BARBARA MCKNIGHT, Complainant

SILVER SPRING HEALTH & REHABILITATION, 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 upon its review of the matter, the commission makes the following:

2.  On August 4, 1999, Barbara McKnight applied for a position as a certified nursing assistant (CNA) at the respondent's Milwaukee facility.  The duties of a CNA at the respondent include bathing, dressing, toileting and feeding the residents, changing them if they are incontinent, escorting them to activities and preparing them for bed.  CNA's spend 95 percent of their time dealing with residents.  Most tasks require that CNA's work alone. 

3.  It is the respondent's policy that a background investigation be conducted of all prospective new hires and rehires.  Thus, as part of the process in applying for the CNA position, McKnight was given the following to complete: (1) An employment application form (Exhibit 1);  (2) a Beverly Enterprises' Background Check Authorization Form (Exhibit 2);  and (3) a Department of Health and Family Services' (DHFS) Background Information Disclosure form (Exhibit 3).  The DHFS Background Information Disclosure form is required pursuant to the Wisconsin Caregiver Law, Wis.  Stats.  §§ 48.685 and 50.065. 

4.  The respondent contracts with Human Resources Profile, Inc., a company that conducts background investigations, to perform the background checks on applicants.  Also, completion of the DHFS disclosure form results in a background investigation report from the Wisconsin Department of Justice's Criminal Investigation Bureau (CIB). 

5.  The following statement is included in the respondent's background investigation policy: "Applicants/associates who dispute and/or question the information provided by Human Resource ProFile will be referred to Human Resource ProFile for an explanation of the information.  Human Resource ProFile will reinvestigate all disputed information and advise Beverly Enterprises of any additional changed information. "

6.  The respondent also maintains a disciplinary policy for unacceptable conduct or behavior by employees.  One form of unacceptable conduct is providing false information to a company official or falsification of any facility records, reports or other documents.  This includes falsification of the employment application, the Beverly Enterprises Background Check Authorization Form or the DHFS Background Information Disclosure form.  The respondent considers falsification of facility records, reports or other documents to be conduct constituting the most serious rule violation that can be engaged in by an employee.  A falsification of records in the application process by a new hire is cause for immediate discharge. 

7.  The respondent hired McKnight as a CNA, pending completion of her background check.  She began working on August 17, 1999. 

8.  One of the questions asked on the DHFS Background Information Disclosure form was the following: "Other than the offenses listed above (i. e. , "HOMICIDES," "SEXUAL ASSAULT/SEX CRIMES," "ABUSE/ASSAULTIVE CRIMES," "PROPERTY CRIMES," and "OTHER" (2) ), do you have criminal charges pending against you or were you ever convicted of any crime or offense anywhere, including in federal, state, local and tribal courts?" McKnight made an "X" in the "NO" box. 

9.  In September 1999, Human Resource Profile and the CIB forwarded their background investigation reports (Exhibits 10 and 11, respectively) regarding McKnight to the respondent's safety and loss department in Fort Smith, Arkansas.  Human Resource Profile's reports are sent via an electronic format into the respondent's computer system.  The results are then available to Beverly Enterprises' facilities through an automated telephone system called an interactive voice response system (IVR).  The IVR system states whether the applicant's background investigation was satisfactory or unsatisfactory, but does not state the specific reason for unsatisfactory background checks. 

10.  The reports furnished by Human Resource Profile and the CIB stated that on April 11, 1987, McKnight was charged with a misdemeanor count of retail theft and that on April 13, 1997, McKnight was charged with a felony count of first-degree recklessly endangering safety (Wis.  Stat.  § 941.30(1)).  These reports further show that the retail theft charge was dismissed on September 22, 1987, and that the first-degree recklessly endangering safety charge was disposed of on April 29, 1997, due to "no prosecution. "

11.  Additionally, the Human Resource Profile report stated that on March 2, 1996, McKnight was charged with a misdemeanor -- endangering safety by use of a dangerous weapon -- and that on October 30, 1996, she was convicted of this charge and fined.  (Exhibit 10)   The CIB report also stated that on March 2, 1996, McKnight was charged with a misdemeanor count of endangering safety by use of a dangerous weapon (Wis.  Stat.  § 941.20(1)(a)).  However, the CIB report stated that McKnight received a non-criminal conviction for disorderly conduct and was ordered to pay a fine.  (Exhibit 11)

