LEE RAVEN, Complainant

PICK 'N SAVE, 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 conclusion in that decision as its own.

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

Dated and mailed December 10, 2002
ravenle . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case arises from an original and amended complaint of discrimination in which the complainant alleges that the respondent violated the WFEA. Specifically, the complainant alleges that she was treated differently because of her race, sexually harassed and that she was constructively discharged. After careful review of the matter, however, the commission concludes that the complainant has failed to establish probable cause to believe that the respondent violated the Act as alleged in her original and amended complaints of discrimination.

The complainant, a female, worked as a bakery clerk at the respondent's grocery store in Columbus, Wisconsin. She identifies her race as black, white and Native American. She was employed by the respondent from May 3, 1999 until January 8, 2000. Sue Howe was the complainant's immediate supervisor. Kevin Pederson was the store manager.

The bakery department where the complainant worked was located next to the deli department. The complainant's coworkers in the bakery department, as well as the employees in the deli department, were white females.

The complainant believes that her race was the basis for the behavior she encountered from a number of employees in the bakery and deli departments. For example, she asserts that Donna Vick, a deli worker, never once said hello or good morning to her and would push in front of her to get to the overwrap machine, a machine that wraps plastic around items. The complainant asserts that Donna Miller, a deli worker, also pushed in front of her to get to the wrapping machine. The complainant asserts that Sharon Woodward, another deli worker, used a tone of voice that was condescending and indignant when speaking to her. The complainant also claims that Miller, Vick and Sheila Barlow, a bakery worker, were responsible for the disappearance of packaging labels she had prepared and were missing when she returned from assisting a customer.

Testimony by Marlyn Nelson, a bakery fryer, tends to support the complainant's belief that her race may have been a factor in the reason for her coworkers' behavior. For example, Nelson asserts that in June or July she overheard Barlow telling Vick and Woodward that they could use the complainant as "slave labor" to get things done. Further, Nelson asserted that within the complainant's first month of employment she heard Woodward and Miller say "There goes the workplace" as the complainant was arriving for work.

The problems the complainant encountered at work were apparently not entirely because of her race, however. For example, when Miller tried to engage the complainant in conversation about Miller's personal matters the complainant took offense and told Miller not to talk to her about Miller's personal matters.

In any event, it was not until August 22, 1999, when Barlow made the comment "You better fight me, Buckwheat," that the complainant ever complained to the respondent about the conduct of any employee. Following this incident, the complainant filed a written complaint about Barlow's comment with Howe, who in turn referred the matter to Pederson. Pederson met with Barlow and issued Barlow a "Notice of Employee Counseling" as a result of her comment.

The comments Nelson heard the workers making about the complainant were made out of the presence of the complainant. Nelson testified that she told Howe, who was also her supervisor, about Woodward's and Miller's comment, "There goes the workplace" and that Howe's reaction was a "shrug of the shoulders." Nelson's testimony, if true, should have perhaps signaled Howe that there was a need for further investigation of Nelson's report. However, considering Howe's prompt referral of the racial slur made by Barlow to higher management (and the response by management) when the complainant had directly complained to Howe, there is no reason to believe that the complainant has established probable cause to believe that the respondent discriminated against her in her terms or conditions of employment on the basis of race.

The complainant also asserts that on January 8, 2000, Miller tried to push her away from the wrapping machine with her hands and that when she could not do so, Miller turned and used her hip and buttocks in an attempt to do so. The complainant then left work during the middle of her shift, informing the assistant store manager that she was leaving because she did not feel well. The next day the complainant wrote a letter to Pederson advising him that she was not returning to work.

The complainant believes that Miller's action on January 8, 2000, constituted both racial and sexual harassment, and that she was constructively discharged. The complainant asserts that sexual harassment was involved because Miller "looked at me lewdly" indicating she wanted to be more than friends. Apparently, the complainant also asserts that Miller had previously given her "looks" suggesting that Miller had an "interest in her."

Given the complainant's assertions about Miller's attempts to push in front of her to get to the wrapping machine, it is difficult to conclude that Miller had engaged in conduct of a sexual nature toward her. Whether Miller's conduct was indeed motivated by racial or sexual harassment, however, the complainant never gave the respondent a chance to investigate the matter before quitting. The only complaint the complainant ever made to management was when she complained of an incident of racial harassment by Barlow in August 1999. That complaint was promptly investigated and Barlow was counseled with respect to that incident.

To find a constructive discharge the complainant was required to show reason to believe that the working conditions were rendered so difficult or unpleasant that a reasonable person in the complainant's position would have felt compelled to resign. However, given the respondent's prior response when the complainant had previously complained of the racial remark by Barlow, the complainant's constructive discharge claim fails because a reasonable person in the complainant's position would not have quit her employment without first notifying the employer about her coworkers' conduct and giving the employer a chance to respond to the matter.

In her petition for review the complainant asserts that because of their racial prejudice several of her coworkers had conspired to antagonize her in an effort to make her respond in a way that would cause her to quit or get fired. She claims this is so because Miller had allegedly admitted to this, out of her presence, by commenting to another bakery employee that she (Miller) "wasn't going take any consequences to my claims all by herself since she'd been 'put up to it.' " However, the difficulty with this assertion is that except for the isolated incident in August 1999, when a coworker called the complainant Buckwheat, the complainant has failed to present any evidence that the respondent had reason to believe that she was being harassed because of her race or that her coworkers had conspired to antagonize her.

The complainant has also asserted that the respondent's management has a proven history of ignoring complaints she made about Vick and many of those made about Barlow. However, the complainant's assertion that she has made complaints about Vick and many about Barlow to the respondent is not borne out by the record.

Finally, apparently as evidence that the respondent does not address complaints made to it, the complainant argues that the respondent is "still allowing Barlow to terrorize" bakery employee Marlyn Nelson based on Barlow's dislike of Nelson's association with her. This argument also fails, however. First, the evidence shows that when the complainant did complain about a racial slur that the respondent did address her complaint. Second, assuming there is some relevance with respect to Barlow's alleged treatment of Nelson, to what extent, if any, Nelson has complained to the respondent about Barlow's alleged conduct is not contained in the record. Moreover, the record fails to support the claim that the respondent was allowing Barlow to terrorize Nelson based on Barlow's dislike of Nelson's association with the complainant.

Appealed to Circuit Court.

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uploaded 2002/12/23