HABIBOLLAH TABATABAI, Complainant
WISCONSIN PHYSICIANS SERVICE HEALTH INSURANCE COMPANY, Respondent
PUBLIC ACCOMMODATION DECISION
ERD Case No. CR201101185
Posture of the case -- The complainant, Habibollah Tabatabai, filed a complaint with the Equal Rights Division on April 25, 2011, alleging that the respondent, Wisconsin Physicians Service, (1) had violated Wisconsin's law prohibiting discrimination in public places of accommodations or amusement, Wis. Stat. § 106.52.
On April 27, 2011, the ERD issued a preliminary determination dismissing the complaint. The complaint was dismissed under the "Preliminary Determination" provision of the ERD's rules for public accommodations cases, which provides:
Wis. Adm. Code § DWD 221.04 Preliminary review of complaints.
(1) Review of complaint. The department shall review every complaint filed to ascertain all of the following:
(a) Whether the complainant is protected by the act.
(b) Whether the respondent is subject to the act.
(c) Whether the complaint states a claim for which relief can be granted under the act.
(d) Whether the complaint was timely filed.
(2) PRELIMINARY DETERMINATION DISMISSING COMPLAINT. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements in sub. (1)...
The preliminary determination stated these reasons for dismissing the complaint:
The Public Accommodations Law does not cover appeals for decisions made by Health Insurance Companies (or the original decisions). Further, retaliation for appealing an Insurance Company's decision is also not covered by the law. Finally (for informational purposes only), there is a 300 day statute of limitations for filing a Public Accommodations complaint.
The complainant appealed the preliminary determination. On October 28, 2011, an administrative law judge for the ERD issued a decision which affirmed the preliminary determination and dismissed the complaint. The complainant filed a petition for review by the commission.
The issue for decision is thus whether the allegations of the complaint meet the requirements that DWD 221.04(1)(a)the complainant is protected by the act, DWD 221.04(1)(b) the respondent is subject to the act, DWD 221.04(1)(c)the complaint states a claim for which relief can be granted under the act, and DWD 221.04(1)(d)the complaint was timely filed.
The allegations of the complaint -- The form provided by the Equal Rights Division for making complaints under the public accommodations discrimination law asks the complainant to include a statement which "list[s] each action you believe is discriminatory." This is an appropriate and indeed necessary requirement, in that what the law prohibits is the taking of adverse actions because of a prohibited motivation, and to evaluate the sufficiency of the complaint it is necessary to know specifically what actions the complainant is alleging to have constituted the violation(s) complained of.
The complaint filed in this matter, unfortunately, does not meet this requirement clearly. It consists of eight pages of text in narrative format, accompanied by close to 90 pages of attachments. While the narrative describes a number of events occurring at various times, it does not clearly distinguish between events which are alleged to themselves have constituted discrete violations of the law, and events which are being described because they are considered by the complainant to be evidence that there was a discriminatory motive for the adverse actions intended to be the focus of the complaint.
The focus of the complaint is on the following events. WPS denied $540 in coverage (2) of charges for a Feb. 19, 2007 PET scan of the complainant's wife. The complainant filed an internal appeal of that denial. WPS subsequently increased the amount of the charges for the Feb. 19, 2007, PET scan for which it denied coverage. WPS then denied $702 in coverage of charges for an Oct. 1, 2007 MRS scan of the complainant's wife. The complainant made inquiries to WPS about this denial and then filed an internal appeal of it. WPS then subsequently increased the amount of the charges for that MRS scan for which it denied coverage.
In addition, the complaint contains allegations about certain notes written by a
WPS employee who was involved with WPS' decisions as to coverage of the charges
for the Oct. 1, 2007 MRS scan. The complaint alleges that these notes were in
"official records" of WPS. It also alleges that the complainant first learned of
the existence of these notes on July 13, 2010, in the course of a hearing before
an ALJ for the Group Insurance Board. It is evident that the complainant
believes very strongly that these notes reflect race and national origin bias.
