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Although we find no basis for liability to you or Mr. Swain, we want to assure you that we do not condone rude treatment of customers by our employees. We do want to apologize again for any rude treatment you feel you received at our store and for any inconvenience or embarrassment you and Mr. Swain may have experienced. We invite you to shop Safeway again and, as a gesture of good will, have enclosed Safeway Gift Certiificates in the amount O $100.00 that you may use at any Safeway location. We would also like to replace the box of mashed potatoes that you purchased from Safeway, or reimburse you for the cost of that product t. Please let me know which option you prefer so that I may coordinate the exchange or refund.

Notwithstanding your promise to take this matter to the media as you did with Starbucks, we believe this gesture is an appropriate way to resolve your complaints. We hope you and Mr. Swain will consider the following information and agree.

Safeway regrets that you and Mr. Swain were inconvenienced and embarrassed when the bankcard tendered to pay for your grocery order was declined and the problem was being resolved. We trust that you have experienced Safeway’s superior customer service of prior shopping trips, and that you have observed it is the company’s practice to quickly and courteously process our customers’ orders.

Notwithstanding our regret, our investigation on this issue has revealed that Safeway’s systems did not cause your bankcard to be declined. In addition, even if the account had sufficient funds to make to purchase, as it appears was the case on October 13, Safeway’s employees had no power to override the bank’s decline message.

On October 13, you attempted to pay for your $362.36 grocery order by using your bankcard to make an electronic funds transfer from the bank to Safeway (also referred to as a “point-of-sale purchase”). This purchase transaction was attempted and declined at the check stand several times. Our investigation shows that, in each case, the electronic request was successfully communicated by Safeway’s system to the the bank. Likewise, in each case, the transaction was declined by the bank. Evidently, this particular bank restricts point-of-sale purchases to no more than $300. We understand that the bank’s restrictions have nothing to do with the amount of funds in a customer’s bank account and that they are for the protection of the consumer. Safeway did not initiate and had no ability to override the bank’s decline message on your purchase. regardless of whether you had sufficient funds in your bank account to cover the sale.

When the transaction was denied after multiple attempts, the checker suggested you try using the in-store ATM to withdraw cash form the bank to pay for the order. As you know, you were not successful in removing funds to pay for the entire amount of the order, but you were successful in removing $200 cash from the account. Meanwhile, a Safeway manager responded to the checker’s urgent call for assistance at the register. Upon your return to the register, the $200 cash was applied to your order, following which you successfully paid for the remainder of the sum due ($162.36) using your bankcard to make an electronic funds transfer. This latter sum was within the limit set by the bank for a point-of-sale transaction. In addition, when you asked to be refunded the $1.50 fee charged by the bank for using the in-store ATM, the manager instructed the checker to reimburse you that amount.

Sexual Orientation Discrimination/Harassment

Safeway has also investigated your complaint that the manager who responded to the checker’s call to resolve the ATM incident was rude to you and Mr. Swain because of your sexual orientation, and your complaint several days later that the manager also made a statement you feel was intended as a gay slur. In particular, Mr. Swain has said he heard the manager say the word “marshmallows” as you and Mr. Swain were leaving the checkstand area. You said you believe the word was intended to mean “white, soft fags”.

Safeway has a zero tolerance policy against discrimination and harassment, which is strictly enforced. Safeway trains all of its employees about the policy, and takes appropriate corrective action up to and including termination when violations of the policy are discovered. In accordance with that policy, the Safeway district manager to whom you reported your discrimination complaint immediately asked Kiersten Shaw, a Safeway human resources advisor, to investigate. Ms. Shaw conducted two interviews with you and one interview with Mr. Swain (during which you were also present). She also interviewed the employees involved in the ATM incident, as well as other employees who were working in nearby checkstands that day.

Ms. Shaw’s investigation was thorough and unbiased. Indeed, you praised Ms. Shaw and her counterpart, Anne Robinson (whose investigation of the potato incident is discussed below), for their prompt and thorough inquiries on your behalf.

Ms. Shaw’s investigation revealed no facts to support that our manager engaged in any behavior that could reasonably be considered to be sexual orientation discrimination or harassment. To the contrary, the investigation shows that the manager who responded to the checker’s call for assistance had only one purpose: to find a way to allow you to finish your shopping without further inconvenience.

You initially told Ms. Shaw that you felt you and Mr. Swain were the victims of discrimination because of the “look” you saw on the manager’s face when he came to the register to resolve the ATM problem, your belief he’d seen you and Mr. Swain shopping in the store together and thus knew your sexual orientation, and his alleged instruction to the checker to “get these two their $1.50 and get them out of here.” Several days later, Mr. Swain made the additional allegation that the manager said “marshmallows” as you and Mr. Swain walked away from the checkstand. At that time, you informed Ms. Shaw for the first time that you also heard this alleged discriminatory remark, but that you did not earlier report it because you did not know then what it meant.

