MILWAUKEE TEACHERS EDUCATION ASSOCIATION, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Numbered paragraphs 2., 3., and 4. of the CONCLUSIONS OF LAW section are deleted.

The text of the MEMORANDUM OPINION section is deleted.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed June 30, 2010
milwauk . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant Milwaukee Teachers Education Association (MTEA) is the collective bargaining representative for certain of the employees of the respondent Milwaukee Board of School Directors, more familiarly known as Milwaukee Public Schools (MPS).

During all times relevant here, MPS has offered two health insurance plans to members of the MTEA.

Prior to negotiation of the 2003-2005 collective bargaining agreement, these plans, subject to certain limitations, provided coverage for Viagra and other "drugs used for the treatment of erectile dysfunction, impotence, or sexual dysfunction or inadequacy, ..."

During negotiation of the 2003-2005 collective bargaining agreement, MPS proposed elimination of this drug benefit. MTEA did not accept this proposal. This bargaining impasse was referred to interest arbitration. The arbitrator adopted the MPS proposal in a decision issued on August 27, 2005. Consequently, coverage for Viagra and related medications was excluded from the 2003-2005 health plans for MTEA members effective November 1, 2005.

On April 3, 2008, MTEA, as the bargaining representative for its membership, filed this charge with ERD alleging that the exclusion of this drug benefit constituted sex discrimination within the meaning of the Wisconsin Fair Employment Act (WFEA).

The evidence of record does not show that the MTEA membership authorized the filing of this charge, or that any individual MTEA member was actually prescribed Viagra or one of the related medications during the time period relevant to the 2003-2005 health plans, and denied coverage.

The WFEA provides as follows, as relevant here:

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer...may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of...sex....

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.

(2) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321....

111.39 Powers and duties of department. Except as provided under s. 111.375 (2), the department shall have the following powers and duties in carrying out this subchapter:

(1) The department may receive and investigate a complaint charging discrimination, discriminatory practices, unfair honesty testing or unfair genetic testing in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination, unfair honesty testing or unfair genetic testing occurred. The department may give publicity to its findings in the case....

The Wisconsin Administrative Code states as follows, as relevant here:

DWD 218.03 Complaints. (1) WHO MAY FILE COMPLAINTS. A complaint may be filed by any person or by the person's duly authorized representative. A complaint filed by a representative shall state that the representative is authorized to file the complaint.

MPS argues, and the ALJ effectively held, that the interest arbitrator's decision had a preclusive effect on this WFEA action. However, in view of the commission's responsibility to attempt to harmonize the interest arbitration and WFEA statutory schemes, (1)   as well as the reluctance expressed by the courts and the commission to deprive an individual of a substantive right derived from an independent body of law such as the WFEA, (2)   the commission has not adopted the ALJ's holding in this regard.

MPS also argues, at least by implication, that MTEA does not have standing since the hearing record does not establish that MTEA was given the authority by its membership to file this charge.

However, as a "person," a union is an entity which may file a complaint of discrimination under the WFEA. Wis. Adm. Code § DWD 218.03(1). See, Helton v. Wesbar Corp., ERD Case No. 8751206 (LIRC March 19, 1992).

The more significant issue, however, is not whether MTEA has standing to file the underlying charge, but instead whether the charge, as framed by the MTEA, is a cognizable one under the WFEA.

Wisconsin Statutes § 111.322, which sets forth those actions prohibited by the WFEA, delimits those actions, as relevant here, to those "against any individual."

MTEA, however, has failed to establish that any individual was in fact injured by the subject exclusion. MTEA asserts in its reply brief to the commission:

Between 2002 and 2004, the collectively-bargained health insurance plans (Plans) covered and paid the claims of at least 425 participants for prescription of Viagra and other erectile-dysfunction (ED) drugs. (C. Ex. 8.) [Footnote 2: Four hundred twenty-five is the largest total for the same dosage of a single drug in one year: 425 claimants receiving prescriptions for Viagra 100 mg in 2004. It is likely that the total number of participants submitting claims for ED drug prescriptions was far greater. The cumulative numbers of claimants for all ED drugs under the PPO Plan were 457 in 2002, 829 in 2003, and 1002 in 2004. These totals may have included duplicates (claimants who were prescribed different drugs or dosages during the same year). (C Ex. 8)] There is no dispute that since November 1, 2005, when the challenged exclusions went into effect, none of these employees would have had their prescriptions covered under the plan.

MTEA is effectively asking the commission to conclude, based on the fact that certain of its members had been prescribed, and received coverage for, Viagra and similar medications prior to November 1, 2005, that certain of its members would necessarily have then been prescribed, but denied coverage for, one of these medications after November 1, 2005.

However, it is not within the purview of the commission's authority here to make findings or draw conclusions based upon conjecture or probability or extrapolation. See, Jones v. State of Wisconsin, ERD Case No. 9352630 (LIRC Feb. 29, 1996). By filing an action pursuant to Wis. Stat. § 111.322(1), it was MTEA's burden to establish that an individual had actually been prescribed, but denied coverage by one of the MPS plans for, Viagra or a related medication after November 1, 2005, and it failed to do so.

