RICHARD G. DEMOYA, Complainant
STATE OF WISCONSIN DEPT OF VETERANS AFFAIRS, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (ERD) issued a decision in this matter on January 25, 2013 that dismissed the complainant's complaint, without a hearing, on the grounds that he failed to state a claim under the Wisconsin Fair Employment Act (WFEA). The complainant filed a timely petition for review. Both parties have filed briefs with the commission.
The commission has considered the petition and the positions of the parties, as expressed in their respective briefs. It has also reviewed the complaint; the preliminary determination and order issued by an investigator of the ERD dismissing the complaint for lack of standing by the complainant; the decision issued by ALJ DeLao setting aside that preliminary determination and order, and remanding the case back to the investigation section for an investigation; the subsequent determination issued by an investigator of the ERD dismissing the complaint and finding no probable cause to believe that the respondent violated the WFEA by discriminating against the complainant because he opposed a discriminatory practice or made a complaint under the Act; and ALJ Schacht's Order of Dismissal - Failure to State a Claim. In addition, the commission has reviewed the correspondence in the case file, including letters from department staff and the ALJ to the parties, and discovery documents provided by the parties to one another and to the ALJ.
Based on its review, the commission agrees with the ALJ's determination that the complaint fails to state a claim, and should be dismissed. However, the commission's reasoning differs from that of the ALJ, as is explained in the memorandum opinion below.
The complaint is dismissed for a failure to state a claim under the WFEA.
Dated and mailed December 12, 2013
demoy4_rmd . doc : 120 :
113.5 133.3
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant, Richard deMoya, has alleged that the respondent, Wisconsin Department of Veterans Affairs (WDVA), his former employer, violated the WFEA by taking adverse actions against him in retaliation for his filing two previous complaints with the ERD against the respondent. He last worked for the respondent in late 2006, but he has continued to serve the veterans' community in various volunteer capacities.
As background to the case, John Scocos was Secretary of the WDVA at the time that the complainant's employment with the department ended, and the relationship between the two was acrimonious at that time. It has continued to be so. Scocos left the WDVA sometime after the complainant's employment there ended, and he returned most recently to the WDVA in August 2011, as its Secretary.
Two previous complaints against WDVA - In the first complaint referenced, ERD Case No. CR200602937, filed on or around August 31, 2006, the complainant alleged that the respondent discriminated against him because of his national origin/ancestry (Hispanic) and because he had filed a previous discrimination complaint with the ERD. (1) On August 20, 2010, ALJ Brown issued a decision and order, finding no probable cause to believe that the respondent had discriminated against the complainant as he alleged. The complainant petitioned the commission for review of that decision, but in April 2013, he asked the commission to grant his request to withdraw his petition, which the commission did by order dated April 8, 2013. That case is now closed.
In the second complaint referenced, ERD Case No. CR200704350, filed on or around November 19, 2007, the complainant alleged that the respondent discriminated against him because he opposed a discriminatory practice by the respondent and because he had filed a previous complaint against the respondent under the WFEA. On December 18, 2009, ALJ Lawent granted respondent's motion to dismiss the complaint. The complainant petitioned the commission for review of that order, and on June 28, 2012, the commission, while modifying the ALJ's decision, found no probable cause to believe that the respondent had discriminated against the complainant as he alleged, and dismissed the complaint. That case is now closed.
Current complaint - Richard deMoya filed the complaint at issue on November 7, 2011, alleging adverse and discriminatory actions by the WDVA against him taken in retaliation for his having filed the two previous complaints described above. Although he alleges that the discriminatory conduct began in May of 2006, his specific allegations relate to the following:
The complaint alleges that these actions included harassing and defamatory comments intended to impugn deMoya's reputation and untruthful and/or misleading statements to WCP, state legislative offices, the office of the governor, and WDVA employees, resulting in punitive actions taken against him by the WCP. In his complaint, deMoya also states that he worked for the WDVA for 12 years, and is seeking prospective employment with the WDVA.
Preliminary Determination - The ERD investigator who was assigned the complaint issued a preliminary determination finding that since the complainant was no longer an employee of the WDVA, he lacked standing to bring a complaint under the WFEA.
