ROGER B. MIELKE, Complainant
ORKIN EXTERMINATOR COMPANY, INC., Respondent
On March 12, 1985, Complainant Roger B. Mielke filed a charge of discrimination with the Equal Rights Division of the Department of Industry, Labor and Human Relations, alleging that Respondent Orkin Exterminator Company discriminated against him on the basis of arrest record, in regard to discharge, in violation of the Wisconsin Fair Employment Act, secs. 111.31-111.395.
On September 24, 1985, an initial determination was issued which found that there was probable cause to believe that Orkin had unlawfully discriminated against Mielke. Conciliation was unsuccessful and on August 28, 1986, a hearing was held before Administrative Law Judge John A. Grandberry.
On July 16, 1987, Judge Grandberry issued a decision in which he found that Orkin had discriminated against Mielke on the basis of arrest and conviction record when it terminated Mielke on January 22, 1985. On July 22, 1987, Orkin filed a petition for review of Judge Grandberry's decision.
Based on the applicable law, records and evidence in this case, and after consultation with Judge Grandberry concerning credibility of the witnesses, the Commission makes the following:
1. The Respondent, Orkin Exterminator Company, Inc., provides pest control services to homes and businesses. In Wisconsin, 65-70% of Orkin's business is in private homes.
2. For its residential customers, Orkin's usual procedure is to send a sales inspector to make a preliminary inspection of the home and then to place the home on a monthly service schedule. After the monthly schedule has been established, a route service technician is responsible for actually providing the service. If a problem develops between the scheduled monthly visits, the service technician is responsible for returning to the residence and treating the problem. After an initial one year contract, the service continues on a month-to-month basis until it is suspended by Orkin or the customer.
3. Service technicians work alone in homes during regular. business hours. Due to the increasing number of households in which both or the only parent works, children are frequently home alone when the technician provides the service.
4. The Complainant, Roger B. Mielke, began his employment with Orkin on April 8, 1968. Mielke was employed as a Service Manager for Orkin at the time of his discharge.
5. As a Service Manager for Orkin, Mielke supervised six route service technicians and was responsible for bookkeeping. As part of Mielke's supervisory duties, he was responsible for taking over the routes and performing the job duties of any of his service technicians who were absent or on vacation. Mielke also took over routes when Orkin terminated a service technician or when a technician quit, until a new technician could be hired.
6. In order to perform its services when customers are away from their homes, Orkin has obtained keys to many of its customers' homes. As Service Manager, Mielke was responsible for and controlled access to 150-200 such keys.
7. In late November, 1984, Terry Johnson, Orkin's District Manager, received an anonymous envelope containing a newspaper clipping involving Mielke. The newspaper clipping indicated that Mielke had been charged with sexually assaulting a girl under the age of 12. It provided
"Roger B. Mielke, 39, 10663 Conrad Street, Freedom, was released on $1500 signature bond by Court Commissioner Jeff Brandt and further proceedings set for 10:30 a.m., Oct. 1 on a charge of sexual assault. The alleged offense took place during the summer of 1982 and involved a girl under 12 years of age."
Written along the side of the newspaper clipping was the question "Is this the kind of men Orkin hires?" The newspaper clipping was the first information which Johnson, had received about the alleged sexual assault.
8. In early December, 1984, Johnson traveled to Orkin's Green Bay office to discuss the sexual assault allegation with Mielke. When the two met, Johnson handed Mielke the clipping and asked him to explain "exactly what this was all about." Mielke became emotional and asked Johnson if he could go home to get more information about the matter.
9. Mielke returned about an hour and one-half later with an envelope which contained a police report, a criminal complaint and a deferred prosecution agreement. Johnson went to another room to read the information. The criminal complaint charged Mielke with having sexual contact during the summer of 1982 with a person 12 years of age or younger. The victim in, question was Mielke's daughter. The police report contained a detailed description of the sexual conduct and revealed that it happened on a regular basis -- once or twice a week. The deferred prosecution agreement provided that the charges against Mielke would be dropped if he complied with the terms of the agreement. Under those terms, Mielke was required to undergo weekly counseling.
10. After reading this information, Johnson told Mielke that he needed to discuss it with him. During their discussion, Mielke informed Johnson that the allegations in the complaint were true and that he had sexually assaulted his daughter. Mielke also informed Johnson that he reported his conduct to the police only after his daughter accused him of the assault in the presence of her mother (Mielke's wife). At the end of the meeting, Johnson told Mielke that he would get back: to him at a later date.
11. After his meeting with Mielke, Johnson informed his boss of the meeting and discussion he had had with Mielke. On January 22, 1985, Johnson returned to Green Bay and discharged Mielke.
