walter Color Separations v. LIRC and Tobias, 226 Wis. 2d 334, 595 N.W.2d 68   (Ct. App. 1999).

Where the Complainant filed an Intake Questionnaire regarding an age discrimination complaint with the EEOC within the 300 day statute of limitations, his complaint was timely filed even though he did not submit a completed charge form until 304 days after the last alleged act of discrimination. Because the complaint was considered timely by the EEOC, it was also timely under the Wisconsin Fair Employment Act. (The complaint was referred to the Equal Rights Division for processing under the terms of a work-sharing agreement between the Equal Rights Division and EEOC.) Keup v. Mayville Metal Products (LIRC, 06/22/95).

The statute of limitations period does not begin to run until the Complainant knew or reasonably could have known of the wrong that had been committed against her. This discovery rule postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when she discovers she has been injured. In this case, it was only when a similarly situated male was returned to the position of courier following a medical leave of absence that facts that would support a charge of sexual discrimination would have become apparent to the Complainant, who was not allowed to return to work following a long-term disability leave. Lange v. Federal Express (LIRC, 02/22/93).

The statute of limitations did not begin to run on the Complainant's last day of work, at which time she was verbally informed that her termination would be recommended to the board;  nor did it begin to run when the Complainant received a letter confirming that her termination would be recommended to the board. The Complainant became aware of the adverse action against her when she attended the meeting during which the school board voted to terminate her employment. The complaint was timely filed where it was filed 296 days after that date. Veneman v. School Dist. of Beloit (LIRC, 10/21/92).

An employe who was informed of the termination of his employment on March 19, 1990 was required to file his claim alleging discriminatory discharge within 300 days of the March 19, 1990 date. The employe's attempts, through the employer's post- termination procedures, to regain his position did not toll the statute of limitations period. Hoefs v. Perlman-Rocque, Whitewater (LIRC, 09/16/92).

The 300-day statute of limitations in the Wisconsin Fair Employment Act begins to run when the employer makes the discriminatory decision and communicates it to the employe, not when the decision becomes effective. Olson v Lilly Research Laboratories (LIRC, 06/25/92).

After a hearing on the merits, a complaint was dismissed on the ground that it was filed more than 300 days after March 1, 1988, when the Complainant was told that he was medically disqualified from the position of lubricator. The complaint had also mentioned that the Complainant alleged that he was rejected for another lubricator opening in July of 1989, only days before the complaint was filed. At hearing, there was not a shred of evidence in the record which supported this claim of a July 1989 refusal. However, in the Respondent's formal answer to the complaint, it specifically and expressly admitted the allegations of the complaint. Therefore, LIRC found it appropriate to make findings of fact based on those admitted allegations and, based on those findings of fact, it concluded that the complaint was timely. Reich v. Ladish Co. (LIRC, 03/30/92).

Where the Complainant alleged that she was discriminated against because she was not reclassified until she had been employed for one year while non-white employes were reclassified before they had been employed for one year, her complaint was timely because the time period for filing the charge of discrimination did not begin to run until the other employes were reclassified. Piotrowski v. DILHR (Wis. Personnel Comm., 05/01/91).

A complaint of age discrimination was timely where the Complainant filed her complaint within weeks of becoming aware that younger and less senior employes had received equity awards over 300 days earlier. A person with a reasonably prudent regard for her rights in the Complainant's position would not have made an inquiry about the salaries of younger co-workers. Rudie v. DHSS (Wis. Personnel Comm., 09/19/90).

The 300-day period for filing a complaint under sec. 111.39(1), Stats., commenced when the Complainant became aware of a certain conversation regarding his employment, not when the Complainant formed a belief that that conversation had resulted in the withdrawal of the Respondent's offer of employment. Bruns v. DOT (Wis. Personnel Comm., 02/07/90).

The time for filing a complaint runs from the date the Complainant should have been aware of the facts giving rise to the discrimination claim, rather than when the Complainant became aware of a relevant document. Welter v. DHSS (Wis. Personnel Comm., 02/22/89).

Discrimination occurs when the employer acts and the employe knows about it, not when the effects of the action are most painfully felt. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).

The statute of limitations begins to run when the adverse decision is made and communicated to the employe, not when the effects of the employer's action are most painfully felt. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).

For purposes of the 300 day statute of limitations contained in sec. 111.39, Stats., a complaint is not "filed" when it is mailed, but only when it is actually received by the Equal Rights Division. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988).

The statute of limitations begins to run on the date that the employe becomes aware that he is going to be laid off. The statute of limitations on a claim of discriminatory refusal to recall from layoff begins to run at the point at which the employe becomes aware, or should reasonably have been aware, that he had not been recalled while others had and that he would not likely be recalled. Where an employe was told she would be recalled when things picked up, knew that the employer's business had picked up, knew that others had been recalled, and saw an advertisement in the newspaper soliciting new employes to do work which she had previously done, the statute of limitations on her refusal to recall claim began to run at that point, which was the point at which a reasonable person would have understood that they were not going to be recalled. Oehlke v. Moore-O-Matic (LIRC, 07/26/88).

The Complainant credibly alleged that at the time of his layoff he was told that his position had been eliminated, and that he only later found out that the position had been "reinstated" and that he had not been recalled to it. At the time of his layoff the facts that would support a charge of discrimination would not have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the Complainant. Thus, the complaint was not untimely. Sprenger v. University of Wisconsin Systems (Wis. Personnel Comm., 01/24/86).

Although the 300-day time limit begins to run only when facts that would support a charge of discrimination are apparent or should be apparent to a person with a reasonably prudent regard for his or her rights similarly situated to the Complainant, it does not delay the commencement of the statute of limitations that the Complainant does not until some later time come to the conclusion based on those facts that discrimi-nation may have occurred. Gozinske v. DHSS (Wis. Personnel Comm., 06/25/86).

The statute of limitations with respect to a claim of discrimination and hire begins to run on the date on which the Complainant is advised of the hiring decision, not on the date on which the hiring decision itself is made. Ames v. UW-Milwaukee (Wis. Personnel Comm., 11/07/85).

