MARGARET BACH, Complainant
EASTER SEALS SOUTHEAST WISCONSIN, 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 file submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and adopts as its own the chronology of events of the ALJ, and the conclusion of the ALJ that the complaint fails to state a claim under the Wisconsin Fair Employment Act.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
October 9, 2014
bachma2_rsd . doc : 107 : 123.1 133.1
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
After evaluating Aaron's needs and the services provided through IRIS, Life Navigators decided in August 2011 that it was in Aaron's best interest to be enrolled in the Milwaukee County Family Care Program (MCFCP) instead of IRIS. The MCFCP was subdivision of Milwaukee County. It contracted with organizations to develop and implement a managed care plan for each participant. Life Navigators selected Easter Seals Southeast Wisconsin (Easter Seals) to be the organization to develop and implement a care plan for Aaron. For about the first month under MCFCP, Bach continued to provide in-home care for Aaron and to be paid $300 per day. Life Navigators was then informed that it was a policy of MCFCP that the maximum amount of Medicaid funds available for a live-in caregiver was $100 per day. Life Navigators informed Bach that effective September 25, 2011 her compensation would be capped at $100 per day. On October 7, 2011 Aaron was placed by court order in a mental health center and Bach ceased providing care for Aaron.
In three separate complaints, Bach alleges that she was employed by Milwaukee County (ERD Case No. CR201104021), Life Navigators (ERD Case No. CR201104022) and Easter Seals (ERD Case No. CR201104023), to provide care for Aaron; that on September 25, 2011 the respondents lowered the complainant's wages; and that the lowering of her wages was both: 1) discrimination against her because of her association with a disabled individual; and 2) retaliation against her because of her filing of a lawsuit alleging that the respondents had violated the federal Americans with Disabilities Act (ADA).
The Equal Rights Division (ERD) dismissed the complaints by preliminary determination under Wis. Admin. Code § DWD 218.05 on two independent grounds. The first was that the complainant was not employed by any of the respondents, but by her son Aaron. The second was that the complainant's claims of discrimination based on her association with a disabled individual and based on retaliation for having filed a federal lawsuit failed to state causes of action under the WFEA. The ALJ affirmed the dismissals on both grounds. The commission affirms, but only relies on the second of the two grounds, that the claims failed to state causes of action under the WFEA.
It is undisputed that Bach is not an individual with a disability. The WFEA has consistently been interpreted to require that in cases alleging discrimination on the basis of disability, the complainant has to be an individual with a disability. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 406, 291 N.W.2d 850 (1980) ("There are three points essential to establishing that a person has been discriminated against in regard to employment due to handicap: (1) The complainant must be handicapped within the meaning of the Fair Employment Act..."); see also AMC v. LIRC, 119 Wis. 2d 706, 709-10, 350 N.W.2d 120 (1984); Brown County v. LIRC, 124 Wis. 2d 560, 564, n. 5, 269 N.W.2d 735 (1885). An allegation that the employer's discrimination was based on the complainant's association with an individual with a disability is not sufficient to state a claim under the WFEA. Heinritz v. Lawrence University, ERD Case No. 9002788 (LIRC Sep. 30, 1993). Although the ADA contains a provision expressly prohibiting discrimination against an individual based on his or her relationship with a disabled person, (1) the WFEA contains no analogous provision. Bach's claim of disability discrimination because of her association with a disabled individual does not state a cause of action under the WFEA.
Bach's claim of retaliation for having filed a federal lawsuit also fails to state a claim under the WFEA. To state a retaliation claim under the WFEA, a complainant must have first taken some action in order to come within the protection of the WFEA against retaliation. The action could be the filing of a complaint against the alleged employers, which is the action Bach took here, but the filing of a complaint affords the protection of the WFEA only if it alleges a violation of the WFEA or a violation of a listed state statute. Wis. Stat. § 111.322(2m). A review of Bach's federal complaint and amended complaints in Bach v. Milwaukee County, et al., Case No. 11-C-0828 (E.D. Wis.), does not show any allegation of a violation recognized by the WFEA as a basis for a retaliation complaint. Bach attached a couple of documents to her petition for commission review in this matter that claim a violation of the ADA, but those documents also fail to allege a violation that could be the basis of a retaliation claim under the WFEA. As noted above, the alleged disability-by-association violation of the ADA does not state a claim under the WFEA. Furthermore, those additional documents were created after September 25, 2011, the date of the alleged discriminatory act in this case, and therefore could not serve as a motivation for the act. The commission therefore affirms the ALJ's dismissal in this matter for the failure to state a claim for relief under the WFEA. (2)
The alternate basis on which the ALJ dismissed the complaints was that Bach was employed by her son, Aaron, and therefore was not considered an employee under the following provision of the WFEA:
"Employee" does not include any individual employed by his or her parents, spouse or child.
