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



ERD Case No. CR200704413

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 section a. on the first page of the decision, the words "termination of employment" are deleted.

In numbered paragraph 8. on page 2 of the decision, the word "Directory" is changed to "Director."

In numbered paragraph 13. on page 3 of the decision, the last sentence is deleted.

The MEMORANDUM OPINION section is deleted.


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

Dated and mailed October 1, 2010
sanfogi . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


Wisconsin Statutes § 111.321 provides as follows, as relevant here:

Prohibited bases of discrimination. Subject to ss. 111.33 to 111.365, no employer...may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of...arrest record...

Wisconsin Statutes § 111.322(1) provides as follows, as relevant here:

Subject to ss. 111.33 to 111.365, it is an act of employment discrimination to do any of the following:

(1) To...terminate from employment...any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment...because of any basis enumerated in s. 111.321.

Wisconsin Statutes § 111.32(1) provides as follows:

(1) "Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

Wisconsin Statutes § 111.335 provides as follows, as relevant here:

111.335 Arrest or conviction record; exceptions and special cases.

(1)(b) Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity....


The issue here is not whether there was just cause for the complainant's termination, nor whether he engaged in misconduct, but instead whether the respondent terminated him because of his arrest record.
While it is unlawful to discharge an employee because of the fact of the employee's arrest, an employer's decision is not because of the arrest when it is motivated by the employer's belief that the employee has, in fact, engaged in certain unacceptable conduct, and when that belief arises from some source other than the mere fact of the arrest. City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984). See, also, Ηоѕkіnѕ v. County of Juneau, ERD Case No. CR200403113 (LIRC Feb. 26, 2010).

In Delapast v. Northwoods Beach Home Caring Homes, ERD Case No. 8901907 (LIRC Feb. 17, 1993), the commission held:

While it is unlawful to discharge an employe because of the fact of that employe's arrest, an employer's decision to discharge is not because of the arrest when it is motivated by the employer's belief that the employe has in fact engaged in certain unacceptable conduct and when that belief arises from some source other than the mere fact of the arrest. Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 223 (Ct. App. 1984). That source may be an admission by the employe, see, e.g., Levanduski v. Visiting Nurses Association (LIRC, February 10, 1988), or statements to the employer by others who witnessed the conduct, Redmon v. Milwaukee (LIRC, February 22, 1990), or direct observation made by the employer while joining in a police search, Seever v. Catholic Charities Bureau (LIRC, September 20, 1990), or an investigation by the employer that made use of information obtained from a contemporaneous police investigation, Williams v. Northeast Wisconsin Technical College (LIRC, July 9, 1991). It is when the fact of the arrest is the "one source and only source" for Respondent's belief in the employe's guilt, that Onalaska does not apply. Maline [v. Wisconsin Bell, ERD Case No. 8751378 (LIRC Oct. 30, 1989)].

Here, as the ALJ found, the source of the information relied upon by the two decision-makers (Pope and Loyd) in reaching the decision to terminate the complainant was not limited to the fact of the arrest, or the content of the arrest record, but instead included Julie Sanford's statement to Marg on October 22 that she had been beaten by the complainant, and Julie Sanford's verification to Loyd on October 24 that she had been dragged, struck, choked, and shoved by the complainant. The respondent credited the information provided by Julie Sanford, and relied upon it to conclude that the complainant had engaged in a violent assault of his wife and coworker on October 20 and should be terminated as a result.

Consequently, consistent with the holding in Onalaska, supra., the complainant's termination was not because of his arrest record, and the complainant failed to sustain its burden to prove a violation of the WFEA in regard to his termination as a result.

Part of complainant's theory here appears to be that, since respondent was aware of the fact of the complainant's arrest, and the content of the related arrest record, and relied upon this knowledge in questioning Julie Sanford, the Onalaska defense is unavailable. However, Onalaska and its progeny do not require that the respondent have no knowledge of or familiarity with an arrest record, but instead that this not be the sole or primary basis upon which the respondent formed its belief that the complainant had engaged in the underlying conduct. As the commission stated in Delapast, supra., "[i]t is when the fact of the arrest is the 'one source and only source' for Respondent's belief in the employe's guilt, that Onalaska does not apply." Relying, as here, upon the alleged victim's verification of certain details set forth in the criminal complaint, does not constitute reliance upon the arrest record per se. See, Williams v. Northeast Wisconsin Technical College (LIRC July 9, 1991)(no arrest record discrimination even though employer's investigation made use of information obtained from police report); Betters v. Kimberly Area Schools, ERD Case No. 200300554 (LIRC Nov. 28, 2007)(mere possession of arrest record information, including criminal complaint, not bar to application of Onalaska defense).

