JOSE VILLARREAL, Complainant
S C JOHNSON & SON INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed December 30, 2002
villajo . rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
The complainant was convicted in 1991 for conspiracy to possess with intent to distribute in excess of 500 grams of cocaine, and possession with intent to distribute cocaine. The respondent refused to rehire the complainant based on his conviction record after his release from prison in 1999. The ALJ concluded after a probable cause hearing on the complainant's complaint of discrimination that there was no probable cause to believe the respondent had violated the Act by refusing to employ him based on his conviction record, and dismissed his discrimination complaint.
On appeal the complainant argues that his drug convictions are not substantially related to employment at the respondent's Waxdale facility. Further, the complainant argues that the ALJ erred in finding that the Waxdale work environment presented a substantial opportunity for illegal drug sales.
First, the complainant argues that his drug convictions are not substantially related to employment at the respondent's Waxdale facility. The complainant argues that the ALJ erroneously excluded evidence that the respondent allows drug felons to work at its Waxdale facility, and that since these individuals had not been prevented from working at Waxdale this shows that his drug convictions are not substantially related to employment at the Waxdale facility.
These arguments fail. The excluded evidence was irrelevant as to whether or not the complainant's convictions were substantially related to employment at the Waxdale facility. For example, in an offer of proof, the complainant presented testimony by Miriam Meredith, who works for Kelly Services, that in August 2000 she was ready to offer a temporary job to the complainant with Granger Industrial Supply, which runs the tool supply stockroom within the Waxdale facility. However, the respondent is not a customer of Kelly Services, Meredith had never placed an employee with the respondent, and, moreover, at the time she offered the complainant a job she had no idea that the complainant had a conviction record. The complainant also presented the testimony of Media DeLao, who has prior convictions for harboring a felon and possession of a sawed-off shotgun, and stated that she has worked at the respondent as a temporary employee through Adecco Temporary Services. DeLao's testimony was irrelevant because she has never been convicted of possession with intent to distribute cocaine. The offenses that she was convicted for were not at all similar to the complainant's. Additionally, the complainant presented testimony by Melvin Barker and Sarah Hammill. Barker testified that he has a 1993 conviction for delivery of drugs and that he worked through a temporary employment agency, Olsten Staffing Services, for 18 months at the Waxdale facility. Hammill testified that she has a 1987 conviction for possession with intent to distribute a controlled substance and that she has worked on several occasions from 1988 to 1991, through a temporary employment agency, at the Waxdale facility. However, there was no evidence to show that the respondent had ever knowingly hired a temporary employee with a drug conviction. In addition, Barker admitted that he did not know if his temporary employment agency had informed the respondent of his conviction record, and Hammill stated that she did not think the respondent had been aware of her conviction when she worked at the Waxdale facility.
Further, the respondent has a drug-free workplace policy, and its arrangement with temporary employment agencies requires that that the agencies thoroughly screen individuals before they are allowed to work on the respondent's premises. The fact that the employment agencies have not screened out every single individual with a drug conviction is not proof that a drug conviction is not substantially related to the work performed at the respondent.
The complainant also argues that the respondent's reasons for refusing to rehire him were inconsistent and that this inconsistency is sufficient to establish probable cause to believe that unlawful discrimination occurred. As the alleged inconsistent reasons for not being rehired, the complainant argues that Kevin Mooney, respondent's director of human resources at the time relevant herein, testified that he determined that the complainant would not be eligible for rehire based on his understanding that there were three criminal convictions (i.e., the two drug convictions and a firearms conviction), and that when the complainant pointed out that the gun conviction had been vacated, Mooney recanted and told the complainant that the drug convictions alone were sufficient reason not to rehire the complainant. The record fails to support the complainant's claim that Mooney testified he based his decision not to rehire the complainant on an understanding that there were three convictions. In any case, the substantially related test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a test of the subjective intent of the decision-maker. Collins v. Milwaukee County Civil Service Comm. (LIRC, 03/08/91); Black v. Warner Cable Communications Co. of Milwaukee (LIRC, 07/10/89).
