ANGELA M THOMA, Complainant
LJ'S BAD PENNY BAR & CAFE, Respondent A
LORI LENZ, Respondent B
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:
1. In paragraph 6 of the administrative law judge's FINDINGS OF FACT the date "January 2006" is deleted and the date "January 2005" is substituted therefor.
2. In paragraph 7 of the administrative law judge's FINDINGS OF FACT the date "April 25, 2006" is deleted and the date "April 25, 2005" is substituted therefor.
3. In paragraph 9 of the administrative law judge's FINDINGS OF FACT the date "May 2, 2008" is deleted and the date "May 2, 2005" is substituted therefor.
4. In paragraph 10 of the administrative law judge's FINDINGS OF FACT the date "May 4, 2008" is deleted and the date "May 4, 2005" is substituted therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 27, 2009
thomaan . : 164 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The issue presented is whether the respondent's actions in discharging the complainant for seeking a restraining order against one of the respondent's customers were in violation of the Fair Employment Act. The complainant contends that she established unlawful discrimination under both a disparate impact and a disparate treatment theory. For the reasons set forth below, the commission disagrees and concludes that dismissal of the complaint was appropriate.
Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Disparate impact must be proved by statistical evidence, significant to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Bedynek-Stumm v. County of Dane (LIRC, Oct. 10, 2003). To make out a prima facie case of disparate impact, a complainant must show that an employment practice or selection device (for example, a passing score on a certain test, or a high school diploma requirement) selects employees or applicants in a pattern which is significantly different from the pattern of a particular minority in the applicant pool. Moncrief v. Gardner Baking Company (LIRC, July 1, 1992); citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the complainant meets this burden, the employer may attempt to rebut the prima facie case by way of evidence that the employment practice or selection device has a manifest relationship to the employment in question. Id.
A single employment decision, involving only one employee, does not constitute the type of facially neutral policy or practice that can be the subject of disparate impact analysis. "There is no such thing as an 'individual disparate impact case.'" Abaunza v. Neenah Foundry (LIRC, March 30, 1993). Rather, for the purposes of disparate impact analysis, an employment practice consists of something in which an employer regularly or repeatedly engages. Turman v. W.H. Brady Company (LIRC, Oct. 17, 1985).
The respondent in this case has no written policy regarding employees who seek restraining orders against customers and has never discharged any one else for doing so. The decision to discharge the complainant was an isolated decision that did not reflect a regular policy or practice.
In the brief in support of her petition for review the complainant makes the argument that a single discriminatory decision can indeed set a policy. In support of her contention the complainant cites Council 31 v. Ward, 978 F.2d 373, 375 (7th Cir. 1992), in which the court held, "To the extent that members of a protected class can show significant disparities stemming from a single decision, however, there is no reason that decision should not be actionable." However, as the term "significant disparities" implies, Council 31 addressed a situation in which a single decision--a state agency's decision to concentrate a layoff in a major metropolitan area in which there was a disproportionately high proportion of black employees compared to other parts of the state--affected many employees. Council 31 does not support a conclusion that a single decision affecting a single employee can form the basis for a disparate impact claim.
The complainant also argues that the respondent's owner, Lisa Lenz, indicated that she would discharge any employee in the future who pursues an injunction against a customer which Lenz believed was improper. The complainant therefore asserts that the respondent did in fact have a policy which would be applied to more than one person. However, while Ms. Lenz did state that she would discharge any employee who pursued an injunction against a customer, her explanation of the circumstances under which she would do so was a complicated one containing many caveats. In an affidavit filed by the respondent in support of a motion to dismiss, Ms. Lenz stated:
Had an employee of mine engaged in any form of civil litigation against customers that would have a negative impact on my business unless I fired that employee, unless the law specifically prohibits me from doing so, I would likely fire that employee, unless the employee was clearly in the right and was clearly being victimized.
(Ex. 16, para. 34).
The affidavit went on to specify situations in which Ms. Lenz believed that legal disputes with customers would warrant discharge. All of these situations relied upon the customer threatening not to patronize the business because of it. (Ex. 16, para. 35-37).
Ms. Lenz further stated:
Ms. Thoma clearly let me know that Mr. Blankenberg had not actually assaulted her, and she clearly let me know that she knew that he would not actually hurt her. If she had said that he had actually assaulted her, I would have backed her in this case, notwithstanding customer disapproval.
(Ex. 16, para. 38).
