ERD Case No. 8901907, EEOC Case No. 8902420

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations  issued a decision in the above-captioned matter on August 12, 1991. Complainant filed a timely petition for review by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. In the first sentence of Finding of Fact number 4 delete "Delpast" and substitute "Delapast".

2. Add the following as a new Finding of Fact number 5:

"Northwoods' change in Delapast's duties was not intended to induce her to resign, but was a good faith attempt to remove her from duties which were substantially related to the circumstances of the charge pending against her while preserving her employment."

3.  Add the following as a new Finding if Fact number 6:

"Following the reassignment of Delapast to other duties, Delapast became increasingly hostile and resistant to supervisory direction.  Although Delapast did indicate to the Respondent's board on some occasions that she believed she was being discriminated against because of arrest record, and although she filed a complaint of discrimination with the Equal Rights Division on August 28, 1989, Delapast's day-to-day hostility and resistance to supervisory direction was not understood by Respondent to be an effort to express opposition to perceived discrimination.

4. Renumber Finding of Fact number 5 as Finding of Fact number 7.

5. Renumber Finding of Fact number 6 as Finding of Fact number 8.

6. Add the following as a new Finding of Fact number 9:

"Respondent's board became aware by August 1989 that Delapast had entered into this deferred prosecution agreement, and it had access to and reviewed the transcript of the court proceedings in which the deferred prosecution agreement was approved and which reflected that there would be an admission by Delapast.  Respondent's board became aware of these facts through its attorney, who was investigating the matter and who obtained and provided to the board  a copy of the transcript."

7. Renumber Finding of Fact number 7 as Finding of Fact number 10.

8. Renumber Finding of Fact number 8 as Finding of Fact number 11/

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed February 17, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Arrest record discrimination, change in duties -- It is not disputed that Respondent changed Complainant's duties because of her arrest. However, sec. 111.335(1)(b), Stats. allows an employer to suspend outright an employe who is arrested on a charge the circumstances of which substantially relate to the circumstances of the particular job. Such a suspension may be a total one, without pay. Maline v. Wisconsin Bell (LIRC, October 30, 1989). An allegation of felony delivery of controlled substances is clearly substantially related to a job caring for dependent adults which includes responsibility for access to and distribution of medications and prescription drugs. Cf. Black v. Warner Cable Communications (LIRC, July 10, 1989), possession of and distribution of cocaine substantially related to job of being door-to-door salesman; McClellan v. Burns International Security (LIRC, March 31, 1988), possession of marijuana substantially related to job as security guard; Milwaukee County v. LIRC and Serebin, 139 Wis. 2d 805, 8282, 407 N. W.2d (1987), homicide by reckless conduct in administration of nursing home substantially related to job as telephone crisis counselor assisting a "vulnerable, dependent segment of the population." Thus, Respondent could have suspended Complainant outright, without pay.

It would be unreasonable, and completely contrary to the purpose of the law, to conclude that an employer, which could legally suspend an employe outright because of an arrest on charges substantially related to the employe's duties, could not legally reassign the employe to other duties, thus preserving their employment. Of course, an employer should not be allowed to try to evade the purpose of the law by reassigning an employe to onerous duties in an effort to induce the employe's resignation, but there has been no allegation that that occurred here and the record would in any event not sustain such an allegation. The Commission therefore concludes that there was no discrimination because of arrest record in Respondent's changing of Complainant's job duties, because the change was permissible under the affirmative defense provided in sec. 111.335(1)(b), Stats.

Arrest record discrimination, discharge - 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, supra.

In this case the employer made prompt, continuing and reasonable efforts to conduct its own investigation into the question of whether Complainant had done something that would warrant it in changing her employment status. Through this investigation, Respondent learned at least three things: (1) that Complainant was consistently unwilling to provide much information about her conduct in the incident in connection with which she was arrested; (2) that Complainant entered into a deferred prosecution agreement, a disposition that involves an admission by the person charged; and (3) in a meeting with the board on September 12, 1989 the Complainant stated that she had had marijuana on her person. (1) The board concluded as a result of the investigation that the employe had been involved to some degree with delivery of controlled substances. More specific findings were not possible because the Complainant was unwilling to cooperate in the investigation - even after the court's acceptance of the deferred prosecution agreement effectively insulated her from further criminal liability. Because of her involvement with controlled substances, because of her unwillingness to cooperate with the Respondent's investigation, and because of her insubordinate and uncooperative response to supervision in her interim assignments, the Respondent determined to discharge her. The Commission is satisfied that the discharge was of the type recognized in Onalaska, i.e., one that was not because of her arrest.

Retaliation, discharge - The Commission's conclusions concerning the reasons for the discharge, discussed above, led it to agree with the ALJ that the fact that Complainant filed a complaint of discrimination with the Equal Rights Division was not a factor in the discharge. There is no persuasive evidence of any resentment against Complainant either because of her assertions that she was being discriminated against or because of her complaint so alleging. Although Complainant's hostility toward management was cited by Respondent as a reason for its discharge decision, the reference was, in the Commission's opinion, not to her actions in opposing perceived discrimination, but to her day-to-day resistance to directions by her immediate supervisors. This was not protected conduct on Complainant's part.


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(1)( Back ) Complainant argues that "there was no evidence submitted at the hearing which would support a finding of fact that Diane Delapast admitted to having marijuana on her person." The Commission disagrees. Kathy Keimig testified that Complainant so admitted at the September 12, 1989 board meeting. In addition, the board was aware of the deferred prosecution agreement and of the fact that an admission by Complainant was an element thereof.