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704 Effect of bargaining agreement (§111.93(3), Stats.) and additional complainant procedures
The fact that complainant grieved the denial of sick leave under the applicable collective bargaining agreement does not deprive the Commission of jurisdiction over a claim filed under the FMLA. The same absence for medical reasons can be both a medical leave under the FMLA and a sick leave under the contract. Janssen v. DOC, 93-0072-PC-ER, 10/20/93
The Commission's jurisdiction over a Fair Employment Act complaint of discrimination relating to the denial of family health insurance coverage by DETF would not be precluded by the effect of §340.03(i)(j), Stats., providing for appeals to DETF of adverse eligibility determinations. The agencies (DETF and the Personnel Commission) enforce different statutes and DETF cannot address complainant's Fair Employment Act contentions. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92
The 60 day time limit for filing a whistleblower complaint is not tolled by the filing of a grievance of the same transaction. Cleveland v. DHSS, 86-0104-PC-ER, 7/8/87
An informal or contractual review procedure need not be exhausted prior to filing a complaint with the Commission and, in fact, a delay in filing a complaint in order to exhaust such procedures may cause the FEA complaint to be untimely. Teikari v. UW-Green Bay, 87-0001-PC-ER, 4/29/87
The 300 day time limit is not tolled by the filing of a grievance of the same transaction. King v. DHSS, 86-0085-PC-ER, 8/6/86
A request for reconsideration of an earlier decision normally does not toll the running of the period of limitations. A complaint arising from a tenure denial decision was not timely where it was filed more than 300 days after the decision even though the complainant had requested reconsideration of the decision within the 300 day time limit. The reconsideration request bad been denied. Dahl v. UW-Milwaukee, 84-0205-PC-ER, 11/7/85
The 300 day period of limitations for allegations of discrimination is not tolled by the filing of a contractual grievance, citing Electrical Workers v. Robbins & Meyers, Inc., 429 U.S. 299, 13FEP Cases 1813 (1976), and Alexander v. Gardner-Denver Co., 415 U.S. 36, 57-58, 7FEP Cases 81 (1974). Hoepner v. DHSS, 79-191-PC, 6/30/81
The Commission's jurisdiction under subch. II, ch. 111, Stats., is not superseded by §111.93(3), Stats., unless the provisions in the bargaining agreement that are in question related to wages, hours and conditions of employment. That exception was found not to have been met where agreement provided that employes under the agreement were to be covered by the State Fair Employment Act, and, therefore, exclusive jurisdiction to administer the Act for covered employes was not conferred on an arbitrator acting under the agreement. Jones v. DNR, 78-PC-ER-12, 11/8/79
706.01 Generally
Respondent's motion to dismiss the complaint as untimely filed was granted as to claims relating to conditions of employment and the decision to deny tenure to complainant. Complainant's last day of employment was May 24, 1997, which was more than 300 days before she filed her complaint with the Commission. Complainant offered no rationale for concluding that any allegedly discriminatory term or condition of employment extended beyond the date she was employed by respondent. Hedrich v. UW (Whitewater), 98-0165-PC-ER, 2/10/99, affirmed Waukesha County Circuit Court, 99-CV-0500, 12/17/99
Respondent's motion to dismiss the complaint as untimely filed related to the respondent’s decision to deny tenure to complainant. Complainant's last day of employment was May 24, 1997, which was more than 300 days before she filed her complaint with the Commission. A reasonable person similarly situated to complainant would have concluded, on receipt of a memo from the Chancellor on June 28, 1996, that an official and final decision on her application for tenure had been made. Complainant's subsequent efforts to have this decision reviewed were in the nature of requests for reconsideration or for collateral review and did not justify the tolling of the statue of limitations. Hedrich v. UW (Whitewater), 98-0165-PC-ER, 2/10/99, affirmed Waukesha County Circuit Court, 99-CV-0500, 12/17/99
Complainant is charged with receipt of a written notice of his discharge when he actually received it, rather than the later date of when he opened the envelope. Magel v. UW-Madison, 98-0167-PC-ER, 1/27/99
Complainant's whistleblower retaliation claim, filed in July of 1998 and arising from personnel actions leading up to her resignation in September of 1997, was untimely. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98
