Wis.LIRC ER Decision: Garton - January 27, 2000 - Arrest record discrimination -- discharge supposedly for violating drug policy was because of employe's arrest for maintaining a dwelling used by persons manufacturing controlled substances; not a 'mixed motive' case under Hoell

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

STEPHANIE A. GARTON, Complainant

WAL-MART STORES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802360

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, except that it makes the following modifications:

1. In the first line of paragraph 3 of the FINDINGS OF FACT, the year "1997" is deleted and the year "1996" is substituted therefor.

2. In the second line of paragraph 11 of the FINDINGS OF FACT, the surname "Nichols" is deleted and the surname "Nicolais" is substituted therefor.

3. Paragraph 2 of the CONCLUSIONS OF LAW is deleted and the following paragraph is substituted therefor:

"Stephanie Garton has proven by a preponderance of the evidence that Wal-Mart violated the Wisconsin Fair Employment Act by discriminating against her in her terms and conditions of employment and terminating her employment because of her arrest record.

4. In the first sentence of paragraph 3 of the ORDER, the language "from May 22, 1998 to the present" is deleted and the following wording is substituted therefor: "from May 22, 1998, until whichever comes first, the date Ms. Garton states/stated in writing that she does not desire to be reinstated, or the date that she resumes employment with Wal-Mart."

5. The following paragraph is inserted after paragraph 3 of the ORDER:

"A worksheet computing the back pay and interest owed Ms. Garton for the period through the date of the hearing is attached to the commission's decision. The interest was calculated based on payment of the back pay on January 31, 2000."

6. The following paragraph is inserted after paragraph 4 of the ORDER:

"Wal-Mart shall pay the additional reasonable attorney's fees and costs Ms. Garton incurred for representation in this matter before the commission."

Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor :

"Within 30 days of the expiration of time within which an appeal may be taken herein, Wal-Mart shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., � � 111.395, 103.005(11) and (12).

DECISION

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

Dated and mailed January 27, 2000
gartost.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Stephanie Garton, was employed by the respondent, Wal-Mart Stores, Inc., beginning in September 1996 at its store in Chilton, Wisconsin. At the time of the events in May and July 1998 at issue herein, Garton was an UPC associate for Wal-Mart.

Wal-Mart has an alcohol and drug abuse policy which provides, in part, as follows: "The use, possession, sale, transfer, acceptance, or purchase of illegal drugs at any time is strictly prohibited..Any violation of this policy will be grounds for immediate termination." Wal-Mart's alcohol and drug abuse policy also provides that "The conviction under any criminal drug statute, or failure to notify the company of any arrest or conviction under any criminal drug statute within five days after the arrest or conviction will result in termination of employment."

Between April 1997 and October 1997, Garton shared a two bedroom apartment with her boyfriend, Nathan Snelson. Snelson kept his belongings in the spare bedroom, which was considered to be Snelson's room. Snelson grew a mushroom type plant in a locked closet in his room. Snelson grew this plant using his own materials. When Garton asked Snelson about the plant she was told that it was a grain-like substance and that you could hallucinate from it. Apparently, Garton learned that Snelson was growing the mushroom plant sometime around mid- September 1997. Garton told Snelson to get rid of it. Garton did not feel that she herself had the right to dispose of something that was Snelson's property. Garton never used the grain-like substance, or any illegal drugs. Garton did not participate in any way in the growing of Snelson's mushroom plant, she did not maintain any ownership over it, and she never attempted to transfer, give, exchange or sell it to anyone.

By October 30, 1997, Snelson, who was on probation, was in the process of moving his belongings from Garton's apartment to a new apartment. On October 30, 1997, Garton was stopped by the police while driving, and then later questioned by sheriff's deputy, Mary Nicolais. Garton was advised that they had found something growing in the closet of her apartment and questioned her about it. Garton was not charged with any crime at that time.

The following day, October 31, 1997, since the store manager, Gail Lassee, was on maternity leave, Garton reported having been questioned regarding the substance found growing in her apartment to the assistant store manager, Ben Teckenbrock. Garton told Teckenbrock about everything that had occurred and everything that she had told deputy Nicolais.

When Lassee returned from maternity leave in January 1998, Garton told Lassee the same things she had told Teckenbrock. Garton was not advised that she was in danger of being suspended or terminated from Wal-Mart.

