ALFRIEDA WILSON, Complainant

WOODMAN'S WEST, 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 conclusions in that decision as its own, except that it makes the following modifications:

The Memorandum Opinion section is deleted and the following substituted:

Complainant Alfrieda Wilson contends that she was denied the full and equal enjoyment of a public place of accommodation because of her race, within the meaning of Wis. Stat. § 106.52(3)(a), when members of respondent's management team detained her, asked her to show them a copy of her receipt, and searched her grocery bags.

In order to sustain her burden of proof, complainant would have to show that she was treated less favorably than similarly situated non- minority shoppers in regard to the subject incident.

Complainant first argues that there is direct evidence to support her charge. However, respondent's managers did not refer to complainant's race during the incident in question. In addition, although the complainant represents that manager Martinson admitted in his deposition that he stopped to question complainant because she is black, this representation is not accurate. The more reasonable interpretation of Martinson's deposition testimony is that it was his impression that the complainant was upset during his questioning of her because she thought he was motivated by her race. Finally, complainant points to Martinson's use of the term "Negro" in his deposition testimony to describe her race, as contrasted with his use of the term "black" to describe others of her race, as direct evidence of his bias. However, since complainant alleges that Martinson treated her less favorably than other blacks in this regard, this treatment would necessarily be based on some factor other than race.

Complainant has also failed to show less favorable treatment by indirect or circumstantial evidence. The record shows, consistent with the administrative law judge's findings, that Martinson was reasonably justified in suspecting that complainant had engaged in shoplifting and for questioning her as a result, and that he had handled similar suspicions in regard to non-minority shoppers in a comparable manner.

Finally, complainant attempted to prove that respondent violated Wis. Stat. § 106.52(3)(a) through statistical evidence which she argues demonstrates respondent's racial bias in its efforts to identify shoplifters. However, even if this type of evidence could properly be utilized to establish a violation of § 106.52(3)(a), and even if the statistical evidence offered here were valid and reliable, the underlying data relates only to those of respondent's customers who, unlike complainant, were actually accused of shoplifting and referred for prosecution.

The commission concludes that the complainant has failed to sustain her burden to prove that respondent violated Wis. Stat. § 106.52(3)(a) as alleged. As a result of this conclusion, it is not necessary to address the defense offered by respondent under the Retail Immunity Statute, i.e., Wis. Stat. § 943.50(3).

The last word in Conclusion of Law 1. is modified from "At" to "Act."

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

Dated and mailed Jnauary 16, 2004
wilsoal . rmd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc:
Attorney Dennis M. White

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/01/20