P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200300554

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:

In Finding of Fact No. 3, substitute "Menominee" for "Menomonee".

In Finding of Fact No. 4, delete the second sentence and substitute therefor the following:

At the time of his arrest in Arkansas, the complainant was in possession of controlled substances.

In Finding of Fact No. 12, add the following at the beginning of the first sentence:

Based on the information provided to KAS by the complainant's wife in July 2002, and based on the statements and admissions made by the complainant in his meeting with KAS representatives on July 18, 2002,


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

Dated and mailed November 28, 2007
betters . rmd : 110 :

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


This case arises out of an allegation by the complainant, Anthony Betters, that the respondent Kimberly Area Schools discriminated against him and discharged him from his position as a school maintenance employee because of his arrest record, in violation of the Wisconsin Fair Employment Act. After hearing, an administrative law judge (ALJ) for the Equal Rights Division issued a decision finding that the respondent did not discharge the complainant because of his arrest record, but because of its belief, based on information it acquired from sources other than the law enforcement and court system -- sources including statements of the complainant himself -- that the complainant had been dishonest and had been engaged in use of illegal drugs. On that basis, the ALJ concluded that the respondent had not violated the WFEA, and he dismissed the complaint. The complainant has petitioned for review, both raising procedural issues and arguing that the ALJ erred on the merits and that he was indeed discriminated against because of arrest record. (1) 

Discovery/Procedural Issues -- Alleged non-production of questions asked at July 18, 2002 meeting -- The complainant argues that the ALJ erred by not ordering the respondent school district to provide discovery that he contends was "critical" to his case. This has to do with a request the complainant made before the hearing for the respondent to provide him with the questions he was asked at a meeting held on July 18, 2002, after which the complainant was discharged. (2)   The respondent objected to this on the grounds that the information sought was protected by attorney-client privilege or was attorney work product.

The complainant argues that he needed this information to impeach the testimony of the other witnesses who were at that meeting, and that without this information he was not given a fair chance to prove his case. The commission does not agree. The complainant was at that meeting, as was his brother, and both of them thus were aware of what questions were asked during the meeting. Both had the opportunity to testify, and did testify, about what occurred at that meeting. In addition, all but one of the other persons who were present at that meeting were also present at the hearing in this matter, and the complainant had the opportunity to cross-examine them. Moreover, the commission agrees with respondent that the complainant's argument in this respect is ultimately beside the point because the ALJ found -- and the commission agrees -- that the respondent's decision to discharge the complainant was motivated largely by statements and admissions which the complainant made during that meeting on July 18. What might be or might have been proved about the questions he was asked would not change the state of the facts regarding what the complainant himself said and admitted to during this meeting.  

Discovery/Procedural Issues -- Respondent's deposition of Complainant -- The complainant argues at length in his petition for review about the issues which arose in connection with the respondent's deposition of the complainant. However, the only issue regarding the deposition which survived to the point of the ALJ's decision, was the issue of whether the ALJ would grant the respondent's request for imposition of sanctions against the complainant for his refusal to cooperate with the deposition. The ALJ denied the respondent's motion for sanctions, and the respondent has not sought review of that ruling, so it is not necessary to address the matter of the deposition.  (3)  

Discovery/Procedural Issues -- Subpoenas -- Prior to the hearing, the complainant mailed subpoenas to a number of people. These were subpoenas that he drafted and signed himself. At the beginning of the hearing, the complainant stated that some of the individuals who he had subpoenaed had not showed up, and there was some discussion about whether the subpoenas had been properly served by mail and without pre-payment of fees. There was no discussion of who actually issued the subpoenas. The ALJ disposed of the matter by indicating that if after the hearing the complainant believed the absence of the subpoenaed individuals had affected his ability to present his case, he could submit argument on the issue. After the hearing, the complainant did file argument addressing matters including the subpoenas; the respondent argued in response that the subpoenas were served improperly given their manner of their service and lack of pre-payment of witness fees and travel.

In his decision, the ALJ discussed but did not resolve the issues relating to the subpoenas which the parties had argued, stating instead that even if the service had been proper, the subpoenas were invalid because they were issued by the complainant himself, not by an attorney. In that regard the ALJ cited to Wis. Stat. § 885.01, which lists persons who may issue subpoenas and which does not include parties to a case.

The commission agrees that the subpoenas were not valid. The more directly applicable authority is Wis. Stat. § 227.45(6m), which provides that "A party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence," and the ERD's own administrative rule, Wis. Admin. Code § DWD 218.15, which states that "The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of evidence". On the basis of this authority, the commission has held expressly that a subpoena issued by a party who was not an attorney was invalid. Oriedo v. MATC (LIRC, July 24, 1998).

