Pamela J. Neidlein v. Labor and Industry Review Commission

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COURT OF APPEALS

DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
eo ee
October 1, 2026 “—
1 A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See Wis. STAT. § 80810
and RULE 809.2.
Appeal No. 2025AP2134 Cir. Ct No. 2124480
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

PAMELA J. NEIDLEIN,
PETITIONER-APPELLANT,
V.
LABOR AND INDUSTRY REVIEW COMMISSION,
RESPONDENT-RESPONDENT,
GREENEWAY, INC.,

OTHER PARTY.

APPEAL from an order of the circuit court for Wood County:
GREGORY J. JERABEK, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Nashold, JJ.

No. 2025AP2134
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Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 PER CURIAM. Pamela J. Neidlein appeals the dismissal of her
disability discrimination claim under the Wisconsin Fair Employment Act
(WFEA). The Labor & Industry Review Commission determined that the
WFEA’s 300-day statute of limitations began to run on the date of Neidlein’s
discharge from her employment with Greeneway, Inc.1 See WIS. STAT.
§ 111.39(1) (2023-24).2 We conclude that the evidence before the Commission is
sufficient to support this determination. Since it is undisputed that Neidlein filed
her discrimination complaint more than 300 days after the discharge date, we
affirm the circuit court, which affirmed the Commission’s dismissal of the
complaint.
Background
¶2 Neidlein worked for Greeneway as a recreational vehicle technician
from May 2012 until March 30, 2022, when Greeneway terminated her
employment.
¶3 More than a year before she was discharged from employment,
Neidlein alleged that her left shoulder had been injured at work, and she submitted
a worker’s compensation claim for that injury. On March 2, 2022, Neidlein
underwent an independent medical evaluation with Dr. Kevin Kulwicki. Kulwicki
1 Although the caption for this appeal previously reflected that the employer was
“Greenway, Inc.,” the court has been advised that the correct spelling is “Greeneway, Inc.” The
caption is now corrected.
2 All references to the Wisconsin Statutes are to the 2023-24 version.

No. 2025AP2134
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concluded that Neidlein’s shoulder condition was not the result of a work-related
injury, and was instead due to pre-existing degenerative conditions. Kulwicki’s
report recommended “temporary work restrictions.”
¶4 Neidlein’s WFEA discrimination complaint included the following
allegations. In March 2022, Neidlein informed Greeneway’s owners that “she was
being harassed because of her medical condition and the limitations it caused.”
Neidlein was put on leave without pay while Greeneway investigated her
allegations. When Neidlein returned to work on March 21, 2022, she received a
written reprimand for attending physical therapy. She was also given menial tasks
such as “count[ing] bolts and screws until she could perform all the tasks of her
job,” even though she asserts that she could have performed many of her regular
duties. Greeneway had granted her accommodations to perform the essential
functions of her job up until she “complained about discrimination in March
2022.”
¶5 Neidlein further alleged the following by way of affidavit. On
March 30, 2022, Greeneway owner Lora Ferkey met with Neidlein and told
Neidlein that her employment was being terminated. When Neidlein asked why,
Ferkey said that Dr. Kulwicki had determined that Neidlein had not been injured at
work. Ferkey told Neidlein that she would send Neidlein a letter describing the
reasons for discharge and a copy of Kulwicki’s report.3
3 Ferkey avers that she also told Neidlein that Neidlein was being discharged because she
was unable to perform the essential functions of her job, but Neidlein disputes that Ferkey offered
this additional reason for Neidlein’s discharge at the March 30 meeting.