12. Johnson did not discharge Mielke because of Mielke's arrest record. Johnson discharged Mielke because, after being questioned by Johnson, Mielke admitted having sexually assaulted his daughter and, based on that admission, Johnson felt Mielke posed too great a risk to Orkin and the safety of its customers for him to continue in a job which necessitated unsupervised visits to customers' homes at times when children might be present alone.
1. Orkin Exterminator Company, Inc., is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Orkin Exterminator Company did not discriminate against Mielke on the basis of his arrest record, in :regard to discharge, in violation of the Wisconsin Fair Employment Act. (1)
That the complaint in this matter be dismissed.
Dated and mailed April 11, 1988
/s/ Hugh C. Henderson, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
The Wisconsin Fair Employment Act makes it unlawful for an employer to terminate an individual on the basis of the person's arrest record. (See s. 111.321, 111.322, Wis. Stats.) The term "arrest record" includes "information that an individual has been questioned, apprehended, . . . arrested, or charged with . . . any felony, misdemeanor or other offense." S. 111.32(1), Wis. Stats. Accordingly, Orkin would have violated the Act in this case if it had terminated Mielke simply because it had received information that he had been arrested for sexual assault. On the other hand, if Orkin based its termination of Mielke on the fact that he admitted having committed the offense, rather than on information that he had been arrested for the offense, then Orkin would not have violated the Act. Termination based on an employe's admission of the underlying conduct which led to the arrest is not arrest record discrimination. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 223 (Ct. App. 1984). The purpose of the statute is to prevent an employer from making an employment decision solely on the basis of an employe's contact with the criminal justice system (in this case, information that Mielke had been charged with a crime) -- not to prevent an employer from acting on the employe's own admission of conduct inimical to the employer's interests. Id., Miller Brewing Co. v. ILHR Department, 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981).
Of course, the question of an employer's motivation, which is the major issue in this case, presents a question of ultimate fact. Pullman-Standard v. Swint, 456 U.S. 372, 289-90 (1982); St. Joseph's Hospital v. Wis. E. R. Board, 264 Wis. 396, 401, 59 N.W.2d 448 (1953).. Based on the evidence, the Commission concludes that Johnson terminated Mielke not because of information he received relative to Mielke's arrest, but because of Mielke's admission that he had sexually assaulted his daughter. It was Johnson's reaction to Mielke's admission of the conduct with which he had been charged, not the fact that he had been charged; which motivated Johnson to terminate Mielke. The Commission has reached this conclusion for three reasons.
First, Johnson did not immediately terminate Mielke when he received information that Mielke had been charged with sexual assault. Johnson received the newspaper clipping in late November. Rather than merely confirming that the charges had been brought and terminating Mielke on the spot, Johnson waited until early December, traveled to Green Bay, questioned Mielke about the information he had received and gave Mielke an opportunity to explain the alleged assault. Mielke testified that at the December meeting, Johnson was ". . . persistent about knowing all the facts about it so he could let his people in Atlanta know the information." (TR 6) Also at this meeting, Johnson received Mielke's admission that he had sexually assaulted his daughter and a description of what had happened. Johnson also read the police report, the criminal complaint and the deferred prosecution agreement at the meeting. He discussed it further with his own boss at a later date. Johnson did all this before he actually terminated Mielke. He did not officially terminate Mielke until January 22, 1985, almost two months after he first learned that Mielke had been charged with sexual assault. The Commission believes that the sequence of events leading to the discharge, specifically the substantial delay between Johnson's receipt of the information and the actual discharge, as well as Johnson's effort to investigate the situation and learn as much as possible about the facts behind the charge, strongly support a conclusion that the decision to terminate Mielke was not based merely upon the information Johnson received that Mielke had been charged with a crime.
In City of Onalaska, supra at 367, the court distinguished between an employment decision based upon information received from another person or entity and an employment decision based upon information which resulted from the employer's own investigation and questioning of the individual:
"To discharge an employe because of information indicating that the employe has been questioned by a law enforcement . . . authority is to rely on an assertion by another person or entity. If, as here, the employer discharges an employe because the employer concludes from its own investigation and questioning of the employe that he or she has committed an offense, the employer does not rely on information indicating that the employe has been questioned, and therefore does not rely on an arrest record. . . ." (emphasis supplied)
City of Onalaska requires an employer to question an individual and to ascertain whether the individual has committed the offense. The evidence demonstrates that Orkin has satisfied that requirement. It was only after Johnson had completed his investigation of the information he received and had personally questioned Mielke and obtained Mielke's admission that he had committed a serious offense on more than one occasion, that the decision was made to discharge him. It is reasonable to conclude from this evidence that Orkin did not make its discharge decision on the information it received that Mielke had been charged with sexual assault and, therefore, did not rely on Mielke's arrest record when it discharged him.