12.  Based on the background investigation reports received, the respondent concluded that McKnight had a criminal conviction and that she had falsified company documents regarding a criminal conviction record.  Prior to the start of McKnight's shift on September 29, 1999, Kim Rouse, assistant director of nurses, telephoned McKnight and told her that her employment was terminated because she had an unsatisfactory background check.  According to Rouse, McKnight stated she "understood" when told of the termination of her employment.  Rouse testified that she did not recall that McKnight asked for any details about what was unsatisfactory about her background check. 

13.  Rouse does not independently make the decision to terminate an employee for an unsatisfactory background check.  Rouse receives advice and counsel from the respondent's safety and loss control department in Fort Smith, Arkansas.  Jim Zoesch is the director of the safety and loss control department. 

14.  McKnight testified that on September 29 Rouse stated that her employment was terminated "because of my criminal background. " McKnight further testified that she asked Rouse about the findings of her background check but Rouse could provide no details and stated that she would call back when she found out more.  McKnight testified that a day or so later, she called Rouse back and Rouse told her that she "had a criminal background in endangering safety and that was my reason for being terminated. " McKnight testified that she responded saying that she had no criminal background that would cause her to be terminated and that she had no recollection of this offense.  Rouse did not recall having a second telephone conversation with McKnight. 

15.  McKnight testified that following the second conversation with Rouse she went to the Milwaukee Police Department and the Milwaukee County Sheriff's Department to obtain a copy of her criminal record.  These records were admitted into evidence at the hearing.  McKnight obtained two reports from the Milwaukee Police Department.  One report showed "criminal arrests with or without convictions." (Exhibit 4)   The other showed booking information relating to McKnight's arrests. (Exhibit 5)   The Milwaukee County Sheriff's Department did not have a "Criminal Record/Report" on file regarding McKnight. (Exhibit 6)   The report of McKnight's criminal arrests from the police department showed the following: An April 11, 1987 arrest on a charge of retail theft that was dismissed;  an April 13, 1997 arrest on a charge of domestic violence-reckless endangerment of safety for which there was no prosecution;  and a March 2, 1996 arrest on a charge of endangering safety-dangerous weapon, for which no disposition was listed.  The booking report from the police department is not entirely consistent with the arrest report from the police department.  Specifically, with respect to McKnight's April 13, 1997 arrest, under the section "Release Information" the report states "Time Served/Sentence Comp. " Other information in the booking report shows (1) that McKnight was booked on April 11, 1987, but no release information is provided; and (2) that McKnight was booked on March 2, 1996, and later released on a personal recognizance bond. 

16.  At the hearing McKnight asserted that she had no criminal record. (Tape 1, Side 1, p.  16) (3)   McKnight asserted that this was shown by the reports from the Sheriff's Department and the Milwaukee Police Department.  McKnight also asserted that her March 2, 1996 arrest charge for endangering safety with a dangerous weapon had been "dropped" and was "dismissed. " (Tape 1, Side 1, pp.  12- 13)

17.  The respondent did not terminate McKnight's employment because of her arrest record. 

18.  The respondent terminated McKnight's employment because it believed that she had a criminal conviction record.  However, the evidence fails to establish that McKnight had a criminal conviction record.  Indeed, while the report that the respondent received from Human Resource Profile showed that McKnight had a misdemeanor conviction for endangering safety by use of a dangerous weapon on October 30, 1996, the report that the respondent received from the CIB showed that McKnight had a non-criminal conviction for disorderly conduct on October 30, 1996.  McKnight denied having any criminal conviction and the respondent failed to prove otherwise. 