In his petition for review, the complainant argues that he was "acting as [his own] attorney" in the matter and was therefore an "attorney" within the meaning of the relevant provisions. This argument is unpersuasive. The complainant was acting as his own representative, but that did not make him a member of the bar and thus an "attorney" within the meaning of Wis. Admin. Code § DWD 218.15, or Wis. Stat. § 227.45 (6m). As indicated by Oriedo, those provisions refer to actual members of the bar.

The complainant also argues that a statement in the ALJ's prehearing letter to him that "it is your responsibility to conduct discovery on your behalf," led him to believe that he could subpoena witnesses for himself. The commission doubts that this statement actually had anything whatsoever to do with the complainant's subsequent decision to issue the subpoenas himself, but in any event the ALJ's statement certainly did not suggest what the complainant claims. The simple fact is that under the law pre-hearing discovery is distinct from the processes used to summon witnesses and evidence to a hearing, and the statutory and rule provisions governing the latter (as opposed to the former) make it express that a non-attorney may not issue a subpoena requiring attendance at a hearing. 

Merits -- alleged discrimination because of arrest record -- Based on its review of the record, the commission believes that the findings of the ALJ by and large paint an accurate portrait of the material facts in this case. The commission has carefully considered the objections raised by the complainant to a number of those findings, but for the following reasons it finds those objections unpersuasive.

The ALJ found (Finding of Fact No. 3) that on December 1, 2001, the complainant was arrested in Menominee County, Wisconsin, that a search of his person revealed the presence of cocaine and marijuana, that during the booking procedure the complainant admitted smoking marijuana earlier that day, and that this admission found its way into the officer's written report. The complainant argues, with respect to these findings, that the officer misunderstood him and that he did not admit to having smoked marijuana earlier that day. However, these findings made by the ALJ are all directly supported by the testimony of the law enforcement officer who arrested the complainant and who was present during the booking and heard the complainant make the statements reflected in the report. (T. 196-201). Perhaps more significantly, the findings are, although legitimately included in the decision as background and context, ultimately not material. As is discussed below, the persuasive evidence is that the complainant's arrest and his alleged statements to law enforcement officers, were not part of the reasons for the respondent's ultimate decision to discharge him.

The ALJ found (Finding of Fact No. 4) that on March 29, 2002, the complainant was arrested in Arkansas and charged with possession of marijuana and cocaine. The complainant argues with respect to this finding that he does not know where the ALJ is getting his facts from and that he was never charged with possession of marijuana. The commission agrees that while the record does establish that the complainant was arrested in Arkansas, and that at the time of that arrest he was in possession of controlled substances, the record does not indicate specifically that charges of possession of marijuana were filed against the complainant in connection with that arrest. It has modified the ALJ's finding to reflect this. However, this has no impact on the outcome of the case, since the respondent's decision to discharge the complainant was not made because of the arrest in Arkansas or because of the particulars of the charge there. That decision was instead made, as discussed below, because of conclusions the respondent drew from information about conduct by the complainant provided to it in discussions directly with the complainant's wife and with the complainant.

The ALJ found (Finding of Fact No. 5) that in May, 2002, Mr. Roberts was concerned because the complainant appeared glassy eyed and hyper at work, that Roberts assigned him to another job because of safety concerns and reported the incident to Mr. Zwiers, and that the complainant explained to Roberts that his appearance was caused by marital problems. The complainant argues with respect to this finding that Roberts was not at the hearing. While that is true, the testimony of Zwiers that Roberts had reported such observations to him, and the testimony of Lightner that Zwiers had relayed these reports to him, are nevertheless relevant. The ultimate issue in this case is what the actual subjective motivation was in the respondent's decision to discharge the complainant, and specifically whether that motivation was because of the complainant's arrest record, or because of some other reason. The evidence in the record that Lightner, who made the discharge decision, received reports from his subordinates which he credited that the complainant was acting in a manner suggesting that he might have been using drugs, supports the ultimate finding that the discharge decision was not made because of the complainant's arrest record but because of the respondent's belief from other sources that the complainant was in fact using illegal drugs.

The ALJ found (Finding of Fact No. 6) that around June 10, 2002, the complainant appeared at work in a similar condition and that when he spoke to Zwiers he explained he was having medical problems and taking anti-depressants. In response to this finding the complainant asserts that his appearance and manner on this day was the result of his being upset about marital problems. Again, this argument misses the point. The evidence supports a finding that the respondent's agents came to believe, in good faith, that the complainant had appeared and acted in a way suggesting use of illegal drugs. This evidence about what the respondent's agents believed is directly relevant to the ultimate issue of what their motive was.

