Wis.LIRC ER Decision: Perrigoue - February 25, 1998 - Public Accommodations discrimination - Disability

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

JOSEPH PERRIGOUE, Complainant

OREGON BOWL, Respondent A

JACK HENRIKSEN, Respondent B

CHARLES ALLEN, Respondent C

PUBLIC ACCOMMODATION DECISION
ERD Case No. 199602937

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:

1. On line 6 in paragraph 5 of the FINDINGS OF FACT, the quoted phrase, "My brother didn't do you good enough this time" is deleted and the following language is substituted therefor:

"My brother didn't do you well enough last time. He really wanted to get hold of you and do you good this time."

2. Paragraph 4 of the CONCLUSIONS OF LAW is deleted.

3. Paragraph 1 of the ORDER is modified beginning on line 3 by deleting the words starting with "and by directly or indirectly" and continuing onto the next page through the word "disability".

4. Paragraph 3 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondents shall submit a compliance report detailing the specific action they have 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"

DECISION

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

Dated and mailed: February 25, 1998
perrijo.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The issue presented in this case is whether or not the respondents violated the Wisconsin Public Accommodations and Amusements Law by denying the complainant, Joseph Perrigoue, the full and equal enjoyment of a public place of accommodation or amusement because of disability, and by directly or indirectly publishing, circulating, displaying or mailing any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of disability or that the patronage of a person is unwelcome, objectionable or unacceptable for this reason. The administrative law judge concluded that the respondents had wilfully violated the law by denying Perrigoue the full and equal enjoyment of a public place of accommodation or amusement because of disability, and "by directly or indirectly communicating that persons will be unwelcome or be denied full use of any public place of accommodation or amusement because of disability."

The commission agrees with the decision of the ALJ to the extent that it finds that the respondents wilfully violated the Wisconsin Public Accommodations and Amusements Law by denying Perrigoue the full and equal enjoyment of a public place of accommodation or amusement because of disability.

The incidents which led to Perrigoue's filing of a complaint on July 24, 1996, under the Wisconsin Public Accommodations and Amusements Law, Wis. Stat. �106.04, stem from events which transpired during the evening hours on Thursday, June 20, 1996, or early morning hours on June 21, 1996, and on June 23, 1996, at Oregon Bowl. Jack Henriksen and Charles Allen are the co-owners of Oregon Bowl. As is frequently the case, the credibility of the parties was at issue in this case. In concluding that the respondents had violated the Public Accommodations and Amusements Law, the ALJ found the testimony of Perrigoue and his witness, Raymond Matekine, to be "particularly credible."

The ALJ found that Perrigoue, who has a degenerative back condition that affects 3 of his discs, resulting in sciatic pain in his extremities and causing him to have a pronounced limp, went to Oregon Bowl late on the evening of Thursday, June 20, 1996. She found that after Perrigoue arrived at Oregon Bowl that evening, a woman who used to date Chester Nelson, another customer, ran over to Nelson and Nelson gave her a big hug. She found that upon observing the woman and Nelson embrace, Perrigoue commented, "Isn't that sweet. Can I have one too?", at which point Nelson hugged Perrigoue and lifted him off of his feet. The ALJ found that Perrigoue fell to the floor when Nelson attempted to put him back on his feet, causing other customers who knew Perrigoue to scream that Perrigoue had had back surgery and for someone to call "911," and causing Henriksen to call "911" and an emergency medical squad and the police to be dispatched to Oregon Bowl. The ALJ found that subsequently on Sunday, June 23, 1996, when Perrigoue returned and entered Oregon Bowl, Henriksen approached him and said, "I'm going to kick your ass," that "Disabled people don't belong in here" and that Perrigoue would have to leave, that Perrigoue was threatened by the bouncer, Glen Nelson, brother of Chester Nelson, and that Allen also informed Perrigoue that he had to leave and walked him out of Oregon Bowl. The ALJ found that Perrigoue called the police when he arrived home that evening, informing them that he had been threatened by the bouncer at Oregon Bowl, and that Henriksen had threatened "to kick" his "ass" and had told him that "handicapped people" do "not belong in a bar." Further, the ALJ found that on the following day while in the presence of Matekine, a neighbor and friend of Perrigoue's, Henriksen described how a customer had fallen and the "cops" had come over the weekend, adding that "The fucker says he has a bad back but he's just faking it. Crips don't belong in my bar. I don't want crips in my bar," and becoming agitated while describing the incident with Perrigoue. Finally, the ALJ found that Oregon Bowl, Henriksen and Allen perceived Perrigoue to be disabled, and because of such disability had forced him to leave Oregon Bowl on June 23, 1996.