19.  It is clear from the evidence at the hearing, however, that McKnight was convicted of some offense as a result of the March 2, 1996 incident.  McKnight herself admitted that she had to pay a fine of $100.00 as a result of the March 2, 1996 incident.  (Tape 1, Side 1, pp.  13-14)    McKnight testified that she paid the fine to the "City of Milwaukee. " When asked if she had to pay the $100.00 fine for disorderly conduct McKnight responded, "Not that I know of."   The reports McKnight obtained from the Milwaukee police and sheriff's departments do not support her claim that her March 2, 1996 arrest charge for endangering safety with a dangerous weapon was simply "dropped" or "dismissed."  The police report showing her arrests with or without convictions do not show any disposition for her March 2, 1999 arrest.  Similarly, the booking list report simply shows that McKnight was booked on March 2, 1996, and released on a personal recognizance bond the next day.  A note at the bottom of the sheriff's report states that it "only indicates whether the individual you are interested in has been arrested by the Milwaukee County Sheriff's Department, and the disposition of those arrests. " It is safe to conclude that at a minimum, the evidence establishes that McKnight has a non-criminal conviction for disorderly conduct as shown in the CIB report. 

20.  McKnight described the March 2, 1996 incident as "a domestic violence case...where me and my kid's father was in to it.  And it resulted in me defending myself against him. " (Tape 1, Side 1, pp.  12-13. )   McKnight admitted that they each had a knife.  Id. 

21.  The evidence fails to establish that McKnight's non-criminal conviction for disorderly conduct was substantially related to the position of a CNA. 

22.  Based on the hearing evidence showing that the complainant had falsified company documents with respect to not having a non-criminal conviction, under the respondent's disciplinary policy for unacceptable conduct or behavior by employees, the respondent could have, and would have, terminated her employment for that reason if that had been known to it at the time of the complainant's discharge. 

23.  McKnight was paid an hourly wage of $8.20 at the respondent and she worked approximately 36 hours each week.  Apparently due to her probationary status, which extended until November 15, 1999, McKnight was not eligible for any employee benefits.  About the middle of November 1999, McKnight began employment with a second employer where she remained until January 2000.  She was paid $10.50 per hour and worked about 30 hours each week for this second employer.  In January 2000, McKnight began employment with a third employer, where she was employed at the time of the hearing, working full time for $12.50 per hour. 

Based upon the above FINDINGS OF FACT, the commission makes the following:

1.  The respondent, d/b/a Silver Springs Health & Rehabilitation Center, is an employer within the meaning of the Wisconsin Fair Employment Act. 

2.  The complainant, Barbara McKnight, is an individual entitled to protection against discrimination on the basis of arrest and conviction record as provided under the Act. 

3.  The complainant failed to establish by a preponderance of the evidence that the respondent discriminated against her on the basis of arrest record in violation of the Act when it terminated her employment. 

4.  The complainant established by a preponderance of the evidence that the respondent discriminated against her on the basis of conviction record in violation of the Act when it terminated her employment. 

5.  Based on the hearing evidence showing that the complainant had falsified company documents with respect to not having a non-criminal conviction, the respondent could have, and would have, terminated her employment for that reason if that had been known to it at the time of the complainant's discharge. 

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

1.  That the complainant's claim of discrimination on the basis of arrest record is hereby dismissed. 

2.  That the respondent shall cease and desist from discriminating against the complainant on the basis of conviction record. 

3.  That the respondent shall make the complainant whole for all lost pay that she would have received as an employee from September 29, 1999, until March 29, 2000, the date the hearing was held in this matter.  The back pay shall be computed on a calendar quarterly basis with an offset for her interim earnings during each calendar quarter.  Any unemployment or welfare benefits received by the complainant during the back pay period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or to the applicable welfare agency.  (Reimbursement for unemployment insurance should be in the form of a check and made payable to the Department Workforce Development and include the complainant's name and social security number. ) Additionally, the amount payable to the complainant after all statutory setoffs have been deducted shall be increased by interest at the annual rate of 12% simple interest.  Interest shall be computed based on the net amount of the back pay due for each calendar quarter.  The interest shall be computed by calendar quarter from the last day of each calendar quarter to the date of payment.  The back pay, plus interest, due shall be in the form of a check made payable to Barbara McKnight.  Pending any and all appeals from this order, the total back pay due will be the total of all such amounts. 

