Wis.LIRC ER Decision: Johnson, Margie - February 29, 1996 - Parties - proper parties respondent; Race discrimination, licensing

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARGIE N. JOHNSON, Complainant

CENTRAL REGIONAL DENTAL TESTING SERVICE, Respondent A

STATE OF WISCONSIN, Respondent B
C/O OFFICE OF THE ATTORNEY GENERAL

STATE OF WISCONSIN DEPARTMENT OF REGULATION AND LICENSING, Respondent C

FAIR EMPLOYMENT DECISION
ERD Case No. 9352414, EEOC Case No. 26G931805

In a complaint filed on May 19, 1993 which identified "Central Regional Dental Testing Service" of Topeka, Kansas as respondent, complainant Margie N. Johnson ("Johnson") alleged that

"[a]s the testing agent for the State of Wisconsin, Central Regional Dental Testing service via its subjective testing practices disproportionately fails black and minority candidates who seek to obtain a license to Practice Dentistry within the region it serves including Wisconsin",

and she also alleged that she was discriminated against because of her race in that

"[t]he subjective methods for evaluating the clinical competence is determined by clinicians that have not had to be examined by the same criteria. As an agent for the state that provides a service to the Dental Exam Board violates the disparate impact theory of Title VII".

In an amendment to the complaint filed on June 16, 1993 which identified "State of Wisconsin Dept of Regulation & Licensing" as respondent, Johnson complained of that respondent's

"[u]tilization and formation of an independent Dental testing Service to control the number of minority entering the field of Dentistry",

and she alleged that she was discriminated against because of her race in that

"[t]hrough its partnership in the CRDTS testing service, the State Dental Examining Board has maintained a systemic method to prohibit blacks and other minorities from entering this health care field. The effect of this contractual service and how it is utilized to determine the pass/fail and the Wis. Admin. Code Ch DE2.01(g) that disallows no more than 3 attempts in any one section before candidates must repeat the entire process again, enforces the adverse impact on the minority population. This procedure also disallows the applicant employment within the field, to utilize their skills knowing that minorities applicants will be fail at a ratio 25 times greater than white applicants, then the process of `score' value to any section, will automatically put said applicant in the several attempts group".

Following an investigation, an Equal Rights Officer for the Equal Rights Division issued an Initial Determination on December 7, 1994 which identified 3 respondents, Central Regional Dental Testing Service ("Respondent A"), "State of Wisconsin, c/o Office of the Attorney General" ("Respondent B"), and "State of Wisconsin Regulation and Licensing" ("Respondent C"). The Initial Determination concluded that there was probable cause to believe that all 3 respondents had violated the Wisconsin Fair Employment Act by barring the complainant from employment because of race and by refusing to license the complainant because of race.

Thereafter, the State of Wisconsin, by the Office of the Attorney General, filed a Motion to Dismiss the complaint against it on the grounds that it had not been named as a respondent in a complaint, that the State of Wisconsin was not a licensing agency, that there was no allegation in the complaint that there was discrimination in employment or that employment had been denied, and that the allegations of the complaint were insufficient to sustain a claim of discriminatory disparate impact. Central Regional Dental Testing Service filed an Answer to the complaint denying discrimination and alleging the statute of limitations as a partial defense. The State of Wisconsin Department of Regulation and Licensing filed an Answer denying discrimination and moving to dismiss on the grounds that the complaint failed to state a cause of action under the Fair Employment Act because it did not state clearly and concisely the facts constituting the alleged unlawful discrimination, and that the complainant had failed to exhaust her administrative remedies. The Administrative Law Judge did not rule on these motions, but scheduled the matter for hearing in July, 1995.

Approximately 2 months after filing its Answer and Motion to Dismiss, the State of Wisconsin Department of Regulation and Licensing filed a Brief In Support of Motion to Dismiss. That Brief argued, inter alia, that the complaint should be dismissed because the Dentistry Examining Board rather than the Department of Regulation and Licensing was the proper party respondent in a proceeding alleging denial of licensure as a dentist.

