STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WALTER GLENN, Complainant

ARBYS RESTAURANTS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 199551101, 199551593
EEOC Case Nos. 26G950976, 26G951292

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.

DECISION

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

Dated and mailed: April 30, 1998
glennwa.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Walter Glenn, began employment with the respondent, a restaurant, in July 1992 and was discharged from employment on April 6, 1995. During this period he worked as a salesperson, was promoted to the position of crew leader and then to assistant manager, before again returning to the position of crew leader. He had also left the employ of the respondent for a period of time during 1994. Glenn filed a complaint of discrimination against the respondent on March 9, 1995, while employed with the respondent. He filed a second complaint of discrimination against the respondent after his discharge on April 6, 1995.

After a two-day hearing, the ALJ issued a decision making extensive findings of fact and dismissing Glenn's complaints of discrimination. The ALJ concluded that Glenn failed to prove by a fair preponderance of the evidence that the respondent had discriminated against him because of his race (black) with respect to promotion, compensation, terms or conditions of employment, because of an arrest  record with respect to terms or conditions of employment and because he opposed a discriminatory practice under the Act, as alleged in his first complaint filed on March 9, 1995, and that Glenn had also failed to prove by a fair preponderance of the evidence that the respondent violated the Act by discriminating against him or discharging him from employment because he had filed a complaint under the Act, as alleged in his second complaint filed on April 17, 1995. The commission agrees.

Glenn has petitioned for a review of the ALJ's decision. His petition focuses on his claims that he was discriminated against because he opposed a discriminatory practice under the Act, and that he was discriminated against and discharged because he had filed a complaint with the Equal Rights Division.

Former baseball player, Hank Aaron, is one of the owners of the respondent, but has no day-to-day involvement in the respondent's business. Fred Fiorito, the respondent's chief operating officer, manages the daily activities of the business. Glenn asserts that because he called Hank Aaron and complained about the lack of any black general managers, he was subjected to unwarranted discipline. For instance, Glenn makes reference on appeal to a verbal warning he received on January 31, 1995, a counseling discussion held on February 14, 1995, a written warning issued to him on March 7, 1995, a 5-day suspension he was given on March 8, 1995, and a counseling session held with him on March 16, 1995, when he returned from the suspension.

The evidence does not support Glenn's claim that he was discriminated against for opposing a discriminatory practice under the Act. In early 1995, it came to Fiorito's attention that Glenn had contacted Hank Aaron, and had been bragging about it to employes in the restaurant. Fiorito contacted Aaron and was advised to sit down with Glenn to discuss his complaints as Aaron was not involved in management of the daily operation of the respondent and did not want to be involved. Fiorito asked Glenn why he had not come to him directly with his complaint and Glenn responded, "You wouldn't understand because you're a white guy." Fiorito orally warned Glenn that he was the top of the complaint procedure at the respondent and that the matter should have been brought to his attention.

In early February 1995, assistant manager John Tlachac brought to Fiorito's attention that Glenn had commented on January 17, 1995, in front of coworkers that "I don't need this job, my drug business is taking off, and I don't need Arbys," before leaving the store while on duty and going to a bar (Houlihan's) across the mall where he remained during the entire lunch hour shift drinking an unknown beverage. General manager Marie O'Connor was asked to investigate this matter by Fiorito. She questioned a couple of employes but they could not confirm Tlachac's statement. Fiorito therefore took no disciplinary action against Glenn.

On February 14, 1995, Glenn had been scheduled to work from 11 a.m. to closing. After the start of his shift he called the respondent twice, stating that he had a problem but would be in, before arriving at work at 3:20 p.m. Apparently, a friend of Glenn's and her baby had died in a fire during the morning and he was helping the friend's mother. When he arrived, O'Connor did counsel him that he should call earlier so other arrangements could be made, but she did not discipline him for this incident. Because she could tell that he was upset, O'Connor allowed Glenn to take the rest of the day off.