4.  That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's order.  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 $10.00 nor more than $100.00 for each offense.  See Wis. Stats.  §§ 111. 95, 103.005(11) and (12). 

Dated and mailed February 5, 2002
mckniba . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The respondent in this matter has submitted to the commission a memorandum in support of its petition, along with a motion for leave to supplement the record. 

In the memorandum in support of its petition the respondent argues that there is no evidence that McKnight's termination of employment had anything to do with any arrest.  The respondent argues that the evidence establishes that McKnight was terminated "because it believed she stood convicted of an offense that was substantially related to her job duties, which the law permits. " Further, the respondent argues that even if McKnight had established that the respondent intentionally discriminated against her, the respondent was "lawfully entitled to terminate her for falsifying company documents."

ARREST RECORD

The term "arrest record" is defined in section 111.32(1), Wis. Stat. , and reads as follows:

" '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 commission agrees with the respondent's assertion that the evidence does not show that McKnight's termination of employment had anything to do with her arrest record.  First, McKnight's testimony fails to indicate that her termination of employment had anything to do with her arrest record.  The only testimony McKnight offered as to the reason the respondent terminated her employment was her testimony that on September 29, 1999, Rouse told her that her "employment was being terminated because of [her] criminal background," and her testimony that a day or so later Rouse explained that she "had a criminal background in endangering safety and that was my reason for being terminated." McKnight did not testify that Rouse or anyone else told her that the background check to which Rouse referred contained arrest information, or that the respondent had based its decision to terminate McKnight's employment based upon arrest record information. 

Further, as noted by the respondent, the only reference to an "arrest" in any of McKnight's testimony was the following question from the ALJ: "So the sole reason you were told [for your termination] was because of the arrest that you have involving domestic violence.  What was the nature of that charge?"  The first portion of the ALJ's question was unsupported by McKnight's prior testimony, and her response to the question actually posed, "It was dismissed," did not confirm or refute that Rouse mentioned anything to McKnight about an arrest. 

Second, the testimony of the respondent's witnesses indicates that the respondent's termination decision was based upon conviction data that it had received on McKnight.  Margaret Cunningham, respondent' s executive director administrator, testified that the reason for the background check was to effectuate the state law with respect to hiring and retention of certain individuals with certain kinds of criminal convictions that would render them unsuitable for providing care in nursing facilities.  (Tape 1, Side 2, p.  9) (4)    Rouse testified that after a background check was performed, the respondent would receive a document "stating that the background check has been done and either there has been no convictions found or if there have been things found, it will list those out." (Tape 2, Side 1, p.  2)    Zoesch testified that the respondent had a very old vulnerable adult population and that because of federal and state regulations it had an obligation to conduct background checks for criminal convictions.  (Tape 2, Side 1, pp.  8-9)

Rouse understood from Human Resource Profile's report (Exhibit 10)  that McKnight had an October 30, 1996 misdemeanor conviction for endangering safety by use of a dangerous weapon. (Tape 2, Side 1, p.  3)    Rouse did not understand that the report from CIB, which showed that McKnight had a non-criminal conviction for disorderly conduct on October 30, 1996, was not a criminal offense. (Tape 2, Side 1, p.  4)    Referencing the reports from Human Resource Profile and the CIB, Zoesch testified that he could only imagine that "a non-criminal [conviction] is a conviction of a nature designated under Wisconsin statute.  That is all I know about that." (Tape 2, Side 1, p.  14)

In short, the evidence shows that Rouse and Zoesch, who were responsible for the termination of McKnight's employment, believed that McKnight had been convicted of a criminal offense. 

Wisconsin Statute § 939.12 defines the term "crime" as follows:

"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."

(Emphasis added. )

Also, Wisconsin Statute § 939. 60 provides that:

"A crime punishable by imprisonment in the Wisconsin state prisons is a felony.  Every other crime is a misdemeanor."