Thereafter, after considering responsive argument filed by the complainant, the Administrative Law Judge issued a Decision and Order on June 16, 1995 which

(1) dismissed the complaint against "State of Wisconsin, c/o Office of the Attorney General" ("Respondent B") with prejudice, on the theory that it had never been named as a respondent in a complaint;

(2) dismissed the complaint against State of Wisconsin Department of Regulation and Licensing ("Respondent C") with prejudice, on the theory that the Dentistry Examining Board rather than the Department of Regulation and Licensing was the proper party respondent in a proceeding alleging denial of licensure as a dentist; and

(3) dismissed the complaint against Central Regional Dental Testing Service ("Respondent A"), on the theory that the complaint could not be maintained against it if the licensing agency (determined by the Administrative Law Judge to have been the Dentistry Examining Board) was not also a party respondent, but designated the dismissal as being "without prejudice" on the theory that the proceeding could be maintained if a new proceeding were commenced which made the Dentistry Examining Board a party.

The complainant filed a timely petition for commission review of the Administrative Law Judge's Order.

The commission has considered the petition and the positions of the parties, and it has reviewed the record. Based on its review, and for the reasons stated in the Memorandum Opinion which is attached hereto, the commission now makes the following:

ORDER

The Administrative Law Judge's Order dismissing the complaint against respondent "State Of Wisconsin, c/o Office of the Attorney General" and respondent Central Regional Dental Testing Service, is affirmed.

Insofar as it dismissed complainant Margie N. Johnson's complaint against respondent State Of Wisconsin Department Of Regulation and Licensing, the Administrative Law Judge's Order is set aside. This matter is remanded to the Equal Rights Division for further proceedings consistent with this decision.

Dated and mailed: February 29, 1996
jonesha.rpr : 110

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Background --

The complaint addressed in this case is one of six related complaints which were brought to the Equal Rights Division by complainant Margie N. Johnson and another person, Harold A. Jones, in an effort to challenge what Johnson and Jones believe to be racial discrimination in the process by which dentists are licensed in Wisconsin. The commission has this day issued decisions in all six matters.

Because no hearings have been held, there is no evidentiary record on the basis of which to make factual findings. As a general matter, any determination as to the legal adequacy of a charge of discrimination which is made prior to a hearing should be made by reference to the complaint, and not by reference to assertions made in subsequent affidavits or other collateral sources submitted by the party seeking dismissal. However, the particular circumstances of a case may justify looking beyond the narrow confines of the complaint. Olson v. Lilly Research Laboratories (LIRC, 06/25/92). Thus, for example, the commission has indicated that assertions made by a complainant to the Equal Rights investigator, sworn testimony of a complainant given in a discovery deposition, assertions made by or on behalf of a complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for a complainant in written argument submitted in response to a motion to dismiss, could be considered. Tucker v. Rock County (LIRC, 07/02/92). In this case, the commission's decision rests on consideration of the factual allegations made by the complaint and on analysis of the legal structure of the State of Wisconsin and its agencies which are involved herein. The commission has also considered other sources of information in the file which appear (from consideration of the entire record, including argument submitted by complainant) to be uncontested by complainant at this point.

The legal issues presented are significantly different with respect to each of the three respondents identified in the caption. They are discussed separately below.

State of Wisconsin --

The ALJ's conclusion that the State of Wisconsin should be dismissed as a separately named respondent was premised on the theory that it had never been named as a respondent in Johnson's complaints, but had been added to the case only by an ERD investigator. The commission affirms the ALJ's decision that the State of Wisconsin should not be a separately identified respondent, but for another reason. The "State of Wisconsin" should not be listed as a separate respondent in the caption of this case because it is entirely superfluous and unnecessary to do so. No purpose is served by having the State of Wisconsin named separately as a respondent in an action naming a state agency as a respondent, where the "State of Wisconsin" is not alleged to have engaged in any discriminatory conduct independent of the alleged discriminatory conduct of the named state agency.