The complainant also argues that respondent's failure to await the final threat assessment report before deciding to terminate the complainant shows that the respondent's investigation was incomplete and insufficient.

However, in applying the Onalaska defense, the question is not whether the investigation was optimal and exhaustive, but instead whether the belief formed by the respondent after this investigation that the complainant had in fact engaged in the underlying conduct, had a factual basis other than the arrest record itself, and whether this belief was reasonably consistent with the information obtained during the investigation.

Moreover, the record shows that the purpose of the threat assessment process was not to make a recommendation as to the continued employment of the complainant, but instead to determine what safety measures should be put in place to protect Julie Sanford.

Complainant also argues that the fact that the respondent did not solicit information from the complainant prevents application of the Onalaska defense here. Again, the investigation is not required to be optimal and exhaustive. Although the complainant is one possible source of independent information, it is not a required source. See, Delapast, supra.; Redmon v. Department of City Development, ERD Case No. 8832903 (LIRC Feb. 22, 1990)(statements from victim and victim's brother sufficient alone to invoke Onalaska defense). In Taylor v. St. Michael Hospital, ERD Case No. 199901329 (LIRC May 31, 2001), the commission stated that, "Nothing in City of Onalaska indicates the need for [complainant] Taylor's admission to committing an offense in order for the respondent to avoid liability against a complaint of arrest record discrimination." See, also, Levanduski v. Visiting Nurse Association of Sheboygan, Inc., ERD Case No. 8551685 (LIRC Feb. 10, 1998).

Complainant also points to the testimony of certain witnesses to assert that the record establishes that the termination decision was made prior to Loyd's meeting with Julie Sanford on October 24, and could not have been based on the information conveyed in this meeting as a result.

However, the testimony of Pope, the individual who made the termination decision, was clear and consistent and appropriately credited by the ALJ. Pope testified that:

Complainant points to an email to Pope from Ron Hitzke (Hitzke), complainant's supervisor, sent on October 24 at 3:21 with a subject line "Termination of Gill Sanford," as evidence that the termination decision had been made before Pope's meeting with Loyd.

It should first be noted that Pope's meeting with Loyd lasted until 3:15 or 3:20 p.m., so an email sent at 3:21 p.m. could have been sent after this meeting had concluded.

Moreover, this subject line does not necessarily establish that the termination decision had been made and communicated to Hitzke before he sent the email. As Pope and Hitzke testified, Hitzke was aware that the respondent was considering whether to continue the complainant's employment, and had been concerned all week that Pope make a decision as soon as possible because Hitzke had to make arrangements to fill the complainant's scheduled shifts. Hence, the subject line could refer to a personnel decision that had already been made or, just as reasonably, a personnel action that was still under consideration.

Complainant also points to Loyd's testimony that the decision to terminate the complainant was made at a meeting with respondent's legal counsel, and the only meeting with counsel she could specifically recall took place at 10 a.m. on October 24, prior to her meeting with Julie Sanford.

However, the record shows, as the ALJ found, that the termination authority here resided with Pope, who made the termination decision, and Pope was not present at any meeting with respondent's legal counsel relating to the complainant's employment status on October 24 or at any other time.

Moreover, Sandra Moore (Moore), respondent's senior employee relations specialist, who was present at the 10 a.m. meeting with legal counsel on October 24, testified that a decision to terminate the complainant was not made at that meeting. (Tr. I, page 157)

The complainant also argues that the fact that Hitzke phoned the complainant the morning of October 24 to arrange what turned out to be a termination meeting necessarily establishes that the termination decision had already been made. However, the record shows instead, as the ALJ found, that Pope had informed Hitzke that he intended to make a decision as to the complainant's status by the end of the day on October 24, and Hitzke, relying upon this information, scheduled a meeting with the complainant for the afternoon of October 25.

