EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
MADISON, WISCONSIN

Ramona Villarreal
1212 N. Chicago Street, Apt. 5
South Milwaukee, WI 53172

Complainant

vs.

Madison Metropolitan School District
545. West Dayton Street
Madison, WI 53703

Respondent

DECISION AND ORDER ON JURISDICTION

Case No. 21122

On March 18, 1989, the Complainant, Ramona Villareal, filed a complaint of discrimination against the Respondent, the Madison Metropolitan School District, claiming that she had been discriminated against in her attempt to gain employment with the Respondent on the basis of sex, race, color and national origin/ancestry. The complaint arose initially from her failure to be hired in 1988. The Complainant filed an amended complaint alleging additional failure to hire her by the Respondent dating back to 1984 and stating that these failures formed part of a pattern and practice of discrimination on the part of the Respondent. Her amendment also added a claim for retaliation on the part of the Respondent allegedly for her filing of an internal complaint of discrimination as well as the complaint filed with the Commission. The Investigator found in his Initial Determination that there was no probable cause to believe that discrimination had occurred with respect to any of the Complainant's claims. The Complainant timely appealed the Initial Determination's findings of no probable cause. The Hearing Examiner reversed the Investigator's conclusions and transferred this matter to conciliation. Conciliation proved to be unsuccessful and the complaint was returned to the Hearing Examiner for the holding of a public hearing.

This complaint was set for a public hearing to commence on February 9, 1993. On October 26, 1992, the Respondent filed several Motions to Dismiss for Lack of Jurisdiction. The Complainant submitted a responsive brief and the Respondent filed a reply brief. Based upon these arguments and the Hearing Examiner's research, the Respondent's Motions are denied.

MEMORANDUM DECISION

The Respondent states several grounds for its Motion to Dismiss. Three of these grounds are premised upon the operation of Section 893.80 Wis. Stats. This statute sets forth the conditions under which municipal corporations and other governmental entities may be sued. The Respondent dropped the third of these grounds in its reply brief after discovering additional facts during preparation of this case. In addition to these statutory reasons, the Respondent sets forth two constitutional arguments. First, it argues that the Equal Opportunities Ordinance unconstitutionally vests judicial power in the Commission. Second, the Respondent contends that the Ordinance and Commission procedures violate its constitutional rights to a jury trial, particularly with respect to the issue of damages. The Respondent further contends that portions of the Complainant's claim are untimely in that the incidents complained of occurred prior to three hundred (300) days before the filing of the complaint.

The Respondent's first statutory argument is that Section 893.80(4) protects units of government, such as the Respondent, from suit or action for intentional torts and that the claim of the Complainant is either an intentional tort or at least its functional equivalent. In support of this contention the Respondent cites a general definition of "tort." The essence of this definition seems to be that the area known as tort law is a large residual field of law that is left when one removes contract and criminal law. The Respondent argues that the Complainant's claim fits this definition because it is a claim seeking to recover damages for a wrong personal to her. The Respondent asserts that the allegations of the complaint necessarily involve intentional conduct on the part of the Respondent. For this combination of factors, the Respondent believes that the provisions of 893.80(4) regarding intentional torts operates to bar the complaint.

While an action under the Ordinance shares some of the characteristics of a tort action, it is not an action for an intentional tort. As the quotation from Prosser and Keeton cited by the Respondent points out, the essence of a tort action is to redress a wrong done to an individual. Though the wrong to be redressed in an action under the Ordinance is primarily that done to the individual Complainant, the Ordinance acts also to redress the wrong done to the community as a whole by an act of discrimination. MGO 3.23(1) demonstrates the City Council's concerns and purposes in adopting the Ordinance. These purposes address the harm to society in general resulting from discrimination and setting forth the intent of the City Council to improve the general welfare by eliminating discrimination.

