Wis.LIRC ER Decision: Heinritz - September 30, 1993 - Procedure - appeal deadline does not begin to run if information given as to appeal rights is incorrect; Disability discrimination - discrimination against employe because his dependent child had a disability which could lead to high medical expenses, is not covered under the WFEA - not provided for in language of WFEA and cannot be construed under theory of "liberal construction"

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

CARL T. HEINRITZ, Complainant

LAWRENCE UNIVERSITY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9002788

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 24, 1992. Complainant filed a petition for review by the commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison Wisconsin September 30, 1993.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

Late petition -- The procedural issue in this case had its origins in a decision by someone at the Equal Rights Division that, after the administrative law judge dismissed the complaint for failure to state a claim under the Wisconsin Fair Employment Act, the parties should be notified that they could petition for rehearing, and that any petition for review would be to circuit court. Lawrence University now argues that this information was incorrect: that there was in fact no right to petition for rehearing, and that any petition for review had to be to the commission (Respondent's Brief in Opposition to Complainant's Petition for Review, pp. S-7). The commission agrees.

There was no right to "rehearing" under sec. 227.49, Stats., because there had been no hearing. The concept of "rehearing" was simply not applicable. If anything could have been sought under these circumstances, it would have been reconsideration. However, neither Chapter 227, the Wisconsin Fair Employment Act nor the rules of the Equal Rights Division recognize any right to petition for reconsideration which would have any effect on the running of the deadline for appeal.

There was no right to appeal to circuit court because the order of dismissal of the ALJ was not a decision on appeal to the administrator as contemplated by Wisconsin Administrative Code chapter IND 88.03, for which direct appeal to circuit court is provided by rule. IND 88.03 anticipates a preliminary review, undertaken before an investigator issues an initial determination on the merits. Pursuant to IND 88.03(1), every complaint is to be subject to such review. If a preliminary determination and order dismissing the complaint is issued as a result of this preliminary review, and if this is appealed to the administrator, and if a decision affirming the preliminary determination and order is then issued by the administrator or the administrator's designee, that order may pursuant to IND 88.03(2) be appealed to circuit court. Here, however, the complaint was presumably subject to this preliminary review which every complaint must undergo, but it was apparently found adequate at that stage. An investigator issued a probable cause determination on the merits of the complaint pursuant to IND 88.06 and 88.07, and the matter was certified to hearing and noticed for hearing before an administrative law judge pursuant to IND 88.10. When the administrative law judge issued his "Decision on Motion" which dismissed the complaint, he did not purport to do so as a designee of the administrator acting under IND 88.03(2). Therefore, that section of the rules did not apply. Pursuant to the only other rules and statutes bearing on path of appeal, IND 88.19 and sec. 111.39, Stats., appeal was to have been by petition for commission review.

Lawrence University recognizes the potential applicability of sec. 227.48(2), Stats., which provides:

"Each decision shall include notice of any right of the parties to petition for rehearing and administrative or judicial review of adverse decisions, the time allowed for filing each petition and identification of the party to be named as a respondent. No time period specified under s. 227.49(1) for filing a petition for rehearing, under s. 227.53(1)(a) for filing a petition for judicial review or under any other section permitting administrative review of an agency decision begins to run until the agency has complied with this subsection."

but it argues that that section did not apply here because the administrative law judge was not an "agency" within the meaning of that section and because the ERD did "comply" by sending a notice of appeal rights, albeit an incorrect one. These arguments are meritless. The "agency" here was the Department of Industry, Labor and Human Relations, acting through its Equal Rights Division. This is shown by the caption of the decision which dismissed the complaint. Furthermore, the issuance of a notice of appeal rights which provides incorrect information is obviously as contrary to the purpose of this statute as is the failure to issue such notice at all. To argue that it is irrelevant under sec. 227.48, Stats. that a notice of appeal rights is incorrect (Respondent's Brief in Opposition to Complainant' s Petition for Review, p. 10) borders on the frivolous.