Discrimination occurs when the adverse decision is made and the Complainant is so notified. Goodhue v. University of Wis. (Wis. Personnel Comm., 11/09/83).

The 300 day statute of limitations began to run on the date of the employe's suspension and not when he later received a letter in which he was referred to as a "former employe." Van Pay v. Stange Wis. Corp. (LIRC, 06/28/83).

[ Introduction to the ER Digest]       [ Subject Matter Index - Full) ]
[ Subject Matter Index - Hypertext)]       [ Alphabetical Topic List ]       [ Case Table ]

711.2 Continuing violations

The commission believes that its reliance on AMTRAK v. Morgan and other federal court decisions on the application of the statute of limitations to compensation discrimination, was misplaced.  The commission will return to the interpretation reflected in the Wisconsin Court of Appeals’ 1996 Abbyland decision, that "[s]alary discrimination is an ongoing matter and can be challenged if the result of the discrimination occurs both within and outside the statute of limitations."  Mack v. Rice Lake Harley Davidson (LIRC, 02/07/13), aff’d, Rice Lake Harley Davidson v. LIRC, November 12, 2013 (Barron Co. No. 13CV117) (appealed to court of appeals).

Hostile environment claims are based upon the cumulative effect of individual acts. The entire time period of the hostile environment may be considered for the purposes of determining liability if at least one act contributing to the claim occurred within the 300-day filing period. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

When the Complainant opened a box of doughnuts, another worker stated something to the effect of, 'The pink one's for you, buddy.' The individual who made the remark had previously told other workers that he disliked the Complainant because of his homosexuality, which he regarded as being against his religious beliefs. The Complainant had been subjected to other harassing remarks regarding his sexual orientation. Given this, the 'pink doughnut incident' did have a sexual connotation, and it was part of a pattern of harassment based upon the Complainant's sexual orientation. This incident occurred within the 300-day statute of limitations period. Based upon this, the Respondent's argument that the complaint was time barred and that no earlier acts of harassment could be considered, was rejected. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

The general rule announced in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) reaffirmed the principle that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts generally are. The Lilly Ledbetter Fair Pay Act of 2009 clarified that a discriminatory compensation decision occurs each time compensation is paid pursuant to the discriminatory compensation practice. The rule set out in Ledbetter and prior cases -- that current effects alone cannot breathe new life into prior uncharged discrimination --  is still binding for disparate treatment cases involving discrete acts other than pay. Bethke v. Virchow Krause (LIRC, 01/29/10).

A 'failure to promote' discrimination claim is a discrete employment action, and discrete employment actions are not actionable if they are filed more than 300 days after the discrete discriminatory act occurred.  Anderson v. Baldwin Area Medical Center (LIRC, 05/08/08).

The Administrative Law Judge improperly denied the Complainant the right to present testimony regarding acts of alleged harassment which occurred outside of the 300-day period prior to the filing of his complaint. The complaint alleged that the Complainant had been subjected to a hostile working environment. Hostile environment claims by their very nature involve conduct which occurs over a series of days, or perhaps years. Such claims are based on the cumulative effect of individual acts. A Complainant may show a series of related acts, one or more of which are within the limitations period. A serial violation is established if the evidence indicates that the alleged acts of discrimination occurring prior to the limitations period are sufficiently related to those occurring within the limitations period. In this case, only one of the alleged incidents which the Complainant alleged created a hostile work environment occurred within the 300 days prior to the filing of his complaint. This did not, however, make his hostile work environment claim untimely. Bowen v. LIRC, 2007 WI App 45, 299 Wis. 2d 800, 730 N.W.2d 164.

The basic holding of National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002), is that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts generally are.  In this case, the acts of alleged harassment, one of which fell within the actionable 300-day period, were determined to be a part of a continuing violation.  These allegations were, therefore, timely.  Kanter v. Ariens Co. (LIRC, 09/23/05)

A disciplinary warning and a denial of the Complainant’s request for a permanent assignment were discrete personnel actions which were not susceptible to application of the continuing violation doctrine.  Wodack v. Evangelical Lutheran Good Samaritan Soc. (LIRC, 08/05/05)

The modification of the Complainant’s lunch schedule, the imposition of discipline and other acts of alleged discrimination were discrete personnel actions not susceptible to application of the continuing violation doctrine.  Koenigsaecker v. City of Madison (LIRC, 03/11/05).

In its decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the Supreme Court identified two classes of employment actions (i.e., discrete acts and harassing acts underlying hostile environment claims). Its basic holding was that discrete acts are generally not subject to application of the continuing violation doctrine, but that harassing acts are. The Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counseling, and award of compensation. They concluded that discrete employment actions are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. Josellis v. Pace Inds. (LIRC, 08/31/04).

The Labor and Industry Review Commission has looked to federal court decisions in Title VII cases for guidance on continuing violation and other timeliness issues. In this case it relied upon the decision of the Supreme Court of the United States in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002), to support its conclusion that discrete employment actions such as a refusal to hire are not susceptible to application of the continuing violation doctrine regardless of whether they are related in some way to employment actions which took place during the actionable period. Jackson v. Aurora Health Care (LIRC, 08/24/04).

Discrete employment actions are not susceptible to application of the continuing violation doctrine even if they are related in some way to employment actions which took place during the actionable period. The U.S. Supreme Court clarified the continuing violation doctrine in AMTRAK v. Morgan, 536 U.S. 101, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). In that decision, the Court held that discrete acts are generally not subject to application of the continuing violation doctrine, but harassing acts generally are. The Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, and awards of compensation. It held that related discrete acts do not constitute a single unlawful practice for the purpose of timely filing. Lau v. Latec Credit Union (LIRC, 02/07/03).

The Complainant was required to perform back-up teller duties (which were generally regarded as less desirable duties) more frequently than a younger coworker. Each time the Complainant was directed to perform back-up teller duties would be considered a discrete act. As a result, the complaint was untimely filed as it related to those back-up teller assignments which predated the actionable statute of limitations period. Lau v. Latec Credit Union (LIRC, 02/07/03).

