MARY L HAYNES, Complainant
IRIS, 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:
1. Delete the ALJ's CONCLUSIONS OF LAW and replace them with the following:
1. The respondent was not the complainant's employer within the meaning of the Wisconsin Fair Employment Act (WFEA).
2. The complainant's loss of employment was not the result of any decision or act of the respondent.
3. The respondent was not subject to the WFEA with respect to its relationship with the complainant.
2. Delete the sixth paragraph of the ALJ's MEMORANDUM OPINION.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
November 7, 2014
haynema_rmd . doc : 107 : 110, 112, 113
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant sought redress for the loss of her employment as a caregiver for her mother. The complainant's mother was a Medicaid-eligible recipient of in-home care services administered through the state Department of Health Services (DHS). The DHS program in which the mother was enrolled allowed her some say in the creation of a plan of care. The program was called IRIS, which stands for Include, Respect I Self-Direct. As a participant in IRIS, the complainant's mother purchased caregiving services with Medicaid funds. At least nominally, the complainant's mother employed her caregivers, including her daughter. DHS contracted with a fiscal service agency, the Milwaukee Center for Independence (MCFI), to perform certain functions of the IRIS program. These functions included processing payroll, vendor claims, and paperwork for employees of the IRIS participants. The function of processing paperwork included obtaining employees' criminal histories.
The complainant lost her position as her mother's caregiver because a criminal background check obtained by MCFI revealed that the complainant had a criminal conviction for theft under Wis. Stat. § 943.20. DHS had adopted a policy (after the complainant had already started working as a caregiver) permanently barring individuals convicted of certain crimes, including theft under Wis. Stat. § 943.20, from employment as caregivers under the IRIS program. The complainant had a criminal conviction for theft. MCFI was contractually bound to follow DHS policy, and informed the complainant that she could no longer be employed to provide services through the IRIS program because of her conviction for theft.
The complainant filed a complaint with the Equal Rights Division (ERD) under the Wisconsin Fair Employment Act (WFEA), based on the act's prohibition against discrimination based on conviction record. The complainant did not name her mother, her nominal employer under the IRIS program, as the respondent, and there was no point in doing so. Her mother had no control over the complainant's loss of employment, and was in no position, even if ordered to do so, to renew the complainant's employment as a Medicaid-funded caregiver without the approval of DHS. Furthermore, even if the mother were more than an employer in name only, the complainant would have no claim against her. Under Wis. Stat. § 111.32(5), an employee "does not include any individual employed by his or her parents, spouse or child."
The ALJ accepted the IRIS program's designation of the mother as the complainant's employer, and decided that Wis. Stat. § 111.32(5) was dispositive, in effect holding that the complainant could not maintain an action against anyone because she was employed by her mother. That holding exaggerates the effect of Wis. Stat. § 111.32(5). The commission considers the statute to be intended to eliminate complaints in which the opposing parties are immediate family members. There is no reason why a person who happens to be employed by his or her spouse, child or parent, should be denied the right that any other individual would have to pursue a complaint against some entity other than the employing family-member, on the theory that that entity adversely affected the person's employment or employment opportunities. The WFEA clearly contemplates the possibility that an individual may have a cause of action under the WFEA for employment discrimination either against a "person" (1) or against another entity that might act as an employer in addition to an employing family member. See discussion in Bach v. Milwaukee County, ERD Case No. CR201104021 (LIRC Oct. 9, 2014) (recognizing the possibility that an entity that exercises significant control over the terms and conditions of an individual's employment might be considered an individual's employer, even if it might not be considered the individual's employer in a technical sense).
Unfortunately for the complainant, she chose to name IRIS as the respondent. IRIS could not be a respondent. IRIS was not an employer or a person as defined above - it was a program created by DHS. On her complaint form, the complainant offered the address of MCFI, the fiscal agent, as the address of IRIS. The complaint was served at that address, and MCFI answered the complaint, and was treated by the complainant and by the ERD as the respondent in proceedings before the ERD.
MCFI employs a staff, so it is an employer, but it was never considered the complainant's employer. It is also a "person" as that term is defined for purposes of the WFEA. To be a proper respondent in a WFEA complaint, however, a "person" who is not an employer must be in a position to have engaged in some discriminatory act that has a connection with the denial or restriction of the complainant's employment opportunities. Szleszinski v. LIRC, 2005 WI App 229, ¶ 29, 287 Wis. 2d 775, 790, 706 N.W.2d 345, aff'd, 2007 WI 106, 304 Wis. 2d 258, 736 N.W.2d 111; Johnson v. Central Regional Dental Service, ERD Case No. 9352414 (LIRC Feb. 29, 1996); Olivares v. UW-Oshkosh, (DILHR Oct. 23, 1973). MCFI made it clear in its presentation of evidence on its motion to dismiss that, like the complainant's mother, it had no control over the complainant's loss of employment, and had no authority to reinstate her or tap the mother's Medicaid funds to pay her. It simply gathered the information for the background check that revealed the complainant's conviction for theft. The policy prohibiting individuals with certain convictions, including theft, from becoming employed as caregivers under the program appears to have been the creation of DHS, and MCFI appears to have had no authority to countermand the policy directive that put an end to the complainant's employment. MCFI's lack of control over the act alleged to be in violation of the WFEA supports the conclusion that the complainant could not maintain a claim that MCFI was liable for the loss of the complainant's employment. (2) See Sloan v. Human Development Center, ERD Case No. CR201202016 (LIRC Aug. 29, 2014). The commission therefore affirms the dismissal of the complaint.
cc:
Attorney Michael J. Fischer
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