The complaint was clearly intended to allege that WPS' actions in increasing the amount of the charges for the Feb. 19, 2007, PET scan for which it denied coverage, and in increasing the amount of the charges for the Oct. 1, 2007 MRS scan for which it denied coverage, were taken in retaliation for the complainant having appealed the initial coverage denials as to those tests.
The complaint was also clearly intended to allege, that some or all of WPS' decisions on the amount of coverage it would provide for these tests, were also motivated by race and national origin bias against complainant and his family.
What is less clear, is whether the complaint was intended to also allege that the very act of WPS' employee in writing the notes was itself a separate and independent violation of the public accommodation discrimination law.
The allegations about the notes appear to have been included in the complaint at least in part for the purpose of providing evidentiary support of the complaint's claim that coverage decisions by WPS were affected by race and national origin bias. The allegations about the notes also appear to have been included in the complaint at least in part to explain the lateness of the complaint by showing that the complainant had no reason to suspect race and national origin discrimination until he learned of the notes' existence in 2010. The commission believes that the allegations about the written notes were included in the complaint for the purposes just described, and that the complaint should not be read to allege that the very act of WPS' employee in writing the notes was itself a separate and independent violation of the public accommodation discrimination law.
However, for the sake of completeness it will analyze and decide whether such an allegation, if deemed to be raised by the complaint, would state a claim covered under the public accommodation discrimination law.
Timeliness -- There is a threshold issue as to the timeliness of the complaint. The complaint makes it clear that the situations in which the respondent allegedly declined to pay certain amounts for certain medical tests, and then increased the amounts it declined to pay for those tests after the complainant appealed the original coverage decisions, occurred in 2007 and early 2008. The complaint in this matter, as noted above, was filed with the ERD on April 25, 2011. This is obviously far past the 300-day statute of limitation in the public accommodations and amusements discrimination law, see, Wis. Stat. § 106.52(4)(a)1.
Both lower decisions were somewhat ambiguous about whether they were deciding, or relying on decisions concerning, the timeliness issue.
As indicated above, the preliminary determination contained a reference to the statute of limitations, but said it was being noted "for informational purposes only." Nevertheless, in his appeal of the preliminary determination, the complainant proceeded as if untimeliness had been directly articulated as one of the reasons for the dismissal. In response, he argued as to that issue that he only found out about the allegedly offensive comments in the WPS documents on July 13, 2010, during the course of an administrative hearing which was being held before the Department of Employee Trust Funds having to do with the complainant's appeals of the coverage denials. The complainant pointed out (correctly) that April 25, 2011 was within 300 days of July 13, 2010. He argued that because he filed the complaint within 300 days of his discovery of these notes, the complaint should be considered timely.
In its response to the complainant's appeal of the Preliminary Determination, the respondent expressly raised the argument that the complaint was not filed within the statute of limitations.
The ALJ's decision affirming the preliminary determination identified the timeliness issue, and it acknowledged the complainant's argument that his complaint should be considered timely because he did not learn of the notes in the WPS documents until July of 2010, but it did not decide the issue. Instead, the ALJ relied on a conclusion that the complaint did not state a claim under the public accommodations and amusements discrimination law.
In his cover letter accompanying his petition for commission review, the complainant asserted:
The ALJ correctly decided that "the April 25, 2011 Discrimination Complaint in CR 201101185 should be deemed timely." However, the ALJ erred in deciding that the Wisconsin Public Accommodation or Amusement Law (WPAAL) does not "provide a forum" for a complaint regarding an insurer (emphasis added)
and in the petition itself he restricts himself to arguing the issue of whether the complaint stated a claim under the public accommodations and amusements discrimination law.
However, as indicated above, the ALJ did not decide that the complaint should be deemed timely. It appears that the complainant was misinterpreting or misconstruing these paragraphs in the ALJ's decision:
The Complainant contends that he did not learn until sometime in July 2010 of the notes from 2007 that were contained in Appendix 9 of his discrimination complaint and that, therefore, the April 25 of 2011 Discrimination Complaint in CR 201101185 should be deemed timely.
