State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
Dated and Mailed: |
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ERD Case No. CR201303113 |
January 30, 2018 |
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The decision of the administrative law judge is modified and, as modified, is affirmed. Accordingly, the complainant’s complaint is dismissed.
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By the Commission: |
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Laurie R. McCallum, Chairperson
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David B. Falstad, Commissioner |
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/s/___________________________________ |
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Georgia E. Maxwell, Commissioner
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Procedural Posture
This case is before the commission to consider the complainant’s allegation that the respondent discriminated against her based upon her arrest and conviction record, in violation of the Wisconsin Fair Employment Act. An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding that discrimination was not established. The complainant filed a timely petition for commission review of that decision.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Although the commission agrees with the result reached by the administrative law judge, it has rewritten the administrative law judge’s decision to more accurately reflect the factual and legal bases for its decision. Based on its review, the commission makes the following:
Findings of Fact
1. The respondent, Holton Manor (hereinafter “respondent”), is a skilled nursing facility that provides care for geriatric individuals, individuals with disabilities, and individuals in need of rehabilitation services.
2. In August of 2013 the respondent was recruiting for Certified Nursing Assistants (CNAs) to assist with resident care. CNAs working for the respondent are responsible, among other things, for providing personal assistance and for cleaning and maintaining order in residents’ rooms. Accordingly, CNAs have unsupervised access to residents’ rooms, where personal belongings are kept.
3. Some of the respondent’s residents are disoriented and may become violent or abusive. The job description for CNA states that individuals working as CNAs “may be subject to bruises and scratches from residents striking out.”
4. The complainant, Kynesha Staten (hereinafter “complainant”), obtained her certification to work as a CNA in 2002. In August of 2013 the complainant was working as a CNA for Walworth County on an as-needed basis, when she learned from a co-worker that the respondent was hiring full-time CNAs.
5. On or about August 23, 2013, the complainant called the respondent to inquire about a job, and spoke with an individual by the name of Katie Voiles. Ms. Voiles conducted a brief telephone interview and invited the complainant to come and interview in person.
6. During the in-person interview, which took place on August 27, 2013, the complainant filled out a background check form which asked whether she had any pending criminal charges or had ever been convicted of a crime anywhere. The complainant answered in the affirmative. The form then asked the complainant to provide the date of the conviction and the city and state where the court is located. The complainant wrote:
2006 Milwaukee, WI expunged misdemeanor/Nov. 2003 Brookfield, WI, municipal ordinance violation disorderly conduct/2011 Shorewood WI disorderly conduct
7. Ms. Voiles told the complainant that she would like to see a letter showing that the misdemeanor had been expunged. The complainant had a document entitled Order Granting Request for Expungement, which was signed by a circuit court judge in Milwaukee County on August 28, 2006. The Order indicates that the complainant was placed on probation for a misdemeanor theft offense on July 30, 2004 and was discharged from probation on July 30, 2006 and states: “Given that the defendant successfully completed probation and has taken positive steps to pursue a solid career, the court will order the record expunged.” The complainant had the Order with her and showed it to Ms. Voiles.
8. With respect to the Brookfield matter referenced on her background check form, the complainant explained that this was a municipal ordinance violation in which her cousin took money from a jar in a store, and that the complainant was charged because she was there and was driving the car.[2]
9. The complainant told Ms. Voiles that the Shorewood matter was a domestic situation, in which the complainant was abused and struck back. In fact, the incident took place in a Pick ‘N Save store; the complainant and her boyfriend were in the store when another female who was present approached the complainant and told her she was sleeping with the complainant’s boyfriend. The complainant and her boyfriend began arguing as she left the store, whereupon the complainant struck him approximately a dozen times. The complainant did not share these additional facts with Ms. Voiles.
10. At the end of the interview Ms. Voiles extended a conditional offer of employment to the complainant, subject to her passing a TB test and a background check.
11. Shortly thereafter the complainant received a letter, dated August 30, 2013, indicating that the respondent was continuing to review other applications and that her application would be kept on file for 6 months. The complainant also received a voicemail from Ms. Voiles stating that the complainant was not being hired because of her arrest and conviction record.
Conclusions of Law
1. The complainant had both an arrest record and a conviction record, within the meaning of the Wisconsin Fair Employment Act.