When asked at the hearing if she would discharge a male employee under the same circumstances, Ms. Lenz testified that if the circumstances were identical in every respect "and they didn't do their job and this was the straw that broke the--yes, I would." (TR, at 201). On cross examination the same question was asked, and Ms. Lenz offered the following response:
If it was a male or female, if they were detrimental to my business, if they weren't doing their work is what I said. If they weren't doing what they were supposed to do and they weren't bringing in the customers and they were driving the customers out of the door, yes, I would fire male or female.
(TR, at 208-209).
It is clear from Ms. Lenz's testimony that she did not then have a policy, and
did not adopt a policy to be applied in the future, that no employee who filed a
restraining order against a customer could work for the respondent, and that the
decision to discharge the complainant was an individual decision based on
individual circumstances. Ms. Lenz testified, essentially, that she would
discharge anyone who took legal action against a customer, not limited to a
restraining order, (1) if she was
already dissatisfied with the employee's work, if she deemed the legal action to
be detrimental to her business and if, in Ms. Lenz's judgment, the employee's
actions were not justified. This formulation is simply too arbitrary, subjective (2) and
ad hoc to constitute a "policy," and the commission is in full agreement with the administrative law judge that the decision to discharge the complainant was "a reflection of a particular set of circumstances that arose at a single time, not a reflection of a practice or procedure adopted by Lenz." (Memorandum opinion, p. 6).
The crux of the complainant's disparate treatment argument is that, in deciding to discharge the complainant, the respondent was motivated by gender stereotypes regarding female victims of domestic abuse, and of male perpetrators of abuse. Citing the testimony of her expert witness, the complainant maintains that the most common stereotype about female domestic abuse victims is that they are lying or exaggerating in order to "get back" at the abuser. She maintains that because Ms. Lenz did not believe she was "clearly being victimized," Lenz had to be relying on stereotypes. She also argues that the administrative law judge failed to note that Ms. Lenz and Mr. Blankenberg were personal friends, and that where a third person knows the abuser she is more likely to believe the victim is lying.
However, Ms. Lenz's testimony contains nothing to suggest that she was relying on such stereotypes or assumptions. Rather, Ms. Lenz indicated that, in reaching the conclusion that the injunction was not warranted, she was relying on the complainant's actual statement that she knew Blankenberg would not hurt her. Lenz further testified that the reason for the discharge was that the complainant's personal life was already cutting into her business and that she thought the injunction against Blankenberg would have a further adverse effect. The administrative law judge found Ms. Lenz's testimony to be credible, and the commission agrees with that assessment. Ms. Lenz's decision to discharge the complainant was, therefore, not based upon negative stereotypes about females who filed restraining orders, but was based upon her belief that the complainant's filing a restraining order against a customer would be detrimental to her business.
Even if the commission were to decide that Ms. Lenz's testimony on these points was not credible, there is nothing in the record to suggest that she was relying on the type of stereotypes mentioned by the complainant, and a conclusion that this was the case would require the commission to engage in speculation as to the respondent's motives. The leading Title VII case addressing the use of gender stereotypes, which was cited by the administrative law judge in his memorandum opinion, involved a situation in which the evidence revealed that the respondent had actually made remarks displaying stereotypical sexist thinking. In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989), in which a female employee alleged that she was denied partnership based on her sex, the evidence revealed that the respondent had commented that she was too masculine and needed charm school. Similarly, in Back v. Hastings on Hudson Union Free Sch. Dist., 36 F.3d 107, 121 (2nd Cir. 2004), the complainant, a young mother, was denied tenure after the respondent told her that the job was not suitable for a mother. In neither case was it necessary to rely on an assumption that the adverse decision was based upon stereotypical thinking; the evidence plainly revealed that it was.
Attorney Aaron Halstead
Attorney Maya Raghu
Attorney Eric A. Tate
Attorney John P. McNamara
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(1)( Back ) Even if the commission were to conclude that the respondent did have an official policy or practice, it would be more accurate to characterize that "policy" as a policy of discharging an employee who takes legal action of any kind against a customer rather than as a policy of discharging an employee who seeks a domestic abuse injunction. Ms. Lenz's testimony and sworn affidavit indicate that her displeasure with the complainant's conduct did not stem from the specific fact that she was requesting a restraining order, but from the fact that she was taking legal action against a customer.
(2)( Back ) The complainant maintains that subjective decision making can reflect inherent stereotypes. While this may be true, the commission rejects that argument as inapplicable to the facts of this case.