Alberte v. Anew Health Care Services, Inc., 96-3225

Decision Date20 October 1998
Docket NumberNo. 96-3225,96-3225
Citation223 Wis.2d 1,588 N.W.2d 298
Parties, 8 A.D. Cases 1204, 13 NDLR P 223 Lisa K. ALBERTE, Plaintiff-Appellant, v. ANEW HEALTH CARE SERVICES, INC. and Sally Sprenger, Defendants-Respondents. d
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John D. Uelmen, of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Arthur E. Beck and Katherine L. Williams of Beck, Chaet, Loomis, Molony & Bamberger, S.C., of Milwaukee.



Lisa K. Alberte appeals from the trial court's grant of summary judgment dismissing Sally Sprenger from Alberte's action under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

The facts material to this appeal are neither disputed nor complicated. Anew Health Care Services, Inc., provides skilled nursing services to persons in the community. Alberte used to work for Anew Health Care. She was fired by Sprenger, who was president, administrator, and 47.5% owner of Anew Health Care. Alberte claims that Sprenger fired her because of Alberte's disability. She seeks to hold Sprenger personally liable, in addition to seeking damages from Anew Health Care. Sprenger contends that she cannot be personally liable for what she did as an officer, part owner, and employee of Anew Health Care. The trial court agreed. We reverse.

The Americans with Disabilities Act makes it illegal for any "covered entity," which is defined to include an "employer," 42 U.S.C. § 12111(2), to "discriminate against a qualified individual with a disability." 42 U.S.C. § 12112(a). The Act defines "employer" to mean, as material to this appeal, "a person engaged in an industry affecting commerce" who employs at least a specified minimum number of employees "and any agent of such person." 42 U.S.C. § 12111(5)(A). "Person" includes a "corporation." 42 U.S.C. § 12111(7) (adopting the definition in 42 U.S.C. § 2000e(a)). Anew Health Care admits that it is an "employer"; Sprenger admits that she is an "agent."

The Americans with Disabilities Act gives to anyone claiming to be a victim of a violation under it the remedies set out in Title VII of the Civil Rights Act. 42 U.S.C. § 12117(a). Title VII also defines "employer" to include "any agent" of the "person" deemed to be an "employer." 42 U.S.C. § 2000e(b). A party whose rights under the Americans with Disabilities Act are intentionally violated may recover compensatory and punitive damages. 42 U.S.C. § 1981a.

As noted, this case was decided on summary judgment. Our review of the trial court's decision is, therefore, de novo. See Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Moreover, whether the Americans with Disabilities Act permits imposition of personal liability on one who is an "employer" by virtue of her status as an "agent" of an "employer" is an issue of law that we also review de novo. See Truttschel v. Martin, 208 Wis.2d 361, 364-365, 560 N.W.2d 315, 317 (Ct.App.1997) (interpretation of statutes presents legal issues that are decided de novo by appellate courts).

We begin our analysis by looking at the statute to determine whether its language is clear or ambiguous. De Bruin v. State, 140 Wis.2d 631, 635, 412 N.W.2d 130, 131 (Ct.App.1987). If it is clear, we must apply its plain meaning. DNR v. Wisconsin Power & Light Co., 108 Wis.2d 403, 408, 321 N.W.2d 286, 288 (1982). Although federal cases applying federal law can be helpful to our analysis, we are only bound by the interpretation given to federal law by the United States Supreme Court. See State v. Webster, 114 Wis.2d 418, 426 n. 4, 338 N.W.2d 474, 478 n. 4 (1983). The Supreme Court has not yet decided whether the Americans with Disabilities Act permits imposition of personal liability on an "agent." It is also an issue of first impression in Wisconsin. Significantly, the Supreme Court, as do we in Wisconsin, recognizes that the legislature speaks through the words it uses, and those words must be enforced as written, United States v. Salerno, 505 U.S. 317, 322, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992) (In enacting the rule against hearsay and its exceptions, Congress "presumably made a careful judgment"; "To respect its determination, we must enforce the words that it enacted."), unless, of course, constitutional principles intervene. We analyze Alberte's appeal with this in mind.