No. 2025AP2134
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¶6 In early April 2022, Neidlein received the letter that Ferkey had
promised, which was dated March 31, 2022, and, later, a copy of Kulwicki’s
report. The letter communicated Kulwicki’s determination that Neidlein’s injuries
were “not work related.” It further stated that Neidlein was “not able to meet the
physical requirements needed to perform the essential duties of [her] job” and that
Greeneway had “no work available for [Neidlein].” Accordingly, the letter stated,
Neidlein was “let[] … go” as of March 30, 2022.
¶7 On January 25, 2023, Neidlein filed a WFEA disability
discrimination complaint with the Equal Rights Division of the Wisconsin
Department of Workforce Development (the Division). An equal rights officer
determined that the complaint was untimely under the WFEA’s 300-day statute of
limitations because it was filed 301 days after Neidlein’s March 30, 2022
discharge. See WIS. STAT. § 111.39(1). Neidlein appealed to an administrative
law judge, who affirmed the Division’s dismissal.
¶8 Neidlein then appealed to the Commission, arguing that her
complaint was timely. According to Neidlein, the statute of limitations did not
begin to run on March 30, when she was discharged from Greeneway, but instead
it began to run in early April, when she received the letter formally explaining the
reasons for discharge and Kulwicki’s report. Neidlein asserted that she could not
have reasonably inferred that her disability might have been a factor in
Greeneway’s decision to discharge her until she received these documents. The
Commission determined that Neidlein’s argument was unpersuasive, and it
affirmed the dismissal of her complaint.
¶9 In its decision, the Commission took the position that the facts
alleged in Neidlein’s own complaint supported the conclusion that “a charge of

No. 2025AP2134
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discrimination should have been apparent to [Neidlein] on March 30.” Those facts
included that, shortly before her discharge, Neidlein had filed a complaint with
Greeneway alleging that she was “being harassed because of her medical
condition and the limitations it caused,” that she had “received a letter of
reprimand for absenteeism due to physical therapy needs,” and that “she was then
assigned to take inventory of shop supplies” instead of performing her normal job
duties with accommodations. The Commission characterized the formal letter
from Ferkey and Kulwicki’s report as “additional evidence … in support of a
possible discrimination claim on the basis of disability,” but stated that the
existence of additional evidence “does not change the fact that the statute of
limitations began to run on the date of discharge.”
¶10 Neidlein appealed the Commission’s decision to the circuit court,
which upheld the Commission’s decision. The court agreed that the allegations in
Neidlein’s complaint showed that “[Neidlein] was aware that she was being
discriminated against as of the date of her termination” and that evidence obtained
after her discharge may have “strengthen[ed] her claim” but that evidence did not
“extend her three-hundred-day limitation on filing her complaint.” Neidlein
appeals.
Discussion
¶11 On appeal, this court reviews the decision of the Commission and
not that of the circuit court. Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶26,
303 Wis. 2d 514, 735 N.W.2d 477. The Commission’s findings of fact are
conclusive on appeal as long as they are supported by credible and substantial
evidence. Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541
N.W.2d 241 (Ct. App. 1995). “Substantial evidence is less of a burden than

No. 2025AP2134
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preponderance of the evidence in that any reasonable view of the evidence is
sufficient.” Bernhardt v. LIRC, 207 Wis. 2d 292, 298, 558 N.W.2d 874 (Ct. App.
1996). The Commission’s legal conclusions are reviewed de novo, but this court
gives “due weight” to “the experience, technical competence, and specialized
knowledge of the agency” as well as to any “discretionary authority conferred
upon it.” WIS. STAT. § 227.57(10)-(11). “The burden of proof in a proceeding to
review an agency action is on the party seeking to overturn the action.” Racine
Educ. Ass’n v. Commissioner of Ins., 158 Wis. 2d 175, 182, 462 N.W.2d 239 (Ct.
App. 1990).
¶12 The parties agree that the “discovery rule” applies for purposes of
determining when the statute of limitations started to run on Neidlein’s claim. As
the Commission articulated this rule in its decision, the statute of limitations
begins to run on a WFEA claim “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.”4
¶13 Here, the facts alleged in Neidlein’s complaint were the facts that the
Commission relied on to conclude that Neidlein’s discrimination claim would
have been apparent to Neidlein as of the date of her discharge. Neidlein’s
complaint included the following factual allegations. “In March 2022, she
4 The parties cite Commission decisions for a test that generally aligns with our supreme
court’s expression of the discovery rule in the tort context. See Nickel v. City of Milwaukee,
ERD Case No. 201600279 (LIRC Sept. 29, 2023) (cited by the Commission); Anchor v. State,
ERD Case Nos. 200501702, 200504414 (LIRC Jan. 4, 2012) (cited by Neidlein); see also
Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 315-16, 533 N.W.2d 780 (1995)
(“[T]he discovery rule is so named because it tolls the statute of limitations until the plaintiff
discovers or with reasonable diligence should have discovered that he or she has suffered actual
damage due to wrongs committed by a particular, identified person.”).