Complainant's claims under the whistleblower law were untimely filed because they related to events occurring more than 60 days before she filed her complainant, the three actions were discrete events not susceptible to application of a continuing violation theory and complainant became aware of the events at the time they occurred. The fact that complainant may not have formed a belief until later that they were retaliatory did not operate to toll the 60-day filing period, citing Vander Zanden v. DILHR, 87-0063-PC-ER, 1/11/91. Meyer v. UW-Madison, 98-0103-PC-ER, 10/21/98
It is complainant's burden of proof to demonstrate that the allegations raised in his complaint were timely filed. When analyzing this question in the context of respondent's motion to dismiss, it was appropriate to construe the allegations raised in the complaint in a light most favorable to complainant. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Family/medical leave act allegations filed in 1998 arising from complainant's performance evaluation and subsequent lay-off in 1995 were untimely. The question raised was whether a person similarly situated to complainant with a reasonably prudent regard for his or her rights would have made the inquiry necessary to determine whether his or her rights provided by the FMLA were violated. Sheskey v. DER, 98-0054-PC-ER, 6/3/98; rehearing denied, 7/22/98; affirmed by Dane County Circuit Court, 98-CV-2196, 4/27/99
Filing a claim with another entity, albeit a state or federal agency, does not constitute filing with the Personnel Commission. The Commission declined to recognize complainant's earlier filing with the Equal Rights Division as timely on either the basis of "good faith" or "share agreements," citing Ziegler v. LIRC, 93-0031-PC-ER, 5/2/97. Swenby v. UWHCB, 98-0012-PC-ER, 5/20/98
Complainant has the burden to show that the allegations in her charge were timely filed and where she provided no dates in regard to certain allegations, and no dates were apparent from the information provided by the parties, those allegations were untimely. Nelson v. DILHR, 95-0165-PC-ER, 2/11/98
The 300 day filing requirement is in the nature of a state of limitations and, as a result, is subject to equitable tolling. The burden of establishing facts sufficient to justify tolling of the filing period is on the complainant. Acoff v. UWHCB, 97-0159-PC-ER, 1/14/98
Mere unawareness of the legal requirements for filing a complaint is insufficient to toll the filing period. Complainant did not claim that respondent mislead him regarding those requirements. Therefore, the complaint, filed more than 300 days after the final act of alleged discrimination, was untimely. Acoff v. UWHCB, 97-0159-PC-ER, 1/14/98
Where complainant merely contended that his health had begun to fail and caused him problems that kept him from filing a complaint, he failed to establish that he was incapacitated and unable to file a complaint. Therefore, the complaint, filed more than 300 days after the final act of alleged discrimination, was untimely. Acoff v. UWHCB, 97-0159-PC-ER, 1/14/98
Complainant’s claims were dismissed as untimely filed where she failed to cure a technical defect as directed by the Commission in a previous ruling. In the earlier ruling, complainant was permitted to amend her complaint by filing a properly signed, verified and notarized statement as required under §PC 2.02(2), Wis. Adm. Code. Instead of complainant curing the technical defect by verifying the information herself, her attorney provided the information under his own signature, which was the same defect addressed in the previous ruling. Because complainant had not taken advantage of the opportunity previously granted her to cure the technical defect, there was no allegation of discrimination during the 300 day period prior to the filing of her complaint and her complaint, therefore, was untimely. Reinhold v. Office of the Columbia County District Attorney, 95-0086-PC-ER, 11/7/97; rehearing denied, 12/17/97; affirmed by Dane County Circuit Court, Reinhold v. Office of the Columbia District Attorney & Wis. Pers. Comm., 98-CV-0076, 7/8/98
It is complainant’s burden of proof to demonstrate that the allegations raised in her complaint were timely filed, citing Vander Zanden v. DILHR, 87-0063-PC-ER, 1/11/91. In analyzing this question it is appropriate to construe the allegations raised in the complaint in a light most favorable to complainant, citing Tafelski v. UW-Superior, 95-0127-PC-ER, 3/22/96. Reinhold v. Office of the Columbia County District Attorney, 95-0086-PC-ER, 9/16/97
The Fair Employment Act’s 300 day filing period is to be measured from the date of notice of termination, not the effective date of the termination, citing Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App., 1988). Haney v. DOT, 94-0165-PC-ER, 9/24/97
Because the actions of the Personnel Commission, in allegedly giving complainant incorrect information about the operative date for measuring the time period for filing a complaint, were not attributable to the respondent agency, equitable estoppel did not lie as to the respondent and the 300 day filing period was not equitable tolled. Haney v. DOT, 94-0165-PC-ER, 9/24/97