2. The circumstances of the complainant’s 2011 (Shorewood) conviction for disorderly conduct are substantially related to the circumstances of the job of CNA for the respondent, within the meaning of the Wisconsin Fair Employment Act.
3. The respondent did not engage in employment discrimination based on arrest and/or conviction record, within the meaning of the Wisconsin Fair Employment Act, when it refused to employ the complainant as a CNA.
Under the Wisconsin Fair Employment Act (hereinafter “Act”), it is an act of employment discrimination for an employer “to refuse to hire . . . any individual. . . because of any basis enumerated in s. 111.321.” Wis. Stat. § 111.322. An individual’s arrest or conviction record are both bases of prohibited discrimination under Wis. Stat. § 111.321.
The Act, at § 111.32(1), provides the following definition of “arrest record:”
“Arrest record” includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.
The Act, at § 111.32(3), provides the following definition of “conviction record:”
“Conviction record” includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.
The complainant, having been charged with and ultimately convicted of three offenses, had both an arrest record and a conviction record, within the meaning of the Act.
At the hearing the complainant testified without rebuttal that the respondent told her it was not hiring her based upon her “arrest and conviction record.”[3] However, while the respondent may have mentioned the words “arrest record” in its voicemail message to the complainant, there is nothing else in the record to suggest that the respondent was motivated to deny the complainant hire on that basis. The evidence does not indicate that the complainant had any pending criminal charges, and her arrest record was related solely to the charges for which she had already been convicted. The respondent acknowledged that its decision not to hire the complainant was based upon her prior convictions, and the complainant’s brief to the commission focuses solely on conviction record. Consequently, although the complainant alleged discrimination based upon both arrest and conviction record, the commission will confine its discussion to the latter.
As stated above, the respondent concedes that its decision not to offer the complainant a job was because of her conviction record. Once the complainant has established that she was denied hire based upon her conviction record, there is only one defense available to the employer, that of substantial relationship. The Act provides:
“. . . it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .
Wis. Stat. § 111.335(1)(c)1.
In its answer to the complaint the respondent raised the affirmative defense of substantial relationship. The question to decide, then, is whether the respondent met its burden of proving that a substantial relationship exists between the complainant’s conviction and the job at issue.
The respondent did not bring any witness to the hearing who could explain what factors it took into consideration when it decided not to hire the complainant, nor is it clear what the respondent’s background check revealed with respect to the complainant’s conviction record. However, the “substantial relationship” test is an objective legal test which is meant to be applied after the fact by a reviewing tribunal. Zeiler v. State of WI DOC, ERD Case No. 200302940 (LIRC Sept. 16, 2004). Consequently, if the evidence demonstrates that the complainant has a conviction record that is substantially related to the circumstances of the job, the respondent had a right to deny her employment and no discrimination will be found, without regard to what factors the respondent may have taken into consideration when it made its decision.
Expunged offense
The complainant was convicted of misdemeanor theft in 2004, but that conviction was ultimately expunged from her record. The parties disagree as to whether an offense that has been expunged may form the basis for the substantial relationship defense. The respondent contends that if the expunged offense is substantially related to the job it can be considered, while the complainant argues that an expunged offense may not be used as a reason to deny her future employment opportunities. The commission agrees with the complainant on this point.
The Wisconsin expunction statute permits individuals who commit criminal offenses before age twenty-five to request expunction. Application of the statute requires a determination that “the person will benefit and society will not be harmed” by expunction of the offense from the offender’s record. Wis. Stat. § 973.015(2m)(g). The statute contemplates that, once an offense has been expunged, all references to the defendant’s name and identity will be obliterated from the record. See, 67 Atty. Gen. 301. The benefit of expungement allows certain offenders to “wipe the slate clean of their offenses and to present themselves to the world--including future employers--unmarked by past wrongdoing.” State v. Hemp, 353 Wis. 2d 146, 157 (Wis. Ct. App. 2014).
