PAULA K. HENTGES, Complainant

STATE OF WISCONSIN DEPARTMENT OF REGULATION
and LICENSING AND MEDICAL EXAMINING BOARD, Respondent

An administrative law judge (AU) 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 AU. Based on its review, the commission agrees with the decision of the AU, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Delete paragraph 4 of the Administrative Law Judge's ORDER.

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

Dated and mailed January 12, 1996
hentgpa . rmd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

This case arises out of the application of a rule of the Medical Examining Board, Wis. Admin. Code Ch. Med 19.04(3), which provides in relevant part that an applicant for licensure as an occupational therapist or occupational therapist assistant must (in addition to taking a written examination, required of all applicants) complete an oral examination if the applicant has, among other things, received inpatient or outpatient care for drug or alcohol abuse, or received inpatient or outpatient care for mental illness. Because Hentges disclosed on her application for licensure as an Occupational Therapist that she had received outpatient mental health treatment, she was required to take the oral examination as part of her application for a license as an occupational therapist. It is not disputed that if she had not received such treatment she would not have been required to undergo this oral examination. The examination consisted in part of questions specifically about Hentges' treatment for mental illness; however, it also included what the Administrative Law Judge accurately described as a "twenty-question examination about substantive areas of professional practice".

The Administrative Law Judge found discrimination based on handicap. His finding was specifically directed to that portion of the oral examination which was in effect a general test of knowledge involving occupational therapy; he concluded that the other portion of the oral examination was permissible because Respondents were entitled to ask Hentges for information about her specific history of treatment for mental illness.

Respondents petitioned for review. They argue that it was error to find that Hentges was handicapped on a "perceived handicap" theory because that had not been articulated as an issue prior to hearing, that the "special duty of care to the public" exception to the handicap discrimination provisions were applicable and justified the Respondents' actions, and that attorneys fees may not be ordered against the state or its agencies.

Hentges also petitioned for review. She argues that the Administrative Law Judge erred in not ordering monetary relief for time lost by Hentges in studying for the examination (an estimated 60 hours, figured at $25/hour, for a figure of $1,500) and for "emotional stress and anxiety", in the amount of $500.

Complainant's arguments -- Complainant's argument concerning damages directs the commission's attention to no supporting authority, and the commission's research has satisfied it that in fact there is none. On the contrary, it is quite clear that legal damages (as opposed to equitable relief) are not available under the Fair Employment Act. There is no authority for awards of damages for emotional distress and similar injuries under the Wisconsin Fair Employment Act. The Act provides for "make whole" type remedies such as back pay only. Kesterson v. DILHR (Wis. Personnel Comm., 04/04/88), see also, Bachand v. Connecticut General Life, 101 Wis. 2d 617, 305 N.W.2d 149 (Ct. App. 1981)

In addition, even if it is accepted for the sake of argument that there is some support for the position that a sum representing lost potential earnings (corresponding to time spent studying for that portion of the oral examination that was unconnected with the specific question of Hentges' specific history of mental health treatment) would be equitable in nature if awarded, the commission believes that the amount sought by Hentges here is too dependent on speculation. There is no persuasive evidence that Hentges could actually have turned that specific time to personal profit if she had had the time available to her. Therefore, the commission declines to award these amounts.

Respondents' arguments -- The commission sees no merit in the claim that there was some lack of notice of an issue here as to whether Respondents discriminated against Hentges under a "perceived handicap" theory. The history of this case leaves no reason for concern that the Respondents did not know what was at issue. Hentges disclosed to the Respondents that she had a record of having received mental health treatment; Respondents then required her to undergo an oral examination not required of all other applicants for licensing specifically because of her history of mental health treatment; Hentges' complaint to the Equal Rights Division then made it clear that she was complaining about the Respondent's imposition of that additional oral examination requirement on her because the Respondents had learned of her record of mental health treatment. The notice of hearing indicated that the hearing would be held to determine the question of whether the Respondents had violated the Fair Employment Act by refusing to license because of "handicap". The statute clearly provides that the definition of a handicapped individual includes not only a person who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, but also one who has a record of having such an impairment, as well as one who is perceived as having an impairment which would be a handicap if they had it. Sec. 111.32(8) (b), (c), Stats. The commission believes that the Respondents had adequate notice of exactly what acts they were alleged to have engaged in and exactly what provision of the Fair Employment Act were alleged to have been violated by those acts. Nothing more is required.