On May 4, 1998, the district attorney for Calumet County issued a criminal complaint and summons charging Garton with knowingly keeping and maintaining a dwelling which is resorted to by persons manufacturing controlled substances, contrary to Wis. Stats., � 961.42(1). (1 ) The following statement was included in the complaint: "Garton admitted (to deputy Nicolais) that she knew what was in the closet in the spare bedroom, specifically knew that there was some glass covering jars, a watering source, and that mushrooms were being grown in the closet. Stephanie indicated that Nathan Snelson gets drugs off of the grains, which drugs can cause you to hallucinate. Garton indicated that Snelson grows the mushrooms to sell so that he can get money and that he's been growing mushrooms for approximately one and one-half months. Garton indicated that Nathan Snelson has been her boyfriend for approximately four years, and that they have lived together since April of 1997."

The complaint also contained the statement that "Snelson admitted that his girlfriend, Stephanie Garton, knew what was in the closet, however did not participate in the growing operation."

There was no store manager at the Chilton store when Garton received the criminal complaint and summons, so she reported having received the complaint and summons to two office employes, one of whom was apparently the personnel manager.

In mid-May 1998, Debra Adam came to the Chilton store as manager. On May 16, 1998, Garton filled Adam in on what had happened. Garton told Adam that she had been interviewed by Mary Nicolais concerning an hallucinogenic that was being grown in her apartment and that there would be a possible court trial coming up because she had received a criminal complaint and summons. Garton also told Adam that it was her roommate, Snelson, who was growing the grainy substance in the closet, and that she had not been involved in any way in growing the substance. Adam, who understood that Garton was not married to Snelson, did not ask Garton if she had any right to control or dispose of his property. Adam did not ask Garton if she had ever used the grainy substance. Adam had no information that Garton had ever used illegal drugs, or that she had at any time sold, transferred, accepted or purchased any illegal drugs.

After her conversation with Garton, Adam called and told Dale Murphy and Patty Ryan, the respondent's district manager and loss prevention supervisor, respectively, that Garton stated she had been interviewed by the police and received a criminal complaint. Garton testified that she went to a higher authority because she was not comfortable dealing with the matter herself. She testified that possession of illegal drugs in violation of company policy was what came to her mind.

Adam had no further discussion with Garton after May 16, 1998, until May 22, 1998.

On May 22, 1998, six days after Adam's discussion with Garton, Murphy and Ryan instructed Adam to suspend Garton pending a further investigation regarding a breach of company policy. Murphy and Ryan were in receipt of a copy of the criminal complaint and summons at the time they made the decision to suspend Garton. Adam told Garton that she had to suspend her based on the company's alcohol and drug policy, that the decision to suspend was not her decision and that depending on the outcome of the criminal complaint Garton could have her job back. Neither Murphy nor Ryan ever talked to Garton before Adam informed her of her suspension.

In July 1998, Murphy and Ryan told Adam to fire Garton for breaking the Wal-Mart drug and alcohol policy. On July 13, 1998, Adam informed Garton that she had to fire her based on the company drug and alcohol policy. Neither Adam, nor anyone else from Wal-Mart had any discussion with Garton between May 22 and July 13, 1998. The criminal complaint charges were still pending against Garton as of July 13, 1998. Adam completed an Exit Interview form, placing a check mark in the space provided to indicate that Garton's employment was an involuntary termination for violation of company policy, and gave the following written explanation: "Stephanie admitted to Mary Nicolais Sheriffs Deputy that she knew drugs were being grown in her apartment - Charged on 5-4-98 w/ knowing and keeping a dwelling which manufactured control substance where held."

Garton was never convicted of the charge of having violated s. 961.42(1), Wis. Stats.

Garton subsequently filed a complaint of discrimination with the Equal Rights Division alleging that she was suspended and subsequently terminated from her job because she was charged with a crime. Following an initial determination which found probable cause to believe the respondent had violated the Act, the division issued a notice of hearing scheduling the matter for a hearing on the merits.

Wal-Mart did not file an answer to Garton's complaint of discrimination, and acknowledged at the hearing that it was not alleging that the circumstances of the charge against Garton were substantially related to the circumstances of a UPC associate's job duties.

