Wis.LIRC ER Decision: Wilde, Jeffrey - February 27, 2015 - 112.1 112.2 Coverage and application - WFEA did not cover a complaint alleging that respondent, an undergraduate and graduate level academic institution, refused to allow complainant to re-enter a master's degree program in the respondent's English department, was based on his religion and sexual orientation. For an allegation to come within the scope of the WFEA, it must show a nexus between the discrimination complained of and the denial or restriction of some real employment opportunity; here there was no employment relationship or potential employment relationship between the complainant and the respondent

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

JEFFREY WILDE, Complainant

UW - MILWAUKEE, Respondent
ATTN OFFICE OF LEGAL AFFAIRS

FAIR EMPLOYMENT DECISION
ERD Case No. CR201403303

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed February 27, 2015
wildeje_rsd . doc : 107 : 5 112.1 112.2

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The discriminatory act alleged by the complainant is the refusal of the respondent, an undergraduate and graduate level academic institution, to allow the complainant to re-enter a master's degree program in the respondent's English department. The complainant alleged that this refusal was based on his religion and sexual orientation.

The investigative unit of the Equal Rights Division (ERD) dismissed the complaint in a Preliminary Determination, on the grounds that the complainant was not an employee of the respondent and therefore was not covered under the Wisconsin Fair Employment Act. The complainant appealed, and an administrative law judge (ALJ) for the ERD reviewed the matter.

The ALJ noted that there was no employment relationship or potential employment relationship between the complainant and the respondent. The ALJ acknowledged the possibility that a complaint under the WFEA could be stated even in the absence of an actual or potential employment relationship between the parties, but maintained that such a complaint would have to allege that the respondent engaged in an action that directly related to an employment opportunity. She cited two commission cases for this proposition - Hinkforth v. Milwaukee Area Technical College, ERD Case No. CR200103936 (Feb. 23, 2004), and Bledsoe v. Mount Mary College, ERD Case No. CR200703330 (LIRC Apr. 25, 2008). Both cases, like this one, involved a refusal by an academic institution to allow an individual to enroll in courses, and in both the complainant failed to identify any specific employment opportunity that was denied because of the refusal to allow the complainant to enroll. The complaints in both cases were dismissed. The ALJ found these cases to be essentially the same as the complainant's, and affirmed the dismissal of the complaint.

The complainant filed a petition for review by the commission. In his petition, the complainant did not address the basis for the ALJ's decision, and instead alleged that certain individuals were not only preventing his entry into the master's program (the adverse act alleged in the complaint), but also had been responsible for a variety of other acts against him going back many years. These disparate allegations need not be considered here - they have no possible relevance unless the commission has jurisdiction of the allegation that was the basis of the complaint.

The commission has reviewed the information that was before the ALJ in order to determine whether her findings and conclusion were supported. Based on its review, the commission agrees with the ALJ. In order for an allegation to come within the scope of the WFEA, it must show a nexus between the discrimination complained of and the denial or restriction of some real employment opportunity. Olivares v. University of Wisconsin - Oshkosh and University of Wisconsin - Madison (LIRC Oct. 23, 1973). In Olivares, the complainant alleged a sufficient connection: that UW-Madison's refusal to admit her to its doctoral program in Spanish resulted in the denial of her attempt to get a promotion at UW-Oshkosh, where she was currently on the faculty in the foreign language department. Here, the complainant has identified no specific, real employment opportunity that has been denied as a result of the respondent's alleged refusal to admit him; he alleges only a hypothetical connection to some unidentified future employment opportunity. This is not a sufficient nexus to state a claim of employment discrimination within the scope of the WFEA.

Aff'd, Wilde v. UW � Milwaukee (Mil. Co. Cir. Ct., 03/28/2016.

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