*1 Plaintiff-Appellant, Lisa K. Alberte, Sally Sprenger, Inc. Services, Anew Health Care Defendants-Respondents.† Appeals

Court of 4, 1998. May No. 96-3225. Submitted on Decided briefs 20, 1998. October (Also 298.) reported in 588 N.W.2d granted. Petition to review † *2 plaintiff-appellant, the cause was

On of the behalf Uelmen, of John D. on the briefs submitted Milwaukee. defendants-respondents, of the

On behalf E. Beck and cause submitted on the brief oíArthur was Molony Beck, Chaet, Loomis, Katherine L. Williams of Bamberger, S.C., of Milwaukee. & Curley, Fine, JJ.

Before Schudson appeals from the trial FINE, J. Lisa K. Alberte summary judgment dismissing Sally grant court's Sprenger the Americans from Alberte's action under seq., § Act, Disabilities 42 U.S.C. 12101 et Title VII ofthe Civil Act of as amended, seq. § U.S.C. 2000e et appeal

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

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

The Americans with Disabilities Act to claiming one a be victim of a violation under it the remedies set out in Title VII of the Civil 42 Act. 12117(a). § "employer" U.S.C. Title VII also defines "any agent" "person" include of the deemed to be an 2000e(b). "employer." party rights § 42 U.S.C. A whose Act are inten- with Disabilities the Americans under may compensatory tionally recover violated damages. punitive § 42 U.S.C. 1981a. summary judg- decided on noted,

As this case was is, trial court's decision Our review of the ment. Spring Kersten, Farms v. therefore, de novo. See Green (1987). 816, 820 304, 315, 2d 401 N.W.2d 136 Wis. Act the Americans with Disabilities Moreover, whether personal permits imposition who is on one "agent" by "employer" her status as an virtue of review de issue of law that we also is an 361, 2d Martin, 208 Wis. See Truttschel v. novo. 1997) (inter- (Ct. App. 364-365, 315, N.W.2d legal presents pretation that are issues of statutes courts). by appellate decided de novo by looking begin analysis the statute to our at We ambiguous. language is clear or determine whether its 635, 412 N.W.2d State, 631, 140 Wis. 2d De Bruin v. (Ct. 1987). apply App. clear, If we must its 130, 131 it is Light meaning. plain Co., Power & DNR v. Wisconsin (1982). 408, 286, 288 403, 108 Wis. 2d 321 N.W.2d applying Although federal law can he federal cases only by analysis, helpful the inter our we are bound pretation given law the United States to federal Supreme Webster, 114 Wis. 2d Court. See State v. (1983). Supreme n.4, 338 N.W.2d 478 n.4 yet decided whether the Americans with Court has not permits imposition personal Act Disabilities *4 impression "agent." in of first on an It is also an issue Significantly, Supreme Court, do we as Wisconsin. speaks recognizes legislature Wisconsin, in through uses, it and those words must be the words written, Salerno, 505 U.S. enforced as United States

4 (1992) (In enacting against hearsay 317, 322 the rule exceptions, Congress "presumably its and made care- judgment"; respect ful determination, "To its we must enacted."), enforce the unless, course, words that it principles analyze constitutional intervene. We appeal with Alberte's this mind. appeal,

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

Sprenger argues properly that the trial court dis- her missed from Alberte's lawsuit because most of the federal courts that have held considered issue have personal liability "agents" imposition on is not despite warranted the statutes' Tinkers-to-Evers-to- = = syllogism ("agent" Chance definitional "respondent"). recog- generally courts, however, Those *5 statutory they disregarding the literal

nize that are contrary they language in of what see as either a favor contrary policy. congressional public See, or a intent e.g., 404, 400, Co., Electric 115 F.3d Wathen General cases) ("We (6th 1997) (citing that 'a 405 concede Cir. 2000e(b) reading agent §in of narrow, literal clause statutory employer's agent imply is a does that an liability.'") purposes (quoted employer for source omitted). upon

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

Recognizing imposition personal "agent" with Disabil on who violates the Americans required by "plain language," AIC ities Act is the Act's Security held "the actual reason for the 'and agent' language 'employer' in the definition of was impose respondeat superior ensure that courts would agents." liability upon employers for the acts of their Security, however, Id., F.3d at 1281. Neither AIC upon relies, nor it v. Mar the two cases which Birkbeck 1994) (an (4th Lighting Corp., 507, vel 30 F.3d Cir. case), Age Employment Act cert. Discrimination 1058, Interna denied, 513 U.S. and Miller v. Maxwell's (9th 1993) (an Inc., 991 F.2d Cir. action tional brought Act and under both VII of Civil Act), Age Employment cert. Discrimination in why explain language was denied, 510 U.S. superior prin- respondeat to have needed common-law under ciples apply Act; the Americans with Disabilities humans, entities can only act through gener- are ally responsible for the acts of employees agents scope that are within the employment or agency. *6 Agency (1957). See Restatement (Second) § of (D.C. v. Indeed, Vinson 141, Taylor, 753 F.2d 150-152 1985), Cir. imposed absolute under Title VII of employer Civil Act on the for of the acts its respondeat holding that even agent/employee, broad superior limited, was too Supreme but Savings Vinson, reversed. Meritor Bank v. Court (1986). Meritor U.S. 69-73 of viewed use VII "agent"-equals-"employer" language Title as reflecting congressional to intent limit liabil- employer ity: parties'