The complainant apparently also argues that there was no objective basis for concluding there was a substantial relationship between his convictions and the job of a production worker because, contrary to the ALJ's finding that there is only one individual with managerial or supervisory responsibility present on the second and third shifts (the two possible shifts where the complainant would have worked as a production employee), that there was constant management and supervision on those shifts at all times because those functions are performed by each of the members of the self-directed work teams on a rotating basis. While production employees perform tasks such as vacation scheduling and filling out production paperwork, the evidence fails to show that the team members exercise traditional management/supervisory authority over fellow production team members.
The complainant also argues that the ALJ erred because a "10-year-old drug conviction" is not substantially related to a production job at the respondent. The commission has taken a contrary position with respect to such argument, however. See for example, Borum v. Allstate Ins. Co. (LIRC, 10/19/01)(The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is substantially related to the job); Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96)(There is nothing in the statutory language of the conviction record provision which indicates that the length of time between a conviction record and the alleged discrimination is a relevant consideration). Additionally, as pointed out by the respondent, it is also worth noting that the complainant had been released from prison less than six months when he sought rehire at the respondent.
The complainant also argues that the ALJ erred in finding that the Waxdale work environment presented a substantial opportunity for illegal drug sales because the ALJ reduced the substantial relationship test to nothing more than the "mere hypothetical opportunity" to engage in criminal behavior. The complainant argues that it is clear from an examination of Milwaukee County v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), that the court was not referring to a mere physical and hypothetical opportunity to commit a crime, (1) and that in subsequent decisions the commission has made it clear that the mere physical opportunity to commit a crime would be an overbroad interpretation of the statute. The complainant cites the cases of Black v. Warner Cable Communications Co (LIRC, 07/10/89) and Herdahl v. Wal-Mart Distribution Center (LIRC, 02/20/97) as examples of such interpretation by the commission.
These arguments by the complainant also fail. First of all, contrary to argument by the complainant, the ALJ has not reduced the substantial relationship test to nothing more than a question of whether there is a mere hypothetical opportunity to engage in criminal behavior. The record shows that the respondent's work environment at Waxdale would in fact present a substantial opportunity for the complainant to engage in criminal behavior similar to that present in the crimes for which he had been previously convicted. The record shows, as found by the ALJ, as follows: Since 1990, the respondent has organized its production employees into self-directed work teams who in essence supervise themselves; a site manager, the lone management representative present during the second and third shifts, does not directly supervise the employees, but instead oversees the entire facility and its operations; production employees schedule their own breaks, have complete access to the entire Waxdale facility and are free to leave their production area without permission; the Waxdale facility is approximately 2,000,000 square feet, and the main part of the production facility consists of seven large, interconnected buildings, plus there are a number of outlying buildings; the facility has more than 50 restrooms and 15 break rooms; the site manager tries to visit each department in the main buildings at least once during his shift but is not always able to do so; and there are no surveillance cameras inside the Waxdale facility.
Second, the commission's decisions in the Black and Herdahl cases provide no support for the complainant's case. In Black, the employer terminated the employment of a door-to-door cable sales representative after he pled guilty to possession of cocaine with intent to distribute and distribution of cocaine. The commission concluded that the circumstances of the offenses for which Black was convicted were substantially related to the circumstances of the job of sales representative. In so concluding, the commission noted that the performance of Black's work involved an unusually high amount of unsupervised time, allowing him to essentially go anywhere or do anything, at any time. These same circumstances are present for production employees at the Waxdale facility.
In Herdahl, the employer terminated the employment of a shelf stocker after her conviction for possession of marijuana. There the commission concluded that Herdahl's conviction was not substantially related to the circumstances of her stocker job. However, unlike the circumstances that employment of Villarreal would entail at Waxdale, in Herdahl the evidence showed that the complainant's work day was highly regimented and structured, that she had very little opportunity in which to move around her facility at will, that aside from three scheduled breaks she had little free time, that supervisors were generally aware when breaks were taken, and that employees were required to pass a security check upon reporting to work and again upon leaving at the end of the day.
Based upon all of the above-stated reasons, the commission has affirmed the ALJ's decision dismissing the complainant's complaint in this matter.
Attorney Janice A. Rhodes
Attorney Roxana E. Cook
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(1)( Back ) In County of Milwaukee v. LIRC the supreme court held that "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."