Wis.LIRC ER Decision: Eastwood, Sharon - May 11, 2001 - Retaliation - discrimination for previous complaint of alleged age discrimination - demotion 4 days after age discrimination complaint, filed 1 1/2 years before, was dismissed - while supervisor learned of complaint before demotion, she had made decision to demote complainant before this - reasons advanced for demotion not shown to be pretext

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

SHARON L. EASTWOOD, Complainant

WAL-MART DISCOUNT CITIES, Respondent A

WAL-MART INC, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199902307, EEOC Case No. 26G991412

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 May 11, 2001
eastwsh . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Sharon Eastwood, petitions for a review of the ALJ's determination that the respondent did not discriminate against her by demoting her from the position of shoe department manager because she made a complaint under the Act.

In April 1998, Eastwood was promoted to the position of manager of the shoe department at the respondent's store in Stevens Point. Previously, in April 1997 Eastwood had filed with the Equal Rights Division a complaint against the respondent alleging age discrimination. An order was issued dismissing that complaint on December 11, 1998. On December 15, 1998, Julia Bushman-Mayer demoted Eastwood from the position of shoe department manager. Bushman- Mayer was a district manager who had responsibility for the shoe and jewelry departments at several of the respondent's stores.

The ALJ determined that Eastwood's complaint of discrimination was not a factor in the decision to demote her. The ALJ found that by December 1998, Bushman-Mayer had concluded that Eastwood was not going to follow company policy regarding the display, rotation and sale of merchandise in the shoe department. The ALJ found that on or about December 15, 1998, Bushman-Mayer decided she would demote Eastwood and then informed Bob Peanasky, the store manager, of that decision, before ever learning anything about Eastwood's earlier complaint of discrimination.

Eastwood argues in her petition for review that Bushman-Mayer learned about her discrimination complaint and then retaliated against her by demoting her. As evidence, Eastwood argues that it was Bushman-Mayer's testimony that she told Peanasky that she was thinking about removing Eastwood from the position as shoe department manager, that Peanasky then informed Bushman-Mayer about the discrimination complaint and that it was after he told Bushman-Mayer about the discrimination complaint that Bushman-Mayer demoted her. Further, Eastwood argues that proof that her demotion was in retaliation for filing a discrimination complaint is evident by the pretextual nature of the basis for her demotion. Eastwood argues that the basis for her demotion was poor sales in the shoe department (i.e., winter boots), but this was caused by unseasonably warm weather and not something she could control, that the demotion was not made after normal progressive discipline, that she had been complimented for making a positive effort to improve morale and sales, and that the alleged concerns of receiving coaching on coverage were not valid because coverage was provided.

The evidence does not support Eastwood's claim that she was demoted in retaliation for making a complaint of discrimination against the respondent. Bushman-Mayer advised Eastwood of her demotion after learning about her discrimination complaint from Peanasky, but Bushman-Mayer had already made the decision to demote her. Tr. 103. That Bushman-Mayer told Peanasky she was "thinking" about taking Eastwood out of the department manager position does not change the fact that she had already decided to demote Eastwood. Indeed, Bushman-Mayer had already talked to her supervisor about the demotion decision before speaking to Peanasky. Tr. 103.

As for unseasonably warm weather causing poor sales in the shoe department, the evidence indicates that the cause for poor sales went beyond the weather. In comparison to sales for the prior year, sales had decreased during Eastwood's tenure as manager of the shoe department in the months of June, August, September, October and November. Moreover, Bushman-Mayer testified that Eastwood was not following company policy with respect to the display, rotation and signage of merchandise, something that had been gone over with Eastwood, and that this was influencing sales in Eastwood's department "big time."

The fact that "normal progressive discipline" was not followed in this case does not give rise to a suggestion that Eastwood was demoted in retaliation for making a complaint against the respondent. During regular visits to the Stevens Point store Bushman-Mayer had pointed out to Eastwood over the course of her tenure as department manager where company policies were not being followed while on walks with her through the shoe department and/or by leaving written store tour notes of what needed to be done in the department. However, Bushman-Mayer found that Eastwood was just not doing what the respondent expected of a department manager. Furthermore, Bushman-Mayer testified that it was her understanding following her December 15, 1998 visit and discussion with Eastwood about her performance that Eastwood agreed to the demotion. Bushman-Mayer did occasionally compliment Eastwood's efforts, but this was an attempt to boost her morale.

Finally, while Eastwood contends that her department had proper coverage during a week that she had taken vacation, her own comments on the "coaching for improvement form" indicate that she was in agreement that tasks that were to have been performed had not been performed.

cc: Guy-Robert Detlefsen, Jr.
William J. Holloway

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uploaded 2001/05/11