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

Id., 477 U.S. Faragher see also added); 72 (emphasis at (1998) Raton, City Boca 118 S. Ct. holding employer

(recognizing that "an not Meritor's 'automatically' supervisor for a liable harassment discrimination"); requisite degree who creates the Lago Indep. Dist., Vista School 118 S. Ct. Gebser v. (Meritor (1998) (Stevens, dissenting) J., 1989, 2004 n.9 " 'agent' limitation lia as a reference to on viewed bility employer"). of the Congress's cer do not decision include

We see solely employees within the term tain respon incorporating way round-about common-law liability. superior principles of deat master/servant Certainly, do, if is all it intended to could agent language have that did not also make the used Moreover, liable his or her unlawful conduct. employer necessarily is not liable for unlawful discrim inatory employees if create a acts its those acts do result in adverse hostile work environment but Burlington "tangible employment Industries, *7 action." (1998); Ellerth, Inc. v. 118 S. Ct. 2268-2269 see (In Faragher, Ct. an also 118 S. at environmental- VII case under Title where claims are harassment predicated supervisory employees, it is "an on acts of liability employer affirmative defense to that the had avoid and exercised reasonable care to harassment to might occur, eliminate it when it and that the com plaining employee failed to act like had with advantage employer's reasonable care to take safeguards prevent otherwise to harm that could avoided."); Burlington Industries, have 118 S. been cf. (under "tangible employment VII, Ct. at 2269 by supervisor" automatically, is, action taken "the liability employer"). Thus, act of the where vicarious is immunity employ giving guilty automatic, to not those employer ees as well to innocent would leave any discrimination without chance victims of unlawful compensatory punitive damages. to recover or This hardly Congress's could have been intent when it wrote sweeping legislation prevent to discrimination workplace give to such victims of discrimina tion effective remedies to make them If whole. (Dissent 16) analysis dissent's "Hobson's choice" at is employee correct, the directed to discriminate viola comply tion lawof has no incentive to with the employer's clearly, This, unlawful order. runs counter congressional to intent to out root discrimination trunk " objective'" 'primary and imposing liability After all, branch. of laws discrimination,

for unlawful "like primary that of statute conduct, meant to influence provide Faragher, is not to redress but to avoid harm." 118 S. Ct. at 2292.1 Security's

The second basis AIC conclusion that "agents" personally did not intend that be consequences liable for the of their violations of the congressional Americans with Act Disabilities was con- employers subjected cern that small either not be liability at all or have their See AIC limited. Security, 55 F.3d at 1281. AIC concluded that imposition presumably on individuals, resources, limited would be inconsistent with Con- gress's protect desire small business. Ibid. This reading legislative history supports tea leaves. The equally persuasive reason for the limitation on the size by covered the Americans with Disabili- (as ties Act measured the number their employees) need establish some criteria that —the

1Moreover, employee failing who is fired for to discrimi *8 may wrongful- nate in of a violation state or federal statute have against discharge employer. claim his or her See Bushko Co., 136, 140-141, 167, Brewing Miller 134 Wis. 2d 396 N.W.2d (1986). 169-170

9 scrutiny. See withstand commerce-clause would (2d Corp., F.3d 1322 Cir. v. Seiler 66 Tomka 1995) legislative-history (Parker, (citing dissenting) J., Act). materials) (Title Neverthe- VII of the Civil language, by the clear and less, we are statute's bound legis- competing from can be drawn inferences that history Felix Frankfurter's remind us of Justice lative wag apply of construction of the advice to "the canon go legislative history said, doubtful, is who when the States, v. United 350 U.S. the statute." Greenwood (1956). "agent" equals statute, an Under the an equals "respondent," "employer," which, turn, a "respondent" § com- 42 pensatory 1981a makes a liable for U.S.C. damages. punitive given by Security con- The third reason AIC for cluding "agent" for an was not that individual by Congress § has is that 42 U.S.C. 1981a intended sliding caps, Security "a AIC is scale *9 government power inequities. to redress social Pre- sumably Congress expose wanted to those who working enterprises large discriminate while greater potential liability than who those discriminate working only while for smaller entities not because might larger pros- their individual resources be but pects meaningful employer-reimbursement might be language In event, better.2 this what is the clear requires. Although congressional the statute might scheme strike some as flawed, and the dissent as "nonsensical," see Dissent at we do not have license ignore Moreover, would, the law. it view, our be (to "unjust" through ause theme that runs the dissent's analysis) (and, to hold liable innocent aas penalize employees by result, also its innocent divert- ing pay damages resources to caused the unlawful co-workers) give discrimination of one their but immunity guilty agents; persons unlawfully who dis- damages they criminate be cause, should liable for the provided. has so language sum, In we conclude that under the clear of the Americans with Disabilities Act and Title VII Sprenger Act, the Civil is an as that Act, word used in the is Americans with Disabilities "respondent" purposes thus a for the of U.S.C. § 1981a.