The commission wishes to emphasize that it does not view its decision, to affirm the dismissal of the complaint against "State of Wisconsin" as a separately-named respondent, as rising to the level of a "jurisdictional" concern. Indeed, it is possibly somewhat artificial to even view it as a "dismissal". It is merely a matter of housekeeping, as if the Equal Rights Division had made a clerical error which caused a party to be listed twice in the caption, and the commission corrected it. Of course, the error here was not a purely clerical one; as the Attorney General's office noted in its correspondence with the Equal Rights Division, the inclusion of "State of Wisconsin" as a separately identified respondent in this proceeding against (in part) a state agency, appears to be the result of a long-standing practice of the ERD to add that designation in any case involving the state. (1 ) Nevertheless, it was an error involving listing the same party twice, and the commission corrects it as such.

Department of Regulation and Licensing --

The ALJ's conclusion that the Department of Regulation and Licensing should be dismissed as a respondent was premised on the theory that it was not that Department, but rather a separate agency (the Dentistry Examining Board), that was the appropriate respondent in an action complaining of discrimination in licensure as a dentist. The commission disagrees with this theory and has therefore set aside the Administrative Law Judge's Order to the extent that it dismisses the complaint against the Department of Regulation and Licensing. The commission concludes that given the contents of Johnson's complaint and amended complaint, and given the nature of the relationship between the Department of Regulation and Licensing and the Dentistry Examining Board, the complaint was adequate and should not have been dismissed. The commission also concludes that, even if designation of the state agency respondent in the complaint was "incorrect" in some fashion, the complaint still should not have been dismissed by the Equal Rights Division because the designation used (Department of Regulation and Licensing) was specifically dictated to Johnson by the Equal Rights Division.

The complaint against Department of Regulation and Licensing was adequate -- The commission concludes that the ALJ's decision, that the Dentistry Examining Board rather than the Department of Regulation and Licensing was the proper party respondent and that the complaint had to be dismissed because it did not name the proper party, was erroneous for a number of reasons.

First, even if it were correct as a matter of law that the Dentistry Examining Board rather than the Department of Regulation and Licensing had to be named, the amended complaint did mention the Dentistry Examining Board. The text of the discrimination statement in the amended complaint identifies both the Examining Board and its rules:

"[t]hrough its partnership in the CRDTS testing service, the State Dental Examining Board has maintained a systemic method to prohibit blacks and other minorities from entering the health care field. The effect of this contractual service and how it is utilized to determine the pass/fail and the Wis. Admin. Code Ch DE2.01(g) that disallows no more than 3 attempts in any one section before candidates must repeat the entire process again, enforces the adverse impact on the minority population. This procedure also disallows the applicant employment within the field, to utilize their skills knowing that minorities applicants will be fail at a ratio 25 times greater than white applicants, then the process of `score' value to any section, will automatically put said applicant in the several attempts group".

Second, the commission believes that the connection between the Department of Regulation and Licensing and the Dentistry Examining Board is closer than recognized by the Administrative Law Judge. Contrary to the ALJ's indication, the DEB is not merely "attached to" the Department, but is "in" that Department. The structure of the executive branch is described in Chapter 15 of the statutes. Sec. 15.03 provides, in relevant part, that "any division, office, commission, council or board attached under this section to a department or independent agency or a specified division thereof shall be a distinct unit of that department, independent agency or specified division". In the sections which follow, the term "attached to" is used with reference to only some of the specific boards, commissions, etc., which are created. In other sections, various boards, commissions, etc. are described as simply being created "in" the department. This differential usage ("in" vs. "attached to") appears throughout Chapter 15. It should not be casually assumed that the distinction is meaningless, because when construing statutes, meaning should be given to every word, clause and sentence in the statute, and a construction which would make part of the statute superfluous should be avoided wherever possible. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47 (1981). In particular, "[w]here the legislature uses two different phrases . . . in two paragraphs in the same section, it is presumed to have intended the two phrases to have different meanings." Armes v. Kenosha County, 81 Wis. 2d 309, 317, 260 N.W.2d 515 (1977). Thus, it is appropriate to presume that when the legislature spoke of boards, councils, etc. that were "attached to" departments, it intended to describe a different kind of relationship than it was referring to when it described boards, councils, etc. that were "in" departments. The most reasonable construction, considering the common meaning of the words, is that a board or council that is merely "attached to" a department has a more separate and independent status vis a vis that department, than a board or council that is actually "in" that department. This is significant because the examining boards in the Department of Regulation and Licensing, including the Dentistry Examining Board, are of the type that are created "in" the department rather than "attached to" it. See, e.g., Sec. 15.405(6), Stats.