Glenn was issued a written warning on March 7, 1995. Although respondent's work rules require that an employe report his or her inability to work at least four hours prior to the start of the shift, Glenn, who was scheduled to work from 11 a.m. to 7 p.m., called at 8:50 a.m. on March 7 to say that he might not be in until 1 p.m. because he had to make payment arrangements for a court citation. He then reported to work at 11:15 a.m. and stated that he had to go to court at 2 p.m. Despite being told that if he left work it would be counted as an unexcused absence, Glenn left work at 2 p.m. and arrived back at 2:45 p.m. Because of this and earlier attendance violations in February 1995 for which a 5- day suspension had been waived, and the documented counseling session of February 14, Glenn was issued a written warning that the next unexcused absence or tardiness would result in termination.

After O'Connor had attempted to present Glenn with the written warning on March 7, 1995, and had stood up to leave to get back to work, Glenn stood up cheek to cheek with O'Connor and said very loudly, "I don't need this fuckin' job; this is shit. Fuck this." When all the employes had left that evening O'Connor called Fiorito and informed him that after refusing to sign the written warning Glenn started swearing, and what Glenn had said. Fiorito instructed O'Connor to suspend Glenn's employment when he arrived for work on March 8. O'Connor requested that Fiorito come to the store to carry out the suspension with her, but Fiorito was busy.

Crew leader, Jihad Rashad, was present in the mall area as a witness when O'Connor presented Glenn with the written warning on March 7 and prepared a statement to what he had witnessed. At the hearing, O'Connor testified that after presenting the warning to Glenn on March 7 she walked back to the store and was speaking to another employe, Tyrone Randall, when Glenn returned to get his coat and pushed into her as he was leaving. Glenn apparently argues that O'Connor's claim that she was shoved is "highly suspect, if not a blatant lie," because Rashad's statement as witness to the presentation of the written warning makes no mention of O'Connor being pushed or shoved. This argument is without merit. There is no evidence which indicates that Rashad was present to observe O'Connor and Glenn at the time O'Connor states she was pushed.

Glenn apparently further argues that because Fiorito knew Rashad's statement shows that Glenn had stated he was going to file a discrimination charge against the respondent when the respondent suspended him on March 8, 1995, and that the respondent "didn't want to turn over this statement but relented in light of the court ruling," this establishes that he was suspended because he had opposed a discriminatory practice under the Act. This argument is also without merit. First, the evidence shows that based upon its investigation of the March 7 incident, the respondent concluded that suspension of Glenn was warranted. Second, as far as the respondent "not wanting to turn over" Rashad's statement, the record merely shows that the respondent had objected to presenting a copy to Glenn at the hearing because it had not previously been requested during discovery. The ALJ agreed with the respondent that it had not been requested during discovery, but then went on to essentially state that he was judging Fiorito's credibility, and that if he had the document with him but did not produce it, this would be considered when determining his credibility. Counsel for the respondent then immediately indicated that the document would be presented.

Finally, citing only a partial segment of Fiorito's written summary of the counseling session held with him on March 16, 1995, when he returned from his March 8 suspension, Glenn argues that this shows that the respondent discriminated against him for opposing a discriminatory practice under the Act. Specifically, Glenn quotes the following segment of Fiorito's summary: "This meeting and (its) documentation was further warranted by Walter's prior threats to file a discrimination complaint..." This argument also fails to establish that Glenn was discriminated against for opposing a discriminatory practice under the Act. Glenn completely ignores Fiorito's next sentence where Fiorito explains, "It was my intent to further explain to Walter the nature of his violations without regard to any discrimination and that he created the situations that we were reacting to." The evidence shows as found by the ALJ, that Fiorito's intent was simply to explain and demonstrate to Glenn that his conduct was causing the discipline and that his race was not being considered in making these decisions.

Glenn was discharged on April 6, 1995, for violating a work rule against possession of alcohol on company premises after two small liquor bottles were found in his coat pocket. At the hearing Glenn denied that the liquor bottles were his. Glenn apparently theorizes that he was set up to be discharged on April 6, 1995, because one day earlier Fiorito may have spoken to Equal Rights Officer Susan Swearingen about his first complaint, and because during the morning on April 6 he had advised Swearingen that he would not settle but was going to pursue his first discrimination complaint and that Swearingen had said she would inform Fiorito.

The evidence fails to support Glenn's claim that he was discriminated against and discharged because he filed a complaint of discrimination against the respondent.