No. 2025AP2134
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complained to Greeneway officials … that she was being harassed because of her
medical condition and the limitations it caused.” She “was then put on leave
without pay … while Greeneway investigated the discrimination complaints.”
Shortly after she returned to work on March 21, 2022, “Greeneway showed its
animosity to the need to accommodate [her] disability” when it reprimanded her
for attending therapy during work hours. Neidlein’s supervisor required her to
work on the menial tasks of counting bolts and screws, which she did “despite her
objection … even though she could have continued to work on preparing
[recreational vehicles] for delivery” as she had done before she complained to
Greeneway. On March 30, 2022, Neidlein was “summarily terminated” at a
meeting during which Ferkey said that Neidlein’s “injury did not occur at work.”
There was no “further discussion or interactive dialogue to accommodate
[Neidlein’s] disability.”
¶14 Neidlein’s complaint characterizes Greeneway’s March 2022 actions
as displays of “animosity … because of her disability” and “animosity to the need
to accommodate [her] disability.” This court agrees that, taking all of Neidlein’s
allegations as true, the existence of a discrimination claim would be apparent to a
reasonable person in Neidlein’s position at the time she was discharged on
March 30, 2022.
¶15 Neidlein contends that her version of the events of March 2022 do
not support a charge of intentional disability discrimination. She argues that she
could not have appreciated that she had a discrimination claim before receiving the
letter from Ferkey, which stated Greeneway’s reasons for terminating Neidlein’s
employment, and Dr. Kulwicki’s report. She makes several arguments in support
of her position that the statute of limitations did not begin to run until she received
those documents in April 2022.

No. 2025AP2134
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¶16 First, Neidlein relies on Hilmes v. DILHR, 147 Wis. 2d 48, 433
N.W.2d 251 (Ct. App. 1988). That case states that “[t]he fact of termination is not
itself an illegal act,” and that “it is when the employer makes known its decision to
discriminate … that an unlawful employment practice occurs.” Id. at 52
(emphasis omitted). Neidlein contends that Greeneway “first made known its
decision to discriminate when it provided [her] with” Ferkey’s letter, “which
[Neidlein] received on April 1, 2022,” and that, “by reading that letter, in
conjunction with [Kulwicki’s report], … Greeneway’s intent to discriminate due
to Ms. Neidlein’s disability was made known.”5
¶17 In Hilmes, this court determined that the statute of limitations on a
WFEA claim began to run not on the date that Hilmes’s termination became
effective, but on the day before, when her employer notified her of the imminent
termination. Id. at 50-53. Hilmes does not stand for the proposition that the
statute of limitations is indefinitely tolled unless and until an employer explicitly
announces its discriminatory intent. Indeed, as the Commission persuasively
argues, if that were the law, the statute would never begin to run in any case in
which an employer communicated a pretextual reason for unlawful termination
rather than admitting discriminatory intent.
5 Neidlein attempts to clarify this theory in her reply brief on appeal. She notes that the
letter cites to Kulwicki’s determination that her injury was not work related, and then the letter
states that she could not perform the essential duties of her job. Neidlein’s clarification is that she
is arguing that the determination that she could not perform the essential duties of her job was
“false” and “untested.” She contends that “[t]he juxtaposition of those two unsupported
statements [in Ferkey’s letter] make manifestly and initially clear to a reasonable person in
Ms. Neidlein’s position that Greeneway discriminated on the basis of its intentional animosity
because of Ms. Neidlein’s perceived or actual disability.”