However, even if the Complainant overcomes the timeliness issue, the question remains of whether the WPAAL may be utilized by the Complainant to essentially challenge what the Complainant believes to be unlawfully discriminatory statements in notes apparently from 2007 and apparently related to his (now deceased) wife's medical care.
This is not a statement by the ALJ of something he had decided -- it is a description of something that was being contended by the complainant. It is expressly not a statement by the ALJ that the complainant did overcome the timeliness issue, but a statement that even if he could get past that issue, there would still be the other issue. The Complainant is misreading "even if," as if it were "even though." But that is not what the ALJ said, or what he meant.
In its Answer to the complainant's petition for review, the respondent expressly disputes the complainant's assertion that the ALJ decided that the complaint should be deemed timely, pointing out the language quoted above. In a letter in response to this, the complainant continued to assert that the ALJ "decided that the complaint should be considered timely," and he argues in effect that because the respondent did not petition for review of the supposed decision it had waived the issue. The complainant's "waiver" argument is unpersuasive. Whether or not the department's preliminary determination or the ALJ's decision expressly decided or relied on the timeliness issue, it has always been an issue present in this case and it has been preserved as an issue by respondent. The commission will therefore address it.
The ALJ noted, correctly, that the exceptions that apply to the 300-day statute of limitations in employment discrimination cases under the Wisconsin Fair Employment Act can also by analogy be applied in cases under Wisconsin's public accommodations discrimination law. These include what is sometimes referred to as the "discovery rule," as well as the doctrine of equitable tolling.
These two are different. See, Ringle v. Milw. Bd. of School Directors, ERD Case No. 200504613 (LIRC, Apr. 27, 2006). The discovery rule can delay the initial running of the statutory limitations period until a complainant discovers he has been injured by another. It is important to note, though, that a cause of action accrues when the complainant discovers he had been injured, not when he determines that the action causing the injury was motivated by an unlawful bias. If a complainant knew at the time of an adverse action that he had been injured but argues that his complaint should be deemed timely because he did not know until some time later that the motive for the adverse action was a discriminatory one, he cannot invoke the "discovery rule" -- but he may be able to rely on the doctrine of equitable tolling. Ibid.
The complainant cannot invoke the discovery rule here as to the extent-of-coverage decisions by WPS in 2007, because he was aware of those decisions and of their exact effect, at the time. His theory is that he did not at the time have any basis to suspect that the motive for the decisions was a discriminatory one. The question, then, is whether he can rely on equitable tolling.
The doctrine of equitable tolling permits a party to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim. Equitable tolling can suspend the running of the statute of limitations for time reasonably necessary to conduct the necessary inquiry to determine if an unlawful motive was possibly at work. Ibid.
As noted above, the complainant argues here that it was only in the hearing on July 13, 2011, when he became aware of certain statements in WPS records, that he had reason to believe that the extent-of-coverage decisions made by WPS in 2007 and 2008 involved unlawful discrimination. (4)
To properly evaluate whether equitable tolling could be applied here, it is necessary to consider exactly what it was that the complainant allegedly became aware of in this hearing on July 13, 2011.
The written statements the complainant relies on are in the attachments to his complaint, in Appendix 9 (the page also bears a handwritten page number "31" at the bottom). They consist of the following:
09/21/2007 09:20 AM CT VDA
0900 pc to Mike, nurse Horizon Home Care and Hospice 414-788-7720 reviewed member's benefits, hhc, home attendance, special duty nurse, hh aide comes out of hhc benefit. Scriber explained that the hh aide would only be covered when a nurse is going into the home to provide skilled care. Scriber asked if Mike had the ability to use an interpreter and he said yes through AT&T. Scriber explained that due to the culture it was very difficult to speak with the pt's husband, Habeb. Their culture does not recognize women like Americans do. Mike to review info w/ husband. Mikes said that when he comes to the home all the women run away into different rooms, so he understands there is a cultural issue. Yet, the patient has a wonderful support group. Mike is going to the home one time a week for picc line maintenance care which the husband refuses to learn and Mike is unable to teach the rest of the family because they do not speak English. Approved extension of dos for snv through 101207, ngop, paid at the contracted rate. Mike tcb w/ clinical for additional care.