Second, Johnson testified that after Mielke told him in their meeting what he had done with his daughter, "I was shocked myself, something like that always makes you I guess weak in. the stomach and I was just totally shocked by the whole situation." (TR 36) The Commission believes that this testimony also supports the conclusion that it was Mielke's admission of the conduct involved in the arrest, not the fact of the arrest, that really bothered Johnson and, accordingly, was the motivating factor in his decision to terminate Mielke.
Finally, Johnson's rationale for the termination suggests that it was the particular conduct involved in the offense, rather than the fact that he received information that Mielke had been charged with the crime, that motivated Johnson to discharge him. That rationale is rooted in a two-fold obligation which Johnson articulated; namely, an obligation to Orkin's customers to guarantee their personal safety as much as possible by sending only trustworthy employes into their homes, and an obligation to Orkin to minimize its risks and liability, also by sending trustworthy employes into customers' homes. In view of these related obligations, Johnson's reason for discharging Mielke was that based on what Mielke had admitted doing, Johnson felt Mielke posed too great a risk to Orkin and to the family safety of Orkin's customers for him to continue in Orkin's employ. The Commission finds that rationale to be credible for two reasons. First, the record reveals that as part of his job with Orkin, Mielke could easily find himself alone in a house where only children were present and that Mielke had access to and, indeed, control of many housekeys for Orkin's customers. Therefore, in review of the nature of Mielke's job, Orkin had legitimate reasons to be concerned about its customers' safety after Mielke admitted the assaults.
Also adding credence to Johnson's stated reason for discharging Mielke was Johnson's testimony that Orkin had paid the minor child of a former Orkin customer $1 million dollars in an out of court settlement after the child had been sexually assaulted by an Orkin employe. (TR 43-44) Johnson also testified that one of Orkin's former employes was, at the time of the hearing, on trial for sexually assaulting four or five female Orkin customers, for whose homes he had keys. (TR 44) In that case, Orkin was joined as a party. It is reasonable to believe that after incurring such enormous liability as a result of employes who had sexually assaulted customers, Orkin would desire to protect itself from that liability in the future and, accordingly, would be motivated in the present case to discharge Mielke out of a sincere fear that the conduct, which he admitted engaging in might recur and expose Orkin to liability again.
The Commission views this evidence as strong support for the credibility of Orkin's assertion that it discharged Mielke because of his admission of the crime he committed and Orkin's accompanying fear for the safety of its customers and its own liability. Finding Orkin's stated reason for discharging Mielke to be credible, in turn supports the Commission's conclusion that Orkin did not discharge Mielke because of his arrest record.
In sum, the Commission finds that the testimony and facts discussed above provide sufficient and credible support for the conclusion that Orkin's motive for discharging Mielke was not the information it received that he had been charged with sexual assault, or the fact of his arrest, but, rather, Mielke's admission of the conduct for which he had been charged.
The Commission wishes to point out that the "substantial relationship" exception under s. 111.335(1)(b), Wis. Stats., does not apply to the facts of this case. In its brief, Orkin argued, alternatively, that even if it did terminate Mielke because of his arrest record, its action should be exempted under s. 111.335(1)(b), Wis. Stats. That exception, however, only allows an employer to suspend (not terminate) an employe. It would not protect Orkin. The exception only allows termination where there is a substantial relationship between the circumstances of a conviction and an individual's job duties -- not the circumstances of an arrest and an individual's job duties. S. 111.335(1)(c), Wis. Stats. In this case, there was no conviction. For that reason, the exception is not applicable.
This decision reverses Judge Grandberry's decision that Orkin discharged Mielke because of his arrest record. As explained in the Memorandum Opinion, the Commission's decision rested in part upon a finding that Terry Johnson's testimony concerning his motivation for firing Mielke was credible. Since an issue of credibility was involved, the Commission consulted with Judge Grandberry as to Johnson's credibility. Although Judge Grandberry said he felt Orkin's stated reason for firing Mielke was pretextual, he nevertheless stated that he found Johnson to be a credible witness. He also viewed the case as very close and stated that a finding of no discrimination would be reasonable given the facts. In view of his statements, the Commission concluded that its credibility determination concerning Johnson was proper.
The other basis for the Commission's decision, that the sequence of events prior to the discharge supports a finding that the discharge was not motivated by Mielke's arrest record, did not involve a credibility assessment.
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(1)( Back ) * Judge Grandberry found discrimination on the basis of arrest and conviction record. This was an error, however, as neither the complaint nor the notice of hearing mentioned conviction record discrimination. Both specifically mentioned only arrest record discrimination. Moreover, the record shows that due to the deferred prosecution agreement with the district attorney, Mielke was neither prosecuted nor convicted. For that reason, the Commission's conclusion of law addresses only arrest record discrimination.