By the Court.—Order reversed. (dissenting). majority

CURLEY, J. The has deter- finding mined that the trial court erred in (ADA) imposes per- Americans with Disabilities Act no parties argue, appeal do not and this therefore does present, equal-protection issues. liability against agent/employee who violates sonal respectfully and would affirm the ADA. I dissent trial court. Supreme

Although Court has United States presented by on this case and not ruled the issue *10 impression court, of for this the issue issue one first is by The numerous federal courts. has been addressed overwhelming majority of the federal circuit courts agent/employees individually not are have decided that ADA. See v. General violations of the Wathen liable for (6th 1997) (collecting 400, 404 Cir. Co., Elec. 115 F.3d cases). appellate bound federal courts are not While interpreting except law, those of federal court decisions Supreme Mechtel, Court, State v. the United States see (1993), 87, 94-95, 2d 499 N.W.2d 176 Wis. authority, persuasive see these decisions do constitute 348, 356-57, 2d 190 Wis. Delafield, v. Town Streff of (Ct. 1994). App. 822, 825 526 N.W.2d majority and other fed- The dismisses Wathen the claiming interpretation ADA, the eral courts' of recognize they generally "[t]hose however, courts, statutory language disregarding the favor are literal they contrary congressional as of what see either a contrary Majority op. public policy." at intent a See or merely Wathen, however, that the stat- 5-6. conceded way, narrow, literal" and that ute can be read "a produces reading result, a faithful to such odd not meaning Wathen, 115 of the statute. See F.3d the true my opinion, Wathen, at 405. In the court's concern in "a narrow the statute would be read literal" way, majority exactly what occurred has here. upon reading and, a a literal of the statute seized consequence, history

ignores law, of the intent the the ADA, the schemes under the of remedial available produces unjust VII, ADEA, and the and result.1 putting emphasis single Instead of on the clause "and any agent person," such of the better method of statu- tory construction would have been to heed the advice given by Supreme the United States Court in Pilot Life (1987): "[I]n Dedeaux, Insurance Co. U.S. expounding guided by a statute, we must a not be sin- gle sentence, or of a sentence member but look provisions object pol- law, whole and its and (citations omitted). icy." quotation Id. at 51 marks By failing provisions to "look to law, the whole object policy," Wathen, and to its 115 F.3d at majority produced clearly has at result odds express Congress. intent of inescapable A review the entire law to the leads conclusion that did intend agent/employees personally to be held in ADA liable litigation. Although bill's definition of problematic language any agent includes the "and *11 person," Wathen, such as noted in 115 F.3d at 405-06 (quoting Inc., Miller v. 583, Maxwell's Int'l 991 F.2d (9th 1993) (alteration original)), 587 Cir. in most addressing '[t]he "courts this issue have concluded purpose agent provision incorpo obvious of this was to respondeat superior liability rate into the statute.'" majority's disregards weight Here the decision the of authority and, instead, on this issue substitutes its Security United States EEOC v. AIC explained in

