P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BENITA FLORES, Complainant


ERD Case No. 200300012

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 May 27, 2004
florebe . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The complainant, Benita Flores, was convicted of possession with intent to deliver a controlled substance (marijuana and cocaine) in 1997 and sentenced to a six- year prison sentence. Flores was released on parole in December 1999. Her parole ended in December 2002, at which time she was placed on probation for three years.

In February 2002, while on parole, Flores obtained employment with KinderCare in Sheboygan, Wisconsin, as an assistant teacher. In June 2002 she became a teacher at this facility.

KinderCare is a provider of childcare for children between the ages of six weeks and twelve years of age. The hours of the Sheboygan facility were 5:30 a.m. to 6 p.m., Monday through Friday. Sometimes Flores was scheduled with another employee to open the facility at 5:30 a.m., and sometimes she worked later in the day and would close the facility with another employee. Flores turned down an offer to have a key to the facility because she always worked with someone who had a key. However, she could have obtained a key if she desired to have one by either asking for her own key or borrowing a key from another employee, thereby giving her access to the facility after hours and on weekends.

There were children at KinderCare who had a variety of chronic conditions for which they took medications daily. One such condition was hyper attention deficit disorder, for which the medication Ritalin was administered at Kindercare. Ritalin is a drug that is valued among illegal drug users and drug dealers.

KinderCare policy requires that medications be kept locked in containers, but that policy was not always adhered to at the Sheboygan facility. Also, the locked containers in which the medications were to be kept were small, very easy to carry, and not difficult to break into even if locked. KinderCare policy regarding medications also required that parents drop the medications off with management personnel, as assistant teachers and teachers were prohibited from distributing medications. However, parents did not always follow the policy. It was not uncommon for parents to give medications to teachers, leave them in backpacks or diaper bags, or simply leave them on a counter.

The Sheboygan facility also receives anywhere from $10,000 to $12,000 each week in checks and money orders from parents as tuition payments. The Sheboygan facility has a wooden box designated for the parents to drop their tuition payments into. However, parents would sometimes give their checks directly to the teacher or leave the checks with their children or in their children's bags.

In October 2002, Deborah Halbman became KinderCare's acting area manager for the eastern half of Wisconsin, including the Sheboygan facility. While performing an audit of staff files, Halbman saw Flores' application and a criminal background report, which showed that she had been convicted of possession of a controlled substance with intent to deliver. Upon investigation, Halbman discovered that Flores' application for employment had been processed in violation of KinderCare policy, in that human resources had not been contacted to discuss her conviction, nor had a check been made with a state licensing specialist to determine if the state would even allow Flores to work in a childcare facility. Halbman reported the nature of Flores' conviction to KinderCare's human resources managers, and a decision was made to terminate Flores' employment.

On December 17, 2002, KinderCare terminated Flores' employment because of her felony conviction.

Following a probable cause hearing, the ALJ concluded that Flores' conviction record was substantially related to her position as a teacher at KinderCare, and that therefore she had failed to show probable cause to believe the respondent had violated the WFEA by terminating her employment because of her conviction record. In her petition for review Flores argues that the ALJ erroneously concluded that her conviction record is substantially related to the position she held with the respondent. The commission disagrees.

The Wisconsin Supreme Court has stated that the analysis for determining whether the circumstances of a criminal offense is substantially related to the circumstances of a particular job requires assessing 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. 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).

Given the availability of prescription drugs at the KinderCare facility, including Ritalin, a drug that is valued among illegal drug users and drug dealers, plus Flores' opportunity for after hours access to the KinderCare facility, her conviction for possession with intent to deliver a controlled substance is substantially related to her employment at KinderCare.

Attorney John E. Raftery
Attorney Michael Aldana

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uploaded 2004/06/01