THEODORE J MAMAYEK, Complainant
HEARTLAND PAYMENT SYSTEMS, Respondent
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 conclusions in that decision as its own, except that it makes the following modifications:
1. Replace finding of fact #11 with the following:
The position of relationship manager for Heartland would provide Mamayek with a high degree of freedom and movement in his everyday work activities that is relatively uncommon in most jobs, including an enormous amount of unsupervised and unstructured time, and an unusually high amount of personal contact with numerous people. This kind of independent work environment would present him with a particular opportunity to engage in conduct such as the sale of illegal drugs to members of the public.
2. Replace finding of fact #12 with the following:
In the position of relationship manager, it would not be practicable to rely on public transportation, taxis, bicycles or other drivers to carry out the duties required by the job, and, therefore, Mamayek would be required to spend a substantial amount of his workday driving a motor vehicle from his home in Hartford, Wisconsin to meet with various clients and prospective clients in the Milwaukee, Wisconsin area. The enormous amount of unsupervised and unstructured time spent driving from business to business would provide a greater than usual opportunity and temptation to drink alcohol, to become intoxicated, and to drive while intoxicated.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
August 22, 2011
mamayt1 : 120 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
In his petition for commission review, the complainant/petitioner argues that there is no substantial relationship between the circumstances of the job of relationship manager and the circumstances of his conviction record, specifically a conviction for felony possession of marijuana with an intent to deliver and two separate convictions for driving while intoxicated. The commission disagrees.
The petitioner cites the case of County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987) in which the Wisconsin Supreme Court stated that when determining whether a substantial relationship exists between the circumstances of the criminal offense and the job, 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." The commission agrees that this case establishes the criteria applicable to this case.
In her decision in this case, the ALJ focused on the complainant's "opportunity for criminal behavior," and relied on the case of
Black v. Warner Cable Communications, ERD Case No. 8551979 (LIRC July 10, 1989) in her memorandum opinion, finding that the circumstances of the relationship manager job were such as to allow the complainant "the opportunity to commit the crime of selling drugs while he was performing his job duties or in between when he was performing his job duties," as well as "the opportunity to engage in the activity of driving while intoxicated." Accordingly, his drug conviction and two DUI convictions were substantially related to the job of relationship manager.
In Black, the commission found that the employee's criminal offenses (possession of cocaine with intent to deliver and delivery of cocaine) were substantially related to the position of cable salesperson in that the circumstances of the job (selling door-to-door) present a particular opportunity, and thus a potential temptation, for a person with a demonstrated inclination to engage in conduct such as the sale of illegal drugs.
The commission noted that the employee did not have simply that "normal, incidental contact with others that can be expected to be present in most jobs." Instead, there is a degree of freedom from supervision that is relatively uncommon in most types of employment, and a degree of unsupervised public contact in public areas that is also relatively uncommon in most employment contexts. A Warner Cable salesman is basically out on the street all day. As long as he or she meets the employer's requirements as to a minimum number of sales calls, the salesman can essentially go anywhere or do anything, at any time.
The commission defined the risk in Black as follows:
The employe will use the opportunity presented by his employment to engage in the sale of illegal drugs, either by using his contacts with customers of Warner Cable to facilitate the identification of potential customers for drug sales, or by using the high degree of freedom and movement he has in connection with the job to engage in drug sales to other members of the public along his route or even at some distance from his route and to whom he "commutes" during the course of his workday.
In Knight v. The Prudential Insurance Company of America, ERD Case No. 9153411 (LIRC Oct. 31, 1995), (1) the commission found that the rationale in Black was applicable in a case in which a district agent sold securities and insurance products in homes, but would not go door-to-door as was done in Black. The commission did not believe that this was a distinction that made a difference. District agents were expected to work independently with little supervision, and their schedules were under their own control. Most of the agents' time was spent meeting with clients, usually in their homes. Knight had been convicted of knowingly permitting a vehicle to be used for the delivery of controlled substances and misdemeanor theft, and the ALJ, citing Black, found that, since a majority of his work time would be "spent outside of the office, without supervision, meeting with clients," he would have ample opportunity to use a motor vehicle for the delivery of a controlled substance. Therefore, his felony conviction was substantially related to the district agent position, within the meaning of the WFEA. The commission affirmed, citing Black.
In Villarreal v. S C Johnson & Son Inc., ERD Case No. CR199903770 (LIRC Dec. 30, 2002), the commission found that convictions for conspiracy to possess with intent to distribute over 500 grams of cocaine and possession with intent to distribute cocaine were substantially related to employment as a production worker at a large (2,000,000 square feet) facility, with 50 restrooms and 15 break rooms, little supervision, the freedom to schedule break time and to leave the production area without permission, and no surveillance cameras. The commission cited Black, noting that Black's work also involved an unusually high amount of unsupervised time, allowing him to go anywhere and do anything at any time.