While State v. Hemp involved an expungement proceeding and was not an employment discrimination case, the same public policy considerations that come into play in application of the expungement statute dictate that expunged offenses should not be taken into consideration when applying the substantial relationship defense. The Wisconsin legislature has declared it to be the public policy of the state to encourage and foster to the fullest extent praticable the employment of all properly qualified individuals, regardless of conviction record, and to liberally construe the statute for the accomplishment of that purpose. See, Wis. Stat. § 111.31(3). Moreover, it is clear from the court’s order of expungement, which was based on the fact that the complainant “successfully completed probation and has taken positive steps to pursue a solid career,” that the complainant’s expunged offense was not meant to adversely affect her future employment prospects. To the contrary, the offense was expunged specifically for the purpose of giving the complainant a clean slate so that she could more effectively pursue employment opportunities. Given all the circumstances, the commission concludes that the affirmative defense of substantial relationship may not be based upon an offense that has been expunged from the complainant’s record.
Disorderly conduct offenses
The complainant’s non-expunged conviction record includes two disorderly conduct convictions, both of which are considered non-criminal ordinance violations.[4] However, the substantial relationship defense is not limited to criminal convictions, but also covers convictions for “other offenses” that may be substantially related to a specific job. See, Wis. Stat. § 111.335(1)(c)1.
A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. 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. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987); Goerl v. Appleton Papers, Inc., ERD Case No. 8802099 (LIRC Oct. 5, 1992).
As a general rule, the circumstances of the 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. County of Milwaukee, at 823-824. However, as the Supreme Court noted in County of Milwaukee, disorderly conduct offenses present a difficult situation, since the elements of the crime of disorderly conduct reveal little about the underlying offense and do not permit a generalization about the character traits of the individual with such a conviction record. Thus, the court indicated that in disorderly conduct cases, in which the type of offensive circumstances are not explicit, some factual exposition may be necessary. The court noted, however, that “such factual inquiry would have as its purpose ascertaining relevant, general character-related circumstances of the offense or job.” County of Milwaukee v. LIRC, at 825.
A. Brookfield offense
The complainant was convicted of disorderly conduct by a municipal judge in Brookfield, Wisconsin.[5] The complainant explained that the conviction arose from a situation in which she drove the car with another individual (her cousin) who had stolen a jar of change from a retail store. When asked at the hearing to explain why she was charged, the complainant testified, “Because I was there, and I had knowledge.”
The administrative law judge found that a substantial relationship existed between the complainant’s offense and the job of CNA for the respondent, reasoning that the complainant was party to the crime of theft when she knew that her cousin stole money from a jar at a store and assisted her cousin to flee with the stolen money, and that the complainant would have the opportunity to steal from vulnerable nursing home residents. The commission does not agree with that analysis. The complainant was not convicted of being party to the crime of theft, a violation covered by Wis. Stat. § 939.05, or of any other theft-related crime. Rather, the complainant was convicted of non-criminal disorderly conduct related to her actions in driving the car after her cousin--who was subject to more serious charges--committed what appears to be an act of retail theft. The evidence does not indicate that the complainant personally stole anything, helped plan a theft, or consented to participate in a theft. The complainant’s testimony that she “had knowledge” is vague as to what the complainant knew and when she knew it; it is not clear that the complainant actually realized she was transporting stolen money at the time she drove her cousin, nor was it established that she learned of the matter in time to take any steps to prevent it or even to decide against participating.
Although the complainant’s conviction for disorderly conduct might demonstrate that she has poor judgment in choosing her associates and, potentially, a willingness to cooperate in someone else’s illegal scheme, there is insufficient evidence to warrant a conclusion that an individual convicted of disorderly conduct under the circumstances present in the complainant’s case has demonstrated a propensity to theft, such as would warrant a conclusion that she would be likely to steal from nursing home residents. Consequently, the commission concludes that the complainant’s first disorderly conduct offense (the Brookfield offense), was not shown to be substantially related to the job.[6]
B. Shorewood offense
The second of the complainant’s disorderly conduct offenses (the Shorewood offense, for which she was convicted in 2011), involved an incident in which the complainant repeatedly struck a male individual with whom she was in a relationship, after learning that he was involved with another woman. The incident took place in a convenience store. At the hearing the complainant testified that she had been abused by this individual in the past, and that she lost her temper and struck him as many as a dozen times. The complainant was convicted of disorderly conduct as result of that incident.