The commission has considered the fact that sec. 440.035, Stats., contained in Chapter 440 and pertaining specifically to the Department of Regulation and Licensing, uses the "attached" terminology in referring to the Department's examining boards. However, the fact remains that at least within the context of Chapter 15, the examining boards are actually "in", and not merely "attached to", the Department of Regulation and Licensing, and that therefore the provisions of sec. 15.03, Stats. (which ALJ Brown cited in describing the relationship of the Dentistry Examining Board and the Department) are not germane.

Furthermore, a comparison of secs. 15.03 and 440.035, discloses a significant difference. Section 440.035, Stats. does not contain the specific statement found in sec. 15.03, that the board "shall be a distinct unit of" the department. On the assumption that the legislature's inclusion of that phrase in sec. 15.03, Stats. was intended to have some particular purpose, Armes, supra, the commission concludes that the omission of anything equivalent to it in sec. 440.035, Stats. indicates that the Department of Regulation and Licensing's examining boards are not "distinct units of" that department in the same sense as that described in sec. 15.03, Stats.

Apart from the fact that the Dentistry Examining Board does not as a matter of law have the kind of "distinct unit" status that the ALJ thought, the file in this case also discloses that there is in practice such a close association between the Department of Regulation and Licensing and its examining boards that the commission would in any event not agree with the ALJ. Thus, the files in these matters contain examples of Department of Regulation and Licensing letterhead, which bears the words "Regulatory Boards", followed by a listing of all of the examining boards, at the bottom. The Dentistry Examining Board's response to the 1995 complaints, from staff attorney Donald R. Rittel as Attorney for the Dentistry Examining Board, came to the Equal Rights Division in the form of a July 24, 1995 letter on Department of Regulation and Licensing letterhead. Also, only a few months before, the same Attorney Rittel had filed his Motion and Brief for Dismissal of the 1993 complaints (using the same Regulation & Licensing letterhead) in the capacity of Attorney for the Department of Regulation and Licensing. Perhaps most tellingly, the correspondence which informed Johnson that her request for licensure as a dentist was being denied came from Barbara K. Powers, a Program Assistant in the Department of Regulation and Licensing's Bureau of Health Professions, on that same Regulation & Licensing letterhead.

The commission believes that, given the statutory description of the relationship between the Department of Regulation and Licensing and the Dentistry Examining Board and the indications in this file of the close connection between the two, it is highly artificial to insist that the Board has such a separate identity from the Department that an administrative complaint was defective in naming the Department rather than the Board, particularly when the allegations of the complaint identified the role of the Board in the alleged discrimination. From the very beginning, there has really been no question about what these complaints were about: they alleged race discrimination in the process of becoming licensed as a dentist in Wisconsin. The identity of the parties involved also can not have been a mystery to anyone: the Department of Regulation and Licensing and the Dentistry Examining Board were both mentioned in the complaints, and the Department and the Board both know what roles they play in the licensing of dentists. Dismissal of this complaint for some perceived failure to correctly name parties represents a hyper-technical approach to pleading that has no place in administrative litigation.

The Equal Rights Division caused any misdesignation of parties and therefore should not have dismissed the complaint on that basis -- The commission also concludes that even if there was a misdesignation of the parties, the Equal Rights Division should never have dismissed the complaint on that basis because the Division caused the problem itself.

The Division responded to Johnson's initial complaint (against the Central Regional Dental Testing Service) by "rejecting" it. Section Chief Johnny Kimble Jr. wrote to Johnson on June 14, 1993, stating that he was returning her complaint to her. Kimble's letter instructed Johnson that "the appropriate respondent would be the Department of Regulation and Licensing". She therefore filed her amended complaint which listed "State of Wisconsin Department of Regulation and Licensing" in the box on the complaint form provided for the designation of a respondent.

