Wis.LIRC ER Decision: Turner, Terry - December 11, 2018 - 221; 229 - Coverage - Law covers acts of discrimination at a place of accommodation or amusement while there to procure goods and services, and allegations regarding unresponsiveness to post-visit attempts to seek satisfaction or compromise of acts that occurred in the store are not covered by the law - Scope of Employment - For respondent to be accountable for the acts of its employees under the public accommodation law, the employee must have been acting within the scope of his/her employment when engaging in the allegedly discriminatory conduct.

State of Wisconsin

Labor and Industry Review Commission


Terry Turner	Public Accommodation Decision^{^[1]}
Complainant v.	Public Accommodation Decision^{^[1]}

Kelley's Market
Respondent	Dated and Mailed:

ERD Case No. CR201503298	December 11, 2018

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

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson


	/s/
	Laurie R. McCallum, Commissioner

	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider complainant's allegation that respondent denied him the full and equal enjoyment of a public place of accommodation or amusement, in violation of the Wisconsin Public Accommodation and Amusement Law, Wis. Stat. § 106.52 (the "WPAAL"). An administrative law judge ("ALJ") for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision in favor of complainant. Respondent filed a timely petition for commission review.

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 makes the following:

Findings of Fact

1. Respondent Kelley Williamson Company, operating under the trade name Kelley's Market, owns and operates a gas station and convenience store located at 5418 North Blue Bill Park Drive in the town of Westport, Wisconsin.

2. On June 1, 2015, Complainant Terry Turner entered the Westport Kelley's Market store and purchased cigarettes. Complainant's race is African American/black.

3. The cashier who sold the cigarettes to complainant on June 1, 2015, was Sarah Nelson ("Nelson"). Nelson's race is white.

4. Respondent maintains a policy by which it will pay a customer $10 from the cash drawer if a store employee fails to ask for identification establishing the customer's age when the customer purchases cigarettes. A failure to "card" a customer purchasing cigarettes is a violation of respondent's work rules, generally punishable by a suspension for a first offense and termination of employment for any subsequent offense. It is also a violation of respondent's work rules to cover up the failure to "card" a customer buying cigarettes by replacing the moneys paid to the customer from the cash drawer with personal funds of the employee.

5. Nelson failed to ask complainant for any identification establishing his age when she sold him cigarettes on June 1, 2015.

6. After completing his purchase of cigarettes on June 1, 2015, complainant returned to his car where his wife was waiting. After conversing with his wife, complainant went back into the Westport store and asked for the $10 he believed was due him under respondent's cigarette carding policy.

7. When complainant asked Nelson to pay him the $10 he believed he was entitled to under respondent's policy, Nelson "blew up" at complainant, asking, "Are you fucking kidding me? Are you that fucking hard up for cash?" Complainant responded that he was, and repeated his request for the money. Nelson removed $10 from the cash register drawer and slammed it down on the counter. Complainant took the money and began walking toward the store bathroom.

8. The store's floor had been recently mopped and was still wet when complainant was a customer in the Westport Kelley's Market on June 1, 2015. As complainant was walking toward the bathroom, Nelson said, "I hope you slip and fall, you fucking nigger." Complainant responded by stopping, turning around, and walking back toward the cashier's counter, and asked Nelson, "What did you say to me?" Nelson responded, "You fucking heard me."

9. As of June 1, 2015, Nelson was aware of respondent's policy requiring that customers purchasing cigarettes show proof of age. When complainant asked Nelson for the $10 as a result of her failure to card him, Nelson became upset because she knew that if respondent learned of her failure to card complainant she was likely to be suspended from employment. Consequently, Nelson replaced the $10 she paid complainant out of the cash register drawer with $10 of her own money. As a result, there was no record of Nelson's cash drawer being short on June 1, 2015.

10. Respondent's employment policies prohibit the use of racially derogatory language in the workplace, and respondent has terminated employees who have violated that policy. Nelson had received (and signed for) a copy of respondent's policies when she was hired in January, 2015, and was aware of the prohibition on racially derogatory language as of June 1, 2015.

11. Complainant was convicted of passing $ 2500 of "worthless checks" in 2008, and of "retail theft" in 2014. Both offenses were felonies.

12. Although she denies doing so, Nelson was investigated by respondent and ultimately terminated from her employment for taking and consuming cigarettes, potato chips and/or cookies at the store that she had failed to pay for.

