Wis.LIRC ER Decision: Hatfield - November 17, 1995 - Coverage of WFEA - geographical coverage - controlling factor in determining whether the WFEA applies is where the discrimination occurred - discrimination "occurs" where the employment is localized, rather than where the challenged decision is made; no coverage here where employment was on federal military installation ("federal reservation") which by law is not part of the State of Wisconsin

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHARLOTTE HATFIELD, Complainant

AURORA BUILDING MAINTENANCE and CRAIG JOHNSON, Respondents A and D

FAIR EMPLOYMENT DECISION
ERD Case No. 9302756, EEOC Case No. 26G932010

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Respondent Aurora Building Maintenance is a building maintenance and cleaning business incorporated in the State of Illinois. Its President is Respondent Craig Johnson, whose address is in Aurora, Illinois.

2. Prior to May 1, 1993 a business named Champion Service had the contract extending until April 30, 1993, to perform cleaning services at Fort McCoy in Monroe County, Wisconsin. Complainant Charlotte Hatfield was an employe of Champion Service. Hatfield's supervisor was Judith Harr, who was also an employe of Champion Service.

3. Hatfield's employment with Champion Service involved cleaning, mopping, dusting and sweeping in buildings in Fort McCoy.

4. Some time prior to May 1, 1993, Aurora Building Maintenance obtained the contract to provide cleaning services at Fort McCoy beginning on May 1, 1993.

5. Some time on or shortly before April 30, 1993, Johnson spoke to Harr by telephone and told her that she and some other employes of Champion Service would be hired by Aurora Building Maintenance, and he instructed her to have the employes of Champion Service fill out applications for employment with Aurora Building Maintenance. At or around that time, Johnson also told Harr, among other things, that Hatfield would not be hired by Aurora Building Maintenance because she was 65 and could draw Social Security anyway. Harr thereafter relayed this information to Hatfield.

6. Hatfield was not hired by Aurora Building Maintenance to perform services in connection with Aurora's contract to provide cleaning services at Fort McCoy.

7. Fort McCoy is a United States Army Base. The base is owned by the United States Government, which has asserted and which exercises its jurisdiction over the base.

8. The employment which Hatfield was denied the opportunity to obtain would have been performed entirely within the boundaries of Fort McCoy.

Based on the FINDINGS OF FACT made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. The State of Wisconsin has no jurisdiction over the Respondents' denial of an employment opportunity to Complainant because that employment would have occurred in the federal reservation of Fort McCoy.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

DECISION

The decision of the administrative law judge is reversed, and the complaint is dismissed.

Dated and mailed November 17, 1995
hatfich.rrr : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The Respondents objected to the Equal Rights Division's assertion of jurisdiction in this matter on the grounds that Fort McCoy, having been purchased by the federal government and the State of Wisconsin having ceded jurisdiction over the area, is a "federal reservation" within which the federal government has exclusive jurisdiction and within which the State of Wisconsin has no jurisdiction to enforce its laws. Based on its review of the record and the law, the commission is satisfied that this argument was meritorious.

Secs. 1.01 and 1.02, Wis. Stats. provide in relevant part as follows:

1.01 State sovereignty and jurisdiction. The sovereignty and jurisdiction of this state extend to all places within the boundaries declared in Article II of the constitution, subject only to such rights of jurisdiction as have been or shall be acquired by the United States over any places therein . . .

1.02 United States sites and buildings. Subject to the conditions mentioned in s. 1.03 the legislature consents to the acquisitions heretofore effected and hereafter to be effected by the United States, by gift, purchase or condemnation proceedings, of the title to places or tracts of land within the state; and, subject to said conditions, the state grants, cedes and confirms to the United States exclusive jurisdiction over all such places. Such acquisitions are limited to the following purposes:
(1) To sites for the erection of forts, magazines, arsenals, dockyards, custom houses, courthouses, post offices, or other public buildings or for any purpose whatsoever contemplated by the 17th clause of section 8 of article one of the United States constitution.
(2) To all land now or hereafter included within the boundaries of Fort McCoy in townships 17, 18 and 19 north, ranges 2 and 3 west, near Sparta, in Monroe county, to be used for military purposes as a target and maneuvering range and such other purposes as the department of the army deems necessary and proper.

1.03 Concurrent jurisdiction over United States sites; conveyances. The conditions mentioned in s. 1.02 are the following conditions precedent:
(1) That an application setting forth an exact description of the place or tract so acquired shall be made by an authorized officer of the United States to the governor, accompanied by a plat thereof, and by proof that all conveyances and a copy of the record of all judicial proceedings necessary to the acquisition of unencumbered title by the United States have been recorded in the office of the register of deeds of each county in which such place or tract may be situated in whole or in part.
(2) That the ceded jurisdiction shall not vest in the United States until they shall have complied with the requirements on their part of ss. 1.02 and 1.03, and shall continue so long only as the place or tract shall remain the property of the United States.
(3) That the state shall forever retain concurrent jurisdiction over every such place or tract to the extent that all legal and military process issued under the authority of the state may be served anywhere thereon, or in any building situated in whole or in part thereon.

