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

CODY T LOVEJOY, Complainant


ERD Case No. CR200703609,

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 makes the following:


1. The respondent, Bumper to Bumper (hereinafter "respondent"), is a business selling automotive parts and tools to service stations, garages, and construction companies. The respondent also operates a walk-in retail business.

2. The complainant, Cody T. Lovejoy (hereinafter "complainant"), is an individual with an arrest record. On October 4, 2005, when the complainant was 17-years old, he was arrested for possession of a stolen moped. The complainant was charged with a violation of Wis. Stat. § 943.34(1)(a), "Receiving Stolen Property (<$2,500)," a class A misdemeanor. The complainant was told that if he participated in a first offender's program the charge would be closed and off his record. On December 4, 2005, the complainant pleaded guilty to the charge and entered into a deferred prosecution agreement. The complainant successfully completed the first offender's program and, on September 13, 2006, the charge was dismissed.

3. In late September of 2007 the complainant applied for a part-time "picker" position in the respondent's warehouse. The complainant was a full-time high school student at the time, but had applied to participate in an alternative school program that would enable him to attend school three hours per day and work during the remaining hours.

4. The job application that the complainant was asked to filled out contained no question asking whether he had a criminal record.

5. After submitting his application, the complainant was interviewed by Rod Luettinger, the store manager, and given a tour of the facility. The interview and warehouse tour lasted approximately half an hour.

6. At some point during the interview Luettinger asked the complainant if he had any skeletons in his closet he wanted to disclose. The complainant stated that he had had a problem involving receiving stolen merchandise that he did not know was stolen. Luettinger responded that this did not sound like anything to worry about and indicated that the complainant had a good chance of getting the job.

7. The complainant was among only two or three individuals interviewed out of approximately 25 applicants for the job. The respondent was in a hurry to fill the position, which was vacant at the time the complainant was interviewed.

8. After the interview was complete the respondent checked the complainant's record on Wisconsin Consolidated Court Automation Programs (hereinafter "CCAP"). The CCAP record for the complainant showed that he pleaded guilty to receiving stolen property, but that the prosecution was deferred and that the charges against the complainant were dismissed. After the respondent reviewed this information, Luettinger wrote on the complainant's application, "No! Failed criminal background."

9. The next day the complainant contacted Luettinger to ask about his status. Luettinger told the complainant that his application was "void," and that, because of his plea of guilty to the offense of receiving stolen property, he could not hire him. Luettinger elaborated that there were about $8 million worth of parts in the warehouse and that the complainant could not be trusted.

10. The respondent's decision not to offer the complainant employment was based on his arrest record. The respondent would have hired the complainant but for his arrest record.

11. Had the respondent hired the complainant, he would have been paid $8.15 an hour and would have worked approximately 20-22 hours a week.

12. The complainant worked for Qualitemps in the winter of 2007-2008 and earned a total of $2,330.82. During the same time period he also earned $87.21 from UPS.

Based upon the above FINDINGS OF FACT, the commission makes the following:


1. That the complainant has an arrest record, within the meaning of the Wisconsin Fair Employment Act.

2. That the respondent discriminated against the complainant based on his arrest record, within the meaning of the Wisconsin Fair Employment Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:


1. That the respondent shall cease and desist from discriminating against the complainant on the basis of arrest record.

2. That the respondent shall offer the complainant instatement into a position substantially equivalent to the position he applied for in September of 2007. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee from October 1, 2007, the approximate date on which the picker job would have commenced, until such time as the complainant begins employment with the respondent or would begin such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter, including but not limited to the complainant's earnings from Qualitemps and UPS. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's reasonable attorney fees and costs incurred in pursuing this matter.

5. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of the Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).

Date and mailed February 24, 2011.


/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The Wisconsin Fair Employment Act (hereinafter "Act") makes it unlawful to engage in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § 111.321. The Act defines an "arrest record" as follows:

111.32 Definitions.

(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.

In this case, the complainant was arrested and charged with a crime, but never convicted.(1) The complainant has an arrest record, within the meaning of the statute.

The Act provides only one exception to the injunction against discriminating against an individual with an arrest record; that is, it is not discrimination because of arrest record to refuse to employ or to suspend from employment 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. Wis. Stat. § 111.335(1)(b). That exception is not applicable here, however, as the charges against the complainant were not pending at the time he applied for the job with the respondent, but had already been dismissed.

The respondent has argued that it did not make its decision based on the complainant's arrest record, but because it independently concluded that he had knowingly received stolen property and been dishonest with it about the matter. This is the so-called "Onalaska defense," articulated in City of Onalaska v. LIRC, 120 Wis. 2d 363 (Ct. App. 1984), in which the court held that it is not arrest record discrimination for an employer to decide not to hire an applicant because it concludes from its own investigation and questioning of the individual that he or she has committed an offense. However, in this case the respondent did not conduct an independent investigation that would have led it to conclude that the complainant was either guilty of the charge or dishonest in his dealings with it. The only information the respondent reviewed prior to deciding not to hire the complainant was the CCAP report. Reviewing the CCAP report, which merely confirms the procedural facts about an individual's arrest or conviction record, does not constitute an independent investigation. When the fact of the arrest is the one source and only source for the respondent's belief in the employee's guilt, Onalaska does not apply. Maline v. Wisconsin Bell, ERD Case No. 8751378 (LIRC Oct. 30, 1989). In this case, the respondent decided not to hire the complainant because he pleaded guilty to a charge of having received stolen property, notwithstanding the fact that the charge was dismissed and no conviction ever resulted. Under the circumstances, the commission concludes that the respondent unlawfully denied the complainant hire based on his arrest record.

Where a complainant proves that he was denied a position for discriminatory reasons, instatement into the position and back pay should be ordered unless the respondent establishes by clear and convincing evidence that, even in the absence of discrimination, the rejected applicant would not have been selected for the open position. The commission will resolve any uncertainty against the discriminating respondent. Moore v. Milwaukee Board of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999); Silvers v. Madison Metropolitan School District (LIRC, July 25, 1986), aff'd. Silvers v. LIRC, Dane Cty. Cir. Ct., Case #83-CV-3644, February 13, 1984. In this case, the complainant established that he was one of only two or three candidates interviewed for the job and that the respondent told him it was likely he would be hired. The respondent agreed that the complainant interviewed well, and it presented no evidence to suggest that the complainant would not have been hired absent his arrest record. The respondent is therefore ordered to offer the complainant hire into the next available picker position, or other similar position, with back pay to the time when he would originally have been hired but for the act of discrimination. As noted in the commission's ORDER, the complainant's back pay must be offset by his interim earnings, including, but not limited to, those referenced in the commission's decision.


NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission's reversal is based on a differing interpretation of the law.


Attorney Aaron N. Halstead
Ms. Cathy Ault

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(1)( Back ) The administrative law judge's decision indicates that, although the complainant was never actually convicted of a crime, the administrative law judge was nonetheless bound by the parties' stipulation on the record that the complainant was convicted of receiving stolen property. The commission disagrees. The complainant's attorney erred in stipulating that the complainant was convicted, as it is clear from the record that no conviction ever resulted. Indeed, the parties later stipulated, inconsistent with the original stipulation, that the charge against the complainant was dismissed on the prosecutor's motion. The fact that the complainant stipulated to something which other evidence in the record shows to be in error does not require the decision maker to overlook the actual facts in the case.


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