A termination is a discrete and completed personnel action which may not be rendered timely through its possible connection to other personnel actions. The continuing violation doctrine is inapplicable in such a situation. Moeller v. County of Jackson (LIRC, 01/27/03).

The Complainant alleged that in 2002, when she was about to retire, she learned that she had lost six months of retirement benefit service as a result of a short period of time when she was off work after having been terminated in 1969 due to a pregnancy (she had subsequently been re-hired). The Complainant filed a complaint alleging sex discrimination in June of 2002. Throughout the Complainant’s tenure at the Respondent, the Respondent had maintained a retirement plan for its employees. The plan provided for a reduction in benefits for every year worked, with a reduction for time not worked. As a consequence of the time the Complainant was not employed during 1969, she received only five-twelfths of a year credit towards her benefit service. The Complainant knew or should have known back in 1969, when her employment was terminated in January and she was later rehired in July, what effect her loss of hours of work would have on her benefit service for the year 1969. The complaint amounts to a claim about the present effects of a past act of discrimination. However, discrimination occurs when the employer acts and the employee knows about it, not when the effects of the action are most painfully felt. Accordingly, the complaint is untimely. Webster v. Appleton Papers (LIRC, 12/23/02).

The Complainant did not establish a continuing violation where he was informed of his demotion and accompanying reduction in pay more than 300 days prior to the date that he filed his complaint. The Complainant’s continued employment did not make the action taken by the Respondent ongoing and continuing discriminatory conduct. His argument that his continued employment caused the alleged discrimination to be ongoing and continuing discriminatory conduct amounts to a claim about the present effects of alleged past discriminatory conduct. The present effects of past discrimination theory involves a situation in which the adverse effects of a past discriminatory act continue into the limitations period. This theory was rejected by the United States Supreme Court in United Airlines v. Evans, 431 U.S. 553, 558 (1977). Eller v. CHR Hansen, Inc. (LIRC, 01/31/02).

There are three viable continuing violation theories. The first theory stems from cases (usually involving hiring or promotion practices) where the employer’s decision-making process takes place over a period of time, making it difficult to pinpoint the exact day the violation occurred. The second theory stems from cases in which the employer has an express, openly espoused policy that is alleged to be discriminatory. The third continuing violation theory stems from cases in which the Complainant alleges that the employer has, for a period of time, followed a practice of discrimination, but has done so covertly, rather than by way of an open policy. In such cases the challenged practice is evidenced only by a series of discrete, allegedly discriminatory acts. (These criteria were set forth in Selan v. Kiley, 969 F.2d 560 (7th Cir. 1992)). Under the third theory, the question is whether the Respondent’s acts were related closely enough to constitute a continuing violation or were merely discrete, isolated and completed acts which must be regarded as individual violations. There are three factors to be used to make this determination. The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuous violation? The second is frequency. Are the alleged acts recurring (e.g., a bi-weekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is the degree of permanence. Does the act have the degree of permanence which should trigger an employee’s awareness of and duty to assert his rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? (These factors were originally enumerated in Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir., 1983)). Talley-Ronsholdt v. Marquette University (LIRC, 02/13/01).

A Complainant may not base her suit on conduct that occurred outside the statute of limitations period unless it would have been unreasonable to expect the Complainant to file a complaint before the statute ran on that conduct. (This is the standard set forth in Galloway v. General Motors, 78 F.3d 1164, 1167 (7th Cir., 1996)). In this case, the Complainant claimed in December of 1998 that the continuous running of a window air conditioner (which continued into the 300-day filing period) was a discriminatory action which could serve as an anchor for earlier alleged discriminatory conduct by the Respondent. The alleged continuous running of the window air conditioner began in the early 1990’s. By no later than the Complainant’s claimed near death in 1993, this should have triggered the Complainant’s awareness of and duty to assert her rights clearly. By then, this should have indicated to her that the continued existence of the consequences of this act was to be expected without being dependent upon a continuing intent to discriminate. Therefore, her complaint relating to terms and conditions of employment was untimely. Talley-Ronsholdt v. Marquette University (LIRC, 02/13/01).

The Complainant alleged that her complaint should be considered timely filed as it related to other alleged incidents of sexual harassment through application of a continuing violation theory. One purpose of applying a continuing violation theory in a context such as this is to protect the employee who would have had no reason to believe that she was being harassed until a series of adverse actions established a visible pattern of discriminatory treatment. Here, the Complainant acknowledged that the alleged harassment began more than one year before she filed her complaint. Obviously, she had formed a belief prior to the actionable period that she was being harassed. This belief triggered the Complainant’s duty to file a complaint, which she failed to do until more than 300 days later. Therefore, the allegations of sexual harassment were properly dismissed as untimely. Massart v. UW (Wis. Personnel Comm., 10/18/00).

The continuing violation doctrine allows a Complainant to get relief for a time-barred act by linking it with an act that is within the time limitations period. Courts treat such a combination as one continuous act that ends within the limitation period. In this case, the question is whether alleged acts of sexual harassment were related closely enough to constitute a continuing violation or whether they were merely discrete, isolated, and complete acts which must be regarded as individual violations. Javenkoski v. DOT (Wis. Personnel Comm., 09/11/00).

A continuing violation can be shown under one of two theories: (1) a continuing course of conduct, or (2) a continuing pattern or practice of discrimination. A continuing pattern or practice of discrimination refers to an openly espoused discriminatory policy that affects an entire class of individuals, such as, for example, a continuing requirement that employes perform Sunday work, or the continued maintenance of different facilities for men and women. The continuing course of conduct theory applies when an individual complainant has been subjected to a series of separate, but related discriminatory acts, at least one of which takes place within 300 days of the filing of the complaint. For example, where an employe has been the victim of unlawful sexual harassment within the 300 day period before the complaint was filed, she may bring suit challenging all related sexually harassing conduct, including that occurring outside the limitations. Belli v. Village of Greendale (LIRC, 12/15/98).

