State of Wisconsin

Labor and Industry Review Commission

Michael Young	Public Accommodation Decision^[1]
Complainant
Kwik Trip, Inc.
Respondent	Dated and Mailed:
ERD Case No. CR201501862	September 21, 2017
	youngmi.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complaint in this matter is dismissed.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that he was denied the full and equal enjoyment of a public place of accommodation or amusement, in violation of the Wisconsin Public Accommodations and Amusements Law (hereinafter “WPAAL”).  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding that no violation of the WPAAL was established.  A timely petition for commission review was filed.  The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing.  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.

Memorandum Opinion

The WPAAL defines the term “public place of accommodation or amusement” in the following manner:

“Public place of accommodation or amusement” shall be interpreted broadly to include, but not be limited to, places of business or recreation; lodging establishments; restaurants; taverns; barber or cosmetologist, aesthetician, electrologist or manicuring establishments; nursing homes; clinics; hospitals; cemeteries; and any place where accommodations, amusement, goods or services are available either free or for a consideration, subject to subd. 2.

Wis. Stat. § 106.52(1)(e).

Under the WPAAL, no person may do any of the following:

1. Deny to another or charge another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of sex, race, color, creed, disability, sexual orientation, national origin or ancestry.

. . .

2. Give preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex, race, color, creed, sexual orientation, national origin or ancestry.

Wis. Stat. § 106.52(3)(a).

The respondent, a gas station and convenience store, is a public place of accommodation or amusement, within the meaning of Wis. Stat. § 106.52(1)(e).  However, the complainant has not alleged any conduct by the respondent that falls within the prohibitions contained in Wis. Stat. § 106.52(3)(a), cited above.  The complainant’s allegation is that he was denied an opportunity to go through the respondent’s trash cans, located in the store parking lot, and that the respondent called the police in order to prevent him from doing so.  The accommodation which the respondent provides to the public consists of access to its facilities for the purposes of purchasing gasoline or other products.  The respondent does not offer any members of the public an opportunity to go through its trash, and the complainant’s complaint does not constitute an allegation that he was denied the full and equal enjoyment of a public place of accommodation or amusement or that he received less favorable treatment with regard to the respondent’s services or facilities, such as would be covered under the WPAAL.  The evidence indicates that, although the complainant was advised that he was not permitted to go through the respondent’s trash cans, the complainant was permitted to enter the respondent’s premises to make purchases, in conformity with the respondent’s intended business purpose, and there is nothing to suggest that he was treated less favorably than others with respect to his ability to shop at the respondent’s convenience store.

While the commission concludes that the complainant has not alleged an injury that would violate the WPAAL, it also notes that the record contains no evidence to suggest that the complainant’s race played any role in the respondent’s actions in barring him from going through its trash cans or in contacting the Eau Claire Police Department.  Although the complainant maintains that a Caucasian individual was permitted to go through the trash, the respondent’s witnesses credibly testified that they were unaware of any such individual, and one of the respondent’s managers stated that he reviewed security camera footage which did not show this occurring.  The respondent demonstrated that its policy is to not permit any members of the public to go through its trash cans and to contact the Eau Claire Police Department’s non-emergency number if that occurs.

For the reasons set forth above, the complainant has not established probable cause to believe that the respondent discriminated against him based upon his race, in violation of the WPAAL.  The dismissal of his complaint is, therefore, affirmed.

cc:	James Schaller Atty. Brian Benkstein

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.