The manager and checker involved in the October 13 transaction have both denied having any knowledge of the sexual orientation of you and Mr. Swain. At the time of the incident, the manager had only very recently started working in the Pinole store and does not recall having seen you or Mr. Swain before October 13. The manager also denies making the “marshmallow” comment and none of the employees who were in the checkstand area that day heard the alleged remark.

It does appear that the manager could have been more solicitous of your feelings during the ATM incident and in responding to your request to be reimbursed the ATM fee. For that we apologize. Our employee has stated that he told the checker to reimburse you so that you could get out of the store quickly; he denies directing the checker to reimburse you to “get (you) out of here.” He has said he was simply attempting to quickly finish the transaction (which had already held you up and Mr. Swain at the register more than a typical shop) and that he meant no disrespect to you or Mr. Swain. We have counseled our employee that he should, even in a case where the customer has had to wait, take the time needed to to give superior service to our customers.

Again, we are sorry that the manager’s haste to find a solution to the ATM incident, and his demeanor in so doing, offended you and Mr. Swain. We offer our sincerest apologies. However, our investigation has revealed no basis to conclude that the manager’s behavior that day was the result of any bias against you and Mr.Swain.

Betty Crocker Sour Cream And Mashed Potatoes.

The company has also investigated your complaint that a package of Betty Crocker Sour Cream and Mashed Potatoes purchased at the Pinole store on October 13 had previously been opened. (While you have advised that you purchased five boxes of this product at the Pinole store on October 13, the receipt you have provided to us does not support that even one box was bought that day. For purposes of our investigation, however, we have assumed the purchase was made from Safeway, possibly on another date.)

As you know, the company's claims advisor, Ms. Robinson, met with you and talked to you on numerous occasions to discuss your complaint. You informed Ms. Robinson that after purchasing the box of mashed potatoes from Safeway, but before the product was consumed by anyone, you discovered that the outer box was not sealed and that the spice packet inside the box was already open and had been taped shut. You declined to turn the product itself over to Ms. Robinson, but showed her to photograph the product.

As part of her investigation, Ms.Robinson contacted the manufacturer of the product about your complaint. The manufacturer has suggested the possibility that, sue to inadvertence, the product may have left the plant where it was packaged in the condition in which you found it. As a result, the manufacturer has asked to do further investigation and we have placed its representatives in contact with you.

Safeway also took action to assure that no dangerous products were on the shelves in its stores. After receiving your complaint, management at the Pinole store was contacted and asked to check the mashed potato product for signs of tampering. The store reported no other open boxes in the store, and that no similar complaints have been received from other customers about the product. In addition, the company checked with management in other Bay area stores that would have received the particular lot of the product at issue. Each store reported finding no open boxes, receiving no similar customer complaints, and finding no evidence of possible tampering.

Safeway also takes steps to protect against damaged or opened product being placed on its shelves for sale. Employees are told to stock only product that is in good condition, and that if they discover an open or otherwise damaged product t it should be removed from the sales floor. The company then returns such products to the manufacturer and receives a refund. Safeway has no practice to stock or sell products in an open or damaged condition, even at a discount, and there is no financial incentive for us to do so. Likewise, Safeway’s employees who handle customer returns are instructed to carefully inspect any such product and to return open or damaged product to the manufacturer for a refund. Again, there is no incentive to do anything else.

In this case, Ms. Robinson verified with the Pinole store that these procedures are followed at the store. She also learned from the employees who handle customer returns that they recalled no customer returns of the mashed potato product you purchased.

For the forgoing reasons, we do not believe that this is a case of illegal tampering. We also do not believe Safeway was negligent in its handling of the product. We understand the manufacturer of the mashed potatoes has contacted you and we urge you to cooperate with its representatives. If you wish to do so, you may also contact the Food and Drug Administration’s office of Criminal Investigations headquartered in Rockeville, Maryland.

Again, we do apologize that you were unable to use the product, and would like to replace it or repay you for it, at your earliest convenience.

We trust this letter satisfactorily responds to your concerns. Again, we have rejected your settlement offer because we do not believe Safeway has liability to your or Mr. Swain. That is not to say we couldn’t have provided better service to your and Mr. Swain in handling and resolving the ATM incident. Safeway commits to to da better job in the future if you will allow us the opportunity to do so. We invite you to shop Safeway again and to bring any other complaints you may have to our attention.

Kindly direct any further communications to Safeway regarding these matters to my attention.

Very truly yours,
[signed]
Elizabeth A. Harris
Senior Attorney




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