Kimble's purported "rejection" of the complaint, which was procedurally improper under the Equal Rights Division's rules (2 ), in effect required the complainant to add the governmental agency responsible for licensing of dentists to the complaint, but it did more than this. It also caused the complainant to use a specific description of the governmental agency, "Department of Regulation and Licensing". For the Division to subsequently dismiss the complaint because it found fault with that description is contrary to notions of fundamental fairness. In Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984), a case in which a lay complainant was assisted by the ERD in drafting her complaint and an ALJ subsequently held that she could not litigate certain issues because they had not been raised in her complaint, the court of appeals invoked the rule that remand was required where the fairness of the procedure was impaired by a material procedural error, and quoted with approval from the decision of the circuit court in the same case:

For the agency to take the position that it can participate in the drafting of the complaint, shape the language of the allegations, assist a complainant unschooled in the law and unrepresented by counsel in the preparation of a form complaint supplied by the agency itself, and then turn around and severely limit the scope of the evidence to be considered at a preliminary stage of the proceedings, is fundamentally unfair.

Hiegel v. LIRC, 121 Wis. 2d at 212. The commission believes that the parallel to the situation here is clear.

Because the complaint and amended complaint adequately identified the regulatory structure responsible for licensing of dentists in Wisconsin, and because the Equal Rights Division was in any event responsible for the use of the designation "Department of Regulation and Licensing" which appeared in the "respondent" box of the complaint form used for the amended complaint, the commission must set aside the ALJ's dismissal of the complaint against the Department of Regulation and Licensing and remand this matter for further proceedings.

Central Regional Dental Testing Service --

As noted, the ALJ concluded that the complaint could not be maintained against Central Regional Dental Testing Service ("CRDTS") if the proper state agency respondent was not also a party. His decision also suggested, however, that if the "proper" party respondent were named, then CRDTS could also be a party in its own right. The commission has concluded, supra, that there was no defect in the naming of the governmental licensing authority here which was sufficient to justify dismissal of the complaint. Nevertheless, it agrees that the complaint against CRDTS had to be dismissed. The commission differs from the ALJ, however, in concluding that there was no basis to dismiss the complaint against CRDTS "without prejudice", because CRDTS was not a proper party respondent at all.

The initial complaints in this matter had a number of references to the supposed relationship between CRDTS and Wisconsin. Thus, for example, there were allegations that CRDTS was "the testing agent for" and "an agent of" the State of Wisconsin, that the Dental (sic) Examining Board had a "partnership" with CRDTS, and that CRDTS provided a "contracted" service. The Department of Regulation & Licensing's response to the initial complaints disputed some of this, for example denying a "partnership", but there were other statements suggesting that there was some relationship ("By this administrative rule [Wis. Admin. Code. DE 2.01(g)] and by contract, the Dentistry Examining Board has agreed to accept the clinical exam results of CRDTS"; emphasis added). What was undisputed, was that (as noted) the Dentistry Examining Board had promulgated an administrative rule which made successful completion of the CRDTS examination, without having to repeat any of its parts more than 3 times, a pre-requisite to licensure as a dentist in Wisconsin.

However, certain materials in the file from CRDTS which were submitted by the complainants, as well as correspondence from CRDTS, provide more information which the commission believes is not in dispute. A letter to the ERD investigator from counsel for CRDTS included a characterization of CRDTS as "an independent testing agency serving the states of Colorado, Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota, Wisconsin and Wyoming. CRDTS is an independent testing agency, not a licensing jurisdiction". A copy of the "Dental Candidate's Guide To The CRDTS Examination", published by CRDTS, explains that the states just mentioned "have joined in the formation of an independent testing agency, [CRDTS]". The complainant did not ever dispute these characterizations of the nature of CRDTS to the investigator or subsequently in written argument to higher authorities. The commission therefore analyzes the appropriateness of naming CRDTS as a respondent in light of this information about the nature of that organization.