Set aside and remand - Upon appeal by the complainant, ALJ DeLao set aside the preliminary determination and remanded the matter to the investigation section of the ERD for an investigation per ERD's procedures. In so doing, she cited several commission decisions that stated that former employees may, in certain circumstances, state a claim for relief under the WFEA (alleging retaliation) against their former employers,
Garner v. Univ. of Wis. - Milwaukee, ERD Case No. CR200403960 (LIRC Feb. 10, 2006);
Seeman v. Universal Foods Corp., ERD Case No. 9000807 (LIRC Sept. 22, 1994);
Pufahl v. Niebuhr, ERD Case No. 8802054 (LIRC Aug. 16, 1991), and concluded "that the retaliation provisions of the WFEA cover the allegations made by the Complainant in the current matter."
Subsequent investigation - A different investigator requested specific information from deMoya about his allegations. In response, the complainant described specific events, including events occurring in August, September, and October, 2011 relating to his exclusion from public meetings and removal from WDVA distribution lists. Specifically, he stated that in October/November 2011, he was the state legislative officer of the Wisconsin Military Officers Association ("MOAA"), and was serving on the Council on Veterans Programs ("COVP"); that he would have been included by the WDVA on certain public distribution lists of individuals receiving informational emails from the WDVA about upcoming meetings and other items of interest to the veterans' community, and would have attended such meetings; but that he was denied the opportunity to do so by the WDVA. He did not specify any efforts that he had made to obtain employment with the WDVA or any other related entities, other than to assert that he was seeking such employment.
WDVA responded to the complaint by arguing that the complainant's allegations about purposeful exclusion from open public meetings and removal from public distribution lists failed to establish a connection to the complainant's current or prospective employment, as required by the WFEA.
Initial determination - The investigator issued an initial determination finding no probable cause to believe that the WDVA violated the WFEA as alleged in the complaint. The investigator made specific findings, including findings relating to actions allegedly taken by Secretary Scocos or his deputy secretary against the complainant on August 29, 2011 (not emailing the complainant about public WDVA meetings, even though he served on the COVP) and on October 18, 2011 (directing recipients of an email from the complainant related to WDVA meetings not to respond to him). The determination also noted that, on September 28, 2011, the Vice-President of the MOAA informed the complainant that he learned that Secretary Scocos did not want the complainant to participate in public WDVA Secretary's meetings.
However, the investigator concluded that since Scocos was not employed by WDVA in January 2011, his actions taken at that time could not be attributed to the WDVA, and that the WCP made the decision to issue the stalking warning, not Scocos or the WDVA; that there was no evidence that actions taken by Scocos or other WDVA staff in August, September, and October, 2011 had any adverse effect on any specific employment offer to deMoya or constituted a materially adverse action within the meaning of the WFEA; and that it appeared that the actions taken by Scocos and his staff were motivated by a belief that the complainant was harassing Scocos, and did not constitute unlawful retaliation.
Appeal and issuance of subpoenas - The complainant appealed this determination, and before an ALJ was assigned the case, the complainant contacted the ERD to determine how he could commence discovery in the matter, specifically by taking depositions. The ERD provided him with subpoena forms, and he used those subpoena forms to obtain service on both Scocos and his wife. Those subpoenas were subsequently declared void and unenforceable for purposes of discovery by the ALJ assigned to the case, and the complainant requested to be paid his costs of service of those subpoenas. The ALJ denied that request.
Proceedings in the case prior to the ALJ's decision - There is considerable correspondence in the file between the ALJ and the parties during the months of October, November and December, 2012, much of that correspondence relating to discovery issues. Prior to his decision dismissing the complaint for failure to state a claim, the ALJ requested clarification from both parties - specifically, that the WDVA clarify factually its position with regard to the allegations in the complaint, and that deMoya clarify the allegations in his complaint. The ALJ indicated that this clarification was necessary to determine the proper scope of discovery.
ALJ's decision - - After receiving those responses, the ALJ issued his decision concluding that the complainant had not stated a claim under the WFEA. Specifically, he found that:
The ALJ concluded, in bold print: "Since there is nothing Mr. deMoya alleges an employee of the WDVA did during the time period he articulated in his complaint, there is nothing to have a hearing about, and the Division has no jurisdiction."