CONVICTION RECORD

The term "conviction record" is defined in section 111.32(3), Wis. Stat., and reads as follows:

" '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 WFEA makes it an act of employment discrimination to discriminate against an individual on the basis of conviction record but provides, in relevant part, the following exception:

"(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or ...terminate from employment ... 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."

Wis.  Stat.  § 111.335(1)(c)1. 

The respondent has the burden of establishing that an individual has been convicted of a felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. 

The record does not support a showing that the respondent met its burden under section 111.335(1)(c)1.  First, the respondent terminated McKnight's employment because it believed that she had a criminal conviction record.  However, the evidence fails to establish that McKnight had a criminal conviction record.  Indeed, while the report that the respondent received from Human Resource Profile showed that McKnight had a misdemeanor conviction for endangering safety by use of a dangerous weapon on October 30, 1996, the report that the respondent received from the CIB showed that McKnight had a non-criminal conviction for disorderly conduct on October 30, 1996.  Further, McKnight denied having any criminal conviction and the respondent failed to prove otherwise. 

The respondent argues, however, that McKnight produced no evidence that it intentionally discriminated against her when it terminated her for "what it believed was her conviction record." The respondent argues that the evidence shows that it believed in good faith that McKnight was convicted of an offense (i.e. , a criminal offense) that was substantially related to her job duties.  The respondent argues that this vitiates any inference that it engaged in unlawful discrimination because the key to a finding of discrimination is the employer's motivation, not whether the employer was objectively correct. (5)   The commission believes the respondent's argument about its good-faith belief and motivation is misplaced.  First of all, where the courts have found no discrimination based on an employer's good-faith mistaken belief as to certain facts, those mistaken good-faith beliefs did not involve mistaken beliefs about the individual's protected status, they involved good-faith beliefs about factual matters having nothing at all to do with the individual's protected status.  See for example, Kariotis v.  Navistar International Transportation Corp., 131 F. 3d 672 (7th Cir.  1997)(Employer that discharged 57-year-old woman on possibly mistaken belief she had fraudulently obtained disability pay did not discriminate on the basis of age or disability);  Pugh v.  Wisconsin Department of Natural Resources, 749 F.  Supp.  205 (E. D.  Wis.  1990)(State agency's explanation that it discharged black employee because supervisors believed he falsified time sheets not pretextual even though evidence suggests he may never have falsified time sheets);  Bullington v.  United Air Lines, 186 F. 3d 1301 (10th Cir.  1999)(Argument by plaintiff not hired as flight officer that interviewers were wrong in their assessment of her job qualifications and statements insufficient to show pretext because issue is not whether the reasons for a decision were based on correct assumptions, but whether employer honestly believed the reasons and exercised its business judgment based on them); Brown v.  Brown & Williamson Tobacco, (95-30281 LAC, N. D.  Fla.  1996), aff'd, 111 F. 3d 896 (11th Cir.  1997) (Plaintiff terminated for, inter alia, allegedly selling employer's promotional items for person gain who disputed accuracy of investigator's report that she was selling those promotional items failed to show that she was terminated due to her race or sex since the existence of the report itself was a sufficient nondiscriminatory reason for her termination, regardless of its accuracy). 

Second, under the WFEA, once it has been determined that an employer made its employment decision on the basis of an individual's conviction record the only exception to employer liability applicable provides that it is not unlawful to terminate from employment any individual who "Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. " Wis.  Stat.  § 111. 335(1)(c)1.  (Emphasis added)   The ordinary meaning of the words, "Has been convicted," indicates a requirement that the individual actually have a conviction.  Further, interpreting the statute in this manner makes sense.  Absent a requirement that the individual actually have a conviction, the remainder of the statutory exception is rendered meaningless.  No purpose would be served by requiring proof of a substantial relatedness between some nonexistent conviction that an individual was believed to have and the particular job in question. 

Further, there is no reason to believe that requiring an employer to verify that an individual actually has been convicted of a felony, misdemeanor or other offense is an unduly onerous obligation for an employer.  Confirmation of whether or not an individual has been convicted can be learned by contacting the appropriate municipal, state or federal court system and requesting a copy of the official court records. 