The 30 day period for filing a claim of occupational safety and health retaliation commenced when a final decision to terminate complainant’s employment had been made and communicated to complainant, rather than when complainant was notified of a meeting for complainant to present information in regard to respondent’s expressed intent to terminate his employment for medical reasons. Leinweber v. DOC, 97-0104-PC-ER, 8/14/97
Filing of a complaint is based on when the Commission receives a document and filing a complaint with another entity, such as the Equal Rights Division of the Department of Industry, Labor and Human Relations, is insufficient. Radtke v. DHFS, 97-0068-PC-ER, 6/19/97
Where complainant provided no evidence that her supervisor continued his vigilance as to her whereabouts past complainant’s resignation date which was more than 300 days before she filed her complaint of discrimination, and where complainant provided no evidence that her supervisor used, within the 300 day actionable period, information obtained from his vigilance, complainant failed to show that any discriminatory action occurred within the actionable period. Complainant had merely made a bald assertion that discrimination had continued until her last day of work which was within the actionable period. Tafelski v. UW (Superior), 95-0127-PC-ER, 6/4/97
An employe’s lack of knowledge about his/her rights does not generally operate to excuse the late filing of a complaint. Holmes v. UW-Madison, 97-0037-PC-ER, 4/24/97
Where complainant was informed in May of 1996 that his employment contract would not be renewed resulting in the termination of his employment the following February, his claim of retaliation due to occupational safety and health activities, filed in March of 1997 was untimely. No tolling of the 30 day filing requirement arose from a failure to comply with the occupational safety posting requirements of §101.055(7)(d), Stats., where complainant had consulted with an attorney in mid-August of 1996 and was informed by the attorney to contact the Personnel Commission. Holmes v. UW-Madison, 97-0037-PC-ER, 4/24/97
Complainant’s allegation relating to respondent’s failure to fill a position into which complainant had sought to transfer was untimely where complainant knew in April of 1992 that respondent had denied his transfer request and/or that respondent had decided not to fill the position and complainant did not file his complaint until mid-March of 1993. Complainant’s contention that he had been subjected to a pattern of discrimination since 1988 was insufficient to toll the limitations period for a claim arising from a discrete event such as the denial of a transfer request. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
Complainant’s allegation relating to respondent’s decision denying his request to be reassigned to another position was untimely where complainant knew in March of 1993 that respondent had denied his request and complainant did not file his complaint until mid-March of 1993. Complainant’s contention that he had been subjected to a pattern of discrimination since 1988 was insufficient to toll the limitations period for a claim arising from a discrete event such as the denial of a reassignment request. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
The filing date of a complaint is based on the date the Commission received the complaint, rather than the date it was filed with the Equal Rights Division. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
A perfected complaint, which included the complainant’s notarized signature, related back to the date the complaint was initially filed with the Commission even though the initial complaint was sworn to by complainant’s attorney. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
Complainant made a cognizable claim when she alleged that respondent failed to adequately discipline another employe who had allegedly harassed the complainant, even though complainant had, more than 300 days before she filed her complaint of discrimination with the Commission, transferred out of the institution employing the alleged harasser. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
Complainant’s FMLA claim arising from the decision to terminate her employment on December 18 was untimely where she filed her complaint on February 8. However, where complainant had an outstanding leave request at the time her employment was terminated and where she stated she received the written denial of her request on January 10 or 11, her February 8th complaint was timely as to a claim that the denial of the leave request violated the FMLA. The Commission proceeded to address the question of mootness. Follett v. DHSS, 95-0017-PC-ER, 7/5/96
