MICHAEL YOUNG, Complainant

WEAU-TV, Respondent A

BOB GALLAHER, Respondent B

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.

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

Dated and mailed May 18, 2007
youngmi . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Michael Young petitions for a review of the ALJ's decision, which ordered the dismissal of his complaint alleging that WEAU-TV and Bob Gallaher violated the Wisconsin Public Accommodation or Amusement Law (WPAAL) by denying him the full and equal enjoyment of a public place of accommodation or amusement because of his race and color. The ALJ dismissed Young's complaint against WEAU-TV on the grounds that it is not a place of public accommodation and therefore not subject to the WPAAL or the jurisdiction of the ERD. Similarly, the ALJ dismissed Young's complaint against Gallaher, an agent of WEAU-TV, on jurisdictional grounds and the fact that as an agent of WEAU-TV, Gallaher should not be separately named as a respondent under the WPAAL.

Young's claim is that he went to see and hear baseball player Hank Aaron at the Carson Park Stadium in Eau Claire, Wisconsin and that because of his race and color, Gallaher, who is employed by WEAU-TV, demanded he leave the Carson Park Stadium building. Young asserts that he was the only black person there.

In response to Young's claim, counsel for WEAU-TV and Gallaher has noted, among other things, that neither WEAU-TV nor Gallaher manage or control access to Carson Park Stadium.

Conduct prohibited by the WPAAL includes the denial to another the full and equal enjoyment of any public place of accommodation or amusement because of race or color. Further, the WPAAL provides, in relevant part, that: "'Public place of accommodation or amusement' shall be interpreted broadly to include, but not be limited to, places of business or recreation; lodging establishments; restaurants; taverns; barber or cosmetologist, aesthetician, electrologist or manicuring establishments; nursing homes; clinics; hospitals; cemeteries; and any place where accommodations, amusement, goods or services are available either free or for a consideration..." Wis. Stat. § 106.52(1)(e)1.

The ALJ correctly dismissed Young's complaint on jurisdictional and agency grounds.  As the commission stated in Wang v. Executive Management, Inc. (LIRC, 12/19/90):  "In light of the structure and purpose of the law, it is obvious that it is businesses operating 'public places of accommodation or amusement' which are enjoined by the law from discriminating in the offering of 'accommodations, amusements, goods or services.' Put another way, the law anticipates that it is those who operate 'public places of accommodation or amusement' who will be respondents when complaints are filed."  Neither WEAU-TV nor Gallaher operate Carson Park Stadium. Further, with respect to Gallaher, even assuming WEAU-TV is a place of public accommodation (which it is not) the ALJ correctly analogized this situation with the result reached by the commission in Sinclair v. Mike's Towne & Country (LIRC, 10/15/93), where a complaint under the Wisconsin Fair Employment Act had named an agent of an employer as a respondent. In Sinclair the commission indicated that where an individual person has acted under color of his or her authority as an agent of an employer, the agent should not be separately named as a respondent, since by statute liability will rest on the employer. Young's complaint makes no allegation that any conduct by Gallaher arose outside the scope of his authority as agent for WEAU-TV.

cc: Attorney Rebecca Lyn Williams

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