Late entry: 091007 1122 pc to Rosemary, therapist
pt fell out of the hoyer lift at home. Rosemary has dealt with this family before and knows that she will not be able to teach husband or caregiver in one visit due to cultural and language differences. She also knows that the husband will not allow her back into the home unless she has already recd approval for continued visits. Rosemary voiced her concern of the level of difficulty due to the way women were addressed in this culture. Based on this cultural aspect of the case, having worked with Rosemary previously in this case, and the understanding that the hhc is based on med nec, approved three additional home physical therapy visits through 093007, ngop and paid at the contracted rate.
Late entry: Reviewed above information w/ Mary Carlson, Manager directed to Christine Witherill, Legal Dept x 15078
Late entry: 0949 vm to Christine W, Legal requested call back
10/15/2007 03:02 PM CT VDA
Late entry: 1500 pc from Christine W, Legal
explained information, that Firouzeh cannot speak or move at this time due to disease process, there is no HIPAA form on file giving permission to speak to the husband, and that culture is a factor in the case. Instructed to send case to appeals and send out an acknowledgment letter with the criteria for denial of the MR Spectroscopy. Copy of the above letter sent to Christine.
The complainant's position is that it was only when he became aware of these notes that he had the information which would allow him to realize that the actions in 2007 and 2008 regarding the extent of WPS' coverage of certain medical expenses involved alleged discrimination.
But as described above, a broad reading of the complaint is that it alleges that the extent-of-coverage decisions made by WPS in 2007 were unlawful in two separate respects: 1) retaliation for complainant's appeal of initial WPS coverage decisions, and 2) race and national origin bias. Seen in this way, it becomes clear that there must be a different outcome on the question of whether the equitable tolling applies, depending on which allegation is involved.
As to the allegation that increases in the amounts which WPS would not cover were retaliation for complainant's appeals, the written statements are irrelevant. The information that the complainant had at the time of the events in 2007 and 2008 -- his appeals of coverage decisions were promptly followed by adverse actions from WPS in the form of further adverse coverage decisions -- was in itself enough that a person with a reasonably prudent regard for his rights could have recognized the possibility that the adverse actions were retaliatory. Furthermore, the written statements the complainant learned of in 2011 contained no information which would give someone cause to think retaliation for appeals of coverage decisions had been a factor.
For these reasons, the commission concludes that the retaliation allegations cannot be deemed timely on a equitable tolling theory.
On the other hand, the commission concludes that the allegations that the coverage denial decisions were motivated by race and national origin bias, may be deemed timely on an equitable tolling theory. Nothing which the complainant knew at the time of the coverage decisions in 2007 and 2008 would have necessarily suggested that race and national origin bias might have been a motive for the denials. The complainant's appeals of the coverage decisions at the time were reasonable steps to inquire into what the reasons for the denials might have been. There is no indication that he could have discovered the written notes which he believes showed him what the motive was, any sooner than he did. Equitable tolling can be invoked to suspend the running of the statute of limitations until the time of his discovery of those notes.
Finally, if the complaint is construed as alleging that the very creation of the notes was in and of itself an independent violation of the public accommodations discrimination law, then that allegation could be considered timely under the "discovery rule" in that the complainant did not even know of the alleged injury until he learned of the existence of the notes on July 13, 2011, which was within 300 days of the filing of the complaint.
Does the complaint state a claim under the law? -- The substantive issue presented in this case is whether the allegations of the complaint state a claim for which relief can be granted under the act. (5) Ultimately, whether the allegations of a complaint state a claim under a law for which relief can be granted, depends on what that law prohibits. The prohibitions of the public accommodations discrimination law are described in the law's subsections (3)(a), and include: (6)
(3) Public place of accommodation or amusement (a) No person may do any of the following:
1. Deny to another or charge another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry.
. . .
2. Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.
Thus, what is prohibited is denial of full and equal enjoyment of, charging a higher price than regular for, or giving preferential treatment in providing services or facilities in, any "public place of accommodation or amusement." That, in turn is a defined phrase:
106.52 Public places of accommodation or amusement.
(1) Definitions. In this section:
. . . (e) 1. "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, subject to subd. 2. (7)
As noted above, the complaint in this matter raises claims that WPS made coverage decisions in retaliation for the complainant having filed appeals, and because of race and national origin bias, and it can be treated,
arguendo, as having raised a claim that WPS wrote offensive comments about complainant and his family in internal records because of race and national origin bias. The questions of whether any of these state a claim under the law, are discussed separately below.
Retaliation -- It is clear that the public accommodation discrimination law prohibits certain conduct if it is motivated by race or national origin; the law expressly identifies these as proscribed motives. But, it is equally clear, that the law does not prohibit conduct motivated by a desire to retaliate against a person because they have complained of alleged discrimination. There is simply no such prohibition stated in the law.
The complainant appears to recognize this problem. In his complaint, he argued,
There are many instances in the Wisconsin Statutes where retaliation in the course of exercising legal rights is addressed. Examples include section 111.31-111.395, 230.83, 230.90, and 51.61(1)(u). Section 510 of ERISA makes it unlawful for any person to discriminate against any plan participant for exercising rights provided by an employee benefit plan.
None of the laws cited are part of or connect with or modify the public accommodations discrimination law in any way. (8) Highlighting the fact that there are anti-retaliation provisions in these other laws, serves to accentuate the fact that the public accommodations discrimination law does not cover retaliation. The existence of specific provisions concerning retaliation in other Wisconsin laws, such as the Wisconsin Fair Employment Act, makes it quite clear that this is something that the legislature does expressly when it intends it to be the law. It did not do so for the public accommodations discrimination law.
[The commission would note that there is a decision, Schmid v. Shape-Up Shop, ERD Nos. 9153504, 9250017 (LIRC, Jan. 11, 1993), which could if read uncritically appear to support a different result on this question. However, it does not. In Schmid, the commission held expressly that retaliation was covered by the public accommodations law. However, that holding was the result of different statutory language at the time. Prior to 1995, Wisconsin's law covering discrimination in public accommodations was combined with Wisconsin's law on housing discrimination, both being part of a single statute, found in Wis. Stat. § 101.22. That law had a provision, then found in Wis. Stat. § 101.22(4m), prohibiting "interference, coercion or intimidation" with the exercise of rights under the section. Schmid held specifically that that provision, § 101.22(4m), was effectively an anti-retaliation provision. However, by 1999 Wis. Act 82, the housing and public accommodations provisions were separated and renumbered, Open Housing going to sec. 106.50, and Public Accommodations going to sec. 106.52. In this change, the "interference, coercion or intimidation" provision was retained only in the Open Housing Act. There was thus no longer any "interference, coercion or intimidation" provision in the Public Accommodations Law. Because it rested specifically on a statutory provision which no longer exists in the law, Schmid is a mere historical artifact.]
For these reasons, it is clear that insofar as the complaint in this matter alleges that WPS acted against the complainant in retaliation for his having appealed decisions it had made on coverage, the complaint fails to state a claim for which relief can be granted under the public accommodations discrimination law. This provides an independent basis for the dismissal of those allegations, entirely apart from the fact that the retaliation claims are untimely, see, above, at pp. 4-8.
Race/national origin discrimination regarding coverage decisions -- The next question presented is whether the public accommodations discrimination law covers the allegations of the complaint that WPS' actions in regard to the amount of coverage it would provide for certain medical tests on the complainant's wife, were also motivated by race and national origin bias against the complainant and his family.
A health insurer's decision to pay less of a submitted medical expense than would otherwise be paid could be argued to fit into the actions described in § 106.52(3)(a)1. and 2. involving "denial of, or charging a higher price than regular for" and "giving preferential treatment in." The question, though, is whether it could fit the rest of the language in those subsections, involving "the full and equal enjoyment of any public place of accommodation or amusement" and the "providing services or facilities in any public place of accommodation or amusement."