The doctrine of equitable estoppel only comes into play in the statute of limitations tolling context if the respondent takes active steps to prevent the complainant from suing in time. Alleged misinformation provided by the Commission during a telephone conversation was not attributable to respondent. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96
The burden of establishing facts sufficient to justify tolling the filing period is on the complainant. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96
Where complainant sent the Commission a copy of a letter she wrote to a State Senator, the Commission followed up with a telephone call and a confirming letter which referenced complainant's intent that the letter be treated as a whistleblower disclosure and provided her a further opportunity to ask questions, the Commission rejected complainant's later contention that the letter should have been considered a claim of age discrimination. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96
A copy of complainant's charge of age discrimination which complainant had filed with the Equal Rights Division and the Equal Employment Opportunities Commission was not filed with the Commission until it was received at the Commission's office, citing §PC 1.02(10), Wis. Adm. Code. There is no authority for interpreting the filing of a complaint with one of the agencies as a filing with the other. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96
Complainant did not suffer from a mental incapacity that would toll the statute of limitations for a period of years where she claimed her handicaps included post-traumatic stress disorder and anxiety attacks and was on medical leave for approximately eight months, but she then returned to work, she was able to carry out an investigation of various incidents as they occurred and she contacted a lawyer at that time. In analyzing the timeliness of the complainant's complaint, the standard of "a similarly situated person with a reasonably prudent regard for his or her rights" must be applied. Masko v. DHSS, 95-0096-PC-ER, 4/4/96
Lack of knowledge of the law does not toll the running of a statute of limitations, citing Gillett v. DHSS, 89-0070-PC-ER, 8/24/89. Masko v. DHSS, 95-0096-PC-ER, 4/4/96
Where complainant had failed to provide dates for certain alleged occurrences despite a motion to dismiss the complaint for untimely filing, the failure to provide the dates was fatal to those claims. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
The Commission recognizes both fraudulent concealment (also referred to as equitable estoppel) and equitable tolling as bases for tolling the statute of limitations, as those doctrines are explained in Cada v. Baxter Healthcare Corp., 920 F.2d 446, 54 FEP Cases 961 (7th Cir. 1990). Equitable estoppel is where respondent takes active steps to prevent complainant from suing in time. Equitable tolling permits a complainant to avoid the bar of a statute of limitations if, despite all due diligence, he is unable to obtain vital information bearing on the existence of his claim. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
Complainant's claim arising from a notice that her position was at risk of layoff was filed prematurely. The risk notice did not adversely affect complainant's employment status nor had respondent determined that complainant would be laid off. Gullickson v. DHSS, 95-0113-PC-ER, 12/20/95
Where an employe of respondent, in a letter stated that complainant's request for waiver of the remainder of her probation was still pending before another employe, and complainant stated she never received a decision from the second employe, complainant's complaint filed within 60 days of the date of the letter was timely under the whistleblower law with respect to the alleged failure to waive the final portion of complainant's probationary period. Duran v. DOC, 94-0005-PC-ER, 10/4/94
A complaint filed more than 300 days after the complainant received notice of the end of her employment relationship was untimely as to that decision, citing Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App., 1988), even though the consequence of that decision may not have been fully realized by complainant until a date within the 300 day period. Federal case rulings regarding the timely filing of claims under Title VII of the Civil Rights Act of 1964 did not control. Womack v. UW-Madison, 94-0009-PC-ER, 7/25/94
A complaint was found to have been untimely filed where there was no evidence in the Commission's files of ever having received the complaint around the time it was allegedly filed, complainant alleged he had mailed the complaint to the Commission by registered mail and also delivered it by hand several days later when he had heard nothing from the Commission. Complainant was unable to produce any of the registered mail receipts from the postal service, and, although he produced his own handwritten note memorializing his alleged personal delivery of a copy of the complaint to the Commission, it was determined from his work records that he could not have delivered the letter on the date stated in the note. Paul v. DOC, 91-0074-PC-ER, 8/23/93
