Wis.LIRC ER Decision: Hampton - July 27, 2000 - Public Accommodations discrimination

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROSETTA HAMPTON, Complainant

PIZZA HUT OF SOUTHERN WISCONSIN, Respondent

PUBLIC ACCOMMODATION DECISION
ERD Case No. 199700355

An administrative law judge 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, has reviewed the evidence submitted to the administrative law judge, and has conferred with the administrative law judge regarding her impressions of the credibility and demeanor of the witnesses. 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, except that it makes the following modification:

Paragraph #2 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

That within 30 days of the expiration of time within which an appeal may be taken herein, Pizza Hut of Southern Wisconsin shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an owner or other person fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the owner or other person shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., � � 103.005(11) and (12).

DECISION

The decision of the administrative law judge, as modified, is affirmed.

Dated and mailed July 27, 2000
hamptro.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the respondent argues that the complainant's allegations regarding Mr. Sheibe's use of a racial epithet should be disregarded as incredible. The respondent points out that the complainant's testimony with respect to the number of her prior contacts with the respondent and her demeanor during her most recent contact with Ms. Carruthers was impeached by other witness testimony at the hearing and that the administrative law judge did not credit the complainant's testimony on these points. The respondent maintains that, if the complainant fabricated her testimony with respect to the incident involving Ms. Carruthers, the commission cannot give authority to her testimony regarding the use of the word "nigger" by Mr. Sheibe. The commission has considered this argument, but finds it unpersuasive. While a party's lack of credibility with respect to some aspects of her testimony may lead the trier-of-fact to question other portions of her testimony, it is not compelled to do so. In this case, the commission agrees with the administrative law judge that, in spite of some defects in the complainant's general credibility, her testimony regarding Mr. Sheibe's conduct was nonetheless worthy of credence.

In the first place, the respondent ignores the fact that the complainant's and Mr. Gross' testimony, which was similar and consistent, was uncontradicted by that of any other eyewitness. Although, as the respondent points out in its petition, the respondent did bring witnesses to the hearing who testified generally that they had worked with Mr. Sheibe and had never heard him say anything exhibiting racial animus, such character testimony has limited value, and the commission considers it an insufficient basis upon which to disregard the firsthand testimony of the complainant and her witness. The commission also notes that, while the respondent has asserted that it was unable to locate Mr. Sheibe, it has not explained what steps it took to do so, and has not demonstrated that, with diligence, Mr. Sheibe's presence at the hearing could not have been secured. The commission also observes that the respondent failed to bring to the hearing any other staff member who worked on November 10--such as, for example, the individual with whom Mr. Sheibe was ostensibly communicating on the walkie-talkie--who might have been able to confirm whether or not the racist comment was made. Consequently, the commission concludes that the complainant's testimony regarding the offensive remark was unrebutted.

In addition to the fact that the complainant's testimony went unrebutted, the commission generally considers her story to be a credible one. It seems improbable that anyone would invent a tale of discrimination as lacking in drama as this one, and the details regarding Mr. Sheibe's otherwise pleasant and friendly conduct suggest that the complainant's testimony was not fabricated. Further, it is not clear what the complainant might have hoped to gain from inventing such a story and, although she initially requested damages for her mental suffering, she did not reiterate her request for a financial remedy at the hearing or in her written response to the petition for review.

In arguing that the complainant's testimony is not credible, the respondent also points out that one of its witnesses indicated Mr. Sheibe was familiar with the respondent's policy regarding such conduct, and knew that it could result in the termination of his employment. The respondent contends that it is incredible to conclude that Mr. Sheibe would have made such statements with the knowledge his conduct would lead to his discharge. This argument is wholly without merit. While the respondent may well have rules prohibiting racial harassment, there is absolutely no competent evidence in the record establishing the extent of Mr. Sheibe's awareness and understanding of these rules, nor is the commission willing to speculate as to whether Mr. Sheibe would have felt constrained by such rules, presuming he understood them. To the contrary, and for the reasons set forth above, the commission agrees with the administrative law judge that the complainant's story is a credible one and concludes that Mr. Sheibe did make the remark in question.

