Time limits matter, and can be determinative of whether or not a claim is heard by a court. The District IV Court of Appeals recently considered when a 60-day period for filing an action in circuit court began to run. Hoague v. Kraft Foods Global, Inc., Cir. Ct. No. 2011CV3641, was decided by the Court of Appeals on October 25 2012.

Hoague was a former employee of Kraft Foods Global (Kraft). In May, 2011, the Wisconsin Equal Rights Division (ERD) issued a Decision and Order finding that Kraft violated Hoague’s right to take a medical leave under the Wisconsin Family and Medical Leave Act (WFMLA), and ordered Kraft to pay Hoague $18,893 for back pay and benefits, and $12, 143 for attorney’s fees and costs. The Notice of Appeal Rights send by the ERD informed each party that they had 20 days from the date the Decision was issued to petition for rehearing before ERD. Neither party sought rehearing or judicial review.

Section 103.10(13)(a), Wis. Stats. provides that an employee who is successful in the ERD action may file an action in circuit court against the employer, seeing compensatory and/or punitive damages. The damages can be awarded in addition to those awarded by ERD. The statute requires that the filing in circuit court occur “within 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation.” In dispute in Hoague was whether the 60-day period began to run on the date the ERD issued its Decision and Order, or at the end of the 30-period for seeking judicial review.

Hoague filed a complaint in circuit court seeking to recover damages from Kraft for their violation of WFMLA. A Dane County circuit court judge dismissed the complaint, on the grounds that it was not timely filed because Hoague filed the complaint 88 days after the date ERD issued the Decision and Order.. The circuit court determined that the 60-day period began to run on the date the Decision and Order was issues. At issue was whether the 60-day period runs concurrently with the 30-day period, of if it runs consecutively to the 30-day period.

The Court of Appeals determined that the statutory language was ambiguous, and the arguments of both parties were plausible interpretations of the statute. It concluded that the more reasonably interpretation was to require that the 60-day period began only after the expiration of the time for seeking judicial review of the agency’s order, when no party sought judicial review. The Court of Appeals noted that a prevailing employee could prepare a complaint immediately after a successful outcome at the ERD, and wait to see if the employer appeals. Fortunately, the Court noted the waste of effort that process would produce if the employer initiated judicial review that lead to a reversal of the ERD’s decision, eliminating the option to file the complaint in circuit court. The Court of Appeals also noted that its interpretation would ensure that the employee had a full 60 days to make the assessment of whether or not to file in circuit court.

It is important to consult with your lawyer about the time deadlines that apply to your potential or existing case. In most circumstances, being untimely in meeting those deadlines will not be excused by even very strong substantive facts to support your claim.

Katherine Charlton

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