13. At the time she engaged in the discriminatory conduct (i.e., the use of the racial slur "nigger"), Nelson was not acting within the scope of her employment with respondent.

Conclusions of Law

1. Respondent is a "person," and the Westport Kelley's Market store is a "public place of accommodation or amusement," within the meaning of the WPAAL.

2. Complainant is a "person" and a "complainant" within the meaning of the WPAAL.

3. Respondent did not deny the complainant the full and equal enjoyment of a public place of accommodation or amusement because of race when Nelson subjected the Complainant to a racial slur during his visit to the Kelley's Market store in Westport, Wisconsin on June 1, 2015.

Memorandum Opinion

The ALJ's decision and scope of WPAAL

The administrative law judge determined that respondent violated the public accommodations law not only through the conduct of its store clerk, Sarah Nelson, while complainant was a customer in its store on June 1, 2015, but also through the failure of the store manager to report Nelson's conduct to respondent's corporate office and the failure of the corporate office to perform a reasonable investigation of Nelson's conduct.

The WPAAL is aimed at prohibiting discriminatory conduct toward persons at a place of public accommodation or amusement, principally a business, by agents or employees of the business who are there to offer its goods or services. Here, the only conduct that could potentially be subject to the WPAAL started when complainant entered the store on June 1, 2015, and ended when he departed. Subsequent communications and actions concerning complainant's visit to the store were beyond the scope of the WPAAL-they were in the nature of attempts by a person with a grievance to get some form of satisfaction, compromise or settlement for the abuse that was alleged to have occurred at the store, and not visits to procure goods or services from a public place of accommodation. In addition, even if events after the visit to the store were to be considered within the scope of the WPAAL, complainant has not shown racial animus to be the motive for the conduct of any employee of respondent who had any responsibility to report or investigate the incident of June 1, 2015. Whatever those employees did or did not do was not shown to be based on complainant's race. For these reasons, the commission has given no consideration to the events that occurred after complainant's visit to the store.

Respondent's petition

In its petition for commission review, respondent argued that the ALJ improperly weighed the credibility of the witnesses, and that if credibility had been weighed properly complainant's allegations would be unproven. Respondent also argued that if complainant's allegations were true, Nelson would have been acting outside the scope of her employment and, therefore, respondent would not have been liable for her conduct. Finally, respondent argued that the attorney's fee award should be modified because of a failure to adequately document the reasonableness of the time charged.[2]

Credible evidence

The encounter at the center of this case, according to complainant's testimony at hearing, is as follows: Complainant, an African American adult male, entered the Westport, Wisconsin location of Kelley's Market, a gas station/convenience store, on the evening of June 1, 2015. There was one employee of respondent on the premises, Sarah Nelson, a white female. Complainant bought some cigarettes from Nelson, left the store, and went back to his car, where his wife was waiting. He confirmed with his wife that respondent had a policy of paying a customer $10 if the store clerk sells the customer cigarettes without checking the customer's ID. Complainant went back in the store and asked Nelson for $10 for failing to ask him to show an ID. Nelson replied: "Are you fucking serious? Are you fucking kidding me? The fucking nerve of you. I just can't believe you. Are you that fucking hard up for cash?" He replied that he was and said: "Just give me my money. You owe it to me, you know." She took $10 from the cash register and slammed it down on the counter. He took the money and walked toward the restroom. At that point, Nelson yelled: "I hope you fucking slip and fall you fucking nigger." He walked back to Nelson and said: "What did you say to me?" She replied: "You fucking heard me." Complainant went to the restroom, and thereafter left the store.

Respondent offered Nelson as a witness to the encounter. She agreed that she had an altercation on June 1, 2015, with an African American man, relating to her failure to ask for his ID when he bought cigarettes from her. She denied, however, that she yelled at the man, threatened him, swore at him or called him a nigger.

All told, this boils down to a "he said/she said" scenario when attempting to determine what actually was said in respondent's store on June 1, 2015. Both parties have aggressively - and successfully - attacked the credibility of the other party's witness. There are valid reasons to doubt the credibility of each of the principals involved in the altercation, including but not limited to complainant's two felony convictions and Nelson's discharge from her employment by respondent due to apparent theft, and the commission is left to decipher the events of June 1 based on the testimony of two very flawed witnesses.