ALJ Brown, in ruling that CRDTS could not itself be held directly liable because it was merely acting as an agent for the agency that actually denied licensure, cited Sinclair v. Mikes Towne & Country (LIRC, 10/15/93), as support. The commission believes that this represented a misunderstanding of that decision. The ALJ was in effect holding that there is some kind of "mandatory joinder" rule in proceedings under the FEA -- that in certain cases, one cannot make A a respondent unless Respondent B is also joined. However, there is nothing in Sinclair, or in any other decision the commission has ever issued, that suggests this kind of court-like rule. On the contrary, the few decisions that have touched on "joinder" issues have not recognized any concept of mandatory joinder in ERD proceedings. (3 )

Additionally, the holding of Sinclair v. Mikes Towne & Country only extends to the question of whether individuals who were agents of an employer because of an employment or direct ownership relationship with the employer (i.e., supervisors, unincorporated proprietor-owners, etc.) ought to be separately named as respondents when the employer was also designated as a respondent by name in the caption and there was no allegation that the individuals were acting outside the scope of their agency. In that decision, the commission stated:

If Mike's Towne and Country is a corporation, and the effort to make Myron or Gay Tassoul (or both) respondents in their individual capacities is based not only on their alleged "ownership" but also on their having been in some capacity agents of the corporation, a question is presented of whether individuals who acted as agents of an employer can or should be made individual respondents in a proceeding against the employer. The WFEA is unclear on this question. While it seems to anticipate (in sec. 111.321 and 111.325, Stats.) that not only "employers" but also "persons," as distinct from "employers," may be made respondents, it also provides expressly in sec. 111.39(4)(c), Stats., for employer liability for remedies ordered as a result of violation of the WFEA by an employe (i.e., an agent) of the employer. (emphasis added)

Sinclair v. Mikes Towne & Country should thus be understood as having been concerned with the narrow question of whether individual persons who were employed by an employer should be separately named as respondents in a discrimination complaint against that employer. Because the statute provides expressly for full liability on the part of the principal (the employer) in such cases, having the individual employe-agent named as a party unnecessarily complicates the proceeding (not to mention the caption). The situation here is quite different. For one thing, there is a real question here as to whether CRDTS can legitimately be considered an "agent" of the State of Wisconsin and its agencies. Whether or not established by Wisconsin jointly with a number of other states, it now appears that CRDTS operates in a completely independent manner; Wisconsin simply uses the results of its examinations as a benchmark in its licensing decisions. Furthermore, the other party involved here (CRDTS) is not an individual employe-agent of the principal, but a completely separate commercial business entity (it is apparently incorporated). The considerations which were present in Sinclair v. Mikes Towne & Country , which led the commission to limit the inclusion of managers and supervisors as separate respondents in actions against their employers, are simply not present here.

However, the commission concludes for other reasons that CRDTS was not a proper party respondent in a claim such as this.

Section 111.325, Stats. provides that it is unlawful for "any employer, labor organization, licensing agency or person" to discriminate against any employe or any applicant for employment or licensing. The intended meaning of that italicized "person" is unclear.

Some decisions of the commission have taken what might be considered an expansive view of the nature of the entities which may be held subject to the Act as "persons". Thus, some years ago the DILHR commission held, in Olivares v. UW-Oshkosh (DILHR, 10/23/73), that a "person" other than an employer, labor organization or licensing agency could violate the Wisconsin Fair Employment Act if it engaged in discriminatory conduct which has a sufficient nexus with the denial or restriction of an individual's employment opportunities. In Collins v. MATC and Kelly Services (LIRC, 12/19/86), a case in which a temporary agency placed an employe in an assignment with a third party (MATC) and the employe subsequently asserted that MATC had engaged in discrimination, the commission rejected MATC's argument that it could not be made a respondent in the case. Looking to case law under Title VII, and in particular Amarnare v. Merrill Lynch, 36 F.E.P. Cases 6 (S.D.N.Y. 1984), another case involving an employe of a temporary agency who alleged discrimination at the hands of the employer at whose business she was placed, in which the court stated:

