742 Answer

The purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party. In this case, the Respondent raised the affirmative defense that the Complainant’s conviction was substantially related to the job in question in its response to the investigator and the Complainant was aware prior to the hearing that the Respondent intended to argue that his convictions were substantially related to the job. Given the Complainant’s extensive experience litigating essentially the same issue before the Equal Rights Division, there was no risk that he would be blindsided by a substantial relationship defense, whether or not the Respondent raised it prior to the hearing. Jackson v. Millis Transfer (LIRC, 09/28/12).

The failure to raise an affirmative defense in an answer does not constitute a waiver if this failure was not unfair or prejudicial to the Complainant. The purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party. In this case, the Complainant anticipated that the Respondent would raise the defense that his conviction was substantially related to the circumstances of the job. The Complainant was not prejudiced by the Respondent’s failure to raise that defense in an answer. The Respondent’s failure to raise the substantial relationship affirmative defense in an answer did not constitute a waiver of the defense. Ward v. Home Depot (LIRC, 10/21/05).

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).

The substantially related defense to a claim of conviction record discrimination constitutes an affirmative defense. The substantially related defense does not depend on a denial of the claim of discrimination, but instead argues that new matter constitutes a defense even assuming the allegations of the complaint to be true. However, prior case law has established that the failure to raise the statute of limitations defense in a timely manner does not constitute a waiver of that defense if the failure to raise it was not unfair or prejudicial to the Complainant. The principal purpose of the rule concerning timely assertion of the defense is to assure that the Complainant against whom it is raised will have enough advance notice of the assertion of the defense to prepare to meet it at the hearing. The substantial relationship defense in this case, similarly, would not be waived because the Complainant was well aware of the defense and he was not prejudiced by the Respondent’s failure to raise the defense in the answer. Jackson v. Summit Logistic Serv.s (LIRC, 10/30/03).

Failure to mitigate damages is an affirmative defense which must be pled in the Respondent’s answer. Radlinger v. Kentucky Fried Chicken (LIRC, 06/20/03).

After the hearing, and after the Administrative Law Judge issued a preliminary decision finding that the Respondent had unlawfully discriminated against the Complainant, the Respondent moved to amend its answer to raise a question of failure to mitigate damages. The administrative rules relating to hearings before the Equal Rights Division provide that a complaint may not be amended less than 20 days before hearing unless good cause is shown. Although the rule dealing with answers is silent on when amendment is permitted, one may infer a 20-day rule applies to amendments offered to raise affirmative defenses in answers as well. Further, even if sec. 802.09(2), Wis. Stats., applied to cases before the Equal Rights Division, the statute does not authorize raising entirely new, unlitigated causes of action or affirmative defenses after the conclusion of the hearing. Kalsto v. Village of Somerset (LIRC, 10/03/00).

While the Respondent was asked to raise the statute of limitations issue in its initial response to the complaint, its failure to do so at that time did not constitute a waiver of the issue. The Respondent raised the issue in a timely filed answer after the notice of hearing was issued. Ault v. Allen Bradley Co. (LIRC, 02/05/98).

The Respondent was not foreclosed from raising a statute of limitations defense shortly before the hearing, even though it failed to establish good cause for not raising the defense in a timely filed answer. In this case, there was no prejudice to the Complainant. ittelsteadt v. A.J. Air Express (LIRC, 01/16/98).

There is no right to a “default” decision even if a Respondent fails to file an answer. Polesky v. United Brake Parts (LIRC, 08/30/96).

The Respondent need only raise the statute of limitations defense in its answer in order to preserve that defense. In this case, the Respondent filed its answer three days late and apparently said nothing about its statute of limitations defense at the hearing. The Labor and Industry Review Commission nevertheless determined that the untimeliness of the Complainant's claim of discrimination was evident from a simple reading of the charge of discrimination, and it, therefore, dismissed the complaint as untimely. Wilson v. Burnett County Sheriff’s Dep’t (LIRC, 09/29/95), aff’d sub nom. Wilson v. LIRC (Burnett Co. Cir. Ct., 02/22/96).

The fact that the Respondents were not represented by legal counsel at the time the answer was filed does not constitute good cause for the Respondents’ failure to timely raise the statute of limitations defense. Olson v. Servpro of Beloit (LIRC, 08/04/95).

In a case under the Wisconsin Family and Medical Leave Act, the Respondent should be given an opportunity to show good cause for failing to raise the statute of limitations defense in a timely filed answer before the Department makes a finding that the affirmative defense has been waived. Manor Healthcare Corp. v. DILHR (Dane Co. Cir. Ct., 05/12/94).

The Respondent's failure to raise the issue of the statute of limitations until two weeks before the hearing did not bar the Respondent from raising the issue where the Complainant did not object to the Respondent raising the issue either at the time the defense was raised or at the hearing, and where the Complainant had a sufficient amount of time and opportunity to prepare and present evidence on the issue of timeliness because of the protracted hearing schedule. Rangel v. City of Elkhorn (LIRC, 09/30/92).

Not raising an affirmative defense, including the statute of limitations defense, in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense. Blohm v. Holiday Inn (LIRC, 01/31/90).

Where the Division's rules did not provide any penalty for a Respondent's failure to file its answer on a timely basis, the Commission would not hold that the Respondent waived the statute of limitations defense by failing to raise it in a timely filed answer where there was no prejudice to the Complainant. Oehlke v. Moore-O-Matic (LIRC, 07/26/88). [Ed. note: The Division's rules now provide that the failure to raise the defense of the statute of limitations in an answer may, in the absence of good cause, be held to constitute a waiver of the defense.]

The statute of limitations defense is waived if not raised in the answer to the complaint. Tamsett v. City of Milwaukee (LIRC, 01/25/88).

The Respondent’s failure to timely file an answer to the complaint did not justify reversing the Administrative Law Judge’s decision dismissing the complaint, where there was no claim of prejudice because of the failure of the Respondent to file an answer or of any other unfairness in connection therewith alleged to have been committed by the Respondent. Sawi v. Embassy Restaurant & Lounge (LIRC, 03/11/87).

Failure to submit a timely answer does not justify summary judgment for Complainant where the employer had stated its position at previous stages in the complaint process. Bullock v. Milwaukee County (LIRC, 10/15/82).

An employer is required to file an answer giving the Complainant notice of the issues and defenses and, where the employer fails to do so, a timely raised objection, together with evidence supporting a showing of prejudice to the Complainant, would warrant a new hearing after receipt of an answer. However, where the Complainant specifically responded to the issues presented by the employer at the hearing, a new hearing was not required. Smith v. Prairie Homes (LIRC, 08/12/81).