GWENDOLYN ADAMS, Complainant

BOSTON STORE, 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 in order to more completely and accurately reflect the evidence of record:

The FINDINGS OF FACT section is deleted and the following substituted:

1. The complainant, Adams, a black female, was hired by the respondent in February of 2001 to work in its Northridge Mall location as a sales associate in the petites department. Her first supervisor was Deanna.

2. Adams' performance as a sales associate was considered by respondent to be satisfactory.

3. In August of 2001, Adams was selected by respondent to participate in its supervisor/manager-in-training program (SMT). Adams told Deanna that she appreciated the opportunity for advancement.

4. SMT was designed as a self-guided, self-paced training program consisting of more than 30 training units or modules to be completed by each trainee during work hours. Each trainee's supervisor/mentor was responsible for determining whether the trainee had successfully completed a module and was eligible as a result to advance to the next one. Respondent encouraged supervisors/mentors to meet with trainees once each week to discuss their progress.

5. During August of 2001, Deanna left her position with respondent and was replaced by Jon Sison.

6. After August of 2001, Adams complained several times to Pam Marshall, the store manager, that Sison was not properly assisting with, or monitoring, her training. Sison reported to Marshall that Adams had not demonstrated to him that she understood the content of the first module. Marshall observed during the several meetings she convened to discuss Adams' SMT training, that Adams resisted taking direction or criticism from Sison despite his efforts to communicate with her. Marshall considered Sison her most experienced manager.

7. In January or February of 2002, Sison left his position with respondent. At or around that time, Adams expressed to Marshall her belief that, despite the fact that she had not completed the SMT program, she was qualified to be a manager. The shoe department manager position was vacant at that time. Marshall decided to give Adams the opportunity to demonstrate her management abilities by assigning her, on a temporary basis, to manage the shoe department, under Marshall's supervision, and with Marshall's assistance in areas such as scheduling. This temporary assignment was intended to last four to six weeks.

8. Marshall observed during this temporary assignment that Adams had difficulty prioritizing her work tasks which caused her much stress and frustration.

9. After the temporary assignment ended in early April of 2002, Marshall assigned Adams to work in the children's department with Amy Vogel, the most experienced manager at the Northridge location, and to continue her SMT training under Vogel's guidance. Marshall directed Vogel to monitor Adams' progress closely and to provide her ample work time to complete her training modules. During the two months they worked together, both Adams and Vogel reported to Marshall that things were going fine.

10. On or around May 25, 2002, Adams applied for a merchandising assistant position in respondent's business office. Vogel was asked to provide a reference. In that reference, Vogel stated that Adams was very efficient when initiating markdowns and merchandising the floor, and communicated well with supervisors, but that opportunities for improvement included punctuality and her manner of communicating with other sales associates. Adams was not hired by respondent for this position.

11. During 2002, Adams was frequently tardy. On May 23, 2002, Adams was warned that her continued tardiness was unacceptable and had an adverse impact on other employees. A disciplinary warning was prepared to address Adams' tardiness but it was not issued due to her leave of absence/resignation in June of 2002. After May 23, Adams was again tardy on June 7, 2002.

12. On June 8, 2002, Adams submitted a written resignation to Marshall. Marshall encouraged Adams to take a two-week unpaid leave of absence to make sure that this is what she wanted to do, and indicated that respondent would like to work with Adams to keep her as an employee.

13. Some time after June 8, 2002, Adams requested transfer to respondent's Grand Avenue mall location. This request was denied because no SMT vacancies existed at that location at the time.

14. During the last months of her employment, Adams was under investigation for allegedly falsifying a rent assistance form completed for her by the respondent by modifying the amount of her hourly pay.

15. Adams submitted a written resignation on June 24, 2002. Respondent accepted this resignation.

16. Roberto Valdez, a male Hispanic employee, successfully completed the SMT program during 2002. Valdez was assigned to a different department/supervisor than Adams. Valdez aggressively pursued completion of the SMT modules.

