JOHN L OHRMUNDT, Complainant
TOWN OF MAINE, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on October 1, 2014. A timely petition for review was filed. For the reasons set forth in the memorandum opinion, the commission issues the following:
The administrative law judge's decision of October 1, 2014 is set aside, and the matter is remanded to the Division for a determination of facts, conclusions of law, and an order on the question of whether the exception of Wis. Stat. § 111.33(2)(f) requires dismissal of the complaint in this matter, and such further proceedings as warranted based on that order.
Dated and mailed
February 10, 2015
ohrmujo_rpr . doc : 107 : 5 121.13
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Notwithstanding sub. (1) and s. 111.322, it is not employment discrimination because of age to do any of the following:
...
(f) To exercise an age distinction with respect to employment in which the employee is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.
Prior to an evidentiary hearing on appeal, the Town moved for dismissal based on the exception. After briefing, the ALJ granted the motion to dismiss.
The ALJ's authority for dismissing a case certified for hearing without holding an evidentiary hearing is derived from Wis. Admin. Code § DWD 218.10:
Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed based upon the conditions set forth in s. DWD 218.05(1) [which includes failure to state a claim for relief under the act] or for any other procedural basis after the case is certified to hearing under either s. DWD 218.07(2) or 218.08(3). In determining whether to dismiss the complaint, the administrative law judge may consider documents and affidavits presented by any party and may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed...
Under this provision, it may be appropriate for the ALJ to make a fact determination in support of a dismissal based on a document submitted, without holding an evidentiary hearing. The ALJ, in his Memorandum Opinion, recited a fact that had been presented to him in a document:
The parties appear to agree that listed among the qualification under the "Duties of Fire Chief" section to the Respondent's "Maine Township Fire Department Bylaws" included "Have the ability to plan, assign, direct and supervise firefighting, rescue, EMS operations, and personnel under emergency conditions."
The ALJ did not, however, make any inference from that fact about whether the complainant's job exposed him to physical danger or hazard; he simply stated the positions of the parties-the Town argued that the document demonstrated that the job exposed the complainant to physical danger and hazard, and the complainant argued that it did not. The ALJ based his decision not on a finding that the job actually exposed the complainant to physical danger or hazard, but on his opinion that the statutory exception "has effectively been interpreted to apply to all law enforcement occupations, regardless of the degree of actual hazard in a particular position..."
The commission, however, concludes that the wording of the statute, especially in light of general rules of statutory construction and legislative history, requires that a factual determination be made concerning whether the complainant's job exposed him to physical danger or hazard in order to rule on the Town's motion, and a remand is necessary because the ALJ failed to make that factual determination.
Statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 663, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, 236 Wis. 2d 211, 232, 612 N.W.2d 659). The main clause of the statutory language under consideration allows an employer to make one's age a distinguishing factor in employment decisions "with respect to employment in which the employee is exposed to physical danger or hazard." Clearly, the question of whether any particular employment involves such exposure is a matter of fact. The exception goes on to list two kinds of employment by way of illustration, law enforcement and fire fighting, but instead of making a simple declaration that employment in those two occupations exposes one to physical danger or hazard, the legislature stated that the exception was to apply to "certain" employment in law enforcement and fire fighting. The use of the word "certain" signifies that one's employment in law enforcement or fire fighting comes under the exception or not depending on particular characteristics of that employment. The only characteristics indicated in the statute are those identified in the main clause of the exception-exposure to physical danger or hazard. The plain meaning of the language, then, is that employment in fire fighting and law enforcement is not automatically excepted from age discrimination law, but is excepted only when it is determined in fact to be employment that exposes one to physical danger or hazard.
The meaning of the statute adopted by the ALJ, however, was that, as a category, all positions in law enforcement and fire fighting were excepted from the general prohibition against age discrimination. Two competing interpretations of a statute may lead to a conclusion that a statute is ambiguous if, based on the language of the statute "'well-informed persons should have been confused,' that is, whether the statutory...language reasonably gives rise to different meanings." Kalal, supra, at 664 (quoting Bruno v. Milwaukee County, 2003 WI 28, 260, 21, Wis. 2d 633, 660 N.W.2d 656. The competing interpretation here is not reasonable-it ignores the word "certain" in the statute. Statutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage. Kalal, supra, at 663.
Furthermore, the plain meaning of the statutory exception noted above is confirmed by examining the context of the statute.
The legislature's declaration of purpose for the Wisconsin Fair Employment Law states:
In the interpretation and application of this subchapter, and otherwise, it is declared to be the public policy of the state to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of age...This subchapter shall be liberally construed for the accomplishment of this purpose.
Wis. Stat. § 111.31(3). Given this purpose, a liberal construction is to be given to the language prohibiting age discrimination, and conversely a narrow construction is to be given to the language that creates exceptions to that prohibition. Interpreting the language at issue here to create a categorical exception would do the opposite-it would give a liberal construction to the exception and a narrow construction to the general prohibition, violating the legislature's declaration of purpose.
