MICHAEL YOUNG, Complainant
STATE OF WISCONSIN DEP'T OF WORKFORCE DEVELOPMENT, Respondent
On June 19, 2014, the complainant filed a discrimination complaint with the Equal Rights Division (ERD) of the Department of Workforce Development (DWD), alleging race discrimination under the Wisconsin Public Accommodations and Amusements law (WPAAL), Wis. Stat. § 106.52. The body of the complaint stated:
On June 12 - 2014 Mr. Randy Sommerfeld stated on record at a DVR hearing at the Job Center here in Eau Claire Wisconsin that he will not allow me to come to the Wisconsin Job Center in Eau Claire Wisconsin to apply for a job or to apply for service and accommodations to try to get employment he has said he will call the Eau Claire police to arrest me for disorderly conduct and criminal trust passing [sic]. Randy Sommerfeld is a supervisor of the DVR program he has no legal right to refuse job service help
The complainant named Sommerfeld as the respondent. The file shows that ERD, on its own, considered the respondent to be the agency for which Sommerfeld works, the Division of Vocational Rehabilitation (DVR) of DWD. An investigator for ERD issued a Preliminary Determination dismissing the complaint and the determination was affirmed by an Administrative Law Judge (ALJ).
Discussion
Complaints filed with ERD may be dismissed by Preliminary Determination, without an investigation into the facts alleged in the complaint, if it is clear from the complaint that the complainant is not protected by the WPAAL, the respondent is not subject to the WPAAL, the complaint fails to state a claim for which relief can be granted, or the complaint was not timely filed. Wis. Admin. Code § DWD 221.04.
The investigator and the ALJ dismissed the complaint based on the conclusion that DVR was not a public place of accommodation subject to the WPAAL. By limiting their consideration to that question, however, they missed the point of the complainant's complaint. He alleged that he has been denied access to the Wisconsin Job Center in Eau Claire, not to DVR. The commission takes notice that Wisconsin Job Centers are not under the management of DVR; they are managed by another division of DWD, the Division of Employment & Training (DET). A variety of services are provided to people at Job Centers without regard to whether they are qualified for DVR services. Consideration of whether only DVR is a public place of accommodation does not address the issue that the complainant raised-access to the Wisconsin Job Center. The commission, therefore, does not adopt the rationale of the Preliminary Determination or its affirmance by the ALJ.
With that rationale discarded, several issues are potentially raised by the complaint, among them whether the complainant can maintain his claim against the individual respondent that he named, or the agency-respondent that ERD chose; if not, whether another respondent can or should be substituted; and whether the place to which the complainant alleges he has been denied access, the Wisconsin Job Center, is a public place of accommodation. It is not necessary, however, to consider these questions. The commission affirms the dismissal of this matter on other grounds.
As noted above, a complaint may be dismissed by Preliminary Determination if it fails to state a claim for which relief can be granted. The WPAAL, among other things, prohibits any person from denying to another the full and equal enjoyment of a public place of accommodation or amusement because of race and color. Wis. Stat. § 106.52(3)(a). Even if the Wisconsin Job Center were considered a public place of accommodation, the complainant has not alleged an instance of attempting to gain access, and being denied access, to the Job Center building in Eau Claire. Until he alleges such an instance, he has not stated a cause of action for being denied access. If the legislature had wanted to make it a violation to orally notify someone, for a discriminatory reason, that his or her access to a public accommodation in the future would be denied, it easily could have done so. In fact, the legislature did prohibit a person, for a discriminatory reason, from disseminating information that would have the effect of denying an individual the enjoyment of a public accommodation in the future, but only when that information is disseminated in writing. (1)
That is not the case here. Because the complaint alleges only an oral threat to deny full and equal enjoyment in the future, and not an actual denial of an attempt to use an alleged public accommodation, the complainant has not alleged an injury in violation of the WPAAL.
Dated and mailed January 30, 2015
youngmi_rpr . doc : 107 :
221
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
cc:
Howard Bernstein, DWD Chief Legal Counsel
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