Following the February 25, 1999 hearing, the administrative law judge for the Equal Rights Division issued a decision finding that Wal-Mart had discriminated against Garton on the basis of her arrest record in violation of the Wisconsin Fair Employment Act. On appeal, Wal-Mart requests that the decision of the administrative law judge be reversed, or in the alternative, that it be modified to conform to the standards of Wisconsin's mixed motive doctrine.

DISCUSSION

Section 111.322 of the Wisconsin Fair Employment Act makes it an act of employment discrimination to, among other things, terminate any individual's employment, or to discriminate against any individual in his or her terms or conditions of employment on the basis of arrest record.

Section 111.32(1), Wis. Stats., defines arrest record as including, but 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."

Section 111.335(1)(b), Wis. Stats., provides that notwithstanding s. 111.322, "it is not discrimination because of arrest record to refuse to employ.or to suspend from employment.any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job."

Wal-Mart argues that its adverse employment action taken against Garton was not based on her arrest record, but on the basis that Adam believed that Garton had admitted her guilt involving possession of drugs in violation of Wal-Mart policy. Wal-Mart argues that Garton volunteered a complete confession of the facts undergirding her arrest which amounted to a violation of Wal-Mart's alcohol and drug abuse policy. Wal-Mart argues that paragraph 11 of the ALJ's Findings omits the significance and substance of what Garton told Adam and makes it appear that all that was told by Garton was the fact of the arrest.

The respondent's arguments fail. Contrary to argument by Wal-Mart, paragraph 11 of the ALJ's findings neither omits the substance of what Garton told Adam nor makes it appear that all Garton told Adam was about the fact of the arrest. Paragraph 11 of the findings state exactly what Garton told Adam: That she had been interviewed by Mary Nicolais concerning an hallucinogenic that was being grown by Nathan Snelson in her apartment and that there would be a possible court trial coming up because she had received a criminal complaint and summons. See T. 40-41, 48. Garton did not volunteer a confession to facts which amounted to a violation of Wal-Mart's drug policy. Moreover, whatever Adam's belief may have been about Garton's guilt involving possession of drugs, it was not Adam but Dale Murphy and Patty Ryan, the respondent's district manager and loss prevention supervisor, who made the decision regarding the suspension and termination of Garton's employment. (2 ) The written explanation for Garton's termination that Adam entered on the Exit Interview form after Adam was asked to terminate her employment states: "Stephanie admitted to Mary Nicolais Sheriffs Deputy that she knew drugs were being grown in her apartment - Charged on 5-4-98 w/ knowing and keeping a dwelling which manufactured control substance where held."

The explanation provided for Garton's termination is a clear reflection of the criminal charge against Garton. Neither Murphy nor Ryan appeared at the hearing to refute the connection between the explanation for Garton's discharge and the criminal charge. What the respondent relies on as Garton's "complete confession" to facts amounting to a violation of its alcohol and drug abuse policy is Garton's statement to Adam and deputy Nicolais admitting that she knew her boyfriend, Snelson, was growing drugs in the apartment they shared. However, Garton's admission that she knew that drugs were being grown by Snelson did not constitute facts which amounted to a violation of Wal-Mart's drug policy. Wal- Mart's alcohol and drug policy prohibited "The use, possession, sale, transfer, acceptance, or purchase of illegal drugs." There is no indication in any statement made by Garton that she exercised any dominion or control over the drugs being grown by Snelson, or that she admitted or confessed to using, possessing, selling, transferring, accepting or purchasing any illegal drugs. Indeed, Garton had specifically told Adam that it was Snelson who was growing the grainy substance in the closet and that she had not been involved in any way in growing the substance. Adam, who understood that Garton was not married to Snelson, never asked Garton if she had any right to control or dispose of Snelson's property and never asked Garton if she ever used the grainy substance grown by Snelson. Further, Adam had no information that Garton had ever used illegal drugs, or that she had at any time sold, transferred, accepted or purchased any illegal drugs. Also, neither Murphy or Ryan had ever questioned Garton about the drugs found growing in her apartment, so they had no information that Garton had in any way violated Wal-Mart's drug policy.

