COURT OF APPEALS DECISION DATED AND FILED April 27, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
Before Curley, P.J., Fine and Brennan, JJ.
¶1 PER CURIAM. Theresa M. Garner, pro se, appeals the circuit court’s order granting summary judgment in favor of the University of Wisconsin-Milwaukee, the University of Wisconsin System, the University of Wisconsin-Milwaukee Police Department, Shawnette Stephens and Sandra Benton Humes (collectively, “the University”). She also appeals an order denying her motion for reconsideration. Garner argues: (1) that the University violated Wis. Stat. § 103.13 (2007-08)[1] by denying her access to her personnel file; (2) that the University violated Wis. Stat. § 111.322, the Wisconsin Fair Employment Act; (3) that the circuit court should not have dismissed her claim for malicious prosecution against the University; (4) that her claims for defamation, slander and libel are not barred by the statute of limitations; and (5) that she has enforceable rights based on a right-to-sue letter issued by the Equal Employment Opportunity Commission. We affirm.
¶2 Garner argues that she has a claim against the University because it violated Wis. Stat. § 103.13 by denying her access to her personnel file. That statute does not vest an employee with a private remedy; the penalty for violating the statute is a forfeiture enforceable by an action in the name of the State. Wis. Stat. § 103.13(8) (“Any employer who violates this section may be fined not less than $10 nor more than $100 for each violation. Each day of refusal or failure to comply … is a separate violation.”). Because Garner has no enforceable private remedy, we reject this claim.
¶3 Garner argues that the University discriminated against her in
violation of the Wisconsin Fair Employment Act, Wis. Stat. § 111.322(2m)(a)[2]
(“[I]t is an act of employment discrimination to … discharge or otherwise
discriminate against any individual because … [t]he individual files a
complaint or attempts to enforce any right under … [Wis. Stat. § ]103.13.”).
Garner filed three different complaints under the Wisconsin Fair
Employment Act alleging discrimination and retaliation. The Equal Rights Division found no probable
cause on Garner’s complaints on December 9, 2003. To challenge the hearing examiner’s findings
of fact and order, Garner was required to petition for review by the Labor and
Industry Review Commission within twenty-one days. See Wis. Stat. § 111.39(5)(a) and
(b). Garner did not do so, so she has
lost the right to petition the Commission for review of these decisions. To the extent that Garner is attempting to
assert new claims under the Wisconsin Fair Employment Act in this court
proceeding, she may not do so. The
Wisconsin Fair Employment Act “is not designed to create a private cause of
action as long as an adequate remedy is otherwise available” in an
administrative proceeding before the Commission. Bachand v. Connecticut Gen. Life Ins. Co., 101
¶4 Garner next argues that the circuit court should not have
dismissed her claim for malicious prosecution against the University. A claim for malicious prosecution will lie
only where there was “‘a prior institution or continuation of some regular
judicial proceedings against the plaintiff.’”
See Strid v. Converse, 111
¶5 Garner argues that the circuit court should not have dismissed
her claim against the University for defamation, slander and libel. A cause of action for defamation, slander or
libel must be filed “within 2 years after the cause of action accrues.” Wis.
Stat. § 893.57. The statute
of limitations does not begin to run until the date the injury is discovered,
or reasonably should have been discovered.
Spitler v. Dean, 148
¶6 Finally, Garner argues that she has enforceable rights under
a right-to-sue letter issued by the Equal Employment Opportunity Commission on
August 12, 2005. Garner should have
filed a civil complaint in federal court within ninety days of receiving the
right-to-sue letter. 42 U.S.C.
§ 2000e-5(f)(1). Garner never pled
any claims in relation to this letter. Because
she did not do so, she is not entitled to relief.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2]
[3] Garner also asserts as a separate matter that she is entitled to relief for retaliatory malicious prosecution under the Wisconsin Fair Employment Act. We reject this claim because we have concluded that Garner was not prosecuted. We also reject this claim because Garner has not raised it through the proper administrative procedure, as explained above.