Yanta v. Montgomery Ward & Co., Inc.
| Decision Date | 20 December 1974 |
| Docket Number | No. 314,314 |
| Citation | 66 Wis.2d 53,224 N.W.2d 389 |
| Parties | , 11 Fair Empl.Prac.Cas. (BNA) 1169, 9 Empl. Prac. Dec. P 9857 Delores YANTA, Respondent, v. MONTGOMERY WARD & CO., INC., a foreign corp., Appellant. |
| Court | Wisconsin Supreme Court |
Schmidt, Thibodeau & Schmidt, Wisconsin Rapids, for appellant.
Crowns, Merklein, Midthun & Metcalf, Wisconsin Rapids, for respondent.
This is a sex discrimination case. The principal issue raised on this appeal is whether the plaintiff-respondent, Delores Yanta, states a cause of action in her complaint filed in a civil suit commenced September 8, 1972, following her discharge on April 17, 1969, as a salesclerk for the defendant-appellant, Montgomery Ward & Company, Inc. On March 7, 1972, after proceedings charging a violation of secs. 111.31--111.37, Stats., were instituted by Delores Yanta, the discharge was found by the Department of Industry, Labor & Human Relations to be an act of sex discrimination. The department awarded prospective relief only, ordering defendant to reinstate plaintiff and to cease and desist from further discrimination.
In her civil action, Delores Yanta seeks damage recoveries arising from the following injuries allegedly proximately caused by the discriminatory firing: lost wages; 'emotional and mental anguish and personal humiliation;' personal inconvenience and legal fees; and harm to character and reputation. After the defendant demurred to the complaint on the grounds that the action was barred by the statute of limitations, and that the complaint failed to state a cause of action, the demurrer was overruled by the trial court. Montgomery Ward appeals.
We hold that the complaint, in part, does state a cause of action which is not barred by the statutes of limitation. We therefore affirm in part, reverse in part, and remand for further proceedings.
Secs. 111.31--111.37, Stats.1969, prohibit employment discrimination based on, among other factors, sex. These statutes are administered by the Department of Industry, Labor & Human Relations, and at the time of the discrimination against plaintiff, the department had statutory authority to issue orders preventing future discrimination, but could not remedy violations in the past. In Murphy v. Industrial Comm. 1 this court held that while the department (then Industrial Commission) could issue 'an order to hire, reinstate, or whatever is appropriate to eliminate the discrimination in the future,' 2 nevertheless the department:
'. . . has no authority under the Wisconsin Fair Employment Practices Act, ch. 111, subchapter II, of the Wisconsin Statutes, secs. 111.31 to 111.37, either during or after conciliation or after hearing, to award back pay to parties discriminated against on account of their sex in the wages paid them.' 3
A recent amendment, effective June 15, 1974, now permits the department to award back pay, 4 but this change in the law occurred long after the discrimination against plaintiff and the subsequent cease and desist and discrimination orders of department.
Plaintiff's present action for back pay and other damages is grounded in the theory that secs. 111.31--111.37, Stats., create a private civil cause of action to recover for past injuries arising out of employment discrimination. Nothing in these statutes expressly mentions private actions. However, plaintiff relies particularly on the following sections in arguing such a cause of action is implied:
'111.31 Declaration of policy. (1) The practice of denying employment and other opportunities to, and discriminating against, properly qualified persons by reason of their age, race, creed, color, handicap, sex, national origin or ancestry, is likely to foment domestic strife and unrest, and substantially and adversely affect the general welfare of a state by depriving it of the fullest utilization of its capacities for production. The denial by some employers, licensing agencies and labor unions of employment opportunities to such persons solely because of their age, race, creed, color, handicap, sex, national origin or ancestry, and discrimination against them in employment, tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them. (Emphasis supplied.)
'(2) It is believed by many students of the problem that protection by law of the rights of all people to obtain gainful employment, and other privileges free from discrimination because of age, race, creed, color, handicap, sex, national origin or ancestry, would remove certain recognized sources of strife and unrest, and encourage the full utilization of the productive resources of the state to the benefit of the state, the family and to all the people of the state.
'111.32 . . . (5) . . .
'(g) It is discrimination because of sex:
To support her contentions, plaintiff relies on art. I, sec. 9 of the Wisconsin Constitution providing that every person is entitled to a certain remedy for all injuries. Additionally, plaintiff contends that in the 1971 decision in Murphy v. Miller Brewing Co. 5 this court held that secs. 111.31--111.37 authorized private causes of action for sex discrimination.
Defendant, on the other hand, argues that Murphy never reached the question of whether private actions are maintainable. Defendant then relies on Ross v. Ebert 6 where this court held that the express statutory administrative remedies for employment discrimination were exclusive, and that therefore no private cause of action could be maintained.
The parties' opposing views concerning Murphy v. Miller Brewing Co., supra, must be resolved first. We agree with defendant that the court did not decide the question of the propriety of private employment discrimination actions. The plaintiff in that case pursued a civil action to recover back pay based on an illegal sex-based salary differential, after this court in Murphy v. Industrial Comm., supra, held the commission could not award the back pay. The defendant Miller Brewing Co. moved for summary judgment on the grounds that the circuit court had no subject matter jurisdiction and that the complaint failed to state a cause of action. The trial court overruled the motion finding that it had jurisdiction, but it declined to rule on the question of whether the complaint stated a cause of action. This court also found that the circuit court had jurisdiction, but carefully stated that:
7
Concerning this latter determination, this court made no decision but instead merely found that the trial court's failure to decide was not an abuse of discretion. Thus, the court did not rule on this question and the decision, therefore, does not support the contentions of either plaintiff or defendant in the case at bar.
In Ross v. Ebert, 8 the plaintiffs were two Negroes who were refused membership in a labor union. The Industrial Commission found the refusal solely based on racial grounds, recommended that the Union admit plaintiffs as members, and publicized its findings, the sole statutory remedies under ch. 111, Stats., at the time. When the Union continued to refuse them admission, plaintiffs sought injunctive relief in circuit court. This court upheld the trial court's decision sustaining demurrers to the complaints. First, the court said, ch. 111 did not actually declare discrimination unlawful and therefore did not create any new legal rights. This portion of the opinion is no longer viable, since sec. 111.325 now expressly declares discrimination unlawful. However, the court held that even if such right were created, the statutory remedies provided were exclusive, and plaintiffs could not mount a civil action to receive any additional relief:
'. . . But if such right was created we must look to the statute to see if the remedy or penalty for a violation is provided. If it is, that remedy is exclusive. State ex rel. Russell v. Board of Appeals (1947), 250 Wis. 394, 397, 27 N.W.2d 378; LeFevre v. Goodland (1945), 247 Wis. 512, 516--517, 19 N.W.2d 884. Where the law gives a new remedy to meet a new situation, the remedy provided by the law is exclusive. In re Jeness (1935), 218 Wis. 447, 450, 261 N.W. 415.
9
The court also held that art. I, sec. 9 of the state constitution did not require the court to provide a remedy for racial discrimination. 10
Plaintiff attempts to distinguish Ross on the theory that the court solely held that...
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...in awarding back pay in this case, since the discriminatory discharge took place on August 18, 1972. In Yanta v. Montgomery Ward & Co., Inc., 66 Wis.2d 53, 61, 224 N.W.2d 389, 393 (1974), the supreme court stated that the amendment "represents a legislative determination that the statutory ......
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