What the evidence thus indicates, is that it was Garton's arrest record that Wal-Mart based its decision to suspend and terminate Garton's employment. First, the explanation for termination provided by Adam on the Exit Interview form specifically references Garton being questioned by deputy sheriff Nicolais and charged with a crime on May 4, 1998. Wal-Mart suspended Garton's employment on May 22, 1998, just six days after she had reported to Adam that deputy sheriff Nicolais had interviewed her concerning a hallucinogenic being grown by her boyfriend in her apartment and that a criminal charge had been filed against her. Thereafter, without any more information than what was available to it on May 22, 1998, Wal-Mart terminated Garton's employment on July 13, 1998. Second, the fact that Wal-Mart never bothered to determine if Garton had maintained any ownership in the grainy substance grown by Snelson in her apartment is further evidence that it was Garton's arrest that was the basis for Wal-Mart's decision to suspend and terminate her employment. Wal-Mart had no information that Garton had in any way violated its alcohol and drug abuse policy. Wal-Mart simply assumed that Garton was guilty of possessing illegal drugs in violation of company policy, and that assumption was based entirely on the fact of her arrest record. The ALJ's finding in paragraph 16 that Wal-Mart never investigated the criminal complaint against Garton is not contrary to the evidence as alleged by Wal-Mart. What Wal-Mart cites as its "investigation" was Adam listening to Garton repeat what she had told deputy Nicolais: That she knew drugs were being grown by Snelson in the apartment they shared. This "investigation" by Wal-Mart did not produce any admission by Garton amounting to a violation of the Wal-Mart drug policy.

The respondent argues that this case is in substance the same as the case of Ponto v. Grand Geneva Resort & Spa (LIRC, 8/22/96). That is not so. In the Ponto case, Mr. Ponto, a fitness center director, who had contact with fitness center members under the age of 16, was suspended from employment by the employer after it became aware of his arrest record for sexual assault of a minor and exposing a minor to harmful materials. The employer subsequently terminated Ponto's employment after a newspaper article stated that Ponto had admitted to police to having sexual contact with the minor and that the criminal complaint indicated that Ponto had admitted the contact. Ponto's suspension was found not to be in violation of the Act because the pending charges against him were substantially related to the job of fitness center director where he had significant contact with minors. Ponto's termination of employment was found not to be in violation of the Act because the evidence showed that the employer's decision to terminate Ponto was made based upon the employer's belief that additional information it obtained after the initial decision to suspend him showed that Ponto had confessed to the charges against him, and that such belief by the employer was adequately independent of the mere fact of the arrest record.

Unlike the Ponto case, Wal-Mart conceded at the hearing that it was not relying on the affirmative defense that the circumstances of Garton's charge was substantially related to the circumstances of a UPC associate's job duties. Further, unlike the Ponto case, Wal-Mart had nothing amounting to an admission or confession by Garton to having violated Wal-Mart's alcohol and drug policy. Wal-Mart can point to nothing to show that it had acted independent of the mere fact of Garton's arrest record.

Wal-Mart argues that the ALJ misstates the issue because he finds that Wal-Mart would not have discharged Garton had it not considered her being questioned and charged with a criminal offense, while what the Act prohibits is discrimination on the basis of arrest record. However, it is sufficiently clear that what the ALJ's decision holds is that Wal-Mart unlawfully discriminated against Garton on the basis of her arrest record.

Wal-Mart also takes exception to the ALJ's memorandum opinion comment questioning the rationality of its alcohol and drug policy. While the comment was unnecessary, the record evidence in this case nevertheless supports the ALJ's decision that Wal-Mart unlawfully discriminated against Garton on the basis of her arrest record.

Wal-Mart further argues that by commenting that Wal-Mart had violated the law because their discharge of Garton "hopelessly mixed the fact of Ms. Garton being arrested with her actions," the ALJ was evidently concluding that Adam acted with a mixed motive, that she was "moved by the stigma of arrest and by violation of Wal-Mart policy." Wal-Mart argues that under Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1984), where an employe is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employe should be awarded only a cease and desist order and attorney's fees. Wal-Mart argues that in this case, however, the ALJ entered not only a cease and desist order and attorney's fees but reinstatement and back pay as well when he should have at most only provided an award of a cease and desist order and attorney's fees because the record shows that Garton's termination of employment would have taken place in the absence of consideration of Garton's arrest.