The ALJ credited complainant's testimony. The commission requested demeanor impressions from the ALJ and received a detailed reply. The ALJ provided some impressions that were not strictly demeanor impressions but were nevertheless reasonably supportive of the credibility of complainant (for example, the impression that he could have given stronger testimony than he did, indicating a resistance to embellishing his testimony). The ALJ also gave several demeanor impressions of complainant, and particularly of Nelson (facial expressions, quality of voice, body language, downcast eyes), that led her to weigh credibility in favor of complainant over Nelson. The commission, recognizing the importance of the ALJ's face-to-face experience with the witnesses, accepts the credibility determination of the ALJ. See Transamerica Ins. Co. v. DILHR, 54 Wis. 2d 272, 283-84, 195 N.W.2d 656 (1972). Consequently, the commission finds that the June 1, 2015, confrontation occurred substantially as alleged by complainant. Most importantly for purposes of a WPAAL claim, the commission finds that Nelson referred to complainant as a "nigger."

Scope of employment

The use of racial slurs or other comments that demean or denigrate a class of individuals protected from discrimination under the WPAAL may "[d]eny to another ... the full and equal enjoyment of [a] public place of accommodation or amusement". Perrigoue v. Oregon Bowl, ERD Case No. 199602937 (LIRC Feb. 25, 1998)(owner's comment that handicapped people do not belong in a bar); Bond v. Michael's Family Restaurant, ERD Case Nos. 9150755 and 9151204 (LIRC Mar. 30, 1994)(owner's use of the term "niggers"). And a violation of the WPAAL has been based on even a single racial slur. Hampton v. Pizza Hut of Southern Wisconsin, ERD Case No. 199700355 (LIRC July 27, 2000)(manager's statement that "We have two niggers in the building").[3]

In those cases, however, the employer's responsibility for the discriminatory actions to which the complaining parties were subjected appears to have been presumed since the offenders were owners or managers of respondent. The commission has yet to directly confront the question respondent has posited in this case, namely when and to what extent an employer may be liable under the WPAAL for the conduct of its employees.

To resolve this issue, the commission finds it helpful to look to case law applying 42 U.S.C. § 2000a, the federal public accommodations law, which is similar in purpose and language to the WPAAL.[4] >As with Wisconsin's public accommodation law, there is not a lot of authority in this area. One of the very few cases that has grappled with this question is the leading case of Arguello v. Conoco, Inc., 207 F.3d 803 (5^th Cir. 2000). In Arguello, gas station employees were accused of discriminatory conduct, including the use of racial epithets, during three separate incidents. Like respondent in this matter, Conoco argued that it should not be vicariously liable for the conduct of its employees. To answer that question, the Arguello court looked to general agency principles set forth in § 219 of the Restatement (2d) of Agency. >Arguello, 207 F.3d 810. Pursuant to § 219, a "master is subject to liability for the torts of his servants committed while acting in the scope of their employment" and, with certain exceptions, "is not subject to liability for the torts of his servants acting outside the scope of their employment." Applying this same rule to an employer's liability under the WPAAL would comport with the doctrine of respondeat superior generally applicable in Wisconsin. Shannon v. City of Milwaukee, 94 Wis. 2d 364, 370 (1980); Doe v. Time Warner Cable of Southeastern Wisconsin, 2007 U.S. LEXIS 87262, *3 (E.D. Wis. 2007)("Under Wisconsin law, the employer may be responsible for the deeds of its employee if the employee was acting within the scope of his employment at the time of the act in question.")

Thus, the question before the commission is whether Nelson was acting within the scope of her employment with respondent at the time she subjected complainant to the racial epithet.

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (2d) of Agency, § 228.

In Olson v. Connerly, 156 Wis. 2d 488, 457 N.W.2d 479 (1990), the Wisconsin Supreme Court, citing the Restatement § 228 and several of its prior cases, concluded:

[A]n employee may be found to have acted within the scope of his or her employment as long as the employee was at least partially actuated by a purpose to serve the employer. There is no requirement that serving the employer must be the employee's only purpose or even the employee's primary purpose. Rather, an employee's conduct is not within the scope of his or her employment if it is too little actuated by a purpose to serve the employer or if it is motivated entirely by the employee's own purposes (that is, the employee stepped aside from the prosecution of the employer's business to accomplish an independent purpose of his or her own). ...

... [W]e hold that, in scope of employment cases, consideration must be given to whether the employee was actuated, at least in part, by a purpose to serve the employer.

