GREGORY D FLICK, Complainant
RYDER TRUCK RENTAL & LEASING, 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 conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed October 3, 2013
flickgr_rsd . doc : 107 : 122.23
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant asked to file a brief for commission review. A summary of the hearing proceedings was made and sent to the parties along with a briefing schedule. No briefs were filed.
As a result, the commission has no specific indication as to why the complainant believes the ALJ's decision was in error, or why the complainant should prevail on this record. Nevertheless, the commission has reviewed the hearing record to determine whether the findings of fact and conclusions of law are supported. The commission has also reviewed the arguments made by the parties in their briefs submitted prior to the issuance of the ALJ's decision.
It was undisputed that the employer suspended the employee on May 28, 2009 because of his arrest record, and that the employer then terminated the employee on February 10, 2010 because of his conviction record. The WFEA provides, at Wis. Stat. § 111.335, that it is not employment discrimination because of arrest record to suspend an employee, and it is not employment discrimination because of conviction record to discharge an employee, if the circumstances of the arrest record and conviction record substantially relate to the circumstances of the particular job of the employee. The employer has the burden to show a substantial relationship. Perry v. UW-Madison, Wis. Personnel Comm. Case No. 87-00360PC-ER (May 18, 1989). It is not part of the employer's burden, however, to show that it actually considered whether the arrest or conviction was substantially related to the job. The substantial relationship test is an objective legal test which is meant to be applied after the fact by the reviewing tribunal. Zeiler v. State of Wisconsin-Dep't of Corrections, ERD Case No. 200302940 (LIRC Sep. 16, 2004).
As a general rule, the circumstances of an offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required. Knight v. Wal-Mart Stores East, ERD Case No. CR200600021 (LIRC Oct. 11, 2012). The purpose of the substantial relationship test is to assess whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context based on the traits revealed in consideration of the elements of the crime involved. It is the circumstances that foster criminal activity that are important. County of Milwaukee v. LIRC, 139 Wis.2d 805, 407 N.W.2d 908 (1987).
In this case, the complainant was charged with several counts of misappropriation of identifying information and theft by false representation, in violation of Wis. Stat. § 943.201(2)(a), and Wis. Stat. § 943.20(1)(d). At the time relevant to this case, Wis. Stat. § 943.201(2) provided:
943.201(2) Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information or personal identification document of an individual, including a deceased individual, without the authorization or consent of the individual and by representing that he or she is the individual, that he or she is acting with the authorization or consent of the individual, or that the information or document belongs to him or her is guilty of a Class H felony.
The purpose for which the complainant was charged was in sub. (a) of the above provision: "to obtain credit, money, goods, services employment, or any other thing of value or benefit."
Wisconsin Stat. § 943.20(1)(d) provided:
943.20(1) Whoever does any of the following may be penalized as provided in sub. (3):
(d) Obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made.
The focus of Wis. Stat. § 943.201(2)(a) is on the misappropriation of someone's personal identification document (1) to attempt get something of value. The crime is commonly referred to as identity theft. The focus of Wis. Stat. § 943.20(1)(d) is on deceiving someone in order to obtain property from that person. Its application does not necessarily require the misappropriation of someone's personal identification document. The complainant pled guilty to violating Wis. Stat. § 943.20(1)(d), and the identity theft charges were dismissed. Applying the circumstances of the criminal charge and conviction to himself, the complainant explained that he had used his ex-wife's credit card without her permission.
The character trait exhibited by someone who violates either of the above statutes is a willingness to make a dishonest representation in order to obtain money or something of value. Young v. Wal-Mart Distribution Center, ERD Case No. 199705063 (LIRC Oct. 27, 2000). The critical fostering circumstances present in this case were the facts that the complainant at times was alone at the workplace, and that he was expected to handle rental transactions for retail customers during those times. This gave him a substantial opportunity to obtain another's property through misrepresentation. The complainant acknowledged that at least on one occasion while serving in this capacity he obtained credit card information from a customer. Even though on most occasions the employer's retail rental customers sent their credit card information by fax to the employer's office in Wausau, the complainant still had the prospect of having regular face-to-face encounters with retail rental customers when they arrived to pick up their vehicles, at times of the day when the employee was the only employee on the premises. On such occasions, a person in the employee's position who had an inclination to make a false representation in order to obtain money or property, and who had the leverage of being the sole person in control of turning a rental vehicle over to a customer, had reason to believe that by making a false representation to the customer that he needed to see the customer's credit card or some other personal document, he could obtain the information he needed to illegally obtain money or other property.
In addition, the complainant had a key to the employer's facility that allowed him access to a room where personal identification documents and personal identifying information were stored. An individual with an inclination to obtain property through misrepresentation would have a substantial opportunity, during times when he was unsupervised, to use that information dishonestly to obtain money or property. See, Featherston v. Roehl Transp., ERD Case No. CR200602031 (LIRC July 23, 2010).
The commission therefore agrees with the findings of the ALJ that the circumstances of the complainant's arrest record were substantially related to the circumstances of his job, and the circumstances of the complainant's conviction record were substantially related to the circumstances of his job. The commission also agrees with the ALJ's conclusions that the employer's suspension of the complainant's employment based on his arrest record, and its termination of the complainant's employment based on his conviction record, did not violate the WFEA. The decision of the ALJ is affirmed.
cc:
Attorney Carol Dittmar
Attorney Carmen N. Couden
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