The question to resolve, then, is whether Mr. Sheibe's conduct resulted in a violation of the Wisconsin Public Accommodations and Amusements Law. The respondent argues in its petition that it did not. The respondent asserts, relying on the commission's decision in Bond v. Michael's Family Restaurant (LIRC, March 30, 1994), and by analogy to the Wisconsin Fair Employment Act, that the complainant was required to demonstrate she was subjected to racially derogatory language that created a hostile environment, and that a single utterance of a racial epithet does not rise to the level of a violation of the law. The commission disagrees. Although the respondent correctly points out that the facts in the Bond case were more egregious than those present in the instant case, the commission has never articulated a de minimus standard of harassment that must occur before a violation of the law will be found. While it could be argued that a single racial slur would not be sufficient to state a cause of action for employment discrimination, the broad language of the Wisconsin Public Accommodations and Amusements Law requires only a showing that one has been denied the "full and equal enjoyment" of a place of public accommodation based upon membership in a protected classification. Unlike the employment discrimination statute, the public accommodations law does not contemplate a long-term working relationship between the complaining party and the harasser, and even an isolated instance of harassing behavior can be sufficient to deprive a restaurant patron of the full enjoyment of the place of public accommodation. Here, the complainant's contentions that a restaurant manager made an overtly racist remark over a walkie-talkie, and that this made her feel embarrassed and unwelcome, lead to a conclusion that the complainant's experience at this place of public accommodation was less than fully enjoyable. Moreover, it can be inferred that the complainant's enjoyment was not equal to that of non-black restaurant patrons, who presumably did not have to listen to derogatory comments about their race. Thus, the commission agrees with the administrative law judge that the complainant's contentions are sufficient to establish a violation of the statute.

In its brief to the commission the respondent also makes an argument that, assuming the remark was made, it should be dismissed as a bad joke from one restaurant employe to another. In support of this assertion, the respondent draws the commission's attention to the complainant's testimony that Mr. Sheibe was laughing when he made the remark and to Mr. Gross' testimony that he and Mr. Sheibe got along well together at work and that Mr. Sheibe sometimes gave him rides home. The commission is unpersuaded by this argument. In the first place, it is difficult to make assumptions about Mr. Sheibe's intent when he was not at the hearing to explain himself, and the fact that he laughed does not necessarily demonstrate good intentions. Further, even presuming that Mr. Sheibe did intend his remark to be a harmless joke, the fact remains that he made a remark which was inherently racist and offensive, (1 ) and which the complainant testified made her feel embarrassed and unwelcome. Given these factors, the commission finds a violation of the statute without regard to Mr. Sheibe's presumed intent.

The respondent additionally suggests that the complainant did not really feel unwelcome in the place of public accommodation because, if she were truly bothered by the racist remark, she would have complained. However, the complainant explained that she chose not to complain about the comment, in spite of the fact that it made her feel unwelcome, because her boyfriend was employed by the respondent and she was concerned that a complaint could cost him his job. The commission finds this explanation to be credible, and declines to draw any adverse conclusion from the complainant's failure to register a complaint directly with the respondent.

Finally, the respondent makes the argument that the complainant had the burden of demonstrating the derogatory language was either directly or indirectly condoned by management. However, the respondent has failed to cite any authority in support of such a requirement, and the commission sees no reason to conclude that harassment must be condoned by management before an individual can be found to have been deprived of the full and equal enjoyment of a place of public accommodation. Moreover, even if such a requirement does exist, it matters little in this case, as the evidence indicates that Mr. Sheibe was, in fact, a member of the respondent's management staff.

For all of the reasons set forth above, the commission believes that the complainant has established through credible testimony that she was denied the full and equal enjoyment of a place of public accommodation based upon her race. Accordingly, the finding of discrimination is affirmed.

PAMELA I. ANDERSON, (Dissenting):

I write separately because I partially dissent in the majority opinion. I agree with the majority and the administrative law judge that the use of a racial slur is not de minimus in a public accommodations case and if I had believed the complainant's story about the incident with the pizza I would have affirmed.