Wisconsin Statute � 106.04(9) provides that:

"(a) No person may do any of the following:

1. Deny to another...the full and equal enjoyment of any public place of accommodation or amusement because of...disability...

3. Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of...disability...or that the patronage of a person is unwelcome, objectionable or unacceptable for (this reason)."

Wisconsin Statute � 106.04(1m)(p)1. provides that, "`Public place of accommodation or amusement' shall be interpreted broadly to include, but not be limited to, places of business or recreation...restaurants; taverns...and any place where accommodations, amusement, goods or services are available either free or for a consideration..."

Wisconsin Statute � 106.04(1m)(g) provides that, "`Disability' means a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment...." This definition was initially created as � 101.22(1m)(g) under 1991 Act 295, effective September 1, 1992. The term "Disability" incorporates the federal definition under the Americans with Disabilities Act (ADA) of 1990. 1991 Act 295 � 6, n. 4. 1995 Act 27 renumbered Wis. Stat. � 101.22 as Wis. Stat. � 106.04, effective July 1, 1996.

"Disability" under the ADA means: (1) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) A record of such an impairment; or (3) Being regarded as having such an impairment. 29 C.F.R. � 1630.2(g). "Major life activities" includes functions such as walking. 29 C.F.R. � 1630.2(i). The term "substantially limits" means: (i) Unable to perform a major life activity that the average person in the general population can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. � 1630.2(j).

On appeal, the respondents argue that the ALJ made no finding that Perrigoue was disabled as defined by the statute and therefore the decision should be reversed on that basis alone. The respondents then go on to concede that the ALJ does make reference in her memorandum opinion to a perception on the part of Henriksen and Allen that Perrigoue was disabled, but assert that this does not rise to the standing of a finding of fact, and that to the extent it could be argued that it does, it finds no support in the evidence.

The respondents' arguments do not withstand scrutiny, however. First, while it is true that Perrigoue presented no medical documentation regarding his degenerative back condition, Perrigoue could still prove that a violation of the statute occurred by showing that he was regarded as having a disability, without ever establishing that he actually has a physical impairment. See, for example, Johnson v. American Chamber of Commerce Publishers, Inc., 108 F.3d 818, 6 AD 801 (7th Cir. 1997)(Federal district court erred in ruling that rejected job applicant who filed suit under the ADA could not state claim that he was regarded as having disability without establishing that he has physical or mental impairment); and Katz v. City Metal Co., 87 F.3d 26, 5 AD Cases 1120 (1st Cir. 1996)(Language and policy of ADA seem to offer protection not only to disabled persons, but also to one who is not substantially disabled or even disabled at all but is wrongly perceived to be so). See also, City of La Crosse Police & Fire Commission v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987)(Commission could reasonably conclude that in order to be considered a "handicapped individual" within the meaning of the Wisconsin Fair Employment Act that it is not necessary to find that the individual had an actual impairment. It is sufficient to find that the employer perceived that the individual was handicapped.)

Secondly, contrary to assertion by the respondents, the ALJ in fact did specifically make a finding of fact that Henriksen perceived Perrigoue to be disabled. See finding of fact 8.

This brings us to the respondents' argument that the credible evidence shows that Perrigoue was refused service because of his involvement in the June 20-21 "disturbance," and not because of any perceived disability. The respondents argue that they "were not personally acquainted with" Perrigoue, and did not know "he claimed to be" disabled. Further, the respondents argue that it makes no sense that Henriksen would order Perrigoue out of Oregon Bowl because he was disabled when it is "undisputed that Henriksen did not know Mr. Perrigoue claimed to be disabled until after he asked him to leave (on June 23, 1996) because of the ruckus of two nights before." Finally, the respondents argue that "Oregon Bowl goes out of its way to accommodate patrons with disabilities, and it simply does not add up that Henriksen would suddenly switch and deny access to a person he did not personally know and did not know claimed to be disabled..."

The commission finds these arguments to be unpersuasive.