It is undisputed that on a "federal reservation" such as land acquired and used for a military installation, the federal government has exclusive jurisdiction and the state in which the federal reservation is located has no authority to enforce any of its laws. Complainant essentially conceded this; in her brief to the Administrative Law Judge, she raised only an argument based on one exception to the general rule of exclusive federal jurisdiction on "federal reservations", to the effect that enactments of a state subsequent to the date of federal acquisition may be enforced by the state on the federal reservation if those state enactments have been "adopted" by congress. Economic Development and Industrial Corporation of Boston v. U.S., 546 F. Supp. 1204 (1982).

Complainant's theory was that the Wisconsin Fair Employment Act, adopted after the federal government acquired jurisdiction over Fort McCoy, was "adopted" by congress when it adopted other similar enactments, including Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Her argument to the Administrative Law Judge mentioned the fact that Title VII contemplates the existence of remedies for discrimination under state laws, and requires resort to available state remedies before Title VII can be directly invoked.

In his decision, the Administrative Law Judge did not address Complainant's theory. Instead, he rejected the Respondents' jurisdictional objection on two other grounds. First, he concluded that the Respondents had not proved that Fort McCoy had in fact been purchased by the United States or that Congress had exercised its exclusive right of legislation and jurisdiction over Fort McCoy. Second, he concluded that even if the Division lacked jurisdiction over Fort McCoy, it still had jurisdiction over the complaint because the decision not to retain the complainant was made by Mr. Johnson off Fort McCoy property.

The commission finds the first rationale relied on by the ALJ, that the respondent had not "proved" that Fort McCoy had in fact been purchased by the United States or that Congress had exercised its exclusive right of legislation and jurisdiction over Fort McCoy, to be unpersuasive. The fact that Fort McCoy is a military installation owned and operated by the United States is one that is so commonly known in the State of Wisconsin that the commission believes that it may be officially noticed. (1 ) It is also significant that Complainant never disputed the factual underpinnings of the Respondents' jurisdictional objection here, i.e. that Fort McCoy was owned and operated by the federal military and was therefore a "federal reservation" within the meaning of the extensive law addressing the scope of federal and state jurisdiction in such areas. The commission therefore turns to the argument which was raised by Complainant, to the effect that congress "adopted" the Wisconsin Fair Employment Act subsequent to federal acquisition of Fort McCoy such that the State of Wisconsin may enforce that act with respect to employment practices occurring within Fort McCoy.

Complainant cited no authority which even hinted that the adoption of Title VII was somehow a federal adoption of state anti-discrimination laws for purposes of yielding back the exclusive jurisdiction over "federal reservations", and the commission is unaware of any such authority. In any event, the claim here was one of age discrimination, and the ADEA does not have the same kinds of provisions for resort to state proceedings that Title VII has. The commission therefore rejects the Complainant's argument.

The remaining question is whether jurisdiction may nevertheless be asserted based on some act occurring outside of Fort McCoy. Because a federal military reservation is in legal contemplation not actually a part of the state in which it is located, see, 16 Op. Atty. Gen. 671, supra n.1, Murphy v. Love, 249 F.2d 783, 785 (10th Cir., 1957), this remaining question implicates the more general question of the geographical extent of coverage of the Wisconsin Fair Employment Act.

The Wisconsin Fair Employment Act contains no provision expressly governing the geographical extent of its coverage, but some suppositions about it seem beyond dispute. Thus, it is obvious that if (for example) a Wisconsin employer with a workplace in Wisconsin fires a Wisconsin resident who works in that Wisconsin workplace, the Wisconsin Fair Employment Act is potentially applicable to a claim of discrimination connected with the discharge; it seems equally obvious that if an Alaskan employer with a workplace in Alaska fires an Alaskan resident who works in that Alaskan workplace, the Wisconsin Fair Employment Act is not applicable to any claim of discrimination brought in connection with the discharge. Somewhere in the range between these two hypothetical examples there must be a line dividing the cases over which the State of Wisconsin has jurisdiction from those over which it does not. (2 ) There have been a few decisions issued by the commission which have provided some guidance as to how that line is to be drawn.

In Buyatt v. C.W. Transport (LIRC, 7/25/77), the complainant was a truck driver who was a resident of Wisconsin, who worked for the employer's Steel Division which was located in Chicago, had his "home base" at the employer's Chicago terminal, and was terminated by a representative of the employer who was in Chicago when he notified complainant (who was in Wisconsin) of the discharge over the telephone. It is not possible to determine from the decision where the complainant's driving responsibilities took him, but the commission believes that it is a reasonable inference, that Buyatt drove in a number of states including Wisconsin. The employer argued that Illinois had jurisdiction, based on the Illinois connections. The commission, without comment, affirmed the decision of the Hearing Examiner finding jurisdiction and stating (in part), "The controlling factor is where the discrimination took place."

In Gray v. Walker Manufacturing Co. (LIRC, 7/21/82), the complainant was a resident of Pittsburgh, the reasons for his termination had to do with his contacts with a Pittsburgh customer, the termination papers originated in Delaware, the complainant was informed of the termination in Delaware, and there was no indication that the complainant had ever lived in Wisconsin. Clearly, there was virtually no nexus between the events complained of and the State of Wisconsin, apart from the fact that the employer's home office was located here. In its decision, the Commission reiterated the statement in Buyatt that the controlling factor in determining whether the FEA applies is "where the discrimination took place."