The Complainant did not establish a continuing violation where he contended that the Respondent’s denial of a promotion (which occurred more than 300 days prior to the filing of the complaint) resulted in his being discriminated against in pay within the 300 day limitations period. The denial of a pay increase is a predictable consequence of the denial of a promotion, and it cannot be considered a separate act of discrimination. In considering whether a continuing course of discriminatory conduct exists, the emphasis is not upon the effects of earlier employment decisions, but upon whether any present violation exists. Thus, while the Complainant is now earning less than he might had different employment decisions been made prior to the running of the statute of limitations, this fact cannot be used to revive an otherwise stale discrimination complaint. Belli v. Village of Greendale (LIRC, 12/15/98).

When a Complainant experiences a continuous practice and policy of discrimination, the commencement of the statute of limitation period may be delayed until the last discriminatory act in furtherance of it. Where a continuing violation can be shown, a Complainant is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period. In this case, the complaint was timely because it alleged that there was an on-going policy or practice by the Respondent of engaging in or permitting sexual harassment to create a hostile work environment that continued through the Complainant's last day of work. Eckstein v. City of Neenah (LIRC, 08/31/95).

There are two basic continuing violation theories: (1) the continuing course of conduct theory, and (2) the continuing pattern or practice of discrimination theory. The con-tinuing course of conduct theory applies when an individual Complainant had been subjected to a series of separate, but related, discriminatory acts, at least one of which takes place within 300 days of the filing of a complaint. The continuing pattern or practice of discrimination theory requires the presence of a continuing discriminatory practice against a class of individuals and a continuing employment relationship. Jeanpierre v. City of Milwaukee (LIRC, 09/01/93).

The Complainant did not establish a continuing violation where she alleged discrimi-nation in benefits provided to her for doing the same work as males, where she was only subject to this allegedly discriminatory practice as long as she actually received compensation for work. Although the Complainant retired within 300 days prior to the filing of the complaint, she was not actually receiving compensation for work during this period. Thus, she was no longer subject to the policy of receiving unequal benefits during the 300-day statute of limitations. She may have continued to suffer from the effects of past discrimination, but there was no present violation which had continued into the limitations period. Jeanpierre v. City of Milwaukee (LIRC, 09/01/93).

To successfully plead a continuing violation, the Complainant must show that some illegal act, part of a continuing pattern of violations, took place during the 300 days prior to the filing of the complaint. Where more than 300 days passed between the incidents, the alleged discriminatory actions were too sporadic to be found to be a continuing practice. Brye v. Brakebush Bros. (LIRC, 01/11/93).

To establish a continuing violation, a Complainant must demonstrate a substantial rela-tionship or nexus between the timely and untimely claims. In making this determination, a relevant factor is whether the timely and untimely acts involved the same type of discrimination and, thus, tend to connect them in a continuing violation. The Complainant in this case failed to establish a continuing violation where the evidence established that the Complainant's untimely claims of discrimination with respect to privileges and conditions of employment last occurred almost six months prior to her timely claim of discrimination with respect to termination. This decision was bolstered by the fact that the timely claim of discriminatory discharge was significantly different from the untimely claim of discrimination with respect to privileges and conditions of employment. Rangel v. City of Elkhorn (LIRC, 09/30/92).

A complaint of public accommodations discrimination was timely where the complaint alleged that different shower and dressing facilities were provided for men and women at a health club. The Complainant, a male, had first joined the health club several years prior to the filing of his complaint. His complaint was timely because the maintenance of different facilities is a continuing act. Malecki v. Vic Tanny Int'l. of Wis. (LIRC, 08/07/92).

The Complainant alleged that she had been discriminated against on the basis of her creed because the Respondent denied group health insurance coverage for Christian Science practitioner expenses. The complaint was filed more than 300 days after the Complainant terminated her group health insurance coverage. However, the Respondent's policy prohibiting reimbursement of Christian Science practitioner expenses was a continuing violation. Therefore, the complaint was timely. Lazarus v. Department of Employe Trust Funds (Wis. Personnel Comm., 02/15/91).

A Complainant may successfully claim a continuing violation by showing that an employer maintained an openly espoused discriminatory policy alleged to be discriminatory; that the violation continued into the relevant time period; and that the Complainant remained employed and subject to the policy during the limitation period. In this case, the Respondent instituted a policy of mandatory work on Sunday. The Complainant filed a religious discrimination claim nearly four years after the Respondent instituted its policy. The complaint was timely under the continuing violation theory. Hyler v. Nekoosa Papers (LIRC, 01/28/91).

The Complainant indicated on the complaint form that the most recent date that the Respondent had discriminated against him was "daily." However, the allegation in the handicap discrimination portion of the complaint clearly arose out of events which occurred more than 300 days prior to the filing of the complaint. The continuing violation theory is inapplicable to a single, completed act of alleged discrimination. Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination. Hyler v. Nekoosa Papers (LIRC, 01/28/91).

A layoff is not a continuing violation. Oehlke v. Moore-O-Matic (LIRC, 07/26/88).

The monthly retirement annuity of protective occupation employes is, under statute, reduced by a certain amount for each quarter year that elapses after a calendar year in which the participant obtains age 55. Complainant retired at age 55 in order to not have his benefits thus reduced. More than 300 days after his retirement, he filed a complaint of discrimination alleging that he was forced to retire because of that provision. This was not a continuing violation. A true continuing violation involves an employer's ongoing policy that affects the employe continually. Here, the employe is not complaining about how the provision affected his retirement benefit, since - because he retired at 55 - it is not affecting his benefits; he complains only that he was forced to retire at age 55. Pelikin v. DNR (Wis. Personnel Comm., 06/24/87).

The continuing violation theory may be seen as consisting of three sub-theories: (1) a continuing course of conduct or a series of acts with one independent discriminatory act occurring within the charge filing period; (2) the maintenance of a system or policy which discriminates; or (3) the present effects of past discrimination. The third sub-theory is no longer viable under United Air Lines Inc. v. Evans. Proof of the applicability of the first sub-theory requires demonstration of a series of acts that are sufficiently related in nature so as to transcend the time limitations. Discrete employment actions of a different nature occurring at different times may not be so related as to support a continuing violation theory. Poole v. DILHR (Wis. Personnel Comm., 12/06/85).