The leading case in this area is Hatheway v. Gannett Satellite Information Network, 157 Wis. 2d 395, 459 N.W.2d 873 (Ct. App. 1990), in which the court of appeals confronted the question of whether a newspaper's classified advertising section was subject to the provisions of the public accommodations discrimination law.
The court focused on the law's definition of the phrase "public place of accommodation or amusement." (9)
Applying the rule of construction ejusdem generis, to the effect 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, the Hatheway court decided that "to be a place of public accommodation under the public accommodation act, the business must be comparable to or consistent with the businesses enumerated in the statute itself." The court then reasoned,
Newspapers do not offer the public "accommodations" in the sense that this term is normally understood. A newspaper does not supply necessities and/or comforts of the kind offered by the listed businesses. Newspapers are totally dissimilar in nature from the businesses listed in the public accommodation act.
On that basis, and even acknowledging that the statute dictated a broad interpretation of its own terms and that interpretation should be consistent with the purpose of the statute, the court concluded that "the newspaper's classified advertising section is so dissimilar from the businesses listed in the statute that it does not come within the purview of the public accommodation act." 157 Wis. 2d at 400-01.
LIRC has since issued a number of decisions relying on Hatheway which find that named respondents in public accommodations discrimination complaints are not "public place[s] of accommodation or amusement" as contemplated by the law. A number of these have involved complaints against government agencies, where the dissimilarity to the type of establishment described in the law is even sharper. However, some have dealt with situations which are arguably similar to what is presented here, in the sense that they dealt with entities providing services based on and pursuant to a formal and specific ongoing contractual relationship with the complainant. A moment's reflection shows that such situations are substantively different from the interactions involved in what the law contemplates.
Thus, in Young v. Trimble, ERD Case No. 9253479 (LIRC, Jul 11, 1994) the commission considered a commercial property leasing operation:
The nature of the businesses listed in the Public Accommodations Law involve businesses that offer health and beauty aids, food, drink, recreation and lodging to patrons. They are accommodations generally offered by businesses classified as service industry businesses. The respondent's business is that of leasing real property to entrepreneurs for the establishment of their own place of business. The respondent does not supply necessities and/or comforts of the kind enumerated in the statute. Providing commercial real estate for enterprising individuals to pursue their own business ventures simply does not constitute public "accommodations" in the sense that this term is normally understood. Accordingly, the commission finds the respondent's business to be totally dissimilar in nature from the businesses listed in the public accommodation law and thus not subject to the public accommodation law.
In Wang v. Executive Management, ERD Case No. 8900303 (LIRC, Dec. 19, 1990), a commercial property management service was involved:
A company which, as an agent of the property owner, provides property management services for the owners of a shopping center with commercial tenants, does not thereby offer "accommodations" to "the public" as those terms are normally understood. Such a company does not supply necessities and/or comforts of the kind offered by the businesses listed in the Public Accommodations Law. Furthermore, the services it does provide are not offered, as in the case of the businesses listed in the Public Accommodations Law, broadly to any interested member of the public willing to pay the price of the service. Rather, it primarily serves the property owners that are its clients, on whose behalf it provides certain services to a small, finite group of commercial tenants with whom its client has rental contracts. The Respondent herein is totally dissimilar in nature from the businesses listed in the Public Accommodations Law.
(Emphasis added). The emphasized language here illustrates a distinction which is also illustrated in this case. By its very nature, insurance is precisely about dealing with a "small, finite group...with whom [there are] contracts" -- specifically, the insured individuals.