Wis. Stat. § 111.32(5).
Bach's primary contention was that one or more of the named respondents should be considered her employer because they made decisions that controlled her employment, and her son, by contrast, was incapable of making any of the decisions that affected her employment. It is not necessary for the commission to rule on this question, because a dismissal for Bach's failure to state a cause of action as described above is appropriate regardless of which, if any, of the respondents, might have been her employer, or might have been in a position to affect her employment.
The commission offers the following additional explanation for not relying on the ALJ's conclusion that Bach was Aaron's employee.
Case law under Title VII recognizes the possibility that an individual may have more than one employer, and applies a "joint employer test" to determine whether two or more entities might be considered employers of the same person for purposes of the law:
Courts applying the joint-employer test treat independent entities as joint employers if the entities "share or co-determine those matters governing the essential terms and conditions of employment." [citation omitted]. In other words, courts look to whether both entities "exercise significant control over the same employee." [citation omitted].
Bristol v. Bd. of Cnty. Comm'rs, 312 F.3d 1213, 1218 (10th Cir. 2002) (en banc). See also Robinson v. Sappington, 351 F.3d 317, 338 (7th Cir. 2003).
The Wisconsin Personnel Commission, interpreting the WFEA, looked to Title VII to interpret the term "employer" broadly, to encompass those who may not strictly be considered employers, but who control an individual's terms and conditions of employment:
The FEA defines "employer" at § 111.32(6), stats., but this definition is not couched in functional terms:
(a) "Employer" means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual...
(b) "Employer" does not include a social club or fraternal society...
Title VII defines employer at 42 USC § 2000e-(b), in a manner quite similar to the FEA in its omission of a functional definition:
The term "employer" means a person engaged in an industry affecting commerce who has fifteen or more employees...
This definition of "employer" has been given a broad construction that focuses on control over conditions of employment. In Vanguard Justice Society v. Hughes, 19 FEP Cases 587, 607 (C. Md. 1979), the court held:
[T]he term "employer" as it is used in Title VII, is sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities regardless of whether that party may technically be described as an "employer" of an aggrieved individual as that term has generally been defined at common law.
See also Baranek v. Kelly, 40 FEP Cases 779, 782, 630 F. Supp. 1107 (D. Mass. 1986) ("[e]ntities which exercise significant control over an employment situation may be proper defendants in a Title VII action even though they are not the immediate employer.").
This functional approach to the concept of employer is further illustrated by the opinion in Spirit v. Teachers Insurance and Annuity Assn., 20 FEP Cases 738, 746, 475 F. Supp. 1298 (S.D.N.Y. 1970), aff'd in part, revd. in part on other grounds, 691 F. 2d 1054 (2d Cir. 1982); vacated on other grounds, 463 U.S. 1223, 77 L.Ed. 2d 1406, 103 S. Ct. 3566 (1983):
The Court agrees that in most instances pension plans of private insurers will not be subject to the dictates of Title VII, since § 703(a) makes unlawful only discriminatory employment practices of an "employer." However, the term "employer" under Title VII has been construed in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspect of an individual's compensation, terms, conditions, or privileges of employment. (citations omitted).
Betz v. University of Wisconsin System, Case No. 88-0128-PC-ER (Wis. Personnel Comm'n Feb. 8, 1991).
Given the similarities in purpose and language between the WFEA and Title VII on this point, and given the fact that the WFEA is to be liberally construed for the accomplishment of its purpose,3(3) the commission is in agreement with the rationale of Betz, and contemplates situations in which an individual may have more than one employer, each of whom in concert exercises control over some aspect of that individual's hiring, firing, or terms and conditions of employment.
In this case, at least nominally, Bach was employed by Aaron, and several documents known to Bach, some signed by her, identified Bach as the employee of Aaron. There were no documents in the file in this case showing anyone but Aaron as the employer of Bach. Based on the structure of relationships among the parties and the documents in the file, it was a supportable conclusion that Bach was the employee of Aaron, and that in that relationship Bach could not be recognized as an employee for purposes of the WFEA. But as noted above in
Betz, the analysis should focus on the functions of an entity alleged to be an employer under the WFEA. The fact that under Wis. Stat. § 111.32(5) an individual who is employed by his or her spouse, parent or child is not considered an employee with respect to that relationship still leaves open the possibility that the individual might be considered an employee under the WFEA in relation to another entity that functions as the individual's joint employer. This is likely to be a fact-intensive inquiry that will not be resolvable without an evidentiary hearing. In this case, however, no hearing is necessary because of the failure of the complaint to state a cause of action under the WFEA.
cc:
Attorney Sarah Fry Bruch
(Aff'd, Bach v. LIRC, Ct. App. No. 2015AP1097, 01/28/2016).
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