ROXANNE M ALVEY, Complainant
FIRST STUDENT 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 makes the following:
1. The complainant, Roxanne M. Alvey (hereinafter "complainant"), is an individual with a conviction record.
2. On June 10, 1999, the complainant pleaded guilty/no contest to and was convicted of a violation of Wis. Stat. § 943.20(1)(a), misdemeanor theft-movable property, <=$1000. The complainant was ordered to serve 18 months probation, fined $54 and ordered to pay $20 in court costs.
3. The respondent, First Student, Inc. (hereinafter "respondent"), is an employer that does business in the State of Wisconsin.
4. The complainant applied for a job with the respondent on January 15, 2004. She filled out an application that asked if she had ever been convicted of a crime. The complainant initially checked the "no" box. However, that response is crossed off and the "yes" box checked. A notation next to the box states, "Misunderstood-thought she just had to pay fine."
5. The complainant was hired by the respondent to work as a school bus driver. She began the job in February of 2004.
6. On October 30, 2007, at which point the complainant had been employed by the respondent for over three and a half years, she was required to fill out a second job application because the respondent underwent a name change. The application asked if the applicant had ever been convicted of a crime and stated, "If yes, must explain." The complainant checked the box "yes" and, in the space provided for an explanation, wrote, "Neighbor accused me of taking lawn furniture to use for a party."
7. On June 8, 2008, the respondent's district manager, Sharron Rasmussen, called the complainant into a meeting and asked her to verify that she had been charged with the crime of theft of movable property. The complainant did so, and explained the circumstances behind the offense. Ms. Rasmussen told the complainant she was skeptical that her actions in taking the neighbor's lawn furniture without permission would result in a theft charge and requested further information. The complainant presented the respondent with a copy of her judgment of conviction and the Wisconsin Circuit Court Access printout. She also sent the respondent a letter in which she reiterated that the charge was a misdemeanor that did not result in any jail time.
8. On June 23, 2008, the respondent sent a letter to the complainant which stated, in relevant part:
"We are writing to inform you that your employment with First Student has been terminated. The decision to terminate your employment was based in part upon a criminal background check, a summary of which is enclosed. The primary reason for your termination was the falsification of your employment application as you failed to fully disclose these prior convictions. . . ."
9. The complainant did not falsify her employment applications.
10. The complainant was discharged because of her conviction record.
Based upon the above FINDINGS OF FACT the commission makes the following:
1. That the complainant is an individual with a conviction record, within the meaning of the Wisconsin Fair Employment Act.
2. That the respondent discriminated against the complainant based upon her conviction 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 because of her conviction record.
2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position she held prior to her discharge. 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 her all seniority and benefits, if any, to which she 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 she would have earned as an employee from the date of discharge until such time as the complainant resumes employment with the respondent or would resume such employment but for her 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. 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 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 taken to comply with the commission's Order. The compliance report shall be directed to the attention of Jenny Koepp, 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. Stat. § § 111.395, 103.005(11) and (12).
Dated and mailed August 22, 2011
alveyro . rrr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Procedural background
The complainant filed a complaint with the Equal Rights Division (hereinafter "Division") on July 28, 2008, alleging that she was discharged from her job as a school bus driver with the respondent based upon her conviction record. That day, an Equal Rights Officer from the Division sent a copy of the complaint to the respondent's attorney, Audrey Adams. (1) A response was due by August 28, 2008. However, no response was received.
On October 8, 2008, the Equal Rights Officer sent a certified letter to Attorney Adams at the address cited in the footnote requesting information no later than October 22, 2008. The letter advised that, if no response was submitted, the Equal Rights Officer would issue a decision based solely on the information in the file. An individual named Rob (last name indecipherable) signed for the certified letter on October 10, 2008. However, no response was received.
On November 13, 2008, the Division issued an initial determination finding probable cause to believe that discrimination occurred, and certifying the matter for a hearing on the merits. A copy of the initial determination was sent to the respondent at its Muskego address. However, it does not appear that a copy was sent to Attorney Adams.