Marie O'Connor testified that at approximately 11:20 a.m. while working on April 6, she picked up Glenn's coat which had fallen on the floor and a small bottle of liquor fell out. O'Connor testified that she placed the liquor bottle back in the coat pocket, called district manager William Moeller and explained what happened, and a short while later Moeller called to say that he and Fiorito would come down to the store. Fiorito testified that he had been working at home that morning, and that he drove to the Mequon office to pick up Moeller before arriving at Grand Avenue Mall store at approximately 12:15 p.m. to investigate the matter. Fiorito testified that he looked into a coat pocket, found one bottle, and then found a second bottle in another pocket. Fiorito testified that about 1:30 p.m., after the lunch rush was over, he confronted Glenn with the liquor bottles which had been placed in an Arby's bag. Fiorito testified that Glenn stated they were his and that they were in his pocket from the night before. Fiorito testified that he informed Glenn that this was a major violation, that he was already on a 90-day probation, and that based on the facts gathered he was terminated. Further, Fiorito testified that after he advised Glenn of his termination Glenn asked for the bottles and his coat and he told Glenn that his coat would be retrieved but he needed to make a phone call. Fiorito testified that while Fiorito was on the phone with the company's attorney, Glenn demanded that he get his bottles back, that Glenn was advised he needed to sign a receipt to get the bottles back and that Glenn responded, "Fuck this," and walked out of the store. Even Glenn himself admits that he stated to Fiorito, "If that's supposed to be my liquor, give it here, it's mine." Finally, Fiorito also testified that it was later that afternoon while at his office that he received a call from Equal Rights Officer Swearingen regarding Glenn's first complaint of discrimination, and that at that time he advised her he had terminated Glenn earlier in the day.

On appeal Glenn attempts to call into question the respondent's testimony regarding the liquor bottles based upon Moeller's testimony that he had not seen two liquor bottles on April 6, only one. Moeller testified that it was later at the office that he first saw two liquor bottles. This attempt fails. The ALJ questioned Moeller about this and Moeller testified that he had not been present during the entire time that Fiorito was retrieving the bottles from Glenn's coat, but had gone to the front of the store during the process.

The ALJ, who was present at the hearing to observe the witnesses' testimony, found O'Connor, Fiorito, and Moeller to be highly credible witnesses but did not find Glenn to be a credible witness.

Consideration has also been given to other assertions raised on appeal by Glenn to support his claims of discrimination, including his assertion that the ALJ's decision "failed to mention evidence that Arby's created a separate category for only black persons at the company," and his assertion that "various independent witnesses had confirmed his version of many of these incidents." These assertions also fail.

Glenn apparently claims that the respondent created the position of associate manager for a black female, Delicia Love, an assistant manager, instead of making her the general manager at the Water Street store when the person who had been the general manager at the store resigned. Fiorito denied that the associate manager position had been created solely for black individuals, stating that the associate manager position was created for that store because it was determined that the talents of a general manager were not needed for that store due to its limited hours and days that it was open, lack of a "drive-through" service, fewer employes to manage and relative ease to operate.

Glenn points to testimony by Jennifer Farris who stated that she felt O'Connor was "being more watchful over (Glenn) than other crew leaders," that O'Connor made a racial remark in stating, "look what they do when they get hired," when she asked why more black managers were not hired, that O'Connor asked her if she heard that Glenn sold drugs and carried a pager, and that Glenn did not go over to the bar (Houlihan's). Glenn also points to testimony by Cheryl Denise Beard that she had not seen any liquor the day he was discharged. Glenn ignores the admission by Farris that when she had submitted her statement to the Equal Rights Division that she had stated that she had not noticed any difference in the way O'Connor treated Glenn compared to other employes. O'Connor was not questioned as to whether or not she had made the remark attributed to her by Farris. But assuming that she had, while inappropriate, there is no evidence which shows that O'Connor, who was a general manager herself, had any responsibility for hiring general managers. The record shows that O'Connor had been requested by Fiorito to investigate Tlachac's allegations about Glenn having a drug business and going to Houlihan's. Glenn was not disciplined based on Tlachac's allegations. Beard was a "fry girl" working in the front of the store and was not in a position to know what had occurred on April 6.

As found by the ALJ, the vast and overwhelming evidence demonstrates that the respondent did not discriminate against Glenn in violation of the Wisconsin Fair Employment Act. Accordingly, the decision of the ALJ has been affirmed.

cc: Michael T. Sheedy
Julie M. Buchanan

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