No. 2025AP2134
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¶18 Here, according to Neidlein’s version of events, Greeneway made
known its intent to discriminate by its conduct in March 2022, which, Neidlein
says, showed animosity toward her “because of her disability.” On March 30,
Greeneway’s alleged discriminatory intent culminated in an alleged discriminatory
termination. Even if Neidlein did not know with certainty on March 30 that the
termination was discriminatory, she alleged a number of facts that occurred before
that date that “support[ed] a charge of discrimination” and “should have been
apparent to a person with a reasonably prudent regard for … her rights” as doing
so. See Anchor v. State, ERD Case Nos. 200501702, 200504414 (LIRC Jan. 4,
2012). Indeed, Neidlein cited these facts in her WFEA complaint precisely
because they support her discrimination claim.
¶19 Second, Neidlein argues that she did not have “[e]nough evidence to
supply the necessary imprints of discriminatory intent” to prove her case until she
received the letter from Ferkey. Neidlein cites no authority for the proposition that
the statute of limitations on a claim begins to run only after the plaintiff has
gathered all evidence sufficient to prove the claim at trial. Again, if this were the
law, the statute would never begin to run on any claim that required discovery to
prove any of its elements. As the Commission concluded, Greeneway’s March
2022 treatment of Neidlein, as she described it, constituted evidence supporting a
charge of discrimination.
¶20 In her reply brief on appeal, Neidlein contends that this treatment
consisted of “prior bad acts” that were “predicated solely on Ms. Neidlein’s
worker’s compensation claim” and “unrelated” to the WFEA discrimination claim.
She argues that the Commission failed to distinguish between a worker’s
compensation claim and a WFEA claim, only the latter of which requires a
showing of intent. But, as discussed above, Neidlein herself described

No. 2025AP2134
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Greeneway’s March 2022 conduct as showing “animosity to the need to
accommodate [her] disability” and harassment “because of her medical condition,”
and she herself alleged that “she had complained about discrimination” to
Greeneway in March 2022. This is evidence supporting discriminatory intent.
That the facts might overlap with those relevant to a potential worker’s
compensation claim does not change the analysis. These facts support the
Commission’s conclusion that a reasonable person in Neidlein’s position would be
on notice of a WFEA claim when she was terminated on March 30, 2022.
¶21 Neidlein also argues that the Commission erred because it relied on
“uncorroborated hearsay” in the form of Ferkey’s affidavit, in which Ferkey
averred that Neidlein’s inability to meet the physical requirements of the job was a
reason given to Neidlein for her termination at the March 30, 2022 meeting. This
argument is not supported by the Commission’s decision, which explicitly is
“based solely on [Neidlein’s] version of events,” and does not depend on Ferkey’s
disputed assertion that Ferkey told Neidlein that she was unable to meet the
physical requirements of the job. Any dispute regarding Ferkey’s statement at the
discharge meeting is irrelevant to the Commission’s decision and not a ground for
reversal.
¶22 In sum, none of Neidlein’s arguments persuade this court that the
Commission erred in determining that a reasonable person in Neidlein’s position
would be on notice of her WFEA discrimination claim on the date her
employment was terminated. See Racine Educ. Ass’n, 158 Wis. 2d at 182.
According to Neidlein’s own allegations, in March 2022, she had been harassed
for her shoulder condition, reprimanded for absenteeism that her physical
disability necessitated, and given objectionable menial tasks because of her
disability until she could complete all duties of her job rather than being allowed

No. 2025AP2134
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to do her job with accommodations. Then, according to Neidlein, on March 30,
she was terminated for no legitimate reason that she could discern. A reasonable
person would question whether the termination was the result of discrimination at
that point, even if evidence strengthening the potential claim came later.
Accordingly, Neidlein’s complaint was barred by the statute of limitations when it
was filed 301 days after the date of termination.
Conclusion
¶23 For all of these reasons, we affirm the circuit court order affirming
the agency decision.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.