Equally meritless is Lawrence University's argument that appeal should be rejected because Heinritz did not even appeal timely by the standards of the incorrect advice he was given (Respondent's Brief in Opposition to Complainant's Petition for Review, pp. 8-10). He did. He was advised that he could "petition for rehearing" within 20 days; his petition for rehearing was received on the 20th day. Because the Equal Rights Division never formally acted on his petition for rehearing, it would (had the procedure in fact been applicable as the notice of appeal rights stated it was), have been deemed denied by operation of law on the expiration of 30 days from the date of its filing (May 14, 1992) -- which would have been Saturday, June 13,1992. By operation of sec. 227.53(1)(a)2, Stats., Heinritz would then have had 30 days from this date within which to file the petition for judicial review (which the notice of appeal rights stated was the appropriate procedure), or in other words until Monday July 13, 1992. Lawrence University concedes that the petition for judicial review was filed on or about July 10, 1992, and it does not assert that it was not timely served (Respondent' s Brief in Opposition to Complainant's Petition for Review, pp. 2-3). Thus its argument that Heinritz did not even follow the inaccurate appeal advice he was given, is without any basis in its own brief.

The "Decision on Motion" which dismissed Heinritz' complaint was not accompanied by a correct notice of the rights of the parties to petition for administrative review. By operation of sec. 227.48(2), Stats., the time period specified by statute for filing for such administrative review (by LIRC) never began to run. Thus, when Heinritz did file his petition for commission review, the time within which he was required to file that petition had not yet expired. Lawrence University's arguments to the contrary being wholly without merit, they are rejected, and the petition for review is accepted as timely.

Merits -- This case presents a purely legal issue: does an employer violate the prohibition on discrimination because of handicap if it terminates an employe because of a handicap of a dependent of that employe (who would be covered under the health insurance provided to the employe)?

The WFEA simply does not, by its terms, cover this situation. It provides, at sec. 111.321, Stats., that no employer may engage in an act of employment discrimination "against any individual on the basis of . . . handicap." It provides, at sec. 111.322(1), Stats., that it is an act of employment discrimination to refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in sec. 111.321. Most significantly for the issue presented here, it provides at sec. 111.34(1), Stats., that employment discrimination because of handicap includes, but is not limited to, contributing a lesser amount to the fringe benefits, including life or disability insurance coverage, of any employe "because of the employe's handicap," or refusing to reasonably accommodate "an employe's or prospective employe's handicap."

The references in sec. 111.34(1), Stats., could not be clearer: They are to the "employe 's . . . handicap." Although the introductory sentence to sec. 111.34(1), Stats., indicates that employment discrimination merely includes and is not limited to the examples that follow, nevertheless, the maxim ejusdem generis (that where a general term is preceded or followed by a series of specific terms the general term is viewed as being limited to an item of the same type or nature as those specifically enumerated) suggests that to whatever further extent the concept of handicap discrimination may extend, it is nevertheless limited to discrimination because of "the employe's handicap."

Even if the phrases "on the basis of" and "because of" which are found in secs. 111.321 and 111.322(1), Stats., are deemed ambiguous in terms of whether they extend to situations where it is someone else's handicap motivating a decision, it is still the case that there is no indication anywhere that the Legislature ever intended the statute to have the reach complainant urges for it here.

The Wisconsin Supreme Court has repeatedly and consistently stated that it is necessary for the success of a claim of handicap discrimination that the complainant be handicapped within the meaning of this term as used in the WFEA. "There are three points essential to establishing that a person has been discriminated against in regard to employment due to handicap: (1) The complainant must be handicapped within the meaning of the Fair Employment Act . . ." Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 406, 291 N.W.2d 850 (1980). "In a handicap discrimination case arising out of the Fair Employment Act, a complainant alleging such discrimination has the burden of proving that he or she is handicapped within the meaning of the Act, and that the employer's discrimination was on the basis of the handicap." AMC v. LIRC, 119 Wis. 2d 706, 709-10. 350 N.W.2d 120 (19841. "In a handicap discrimination case arising under the WFEA . . . there are three essential elements of proof. First, there must be proof that the complainant is handicapped within the meaning of the Fair Employment Act." Brown County v. LIRC, 124 Wis. 2d 560, 564, n. 5, 369 N.W.2d 735 (1985).