Wal-Mart erroneously concludes that the ALJ decided it had acted in part because of Garton's arrest and in part because she had violated Wal-Mart's drug policy, however. A mixed motive case is one in which the adverse employment decision resulted from a mixture of legitimate business reasons and prohibited discriminatory motives. Hoell, 186 Wis. 2d 608, citing Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12. The ALJ did not decide that Garton's employment was terminated in part because she had violated Wal-Mart's drug policy and in part because of her arrest. In fact, what the ALJ decided was that Garton's arrest was the only reason for her termination. In paragraph 20 of the findings, the ALJ stated, "Wal-Mart would not have discharged Ms. Garton had they not considered her being questioned and charged with a criminal offense." The more reasonable conclusion to be drawn by the ALJ's comment that Wal-Mart hopelessly mixed the fact of Garton being arrested with her actions is that he concluded Wal-Mart acted based on Garton's arrest and the fact that she had resided with an individual who was growing drugs.

Finally, Wal-Mart apparently also argues that if the Explanation Of Termination reference to Garton being charged with a crime contained on Garton's Exit Interview form is significant, it shows that at most there was a mixed motive for Garton's termination because the top part of that document has a place that is marked that the discharge is because of "Violation of Company Policy." However, it was through reliance on the May 4, 1998 criminal charge filed against Garton that Wal-Mart concluded that Garton had violated its drug policy because Garton had never made any statement which indicated that she had violated the drug policy and because Wal-Mart never conducted any investigation to determine if Garton had actually violated its drug policy.

REMEDY

The parties stipulated that at the time of Garton's suspension on May 22, 1998, she was earning $7.30 per hour and averaged 39 per hours of work per week. There was a further stipulation that Garton obtained employment at Copps on October 22, 1998, where she earned $6.70 per hour with an average work week of 39 hours.

The administrative law judge's order requiring that Wal-Mart make Garton whole for all losses in pay and benefits by paying her the sum she would have earned as an employe from "May 22, 1998 to present" has been modified to require that such sum extend from May 22, 1998 until whichever comes first, the date Ms. Garton either states/stated in writing that she does not desire to be reinstated, or the date that she resumes employment with Wal-Mart. There are two reasons for this modification. (1) It is not known when or if Garton has indicated a desire not to be reinstated; and (2) assuming Garton desires reinstatement, the record shows that while Garton has obtained interim employment at Copps, she was earning $.60 per hour less than what she would have earned if working at Wal-Mart.

A worksheet (attached) to this decision computes the back pay that would be owed Garton through the date of the hearing, February 25, 1999. Interest has been calculated on this amount with the assumption that payment is made to Garton on January 31, 2000.

Garton submitted a request to the administrative law judge for $5,254.47 as attorney's fees and costs incurred in pursuing her complaint of discrimination. Counsel for Wal-Mart agreed to this amount. This amount was said to be based on an hourly fee rate of $125.00 for 37.55 hours, plus costs of $347.65. $125 X 37.55 hours plus $347.65 does not add up to $5,254.47. The commission calculates the fees to be $4,693.75. The commission calculates the costs set forth in Garton's fee petition to be $373.22, not $347.65. The total award for fees and costs therefore should have been $5,066.97, which is $187.50 less than what has been awarded in fees and costs. However, since the commission has also awarded Garton additional reasonable attorney's fees and costs that she incurred before the commission, the amount of $187.50 should be credited toward the attorney's fees and costs incurred before the commission.

NOTE: The commission believes that the decision itself should contain and fully state the conclusions of law reached on a complainant's allegations of discrimination, and for this reason paragraph 2 of the administrative law judge's conclusions of law has been modified.

cc: James P. Burnett
William J. Holloway

Appealed to Circuit Court. Affirmed August 21, 2000.

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Footnotes:

(1)( Back ) Section 961.42(1), Wis. Stats., provides that "It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this chapter."

(2)( Back ) Wal-Mart argues that Adam's testimony and the fact that she completed and signed Garton's Exit Interview form shows that Adam was the decision maker. This argument is without merit. Adam testified that on May 22, 1998, Murphy and Ryan told her to suspend Garton's employment, and that in July Murphy and Ryan asked her to fire Garton. T. 41, 45.