Complainant's claims were untimely where his employment relationship ended more than 300 days prior to the filing of his complaint. Complainant's allegation that his fears of further harassment or attempts on his life continued into the 300 day filing period did not toll the limitations period. The employer is not liable for a former employe's fears of what might, but does not, recur. Kuri v. UW-Stevens Point, 91-0141-PC-ER, 4/30/93
The period for filing a Family/Medical Leave Act complaint relating to the alleged failure to reinstate to the former position after taking family leave commences when the employe returns to work, rather than when the employe completes the period of family leave. Prior to returning to work from family leave, the complainant had been placed on administrative leave due to his conduct during the period of his family leave. Boinski v. UW-Milwaukee, 92-0233-PC-ER, 4/23/93
Complainant's charge of discrimination was not timely filed where she admitted she was aware of all relevant facts involving the alleged discrimination at the time of her retirement and she retired more than 300 days prior to the date she filed her complaint. Complainant was subsequently reemployed on an LTE basis, but she did not allege that the discrimination continued during this brief period. Sindorf v. UW-Stevens Pt, 92-0105-PC-ER, 4/23/93
Fear of retaliation against a co-worker does not toll the filing period for filing a complaint of discrimination. Sindorf v. UW-Stevens Pt, 92-0105-PC-ER, 4/23/93
The 300 day filing period under the Fair Employment Act is a statute of limitations rather than a statute concerning subject matter jurisdiction. Wright v. DOT, 90-0012-PC-ER, 2/25/93
The burden of establishing facts sufficient to justify tolling of the filing period is on the complainant. Wright v. DOT, 90-0012-PC-ER, 2/25/93
Respondent's motion to dismiss complainant's complaint as untimely filed was denied because the statutory time limit for filing was equitably tolled based upon complainant's affidavit that respondent had misrepresented to complainant its intent to remedy an unlawful hiring practice. Complainant averred that respondent informed him there had been irregularities in the hiring process, that it would find him a temporary position until something else opened up and that it would be unnecessary for complainant to file a formal complaint in order to obtain relief. Wright v. DOT, 90-0012-PC-ER, 2/25/93
Lack of counsel at the time of termination and concern about potential retaliation are inadequate to toll the time period for filing. Christensen v. UW-Stevens Point, 91-0151-PC-ER, 1/24/92
The posting requirement in the Family and Medical Leave Act refers to posting the required notice in "one or more" conspicuous places and does not require the employer to post the notice in every location in which employment-related notices are posted. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
A posting of a Family and Medical Leave Act notice on a bulletin board in the entrance area to the room containing the top administrative staff of the complainant's bureau, in a visible area and on a bulletin board which was used for posting most employment-related notices of general interest and application to bureau employes, constituted a posting in a "conspicuous place" as required by the FMLA. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
Respondent's posting of a Family and Medical Leave Act notice did not meet statutory requirements where the notice document was buried under 3 pages of other documents. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
As a general proposition, discussions with Commission staff do not preserve the rights of a complainant in terms of timely filing an appeal or a complaint. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
Where the complainant alleged that she had suffered emotional breakdowns in 1981 and in 1986 and that she was incompetent but failed to provide details as to the specific nature and duration of the condition and admitted she had contacted the Commission in September of 1986 for a complaint form and inspected her personnel file in August of 1987, the Commission concluded that the filing period should not be tolled. The complaint filed in December of 1987 was dismissed. Kirk v. DILHR, 87-0177-PC-ER, 7/11/91
Where the complainant merely contended that he was "repeatedly denied transfers throughout 1988," he failed to sustain his burden of establishing that his amended complaint, which was filed on December 28, 1988, was timely as to that contention. Vander Zanden v. DILHR, 87-0063-PC-ER, 1/11/91; rehearing denied, 2/26/91