Id. at 499-500, 457 N.W.2d at 483-484. The determination of whether an employee is acting within the scope of his or her employment is a question of fact. Cameron v. Milwaukee, 102 Wis. 2d 448, 460, 307 N.W.2d 164, 170 (1981); Stephenson v. Universal Metrics, Inc., 2001 WI App. 173, ¶ 14; Block v. Gomez, 201 Wis. 2d 795, 804-805, 549 N.W.2d 783, 787 (App. 1996); Desotelle v. Continental Casualty Co., 136 Wis. 2d 13, 26-28, 400 N.W. 2d 524, 528-529 (App. 1986).

As the above summary makes clear, the burden to show that the employee was acting within the scope of his or her employment is not particularly onerous, but neither is it perfunctory. As the Restatement and Olson provide, the principal inquiry is whether the individual's conduct was motivated by an interest to serve her master. That interest may not even be the individual's primary purpose; however, it must be at least one of the purposes actuating the individual's conduct. But "[w]here the employee's purpose is purely personal, and does not attempt to benefit or serve the employer, the act is outside the scope of employment." N.R. Doe v. St. Francis Sch. Dist., 834 F. Supp. 2d 889, 901 (E.D. Wis. 2011), aff'd, 694 F.3d 869 (7^th Cir. 2012) (applying Wisconsin law) (citing Korntved v. Advanced Healthcare, S.C., 2005 WI App 197, ¶ 13).

Respondent argues that Nelson was not acting within the scope of her employment because the conduct was of the type not authorized - and was, in fact, in contravention of the employer's policies - and therefore she could not have been motivated to serve respondent. That is not the appropriate analysis; if it were, there would rarely be any respondeat superior liability as employers never authorize their employees to behave in an inappropriate or unlawful manner. See, Hunter v. Allis-Chalmers Corp. Engine Div., 797 F.2d 1417, 1421-22 (7th Cir. 1986) (respondeat superior attaches when the employee thinks he is doing the employer's business, "however misguidedly"); Time Warner Cable, 2007 U.S. LEXIS 87262, *8 ("Even if they go too far, such employees are still acting within the general scope of their duties and attempting (albeit ineptly) to further their employers' interests.")[5] But neither is complainant correct when he argues that Nelson was acting within the scope of her employment because her "conduct was within the temporal and spatial limits of her employment" (i.e., she was at the workplace and on the clock). Block, 201 Wis. 2d at 798, 549 N.W.2d at 785 (therapist not acting within the scope of his employment notwithstanding the fact that his alleged sexual abuse of the patient "occurred during her treatment"); Time Warner Cable, 2007 U.S. LEXIS 87262, *9-10 ("The employer is not liable unless the employee was furthering an employment purpose -- not merely because the tort occurred at work or a work-related function."). Rather, the question is whether, at the time she uttered the racial slur, she was doing so in the performance of services on behalf of and actuated by a desire to serve respondent. If she was so motivated - even if she did so in a manner not authorized or even forbidden by the employer - she would be within the scope of her employment.

Several cases are particularly instructive in assessing whether Nelson's intent at the time she called complainant a "nigger" placed her conduct within or outside the scope of her employment with respondent. In Block, for example, the plaintiff filed suit against her drug abuse counselor and the clinic that employed him, arising out of a sexual relationship between the plaintiff and the counselor. Even though the plaintiff "testified that [the counselor] kissed, hugged, and fondled her during a counseling session at the Clinic," the trial court granted partial summary in favor of the clinic, finding as a matter of law that the counselor's conduct was outside the scope of his employment. Id. at 800, 804, 549 N.W.2d at 786, 787. The court of appeals affirmed:

[The counselor] undisputedly stepped aside from the Clinic's business to procure a purely personal benefit; that is, a sexual relationship with [the plaintiff]. Accordingly, the trial court could properly conclude from the evidence presented, even when viewing that evidence most favorably to [the plaintiff], that [the counselor's] conduct was not "partially actuated by a purpose to serve the employer." ... As such, the trial court could also properly rule that [the counselor's] actions, as a matter of law, fell outside the scope of his employment with the Clinic.

Id. at 807, 549 N.W.2d at 788 (citations omitted). See also, Time Warner Cable, 2007 U.S. LEXIS 87262, *8, 9 (court dismissed as a matter of law the respondeat superior claim against the employer arising from a co-worker's (Werner's) sexual assault of the plaintiff as he walked her to her car following a business meeting, as "there is no plausible reading of the complaint that would suggest Werner had any intent to further Time Warner's interests at the time he allegedly assaulted the plaintiff"; moreover, "the same analysis would apply even if the two had been at work and engaged in work at the time.")(emphasis in original); Stover-Cramer v. Alternative Entertainment, Inc., 2014 Wisc. Cir. LEXIS 165 (Dane Cty. Case No. 13CV0601, Feb. 7, 2014) (granting summary judgment to satellite TV installation company after plaintiff discovered its employee going through her lingerie drawer while he was installing television service at her home).