Petition for commission review - The complainant argues that the ALJ erred in dismissing his complaint, and requests that the commission reverse the ALJ and remand the matter for continuation of pre-hearing procedures. He also requests reimbursement of $86.66 for his costs of service of the subpoenas declared void. He notes that he provided specific information to the ALJ about statements and actions that he alleged to be retaliatory, and that the ALJ had cautioned the attorney for the WDVA about his use of objections to the complainant's interrogatories and requests for admissions.
Legal Analysis
Although the commission does not agree with the ALJ's rationale for dismissing the case, it does agree that dismissal of this complaint is appropriate. Dismissal of a complaint prior to hearing is appropriate where, even if the facts alleged by the complainant were proven, they would not amount to a violation of the WFEA. See Sabol v. State of Wisconsin, ERD Case No. CR200303174 (LIRC Jan. 31, 2006); Reddin v. Neenah Joint Sch. Dist., ERD Case No. CR200301251 (LIRC Aug. 24, 2004) (ALJ has authority to dismiss a complaint on his own motion).
In conducting such an analysis, it is necessary to look at what the complainant asserts he will prove. The commission has taken an approach in which the complaint is the starting point, and in which additional assertions made by the complainant may then be looked at to the extent necessary to provide details concerning claims already alleged in the complaint, all with the goal of getting a fair idea of what the complainant contends he will prove in order to support the allegations made in the complaint. Garner v. Univ. of Wis. - Milwaukee, ERD Case No. CR200403960 (LIRC Feb. 10, 2006), and cases cited therein.
In this case, the commission disagrees with the ALJ's conclusion that deMoya made no allegations of discriminatory conduct by the WDVA after January 2011. In fact, deMoya adequately alleged specific actions taken by WDVA and its agents in August - October 2011 that might be covered by the WFEA, if the requisite employment nexus existed. Specifically, he adequately alleged efforts by Scocos (as Secretary of the WDVA) and other WVDA agents, to have WDVA staff and at least one legislative office not respond to his inquiries, to exclude him from specific meetings regarding veterans' affairs that he would otherwise be invited to, and to remove him from public email distribution lists that he would ordinarily be included on. These allegations are clear from his complaint and from more detailed assertions that he has made during the department's investigation and during the discovery process, in response to the ALJ's questions. In addition, these specific actions did take place during a time when Scocos was Secretary of the WDVA, and acting on behalf of the WDVA, as were other agents of the department.
The commission does agree with the ALJ, however, that the alleged actions taken in and around January 2011 by Scocos were not taken at a time when he was employed by, or acting for, the WDVA and, therefore, would not implicate action by the respondent WDVA. In this regard, it is important to keep in mind that deMoya's allegations of retaliatory conduct have been made against the respondent WDVA, not against Scocos individually. The actions deMoya alleges were taken by Scocos in January 2011 were not taken by the WDVA or any agent of the WDVA and, in fact, the stalking warning letter deMoya references was issued by a separate third entity, the Wisconsin Capitol Police, against which no allegations of discrimination have been made by deMoya. The commission agrees with the ALJ that these allegations fail to state a cause of action under the WFEA. (2) Furthermore, although he notes in his complaint that discrimination against him by the WDVA began in May 2006, deMoya has made no specific allegations of retaliatory action by the WDVA prior to January 2011, and was likely simply referencing his previous complaints.
Therefore, the inquiry narrows to those actions deMoya alleges were taken against him by the WDVA in August - October 2011. Are these actions sufficiently related to employment, so as to consider them to be covered under the WFEA?
There is no dispute that the anti-retaliation provisions of the WFEA extend to former employees, as ALJ DeLao noted. deMoya is a former employee of the WDVA and, therefore, may be protected by the WFEA against retaliatory actions taken by the WDVA, if those actions are related to deMoya's employment. However, that employment nexus is essential to finding that allegedly retaliatory actions are covered by the WFEA.
