CRUSHON HUSTON, Complainant

PIGGLY WIGGLY/LENA'S FOOD MARKET, 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 makes the following:

1. The respondent, Piggly Wiggly/Lena's Food Market, employs a workforce to operate several retail grocery stores in Milwaukee, Wisconsin.

2. The complainant, Crushon Huston, is an individual whose date of birth is June 4, 1955.

3. Huston applied to Piggly Wiggly for a position as a deli clerk/cook. He was interviewed and hired for the position, and placed at its Capitol Drive store on the second shift, from 2 p.m. to 10 p.m. Kozat Martin, a human resources employee for Piggly Wiggly, was involved in his hiring. He began his employment on March 15, 2010. At that time he was 54 years old.

4. Huston was supervised by Nathaniel Eubanks, the deli supervisor, and Andy (last name unknown), the manager of the Capitol Drive store. Eubanks and Andy were under 40 years old.

5. Piggly Wiggly maintained an employee handbook and provided a copy of the handbook to Huston prior to his first day of employment. Under the handbook, Huston, as a new employee, was considered to be in an "introductory period," during which his supervisor would "make a decision if [his] employment with the Company is in the best interest of the store."

6. The handbook contained a provision on equal employment opportunity stating that the company was committed to not discriminate based on age and other protected categories. The handbook also provided a procedure for lodging complaints relating to allegations of harassment or discrimination, which was to report the matter to the store manager or to human resources.

7. At no time during his employment did Huston complain of discrimination on the basis of age to the company's management or human resources department.

8. Huston worked with five to seven other employees in the deli area. These co-employees were under the age of 40. They did not remain at the store after 10 p.m. On a number of occasions, however, Huston did remain at work after his shift ended at 10 p.m. to carry out Eubanks' request that Huston make sure when he left that he had cleaned the store, and the area where he worked, including the stove. Huston was paid for the time he worked beyond his normal hours.

9. On April 14, 2010, Andy confronted Huston at work and accused him of having stolen a roasted chicken a few days earlier. Huston denied the accusation, and Andy attempted to demonstrate to Huston video evidence of his having taken a roasted chicken, but after spending some time reviewing surveillance video, he was unable to show Huston any evidence that he had taken a chicken.

10. Also on April 14, 2010, Andy and Eubanks met with human resources employee Martin, and indicated to her that they had decided to terminate Huston's employment because he was failing in his responsibility to keep his work area clean, and the first shift crew had to clean up the area when they arrived because of Huston's failure to do his job properly. Martin agreed to give Huston a notice of termination.

11. Later on April 14, 2010, Huston had a meeting with Andy and Martin, in which Martin handed Huston a notice of termination of employment indicating that the reason for termination was "not a good fit," and noting that Huston was still in his probationary period. In this meeting Andy did not repeat his accusation of theft.

12. Huston's age was not a factor in Piggly Wiggly's termination of Huston's employment.

2. The Complainant is an individual in a protected category and was an employee of the Respondent within the meaning of the Wisconsin Fair Employment Act.

3.  The Complainant has failed to show probable cause to believe that the Respondent discriminated against him by terminating his employment because of age, in violation of the Wisconsin Fair Employment Act.

The complaint is dismissed with prejudice.

Dated and mailed February 28, 2013
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BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Huston's case for showing probable cause contained no direct evidence of discriminatory intent by Piggly Wiggly. The only circumstantial evidence Huston presented was that at age 54 he was the only employee in the deli department of the Capitol Drive store who was within the age group protected under the Wisconsin Fair Employment Act, and that the two individuals who decided to discharge him were not in the protected age group. Any inference of age discrimination based on that evidence is undercut by the fact that Piggly Wiggly hired Huston only a few weeks before it discharged him. A willingness to hire Huston at age 54 is persuasive circumstantial evidence against finding age as a factor in his discharge one month later. See, Rudd v. Watson Pharmaceuticals, ERD Case No. CR200702388 (LIRC May 27, 2010), citing Rand v. CF Industries, Inc., 42 F.3d 1139 (7th cir. 1994) ("It seems rather suspect to claim that the company that hired him at age 47 had suddenly developed an aversion to older people two years later").

Huston also failed to show probable cause by the indirect method of proof. Under that method, a complainant's burden is first to present the elements of a prima facie case. The burden would then shift to the employer to articulate a legitimate nondiscriminatory reason for the adverse action. The burden would then shift back to the complainant to show that the reason offered by the employer was a pretext for discrimination. Puetz Motor Sales v. LIRC, 126 Wis.2d 168, 172-173, 376 N.W.2d 372 (Ct App. 1985). If, however, in the presentation of the evidence the employer articulates a legitimate nondiscriminatory reason for discharge, it no longer matters whether the complainant has established a prima facie case; the case would proceed directly to consideration of the ultimate factual inquiry. Gentilli v. Badger Coaches, ERD Case No. 86-01411 (LIRC July 12, 1990), aff'd sub nom. Gentilli v. LIRC (Wis. Cir. Ct. Dane County Jan. 15, 1991). That inquiry, however, is often still focused on whether the employer's proffered nondiscriminatory reason is false or a pretext for discrimination. Binversie v. Alaark Mfg Corp., ERD Case No. 199901928 (LIRC June 27, 2001); Puetz Motor Sales, supra, at 175.

Piggly Wiggly offered a nondiscriminatory reason for discharging Huston, which was that it was not satisfied with his performance cleaning the work area in the store at the end of his shift.

Huston failed to show that this was a pretext for discrimination. He insisted that he cleaned the work area, but beyond giving his own opinion he provided no evidence that Piggly Wiggly's opinion to the contrary was not sincere, or was not its true reason for discharging him. While it is true that Huston was treated unfavorably compared to the deli workers who were under the age of 40, in that he was fired and they were not, he failed to show that any of the deli workers was similarly situated to him. Stern v. LIRC, (Wis. Cir. Ct. Dane County June 5, 2009); Gruebling v. Wisconsin Bell, ERD Case No. CR200500835 (LIRC Aug. 26, 2011). A similarly situated employee is one who is "directly comparable to [the complainant] in all material respects." Gunty v. City of Waukesha, ERD Case No. 200401540 (LIRC March 31, 2010), quoting Grayson v. Oneill, 308 F.3d 734, 808, 819 (7th Cir. 2002). Given that Piggly Wiggly has proffered Huston's failure to clean his work area as the reason for termination, the attempt to show that reason to be a pretext would require a comparison in treatment between Huston and a younger employee who was similarly situated in performing the job of cleaning the work area. By Huston's own testimony, however, none of the other deli workers stayed and cleaned the store, as he had done, leaving Huston with no basis on which to argue that he cleaned the store as well as or better than a younger employee, but received comparatively unfavorable treatment.

Huston's evidence draws no relevant comparisons with any other employee not in the protected group that would allow a reasonable person to isolate age as the factor that probably accounted for a difference in treatment. The commission therefore finds that Huston has not shown probable cause to believe that his termination was the result of discrimination because of age.

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