In this case, Heinritz argues that he is handicapped because the employer perceived him as suffering from an "impairment" -- that impairment being an unusually high need for medical services for this child. However, this is not the type of "impairment" which can be the basis for either real or perceived handicap discrimination. The Wisconsin Supreme Court has said:

"What constitutes an impairment for purposes of this statute? . . . The element of impairment is satisfied by showing either an actual lessening, deterioration, or damage to a normal bodily function or bodily condition, or by showing that the condition perceived by the employer would constitute an actual impairment if it did in fact exist." La Crosse Police Commission v. LIRC, 139 Wis. 2d 740, 759-60, 407 N.W.2d 510 (1987).

There is simply no way that complainant himself can be found to have a handicap (including a perceived handicap) under the WFEA. There is therefore no way that he can be found to have been a victim of employment discrimination because of handicap.

While it may violate the Employment Retirement Income Security Act (ERISA) 29 U.S.C. � 1140, to discharge an employe in order to avoid payment for medical expenses of that employe 's child, see, Fleming v. Ayers & Associates, 948 F. 2d 993 (6th Cir. 1991), it cannot be characterized as an act of handicap discrimination under the WFEA.

Complainant invokes the statutory direction, in sec. 111.31(3), Stats., that the WFEA shall be liberally construed for the accomplishment of its stated purpose, which is to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals regardless of factors including handicap. However, the Wisconsin Supreme Court has made it clear that this language concerning liberal construction is not a license to engage in interpretations of the mechanisms of the Act that go beyond the Legislature's intent. The view, that "it is appropriate to import into the act all mechanisms which are not inconsistent with the purpose and spirit of anti-discrimination legislation," has been characterized by the court "as going beyond the parameters of liberal construction." AMC v. DILHR, 101 Wis. 2d 37, 350, 305 N.W.2d 62 (1981). A court cannot, by engaging in liberal construction, change the wording of the statute to mean something which was not intended by the legislature or by the plain language used. Lukaszewicz v. Concrete Research Inc., 43 Wis. 2d 335, 342, 168 N.W.2d 581 (1969). "By liberal construction all that is meant is that terms actually used by the Legislature shall be given the fullest application within proper definition of guidelines that are consistent with the spirit of the legislation . . . liberal construction does not give a court the right to expand the terms of the legislation." AMC v. DILHR, 101 Wis. 2d at 351.

The fact that the Legislature only recently adopted legislation expressly addressing the treatment of employes with medically impaired dependents (Family and Medical Leave Act, sec. 103.10, Stats.), and the difficulty the Legislature had in resolving all of the competing interests involved in such situations, both suggest that it would not be justified to imply into the WFEA this kind of coverage of discrimination against healthy employes because they have handicapped dependents. The question of the extent to which such coverage should exist is one that probably could not be resolved by the Legislature without extensive debate. The legislative drafting files for various amendments to the WFEA, including the amendment that added handicap as a protected category in 1965, provide no indication that the Legislature intended to address the problem of employers discriminating against employes because they had handicapped family members.

Heinritz may feel strongly that, if the Legislature did not address this problem, it should have, but that is beside the point in this forum. ERD and LIRC are not legislative bodies. They cannot expand the reach of the statute to apply to situations which the Legislature omitted coverage for.

A situation similar to this one was presented in Monson v. Iowa Civil Rights Commission, 467 N.W.2d 230 (Supreme Court of Iowa 1991), which involved an allegation that there was physical disability discrimination under the Iowa Civil Rights Law when the employer in that case fired the plaintiff who had taken long-term leave to care for his ill child. The Iowa Civil Rights Commission dismissed his complaint of "vicarious" or "associative" disability discrimination on the grounds that under the statute, the disability in question had to be disability of the employe. The Iowa Supreme Court eventually affirmed.

Not only the general rationale, but also the comments of the Iowa court, are particularly relevant here:

"Monson argues, in essence, that the gravity of his daughter's illness has effectively debilitated him. As between parent and terminally ill child, he asserts the impact of the disability on the child and parent are indistinguishable. We are moved by the forcefulness of Monson's argument, but not persuaded that it entitles him to the relief he seeks. His is a predicament which any parent can sympathize (sic). But we discern no legislative intent, express or implied, that would extend the benefits of Chapter 601a to employes with disabled family members. The extension of the law which Monson suggests must come from the legislature, not this court." 467 N.W.2d at 233.

110

Appealed to Circuit Court. Affirmed May 11, 1994.

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