711.1 Measurement of timeliness

The Complainant’s contention that he did not learn he had not been selected for a job until years after the fact was rejected. A reasonable person would conclude that he had not been hired for a position within months of submitting an application and receiving no response. Further, the Complainant failed to explain what new information he received years later that put him on notice that discrimination might have occurred. Marty v. S.C. Johnson & Son, Inc. (LIRC, 03/31/21).

The term “days” in Wis. Stat. § 111.39(1) refers to calendar days, not business days. Byrne v. Aurora Health Care (LIRC, 01/31/19).

No statute, expressly or by implication, has conferred on the ERD or the ALJ the power to apply the equitable doctrine of laches to dismiss a complaint. Complaint was timely filed with EEOC and cross-filed with the ERD; EEOC completed its investigation and dismissed the complaint, but did not follow its usual practice of notifying ERD, so that the ERD could ask the Complainant if he wanted the ERD to investigate the state complaint. Ten years elapsed before the ERD discovered the dismissal and asked the Complainant if he wanted to pursue the complaint in the ERD. The delay in the case was not due to an untimely filing by the Complainant. Owens v. SBC Commc'ns (LIRC, 03/28/14).

The Complainant’s writing, filed with the ERD on October 15, 2012, was missing some information, which prevented it from being an accepted complaint, but it identified the parties, was signed by the Complainant or an authorized representative, provided the Complainant’s name and address and sufficient information to identify and contact the Respondent, and included a statement of allegations. This was sufficient to secure October 15, 2012 as the filing date of a complaint for purposes of meeting the statute of limitations, when an acceptable version of the complaint was filed on April 23, 2013. Germaine, Xianhong Zhang v. Sussek Machine Corp. (LIRC, 02/13/14).

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. DWD (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 Indus. (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).

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).

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. Dep't 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 (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).

The Respondent’s personnel manager informed the Complainant (a state employee) in writing that his employment had been terminated following a meeting during which the Complainant’s impending discharge had been discussed. However, this letter was ineffective as a matter of law to have effectuated the Complainant’s discharge effective the date of the letter, as it purports to do, because sec. 230.34(1)(b), Stats., requires an appointing authority to furnish a state employee with notice in writing of the reasons for any disciplinary action prior to taking the disciplinary action. As a result, the meeting at which the Complainant’s impending discharge was discussed could not have provided effective notice of the Respondent’s decision to terminate the Complainant’s employment, regardless of what management said. All that management could have done at that point would have been to have provided the Complainant with verbal notice of its intent to discharge the Complainant, which intent could only be carried out by written notice in accordance with sec. 230.34(1)(b), Stats. Since the statutes require that notice of discipline be given in writing to a state employee prior to the effectuation of the disciplinary action, verbal notice of an impending disciplinary action should not be considered effective notice for purposes of triggering the statute of limitations in sec. 111.39(1), Stats. Patera v. UW Sys. (Wis. Pers. Comm’n, 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), aff’d on other grounds sub nom. Walter Color Separations v. LIRC, 266 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 Prod. (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. Sch. Dist. of Beloit (LIRC, 10/21/92).

An employee 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 employee’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 employee, not when the decision becomes effective. Olson v Lilly Research Lab. (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 employees 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 employees were reclassified. Piotrowski v. DILHR (Wis. Pers. Comm’n, 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 employees 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. Pers. Comm’n, 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. Pers. Comm’n, 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. Pers. Comm’n, 02/22/89).

Discrimination occurs when the employer acts and the employee 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 employee, 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 employee 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 employee 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 employee 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 employees 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. Univ. of Wis. Sys. (Wis. Pers. Comm'n, 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 discrimination may have occurred. Gozinske v. DHSS (Wis. Pers. Comm’n, 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. Pers. Comm’n, 11/07/85).

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

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