The respondent has noted, however, that the Fair Employment Act does not limit a "conviction record" to criminal convictions.  This is true.  The term "conviction record" as defined by Wis.  Stat.  § 111.32(3), includes "information indicating that an individual has been convicted of any felony, misdemeanor or other offense. . . pursuant to any law enforcement. authority. " (Emphasis added)   Also, as provided under Wis. Stat.  § 111.335(1)(c)1, it is not employment discrimination because of conviction record to terminate the employment of any individual who "Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job... " (Emphasis added)

The evidence is clear that McKnight was convicted of some offense as a result of the March 2, 1996 incident.  McKnight herself admits that she had to pay a fine of $100.00 as a result of the March 2, 1996 incident.  (Tape 1, Side 1, pp.  13-14)   McKnight testified that she paid the fine to the "City of Milwaukee."   When asked if she had to pay the $100.00 fine for disorderly conduct McKnight responded, "Not that I know of."  The reports McKnight obtained from the Milwaukee police and sheriff's departments do not support her claim that her March 2, 1996 arrest charge for endangering safety with a dangerous weapon was simply "dropped" or "dismissed."  The police report showing her arrests with or without convictions do not show any disposition for her March 2, 1999 arrest.  Similarly, the booking list report simply shows that McKnight was booked on March 2, 1996, and released on a personal recognizance bond the next day.  A note at the bottom of the sheriff's report states that it "only indicates whether the individual you are interested in has been arrested by the Milwaukee County Sheriff's Department, and the disposition of those arrests."   The commission believes that it is safe to conclude that at a minimum, the evidence establishes that McKnight has a non-criminal conviction for disorderly conduct as shown in the CIB report. 

McKnight described the March 2 incident as "a domestic violence case... where me and my kid's father was in to it.  And it resulted in me defending myself against him." (Tape 1, Side 1, pp.  12-13. )  McKnight admitted that they each had a knife.  Id. 

The fact that the term "conviction record" under the Act is not limited to criminal convictions but includes convictions for "other offenses" does not assist the respondent in meeting its burden under Wis. Stat. § 111.335(1)(c)1, however.  First, the respondent's motivation for terminating McKnight's employment was its belief that she had a criminal conviction, not that she had a non-criminal conviction.  Second, while it can be concluded from the evidence that McKnight has a non-criminal conviction, the respondent has not established that McKnight has been convicted of an offense the circumstances of which substantially relate to the circumstances of the job of a CNA. 

Whether or not an offense is substantially related to the circumstances of a particular job requires "(a)ssessing 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." County of Milwaukee v.  LIRC, 139 Wis.  2d 805, 824, 407 N. W. 2d 908 1987.  "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. " Id. 

Moreover, in County of Milwaukee the court stated:

"The full assessment of what may be termed the 'fostering' circumstances may, at times, require some factual exposition.  For instance, in 'disorderly conduct' cases the type of offensive circumstances is not as explicit as it is in sexual assault, armed robbery, theft or embezzlement convictions for example.  However, such factual inquiry would have as its purpose ascertaining relevant, general character-related circumstances of the offense or job."

139 Wis. 2d at 825. 

The respondent presented no evidence at the hearing regarding the specific non-criminal disorderly conduct offense that McKnight was convicted of violating.  The evidence available at the hearing indicates that McKnight's disorderly conduct offense resulted from a domestic dispute that occurred on March 2, 1996.  McKnight presented the only factual details of the March 2 incident.  McKnight testified that the March 2, 1996 incident was a "domestic violence case. " She testified that she called the police.  She admitted that both she and her partner had a knife, but stated that she was defending herself.  The respondent asserts that it must provide a safe environment for its clients who are elderly, defenseless people who cannot care for themselves.  While this is undoubtedly true, it has not been demonstrated how a disorderly conduct offense arising in connection with a domestic violence incident where McKnight was attempting to defend herself, bore a substantial relationship risk to the position of a CNA. 