In its previous decision, deMoya v. Wis. Dep't of Veterans Affairs, ERD Case No. CR200704350 (LIRC June 28, 2012), the commission noted in footnote 4 that the WDVA had raised this same issue - whether the complainant and the WDVA's allegedly discriminatory actions were covered by the WFEA. At the time of those allegedly discriminatory acts (late 2007), deMoya was no longer employed by WDVA; his work as a service organization representative was not in an employee/employer relationship and appeared to be unpaid work; and the commission questioned whether any future "employment" activities by deMoya were actually susceptible to harm. Nevertheless, for purposes of that decision, the commission assumed WFEA coverage, and decided the case on its merits.
This case is different, however. The alleged retaliatory actions in this complaint occurred approximately five years after deMoya's employment ended with the WDVA and approximately four years after the actions alleged in his previous complaint. deMoya has not provided even one example of any actual employment opportunity that has been, or could be, adversely affected by the WDVA's actions, nor has he alleged specific efforts to obtain employment with the WDVA or with any other entity that may have been affected by the WDVA's actions in August - October 2011. There is, therefore, even less of an employment nexus in this case, and the potential for harm to future employment opportunities is even more remote. Accordingly, the commission chooses to address the coverage issue in this case, rather than to assume coverage as it did in the previous case.
Taking deMoya's allegations as true for purposes of this analysis, the commission understands his concern about being limited in certain of his service activities on behalf of veterans, specifically involving his inquiries on their behalf, his attendance at certain WDVA meetings (with Secretary Scocos), and the removal of his name from certain distribution lists. However, these unpaid service activities, although laudable, are not considered "employment" that finds protection under the WFEA. In order to establish an employee/employer relationship, there must be compensation for services provided. Ficken v. Harmon Solutions Grp., ERD Case No. CR200003282 (LIRC Feb. 7, 2003). Therefore, any effect that the WDVA's actions might have had on deMoya's service activities is not covered under the WFEA.
The only other potential basis for WFEA coverage relates to how the WDVA's actions would affect deMoya's prospective employment. Although he alleges harm to his prospective employment, he provides no specifics in his complaint or in any of his subsequent submissions to the department, i.e., no specific employment applications or inquiries that were, or might be, harmed by the WDVA's actions in August - October 2011. He has failed to do so even though this lack of discernible future employment impact was one of the investigator's three explanations for his "no probable cause" finding in the department's initial determination, dated July 25, 2012.
In any case, as noted earlier, there is no dispute that former employees may be protected from retaliation under the WFEA, and that the necessary employment nexus may exist if the retaliatory actions adversely affect the former employee's employment, including future employment opportunities. (3) However, as noted in the following discussion, very few cases reviewed by the commission have found that necessary employment nexus. There are three commission cases that are most commonly cited in this area, and have been cited by deMoya in his briefs to the commission. As noted in the discussion below, they do not support a finding of a sufficient employment nexus in this case.
The most recent case is Garner v. Univ. of Wis. - Milwaukee, cited previously. The ALJ had dismissed the case for failure to state a claim under the WFEA, and the commission set aside that decision and remanded the matter to the ERD for further proceedings. (4)
The complainant had been employed by the university from February to June 2003. After her employment ended, she filed complaints against the university alleging discrimination. In her efforts to obtain employment, she had taken a state ranking examination that ranked her first out of 271 individuals who had taken the examination, and eligible for job interviews with the university. She alleged in her retaliation complaint that the university was responsible for a criminal complaint brought against her alleging that she had made unlawful telephone calls to the university workplace, and had threatened to obtain a restraining order against her coming on campus or having contact with university employees, both actions in retaliation for her having filed the previous discrimination complaints against the university. In finding that the complainant stated a claim under the WFEA, the commission concluded that the complainant had adequately alleged actions by the university that would "directly affect" her opportunities to be employed by the university, or even to seek such employment, and that such actions could also affect employment opportunities with other employers who had a presence on the university's campus. (5)
The facts in the Garner case are very different from those presented by deMoya in this case, however. Garner alleged specific actions by the university that directly affected her ability to obtain employment, something that she was in the process of attempting to do. She had taken a state employment ranking examination, was ranked first in that exam, and was eligible for employment interviews. However, the university's actions directly affected her future employment opportunities with the university and with related entities, providing a sufficient employment relationship to permit her claim to, at the least, state a claim under the WFEA. Such a direct employment connection is missing in the case at issue.
