STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KAREN J. BEAUDOIN, Complainant

VILLA CLEMENT HEALTH CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701934, EEOC Case No. 26G971238

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 conclusion in that decision as its own.

DECISION

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

Dated and mailed: September 30, 1998
beaudka.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant was convicted for theft on December 11, 1996. On February 13, 1997, she completed an application for employment as a weekend registered nurse supervisor with the respondent, a company which operates nursing homes. She answered "No" to the question, "Have you ever been convicted of a crime or are charges currently pending?", on the employment application. After this question the application stated that "Conviction will not necessarily disqualify an applicant from employment." If the answer to the question was "Yes", the application asked the applicant to "please explain." The application further contained the statement that any falsification, misrepresentation or omission of a fact in the application may be justification for refusal of, or if employed, termination of employment. On February 21, 1997, the complainant signed a release authorizing a criminal background check on her, and she was hired as the weekend registered nurse supervisor on February 24, 1997, subject to a successful background check.

After receiving a criminal background report on the complainant showing that she had been arrested by the Cedarburg Police Department for theft but no disposition for that arrest, the respondent contacted the Cedarburg Police Department for more information and received a facsimile letter providing the following information: "Arrested for felony theft on 10/10/96. Found guilty on 12/11/96. Sentenced to 30 days jail and 3 years probation." Mark Dombeck, the respondent's human resources manager, had checked the complainant's employment application and noted that she had answered "No" on the application when asked if she had ever been convicted of a crime. Based upon this discrepancy he decided to terminate the complainant's employment. Dombeck called the complainant on March 13, 1997. Dombeck told the complainant that her application form and the information received back regarding her criminal history did not match, that she misrepresented and falsified her application, and that she was terminated. After Dombeck told the complainant she was terminated, she asked him to read what the facsimile letter stated, which he did, and she responded that she had not been convicted of a felony, it was a misdemeanor conviction. The complainant then went on to state that she was manic depressive when she committed the crime and that this should not be held against her. Dombeck responded that what he was acting on was the fact that she had misrepresented on her employment application that she had no criminal conviction.

In a complaint filed with the Equal Rights Division on May 12, 1997, the complainant alleged that the respondent had discriminated against her on the basis of arrest and conviction record and disability (manic depressive). The administrative law judge concluded after a hearing held on the complainant's complaint held on December 10, 1997, that she failed to show that she has a disability (1) within the meaning of the Act, and that she failed to show probable cause to believe that the respondent violated the Act by terminating her employment because of disability or her arrest and conviction record.

On appeal the complainant argues that she was unfairly limited as to what she could present as evidence to show that she had a mental disability at the hearing, that she had not brought to the hearing all of her evidence to establish that she was disabled "since the Dec. 10th hearing was to re-address the issue of probable cause...I thought I'd be going on to the MAIN case later", and that the ALJ erred in finding that she failed to show that she was disabled within the meaning of the Act. These arguments fail. A department letter sent to the complainant certifying the case for a hearing on the issue of probable cause informed her to "be ready to offer testimony or evidence to support your case." The complainant failed to produce any non- hearsay expert testimony that she actually suffers or had suffered from a disability within the meaning of the Wisconsin Fair Employment Act.

Moreover, even assuming that the complainant has or had a disability, the evidence clearly shows that such disability had nothing to do with the termination of her employment, that her employment was terminated for providing false information regarding her conviction record on her employment application. Contrary to argument by the complainant, the record amply supports the ALJ's finding (no. 17) that there is no reason to believe that Dombeck believed she had a mental or physical impairment at the time Dombeck decided to terminate her employment. See for example, transcript, pp. 49, 52, 59, 62, 64, 73, 75, 85.

The complainant further argues that she explained that the "main" reason she chose not to disclose her conviction was because it would require her to reveal her disability. It is apparently her contention that if she had answered "Yes" to the question asking if she had ever been convicted of a crime, her disability would have been revealed under the section, "If yes, please explain." This contention also fails. The respondent could lawfully ask the complainant if she had ever been convicted of a crime. The Wisconsin Fair Employment Act "does not prohibit an employer from asking questions about criminal records; it does not create a license in the employe to lie about those records." Miller Brewing Co. v. ILHR Department, 103 Wis. 2d 496, 504, 308, N.W.2d 922 (1981). The complainant admitted at the hearing that she felt that if she explained the (alleged) circumstances of the crime she would not have been hired because of discrimination against people with mental illness. However, the complainant never gave the respondent a chance to act on truthful information. The complainant could only speculate, based upon her asserted experiences with other employers, that the respondent would not have hired her if she had truthfully completed her application. The concept of probable cause focuses on probabilities, not possibilities. Boldt v. LIRC, 173 Wis. 2d 469, 475, 496 N.W.2d 676 (Ct. App. 1992).

cc: Gregory P. Kult

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Footnotes:

(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.