MOTION TO SUPPLEMENT RECORD

The respondent filed a motion for leave to supplement the record with evidence to show that McKnight did receive a conviction as a result of the March 2, 1996 incident.  The respondent asserts that this evidence is "newly discovered evidence."  The respondent argues as follows:

"... evidence Silver Spring received after the hearing (and could not have obtained earlier) indicates that when McKnight testified at the hearing, she was aware that her testimony that she had no conviction arising from the March 2, 1996 incident and her denial of specific details relating to such a conviction were false.  Specifically, a September 27, 2000 order entered by the Milwaukee County Circuit Court in connection with the proceeding arising from the March 2 incident establishes that on September 21, 2000, McKnight filed a request for expungement of the disorderly conduct conviction she received in that case, indicating McKnight was well aware that she had a conviction arising from the incident when she testified less than six months earlier."

Resp. Motion, pp.  2-3. 

The respondent attached the following to its motion for leave to supplement the record:  1) a copy of the complaint against McKnight arising from the March 2, 1996 incident;  2) a copy of a Judgment of Conviction showing that as a result of the March 2 incident and based upon a plea of guilty on October 30, 1996, McKnight was convicted of disorderly conduct in violation of "§ 63.01"; and  3) a copy of the September 27, 2000 Milwaukee County Circuit Court Decision and Order denying McKnight's request for expungement of her disorderly conduct conviction.  In the September 27, 2000 decision and order denying the request for expungement, the court noted that on October 30, 1996, McKnight pled guilty to disorderly conduct in violation of county ordinance § 63.01 and was ordered to pay a $100.00 fine. 

The respondent's motion must be denied.  First, the evidence cited as "newly discovered evidence" by the respondent does not constitute newly discovered evidence.  In order to constitute newly discovered evidence, a party must show that the evidence is sufficiently strong to reverse or modify the ALJ's decision and that the evidence could not have previously been discovered by due diligence.  Tate v.  Rouse-Milwaukee Inc.  (LIRC, 05/16/95); Losser v.  Grand Chute Police Dept. (LIRC, 05/12/98).  The respondent has failed to satisfy the second part of the test for what constitutes newly discovered evidence.  While the respondent obviously was not aware at the time of the hearing before the ALJ (March 29, 2000) that there was a September 27, 2000 circuit court decision and order denying McKnight's request for expungement of her conviction for a disorderly conduct, the respondent could have, with the exercise of due diligence prior to the hearing, discovered that McKnight received a conviction for disorderly conduct as a result of the March 2, 1996 incident.  Specifically, by contacting the local police it could have obtained a copy of the complaint against McKnight arising from the March 2, 1996 incident and inquired about its status.  It could have learned, by contacting the court and inquiring about the disposition of the March 2 complaint against McKnight, that a judgment of conviction was entered against her for disorderly conduct in violation of § 63.01 of the Milwaukee County Ordinance on October 30, 1996, based upon her plea of guilty. 

Second, there is no reason to "supplement" the record with evidence that McKnight was convicted as a result of the March 2, 1996 incident.  It can be concluded from the existing record that McKnight has a non-criminal conviction as a result of the March 2 incident. 

The respondent makes the further argument, however, that even if it is found to have discriminated against McKnight based upon a conviction record that was not substantially related to her job duties, it "could lawfully have terminated her for falsifying company documents. " Further, the respondent appears to take the position that no violation of the Act occurred because it could lawfully have terminated the employment of McKnight for falsification of records. 

As discussed above, based upon the evidence at the hearing it can be concluded that McKnight has a non-criminal conviction for disorderly conduct stemming from the March 2, 1996 incident. (6)   McKnight, however, answered "No" to the question on the DHFS Background Information Disclosure form that asked, ""Other than the offenses listed above (i.e., "HOMICIDES," "SEXUAL ASSAULT/SEX CRIMES," "ABUSE/ASSAULTIVE CRIMES," "PROPERTY CRIMES," and "OTHER"), do you have criminal charges pending against you or were you ever convicted of any crime or offense anywhere, including in federal, state, local and tribal courts?" (Emphasis added)   This false statement was not what motivated the respondent to terminate McKnight's employment on September 29, 1999, however. 