Finally, legislative history confirms the statute's plain meaning. Although legislative history generally is not consulted except to resolve an ambiguity, it can be consulted to confirm or verify a plain-meaning interpretation. Kalal, supra, at 667.
The current language of the exception took effect on August 4, 1982. Prior to that, the exception read as follows:
The prohibition against discrimination because of age shall not apply to hazardous occupations including, without limitation because of enumeration, law enforcement and fire fighting.
Wis. Stat. § 111.32(5)(e) (1979-80) (repealed 1982). This prior language appears to create a categorical exception. In the analysis of 1981 Senate Bill 204, which changed the statute to its current language, the Legislative Reference Bureau described the reason for amendment as follows:
Under present law, the prohibition against age discrimination does not apply to hazardous occupations like law enforcement or fire fighting. This bill narrows the exception by requiring the employe to be exposed to physical danger before an employer can exercise an age distinction with respect to employment.
Engrossed 1981 Senate Bill 204, January 28, 1982-printed by direction of Assembly Chief Clerk.
In earlier versions of the bill, it was proposed that the exception (allowing age discrimination) should apply to "employment in which the employe is regularly exposed to physical danger or hazard." That version drew the following comment (unattributed):
This suggests that a person's age could be a factor in exposing them to physical harm-but unless it's not on a regular basis, the employer would have no defense for not hiring said employe. Certainly subject to broad interpretation. What is regular vs. occasional exposure?
The word "regularly" was dropped, but this history indicates that the legislature was interested in drafting a limited exception, and although the legislators debated how limited it ought to be, they were abandoning the categorical exception of the statute as it existed prior to the amendment.
The ALJ's decision relies chiefly on commission and court decisions interpreting the statutory exception. The commission decision on which the ALJ heavily relies, Wulf v. New Richmond Police Dep't, ERD Case No. CR200703183 (LIRC Oct. 27. 2009), is not persuasive in light of legislative history, because all the cases cited in the key part of the decision, (1) with the exception of Johnson v. LIRC, 200 Wis. 2d 715, 547 N.W.2d 783 (Wis. App. 1996), discussed below, arose under the law prior to the amendment. Also, the complainant in Wulf did not appear to make the argument that his job did not expose him to physical danger or hazard.
There is a single appellate court case in Wisconsin interpreting the law enforcement/firefighting exception-Johnson v. LIRC, 200 Wis. 2d 715, 547 N.W.2d 783 (Wis. App. 1996). Johnson involved an individual who applied to be a fire fighter for the City of Superior, and was turned down, he alleged, because of his age. The ERD held an evidentiary hearing in Johnson, but made no findings of fact. On his own motion, the ALJ applied the exception, and dismissed the case. Johnson petitioned to the commission, and the commission upheld the dismissal, stating:
Whether or not raised by the respondent dismissal of the complainant's complaint is required since section 111.33(2)(f) of the Fair Employment Act specifically exempts discrimination on the basis of age with respect to employment in fire fighting from the Act's prohibition against age discrimination. Further, as noted by the respondent, based on its enactment of s. 111.33(2)(f), it is obvious that the legislature deemed age to be a bona fide occupational qualification reasonably necessary in jobs such as fire fighting where the employe is exposed to physical danger or hazard.
Johnson v. City of Superior Fire Department, ERD Case No. 9200841 (LIRC Dec. 9, 1994). In affirming the commission, the court of appeals in Johnson partially quoted the above language:
We therefore adopt LIRC's conclusion that "the legislature deemed age to be a bona fide occupational qualification reasonably necessary in jobs such as firefighting."
Johnson, supra, at 787. The court stopped its quote of the commission decision short of the phrase "where the employe is exposed to physical danger or hazard." The above quote from Johnson, though, appears to endorse a categorical exception for the occupation of firefighting, where the only factual inquiry of importance is whether the job in question falls into the category of firefighting, in which case exposure to physical danger or hazard would be assumed.
A deeper look at Johnson and the agency decisions in that case, however, shows that an evidentiary record was made at the ERD. That record would have been before the court, and the court absorbed some facts from that record, such as the facts noted by the court that the complainant was seeking an "entry-level" position, and that the Superior fire department required applicants to undergo vigorous physical testing. Johnson, supra, at 786. These facts gleaned from the record allowed the court to come to the conclusion that the job the complainant sought exposed him to physical danger and hazard. Here, on the other hand, no adequate evidentiary record was made, (2) and no finding on exposure to physical danger or hazard was made, so there is no factual basis on which to reject the complainant's assertion that he was not exposed to physical danger or hazard. As a result, a remand is necessary. Although on remand the ALJ has discretion to accept documents and affidavits pursuant to Wis. Admin. Code § DWD 218.10, the commission notes that given the two parties' disputing contentions, an evidentiary hearing may be appropriate.
cc:
Attorney James Higgins
Attorney Bennett Brantmeier
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