STEVEN W LEFEVER, Complainant
PIONEER HI BRED INTERNATIONAL INC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. Paragraphs 35-41 of the administrative law judge's FINDINGS OF FACT are deleted.
2. Paragraph 42 of the administrative law judge's FINDINGS OF FACT is moved to the end of paragraph 23 of the FINDINGS OF FACT.
3. Paragraph 43 of the administrative law judge's FINDINGS OF FACT is deleted.
4. The following paragraph is inserted after paragraph 2 of the administrative law judge's CONCLUSIONS OF LAW:
"The circumstances of the complainant's convictions for speeding were substantially related to the circumstances of his position as a district sales manager for the respondent, within the meaning of Wis. Stat. § 111.335(1)(c)1."
5. Paragraph 3 of the administrative law judge's CONCLUSIONS OF LAW is renumbered to paragraph 4.
6. The first five full paragraphs of the administrative law judge's MEMORANDUM OPINION, ending at the bottom of page 12 of the decision, are deleted.
7. The second through fourth full paragraphs on the eighth page of the administrative law judge's MEMORANDUM OPINION, page 18 of the decision, are deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed May 14, 2010
lefevst . rmd : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § § 111.321 and 111.322. However, the law contains the following exception:
Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .
Wis. Stat. § Section 111.335(1)(c)1.
It is undisputed that the complainant was discharged because of his conviction record. The only question raised is whether the circumstances of the conviction record were substantially related to the circumstances of the job.
A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987).
In Gumbert v. Ken Loesch Oldsmobile (LIRC, July 9, 1985), the commission discussed the character traits displayed by having received speeding convictions:
"Multiple convictions for speeding indicate a reckless disregard for the posted speeds limits and for one's fellow drivers. Those who have been convicted of speeding as many times as the Complainant [four times over a two-year period], have demonstrated that they have extremely poor judgment when driving. It is not as if Complainant had one conviction for speeding. Had such been the case, that conviction, depending on the circumstances, might be viewed as a fluke or a one-time mistake. To the contrary, Complainant's convictions are not a fluke, but represent, instead, a current and continuing dangerous manner of driving. Complainant's driving habits are in direct conflict with the concept of driving safely and obeying the rules of the road."
The commission held that Gumbert's speeding convictions were substantially related to his job performing body work for Loesch Oldsmobile, which required him to drive customers' cars between two locations at least two or three times a day and to road test vehicles.
In this case, the complainant has a conviction record consisting of eight driving citations for speeding accrued over a four-year period. Six of those instances involved speeds of 11 to 19 miles over the posted limit. The relationship of the offense to the job is clear. The complainant spent much of his time on the road, logging at least 36,000 miles a year in company owned vehicles, and the respondent had an interest in employing safe drivers. The respondent was concerned both for the safety of its employees and the safety of the public. Further, it had an interest in avoiding the potential financial risks associated with employing an unsafe driver.
Moreover, at least three of the convictions were for conduct which occurred while the complainant was driving the respondent's vehicle. The commission has held that a conviction for conduct which an employee has engaged in on the job is per se "substantially related" to that job. Murray v. Waukesha Memorial Hospital, Inc. (LIRC, May 11, 2001); Kozlowicz v. Augie's Pizzaria (LIRC, December 7, 1983). The commission reasoned that, in such cases, the person's own conduct is proof that the job is a circumstance predisposing him or her to commit the type of offense committed. See, Murray.
The complainant's main argument is that other people with poor driving records were not discharged, and much of the hearing was devoted to why these individuals were treated differently than the complainant. However, if the complainant's conviction record is substantially related to the job, then it is not discrimination to discharge him based upon that record, without regard to how other employees were treated.
The commission addressed this point in Mullikin v. Wal-Mart Stores (LIRC, Aug. 27, 1992), in which it stated in relevant part:
". . . Having found Complainant's conviction record to be substantially related to his employment, it really does not matter what action the Respondent took with respect to [another worker with a conviction record]. This is so, because sec. 111.335, Stats., expressly provides that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of an offense the circumstances of which substantially relate to the circumstances of the particular job. The fact that an employer may choose to discriminate in the employment of individuals with conviction records the circumstances of which substantially relate to a particular job, is not a prohibited basis of discrimination made unlawful under the Act."
See, also, Zeiler v. State of Wisconsin DOC (LIRC, Sept. 16, 2004):
"Presuming, without deciding, that the complainant had demonstrated the respondent was not consistent in the application of its policy, such a conclusion would have no effect on the outcome of this case. An employer has a right to deny employment to individuals who have conviction records which are substantially related to the circumstances of the job. Wis. Stat. § 111.335(1)(c)1. The fact that an employer does not refuse employment to everybody it has a right to does not render its decision to refuse employment to one such person a violation of the law. The "substantial relationship" test is a legal test, not a test of the employer's motives. Black v. Warner Cable Communications Co. of Milw. (LIRC, July 10, 1989). . . ."
Moreover, while the complainant has pointed out that the respondent moved some employees into different, non-driving jobs, an employer is not required to accommodate an employee's criminal conviction by placing him in an assignment not substantially related to the circumstances of his conviction. Ѕhеrіdan v. United Parcel Service (LIRC, July 11, 2005). The fact that it may have done so for others does not mean it discriminated against the complainant by refusing to do so for him.
To recap, the complainant was discharged based upon his conviction record for multiple instances of speeding, some of which occurred while on the job. The circumstances of the complainant's conviction record were substantially related to the circumstances of a job requiring a great deal of driving. The commission, therefore, agrees with the administrative law judge's ultimate conclusion that the respondent's decision to discharge the complainant was not in violation of the law.
The commission has made several modifications to the administrative law judge's decision. First, it has modified the decision to delete the finding that "Neither arrest record nor conviction record were a motivating factor(s) in the termination of the complainant's employment by the Respondent." The evidence clearly indicates that the complainant was discharged because of his conviction record, and that point is not in dispute. The administrative law judge's finding to the contrary appears to have been included in the decision in error. The commission has also deleted the findings with respect to the respondent's treatment of other employees with driving convictions. As explained above, the commission does not believe that comparative evidence has any bearing on the outcome of this case. For the same reason, the commission has also removed those portions of the administrative law judge's memorandum opinion that address the treatment of comparable employees. Finally, the commission notes that the traditional McDonnell Douglas burden shifting analysis described on the first two pages of the administrative law judge's memorandum opinion does not apply in this case. The burden shifting analysis is intended to provide a framework to assist the decision-maker in determining the real reason for the employment action taken. Where, as here, the respondent has conceded that the complainant was discharged because of his conviction record, it is unnecessary to apply the McDonnell Douglas analysis. The commission has therefore deleted that portion of the memorandum opinion.
Attorney Jessica T. Kirchner
Attorney Alissa Raddatz
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