Similarly, in Korntved, the plaintiff brought a breach of privacy and similar claims against a health care provider after she discovered that one of its lab technicians - her ex-husband's current wife - had accessed her and her daughter's medical records and disclosed them to the ex-husband. >The employer argued that the lab technician, who was generally authorized to access records, did so in this instance for her own gain and not for any work-related purpose or to further the interests of the employer. Id., 2005 WI App 197 at ¶ 3. Finding "nothing in the record ... to support an inference that [the lab technician] was attempting to benefit or serve her employer when she accessed the medical records," the appeal court found that the lab technician was acting outside the scope of her employment and affirmed the trial court's grant of summary judgment to the employer as a matter of law. Id. at ¶¶ 13-14.

Finally, in Jude v. City of Milwaukee, 2010 U.S. Dist. LEXIS 64819 (E.D. Wis. 2010), a police officer (Schabel) responded to a call regarding a disturbance at the home of another officer and friend of Schabel's (Spengler). Upon arriving, Spengler informed Schabel that the plaintiff had stolen his police badge, which Schebel knew Spengler was deeply attached to because the badge had previously been his grandfather's. Schabel became enraged, stomping on the plaintiff's head and delivering a few others blows. Id. at *4-5. The plaintiff brought suit against the City arising out of the excessive force exercised by Schabel, and moved for summary judgment. The court denied the motion, finding:

[T]he record reveals a genuine issue of material fact as to whether Schabel was acting within the scope of his employment when he performed this act. At his deposition, Schabel testified that when he responded to the dispatch regarding trouble at Spengler's house, he was acting as a police officer, but that when Spengler told him that Jude had stolen his badge, he "got extremely upset and . . . stomped on [the plaintiff's] head twice." ... When asked whether he acted within the scope of his employment, Schabel answered, "[A]ll except for one second" -- meaning the second he stomped on Jude's head. ... Schabel also testified that when he stomped on Jude's head he was motivated exclusively by outrage about the theft of Spengler's badge....

After considering the above testimony, a reasonable jury could conclude that while Schabel generally operated within the scope of his employment, he "stepped aside" from his employer's business in favor of his own desire for vengeance when he stomped on Jude's head, Olson, 156 Wis. 2d at 500, and that when he realized what he had done, he went back into "police mode."

Jude, 2010 U.S. Dist. LEXIS 64819, *13-15.

Considering the above cases and the record in this case, the commission concludes that Nelson was not acting within the scope of her employment when she called complainant a "nigger." Even though complainant was still in the store at the time Nelson uttered the racial slur, all transactions involving complainant had been completed. More importantly, Nelson was in no way actuated by any interest of respondent at the time she uttered the epithet. Rather, Nelson was solely motivated by an interest personal to her alone - her desire to vent her spleen after complainant had called her out over her failure to card him. Indeed, as soon as complainant invoked respondent's carding policy and Nelson paid complainant the $10 penalty, the interests of Nelson and her employer diverged in that she was likely to be suspended by respondent as a result and she stopped pursuing any interest of respondent, a fact further made clear by her attempt to cover up the card policy violation by personally replacing the $10 she was required to pay complainant (a separate violation of the policy). Even though these events took place at respondent's store and while Nelson was on duty, those facts alone fail to establish that Nelson was acting within the scope of her employment where, at the time of the incident, she had stepped away from pursuing respondent's interest and was, instead, furthering her own.

The only case cited by complainant in support of his argument that Nelson was acting within the scope of her employment at the time of the racial epithet is Brown v. Acuity, 2013 WI 60. In Brown, plaintiffs filed a personal injury claim against a firefighter (Burditt) and the Okauchee Fire Department (OFD) when they were injured in an automobile collision resulting from Burditt driving through a red light while responding to an emergency call. Applying Olson, the Brown court stated:

The undisputed facts of this case show that Burditt was actuated by a purpose to serve the OFD when the accident occurred. His entire purpose in traveling to the fire station on the evening of June 8 was to respond to the emergency call that had come through on his pager. No one argues that he had any other motivation.