An employer's repeated refusals to rehire an employe do not constitute a continuing violation for the purpose of measuring timeliness. Peronto v. Leicht Transfer and Storage (LIRC, 03/02/84).

A complaint which challenges a job classification constitutes an allegation of continuing discrimination for purposes of measuring timeliness. Wis. Fed. of Teachers v. Department of Personnel (Wis. Personnel Comm., 04/02/82).

A complaint by a woman that she was paid less than a similarly situated male employe states a claim of continuing discrimination. This is distinguishable from a discrete personnel transaction which, over the years, has a cumulative effect on an employe's salary. Hoepner v. DHSS (Wis. Personnel Comm., 06/30/81).

A complaint against one agency for discriminatory wages was not timely when it was filed more than 300 days after the employe transferred to another agency; and the employe's allegation that the lower wage paid by the first agency resulted in a lower entry wage paid to her by the second agency did not constitute continuing discrimination. Jacobson v. DILHR (Wis. Personnel Comm., 04/23/81).

[ Introduction to the ER Digest]       [ Subject Matter Index - Full) ]
[ Subject Matter Index - Hypertext)]       [ Alphabetical Topic List ]       [ Case Table ]

711.3 Tolling of time to file complaint; equitable estoppel

Application of equitable estoppel should be premised on a showing of the Complainant's actual and reasonable reliance on the Respondent's conduct or representations, and evidence of improper purpose on the part of the Respondent, or of the Respondent's actual or constructive knowledge of the deceptive nature of its conduct. In this case, it was unreasonable for the Complainant to rely on comments by the Respondent, which were not deceptive in nature. Therefore, there was no basis for tolling the statute of limitations. Dieter v. Richland Center Foundry (LIRC, 07/24/12).

The complaint in this matter was filed 323 days after the Complainant was discharged by the Respondent. The Equal Rights Division dismissed the complaint on statute of limitations grounds. On appeal, the Labor and Industry Review Commission determined that due process required that the Complainant be provided an opportunity for a hearing at which she could attempt to prove that it was only after some time had passed without the her being rehired (while others were rehired) that the Complainant began to realize that the Respondent did not have any intention of reinstating her employment. Dykstra v. Rhodes Int'l. (LIRC, 03/29/12).

The complaint in this case was not timely filed and there was no basis for tolling the statute of limitations. The Complainant submitted statements that she has been diagnosed with attention deficit disorder; however, the documentation she provided did not establish that she was entirely incapable of bringing a legal action or discovering the information needed for her claim. The fact that the Complainant did ultimately get her complaint filed, and that she understood the effect of the statute of limitations when she found out about it, show that her condition was not something that made her entirely incapable of acting on her rights within the statute of limitations period. Kiefer v. Caring Alternatives (LIRC, 04/29/11).

The Wisconsin Fair Employment Act does not recognize ignorance of one's rights as a basis for overlooking the statute of limitations. The law expects that individuals will show a reasonably prudent regard for their rights. Kiefer v. Caring Alternatives (LIRC, 04/29/11).

In order for a Complainant to invoke equitable estoppel there must be evidence that the Respondent took active steps to prevent the timely filing of a complaint, such as hiding evidence or promising not to plead the statute of limitations. In this case, the Respondent's alleged promise to look into the Complainant's disagreement with the reasons for his termination did not include any requests that he not file a complaint. Nor did the Respondent give the Complainant any indication that any investigation it did could result in the reversal of its decision to terminate his employment. The Respondent did not do anything that would warrant the tolling of the statute of limitations in this case. Parker v. Tri-County Memorial Hospital (LIRC, 03/25/11).

Equitable estoppel comes into play if the Respondent took active steps to prevent the Complainant from filing a complaint in time, such as by hiding evidence or promising not to plead the statute of limitations. Among other things, the granting of equitable estoppel should be premised upon: (1) a showing of the Complainant?s actual and reasonable reliance on the Respondent?s conduct or representations, and (2) evidence of improper purpose on the part of the Respondent, or of the Respondent?s actual or constructive knowledge of the deceptive nature of its conduct. Equitable tolling comes into play where a Complainant is unable to obtain vital information bearing on the existence of his claim due to wrongdoing by the Respondent. The Complainant in this case did not establish any wrongdoing by the Respondent. Schulke v. Mills Fleet Farm (LIRC, 06/04/10).

Equitable tolling may apply when the untimeliness of the complaint was due to errors by the Equal Rights Division. The Complainant in this case did not establish that the Equal Rights Division had misled the Complainant in any way. Schulke v. Mills Fleet Farm (LIRC, 06/04/10).

Equitable tolling may be appropriate where the Complainant?s failure to comply with the statute of limitations is attributable to the Complainant?s medical condition. However, equitable tolling is not appropriate where the Complainant has made only a vague claim, without a particularized description of how his condition adversely affected his capacity to function generally or in relationship to the pursuit of his rights. In this case, the Complainant did not state when he was diagnosed with cancer; nor did he submit any medical information regarding his diagnosis of cancer and how it might have affected his capacity to function generally or in relationship to the pursuit of his rights. Schulke v. Mills Fleet Farm (LIRC, 06/04/10).

The Complainant asserted that he has a disability of ?mental retardation.? Mental incapacity might be sufficient to toll the filing period, but only if the individual was entirely incapable of filing the legal action or discovering the vital information for the claim. The Complainant did not affirmatively assert that his mental condition prevented him from timely filing a complaint against his employer. Nor did he submit any medical evidence which would support a showing that his mental condition was so disabling that it rendered him incapable of filing a timely complaint. Brantner v. Goodwill Industries (LIRC, 02/19/10).

A limited period of incapacity does not toll the running of the statute of limitations indefinitely.  In this case, even if the statute of limitations were to be tolled for the 51 days during which the Complainant's psychiatrist contended he was incapacitated during the limitations period, there was nothing to indicate that the Complainant had been too impaired to understand or act on his legal rights during the first 249 days of the 300-day filing period.  Albino v. Iglesia Metodista Unida Cristo En Tu Ayuda (LIRC, 07/25/08).