A complaint arising from the denial of tenure was untimely where it was filed over 300 days from the date that a reasonable person would have been aware that there had been an official and final decision regarding the complainant's status by the respondent. The decision was "official and final" when the time for further proceedings for internal review had expired. Franz v. UW-Oshkosh, 86-0110-PC-ER, 8/24/89
In the absence of a specific statutory exception, once the statute has begun to run, it cannot be tolled by a later incompetency. Franz v. UW-Oshkosh, 86-0110-PC-ER, 8/24/89
Lack of knowledge of the law does not toll the running of a statute of limitations. Gillett v. DHSS, 89-0070-PC-ER, 8/24/89
The Commission's decision in Latimer v. UW-Oshkosh, 84-0034-PC-ER, 11/21/84, was effectively overruled by Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W. 2d 251 (Court of Appeals, 1988). In Hilmes, the court held that in construing the 300 day time limit, the word "occurred" means the date of notice of the alleged discriminatory act. Harris v. UW-La Crosse, 87-0178-PC-ER, 11/23/88
The Commission applied the reasonable person standard to determine the date of notice under the Wisconsin Fair Employment Act. Harris v. UW-La Crosse, 87-0178-PC-ER, 11/23/88
In a complaint arising from the nonrenewal of a tenure track probationary faculty member, a reasonable person in complainant's position would not have been put on notice of respondent's official and final position by a letter from the two-member retention committee of the respondent's Department of Marketing, where the administrative code provides for reconsiderations and appeals of nonrenewal decisions and, at §UWS 3.08(3), Wis. Admin. Code, provides that "[t]he decision of the chancellor shall be the final decision." Respondent's motion to dismiss was denied where the complainant had appealed the non-renewal decision internally but the chancellor had never rendered a decision due to the disability of complainant. Harris v. UW-La Crosse, 87-0178-PC-ER, 11/23/88
Respondent had not waived its objections to the timeliness of amendments to a complaint where, after the amendment was filed, the respondent objected to the amendment "unless more information is provided which delineates the exact acts of discrimination", where one month later the respondent did not raise any jurisdictional issues and agreed to an issue for hearing which arguably was broad enough to include some claims added by the amendment, and where three months later and once complainant specified the actions included within the scope of his amendment, respondent moved to dismiss the new claims as untimely. Pugh v. DNR, 86-0059-PC-ER, 6/10/88
Because the Commission's rules do not require the filing of an answer, the failure to assert an affirmative defense where no answer was filed cannot constitute a waiver as to raising the defense later in the proceedings. Pugh v. DNR, 86-0059-PC-ER, 6/10/88
Complainant had been charged with second degree sexual assault and was notified by letter dated May 30, 1985, that he was suspended from his position without pay pending the outcome of the criminal charge; that if convicted, he would be discharged effective May 30th; but that if he was totally cleared he would be restored with back pay for the period of the suspension. Because the suspension without pay was in fact being imposed on the complainant starting May 30th, the 300 day period for filing a complaint regarding the suspension began to run on the same date. However, as to a complaint regarding discharge, the decision to discharge the complainant was not made until on or after October 4, 1985, when complainant plead guilty to a charge of third degree sexual assault. Complainant was notified by letter, dated October 21st, that he was discharged effective May 30th. As it related to discharge, the May 30th letter only notified the complainant that discharge was contingent upon subsequent conviction. Therefore, the 300 day period for filing a complaint regarding the discharge did not commence until the October 21st notification of that decision. Medina v. DHSS, 86-0076-PC-ER, 2/11/88
Where there was no evidence that complainant had formed a belief before January 10, 1985, that a position occupied by another employe was the recreation of the position from which complainant had been laid off in 1983, his charge of discrimination filed within 300 days of June 10th was timely. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
The statute of limitations begins to run from the date of the discriminatory transaction, not from the date the complainant decides the transaction was illegal or discriminatory. Schroeder v. DHSS & DER, 85-0036-PC-ER, 11/12/86
The 300 day time limit is not tolled by the filing of a grievance of the same transaction. King v. DHSS, 86-0085-PC-ER, 8/6/86
As a statute of limitations rather than a jurisdictional requirement, the 300 day time limit in §111.39(l), Stats., is subject to equitable tolling. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 1/24/86