First of all, whether or not the respondents were "personally acquainted" with Perrigoue or knew that he "claimed to be" disabled is not the issue. The issue is whether the respondents regarded or perceived Perrigoue to be disabled. Given the fact that Perrigoue's back condition caused him to have a pronounced limp, that he had frequented the Oregon Bowl one or two times per month (1 ), that he had shopped at Allen's liquor store, and that the respondents knew him by sight, these circumstances were such that the respondents could have regarded Perrigoue as disabled. In any case, however, Perrigoue's testimony as to what transpired on June 23, 1996, makes it unmistakably clear that the respondents did regard him as disabled. Perrigoue's testimony at page 3 of the transcript is as follows: That when he entered the Oregon Bowl on June 23, he was confronted by Henriksen, who stated that he was "going to kick (his) ass;" that he responded, "(t)hat was not going to be very hard considering I am disabled with three disks shot in my back;" that Henriksen then stated, "(w)ell, if you are disabled (or perhaps handicapped)...I don't want you in here, disabled people don't belong here;" that at this point Henriksen then got his bouncer who came up and said something to the effect that "my brother didn't do you well enough last time. He really wanted to get hold of you and do you good this time;" that Henriksen got Allen and Allen told him that he would have to leave; that he told Allen it was not fair to be kicked out for being disabled; that Allen stated they had talked about it and Allen agreed with Henriksen; that he told Allen that if that was their attitude, "don't expect me to ever patronize any of their businesses again."

Additionally, the testimony of Raymond Matekine, who went to Oregon Bowl with his partner (Leonard Kvammen) on the following day, June 24, 1996, to pick up their karaoke equipment that had been used to put on a show the night before, supports Perrigoue's testimony that he was regarded as disabled by Henriksen. Matekine testified that on the morning of June 24, 1996, he was standing next to Kvammen when Henriksen, who was describing how the weekend had gone well except for one incident, stated "the cops came, some guy fell...the fucker says he has a bad back but he is just faking it....that `crips' don't belong here in (my) bar and he (Henriksen) doesn't want `crips' in (his) bar anymore and Chester didn't do nothing and (Perrigoue) was faking it, the guy was nothing but trouble..." (Tr. p. 17) Matekine testified that Henriksen became quite agitated when describing this incident. Matekine testified that because what he heard Henriksen say was so preposterous that he made written notes of this conversation on June 24, 1996, while it was still fresh in his mind. (Tr. pp. 17, 23).

The respondents apparently contend that Matekine's testimony is suspect, as they have asserted that he is a "neighbor and good friend of Mr. Perrigoue's," and that at the hearing Matekine testified that it was on June 24, when he heard Henriksen state that "crips don't belong in his bar" while the witness questionnaire Matekine completed for the Equal Rights Division indicates that it was on June 21, 1996, when he had heard Henriksen make this comment.

As of 1996, Matekine had apparently lived in the same neighborhood as Perrigoue for 3 years, and saw Perrigoue at least twice a week to talk about music and computers, and socialize together as families. However, these circumstances alone do not cause his testimony as a witness to be not credible. Matekine testified that despite his friendship with Perrigoue, he would always want to help someone out whether or not they were his friends. Moreover, the ALJ, who was present at the hearing to observe the demeanor of the witnesses, found Matekine to be "particularly credible."

Matekine's witness questionnaire was admitted into evidence as Respondent's Ex. 1. In paragraph 6 of that document, Matekine stated that it was "The day following the EMS incident..." when he went to Oregon Bowl to pick up the karaoke equipment and heard Henriksen make the comments about "crips" not belonging in his bar. The EMS incident is a reference to the emergency medical service squad that appeared at Oregon Bowl on June 20-21 after Perrigoue fell to the floor. Matekine explained at the hearing, however, that at the time he completed the questionnaire he was under the impression that the EMS incident and Henriksen's comments made when refusing Perrigoue service had all occurred on Sunday, June 23, 1996. (Tr. pp. 21, 23). This explanation is reasonable and provides no real basis for questioning the reliability of Matekine's account about what he had heard Henriksen say. Similarly, the respondents' apparent assertion that Matekine's testimony about the June 23 conversation with Henriksen is somehow unreliable because this conversation took place "on June 24, the morning after the Henriksen/Perrigoue encounter," also fails since Matekine took written notes of what Henriksen said had happened on June 23, 1996, shortly after Henriksen made the comments on June 24, 1996.

