MISTY SCHRAMM, Complainant

FARM & FLEET OF DODGEVILLE INC, 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, except that it makes the following modifications:

The last sentence of Finding of Fact 2 is deleted.

The following is added as a Conclusion of Law:

Ms. Schramm failed to sustain her burden to prove that the respondent violated Wis. Stat. § 111.322(2) as alleged.

The first sentence of the second paragraph of the Memorandum section should be modified to read as follows:

The statements referring to Gypsies did not either expressly or by reasonable implication address the way in which Farm & Fleet as an employer was going to treat an employee who was identified as a Gypsy.

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

Dated and mailed May 14, 2003
schrami . rmd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

Due to conflicting statements in her petition for commission review and her reply brief on the petition, it is not clear to the commission whether the complainant has withdrawn her allegation that she was constructively discharged by the respondent due to her race or national origin. See, Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991) In the event that the complainant has not withdrawn this allegation, the commission holds, as did the administrative law judge, that a total of five hours' presence in the work place; exposure to two written references to "Gypsies, a term conceded to have ancestry- neutral meanings in common parlance;" and the failure by complainant to give the respondent a reasonable chance to work out the problem (See, Ulichny v. Merton Comm. Sch. Dist., 249 F.3d 686 (7th Cir. 2001), militate against a conclusion that the complainant proved that she was constructively discharged, i.e., that this situation rendered complainant's working conditions so intolerable, based on an objective reasonable person standard, that she had no choice but to resign.

Section 111.322(2) issue

In her briefs to the administrative law judge, the complainant focused on her theory that she had suffered disparate treatment based on her ancestry when she was constructively discharged by respondent. She stated very briefly in her voluminous arguments that respondent had violated Wis. Stat. § 111.322(2), by publishing and circulating a discriminatory policy, but linked this violation to her disparate treatment analysis, i.e., "Respondent's adoption, publication and application of a facially discriminatory policy against Gypsies resulted in Schramm's constructive discharge." It was not surprising, as a result, that neither the respondent nor the administrative law judge discussed the alleged § 111.322(2) violation as a separate theory of recovery. Complainant now argues that respondent's failure to address the § 111.322(2) issue in its brief to the administrative law judge requires the commission to deem the issue to have been admitted by respondent. Since the complainant needs to take credit for contributing to, if not creating, the confusion relating to the § 111.322(2) issue, this is clearly not warranted.

Wisconsin Statutes § 111.322 states as follows:

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321.

(2) To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.

The issue in the present case relates to the first category of conduct prohibited by § 111.322(2), i.e., the printing or circulation of a statement or publication implying or expressing any limitation, specification or discrimination based on a protected category. To prove a violation of § 111.322(2) given the fact situation under consideration here would require the following: (1) proof that section 4.4 of respondent's Cashier's Handbook or the November 29, 1999, memo from Goebel were statements or publications which had been printed or circulated by the respondent; (2) proof that this handbook section or memo were actionable statements or publications within the meaning of § 111.322(2); and (3) proof that the handbook section or memo implied or expressed any limitation, specification or discrimination based on ancestry.

The commission concludes that the proof offered by complainant fails to satisfy the second and third elements.

The lynchpin for the second and third elements is how the use of the term "Gypsy" in the handbook section and the memo should be interpreted. The hearing record supports the conclusion that the term "Gypsy" is used in the handbook section and in the memo to describe a type of criminal activity, not a person of Romani ancestry and, as a result, these writings do not express or imply an intent to target either customers or visitors or employees based on their ethnicity. Even the complainant's expert conceded that the word "gypsy" is used in the United States to refer not only to an ethnic group but also to a type of criminal activity. This expert also testified that it is not possible to identify Romanis or Gypsies by any physical characteristics. This would lend further support to the conclusion that the handbook section and the memo were targeting a type of activity, not a group of people. Respondent's experts, both of whom had extensive law enforcement/loss prevention backgrounds, testified that respondent adopted the language of the handbook section and the memo from materials supplied by law enforcement or loss prevention sources; that "gypsy crime" and "gypsy activity" are terms of art used in law enforcement to refer to certain types of retail theft activities carried out by groups, who refer to themselves as "gypsy groups" or "gypsies" and who travel from community to community to carry out these activities; and that this terminology is used independent of the race or ethnicity of the members of these groups.

Complainant argues that, if respondent did not intend to refer to an ethnic group, why did the handbook section and the memo both capitalize the word "Gypsy," since the capitalized word generally refers to the ethnic group. Most importantly, the record does not show that this distinction would be commonly known to those who would author or read the handbook section or memo. In fact, complainant's expert testified that the typical American knows little about Gypsies, and does not associate Gypsies with the Romani ethnic group. It should also be noted that the word "Gypsy" appears three times in these writings. Two of these occur in headings where the other words are also capitalized, and the third appears in quotation marks. The record does not explain the use of these quotation marks but, from the context in which this word appears in the handbook section, which directs employees to take certain actions if customers or visitors engage in certain activities, it would have to be concluded that the author's intent was to identify and describe an individual who engages in a certain type of activity, not a person of a certain ethnicity.

The commission concludes that the complainant has failed to prove a violation of Wis. Stat. § 111.322(2).

Respondent disputes complainant's status as a Romani, primarily because she has no documentary proof; and disputes that Romanis should be recognized as members of a protected class under the Wisconsin Fair Employment Act (WFEA) on the basis of ancestry because the record does not demonstrate sufficiently the unique attributes of their culture. The commission agrees with the administrative law judge that the complainant has provided sufficient proof of her Romani ancestry and that Romani should be recognized as a separate ancestry/ethnic group for purposes of the WFEA. The federal courts have recognized Romanis as a separate ethnic group (see, e.g., Janko v. Illinois State Toll Highway Authority, 704 F. Supp. 1531 (N.D. Ill. 1989). It is certainly not uncommon for people to identify themselves with one part, even a minor part, of their ethnic background as complainant has done here. Finally, the WFEA does not require a complainant to prove ancestry through documentary evidence recognizing, the commission presumes, that for many of us, no such documents exist.

Complainant raises certain procedural issues. She argues that respondent, in its briefs to the ALJ, failed to consistently cite to the record, distorted certain facts, and included argument in its statement of facts, and, as a result, should be sanctioned by the commission. First of all, in regard to the citation and argument/fact mixing allegations, these were not briefs to a court, but to an administrative agency, and complainant has failed to cite any authority for granting the requested relief in an administrative forum. Moreover, the alleged distortions of fact to which complainant refers appear to relate primarily to areas of significant factual dispute, and a conclusion of distortion/misrepresentation would not be justified.

Complainant has failed to prove a violation of Wis. Stat. § 111.322(2). While the commission believes that it is unfortunate that the term "gypsy" has acquired different and incompatible meanings, it would be incongruous and unjust to hold respondent accountable for this under the Wisconsin Fair Employment Act. Yes, respondent, drawing from law enforcement and loss prevention sources, did include the term "gypsy" in its employee training materials, but the record fails to show a link between its use of this term and the Romani/Gypsy ethnic group. The establishment of such a link would be necessary before a conclusion of discrimination could be drawn here.

cc: 
Attorney Linda L. Harfst
Attorney George K. Steil, Jr.

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uploaded 2003/05/27