Wis.LIRC ER Decision: Konrad - June 10, 1998 - Conviction record discrimination - reason other than conviction record - falsification of application by failing to list previous convictions

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

ROBIN M KONRAD, Complainant

DORCHESTER NURSING CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603133

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.

DECISION

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

Dated and mailed: June 10, 1998
konraro.rsd : 105 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant asserts that the respondent discriminated against her on the basis of conviction record, when it discharged her just a couple of days after she began working for the respondent. No evidence in the record allows this inference, however. Rather, the only inference allowable by the evidence in the record is that the respondent's discharge of the complainant was due to the complainant's having falsified her application for employment by failing to list the correct number and dates of previous criminal convictions.

The complainant asserts specifically that the Director of Nursing Services, upon being told by the complainant of the complainant's criminal background, told the complainant that a career in nursing was not for her. First, there is no evidence to indicate that the complainant told the nursing services director the years in which her convictions occurred. Second, the nursing services director had no part in the respondent's discharge of the complainant, and there is no evidence whatsoever to indicate that the nursing services director gave any information about the matter to the respondent's executive director, who decided to discharge the complainant.

The complainant next asserts that the respondent's termination action form stated that the reason for discharge was a failed background check. The respondent argued credibly, though, that part of the background check was insuring that an individual employment application was accurate. In this case, it was not and the complainant is unduly generous to herself in characterizing her incomplete disclosures as only mistakes.

The complainant next asserts that the respondent's executive director conceded that under certain circumstances the respondent would not hire individuals with conviction records. Of course this is no more than a layman's statement of Wis. Stat. 111.335(1)(c)1., which states that it is not employment discrimination because of conviction record to terminate from employment an individual the circumstances of whose conviction record substantially relate to the circumstances of the employment in question.

The complainant asserts, finally, that the respondent conceded knowing about the complainant's two convictions via the June 13, 1996 Authorization for Background Check the complainant filled out before starting her employment on June 17. Again, though, the issue is not whether any particular employe of the respondent knew about the number of convictions, but rather whether the decision-maker in the decision to terminate the complainant's employment knew of the number of convictions. There is no evidence to indicate that the respondent's executive director knew of the complainant's notation of the second (1996) conviction. Further, the complainant did not list the correct date for the first of her two convictions, which in fact was in 1995.

For all of the above reasons, the commission agrees with the administrative law judge that there is insufficient evidence to establish that the respondent terminated the complainant's employment because of her conviction record, in violation of the Wisconsin Fair Employment Act.

cc:
RICHARD S. HOYERMAN
PETER L. ALBRECHT

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