With respect to the question of whether any affirmative defense is applicable to Respondents' requirement of an oral examination because of Hentges' history of mental health treatment, the Respondents make essentially the same argument here as in Kristin Ann Deshon (Lee) vs. Department Of Regulation And Licensing And Medical Examining Board (ERD Case No. 9202641), decided this day by the commission. For the reasons stated in that decision, the commission has concluded that the Respondents' actions were not protected by the affirmative defenses available under the WFEA for differential treatment based on handicap.

Just as in Deshon, the Administrative Law Judge in this case recognized a distinction between the two parts of the oral examination, i.e., that part in which individualized inquiries could be made of an applicant to determine what the facts were concerning their history of mental health treatment and whether there was any reason to think that there might be an impact from that history on the applicant's ability to safely and adequately engage in the licensed activity, and that part of the oral examination which was a standardized, 20-question test of general knowledge about the licensed activity. The commission agrees that the distinction is a critical one. The commission also agrees with the obvious conclusion of the Administrative Law Judge, that the Respondents failed to prove that administering a 20-question test of general knowledge about Occupational Therapy which was not administered to others could be justified as an attempt to make an individualized, case-by-case analysis of an applicant's handicap and its potential effect. The very fact that the test portion of the oral examination was standardized and was given to all those who fell into the "oral examination" basket undercuts the Respondents' argument that it was part of an individualized inquiry.

Therefore, the commission rejects the Respondents' arguments that its actions were permitted under the WFEA. (1) 

Remedy issues -- As noted above, the commission has concluded that Hentges' arguments about the availability of legal (as opposed to equitable) remedies are without merit. Respondents did not challenge any other aspect of the Administrative Law Judge's remedy except for the award of attorneys fees and costs.

As the commission has held this day in Deshon, the question of whether attorneys fees may be awarded in this matter is controlled by Wisconsin Dept. of Transportation v. Wisconsin Personnel Commission, 176 Wis.2d 731, 500 N.W.2d 664 (1993). For the reasons stated in its Memorandum opinion in Deshon, the commission agrees with Respondents that there is no authority for an award of attorneys fees and costs against the state or state agencies. For that reason, the Commission has deleted that portion of the Administrative Law Judge's Order which directed that such fees and costs be paid.

cc:
Attorney Kristin L. Karrmann
Attorney William Dusso

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Footnotes:

(1)( Back )   Another argument -- that there was no actual refusal to license, and thus could have been no violation of the WFEA -- was alluded to in the "Statement of Issues" section of Respondents' Brief, but was never mentioned again. Generally, courts take the view that issues raised in a notice of appeal but not briefed or argued on appeal will be deemed abandoned. Reiman Assoc. v. R/A Advertising, 102 Wis.2d 305, 306 n.1, 306 N. W. 2d 292 (Ct. App.); Becker v. Automatic Garage Door Co., 156 Wis.2d 409, 419, 456 N.W.2d 888 (Ct. App. 1990) . Even if Respondents' passing mention of the issue is taken as enough to avoid treating the argument as abandoned outright, it was still not argued with any detail. Issues not specifically argued need not be decided. County of La Crosse v. City of LaCrosse, 108 Wis.2d 560, 572, 322 N.W.2d 531 (1982) Allen v. Allen, 78 Wis.2d 263, 270, 254 N.W.2d 244 (1977).  Arguments that are not developed themes reflecting legal reasoning, and that are unsupported by references to legal authority, but which are instead supported only by general statements, are generally ignored on the grounds that they are inadequately briefed. State v. Pettit, 171 Wis.2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992); see also, State v. Shaffer, 96 Wis.2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980) . In any event, the commission sees no potential merit in that argument which is significant enough to warrant its concern. Considering the WFEA as a whole, the commission considers it implicit that the prohibition on discrimination in licensing applies to process as well as outcome.

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