Enforcement of the Ordinance is through a complaint process. Complaints may be brought by the Commission or by an individual. When an individual brings the complaint, in addition to redressing the wrong done to them, they are acting as a private attorney general to enforce the rights of the community at large, as well as their own claims. Courts have clearly stated that the ordinance does not nor can it provide for a private right of action, Althouse v. Goulette, Dane Cty. Cir. Ct. No. 2164 12/8/76. Additionally, the end product of a complaint under the Ordinance is an order of the Commission. That order may be enforced judicially but it is the Commission's order, not a judgment received by an individual Complainant that is being enforced. It is because of the overriding public interest to be satisfied through the complaint process that the Hearing Examiner finds that Section 893.80(4) protections against suits for intentional torts do not apply to a complaint brought before the Commission.

Additionally, the Hearing Examiner believes that the exemption for other remedial statutes found in Section 893.80(5) applies to an action under the Ordinance. The Respondent contends that because that section refers to "statute" and not to "ordinance" only a law adopted by the state legislature qualifies. Black's Law Dictionary, 5th Edition pp. 1264-1265 defines "statute" as: "An act of the legislature declaring, commanding or prohibiting something; a particular law enacted and established by the will of the legislative department of government . . .This word is used to designate the legislatively created laws in contradistinction to court decided or unwritten laws." The same dictionary at p. 989 defines "ordinance" as: "A rule established by authority; a permanent rule of action; a law or statute." These definitions indicate that there is no meaningful distinction between "statute" and "ordinance." The Equal Opportunities Ordinance is a rule or law enacted or established by the legislative department of the City of Madison. It is a law that is specifically authorized by Sec. 62.115 Wis. Stats. and is enforceable in various ways. The Respondent provides no authority for its restrictive definition of the word "statute." The Respondent's limitation is contrary to the plain meaning of the word.

Section 893.80 is a portion of the provisions that set forth statutes of limitation for general areas of claims or civil actions. Section 893.80(5) is intended to establish similar limitations when the defendant or respondent is a political corporation or local governmental unit such as the Respondent in this case. Sections 893.80(1) through 893.80(4) set forth generally limiting conditions. Section 893.80(5) grants exclusivity to the preceding provisions except in the circumstance where there is an alternate limitation or condition set forth in any separate "statute" or law that provides for rights and remedies. The Equal Opportunities Ordinance sets forth legal rights and remedies for the violation of those rights and establishes a three hundred (300) day statute of limitation for the filing of complaints as does the Fair Employment Act, Wis. Stats. 111.31 et seq., at the state level. Both the Fair Employment Act and the Equal Opportunities Ordinance represent the type of more specific law that was intended to trigger the exception of Section 893.80(5). This would be consistent with the general principle that one should apply the more specific provision over the more general one. It would seem that is the operating principle behind the exception in Section 893.80(5). Not to recognize this effect of the Ordinance would frustrate this principle as the result of an arbitrary definition of the word "statute."

The second statutory ground proposed by the Respondent for dismissal of the complaint is also found in Section 893.80(4). In a separate provision from that of intentional tort immunity, Section 893.80(4) provides that an entity such as the Respondent may not be sued over the quasi judicial activity of its officers, employees or agents. Hiring is admittedly a quasi-judicial activity within the contemplation of the provision. However, Section 893.80(5 ), as discussed above, provides an exception to the immunity from suit where there is another statute that provides rights and remedies. For the reasons previously stated, the Hearing Examiner holds that the Equal Opportunities Ordinance falls within the coverage of Section 893.80(5) and acts to remove this action from the operation of Section 893.80(4).

The Respondent's third statutory ground for dismissal relates to the Complainant's alleged failure to file a notice of claim required by Section 893.80(1) prior to filing her claim with the Equal Opportunities Commission. The Respondent withdrew this defense in its reply brief. Further examination of the Respondent's files revealed that the Complainant had indeed submitted a notice of claim to the Respondent.

The Respondent next puts forth two constitutional arguments that it contends require the dismissal of this action. The first ground is that the Ordinance as applied by the Commission in its hearing process represents an unconstitutional vesting of judicial power in an administrative agency. The second attack on the Ordinance is that it unconstitutionally deprives the Respondent of its right to a trial by jury. These arguments place the Commission in a somewhat difficult position. The Respondent cites the case of Wendlandt v. Industrial Commission, 256 Wis 62, 39 N.W.2d 684 (1949) in support of its first contention. This case states that an administrative agency may not make determinations of constitutionality as that is a power reserved to the judiciary. Since any determination of the issues in this case is eventually subject to judicial review, the Respondent is not denied the opportunity to have its constitutional claims heard. On this basis, the Hearing Examiner will make an initial determination of constitutionality.