The 'discovery rule' is read into the statute of limitations and postpones the beginning of the limitations period from the date the Complainant was wronged to the date when the Complainant discovered that he or she has been injured.  The limitations period does not begin to run until the facts that would support a charge of discrimination were apparent, or should have been apparent, to a person with a reasonably prudent regard for his or her rights.  Williams v. Four Points Sheraton Hotel (LIRC, 03/21/08).

While mental incompetence has sometimes been found to be a justifiable basis for tolling the statute of limitations, there was nothing in this case which supported tolling the statute of limitations on that basis. The Complainant failed to affirmatively assert that her depression did, in fact, cause her to miscalculate the filing deadline. Further, the Complainant did not submit 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. Berg v. Agape of Appleton (LIRC, 09/22/06).

During the 300-day filing period, the Complainant sent a letter to the Respondent in an attempt to avoid termination. The Complainant did not send his letter to the Equal Rights Division or to any other authorized agency. The Complainant later argued that the Respondent's failure to forward his letter to the Equal Rights Division constituted fraud and that the Respondent should be estopped from raising the statute of limitations as a defense to the complaint he filed after the 300-day filing period. The Respondent had no duty to serve as the Complainant's advocate or agent. Moreover, the Complainant did not assert that the Respondent misinformed him about the complaint-filing process or otherwise misled him in regard to this matter. The complaint was appropriately dismissed because it was not timely filed with the Equal Rights Division. Rowry v. Schneider Training Academy (LIRC 01/13/06).

The Complainant argued that the filing deadline should be extended because the Respondent denied him access to certain records during the actionable 300-day filing period. This argument was rejected because, despite the Respondent's alleged denial of access to certain records, the Complainant had reason to suspect during the filing period that retaliation may have been a motive for his termination. Welsh v. Dept. of Corrections (LIRC 01/13/06).

The Complainant sent correspondence relating to a consumer complaint filed against the Respondent to the Attorney General of Illinois within the 300-day filing period; however, this did not toll the statute of limitations under the Wisconsin Fair Employment Act. Illinois does not have a work-sharing agreement with the Equal Rights Division, or any other authority for accepting filings under the Wisconsin Fair Employment Act, and filing a complaint with a consumer protection agency in another state does not otherwise satisfy the requirements for filing a WFEA complaint with the Equal Rights Division of the State of Wisconsin. Rowry v. Schneider Training Academy (LIRC 01/13/06).

The Complainant unsuccessfully argued that his failure to timely file a complaint should be excused because he was relying upon advice from his union representative in prosecuting his claim.  Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05)

The statute of limitations begins to run when the Complainant receives actual or constructive notice of the allegedly discriminatory adverse employment action, not when the Complainant forms a belief that he was discriminated against when this action was taken. Although a Respondent's subsequent treatment of similarly situated employees could be relevant to the issue of discrimination, it does not serve to toll the limitations period. The Complainant in this case was aware in December of 2001 that a successor corporation would not be employing him in any capacity. The Complainant's termination was effective in March of 2002. At that time the Complainant learned that the new corporate entity had selected a younger person for the regional leader position for which he believed he was qualified. Neither the fact that the Complainant may not have formed a belief that he had been discriminated against in regard to his involuntary separation until he learned that a younger person had been selected for the regional leader position, nor the fact that his termination was not effected until March of 2002 would operate to toll the statute of limitations. The operative date for computing the Complainant's 300-day filing period was the date in December of 2001 when he learned that the new corporate entity would not be employing him. Maynard v. Cummins Npower (LIRC, 01/28/04).

Even if it can be found that the Respondent attempted to mislead or misrepresent the facts to a Complainant in order to prevent him from filing a timely complaint, 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. Washington v. United Water Serv. (LIRC, 08/15/03).

The doctrine of equitable estoppel, also known as "fraudulent concealment," applies to situations in which the Respondent takes active steps to prevent the Complainant from filing a complaint in time, such as by hiding evidence or promising not to raise the statute of limitations defense. 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 the 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. Washington v. United Water Serv. (LIRC, 08/15/03).

Although the Complainant’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 her incapacity reaches such a level that she was incapable of filing a complaint within the requisite time period. The Complainant did not meet this burden. She did not submit 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 Equal Rights Division throughout the 300 day charge-filing period. Wilson v. Doskocil Foods (LIRC, 07/30/03).

A complaint must be filed within 300 days of the date of the alleged discrimination unless a reason exists for the filing deadline to be equitably tolled. A Respondent’s awareness that the Complainant believed that he had been discriminated against, or that the Complainant intended to file a complaint, does not satisfy the test for equitable tolling. The Complainant’s argument that the Respondent in this case could not claim surprise that the Complainant filed a discrimination complaint because the Complainant had previously filed a complaint with the U.S. Department of Labor was rejected. Moeller v. County of Jackson (LIRC, 01/27/03).

The Complainant contended that the filing deadline should be equitably tolled since the Respondent failed to properly respond to open records requests filed by the Complainant after his termination. However, the Complainant had formed the belief that he had been retaliated against by the date of his termination. Since a Complainant need only provide a general statement describing the alleged retaliatory action in the complaint, the Respondent’s failure to provide the requested information did not prevent the Complainant from having adequate information upon which to make his complaint. The Complainant’s dispute with the Respondent relating to his post-termination open records requests did not justify the Complainant’s untimely filing of the complaint. Moeller v. County of Jackson (LIRC, 01/27/03).

The Complainant contended that the Respondent should not be allowed to raise the affirmative defense that the complaint was not timely filed because the Respondent had informed him that it was willing to waive the time limitations. However, the record supports a finding that the Complainant’s supervisor had a good faith belief that she only was waiving the time limits for filing a non-contractual grievance. Further, the Complainant failed to establish that he was justified in relying on his supervisor’s comment as a waiver of the statutory time limit for filing a complaint under the Wisconsin Fair Employment Act, as opposed to waiver merely of the time limit for filing a non-contractual grievance. Therefore, it was not inequitable to allow the Respondent to invoke the 300-day statute of limitations under the Act. Adam v. DNR (Wis. Personnel Comm., 12/20/02).

