LEE RAVEN, Complainant

SHOPKO STORES INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned case on October 7, 2005. Lee Raven filed a timely petition for review of the matter.

Based upon a review of the record, for the reasons stated in the Memorandum Opinion attached to this decision the Labor and Industry Review Commission hereby issues the following:

The decision of the administrative law judge is set aside and this matter is remanded to the Division for further proceedings.

Dated and mailed February 28, 2006
ravenle . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Lee Raven is a multiracial female. She is part black, part white and part Native American. Raven alleges that the respondent, which operates a pharmacy at its store in Beaver Dam, Wisconsin, discriminated against her on the basis of race in violation of the Wisconsin Public Accommodations and Amusements Law.

Raven asserts that she was denied service by the respondent on December 3, 2003, when the respondent refused to accept Medicare assignment for a prescription that she had filled. The total cost for Raven's prescription was $73.99. Raven states that an individual named Lennie Birkett at the pharmacy told her the respondent did not take Medicare assignment.

During the hearing the ALJ asked Raven what race she considered herself to be and what race she was claiming that Birkett perceived her to be.

As reasons for believing she was discriminated against on the basis of race Raven asserts that that the respondent had accepted Medicare assignment for her prescriptions in the past and that Birkett had a "very nasty look" on her face when talking to her.

At the close of Raven's case the respondent moved to dismiss the complaint, asserting that Raven had all but admitted she could not prove race was any factor in the decision not to give her the prescription under Medicare assignment. Specifically, the respondent asserted that Raven "admits the respondent was not willing to fill a prescription that was presented to it" and on cross-examination she admitted that she "cannot prove that ShopKo's policy is based on her race or anyone's race."

The ALJ granted the respondent's motion stating, Raven "didn't know what any particular person might perceive her [race] as being", that she had "no evidence that anybody of a different race was treated differently" and that she "[had not shown] what race Ms. Birkett perceived you as being, or that you are of a race that is obvious to others". Further, the ALJ stated that Raven presented no evidence on the primary issue of whether ShopKo's failure to accept Medicare assignment had anything to do with Raven's race. The ALJ stated, "The question here is whether their policy is discriminatory or did the individual or individuals filling your prescription decide on their own to discriminate against you because of your race. You have presented no evidence of either one."

In his written decision, the ALJ made a finding that "Ms. Birkett did not know what race Ms. Raven was." (finding of fact no. 4) and concluded that Raven failed to establish probable cause to believe the respondent had violated the Wisconsin Public Accommodations and Amusements Law by denying her the full and equal enjoyment of a place of public accommodation or amusement because of her race.

On appeal, Raven argues that "What I consider myself to be racially is irrelevant. It is what others consider my race to be when they refuse service because of race that is the question." Raven also argues that the ALJ granted the respondent's motion to dismiss at the close of her case without providing her with a chance to object to the motion.

The record does show that Raven was provided an opportunity to object/respond to the respondent's motion to dismiss. However, the commission finds that the ALJ's decision is not supported by the record.

While the ALJ stated at the hearing that Raven "didn't know what any particular person might perceive her [race] as being'" and that she had not shown that she is of a race that is obvious to others, Raven testified that people "considered me a lot of different things. A lot of times--it's usually two main things. People either consider me black, or Indian--American Indian." (Summary of Proceedings, p. 4) Furthermore, since Raven is multiracial, Raven could not possibly know what race Birkett perceived her to be. For that matter, the fact that Raven is multiracial existed as a possible basis for race discrimination.

The commission agrees that what race Raven considered herself to be is irrelevant.

Also, the ALJ's finding that "Ms. Birkett did not know what race Ms. Raven was", is not supported by the record. Ms. Birkett, although present at the hearing, never testified.

In addition, while the ALJ stated at the hearing that Raven presented no evidence on the primary issue of whether ShopKo's failure to accept Medicare assignment had anything to do with Raven's race, the abbreviated hearing testimony is suggestive that Raven's race was the reason for the respondent's failure to accept Medicare assignment for her prescription. The evidence presented by Raven shows that she is multiracial, that she had been picking up her prescriptions at the respondent for three years and never before had a problem getting her prescription under Medicare assignment and that Birkett had a very nasty look on her face while waiting on her. Further, it appears that the ALJ has made an assumption that the respondent's pharmacy did not accept Medicare assignment at the time Raven requested Medicare assignment for the prescription she had filled by the respondent. (In this regard, it is noted that counsel for the respondent had argued that on cross-examination that Raven admitted she "cannot prove that Shopko's policy is based on her race or anyone's race.") However, there is no record evidence that establishes that it, in fact, was the respondent's policy not to accept Medicare assignment at the time in question.

Based on the foregoing reasons, the commission has set aside the administrative law judge's decision and remanded this matter for further proceedings.

cc: Attorney Michael J. Cieslewicz

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2006/03/03