Unlike retail-level consumer service providers, insurance companies do not provide a standard product on the same terms to any and every member of the public who tenders a standard price. First and foremost, they interact only with individuals they have, in the first instance, agreed by contract to take on as insureds. They decide whether or not to do that on a selective basis, taking into account things such as actuarial considerations. Furthermore, to a significant extent the services (i.e., payment of claims) which end up being provided under the insurance contract involve individualized and discretionary decision-making. The relationship of insurer and insured is fundamentally dissimilar from the type of relationship that the public accommodations and amusement law was clearly designed to cover, and the nature of the services provided within that relationship is also fundamentally dissimilar from the nature of the types of services to which the law is designed to insure equal access.
In addition to the foregoing, there is one other consideration which leads the commission to conclude, that the complaint here is insufficient to state a claim. This is the fact that the public accommodations discrimination law contains a separate provision, Wis. Stat. § 106.52(3)(a)4., which specifically covers refusal to furnish, or charging another a higher rate for, any automobile insurance, because of race, color, creed, disability, national origin or ancestry.
If refusing to furnish, or charging a higher rate for insurance, in general, was a "den[ial] to another or charg[ing] another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement" within the meaning of § 106.52(3)(a)1., then there would have been no reason for the inclusion of the automobile insurance provision in § 106.52(3)(a)4. Similarly, if refusing to furnish, or charging a higher rate for insurance, in general, was "giv[ing] preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement" within the meaning of § 106.52(3)(a)2., there would have been no reason for that provision.
When construing statutes, meaning should be given to every word, clause and sentence in the statute, and a construction which would make part of the statute superfluous should be avoided wherever possible. Kollasch v. Adamany, 104 Wis. 2d 552, 563, 313 N.W.2d 47 (1981). If § 106.52(3)(a)4. is not to be effectively rendered superfluous, it must be considered to do something which is not done elsewhere in the statute. That means that the other parts of the statute do not make it unlawful to refuse to furnish, or charge another a higher rate for, any automobile insurance, for the statutorily-prohibited reasons. And if the other parts of the statute do not do this, that must be because they simply were not intended to, and do not reach to any extent, the provision of insurance generally.
Race/national origin bias in written notes -- The next question presented is, assuming the complaint was intended to raise a claim that WPS violated the public accommodations law by writing allegedly offensive notes in its internal records because of race and national origin bias, whether the public accommodations discrimination law covers prohibited such conduct.
It could be argued that a health insurer's creation and retention of internal documents concerning an insured which contain expressions of bias, could be considered to be a denial to another of "full and equal enjoyment," or to be a matter of "giv[ing] preferential treatment . . .in providing services or facilities." The question is, though, could it be considered a denial to another of full and equal enjoyment of any public place of accommodation or amusement, or the giving of preferential treatment in providing services or facilities in any public place of accommodation or amusement. In other words, even where the matter of the written notes is considered, the same issue as that addressed above is confronted: an issue as to whether this situation even involves the kind of "public place of accommodation or amusement" that the law is intended to cover.
The commission believes that the rationale discussed above, that the nature of the relationship and the services involved here is fundamentally dissimilar from what the law is intended to apply to, applies equally to determining whether a violation of the law could be found in a health insurer's creation and retention of internal documents concerning an insured.
The commission has also considered whether an allegation, that an insurance company employee wrote allegedly offensive statements about an insured in internal documents of the company because of race and national origin bias, could be considered to fall within § 106.53 (3)(a)3., which provides that it is a violation of the law to:
3. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of sex, race, color, creed, disability, sexual orientation, national origin or ancestry or that the patronage of a person is unwelcome, objectionable or unacceptable for any of those reasons. 106.52(3)(a)5.
The "publish, circulate, display or mail" elements of this prohibition are significant: the point of the prohibition is to prevent statements of the kind described from being publicized so that they have the effect of discouraging or deterring individuals from even attempting to patronize certain establishments.
Written notes in a purely internal log, unknown to anyone outside of a small circle of employees until produced in litigation years later, are irrelevant to the point of this prohibition.