[T]he plaintiff may also invoke Title VII on the alternative ground that Merrill Lynch allegedly interfered with her employment opportunities with Mature Temps. Several federal courts have held that Title VII permits suits against statutory employers `who are neither actual nor potential direct employers of particular complainants, but who control access to such employment and who deny such access by reference to invidious criteria',

the commission stated in Collins that "even assuming no employment relationship existed between the Complainant and MATC it should not be permitted to do indirectly through Kelly what it cannot do directly and to avoid answering for its discriminatory conduct. The argument by MATC ignores the purpose of the Act and its intended liberal construction". See also, Russ v. City Veteran Cab Co. (LIRC, 12/04/87), holding that the Wisconsin Fair Employment Act covered an allegation that a cooperative organization of taxicab owners, which used membership fees to operate a central office which provided dispatching and clerical services, discriminated against the Complainant, who drove a cab for a member-owner of the co-op on a lease basis. Recently, the decision in Jackson v. City of Milwaukee (LIRC, 10/28/93) stated that the Wisconsin Fair Employment Act is not limited to discrimination by "employers" against their own "employes." Jackson noted that while sec. 111.325, Stats., provides that it is unlawful for "any employer . . . or person to discriminate against any employe or any applicant for employment," the disjunctive use of the term "person" clearly implies that the "person" doing the discriminating can be someone or something other than an "employer" and therefore can be something or someone other than the employer of the person being discriminated against. The decision held, that the City of Milwaukee was a person within the meaning of sec. 990.01(26), Stats. Because the Complainant was an "individual," and also an "employe" (in that he was an employe of an agency which contracted to provide security guard services for the City), the Wisconsin Fair Employment Act was held to be applicable to the Complainant's claim of discrimination against the City.

However, another approach is evident in Flowers v. South Central Wis. Joint Apprenticeship and Training Committee (LIRC, 06/21/85). That case concerned the cancellation of an apprenticeship indenture. The named respondent, a non-governmental joint management-labor apprenticeship and training committee, had recommended the cancellation. However, it was actually the Wisconsin Division of Apprenticeship and Training that controlled the apprenticeship and that canceled it. In that case, the commission specifically held, that a "licensing agency" must be an actual unit of government, and that therefore jurisdiction could not be based on a theory that the named respondent was acting in the capacity of a licensing agency when it exercised control affecting a license. It also specifically held, that jurisdiction could not be based on the catch-all "person" language, because "the Commission considers that in this statute the term `person' is used in its individual sense, as a contrast to the agencies, organizations and business entities listed immediately before `person' ".

The situation here is closer to that in Flowers than the other cases (Olivares, Collins, Russ, Jackson). CRDTS, like the joint management-labor apprenticeship and training committee in Flowers, is a non-governmental organization that makes determinations concerning what it believes to be the fitness of certain persons to engage in certain remunerative activities. The Department of Regulation and Licensing and its Dentistry Examining Board, like the Division of Apprenticeship and Training in Flowers, is a governmental agency that actually controls the legal right of individuals to engage in the remunerative activity in question, and which uses the determinations of the private body as a basis for its decisionmaking. Notwithstanding the general suggestion in Olivares, Collins, and Jackson that the "person" language might reach non-employer entities that affect employment opportunities, the Flowers decision is a narrow and specific declaration that this possibility does not exist in the specific case of non-governmental organizations which make determinations affecting decisions of governmental licensing organizations. For these reasons, the commission has dismissed the complaint against CRDTS with prejudice.

It is important to note the limited applicability and effect of this construction of the law. This case involves licensing discrimination, not discrimination in employment. See, NOTE, infra. Furthermore, it involves a third-party organization, not an individual. That third party organization makes determinations concerning individuals which can have an effect on the ability of those individuals to obtain licensure, but it does not make those determinations under the control of and as an agent for the licensing agency. Rather, the licensing agency uses those determinations in making licensing decisions, in much the same way that a college makes a decision on the admission of a student based on some high school's decisions on the grades to award that student. Deciding that the third party is not the proper focus of a complaint of licensing discrimination does not work to deprive the individual of a potential remedy; the individual has the ability to obtain a remedy from the licensing agency (if, for example, it can be demonstrated that use of some standard has a disparate impact on a protected group and the licensing agency cannot demonstrate the required validity of the standard). The commission's decision need not and should not be extended beyond this specific kind of situation.