MTEA points to the commission's decisions in Helton, supra, and to the Wisconsin Court of Appeals decision in Racine Unified School District v. Racine Education Assn. and LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991), in support of its argument that it was not required to establish an individual injury.

However, in Racine Unified School District, the collective bargaining representative had brought the WFEA action pursuant to Wis. Stat. § 111.322(2), not, as here, § 111.322(1). The prohibition set forth in Wis. Stat. § 111.322(2), which relates to printing or circulating a statement or using an application form, is stated very differently than the prohibition set forth in Wis. Stat. § 111.322(1). The court in Racine recognized this distinction when it wrote:

As we earlier noted, this action did not arise under sec. 111.322(1) Stats., which provides a cause of action for accomplished acts of discrimination. Rather, as we have noted, the Union brought this action, in part, under sec. 111.322(2), which creates a cause of action for statements printed or circulated by the employer which proclaim its present or future intent to discriminate.

No accomplished act of discrimination against any individual has been established here.

In addition, Helton, the other administrative decisions (3),  and the court decisions (4),  relied upon by MTEA in this regard reflect that the underlying charges alleged, and the records established, that specific named individuals had been injured by the action at issue.

In another decision relied upon by MTEA, i.e., Kenosha Technical Educational Association v. Gateway VTAE District, (LIRC Aug. 23, 1978), the underlying charge, in contrast to the charge here, was filed as a request for a declaratory ruling pursuant to Wis. Stat. § 227.06  (5).

The failure by MTEA to prove the injury of a specific individual by the subject medication exclusion is fatal to its claim here.

However, even if the MTEA charge were cognizable under the WFEA, another basis requires its dismissal.

Although the ALJ did not address it in his decision, MPS, in its answer to MTEA's charge, asserted as an affirmative defense that this charge was not filed within the applicable statute of limitations. Even though MPS did not argue this in its briefs to ERD or to the commission, given that it raised the statute of limitations issue as an affirmative defense in its answer, the failure to brief the issue does not operate as a waiver. See, Oehlke v. Moore-O-Matic, Inc., ERD Case No. 8401191 (LIRC July 26, 1988); Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005).

The Wisconsin Fair Employment Act requires that a complaint be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite to suit. It is a statute of limitations subject to waiver, estoppel and equitable tolling. Milwaukee County v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).

The 300-day filing period begins to run 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. See, Washington v. United Water Service, ERD Case No. CR199902104 (LIRC Aug. 15. 2003); Lange v. Federal Express, ERD Case No. 9002040 (LIRC, Feb. 22, 1993); Oehlke, supra.

The interest arbitration decision was issued on August 27, 2005. The contract exclusion at issue went into effect on November 1, 2005. MTEA filed this charge on April 3, 2008.

Under the particular circumstances present here, since MTEA has not alleged an individual denial of coverage as the basis for this charge, the operative date would certainly be no later than November 1, 2005, and more likely August 27, 2005, the date the arbitration decision was issued and MTEA had reason to be aware that coverage for the subject medications was now excluded from the collective bargaining agreement. Either date, however, is more than 300 days prior to April 3, 2008, the date this charge was filed. MTEA offers no explanation for delaying until April 3, 2008, to file its charge, and none is apparent from the file or the record in this matter. The conclusion that the statute of limitations was not satisfied here would not operate as a bar to an action based upon an individual injury.

cc:
Attorney Jeffrey P. Sweetland
Attorney Miriam R. Horwitz

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(1)( Back ) Byers v. LIRC, 208 Wis.2d 388, 561 N.W.2d 678 (1997); City of Milwaukee v. Kilgore, 193 Wis.2d 168, 532 N.W.2d 690 (1995).

(2)( Back ) Miller Brewing Co. v. DILHR, 210 Wis. 2d 26 (1997). See, also, Seeman v. Universal Foods, ERD Case No. 8800779 (LIRC March 30, 1992); Estes v. Wisconsin Gas d/b/a WeEnergies, ERD Case No. CR200200321 (LIRC May 25, 2004).

(3)( Back ) Communication Workers v. GTE of Wisconsin (GTE I), ERD Case No. 7310352 (LIRC Sept. 11, 1978), aff'd sub nom. GTE of Wisconsin v. LIRC (GTE II), Case No. 80-2039 (Ct. App. October 26, 1991)(unpublished); Bruce and Local 663 v. Parker Pen (DILHR November 14, 1972); Milwaukee Web Pressmens Union v. The Journal Company (DILHR June 12, 1975); Sosnowski v. Uniroyal, ERD Case No. 7501073 (DILHR Aug. 18, 1977).

(4)( Back ) See, e.g., Goodyear Tire & Rubber Company v. DILHR, 87 Wis.2d 56, 273 N.W.2d 786 (Ct. App. 1978); Braatz v. LIRC, 174 Wis.2d 286, 496 N.W.2d 597 (1993); Ray-O-Vac v. DILHR, 70 Wis.2d 919, 236 N.W.2d 209 (1975).

(5)( Back ) Such authority is now set forth in Wis. Stat. § 227.41.

uploaded 2010/07/16