17. During the time period relevant here, respondent employed many black workers as well as a black supervisor at its Northridge location.

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

Dated and mailed August 31, 2005
adamsgw . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

"Probable cause," for purposes of the WFEA, is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).

In regard to the Grand Avenue SMT position, the record does not support a conclusion that a vacancy in such a position existed at the time Adams presented her request for transfer to Steve Shimp, respondent's regional human resources director. Obviously, since she did not prove the existence of a vacancy, Adams could not prove that she was treated less favorably than non-minorities or males when it was filled.

In regard to the merchandising assistant position, Adams, who has the burden of proof, failed to offer any evidence as to the race, sex, or qualifications of the successful candidate. In the absence of such evidence, Adams has failed to prove that she was treated less favorably on the basis of her race or sex.

Adams alleges that, in regard to the merchandising assistant position, Vogel discriminated against her by mentioning in the reference she provided that Adams could improve her performance in the areas of punctuality and communicating with sales associates. Although, in her petition, Adams appears to be asserting that she had no problems with punctuality during 2002, she testified at hearing that she was tardy nearly every day, and her attendance record (respondent's exhibit #1) bears this out. Moreover, Adams' refusal to take direction or criticism from Sison or to communicate with him except through Marshall during the latter weeks of their working relationship, and the notation in the February 2002 performance evaluation offered into evidence by Adams to the effect that she should focus on being more tactful when dealing with difficult customers, tend to support Vogel's observation that Adams' communication skills could be improved. Finally, there is nothing in the record to link the comments made by Vogel, a successful female manager of various departments in a store with a large minority workforce, to Adams' race or sex.

Adams also alleges that she was discriminated against when respondent failed to provide her with proper SMT training. However, respondent, through Marshall, the store manager, intervened and attempted to resolve the apparent personality conflict to which both Adams and Sison contributed by their failure or refusal to communicate with each other after a disagreement developed regarding the quality of Adams' training product. Marshall then gave Adams the opportunity, which Adams welcomed and insisted she could handle despite her failure to complete the SMT training, to manage her own department on a temporary basis with oversight and assistance from Marshall. After observing Adams' difficulties establishing priorities during this temporary assignment and the stress this caused her, Marshall assigned Adams to complete her SMT training with Vogel, whom Marshall regarded as her strongest manager. During two months of training together, both Vogel and Adams reported to Marshall that things were going fine. Adams' testimony that Vogel told her that she did not know how to train her and offered her no training as a result, is simply not credible given Vogel's experience, as well as Vogel's and Adams' repeated statements to Marshall that the training process was proceeding well. Adams had not been reluctant in the past to bring her concerns to Marshall's attention, with positive results.

It should also be noted that the SMT training program was not designed as a supervisor/mentor-guided program but instead as a self-guided/self-paced program. Adams offered no proof that she regularly and diligently studied the training materials and capably learned their contents, or that she was denied a reasonable amount of work time to do so. Although the record shows that Valdez, a Hispanic male, successfully completed the SMT training program during the latter months of 2001, the complainant failed to show that she showed the degree of initiative, competence, and motivation Marshall testified Valdez had exhibited in his training, or that, overall, Valdez was provided more work time or more assistance than she was.

Finally, Adams is apparently contending that her resignation, compelled by the discrimination to which she was subjected, was a constructive discharge.

To prove a constructive discharge, the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004). However, as concluded above, Adams failed to prove that the respondent was motivated by a discriminatory animus in regard to any of the allegations she cites as the basis for her complaint. Moreover, the evidence of record shows that the environment in which Adams worked during the last several months of her employment, under the supervision of Marshall and Vogel, was supportive and tolerant.

The commission agrees with the administrative law judge that the complainant failed to show probable cause to believe that she was discriminated against as alleged.

cc: Attorney Steven B. Rynecki

Appealed to Circuit Court.  Affirmed May 4, 2006.

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