* * *

Therefore, we conclude that Burditt, in responding to the call, acted within the scope of his employment.

Brown, 2013 WI 60, ¶¶ 37, 39.

Brown does not support complainant's cause. As the Brown court noted, the firefighter was acting within the scope of his employment when the conduct that caused the harm arose out of his pursuit of the employer's interest, even if that conduct was negligent, unlawful or violative of employer policy. But that is not the case here, where Nelson was pursuing no interest of respondent when she uttered the racial slur at complainant. Complainant asserts that Brown stands for the notion that the pursuit of the employer's interest/scope of employment analysis is to be applied "at a broad level." But Brown does not support that assertion, which is inconsistent with the cases above that hold that an employee is not acting within the scope of her/her employment merely because he is at work and on the clock (Block; Time Warner Cable, supra) and that even short-term deviations from the employer's interests to pursue one's own may be sufficient to take the employee outside the scope of his/her employment (Stover-Cramer; Jude, supra).

Likewise, Arguello does not help complainant's claim. In each of the three incidents at issue in that case, the plaintiffs were currently engaged in transactions - and, in fact, were being denied services (declining to process a credit card and locking plaintiff out of the store; refusing service and asking them to leave; and declining to provide toilet paper and requiring plaintiffs to pre-pay for gas) - at the time the racial comments were made. Id., 207 F.3d at 805-806. Thus, the actionable conduct in those cases was not the use of racial slurs per se, but the denial of services that the employer generally offered to its customers, and the slurs were evidence that those services were being denied on a discriminatory basis. In the delivery (or denial of delivery) of the employer's services to the plaintiffs, the employees in Arguello were acting in furtherance of the employer's interests, even if that service was being provided (or withheld) misguidedly, ineptly, negligently or unlawfully. See, Hunter; Time Warner Cable; Brown, supra. In this case, however, Nelson had fully completed all transactions with the complainant - including paying him the $10 bounty that he claimed due to her failure to card him - and there was no employer interest that was being furthered at the time she uttered the slur. Moreover, Nelson was actuated by an intervening personal interest that was not only separate from, but inconsistent with, that of respondent, and no evidence was presented in Arguello of a separate, personal motivation actuating their conduct similar to Nelson's. See, e.g., Jude, supra. Finally, nothing in Arguello compels the conclusion that the employees were acting within the scope of their employment; it merely found that sufficient evidence had been presented to allow a fact finder to conclude that the employees were acting within the scope of their employment and reversed the trial court's grant of summary judgment in favor the employer. Id., 207 F.3d at 812.

Attorney's Fees

In light of the commission's decision on liability, no attorney's fees are awarded and respondent's arguments challenging the reasonableness of complainant's attorney's fees need not be addressed.

Conclusion

For the foregoing reasons, the commission concludes that Nelson was acting outside the scope of her employment when she called complainant a "nigger," and her discriminatory conduct cannot be attributed to respondent. Consequently, the complaint alleging that respondent denied complainant the full and equal enjoyment of a public place of accommodation or amusement in violation of the WPAAL is dismissed.

cc: Nicholas Fairweather

Joel M. Huotari

[1] Appeal Rights: >See the pink 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.

[2] Respondent also asserts that the ALJ erroneously denied respondent's post-hearing motion to supplement the hearing record with evidence of felony convictions of complainant's wife, offered by respondent to attack her credibility. The commission affirms the ALJ's ruling since the commission gives no weight to complainant's wife's testimony, who did not witness the altercation between complainant and Nelson. Rather, the principal purpose of her testimony seems to be to impute to Nelson an admission that Nelson, in fact, used the word "nigger." However, no such admission can be gleaned from her testimony, which at most supports the conclusion that Nelson admitted to using "harsh" words, which could be limited to the prolific use of the F-word complainant testified to and which conveyed no discriminatory animus. (Tr. 94)

[3] In light of its conclusion on the scope of employment question, the commission need not decide whether the particular discriminatory conduct Nelson engaged in was sufficient to deprive complainant of the full and equal enjoyment of a place of accommodation in violation of the WPAAL.

[4] 42 U.S.C. § 2000a(a) provides in relevant part: "All persons shall be entitled to full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion or national origin."

[5] However, the fact that the employee is knowingly violating a directive of the employer may be relevant, although not necessarily dispositive, on the question of intent that Olson teaches is a necessary part of the scope of employment analysis. See, Block, 201 Wis. 2d at 807, 549 N.W.2d at 788.