Wis.LIRC ER Decision: Vang - September 30, 1999 - Race discrimination, Creed discrimination (Hmong ancestry) - Public accommodations

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

KOUA VANG, Complainant

LAEMMRICH COMMUNITY FUNERAL HOME, Respondent

PUBLIC ACCOMMODATION DECISION
ERD Case No. 199704482

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The administrative law judge's CONCLUSIONS OF LAW are deleted and the following substituted therefor:

1. The respondent is a place of business within the meaning of the Public Accommodations and Amusements Act (hereinafter "Act.")

2. The respondent did not violate the Act by denying the complainant the full and equal enjoyment of a place of public accommodation based upon his race or by giving preferential treatment to non-Hmong customers.

3. The respondent did not violate the Act by denying the complainant the full and equal enjoyment of a place of public accommodation based upon his national origin or by giving preferential treatment to non-Laotian customers.

4. The respondent did not violate the Act by denying the complainant the full and equal enjoyment of a place of public accommodation based upon his creed or by giving preferential treatment to customers not of Hmong cultural ancestry.

DECISION

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

Dated and mailed September 30, 1999
vangko.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the complainant argues that the administrative law judge's decision is in error, and is based upon an "incomplete and credulous" reading of the respondent's evidence. Specifically, the complainant argues that Mr. Fahrenkrug's testimony is not credible. He contends that Mr. Fahrenkrug understood the 24-hour visitation schedule when he first spoke with the complainant on Monday night, but only refused to serve the complainant after talking to other funeral directors who told him about the need to remodel after serving Hmong clients. The complainant also speculates that Mr. Fahrenkrug may have been instructed by higher management not to handle the funeral. He maintains, generally, that the respondent's decision was motivated by its ignorance of Hmong traditions and customs, that it was racially motivated, and that economics had nothing to do with it.

The commission has considered the complainant's arguments, but finds them unpersuasive. It is undisputed that on Monday night Mr. Fahrenkrug was aware of the complainant's race, national origin, and creed. Moreover, he understood that the complainant required three days of visitation, that he wished to serve food and alcohol on the premises, and that there would be the sacrifice of a chicken. With full knowledge of all of these factors, Mr. Fahrenkrug agreed that the complainant could have the use of his funeral home for his mother's funeral. If, as the complainant suggests, Mr. Fahrenkrug was motivated to deny him use of the funeral home based upon racial and ethnic bias and due to concerns regarding potential damage to his facility, he could easily have done so during their original meeting, as another local funeral director had already done. The fact that Mr. Fahrenkrug originally agreed to accommodate the complainant lends credence to his testimony that his reason for ultimately denying the complainant the use of the funeral home was not based upon any of the factors cited by the complainant, but was because he subsequently learned the complainant intended to conduct around-the-clock visitation for nearly three days, which would have severely strained the respondent's staffing abilities.

In his petition the complainant insists that he told Mr. Fahrenkrug about the 24-hour schedule on Monday night and that Mr. Fahrenkrug was aware of this prior to their meeting Tuesday morning. However, the commission agrees with the administrative law judge that Mr. Fahrenkrug's denial of any awareness of the 24-hour visitation schedule was credible. It is clear from the record that Mr. Fahrenkrug and the complainant had some difficulty communicating due to the language barrier between them, and while the complainant may believe that he notified Mr. Fahrenkrug of his visitation needs, the commission sees no reason to doubt Mr. Fahrenkrug's testimony to the contrary. While the complainant testified that he showed Mr. Fahrenkrug the handwritten schedule and that Mr. Fahrenkrug made notations on the bottom of that document, other witnesses agree that the notations in question were not made by Mr. Fahrenkrug, but by Mr. Westmor, the funeral director with whom the complainant originally spoke. It, therefore, appears that the complainant may have confused Mr. Fahrenkrug with Mr. Westmor when asserting that Mr. Fahrenkrug was shown the schedule on Monday evening. Further, while the complainant points out that his nephew, Tou Chao Vang, also testified that Mr. Fahrenkrug saw the schedule and did not object to it, Mr. Vang failed to elaborate upon this assertion and agreed that he did not take part in the conversation between his uncle and Mr. Fahrenkrug. Upon consideration of all the facts and circumstances, the commission is simply unpersuaded that Mr. Fahrenkrug understood that the complainant contemplated a 24-hour visitation.

The complainant also makes the argument that, if Mr. Fahrenkrug's reluctance to handle the funeral was based upon scheduling he would have said as much to Ms. Stark, the complainant's mother's social worker, instead of telling her there was a potential for conflict with other funerals. Again, the commission disagrees. Mr. Fahrenkrug's alleged statement to Ms. Stark to the effect that he could not accommodate the complainant because he may have other clients over the weekend and could not tie up the funeral parlor is not inconsistent with his testimony that a 24-hour visitation schedule was untenable because it would require him to be constantly present without a break and would interfere with his ability to serve other clients, should that need arise. While Mr. Fahrenkrug may not have specifically explained the nature of his scheduling difficulties to Ms. Stark, this factor does not lead the commission to believe that he was motivated by discriminatory factors, the complainant's arguments to the contrary notwithstanding.

In concluding that the respondent did not discriminate against the complainant, the commission also finds credible Mr. Fahrenkrug's testimony that he offered the complainant an opportunity to have a 3-day visitation on an altered schedule, from 8:00 a.m. until midnight each day, rather than around-the-clock, but the complainant rejected this suggestion. Mr. Fahrenkrug's willingness to work with the complainant under these terms indicates that he was not motivated by discriminatory animus, but was genuinely concerned about the prospect of attempting to staff a 24-hour visitation for nearly three straight days. The commission is persuaded that Mr. Fahrenkrug's efforts to accommodate the complainant in this manner, along with his apologies to the complainant and his assistance in finding the complainant an alternate venue for his mother's funeral, strongly weigh against any finding of discrimination.

For all of these reasons, the commission concludes that the complainant has failed to establish that he was denied the full and equal enjoyment of a place of public accommodation, as alleged. The dismissal of the complaint is, therefore, affirmed.

cc:
Robert W. Swain, Jr.
Tony J. Renning

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