Administrative agencies may exercise some judicial-like powers where it is necessary in furthering the delegated responsibilities of the agency. Forest County v. Langlade County, 76 Wis 605, 45 N.W. 598 (1890); Borgnis v. Falk Company, 147 Wis. 327, 133 N.W. 209 (1911); International Union v. Wisconsin E. R. Board, 258 Wis. 481, 46 N.W.2d 185 (1951); State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 261 N.W.2d 434 (1978) There are some areas that are specifically withdrawn from administrative agencies such as deciding constitutional matters: Wendlandt, supra, title to land: Lakelands, Inc. v. Chippewa & Flambeau Imp. Co., 237 Wis. 326, 295 N.W. 919 (1941); Brothertown Realty Corporation v. Reedal, 200 Wis. 465 (1936), and issues outside of their area of delegated authority: Town of Holland v. Village of Cedar Grove, 230 Wis. 277, 282 N.W. 111 (1938) dissent. The test of whether an administrative agency has been improperly vested with judicial powers is 1) whether the agency has been delegated a specific or limited area of concern and 2) whether there is judicial review of the agency's decisions. International Union, supra at 494, Borgnis, supra.

The Commission has received a limited grant of administrative authority. The Commission is charged with the responsibility of enforcing the City of Madison's Equal Opportunities Ordinance. This Ordinance was adopted to identify, prevent and remedy discrimination in housing, public places of accommodation, credit, employment and the provision and use of City of Madison facilities. The Ordinance protects people on the bases of race, color, sex, national origin and a number of other protected categories. The Ordinance also proscribes retaliation against a person who has attempted to enforce rights protected by the Ordinance. The Commission is only authorized to act in these limited areas. It may not enforce other City Ordinances. It may not decide disputes between parties unless discrimination is charged. It may not make an award to any party that is not necessary to fulfill the purposes of the Ordinance. The Commission may not require the adoption of an affirmative action plan. While the Commission's authority is broad within the limited area of discrimination, it is strictly limited to the area of discrimination in the areas designated by the Ordinance. The awarding of compensatory and punitive damages is incidental and necessary to those responsibilities delegated to the Commission. The Commission is charged with remedying and preventing discrimination. MGO 3.23(9) requires the Commission to make such awards as will make the Complainant whole and will fulfill the purposes of the Ordinance. Given the nature of discrimination and its assault on the dignity of the victim, it is essential that any remedy address this specific injury if the victim is to be made whole. Similarly with punitive damages, the Commission is to prevent or deter discrimination or violation of the Ordinance. Deterrence or prevention is one of the primary purposes to be served by an award of punitive damages. Awards of such emotional and punitive damages are entirely incidental and necessary to the delegated authority of the Commission.

The Commission's actions are not "final." While a decision of the Commission represents a final administrative action, the Commission's decisions are reviewable by the Dane County Circuit Court. Section 3.23(9)(c)(4) provides that final orders of the Commission may be appealed or reviewed by whatever means are provided for by law. The Commission has no authority to limit the type or manner of review sought by a party. Generally speaking, review has been by Writ of Certiorari, though the Ordinance does nothing to limit a party to this manner of review.