The complainant/petitioner makes the argument that this case is distinguishable from Black because its relationship managers travel to secured business settings and meet with business owners or managers who are unlikely to be purchasers of drugs/marijuana. However, as the respondent noted, there was no evidence presented about the business settings being secured, and it is purely speculative to say that business owners or managers or others that the complainant may encounter at such locations (or on the way to such locations) are any less susceptible to the use or purchase of marijuana than a person at home would be. The commission believes that the rationale in the Black case and in its progeny is appropriate in this case.
The petitioner relies on another commission decision, Robertson v. Family Dollar Stores Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005), involving a stocker in a retail store. In Robertson, the complainant was convicted of possession with intent to deliver marijuana, and the commission found that this conviction was not substantially related to the position of stocker. In so doing, the commission distinguished Villarreal, which involved a worker who had "unfettered access to huge facilities, [was] not subject to any surveillance, and had little or no supervision and large amounts of free unstructured time." In Robertson, the facility, although large, was not enormous and it was not established that Robertson had the same degree of privacy and independence as was found in Villarreal, and in fact was never alone in the work place. In addition, the facility in Robertson was monitored by security guards and cameras, and customers were in and out all day long. The working circumstances in Robertson are significantly different than the job circumstances of the relationship manager position at issue.
The commission in Robertson noted that a person who is inclined to behave in a criminal manner can potentially find a way to do so in any employment setting, and the mere possibility that a person would reoffend at a particular job does not create a substantial relationship. Instead, the question is whether the circumstances of the job provide "a greater than usual opportunity for criminal behavior," Moore v. Milwaukee Bd. Of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999).
In this case, the circumstances of the relationship manager position -- with its unusual lack of supervision, enormous amount of freedom and discretion in scheduling and traveling, access to business locations with the potential for encountering numerous members of the public -- provide a greater than usual opportunity for criminal behavior, and, therefore, a substantial relationship exists between these circumstances and the complainant's drug conviction. In addition, it is the unusual aspects of the relationship manager's job cited above that create the substantial relationship. The complainant in this case is not precluded from employment in other settings, in which there is more supervision, more structure, less free time, and less access to the public.
The petitioner argues that driving an automobile is not an integral component of the position of a relationship manager, and that, although an automobile would be the most convenient method of transportation, other forms of transportation could be used to perform the duties of the job. The commission does not find this argument persuasive. As part of this job, the relationship manager travels to numerous businesses each day. In fact, the credible evidence established that 75-80% of a typical day would be spent in the car driving from client to client for appointments already set up or looking for appointments with new prospective clients. Given the large area of coverage -- the Milwaukee area -- it is not practicable to do so by public transportation, taxi or bicycle, and no evidence was presented that Mamayek contemplated having someone else drive him to each business, each day.
In addition, the petitioner, who vastly understates the significance of two DWIs by referring to them as "traffic offenses," argues that Heartland would not be subject to liability if, while working, the complainant engaged in illegal driving, because he would be driving his own car and would have automobile insurance. However, again, there is no evidence that the complainant has his own automobile insurance, and even if he did, the potential exists that Heartland could be sued and could be liable for damages resulting from his illegal driving while working.
The commission concludes that the enormous (and unusual) amount of unsupervised and unstructured time spent driving from business to business provides a greater than usual opportunity and temptation for a relationship manager to drink alcohol, to become intoxicated, and to drive while intoxicated, something for which the complainant has demonstrated an inclination, having been convicted on two separate occasions. There is a substantial relationship between the circumstances of the relationship manager position and the complainant's two convictions for driving while intoxicated. As with the reasoning related to the drug conviction, the complainant's DWI convictions do not foreclose him from working in a job in which unsupervised driving free from scheduling by the employer is not such a substantial part of the job.
In summary, the complainant/petitioner has failed to establish that Heartland violated the Wisconsin Fair Employment Act by failing to hire him because of his conviction record. There is a substantial relationship between the job of relationship manager and his convictions for felony possession with intent to deliver and driving while intoxicated.
Attorney John D. Uelmen
Attorney William E. Duffin
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(1)( Back ) In affirming the commission, the Court of Appeals agreed that, as a district agent, Knight would have a significant amount of unsupervised time making calls and would also have a fiduciary responsibility to his customers that would include handling sums of money. See Knight v. LIRC, 220 Wis. 2d 137, 156-67, 582 N.W.2d 448 (Ct. App. 1998).