SUZANNE WOLFF, Complainant

MIDDLETON BASKETBALL CLUB INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The Arguments and Discussion sections of the administrative law judge's decision are deleted and the following substituted:

Based upon the information provided by the parties, the following facts appear to be undisputed. The Middleton Basketball Club (Club) is a private, non-profit corporation organized solely for the purpose of providing basketball training and competition for 2nd through 8th grade children. The Club rents gym space from the Middleton/Cross Plains Area School District to conduct practices and games. Wolff served as a volunteer assistant coach for her fifth grade daughter's team from September through December of 2003. On or around January 1, 2004, the Club provided notice to Wolff that she would not be serving as an assistant coach for the girls' fifth grade program for the remainder of the tournament season. Those coaching for the Club in the fifth grade girls' program after January 1, 2004, were all male. Wolff served as an assistant coach for her 3rd grade daughter's basketball team from January through March of 2004.

Wisconsin Statutes § 106.52 states as follows, as relevant here:

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.

2. "Public place of accommodation or amusement" does not include a place where a bona fide private, nonprofit organization or institution provides accommodations, amusement, goods or services during an event in which the organization or institution provides the accommodations, amusement, goods or services to the following individuals only:

a. Members of the organization or institution.
b. Guests named by members of the organization or institution.
c. Guests named by the organization or institution.

(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....

Wolff is alleging that the Club violated this statutory prohibition against discrimination by not selecting her to continue as a volunteer coach for her daughter's fifth grade team after January 1, 2004, because of her sex.

Wolff, however, failed to sustain her burden to prove such a violation.

First of all, Wis. Stat. § 106.52 protects access to places. Barry v. Maple Bluff Country Club, et al., 221 Wis. 2d 707, 586 N.W.2d 182 (Ct. App. 1998). As the commission stated in Neldaughter v. Dickeyville Athletic Club, ERD Case No. 8900539 (LIRC July 31, 1991):

...[T]he right to be on an amateur softball team is simply not a "place." The obviousness of this should not be taken as detracting from its significance. Undeniably, the statute relates specifically, and repeatedly, to "places," or physical locations where goods and services are provided. The right to be on a softball team is not a "place." The broadening amendments considered and rejected by the Legislature in 1961 and 1963 would have prohibited discrimination in "any accommodation, service, advantage, facility or privilege whatsoever," and thus would arguably have extended the scope of the law to inchoate "rights" such as the right to be on a team, but the Legislature's rejection of these broadening amendments suggests that interpreting the statute as it now stands to cover denial of such inchoate "rights" would be unwarranted....

This logic would extend as well to coaching a team, another inchoate "right."

If it is assumed, for purposes of the present fact situation, that the "place" of accommodation or amusement is the gym in which a Club team is training or competing, the service or amusement offered to the adult members of the general public is the opportunity to be present in this gym to observe the training or the game, not the opportunity to coach the team. There is no allegation that Wolff was ever denied the opportunity to attend such a training or game.

Moreover, in Neldaughter, supra, the commission reiterated the requirement first clarified in Jones v. Broadway Roller Rink Company, 136 Wis. 595 (1908), that a "public place of accommodation or amusement" is a place to which members of the public are normally invited upon no condition but the payment of a fixed charge, i.e., there is no selectivity on the part of the proprietor in the admission of the members of the public, apart from a requirement that they be able to pay.

Here, the members of the general public are not invited to be coaches of the teams organized by the Club. It is reasonable to assume that, at a minimum, coaches must meet certain age and character requirements, that preference is given to those who have a child playing on a team, and that there is a limit on the number of coaches assigned to a team. Consistent with Neldaughter, supra, this element of selectivity supports a conclusion that, even if access to a coaching opportunity could constitute access to a "place," it would not constitute access to a "public place of accommodation or amusement."

In addition, Wis. Stat. 106.52 protects a person's access to services provided by, not a person's provision of services to, a public place of accommodation or amusement. The intended recipients of the Club's amusements or services are the children who participate in the basketball training and competition opportunities directed by the coaches. As a result, it is irrelevant that Wolff derives amusement from serving as a coach, because her status as a provider of the Club's services is not a protected one.

Finally, in view of the above discussion, it is not necessary to determine whether the exception stated in Wis. Stat. 106.52(1)(e)2. has been satisfied here.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed March 11, 2005
wolffsu . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney Drew J. Cochrane

Appealed to Circuit Court. Affirmed January 3, 2006.

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