It should also be noted that Perrigoue stated that he had intended to have Kvammen appear and testify in his behalf but Kvammen had passed away.

The respondents next argue that there was no credible evidence that Perriqoue was refused service because of disability because Henriksen did not know Perrigoue claimed to be disabled "until after he asked him to leave because of the ruckus of two nights before." This assertion, of course, follows Henriksen's version of what transpired on June 23, 1996. The ALJ did not find Henriksen's testimony credible.

Henriksen testified that because Perrigoue had "caused problems" on June 20-21, it was decided that Perrigoue would not be allowed in "for the weekend" because they wanted no problems that weekend. June 22-23 was the weekend to celebrate Summerfest in Oregon and this event was held within walking distance of Oregon Bowl. Henriksen testified that when he observed Perrigoue enter the bar on June 23 he stated, "sir, we will not be serving you this evening....I have the right to refuse...anyone," pointing to a sign above the bar. (Tr. pp. 51, 59). Henriksen testified that Perrigoue wanted more of an explanation and then he told Perrigoue it was because of "the incident which occurred on Thursday evening and which I had to call the EMS and the police had to come to the Oregon Bowl."

After a leading question by his attorney, Henriksen then stated that it was at this point that Perrigoue told him he "claimed to be disabled." (Tr. pp. 51-52) Henriksen denied that he told Perrigoue he was "going to kick his ass," or ever threatening Perrigoue.

When asked if he had any explanation as to how Mr. Matekine "came up with this story" Henriksen testified, "No I do not. I may have said disabled, crippled. That is not why anyone leaves but if they cause, if I have a problem with crippled or disabled, if they are causing problems, I got to treat them the same as I do anyone else...." (Tr. p. 55)

The commission has several concerns about Henriksen's testimony. First of all, Perrigoue, who the ALJ found to be "particularly credible" gives a completely different account of what transpired when he entered the bar on June 23.

Secondly, the respondents have accused Perrigoue of being a "troublemaker," "causing problems" and "causing a ruckus." However, when the respondents were asked to provide examples of other people who had been refused service because they had caused problems or difficulties, the examples listed involved people who were pickpockets, people who were loud and obnoxious and had too much to drink, people who were fighting or leading up to a fight, and people who had damaged business property. (See, for example, Tr. pp. 48-49) The conduct Perrigoue was alleged to have engaged in comes nowhere close to the behavior described by Henriksen. If the conduct Perrigoue is alleged to have committed constitutes "causing problems," what should Chester Nelson's actions in physically lifting Perrigoue off his feet be described as and why was he allowed to remain in the bar? Furthermore, although the ALJ finds that what prompted Chester Nelson to hug Perrigoue on June 20 was Perrigoue's comment, "Isn't that sweet. Can I have one too?" when Chester Nelson hugged a woman he used to date, Perrigoue testified that, "I don't recall that and I don't believe I ever said anything that silly." (Tr. p. 10) Additionally, Perrigoue maintains that he was thrown to the floor, not simply placed back on his feet. (Id.)

Thirdly, the commission finds it strange that while Henriksen maintains that Perrigoue was "causing problems" on June 20-21 and therefore was refused entry on June 23, his first response when the ALJ asked him what about the June 20 incident had caused him to decide not to allow Perrigoue in the bar that weekend was, because he "(had) to call the EMS" and "bring the cops in." (Tr. p. 55). It was not until further leading questions on follow-up by the respondents' counsel that Henriksen then stated that he was told "about the situation where Mr. Perrigoue asked Chester Nelson to hug him" and that he had heard about this before the decision was made not to allow Perrigoue back in the bar that weekend. (Tr. p. 56)

Fourthly, the commission is troubled by Henriksen's answer when his counsel asked if he had any explanation as to how Matekine "came up with (his) story." Henriksen's response was "No," he did not but he then went on to immediately state that he "may have said disabled, crippled." Only after admitting that he "may have" said disabled or crippled did Henriksen make an attempt (which he appeared to have a difficult time doing) to state that if the disabled caused a problem they had to be treated the same as those who stole, fought or damaged property, before finally stating that he "may have" mentioned disabled that way. (Tr. p. 55). Matekine testified, however, that on June 24, 1996, Henriksen stated, "...the fucker (Perrigoue) says he has a bad back but he is just faking it....that `crips' don't belong here in (my) bar and he (Henriksen) doesn't want `crips' in (his) bar anymore and Chester didn't do nothing and (Perrigoue) was faking it..." (Tr. p. 17) Because Henriksen's testimony was that he "may have" mentioned the word "disabled" to indicate that disabled individuals were treated the same as all others who caused problems, in contrast to the testimony of Matekine who was unequivocal in his testimony about what Henriksen said, this also raises considerable concern about Henriksen's account of this incident.

