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



ERD Case No. CR200800850, EEOC Case No. 26G200800790C

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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph 5 of the administrative law judge's FINDINGS OF FACT:

The Wisconsin Caregiver Law defines a "caregiver" as "A person who is, or is expected to be, an employee or contractor of an entity . . . and who has, or is expected to have, regular, direct contact with clients of the entity." Wis. Stat. § 50.065(1)(ag)1(emphasis added). "Direct contact" means "face-to-face physical proximity to a client that affords the opportunity to commit abuse or neglect of a client or to misappropriate the property of a client." Wis. Stat. § 50.065(1)(br)(emphasis added). Further, for purposes of the Caregiver Law, "regular contact" means "contact that is scheduled, planned, expected, or otherwise periodic." Wis. Admin. Code § DHS 12.03. A "caregiver" does not include "a person who performs solely clerical . . . functions for the entity and is not expected to have regular, direct contact with clients or the personal property of clients." Wis. Admin. Code § DHS 13.03(3)(b)(1).

2. Paragraph 6 of the administrative law judge's FINDINGS OF FACT is deleted and the following paragraph substituted therefor:

The complainant spent the majority of her work day in a locked administrative area that was physically separated from patients by doors that only employees could access. The complainant would leave the administrative area to deliver medical records to the nurses' stations and, on rarer occasions, to the front desk. She reached the nurses' stations by a long hallway that was accessible to but rarely used by the public. The complainant would also pass patient treatment rooms, but never entered them. To reach the front desk the complainant walked down a hall lined with patient examination rooms. The doors to the examination rooms were often open and patients could be present in the hallway. However, the complainant never talked to patients when delivering files, beyond a possible "hi" or "good morning." She did not have direct, regular contact with patients.

3. Paragraph 7 of the administrative law judge's FINDINGS OF FACT is deleted, and the following paragraph substituted therefor:

After the respondent implemented its Caregiver Program Manual, it decided to conduct caregiver background checks on all employees who worked in the buildings where patients were present or who had access to patient data. The respondent therefore changed the job description for Medical Records Clerk I to include "background, criminal history and caregiver misconduct check in accordance with the Wisconsin Caregiver Background Check Law." The respondent believed that it was interpreting the law correctly and that the complainant's position was subject to a caregiver background check.

4. The administrative law judge's FINDINGS OF FACT are renumbered in accordance with the modifications above.

5. Paragraphs 2 and 3 of the administrative law judge's CONCLUSIONS OF LAW are deleted and paragraph 4 is renumbered accordingly.

6. The administrative law judge's MEMORANDUM OPINION is deleted.


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

Dated and mailed October 10, 2011
willimo . rmd : 164 : 5


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


In her petition for commission review the complainant argues that she was not a caregiver within the meaning of the statute and that, since she was not a caregiver, she was not barred from employment with the respondent. The commission does not disagree with this argument, and it has modified the administrative law judge's decision to reflect as much. However, for the reasons set forth below, the commission finds unpersuasive the complainant's contention that she was discharged because of her conviction record.

The proper inquiry in an arrest and conviction record case is what actually motivated the employer's decision to take the action it did. See, Rowser v. Upper Lakes Foods, ERD Case No. 200300509 (LIRC Oct. 29, 2004), citing Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002). In this case, the commission can see no reason to believe that the respondent was motivated to discharge the complainant based upon her conviction record, where the evidence establishes that the respondent was well aware of the conviction, but decided that it was not a bar to her continued employment. In fact, the respondent continued to employ the complainant for eight months after learning about the conviction, and only terminated the employment relationship when it received information from DHFS which it believed meant it could no longer do so. While the commission questions the accuracy of the respondent's conclusion in this regard, since the complainant did not have direct, regular contact with patients such as would render her a "caregiver," it does not doubt that the respondent genuinely believed the Caregiver Law applied to the complainant's job. The respondent's witnesses credibly testified that the respondent decided to give caregiver background checks to all employees who worked in buildings where patients were present or who had access to patient data, and that it felt this fit the spirit of the Caregiver Law. The complainant's job description was changed to reflect the perceived need to comply with the Caregiver Law well before the respondent learned about her conviction record. The respondent did not discharge the complainant because it did not want to employ someone with a conviction record, but acted based on a sincere, if mistaken, belief that it was no longer permitted to do so. The commission has consistently held that there is no discrimination if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial, or even baseless. See, for example, Fink v. Sears Roebuck and Co., ERD Case No. 200404227 (LIRC March 1, 2007); Grell v. Bachmann Construction Co. Inc., ERD Case No. CR200202309 (LIRC July 15, 2005). Because the commission agrees with the administrative law judge's conclusion that the respondent's actions were not undertaken in violation of the Wisconsin Fair Employment Act, the dismissal of the complaint is affirmed.


Attorney James Walcheske
Attorney Amy Schmidt Jones

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uploaded 2011/11/10