The complaint was dismissed as untimely where it was filed more than 300 days after the end of complainant's employment, despite complainant's contention that the administrative procedures are unfair because they fail to set a time limit in which the matter must be scheduled for hearing, and that the additional 130 days time period failed to prejudice the respondent. The Commission found that the respondent had not waived the timeliness defense where respondent filed its motion to dismiss prior to the investigation. The Commission also concluded that it lacked the power to rule on complainant's argument that the 300 day limit is unconstitutional because it infringes on due process rights. Kaufman v. UW (Eau Claire), 85-0010-PC-ER, 1/9/86
The complainant was deemed to have received notice of his probationary termination on October 14th where the termination letter was delivered to complainant's wife on Friday, October 11th and complainant was out of town and did not look at it until he returned home on October 14th. Fliehr v. DOA, 85-0155-PC-ER, 12/17/85
Complaint was timely where it was filed within 300 days of the date complainant was notified of the decision to select someone else to fill a vacancy even though it was apparently filed more than 300 days after the date the selection decision was made. Ames v. UW-Milwaukee, 85-0113-PC-ER, 11/7/85
In a complaint arising from the denial of tenure, the act of discrimination may be said to have occurred when tenure was denied and not when the seven year probationary service period expired. This does not parallel a discharge case, where the decision is made to terminate employment, effective at a later date, citing Delaware State College v. Ricks, 449 U.S. 250 (1980) Dahl v. UW-Milwaukee, 84-0205-PC-ER, 11/7/85
A request for reconsideration of an earlier decision normally does not toll the running of the period of limitations. A complaint arising from a tenure denial decision was not timely where it was filed more than 300 days after the decision even though the complainant had requested reconsideration of the decision within the 300 day time limit. The reconsideration request had been denied. Dahl v. UW-Milwaukee, 84-0205-PC-ER, 11/7/85
Where complainant alleged discrimination for failure to restore seniority and classification upon his reinstatement to state service in 1981 and where in 1985 complainant was re-informed as to the basis for the 1981 decision establishing his seniority and classification, the Commission held that the complaint had to be filed within 300 days of the 1981 decision rather than within 300 days of the 1985 reaffirmation. Biddle v. DILHR & DHSS, 85-0118-PC-ER, 9/27/85
Complaint was timely where complainant was a probationary faculty member, employed under successive academic year contracts from 1977 to June 6, 1983, complainant received notice of non-renewal on May 18, 1982 and the complaint was filed within 300 days of the June 6, 1983. The Commission applied Les Moise, Inc. v. Rossignol Ski Co., Inc., 116 Wis 2d 268 (1983) explicitly rejecting Chardon v. Fernandez, 454 U.S. 6 (1981) in concluding that period of limitations began to run on the cessation of complainant's employment (June 6th) rather than on the date he was notified he would not be offered employment during the next academic year. Latimer v. UW-Oshkosh, 84-0034-PC-ER, 11/21/84
The charge of discrimination alleging constructive discharge on the basis of handicap was timely where the complainant was granted a leave of absence without pay effective January 29, 1979, which was extended yearly until it expired by operation of law on January 29, 1982, the complainant did not return to work, the respondent took no action under §Pers 21.03, Wis. Adm. Code, to terminate or to treat the employe as having resigned, the employe ultimately submitted a resignation (allegedly forced) June 14, 1982, after he was not allowed to return to work, and the charge of discrimination was filed on April 8, 1983, 298 days thereafter, since the complainant's employment status with DOA would not be considered terminated in the context of the timeliness issue until June 14, 1982. Burnard v. DOA, 83-0040-PC-ER, 5/25/83
The 300 day period of limitations for allegations of discrimination is not tolled by the filing of a contractual grievance, citing Electrical Workers v. Robbins & Meyers, Inc., 429 U.S. 299, 13FEP Cases 1813 (1976), and Alexander v. Gardner-Denver Co., 415 U.S. 36, 57-58, 7FEP Cases 81 (19774). Hoepner v. DHSS, 79-191-PC, 6/30/81
Where the complainant had transferred from DILHR to LIRC on July 3, 1977, her complaint alleging DILHR paid her lower wages than male attorneys, which was filed on September 7, 1978, was untimely, even on a continuing violation theory, because it was filed more than 300 days after her employment relationship with DILHR terminated. Jacobson v. DILHR & LIRC, 78-PC-ER-49, 4/23/81
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.