Wis.LIRC ER Decision: Jones, Harold (#9352630) - 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)

HAROLD A. JONES, 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. 9352630, EEOC Case No. 26G931817

In a complaint filed on June 16, 1993 which identified "Central Regional Dental Testing Service" of Topeka, Kansas as respondent, complainant Harold A. Jones ("Jones") alleged that:

"[t]he subjective methods used to evaluate the clinical competence of the dentist/test candidate is not equally administered. There exists a disproportionate failure rate of African American and other minority dental candidates. These policies of the Central Regional Dental Testing Service inhibits these impacted groups from obtaining licenser in the State of Wisconsin",

and he also alleged that he was discriminated against because of his race:

"[i]n 1993 (May) after the administration of the Central Regional Dental Testing Service Practical Examination during the grading procedures [and i]n 1991 May) after the administration of the Central Regional Dental Testing Service Practical Examination during the grading procedures".

In an amendment to the complaint also filed on June 16, 1993 which identified "State of Wisconsin Dept. of Regulation & Licensing" as respondent, Jones complained that the named respondent:

"[h]elped formulate and utilize an independent and unregulated Dental Testing Service (Central Regional Dental Testing Service) to control the number of minority dentist entering this region of the country and to control the number of minority dentist in practice",

and he alleged that he was discriminated against because of his race in that:

"[t]hrough its partnership in the CRDTS testing service, the State Dental Examining Board has maintained since 1974 a systematic method to prohibit African-American 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 DE2.00. The State of Wisconsin, Dept. of Regulation and Licensing is supporting the discriminatory practice of the CRDTS by not regulating and questions the results obtained by the dental candidates when the exams are administered, by not prohibiting the use of subjective grading of clinical procedures and by not guaranteeing that the clinical exam is both fair, impartial and unbiased."

Following an investigation, an Equal Rights Officer for the Equal Rights Division issued an Initial Determination on October 18, 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; and 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. The Administrative Law Judge did not rule on these motions, but scheduled the matter for hearing in July, 1995.

Approximately 4 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 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 complaint in this matter is dismissed.

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 Harold A. Jones and another person, Margie N. Johnson, in an effort to challenge what Jones and Johnson 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 Jones' 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. For the reasons stated in the decision issued this date in related Johnson case (ERD No. 9352414), the commission disagrees with this theory. It believes that given the contents of Jones' 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 in terms of its identification of the licensing authority in question.

However, it is not disputed that Jones never actually applied for licensure as a dentist in Wisconsin. (2 ) The commission believes that for this reason, Jones cannot establish a prima facie case of licensing discrimination. While there has been very little litigation under the licensing discrimination provisions of the WFEA and no formal articulation of what is necessary to establish a prima facie case of licensing discrimination, by analogy from employment discrimination cases involving hire (in which a complainant must show that he or she applied for hire, see, Larson v. DILHR (Wis. Personnel Comm., 01/22/89) Rubenstein v. LIRC & U.W.-Bd. of Regents (Dane Co. Cir. Ct., 02/06/81)) it is reasonable to conclude that a licensing discrimination complainant must initially show that he or she applied for the license in question. While there have been cases in employment discrimination law in which persons who had not actually applied for employment are given remedies on the theory that the employer's publicly known discriminatory policies were likely to have discouraged certain applicants, these have been class action proceedings in which there are special considerations. The class action procedure is not available in the administrative processes provided for in the WFEA, and therefore this precedent is not applicable. While it may indeed have been a foregone conclusion that Jones would have been denied a license to practice dentistry had he applied because he had failed the CRDTS examination, the commission does not believe that it can overlook the fact that he did not ever apply for a such a license. For this reason, the commission orders the complaint dismissed as against the Department of Regulation and Licensing and the Dentistry Examining Board.

Central Regional Dental Testing Service --

As noted, the ALJ concluded that Jones' 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, for the reasons stated in the Johnson decision issued this day, that although there was no defect in the naming of the governmental licensing authority here which was sufficient to justify dismissal, the complaints against CRDTS had to be dismissed with prejudice because it was not a proper party respondent in a claim of this type. For those reasons, which should be deemed incorporated herein, the commission dismisses Jones' complaint against CRDTS.

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".

cc:
Mary Pat Ninneman, Attorney for Central Regional Dental Testing Service
David Rice, Attorney for State of Wisconsin
William Dusso, Attorney for Department 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 the practice of adding "State of Wisconsin" as a separately designated respondent in the caption of proceedings in which a state agency is already a respondent.

(2)( Back ) The Initial Determination found, and it does not appear that either Jones or the respondents disagree, that Jones in fact took (and failed) the CRDTS examination in December 1990, May 1991, May 1992, December 1992, and May 1993. The fact that Jones never applied for licensure as a dentist is, it appears, similarly undisputed.