In Birk v. Georgia-Pacific (LIRC, August 3, 1990), the employe was fired for not complying with a condition of employment which had originally been imposed on him in Wisconsin while he was negotiating with the employer about accepting the Georgia position. Invoking the holding of Buyatt and Gray to the effect that the controlling factor in determining whether the FEA applies to a particular employment action is where the action took place, the commission found jurisdiction.

Thus, Buyatt, Gray and Birk all endorse the general proposition that the controlling factor in determining whether the Wisconsin Fair Employment Act applies to a particular employment action is where the discrimination occurred. However, the question of where discrimination "occurs" is itself one that is by no means obvious. Consideration of both the factual situations in Buyatt, Gray and Birk, and the consequences of a number of possible interpretations, leads the commission to conclude that discrimination must be deemed to occur in the place where the employment which is affected by it occurs.

If discrimination were considered to "occur" where the challenged decision was made, the results would be anomalous. A decision to fire a Wisconsin resident working in a Wisconsin worksite would arguably be outside of the jurisdiction of the Wisconsin Fair Employment Act if the person who made the decision to fire the worker was outside of the state when making that decision; a decision to fire an Alaskan resident working in an Alaskan worksite would arguably be within the jurisdiction of the Wisconsin Fair Employment Act if the person who made the decision to fire the worker was within the State of Wisconsin when making that decision. Neither result can be justified as consistent with the purpose of the Wisconsin legislature in adopting the Act. If discrimination were considered to occur where the affected worker was informed of the challenged decision, similar anomalies could result, not to mention the difficulty in assessing situations in which a worker within the state is informed of the challenged action by way of a letter or telephone call originating outside of the state (e.g., Buyatt). If residency of the worker were viewed as determinative, there would be similar anomalies, since (for example) a LaCrosse resident whose employment took place entirely in a worksite in LaCrescent, Minnesota could invoke the jurisdiction of the State of Wisconsin over employment and an employer located wholly within another state -- while at the same time, an employer doing business in LaCrosse, Wisconsin could commit violations of the Wisconsin Fair Employment Act against any of its employes who happened to be commuting to their jobs from across the river. Other factors particular to the employer or the employe (for example, state of incorporation, state(s) asserting or exercising taxing authority) are similarly unsatisfactory because they could result in similar anomalies.

Although they have dealt with disparate factual situations, the results in Buyatt, Gray and Birk are consistent with a view that the location of the employment is the most important factor. In Buyatt and Birk, in which jurisdiction was found, the activities of the employes which constituted their employment appear to have taken place to some significant degree within the State of Wisconsin. In Gray, by way of contrast, it does not appear that the employe's employment took place to any significant degree within the state.

A construction of the Buyatt-Gray-Birk rule which views discrimination as "occurring" where the employment takes place, is also most consistent with the purpose expressed in the Wisconsin Legislature's Declaration of Policy in sec. 111.31(2), Stats., to the effect that "[i]t is the intent of the legislature [in enacting the Wisconsin Fair Employment Act] to encourage the full, nondiscriminatory utilization of the productive resources of the state."

Approached in this fashion, the result which must be arrived at in this case is clear. The employment at issue here was employment on the Fort McCoy federal reservation, which is outside of Wisconsin's jurisdiction. The situation is for all practical purposes the same as a hypothetical situation of an employe who lived in Wisconsin but commuted to a job in another state and who was not hired by a new owner of that business when it changed hands. The fact that the employe affected is a Wisconsin resident is not determinative. In both cases, the employment in question is not employment occurring within the geographical jurisdiction of the state. Therefore, the Wisconsin Fair Employment Act does not apply.

cc:
Attorney Ellen M. Thorn
Attorney Ted B. Johnson

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Footnotes:

(1)( Back ) Camp McCoy has been a federal military reservation for many years, and it has also been recognized for many years that this places it outside of the state's jurisdiction. Thus, the Wisconsin Attorney General stated in 1927 that "since advising you on July 5, 1927, 16 Op. Atty. Gen. 474, that the officers and enlisted men of the United States Army could not fish during closed season in the grounds of Camp McCoy, I have had my attention called to the provisions of secs. 1.01, 1.02 and 1.03, Stats., in which the state has expressly granted, ceded and confirmed to the United States exclusive jurisdiction over this particular tract near Sparta for all purposes except the right of the state to serve legal process anywhere within such tract. Court decisions under similar provisions in other states have held that practically takes the tract out of the state for all purposes except for the things expressly reserved." 16 Op. Atty. Gen. 671.

(2)( Back ) Thus, one could hypothesize an Illinois resident who commutes to Wisconsin to work, a Wisconsin resident who commutes to Illinois to work, an employer incorporated in Wisconsin but having its workplace somewhere else, an employer incorporated somewhere else but having its workplace here; a truck driver who spends most of his working time outside the state; a salesman for a non-resident corporation who works out of his home and travels out of state to sell, and other types of situations.