The Respondent's second constitutional claim is that the Ordinance unconstitutionally deprives the Respondent of its right to a jury trial. It makes such claim with regard to the Federal as well as the State constitutions. While the right to a trial by jury is indeed one of a lawyer's most cherished rights, it is not universal. For example, there is no right to a trial by jury in a claim under the Worker's Compensation Act or under the Federal Tort Claims Act to name but two. In support of its claim, the Respondent cites the case of Curbs v. Loether, 415 U.S. 189, 94 S.Ct. 1005 (1974). This case found that in order to be constitutional an action under the Federal Fair Housing Act, 42 U.S.C. 3601 et seq., had to imply a right to a trial by jury. This case is limited to the Federal context however. As, a part of the Bill of Rights, the right to a trial by jury provided in the 7th Amendment has never been imposed upon the states by incorporation through the 14th Amendment. L. Tribe, American Constitutional Law sec. 11-2 at 568 (1978). Without this incorporation there is no federally mandated requirement that states provide a trial by jury on the same basis as required at the Federal level. Similarly the protections of a right to a trial by jury in the Wisconsin constitution do not apply here. The provision for a trial by jury is found in Art. I, sec. 5. This provision applies to causes of action recognizing a right to a jury trial at the time of adoption of the state constitution in 1848. Upper Lakes Shipping v. Seafarers' International Union 23 Wis. 2d 494, 128 N.W.2d 73 (1964). It does not extend automatically to causes of action developed after that point. Clearly a cause of action for discrimination did not exist at the time the Wisconsin constitution was adopted and no right of jury trial could have attached. Even more specifically, the general field of administrative law did not exist at that time. Since the enforcement provisions of the ordinance were not adopted until 1975, they fall outside of the coverage of Art. I, sec. 5.

The Respondent attempts to demonstrate its point by reference to Title VII of the Civil Rights Act of 1964, The Fair Housing Act (Title VIII) and the Wisconsin Open Housing Act which is part of Sec. 101.22 Wis. Stats. The argument seems to be that because the administrative remedies in these laws do not specifically contemplate awards of the damages found objectionable by the Respondent that such lack must be because of some constitutional defect feared by the adopters. The Respondent provides no support for its supposition. With respect to the Wisconsin Open Housing law, the provision for an election to remove an administrative action to Circuit Court was adopted to track similar provisions of the Federal Fair Housing Amendments Act of 1988, 42 U.S.C. 3601 et seq. In the case of the Federal law, the "opt out" provision was adopted as part of a political compromise, not because of fears of an unconstitutional grant of judicial powers to an administrative agency or because of a fear that granting an administrative agency power to make such awards might work an unconstitutional deprivation of someone's right to a jury trial. The Respondent's arguments by analogy fall without support.

The Respondent casts its constitutional arguments specifically in the context of the Commission's power to award compensatory damages for emotional injuries stemming from discrimination and punitive damages relating to discrimination. The case law applies more broadly than to just these issues. The Commission's powers have been challenged on constitutional grounds before and the Ordinance has stood the challenge. Though the specific claims of the Respondent have not been tested by the courts, there is little or no support for these new claims. As noted in the briefs of both parties, the Commission has determined that the types of damages challenged by the Respondent are awardable by the Commission in appropriate cases. Based upon the above arguments and the Commission's prior holdings, the Hearing Examiner will continue to recommend orders that require the payment of such damages until either a compelling reason is set forth or he is ordered to cease from such orders.

The Respondent also requests dismissal of that portion of the Complainant's complaint that seeks to impose liability for failure to hire the Complainant as early as 1984. The grounds upon which the Respondent seeks dismissal are that the incidents prior to 1988 fall outside the Ordinance's three hundred (300) day limit and represent individual allegations of discrimination rather than a pattern and practice of discrimination as alleged by the Complainant. The Commission's pleading practice is admittedly flexible and follows more or less the principles of notice pleading. The Respondent has been placed upon notice that the Complainant alleges a pattern and practice of discrimination and knows of the facts upon which the Complainant relies. Given the Hearing Examiner's interim decision in Rhone v. Marquip MEOC Case No. 20967, it is not appropriate to dismiss the Complainant's claim of pattern and practice discrimination prior to hearing. While the facts before the Hearing Examiner are admittedly sketchy on the issue of pattern and practice, it is the policy of the Commission to give both sides to a complaint their day in court and not to dismiss claims in the manner of a Motion for Summary Judgment unless such motions are jurisdictional in nature. In order to rule in favor of the Respondent on this claim, the Hearing Examiner would need to hold a fact finding hearing prior to the hearing on the merits and the rules and practice of the Commission are not to hold such hearings. The Hearing Examiner declines to dismiss the allegation of pattern and practice discrimination but will hold the Complainant to demonstrating the relevance of any evidence offered at the time of hearing.

For the above reasons, the Respondent's motion to dismiss is denied.

Signed and dated this 22nd day of January, 1993.

EQUAL OPPORTUNITIES COMMISSION

Clifford E. Blackwell III
Hearing Examiner