At some point after the issuance of the initial determination, the respondent provided the department with a mailing address on Vine Street in Cincinnati.
On October 9, 2009, a hearing notice was sent to both parties, advising the parties that a hearing was scheduled for December 2, 2009 at 9:00 a.m. at the State Office Building in Milwaukee. The respondent's hearing notice was sent to the Vine Street address with a copy to Attorney Adams.
The complainant appeared at the hearing, but the respondent did not appear. The hearing proceeded without the respondent's participation.
On September 17, 2010, the administrative law judge issued a decision finding that the respondent had discriminated against the complainant as alleged and ordering it to cease and desist from discriminating and to pay the complainant back pay.
On October 8, 2010, the respondent submitted a petition for commission review. The petition, which was submitted on the respondent's behalf by Attorney Lisa Baiocchi of the Jackson Lewis Law Firm, focuses solely on the respondent's failure to appear at the hearing. The respondent explains that notice of these proceedings was addressed to Audrey Adams of FirstGroup America, Inc., but that Attorney Adams had left her position on July 20, 2007 to work for another employer and did not work for FirstGroup again until March 2, 2009. The respondent states that notice of the case was sent to Attorney Adams' attention during the period of time she was not working for First Student and that "the transition between individuals controlling First Student's Inc.'s legal cases left notice of these proceedings in limbo." The respondent argues that its failure to receive notice of the complainant's claims constitutes excusable neglect. It asks the commission to reopen the proceedings or, in the alternative, to hold a hearing on whether the respondent had good cause for missing the hearing.
In support of its assertions, the respondent attaches an affidavit from Attorney Adams in which she states, in relevant part:
2. FirstGroup America, Inc. is the parent company of First Student, Inc.
. . .
5. I have been employed by First Student, Inc. and FirstGroup America, Inc. as Senior Labor Counsel from March 2, 2009 until the present.
. . .
8. I understand the notice of the December 2, 2009 hearing was addressed to my attention at FirstGroup America, Inc. though I was not employed by FirstGroup America, Inc. or any related entity at the time.
On December 14, 2010, the commission notified the respondent by letter that it did not believe the respondent had established good cause for failing to appear. The commission invited the respondent to request a briefing schedule if it wished to submit written argument regarding the administrative law judge's determination that the respondent discriminated against the complainant. However, while the respondent did request an opportunity to file briefs on the merits of the case, and a briefing schedule was established, no brief was submitted.
Respondent's failure to appear
A party who is requesting a new hearing based upon a failure to appear at the original hearing must demonstrate good cause for the failure to appear. Good cause has been defined to mean excusable neglect; i.e. the degree of neglect a reasonably prudent person might be expected to commit in similar circumstances. See, Matousek v. Sears Roebuck and Company, ERD Case No. CR200302571 (LIRC Oct. 15, 2004).
The respondent has failed to demonstrate good cause for missing the hearing. The hearing notice was sent to Attorney Audrey Adams, the respondent's legal representative, at the address provided to the department. In her affidavit, Attorney Adams states that she had other employment during the pendency of these proceedings, but returned to work for First Student in March of 2009. The hearing notice was issued on October 9, 2009. Thus, notwithstanding her assertion that she was "not employed by FirstGroup America, Inc. or any related entity at the time," it appears that Attorney Adams was, in fact, working for First Student, Inc. and FirstGroup America, Inc. when the hearing notice was issued. Moreover, even if the commission were to accept Attorney Adams' assertion that she was not employed at FirstGroup America, Inc. when the hearing notice was issued -- which would require the commission to disregard paragraph 5 of her own affidavit -- the fact remains that the hearing notice was mailed to First Student, Inc. at the address on record with the department, and should have been forwarded to the person who was responsible for handling complaints filed against First Student, Inc. at the time. In addition, the commission notes that a copy of the hearing notice was also sent to the respondent at its Vine Street address. The complete failure of anyone associated with First Student, Inc. to review the hearing notice and to take appropriate action to ensure that the respondent appeared at the hearing goes well beyond what could be defined as "excusable neglect," and is not a circumstance that would warrant ordering further hearing.