1 As Investigation, (7th 1995) (citations 55 F.3d 1279-80 Cir. omitted), of'employer' ADA's defini "The definition mirrors the 'employer' tions of in Title VII of the Civil Act of and (ADEA). Age Employment in the Discrimination in Act Courts routinely arguments liability apply regarding to all individual Thus, many interchangeably." three statutes of the claims VII the cited cases have been made under or the ADEA. major- analysis. I adhere to the view of the own would phrase ity inclusion "and of courts that the person" agent other than of such was done for reasons personal liability. agent/employees exposing history policy Further, both of the law and the Congress did not intend it indicate behind agent/employees personally liable under the to be Notably, exempts ADA. less the bill employees exposure. In from United States than fifteen Security Investigation, Ltd., AIC 55 F.3d EEOC v. (7th 1995), 1276, 1279-81 Cir. the court remarked that holding employees rule is inconsistent with the fifteen personally explained agent/employees liable. court fifteen-employee ADA's that this minimum the defi Congress nition of was done was because intentionally protecting small with limited entities "[t]hat from struck a resources limitation goal stamping out all discrimi balance between goal protecting small entities from nation and hardship litigating discrimination claims." Id. at (citing Inc., Miller v. Maxwell's Int'l 991 F.2d at 587). goal, AIC Given this court then con reasonably Congress could not have cluded that personal against intended to create they agent/employees because, as individuals, would experience greater hardship litigating even discrimi majority nation claims. The decision dismisses this thoughtful analysis by reading [t]his remarking," tea relying solely leaves," then, on the dissent (2d Corp., Tomka v. Seiler 66 F.3d Cir. 1995), suggests simply the limitation was added sur scrutiny. disagree. vive commerce clause I Common sense dictates could have intended to *12 impose personal agent/employees on all while imposing fifteen-employee at the time mini- same mum on its because of concern about the hardship litigation on small entities. history supports

The also of available remedies passage Rights this view. Before of the the Civil Act of litigants only expect 1991, successful could reinstate- back-pay, ordinarily ment and remedies not within the agent/employee grant. compensa- control of When punitive damages tion and were to the added list they subject sliding remedies, were made to a scale of caps dependent employer. only on the size of the Not do original back-pay the two remedies of and reinstate- point agents/employee ment liability, to the exclusion caps imposed through

but also the the Civil strongly suggest Act of 1991 liability. Security, no intended individual See AIC sliding caps F.3d at 1281. so This is because the scale of Congress's policy punish manifests decision to on the Although Security basis of prets AIC size. the court inter- sliding caps placing the scale as no on agent/employees "Congress cap because no enacted majority argues individuals," for id., the AIC court misread law because subject caps agent/employees actually are to the same Assuming, employers. arguendo, caps that the do apply agent/employees, interpretation under- crafting Congress's penalties upon cuts of the based potential violator's resources. This is so because agent/employee subject cap found liable will be to the upon agent's employer based the size of an rather than egregiousness Further, the individual's resources. agent/employee's play part of the no actions would determining penalties. See maximum id. majority injustice by commenting discounts this "[presumably Congress expose wanted to those who enterprises working large discriminate while *13 greater potential liability who than those discriminate op. working Majority at See while for smaller entities." unjust dismissing 11. this nonsensical and In obvious majority merely the has result, the remarks that court ignore law, if the law no to or even license rewrite may majority's yield undesirable results. Under employers reasoning, agent/employees instruct whose a them to discriminate are faced with Hobson's prospect defying employer's orders choice—the risking jobs, following their and employer's the loss their or personal exposing to

orders themselves liability. adopt the in Miller

I would Ninth Circuit's remark International, Inc., it 991 F.2d at Maxwell's Congress pro- a is "inconceivable" that tecting concerned with employers would small with limited resources permit against employ- civil to run individual ees with even more limited resources.

Further, "if teaches, Maxwell had envi- liability ... it included sioned individual would have litany individuals of limitations and discontin- exemption employers." ued for small Id. at 587-88 n.2. persuaded majority's argu- I sum,

In not am statutory supports whole, Read as ment. a liability scheme congressional no individual because intent personally liable, was hold individuals but perceived by permit- workplace rather, evil correct ting recovery minimum who from meet requirements, recovery then, and even was limited upon majority's company. of a based the size deci- great disparities sion results individual working acting identically, between individuals but at differently companies. AIC sized Like the court in the "highly improbable" case, I find it that Con- gress agent/employees intended individual to "be liable amount, be that or billion." $5 $5 See AIC Security, 55 F.3d at 1281 n.6. do I Nor it find conceiva- "Congress silently abruptly change ble that intended through [the its earlier vision an amendment Civil 1991] portions Act of to the remedial of the *14 overwhelming statute alone." See id. at 1281. Like the majority of I courts, federal circuit believe what the majority imposition sees of individual actually nothing respon- more than the assurance superior liability against employers deat for the acts of agent/employees. respectfully Thus, their I dissent. what notes increasing possible award as the number party employees Id., 55 F.3d at of a liable increased." cap "in of a Thus, $50,000 the lowest is the case 1281. respondent who than 14 but fewer than has more 1981a(b)(3)(A). employees." § AIC U.S.C. provision, however, when it concludes misreads this cap "Congress Id., 55 enacted no for individuals." "agent" seen, an F.3d at 1281. As we have is "respondent," a and the number applies employees applicable cap cap sets the —the "agents" both individuals who are under the Americans they Act and businesses for which with Disabilities "agent" might subject large cap of a work. That the greater potential business to than counter- part working Congress's business reflects a smaller attempt competing to balance various considerations legislation crafting complex use inhere in the