The complainant asserts further that the purpose of Loyd's meeting with Julie Sanford was to discuss the complainant keeping his job, not the investigation of the October 20 incident. However, the record shows that information as to the October 20 incident was obtained by Loyd during the meeting, which she subsequently communicated to Pope, and it is irrelevant what the original purpose of the meeting had been.

The complainant also points to Julie Sanford's testimony that what she provided in her meeting with Loyd was "cursory and general" information as to the October 20 incident. Julie Sanford also testified, however, that, when presented with the details of the incident as reflected in the criminal complaint, she told Loyd that these details were essentially accurate.

The complainant cites Blunt v. State of Wisconsin, Department of Corrections, ERD Case No. CR200302691 (LIRC Feb. 4, 2005), as a case with many similarities to the instant case but in which the commission found that the Onalaska defense did not apply.

However, in Blunt, the only information available to the decision-maker other than the fact of the arrest and the content of the arrest record was the complainant's statement to his supervisor that the police had found marijuana in his car. The commission held that, in the absence of an admission by Blunt that the marijuana had been his, or some other reliable information supporting the fact that the marijuana found in Blunt's car belonged to him, the only information upon which the respondent could have relied in forming the belief that Blunt had possessed a controlled substance was the fact of his arrest and the content of the arrest record, and, as a result, the Onalaska defense would not apply.

Here, however, the information available to the decision-maker, in contrast, included two statements by the alleged victim indicating that she had been beaten by the complainant and that the description of the underlying incident in the criminal complaint was factually accurate.

Terms and conditions

The complainant alleged in his charge that the requirement that he take paid time off October 22 through 24 discriminated against him based upon his arrest record.

Since the complainant did not present any argument relating to this allegation in his briefs to the commission, it appears he has withdrawn it. See Schramm v. Farm & Fleet of Dodgeville, Inc., ERD Case No. CR200002297 (May 14, 2003).

However, in the event that the complainant has not withdrawn this allegation, the complainant has failed to sustain his burden of proof in this regard.

The record shows that, prior to requesting that the complainant take paid leave, Pope and Hitzke, who decided to make this request, were aware of not only the fact of complainant's arrest, but also of the restraining order preventing the complainant from having any contact with Julie Sanford. Requesting that the complainant not report to work in order to enable the respondent an opportunity to review the requirements of the restraining order, and to determine whether it would be possible to return the complainant to work within the constraints of the order, would not constitute arrest record discrimination. See, Schmid-Long v. Hartzell Mfg., ERD Case No. 199701693 (LIRC March 26, 1999)(while restraining order prohibiting contact between complainant and coworkers may have been a consequence of complainant's arrest, it was not a circumstance related to the underlying charge and respondent's suspension of complainant based upon restraining order not arrest record discrimination).

Moreover, pursuant to Wis. Stat. § 111.335(1)(b), it is not employment discrimination because of arrest record to suspend an employee pending the outcome of criminal charges where the circumstances of the pending charges substantially relate to the circumstances of the employee's position.

Here, the complainant's shift overlapped with Julie Sanford's usual shift, and part of complainant's duties included work on each of the nursing floors, including the one to which Julie Sanford was assigned. Obviously, then, the circumstances of the underlying charge, i.e., the physical assault of Julie Sanford, were substantially related to the circumstances of complainant's work. Although the complainant argues that it would have been possible for the respondent to change the complainant's and Julie Sanford's schedules to prevent any contact between them, that is not the test. As the commission held in Schmid-Long, supra., the arrest record law does not impose upon employers a duty to accommodate pending charges, and it is the circumstances as they exist that are evaluated in assessing the existence of a substantial relationship.

The complainant also argues that Julie Sanford herself indicated that she was not worried about her safety. However, what Julie Sanford actually stated was that she was not concerned about her safety while she was actually present at work since there were others around, but she was concerned about her safety going to and from work, and it was presumably for this reason that she accepted the respondent's offer of a parking space close to the building, and the ability to request escorts to and from her car.


Attorney Peter M. Reinhart
Attorney Leslie A. Sammon

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

uploaded 2010/10/22