When the respondent terminated McKnight's employment on September 29, 1999, it did so because it believed that she had a criminal conviction and had falsified company documents regarding a criminal conviction record.  The evidence fails to establish that McKnight has a criminal conviction.  It can be concluded from the evidence at the hearing though that McKnight has a conviction for a non-criminal offense and therefore did falsify a company document during the application process when she reported that she had not been convicted of any offense anywhere. 

The effect of evidence of employee misconduct acquired by an employer after the employee has been terminated for a discriminatory reason was discussed in McKennon v.  Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879 (1995).  In McKennon, the Supreme Court determined that after-acquired evidence of a legitimate basis for an employee's termination could not shield the employer from liability for its discriminatory conduct, but could be used in fashioning the remedy.  The Court noted that it would not accord with the dual objectives of anti-discrimination statutes -- to deter discriminatory employment practices by employers and to compensate employees for injuries caused by the prohibited discrimination -- to bar employees from all relief under these statutes.  On the other hand, the Court also noted that once an employer learns about employee wrongdoing that would lead to a legitimate discharge, it could not require the employer to ignore this information.  The Court concluded that as a general rule in these types of cases that neither reinstatement nor front pay is an appropriate remedy, as it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.  The Court stated that the beginning point in the formulation of a remedy should be calculation of back pay from the date of the unlawful discharge to the date the new information was discovered.  The Court stated, however, that where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge. 

The evidence in this case shows that the respondent would in fact have terminated McKnight's employment for falsely reporting that she had never been convicted of any offense anywhere.  The respondent considers falsification of facility records, reports or other documents to be the most serious violation of its rules that can be engaged in by an employee.  Cunningham testified that falsification of records in the application process by a new hire is cause for immediate discharge.  Further, Zoesch testified that all new hires at the Milwaukee facility that had falsified documents in the application process during 1999 and 2000 had their employment terminated.  (7)

Under McKennon, McKnight is not entitled to reinstatement, but she is entitled to back pay from the date of her discharge, September 29, 1999, until the date of the hearing, March 29, 2000. 

NOTE: The commission's finding of no arrest record discrimination is not based on an assessment of witness credibility.  The available evidence simply fails to establish that the complainant's arrest record was a factor in her termination of employment.  Also, the commission agrees with the ALJ's finding of discrimination on the basis of conviction record, but finds that evidence presented at the hearing provided the respondent lawful grounds for terminating the complainant's employment at that time.  For this reason, the commission has modified the remedial relief ordered by the ALJ. 

cc: Attorney Cathryn E.  Albrecht

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(1)( Back ) The respondent's parent company is Beverly Enterprises.  The respondent also has facilities in Canada and Japan. 

(2)( Back ) The following was listed under the "OTHER" category: "Mayhem," "Hostage-Taking," "Racketeering (Organized Crime)" and "Solicit/Use a Child to Commit a Felony. "

(3)( Back ) The transcript in this matter is designated by the hearing tape number, tape side and page number. 

(4)( Back ) The commission also notes that when Cunningham was asked if it was appropriate to employ someone with a "conviction for endangerment of safety involving use of a weapon," that Cunningham included the following in her response: "... I certainly would question whether having someone work in our facility, who had been arrested or charged with the use of a weapon, would no (sic) be appropriate to care for people who cannot care for themselves. " (Underlining emphasis added) Cunningham was not involved in the decision to terminate McKnight's employment, however. 

(5)( Back ) Where a similar argument was raised by the respondent in Miles v.  Regency Janitorial Service (LIRC, 05/31/01), appeal pending, the commission stated: "Contrary to argument by the respondent, it is not irrelevant that an employer's belief concerning a protected characteristic was mistaken.  Employment actions that are based on an individual's protected status under the Act -- whether made on a mistaken view of certain facts or not -- is exactly what is proscribed by the Act. "

(6)( Back ) The ALJ also found that McKnight has a non-criminal conviction for disorderly conduct. 

(7)( Back ) Zoesch testified that during the year 2000, five applicants had conviction records and the four who had falsified documents in the application process with respect to their convictions were terminated, and that during the year 1999 all 19 of the individuals who had falsified their applications were terminated.  

uploaded 2002/02/08