Applying a parallel provision in the Wisconsin Fair Employment Act, Wis. Stat. § 111.322(2), the commission found that an memo internal to the respondent could not be considered a "publication" or an "advertisement" within the meaning of that statute, and that while it might be considered a "statement" within the broadest sense of that term, for purposes of the statute it was neither "printed" nor "circulated." Valla v. Wal-Mart Distrib. Center, ERD Case No. 199803085 (LIRC, 11/30/01). The commission noted that the "print" provision of the statute had been interpreted by the Court of Appeals to mean "to publish in print," while the term "circulate" contemplates a wide degree of distribution. Ibid.
The commission concludes that this provision would not apply to such an allegation. The commission does not believe, from what the complaint describes regarding these notes, that anything here fell within the scope of "publish[ing], circulat[ing], display[ing] or mail[ing]" them.
Conclusion -- For all of the reasons described above, the commission concludes that the complain in this matter does not state a claim for which relief can be granted under the public accommodations discrimination law, and it therefore issues the following:
The complaint in this matter is dismissed.
Dated and mailed
February 29, 2012
tabatha . rsd :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Holly D. Jensen, Associate Counsel, WPS
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(1)( Back ) In the body of the complaint there are also mentions of alleged acts and refusals to act by another entity, the Wisconsin Department of Employee Trust Funds ("DETF"). However, the complaint does not identify DETF as an intended party respondent. The complaint was treated below as being solely against Wisconsin Physicians Service, and the commission concludes that this is an appropriate and correct reading of it. DETF is not a respondent in this case.
(2)( Back ) The complainant repeatedly speaks of being "charged by" WPS for medical services. Of course, WPS is not a medical services provider, but an insurance company. Records attached to the complaint show the medical services involved here were being provided by Medical College of Wisconsin. Its charges for those services were then being evaluated by WPS, as the complainant's health insurer provider, and WPS was making decisions on what amount of coverage it would provide under the complainant's health insurance policy for the amounts being charged by Medical College of Wisconsin. The decisions complained about are thus more accurately understood as decisions by WPS that it would not provide coverage for certain amounts of the charges for medical services being made by Medical College of Wisconsin.
(3)( Back ) The complainant asserts that the notes are "utter racist, ugly, inflammatory, infuriating and false...despicable and hateful" and "racist and hurtful." The text of the notes is reproduced below, at pp. 6-7. For the purposes of deciding the issues presented in this appeal, the commission does not find it necessary to decide whether or not the complainant's characterization of these notes is justified, and it makes no judgment on that question.
(4)( Back ) In written argument submitted to the ALJ, the respondent appeared to dispute the complainant's claims about learning something in a hearing. However, because this is an appeal of a preliminary determination, factual allegations by the complainant should be assumed to be true for purposes of evaluating the sufficiency of the complaint. That should apply to the statute of limitations issue as well. The complainant's assertions should therefore be assumed for purposes of evaluating the timeliness issue.
(5)( Back ) It could be argued, that there also issues, under Wis. Adm. Code § DWD 221.04(1)(a) and (b) as to whether the complainant is protected by the act and whether the respondent is subject to the act. However, the commission believes that these issues are effectively subsumed within the issue of whether the complaint states a claim for which relief can be granted under the act.
(6)( Back ) The law also contains provisions having to do with availability of lodgings, situations involving service animals, exceptions for dormitories, public toilets, domestic abuse services organizations, and fitness centers, and rental of private facilities. These provisions have no arguable relevance to the issues in this case and are therefore not reproduced here.
(7)( Back ) The referenced subsection deals with bona fide private, nonprofit organization or institutions providing accommodations to members and their guests. That subsection is not relevant to the situation presented in this case.
(8)( Back ) Wis. Stat. § 111.31-111.395 is the Wisconsin Fair Employment Act. Wis. Stat. §§ 230.83 and 230.90 prohibit certain retaliation against government employees. Wis. Stat. § 51.61 involves patients rights.
(9)( Back ) Since Hatheway was decided, there were some minor modifications in this language, specifically the use of the phrase "lodging establishments" to replace "hotels, motels, resorts", and a restructuring of the exception for bona fide private, nonprofit organizations, but these modifications do not affect the elements of the statute on which Hatheway was based.