Equitable estoppel is available only if the employee’s otherwise untimely filing was the result of either a deliberate design by the employer, or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge. Josellis v. Pace Industries (LIRC, 06/21/02).

An allegation of negligence on the part of an attorney does not warrant tolling the statute of limitations. Johnsrud v. Prairie du Chien Memorial Hosp. (LIRC, 06/21/02).

Individuals claiming equitable estoppel against a state agency must show the following elements: (1) That the claiming individual relied, (2) to his detriment, (3) upon an action or inaction by a state agency, (4) that resulted in a serious injury, and (5) the public’s interest would not be unduly harmed by application of estoppel. In this case, a motion to dismiss the complaint on timeliness grounds was dismissed where, accepting what the Complainant said as being true, he established a claim of equitable estoppel where his supervisor stated that she would waive time limits on formal actions and the Complainant relied on this to his detriment because he did not file his complaint within the 300-day time limit. Adam v. DNR (Wis. Personnel Comm., 02/11/02).

Lack of familiarity with the law does not toll a statutory filing period. Javenkoski v. DOT (Wis. Personnel Comm., 08/28/00).

Many complainants are laypersons. Layperson status does not justify extending the statute of limitations. Fester v. Kurt G. Joa, Inc. (LIRC, 08/25/00).

Even if the Complainant could demonstrate that his complaint was late due to negligence on the part of his attorney, this would not justify tolling the statute of limitations. Belli v. Village of Greendale (LIRC, 12/15/98).

The Complainant’s mental illness tolls the statute of limitations only if the illness in fact prevents the sufferer from managing his affairs and, thus, from understanding his legal rights and acting upon them. Osegard v. Wisconsin Physicians Serv. (LIRC, 08/13/98).

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 such as those issued by the EEOC. Rather, the question to consider is whether the Complainant was generally aware that she had a legal right to be free from discrimination. Gruhle v. Random Lake School Dist. (LIRC, 06/19/98).

The Complainant did not establish a sufficient basis for tolling the statute of limitations where she asserted that she filed the complaint late due to "medical/physical problems." The Complainant presented no competent medical evidence to show that she was incapable of handling her affairs or comprehending her legal rights during the entire 300 day period following her discharge. Durham v. Emjay Corp. (LIRC, 03/26/97).

The application of the doctrine of equitable tolling was not warranted where the Complainant alleged that he was misled by his attorney into believing that he had waived his right to file a fair employment claim by collecting unemployment compensation benefits. Gartmann v. Ideal Door Co. (LIRC, 07/03/96).

Employes are required to exercise reasonable diligence by requesting an explanation for unfavorable employment actions when there is sufficient information available to them that should have, in their minds, raised a suspicion of discrimination. In this case, the Complainant did not inquire into the Respondent's reasons for not hiring him. After the three hundred day statutory limit for filing a complaint had expired, he was informed that the job he had applied for had been "targeted for a woman." The Complainant did not establish a sufficient basis for tolling the three hundred day statute of limitations. Young v. Madison Water Utility (LIRC, 01/18/96).

The application of equitable estoppel against the employer is justifiable only where the employer has knowingly been untruthful. When the employer offers a specific, objective factual statement which an unsuccessful job applicant might reasonably rely on to allay their concerns about whether their rejection was for a non-discriminatory reason, it could be considered to equitably estop the employer from reliance on the statute of limitations if it is later proven to be untrue. Sunn v. School Dist. of Poynette (LIRC, 07/24/95), aff'd. sub nom. Sunn v. LIRC (Dane Co. Cir. Ct., 02/19/96).

The application of equitable estoppel against the employer is justifiable only where the employer has knowingly been untruthful. When the employer offers a specific, objective factual statement which an unsuccessful job applicant might reasonably rely on to allay their concerns about whether their rejection was for a non-discriminatory reason, it could be considered to equitable estop the employer from reliance on the statute of limitations if it is later proven to be untrue. Sunn v. School Dist. of Poynette (LIRC, 07/24/95).

Employes have an obligation to exercise reasonable diligence to discover essential information bearing on their claim. If they fail to exercise such reasonable diligence, any ignorance they suffer from is not "excusable" and equitable tolling may not be invoked. However, when an employer volunteers or otherwise provides a reason for the discharge, the situation is different. If a person is already in possession of information which casts doubt on the reason they received from the employer, it may not be reasonable for them to simply sit on their rights in the face of this knowledge. In this case, the Respondent told the Complainant that he was chosen for layoff because he made the most money and because his work performance was not up to par. The Complainant consistently argued that the allegations regarding his work were untrue. Additionally, the fact that a younger man remained employed in the Complainant's department, coupled with the Respondent's comments about his salary, would have or should have caused a reasonably prudent person to surmise that the discharge may have been based on the Complainant's age. Therefore, there was no basis in this case for tolling the statute of limitations. Kniess v. EGA Products, Inc. (LIRC, 06/23/94).

The Respondent was not equitably estopped from asserting the statute of limitations as a defense because its attorney incorrectly represented to the Complainant's attorney that the Complainant was required to exhaust internal remedies prior to filing a complaint. The Complainant's attorney's reliance on the representation made by the Respondent's attorney were not reasonable. Case law establishes that participating in a grievance procedure does not toll the running of the statute of limitations for commencing an action under the Wisconsin Fair Employment Act. The Complainant's attorney had an obligation to look up the statute of limitations and determine through independent research whether he was required to follow the Respondent's internal procedures prior to filing a complaint with the Department. Perri v. DILHR (LaCrosse Co. Cir. Ct., 04/25/94) .