The ALJ found (Finding of Fact No. 7) that in July, 2002, the complainant's wife contacted Roberts and told him and Zwiers that she believed the complainant was using cocaine and marijuana, that the complainant had been lying to the District about his use of sick leave for counseling and that he had been arrested in Wisconsin and in Arkansas. In response to this finding the complainant makes a number of assertions about his wife having been subpoenaed by the respondent but not called, and about her testimony at the arbitration hearing. The fact remains, though, that Zwier testified directly at the hearing before the ALJ that the complainant's wife told him, on this occasion, that the complainant was abusing his sick leave, was lying to the District, and was using cocaine and marijuana. That testimony is in the record; any testimony the complainant's wife may have given at the arbitration hearing, is not. If there is an inference to be drawn from a party not having called the complainant's wife as a witness at the hearing in this matter, it would be one to be drawn against the complainant. The commission is satisfied that the record supports the ALJ's finding that the complainant's wife made these allegations about him to the respondent, a fact which is very material to the ultimate question of why the respondent made its decision to discharge the complainant.

The ALJ found (Finding of Fact No. 9) that based upon its investigation the respondent determined that the complainant had taken a day of sick leave on a day when he had actually been in court in connection with having been arrested. In response, the complainant asserts that "this never happened." He asserts that the day he had a court appearance was July 15, 2002, and that he worked all day that day. However, the ALJ's finding was not specifically directed to that date; he simply found, as noted, that the respondent determined that the complainant took "a day of sick leave on a day when he had actually been in court". The ALJ's finding was based upon the evidence that the complainant's wife directly told Zwier that the complainant was abusing his sick leave and lying to the district, and specifically that he was lying to the district about time off. Mr. Lightner testified that Zwier reported to him about the information he got from the complainant's wife. Lightner also testified specifically that he (Lightner) believed the information relayed to him (T. 36, 107). While Lightner's mention of a specific date in the discharge letter may have been inaccurate, the commission is satisfied that insofar as the critical issue of motive is concerned, the record clearly supports the finding that part of the reason for the discharge was a belief, arrived at independently of the fact of the complainant's arrest, that he had lied to the district about reasons for taking leave.

The complainant does not directly challenge the findings of fact concerning the meeting of July 18, 2002 (Findings of Fact Nos. 10, 11). The testimony of Mr. Lightner and Ms. Weyenberg amply supports the findings that in that meeting, the complainant admitted having used cocaine in the near past, admitted having possessed cocaine in Arkansas, admitted having been in possession of illegal drugs when arrested in Menominee County, and admitted having sold drugs in the past.

The respondent's decision to discharge the complainant followed immediately after the meeting of July 18 at which the complainant made these admissions about his conduct. The letter informing the complainant of his discharge directly referenced the complainant's involvement with and use of illegal drugs, and his dishonesty in communicating with the respondent, as reasons for his discharge. These facts, and all the other evidence in the record, persuasively establish that the respondent acted not because of the complainant's arrest but because of its belief, based on its own independent investigation, that the complainant had engaged in the conduct charged in the arrest (and for other reasons, in this case, dishonesty, other than the arrest). Under the reasoning of City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 233 (Ct. App. 1984), there was thus no unlawful discrimination "because of arrest record."

Of course, the respondent had some information here about the fact that complainant had been arrested. The respondent also had a copy of an arrest report containing what purported to be information, provided by a law enforcement officer, to the effect that the complainant had made certain admissions in the jail. Such information, coming from the arresting authority, does not constitute information independent of the arrest and of the arresting authorities, but is part and parcel of the complainant's "arrest record". Betters v. Kimberly Area Schools (LIRC, 07/30/04).

However, the fact that the respondent had this information does not in and of itself prove that there was a violation of the prohibition against discrimination because of arrest record. The question is whether the employer's conclusion that the employee had engaged in unacceptable behaviors was based on other information, independent of the arrest and of the arresting authorities.

The critical question which needs to be answered to properly apply Onalaska in a case where an employer has both learned of and about an employee's arrest from the arresting authorities, and has learned things about the employee's conduct independently of the arresting authorities, is the question of the employer's motivation. The question is whether the employer made the decision to discharge the employee because of the information it acquired from the arrest and the arresting authorities, or because of the information it acquired through its own investigation independent of the arresting authorities. This being a question of the employer's subjective intent and motivation in arriving at the challenged decision, it is a question of ultimate fact. (citations omitted)

Betters v. Kimberly Area Schools (LIRC, 07/30/04). Here, the evidence shows that the respondent obtained a significant amount of information, through its own investigation independent of the arresting authorities, which led it to conclude that the complainant had used illegal drugs and had been dishonest with the respondent in a number of respects relating to or arising out of that drug use. The ALJ found, and the commission agrees, that the respondent's beliefs and conclusions regarding this conduct by the complainant were the result of the information the respondent obtained independent of the arresting authorities and the fact of the arrest. The respondent's actions taken because of its beliefs and conclusions, including its discharge of the complainant, were thus not "because of" the complainant's arrest record under the controlling interpretation reflected in Onalaska.


