711 Timeliness

The ERD does not have a work-sharing agreement with the New York Division of Human Rights, so filing a complaint with that agency did not constitute filing a complaint with the ERD. Rhyne v. Resource Marketing Corp. (LIRC, 03/30/23).

The 300-day filing limit is not a jurisdictional requirement under the WPAAL. It is a statute of limitations that is subject to waiver, estoppel, and equitable tolling. Sellars v. Nat. Railroad Passenger Corp.(LIRC, 12/22/23). NOTE: This case has been appealed to circuit court.

The Equal Rights Division does not lose competency to proceed on an untimely complaint but will dismiss the complaint when the Respondent successfully raises the affirmative defense that the complaint was untimely filed. Pospychala v. Pine Crest Nursing Home (LIRC, 09/17/21).

In order to toll the statute of limitations when failure to comply with the statute of limitations is due to a medical condition, a Respondent must establish, through competent medical evidence that, because of the medical condition, the Complainant was "entirely incapable of bringing a legal action" during the entire filing time period. Ostopowicz v. United Health Care (LIRC, 03/30/20).

The Complainant’s employment was terminated after she had been out on disability leave for years. The employer never informed the Complainant of the termination, as required by her union contract. The Complainant only found out she was terminated when she contacted the employer over a year later about returning to work. She then filed her complaint within 300 days of learning that she no longer had a job. While under some circumstances an employee might have a responsibility to remain apprised of her employment status during the course of a lengthy leave of absence, given the Respondent’s failure to adhere to its contractual obligation to send the Complainant written notice of the termination the complaint in this case was not time-barred under a “should have known” theory. Ronette v. Gen. Motors, LLC (LIRC, 01/15/15).

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. DOC (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 Sch. Dist. (LIRC, 08/24/04).

Even if the Complainant had been unsure for several months where to file his complaint, this would not be 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. Pers. Comm’n, 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. Wis. Lottery (Wis. Pers. Comm’n, 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. Pers. Comm’n, 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).

Because the 300-day requirement for filing a charge of discrimination can be waived, a Complainant who fileslate 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).

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. Univ. of Wis. (Wis. Pers. Comm., 11/09/83).