The discharge letter which the respondent sent the complainant indicates that the complainant was discharged based upon her conviction record and for falsification of her application. However, the evidence does not establish that the complainant falsified an application. The complainant filled out two job applications, and in both instances she accurately and truthfully disclosed that she had been convicted of a crime. The first application did not ask for additional information and, on the second application, in which the respondent asked the complainant to provide an explanation for the conviction, the complainant stated that her neighbor had accused her of taking lawn furniture. Given that the unrebutted evidence in the record indicates that the complainant was convicted of theft in relation to having taken lawn furniture from a neighbor, the commission sees no reason to question the accuracy of the information provided by the complainant on her job application. Moreover, while the complainant testified that the respondent's general manager told her she did not believe the complainant's explanation as to the circumstances surrounding the conviction, the complainant's testimony on this point was hearsay, and the respondent did not appear at the hearing to offer any explanation for its actions. The record does not support a conclusion that the complainant falsified her application or that the respondent discharged her based on a good faith belief that she had done so.
Concluding that the complainant was discharged solely because of her conviction record, a remaining question to resolve before liability is assessed is whether the respondent established that the complainant's conviction record is substantially related to the job. The statute provides that it is not employment discrimination because of conviction record to terminate from employment an individual who has been convicted of a felony, misdemeanor or other offense, the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. Wis. Stat. § 111.335(1)(c)1. That a conviction record is substantially related to the job constitutes an affirmative defense to be raised by the respondent in its answer or potentially waived, and on which the respondent has the burden of proof. See Wis. Admin. Code § DWD 218.12(2); Robertson v. Family Dollar Stores, ERD Case No. 200404227 (LIRC Oct. 14, 2005); Ward v. Home Depot, ERD Case No. CR200400832 (LIRC Oct. 21, 2005).
In this case, the respondent did not file an answer to the complaint and did not appear at the hearing. The respondent has not raised the affirmative defense that the conviction was substantially related to the job, nor would the evidence in the record support such a conclusion. The complainant's conviction was for misdemeanor theft. The apparent qualities necessary to perform the job of school bus driver are the ability to drive safely and to conduct oneself in a manner that is safe and appropriate around children. Nothing in this record would support a conclusion that driving a school bus for the respondent would present any particular opportunity for recidivism in a person inclined towards theft, and the circumstances of the complainant's conviction do not appear to be substantially related to the circumstances of the job.
Remedy
Wisconsin Stat. § 111.39(4)(c) provides, in relevant part:
If, after hearing, the examiner finds that the respondent has engaged in discrimination. . ., the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay.
A person discriminated against should be "made whole." Davis v. Piechowski, ERD Case No. 8451599 (LIRC Oct. 24, 1986). Make-whole relief for an individual who has been discharged from employment for a discriminatory reason generally includes reinstatement into the job and back pay. As a rule, back pay liability ends at the time the employer's valid offer of reinstatement is rejected. Anderson v. LIRC, 111 Wis. 2d 243, 330 N.W.2d 594 (1983).
In this case, the administrative law judge's order includes back pay, but erroneously neglects to provide for reinstatement. Therefore, the order as it currently stands has no ending date at which back pay ceases to accrue. The administrative law judge's omission of reinstatement in the award not only denies the complainant the make-whole relief to which she is entitled, it also deprives the respondent of an opportunity to control when back pay is cut off and to ensure that back pay will not continue to accrue indefinitely. The commission, therefore, concludes that the order should be corrected to include an award of reinstatement.
NOTE: The commission has rewritten the administrative law judge's decision to include factual findings addressing the assertion contained in the discharge letter that the complainant was discharged, in part, due to falsification of her employment application, to eliminate factual findings and conclusions of law regarding substantial relationship, as this defense was not raised by the respondent, and to include an order of reinstatement that was erroneously omitted from the remedial order.
cc:
Attorney Lisa A. Baiocchi
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