NOTE: In its Brief, the respondent argues in the alternative to its other arguments, that the complainant's claim should be considered barred by the doctrines of issue and claim preclusion. It bases this argument on what it describes as a binding arbitration award entered on a grievance brought by the complainant.

In its original decision in this case, the commission considered the question of whether claim preclusion or issue preclusion could be applied in circumstances such as this. Its conclusion was contrary to the argument now being made by the respondent. The commission stated:

For the foregoing reasons, the commission believes there is reason to be hesitant about giving "issue preclusion" effect to a grievance arbitration award in a subsequent litigation of an employment discrimination claim. Seeman [v. Universal Foods (LIRC, March 30, 1992)] is less than fully persuasive on this point, because it does not reflect consideration and application of the "fundamental fairness" standards which the commission has more recently recognized as applicable to the question of whether to apply issue preclusion. The commission believes that the better approach is to "accord [the arbitration award] such weight as may be appropriate under the facts and circumstances of each case", Krueger v. Dept. of Transportation [(LIRC, October 4, 1982)]; Alexander v. Gardner-Denver [415 U.S. 415 U.S. 36, 60, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974)].

As the commission noted, in Krueger it had specifically rejected the notion that an arbitrator's decision would preclude the department or the commission from examining de novo the issue of whether or not an employee was the victim of discrimination, and it adopted instead the approach suggested in Alexander v. Gardner-Denver, that what is appropriate is to admit the arbitral decision as evidence and to accord it such weight as may be appropriate under the facts and circumstances of each case.

When the commission issued its first decision in this case, it expressly set aside the decision of the first ALJ and remanded the matter for hearing on the merits of the complaint. However, for reasons which are not disclosed either in the record or in the respondent's brief, the respondent did not offer the arbitration award on which it now relies as evidence in the hearing held in this matter. As noted above, in Krueger the commission concluded that the appropriate way in which to proceed in cases such as this was precisely to "admit the arbitral decision as evidence and to accord it such weight as may be appropriate under the facts and circumstances." While the arbitration award had previously been filed with the ERD as an attachment to the respondent's motion to dismiss, its mere physical presence in the ERD's case file was not a substitute for a formal marking and receipt of the document into evidence, along with the submission of evidence about the circumstances (such as information about who testified before the arbitrator) under which the award was rendered. Such things are necessary to a determination of what weight it may be appropriate to give to the award.

Ultimately, though, these shortcomings in the record, and the consequent lack of any basis for determining what weight if any to give to the arbitration award, are irrelevant here. This is because the evidence introduced into the record at the hearing is in itself sufficient to establish that the discharge decision was made for reasons other than the complainant's arrest record.

Attorney Mark F. Yokom
Davis & Kuelthau, S.C.

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(1)( Back ) The respondent argues preliminarily that the complainant "abandoned prosecution of his petition for review" by not filing a brief. The commission does not agree. The complainant submitted argument with his petition for review when he filed it. The reason that a briefing schedule was subsequently established, was that the respondent requested it. The briefing schedule was just that: a schedule. Its purpose was to govern the timing of any further arguments the parties desired to file. It did not purport to order that such argument be filed, much less fix any sort of consequence for not filing such an argument. The fact that the complainant chose not to file any further argument provides no basis for concluding that he had "abandoned" his request for review.

(2)( Back ) This request was made by a letter to the ALJ dated April 25, 2006, in which the complainant asked the ALJ to order the respondent to provide him with copies of certain documents which (Betters asserted) the respondent had in its possession. The ALJ responded by a letter indicating that it was Betters' responsibility to conduct his own discovery; but that being said, he continued by "asking" the respondent's counsel (to whom a copy of the letter was sent) to treat Betters' letter as a discovery request and to act accordingly. Respondent's counsel subsequently indicated that he would do so.

(3)( Back ) In its brief to the commission, the respondent suggests that the complainant "seems" to be arguing that the ALJ erred in allowing the deposition to be used at the hearing. However, the commission sees no such argument in the complainant's petition for commission review. That petition's argument with respect to the deposition appears to be limited to the question of whether the respondent was entitled to sanctions -- a question which, as noted above, was no longer presented. The commission in any event agrees with the respondent's observation that in the absence of any objection by the complainant during the hearing to the use of the deposition, any issue in that regard was extinguished.


uploaded 2007/11/30