NOTE: A combination of factors led to the Initial Determination in this matter identifying an issue of "employment" discrimination, in addition to and distinct from the issue of discrimination in licensure. It is debatable whether there is any significance to this kind of multiplication of single issues into multiple issues by recharacterizing them. In this respect, it is reminiscent of the Division's multiplication of parties by changing how they are described (i.e., making one party into 2 by naming a state agency and also naming the state; making one employer into multiple respondents by individually naming supervisors, managers, and other employes of that employer as respondents).

Even assuming the existence of some actual legal significance to the terms, the fact that licensure may have impact on employment opportunities does not ipso facto add a separate "employment discrimination" case to a "licensing discrimination" case, especially where there is no identifiable, separate employment opportunity that can be pointed to as having been allegedly impaired. It is clear that nothing in this case justified the conclusion that it involved any act of "employment" discrimination which needed to be mentioned and resolved separately. There was no job involved. The issues involved are and always have been related exclusively to licensure.

The commission believes that the existence in this case of a separate issue of "employment discrimination" as opposed to "licensing discrimination", is and always has been only imagined. However, to the extent that either the parties or the Equal Rights Division or both consider it to be necessary, they may consider that the commission's Order of Dismissal herein encompasses this illusory, separate allegation of "employment discrimination". Furthermore, the issue as to which the commission has reversed the ALJ's Order of Dismissal and remanded should be understood as involving only the question of discrimination in licensure.

cc:
Mary Pat Ninneman, Atty for Central Regional Dental Testing Service
David Rice, Atty for State of Wisconsin
William Dusso, Atty for Dept of Regulation & Licensing

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Footnotes:

(1)( Back ) The commission agrees with the suggestion made by the Attorney General's office, that the Equal Rights Division should cease this practice of adding "State of Wisconsin" as a separately designated respondent in the caption of proceedings in which an agency of the State of Wisconsin is already a respondent.

(2)( Back ) Based on its experience in reviewing decisions of Equal Rights Division, the commission is aware of and takes notice of the following historical facts concerning the administrative practices of that Division. At one time, the Equal Rights Division had a practice by which lay employes of what was then the Investigation Bureau would sometimes "reject" complaints which had actually been filed with the Division, on grounds such as untimeliness, failure to state a claim under the Act, etc. In these cases, no case number would be assigned and no case file would be created; often, the complaint would actually be mailed back to the complainant, without retention of any record of its receipt. In the mid-1980's, the ERD adopted an administrative rule, "Preliminary Review of Complaints" (now found in Wis. Admin. Code Ch. ILHR 218.05), to address this situation. That rule provides that the ERD shall review every complaint filed to determine, among other things, whether the respondent named is subject to the act. It provides further that if the preliminary determination is that the complaint does not meet the requirements described (including having a respondent that is subject to the act), the ERD shall issue a preliminary determination dismissing the complaint. This kind of dismissal is appealable (internally, and then to the commission), and it is issued with information about appeal rights. By its terms, the "Preliminary Review of Complaints" rule applies to "every complaint filed". Under ILHR 218.02(6), a complaint is filed when it is received by the ERD. If the ERD concluded that the complaint failed to identify a respondent that was subject to the Act, then it was incumbent on it to follow the procedures of the "Preliminary Review of Complaints" rule -- which was adopted precisely to do away with the type of "rejection" that occurred here.

(3)( Back ) General Telephone of Wis. v. LIRC (Kraczek) (Ct. App., Dist. IV, unpublished decision, 12/09/81) (union representative not a necessary party where the collective bargaining agreement excluded pregnancy disability from the employer's disability plan); Sorgel Electric v. LIRC (Dobson) (Milwaukee Co. Cir. Ct., 08/10/79) (employer's motion to compel joiner of a union denied); see also, Hall v. Ripon Foods (LIRC, 08/09/78); Appleton Papers v. DILHR (Schmitz) (Dane Co. Cir. Ct., 06/26/75).