Finally, the commission has concerns about Henriksen's credibility as a witness because of the leading questions that his attorney found it necessary to ask at critical points in his testimony.

Also, it should be noted that Chester Nelson did appear at the hearing and testified in behalf of the respondents. Chester Nelson testified that on June 23 he heard Henriksen state that he did not want Perrigoue in the bar because of the "altercation" that happened. Nelson also testified that he never heard Henriksen tell Perrigoue that he did not want him in the establishment because he was disabled, and that Henriksen did not tell Perrigoue that he did not want him in the establishment because he was a cripple or a "crip" or anything like that. However, Nelson also admitted that on June 23 he was "checking I.D's too so I wasn't able to sit there and listen to the whole conversation..." (Tr. p. 31). Furthermore, since it was Chester Nelson that had the "encounter" with Perrigoue on June 20-21, it would not be surprising that he would deny that Henriksen had told Perrigoue he did not want Perrigoue in the bar because he was disabled, a cripple or a "crip."

A final argument the respondents make is that Oregon Bowl "goes out of its way to accommodate patrons with disabilities, and that it simply does not add up that Henriksen would suddenly switch and deny access to a person he did not personally know and did not know claimed to be disabled." There was testimony by the respondents regarding accommodations they had made for the handicapped and senior citizens. Interestingly, Allen's comments were about accommodations for bowlers, e.g., setting up ramps so they could get to the lane and push the ball off, and sponsoring "Special Olympic Bowling." (He also stated that there were a couple of pool team members "in wheelchairs and they're able to shoot pool.") What Henriksen is reported to have told Perrigoue, however, is that "crips" did not belong in his bar and that he did not want "crips" in his bar. Henriksen, in addition to testifying that the respondent "had a disabled parking area" and had elderly patrons, did, however, testify that the respondents have had people who had "multiple strokes," that "walk with canes," who have had "heart failure" and that "We have had all kinds of people that are (sic) come into the bar and they feel comfortable there." (Tr. p. 50)

Nevertheless, the commission is not convinced by this testimony from Henriksen that what Perrigoue testified transpired on June 23, 1996 did not occur. Again, respondents' counsel did a fair amount of leading when asking Henriksen questions. In fact, most of the testimony elicited through the respondents' witnesses came by way of leading questions. More importantly though, even assuming that the respondents had followed the Americans with Disabilities Act in some respects, and/or had offered its accommodations and amusements to some disabled individuals, this alone does not defeat Perrigoue's claim that on June 23, 1996, he was denied access to the Oregon Bowl by the respondents because he was regarded as disabled.

NOTE: Presumably, paragraph 4 of the ALJ's conclusions of law and the language in paragraph 1 of the ALJ's order that the commission has deleted relate to Wis. Stat. � 106.04(9)(a)3. However, what this statute states that a person may not do is, "Directly or indirectly publish, circulate, display or mail any written communication which the communicator knows is to the effect that any of the facilities of any public place of accommodation or amusement will be denied to any person by reason of...disability...or that the patronage of a person is unwelcome, objectionable or unacceptable for (this reason)." (emphasis added)

There was no evidence presented in this case to show that the respondents had been directly or indirectly responsible for any written communication that had the effect of denying to Perrigoue the facilities of any public place of accommodation or amusement because of disability, or that would have the effect that his patronage was unwelcome, objectionable or unacceptable for this reason.

Accordingly, paragraph 4 of the conclusions of law has been deleted and paragraph 1 of the order has been modified. The other modifications made were to show what Glen Nelson is quoted to have said to Perrigoue on June 23, 1996, and to show where the respondents are to submit their compliance report.

cc: Bradway A. Little, Jr.

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Footnotes:

(1)( Back ) Henriksen and Allen purchased Oregon Bowl in May 1994.