The two equitable doctrines relevant to the statute of limitations are equitable tolling and equitable estoppel. Equitable tolling is a doctrine that treats the running of the statute of limitations as being suspended for the duration of any period in which the Complainant is excusably ignorant of the employer's discriminatory act. Equitable estoppel, by contrast, is a doctrine that treats the employer as being estopped from raising the statute of limitations as a defense if the employer has misrepresented or concealed facts necessary to support a discrimination charge. The concepts of equitable estoppel and equitable tolling "intertwine" where the Complainant is excusably ignorant of the employer's discrimination because the employer has misrepresented or concealed facts. When an employer gives no reason for an employment action and no reason is apparent from facts already known by the person affected, or when the employer gives a reason which is inconsistent with facts already known by the person affected, the person affected may not later claim some equitable basis for relief from the statute of limitations if they take no steps to learn what the reason for the action was. However, if the employer does give a reason, and if it is not inconsistent with or rendered doubtful by facts already known to the person affected, then the person affected will reasonably rely on this reason given. Their ignorance of an alleged real reason which they subsequently learn of is, in these circumstances, reasonable; it is also inequitable in such circumstances for the employer to raise the statute of limitations as a defense. Sunn v. School Dist. of Poynette (LIRC, 08/17/93).

The statute of limitation will be tolled if the employer makes a misrepresentation of its intent to remedy an unlawful practice. The burden of establishing facts sufficient to justify tolling of the filing period is on the Complainant. Wright v. DOT (Wis. Personnel Comm., 02/25/93).

An employe who was informed of the termination of his employment on March 19, 1990 was required to file his claim alleging discriminatory discharge within 300 days of the March 19, 1990 date. The employe's attempts, through the employer's post- termination procedures, to regain his position did not toll the statute of limitations period. Hoefs v. Perlman-Rocque, Whitewater (LIRC, 09/16/92).

Where a Complainant argues that the statute of limitations should be equitably tolled because the Respondent did not have informational posters concerning applicable anti-discrimination laws posted at the workplace as required by the Age Discrimination in Employment Act, the Department will analyze the Complainant's arguments by reference to sec. Ind 88.21, Wis. Adm. Code, which is the posting requirement established by the Equal Rights Division. In this case, the Complainant's claim for equitable tolling was rejected, even if the Respondent did not post the required posters. The failure to post notices is only considered legally significant if the employe is genuinely ignorant of the illegality of discrimination which the notice, if it had been posted, could have informed him of. Olson v. Lilly Research Laboratories (LIRC, 06/25/92). [Ed. note: sec. Ind 88.21, Wis. Adm. Code, has been renumbered sec. DWD 218.23, Wis. Adm. Code].

There are two related doctrines whereby a Complainant may modify the length of a filing period: equitable estoppel and equitable tolling. Equitable estoppel occurs where an employe is aware of his rights but does not make a timely filing due to his reasonable reliance on his employer's misleading or confusing representations or conduct. The employer must be shown to have either an improper purpose or constructive knowledge of the deceptive nature of his conduct. Equitable tolling is premised on a party's excusable ignorance of their statutory rights. It can be found to toll the statute of limitations if the excusable ignorance is caused by the failure of the employer to conspicuously post informational notices required by law. Even where an employer has failed to post, the appropriateness of equitable tolling continues only until the employe receives actual notice or contacts an attorney. The required knowledge of the law is not the details of the statute of limitations or other procedural niceties of the anti-discrimination statutes, but merely of the general fact that discrimination is unlawful. Olson v. Lilly Research Laboratories (LIRC, 06/25/92).

A person's hope that an employer will reverse an adverse decision, when that hope has not been induced by statements or actions of the employer, is an inadequate basis on which to find equitable estoppel which would modify the length of the filing period. Olson v. Lilly Research Laboratories (LIRC, 06/25/92).

There are circumstance where a Complainant may be allowed to file a complaint of discrimination even though the filing of the complaint occurs beyond the 300-day limitations period. The doctrine of equitable estoppel comes into play if a Respondent takes active steps to prevent the Complainant from suing in time. The doctrine of equitable tolling comes into play where a Complainant, despite due diligence, is unable to obtain vital information bearing on the existence of his claim (i.e., information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the Respondent). Similarly, equitable tolling may apply when the untimeliness of the complaint was due to errors by the fair employment practice agency. There were no such errors here. The Equal Rights Division investigator issued an Initial Determination making a finding on a constructive discharge claim when that issue had not been raised by the complaint. However, the Complainant was represented by legal counsel within only a few days of the issuance of the Initial Determination. The Complainant's counsel should have noted that, although there was a finding of constructive discharge in the Initial Determination, there was no claim of constructive discharge in the complaint. At the time that the Complainant retained legal counsel, several months still remained before the expiration of the 300-day statutory filing period. Equitable tolling is inappropriate when the Complainant has consulted an attorney during the statutory limitation period. James v. Associated Schools, Inc. (LIRC, 11/27/91).

The Complainant was denied leave to amend the complaint because the amendment was untimely. There was no merit to the Complainant's claim that the statute of limitations should have been tolled because of his alleged disability where the Complainant: (1) was represented by legal counsel and told his counsel of the factual basis for his amendment months before the statute of limitations expired, and (2) filed an unemployment compensation claim and testified at a hearing on that claim well before the statute of limitations on his equal rights claim expired. Wilson v. Coplan's Appliance (LIRC, 10/10/89).

The Complainant's lack of knowledge of the law does not toll the running of the statute of limitations. Gillett v. DHSS (Wis. Personnel Comm., 08/24/89).

Where the Complainant received notice of his termination and the complaint was filed 417 days later, the complaint was untimely despite the Complainant's filing of a grievance with the union within the 300 day period. Landrum v. DILHR (Yellow Freight) (Milw. Co. Cir. Ct., 03/06/89).

The filing of a contractual grievance concerning an employment action does not toll the running of the statute of limitations. King v. DHSS (Wis. Personnel Comm., 08/06/86).

The 300-day filing limit is not a jurisdictional prerequisite to suit. It is a statute of limitations which is subject to waiver, estoppel, and equitable tolling. Milwaukee County v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).

The 300 day limitation period does not stop running even though a contractual grievance is filed. Hoepner v. DHSS (Wis. Personnel Comm., 06/30/81).

[ Introduction to the ER Digest]       [ Subject Matter Index - Full) ]
[ Subject Matter Index - Hypertext)]       [ Alphabetical Topic List ]       [ Case Table ]
[Previous Sections]       [Next Sections
Wisconsin Labor and Industry Review Commission (LIRC)LIRC Home Page

  Top of Page

 

 

  LIRC Home

Please direct questions or comments about this website to LIRC.