As material to this appeal, the Americans with Disabilities Act prohibits discrimination against employees by both the "employer" and the employer's "agent," who, by virtue of the statute, is also deemed to be an "employer." 42 U.S.C. § 12111(5)(A). See also Title VII of the Civil Rights Act, 42 U.S.C. § 2000e(b) ("employer" includes "any agent" of the "person" deemed to be an "employer"). 42 U.S.C. § 1981a permits an employee suffering intentional discrimination because of his or her disability to recover, if certain criteria that are not material here are met, compensatory and punitive damages from a "respondent." "Respondent" includes an "employer." 42 U.S.C. § 2000e-5(b) (incorporated into the Americans with Disabilities Act by 42 U.S.C. § 12117(a)). Anew Health Care is an "employer"; this is not disputed. Sprenger admits that she is an "agent" as that word is used in both the Americans with Disabilities Act and Title VII of the Civil Rights Act. She is, therefore, an "employer" as that word is used in the Americans with Disabilities Act, and is thus a "respondent" for the purposes of 42 U.S.C. § 1981a.

Sprenger argues that the trial court properly dismissed her from Alberte's lawsuit because most of the federal courts that have considered the issue have held that imposition of personal liability on "agents" is not warranted despite the statutes' Tinkers-to-Evers-to-Chance definitional syllogism ("agent" = "employer" = "respondent"). Those courts, however, generally recognize that they are disregarding the literal statutory language in favor of what they see as either a contrary congressional intent or a contrary public policy. See, e.g., Wathen v. General Electric Co., 115 F.3d 400, 404, 405 (6th Cir.1997) (citing cases) ("We concede that 'a narrow, literal reading of the agent clause in § 2000e(b) does imply that an employer's agent is a statutory employer for purposes of liability.' ") (quoted source omitted).

Typical of the authorities upon which Sprenger relies, and one that advances all of her arguments against personal liability, is United States Equal Employment Opportunity Commission v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir.1995), which, as here, was an action under the Americans with Disabilities Act. See id., 55 F.3d at 1278. We analyze these arguments in turn, focusing, in main, on AIC Security.

Recognizing that imposition of personal liability on an "agent" who violates the Americans with Disabilities Act is required by the Act's "plain language," AIC Security held that "the actual reason for the 'and any agent' language in the definition of 'employer' was to ensure that courts would impose respondeat superior liability upon employers for the acts of their agents." Id., 55 F.3d at 1281. Neither AIC Security, however, nor the two cases upon which it relies, Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994) (an Age Discrimination in Employment Act case), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600, and Miller v. Maxwell's International Inc., 991 F.2d 583, 587 (9th Cir.1993) (an action brought under both Title VII of the Civil Rights Act and the Age Discrimination in Employment Act), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372, explain why that language was needed to have common-law respondeat superior principles apply under the Americans with Disabilities Act; entities can act only through humans, and are generally responsible for the acts of employees and agents that are within the scope of the employment or agency. See RESTATEMENT (SECOND) OF AGENCY § 219 (1957). Indeed, Vinson v. Taylor, 753 F.2d 141, 150-152 (D.C.Cir.1985), imposed absolute liability under Title VII of the Civil Rights Act on the employer for the acts of its agent/employee, holding that even broad respondeat superior liability was too limited, but the Supreme Court reversed. Meritor Savings Bank v. Vinson, 477 U.S. 57, 69-73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Meritor viewed the use of the "agent"-equals-"employer" language in Title VII as reflecting congressional intent to limit employer liability:

We therefore decline the parties' invitation to issue a definitive rule on employer liability, but we do agree with the [Equal Employment Opportunity Commission] that Congress wanted courts to look to agency principles for guidance in this area. While such common-law principles may not be transferable in all their particulars to Title VII, Congress' decision to define "employer" to include any "agent" of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible. For this reason, we hold that the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors. See generally Restatement (Second) of Agency §§ 219-237 (1958) [sic ]. For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability. Ibid.

Id., 477 U.S. at 72, 106 S.Ct. 2399 (emphasis added); see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2278, 141 L.Ed.2d 662 (1998) recognizing Meritor 's holding that "an employer is not 'automatically' liable for harassment by a supervisor who creates...

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  • Alberte v. Anew Health Care Services, Inc.
    • United States
    • Wisconsin Supreme Court
    • February 8, 2000
    ...employers' agents to personal liability for their discriminatory acts. In a published decision, Alberte v. Anew Health Care Services, Inc., 223 Wis. 2d 1, 5, 588 N.W.2d 298 (Ct. App. 1998), the court of appeals determined that these statutes subject agents to individual liability. The defen......

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