I do not find the complainant credible because the employe clearly lied about her encounter with Kimberly Carruthers and how often she phoned Pizza Hut to talk to Gross. I also do not believe that the complainant would have been able to control her anger if the pizza incident had really occurred. Her behavior at the hearing and on the day of the tea incident indicate that the complainant is quick to react to perceived unfair or discriminatory treatment.

An example of this occurred on page 99 of the transcript when Mr. Knoll is questioning Kimberly Carruthers. Ms. Hampton interrupts five times on the page and finishes with "This is outrageous, because-because I understand that you're the and stuff like that here, but you don't know what I went through for this whole outfit. Do you understand what I mean? Yes, I am very upset, and I am very upset to sit here and listen to somebody that tells a lie right here in this face. Do you understand what I mean? Now, Kim knows, and Kim, you know that you are lying." The administrative law judge had tried to maintain control and had gotten as far as "Ms. Hampton" three times before she is able to go off the record on page 100. Mr. Knoll asked Kimberly about Ms. Hampton's demeanor on the day of the tea incident. Kimberly responded "She was very aggressive, and she was upset. She was behaving a lot like she just did a moment ago." There was further testimony about how she was yelling and using profanity and saying we need to come to an agreement.

Ms. Hampton responds to an offer of proof by the employer's attorney saying "Well, you're trying to tell her what to say more or less." She continued again with "Yes, I understand that, but he's not the victim. I am, you know, and I understand that he works for Pizza Hut. He's going to do everything in his power to try to defend Pizza Hut and make me look crazy, ok? I don't have time to be in here fooling around. I've got two sick, terminally ill daughters. Do you understand what I mean? I'm not going to travel this many miles for no games. Do you understand what I mean? I'm here to tell the truth, and I hope with the lies that you got inside you that you'll be to sleep tonight." The administrative law judge tries to explain the code of ethics for attorneys. Ms. Hampton interrupts twice with the following comments "Here' another one. Money talks, Deborah." "You're quite right. He's going to put words in their mouth to keep Pizza Hut."

The majority and the administrative law judge find that since the employe can not receive an award even if she won, that she has no reason to be untruthful. The file contains her letter of April 28, 1998 where she indicates that she wants 50 thousand dollars and "a appolize for the corp." to settle the case. While the employe may know at one level she will not receive an award she may still believe she can receive money for "mental abuse." I believe she may have a motive because her friend no longer works for Pizza Hut. This case may be a way of getting even with Pizza Hut for his losing his job.

I am concerned about the employer not bringing Sheibe to the hearing or at least explaining in depth what they did to locate him. I do not place much credit for the character testimony of the employer witnesses but I do place some credit for Gross's testimony that he thought he was a good guy and he gave him rides.

I also found it interesting that Hampton also indicated on page 148 that "I got kicked out the night I was called a nigger, you know, because I was late, okay? When you're late, you cannot come in there after 10:00, okay? I was late for that program. I was very upset. I couldn't go back, okay, so therefore, the day I was called a nigger I was kicked out, also. That's why Mr. Gross and I went to a hotel, because I didn't have nowhere to go, okay." The complainant had testified that they left early because she was so upset she could not eat at the Pizza Hut but still she is late getting back so she did not have a place to stay.

The decisive factor in the case was I find it impossible to believe that the employe would not have immediately reacted loudly if Sheibe had used a racial slur. She would not have bothered to think how it would impact on Gross's job, she would have reacted immediately. The complainant also clearly lied about the tea incident. Therefore, I would reverse on the racial slur incident and dismiss the case.

_________________________________________
Pamela I. Anderson, Commissioner

cc: Jason A. Greller

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Footnotes:

(1)( Back ) Notwithstanding the respondent's arguments to the contrary, the commission stands by its earlier ruling that the use of the term "nigger," particularly by a white person to a black one, is inherently offensive, and demonstrates an intent to discriminate based upon race. See Bond v. Michael's Family Restaurant (LIRC, March 30, 1994).