In Garner, the commission also cited the earlier cases of Seeman v. Universal Foods Corp., ERD Case No. 9000807 (LIRC Sept. 22, 1994) and Pufahl v. Niebuhr, ERD Case No. 8802054 (LIRC Aug. 16, 1991). In Seeman, the commission dismissed the complainant's case against his former employer. The complainant had alleged that the respondent filed an unfair labor practice charge against him in retaliation for his bringing a claim against the respondent for handicap discrimination. The commission failed to see that the complainant's claim of retaliation was related to an employment relationship. It noted that in cases cited by the complainant and the ALJ in support of finding WFEA coverage, including cases decided under Title VII, there had been a "significant connection between the alleged adverse action by the employer and the former employe's employment opportunities," (6) such as a negative job reference and refusal to consider for rehire; a fabricated allegation by the former employer that the complainant made threatening phone calls to the workplace, likened to a poor job recommendation; a former employer telling a prospective employer that the employee had brought a discrimination claim against it; and a refusal to give a job recommendation to a prospective employer. It is noteworthy that these examples of the kinds of actions that might support finding WFEA coverage were all actions by a former employer that had a significant, identifiable connection to the former employee's opportunities for future employment. Again, such a connection is missing in the case at issue.
In the Pufahl case, decided in 1991, the action alleged to be in violation of the WFEA was that the complainant's former employer had informed the city recreation department that the complainant was not a resident of the city and, therefore, was ineligible to play in the city softball league. In dismissing the complaint, the commission found that this action bore "no conceivable relationship whatsoever to any employment opportunity, past, present or future." Although the motivation for the action arose in an employment-related context, the action itself was not related to employment.
In Pufahl, the commission stated that it might be possible to find a former employer's adverse action against a complainant subject to the anti-retaliation provisions of the WFEA in some circumstances even if such action's relationship to an employment opportunity was only indirect. As examples, the commission cited giving bad references about a former employee to a prospective employer; filing a lawsuit in tort against a former employee; or threatening a complainant with criminal charges related to her actions at the workplace unless the complainant dropped her discrimination complaint against the former employer, since these actions "can tend to impair the employe's opportunities with other employers."
The commission notes that the Pufahl decision was issued over 20 years ago, when the law in this area was developing, and that its statement about actions that "can tend" to impair future employment opportunities was pure dicta, totally unnecessary to resolution of the controversy presented in that case. To the extent that such language implies that a purely speculative employment connection might suffice to establish coverage under the anti-retaliation provisions of the WFEA, the commission disagrees that such a tenuous connection would suffice. It is clear from the more recent commission decisions such as Garner and Seeman that, in order for an adverse action taken by a former employer against a former employee (in retaliation for that employee's opposition to, or complaint of, discrimination by the former employer) to state a claim under the WFEA, the adverse action must have a significant and identifiable employment connection.
In this case, that necessary employment connection is missing. deMoya has not alleged actions by respondent WDVA that have a significant effect on his future employment opportunities, nor has he identified what, if any, employment opportunities would be affected by the actions he alleges were taken by WDVA in August, September, and October 2011 relating to his service activities. Accordingly, he has failed to state a claim under the WFEA, and his complaint must be dismissed.
Subpoena expenses - - Although the ERD bears responsibility for sending deMoya the wrong subpoena forms for service of depositions (after he specifically asked the ERD for instructions since an ALJ had not yet been assigned to the case), case law and commission cases indicate that there is no authority for the commission to order a state agency, such as DWD, to pay costs. See Wis. Dept. of Transp. v. Wis. Pers. Comm'n, 176 Wis. 2d 731, 500 N.W.2d 664 (1993) (costs, including attorney's fees, may not be taxed against the state without express statutory authorization); Blunt v. Dept. of Corr., ERD Case No. CR200302691 (LIRC Feb. 4, 2005).
cc: Attorney James A. Stewart
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