In arguing that there is no substantial relationship between the conviction and the job, the complainant maintains that her situation is comparable to that addressed in a prior commission decision in which it was found that a disorderly conduct conviction that resulted from a domestic dispute where both the complainant and her partner had a knife, but in which the complainant was defending herself, was not substantially related to the job of CNA at a nursing home. McKnight v. Silver Spring Health & Rehabilitation, ERD Case No. 199903556 (LIRC Feb. 5, 2002). However, the instant case is distinguishable on its facts. While the complainant testified that her boyfriend was abusive towards her, the incident which resulted in the conviction did not arise out of self-defense, but out of anger. The complainant was not protecting herself from physical violence, but was instead perpetrating acts of violence against another individual because she was upset. By the complainant’s own testimony, she “lost it” and struck the victim repeatedly, perhaps as much as a dozen times. Further, unlike the dispute in McKnight, which apparently occurred in a domestic setting, the incident in which the complainant was involved took place in public, and it cannot be dismissed as a domestic dispute of the sort that would not recur away from the home.
The character traits revealed by the complainant’s conviction include a tendency to lose control and to commit physical violence against someone who has angered or displeased her. The respondent’s residents are vulnerable elderly or disabled individuals. The respondent testified that some of those residents can become disoriented and violent, and might behave abusively towards staff. CNAs working for the respondent have been struck by residents in the past. In fact, the job description specifies that CNAs “may be subject to bruises and scratches from residents striking out.” While the commission agrees with the complainant that the scenario described by the administrative law judge in her decision (in which the complainant might develop a long-term relationship with a resident who would hit her repeatedly, causing the complainant to strike the resident because of repeated abuse and fear) involves impermissible speculation, the evidence supports a conclusion that the traits and tendencies revealed by the complainant’s disorderly conduct conviction are substantially related to the circumstances of the job. Simply put, a person who is inclined to strike out in anger is not well suited for a job caring for elderly or disabled residents, some of whom are disoriented and likely to behave violently towards their caregivers; the job would appear to carry an unacceptable risk of recidivism for an individual with a record such as the complainant’s. Because the commission agrees with the administrative law judge’s ultimate conclusion that the respondent’s decision not to hire the complainant for such a job did not amount to an act of discrimination, the dismissal of the complaint is affirmed.
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cc: |
Kate D. Triska John H. Zawadsky Rebecca L. Salawdeh |
[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.
[2] No documentation was presented with respect to the original 2003 conviction listed on the background check form, but a Stipulation and Order dated March 19, 2012 that was prepared by a municipal court judge in Brookfield states: “Unique case. Def. has no current record—is studying nursing. City will not oppose request & will amend to disorderly conduct. Fine previously paid.”
[3] The administrative law judge rejected the complainant’s testimony on this point, finding instead that the complainant was told she was discharged based upon her “record.” In making this finding, the administrative law judge took administrative notice of the statement attached to the complainant’s complaint, in which the complainant wrote that she was told the respondent could not hire her because of her “record.” The administrative law judge indicated that she found that statement more credible than the complainant’s testimony at the hearing. However, it is not appropriate to rely upon representations contained in the narrative attached to the complainant’s complaint as a basis to question the complainant’s credibility where the complainant was not asked to explain any discrepancies between her testimony and what she wrote on the complaint and was not given an opportunity to provide an explanation for any apparent inconsistencies. Hopson v. Actuant Corp., ERD Case No. CR201003477 (LIRC May 8, 2014). Here, the complainant testified that she was told she was not being hired based upon her arrest and conviction record. The complainant was not cross-examined about this testimony, nor did the respondent present any testimony or other evidence with respect to the telephone conversation at issue. The commission also notes that in her complaint the complainant checked the boxes for both “conviction record” and “arrest record,” which is consistent with her testimony at the hearing. Given all the circumstances, the commission sees no basis to question the complainant’s testimony with respect to the reason she was given for not being hired.
[4] “A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.” Wis. Stat. § 939.12. A municipal ordinance violation that can only result in a forfeiture is not criminal. Marcin v. Charter Communications LLC, ERD Case No. CR201201053 (LIRC July 14, 2015).
[5] A Stipulation and Order from the Brookfield Municipal Court indicates that, in 2012, a 2003 conviction for an unspecified offense was amended down to the offense of disorderly conduct.
[6] At the hearing the respondent attempted to submit additional documents related to this offense, which were rejected by the administrative law judge on the ground that it was not shown the respondent had obtained them as a result of its own investigation. However, had the documents been received, they would not affect the commission’s decision with respect to this issue.