JEFFREY H. PAXTON, Complainant


ERD Case No. 9052833

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 18, 1992. Complainant filed a timely petition for review by the commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the administrative law judge (copy attached) is modified as follows:

Delete Finding of Fact 1 and substitute therefor the following:

1. Aurora is a business engaged in provision of health care services which owns and operates St. Luke's Medical Center ("St. Luke's") and Sinai Samaritan Medical Center ("Sinai Samaritan"). At all times material herein, Michael Cummngs was the Manager-Loss Prevention/Security for Aurora, and he reported to Dwight Morgan, Assistant Vice President for Human Resources, based at Sinai Samaritan, who in turn reported to Lorelle Walsh, Vice President for Human Resources. Frank Cummins was also an Assistant Vice President for Human Resources, based at St. Luke's. Sue Luedtke was a Patient Care Manager for nursing unit 5KLM at St. Luke' s. Approximately 86 percent of the employes of St. Luke's were female.

In Finding of Fact 35, delete "August 30, 1990" and substitute "September 4, 1990."

In Finding of Fact 46, delete "September 7, 1990" and substitute "September 6, 1990."

As modified, the decision of the administrative law judge shall stand as the FINAL ORDER herein.

Dated and mailed October 21, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


It is unlawful to discharge an employe because they have been arrested for a crime. Section 111.335, Stats. However, it is not discharge "because of " an arrest for an employer to decide to discharge an employe because the employer has been persuaded through its own internal investigation that the employe in fact engaged in the conduct in question, which conduct the employer finds unsatisfactory. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 223 (Ct. App. 1984).

Paxton does not really attempt to argue that the employer was not motivated at all by a belief as to his guilt stemming from its own investigation. Rather, he argues that this was a "mixed motive" case, in which the employer was also motivated in part by the fact of the arrest. He argues that since the decision resulted at least in part from an impermissible motivation (the fact of the arrest itself), the decision was unlawful.

However, the question which must first be addressed is the factual basis for Paxton's theory here. As noted, he argued that at very least, the employer was in part motivated to discharge him by the bias of co-workers arising solely from the arrest. The commission does not believe that this is so, at least not to any significant degree. There is very substantial evidence that the employer was motivated to fire Paxton primarily if not exclusively by its belief, formed on the basis of its investigation, that he was guilty.

Whether Paxton did in fact rape Sivolka or otherwise subject her to unwelcome sexual contact is not an issue that needs to be decided in this case. What matters is the question of what the employer's motivation was, not whether it was objectively correct. Notwithstanding this, there is some relevance in considering the question of whether Paxton was culpable, because the more reasonable such a conclusion appears on the basis of what the employer's investigation showed, the more reasonable is the conclusion that the employer' s investigators came to genuinely believe, in good faith, that Paxton was culpable.

The commission had the same reaction to Paxton's story that the hospital's investigators did: it simply did not ring true. Given the information that they acquired in their investigation, it was not unreasonable for the employer's management representatives to conclude that Paxton was culpable. Therefore the commission finds the assertion, that this is what they did believe, to be credible.

(Evidently, Paxton was eventually acquitted of the charges against him. This is not significant to the discrimination issue presented here. Nothing in the Onalaska line of cases suggests that this should have any bearing on the question of whether there was unlawful arrest record discrimination, since in an Onalaska-type situation the conclusion is that there has not been discrimination because of arrest record in the first place. Furthermore, there is no law that requires employers, who have disciplined employes based on their beliefs that the employes have engaged in improper conduct, to retract that discipline if a criminal court subsequently acquits the person. In any event, as has recently been noted (albeit in a different context), "an acquittal does not mean that the event did not happen. Nor would it mean that the defendant is necessarily innocent. Rather, it means that the jury did not find proof of the event beyond a reasonable doubt." State v. Bobbitt, 178 Wis. 2d 11, 17, _ N.W.2d _ (Ct. App. 1993) (emphasis in original). The employer in this case came to a good faith belief based on its investigation that Paxton had committed some type of sexual assault against Sivolka. It is simply irrelevant to the issue presented here that a jury, which may have heard different evidence, and was required to apply a stringent burden of proof, arrived at a different conclusion.)

The commission is persuaded that the element of the employer's motivation arising from what it learned through its investigation was an extremely significant one, easily adequate to have motivated the decision to discharge Paxton entirely on its own -- without the need to seek an explanation in the form of any additional motivation, such as the alleged solicitude for the uninformed bias of co-workers.

The commission also considers that there is little persuasive evidence that such solicitude towards the bias of co-workers was an additional motivation, much less that it was a significant motivation in the decision to discharge. Paxton points primarily to certain statements concerning the effect of his conduct on his credibility and effectiveness. He argues that these statements related to the employer's assessment of Paxton's credibility in the eyes of co-workers. However, these statements are ambiguous; they can also be seen as relating to the loss of Paxton' s credibility in the eyes of the employer's management, who were aware by virtue of their investigation of what he had done.

Ultimately, the question is one of intent. The ALJ, who observed all the witnesses while they testified, found as a matter of fact that the employer's representatives were motivated by their concern about what they believed (based on their investigation) Paxton had done, and that neither the arrest nor any reactions of employes to that arrest were factors. The commission agrees.

Even if it concluded that concern about the arrest-based prejudices of co-workers may have been a factor in the decision, based on the evidence which Paxton points to, the relative strength of the employer's permissible reason would persuade the commission that any impermissible (arrest-based) motivation was, even if present, not significant. Here, the distinction is between a motivation which is "a factor" in a decision, and one which is "a determining factor." In Wisconsin, the courts have adopted the "determining factor" standard under which, to prove discrimination in the first place a complainant must prove that a protected characteristic was a "determining factor" in the decision. Puetz Motor Sales. Inc. v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985), Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991). A "determining factor" is more than "a factor." Puetz,126 Wis. 2d at 172; Notaro v. Kotecki and Radtke (LIRC, 7/14/93).

Additionally, and with reference to Paxton's argument that this is a "mixed motive" case in which the "in part" test for determining liability applies, it must be noted that the question of applicability under the Wisconsin Fair Employment Act of the "mixed motive"/"in part" theory of determining liability, as originally articulated in Muskego-Norway Jt. School Dist. No. 9 v. W.E.R.C., 35 Wis. 2d 540 (1967), is not free from doubt. That question was expressly left open by the Wisconsin Supreme Court in Federated Electric v. Kessler, 131 Wis. 2d 189, 192-93, 388 N.W.2d 553 (1986). The court of appeals, in dicta, has questioned the applicability of the "mixed motive" analysis of Muskego-Norway to cases under the WFEA. Racine Unified Sch. Dist. v. LIRC,164 Wis. 2d 567, 597, 476 N.W.2d 707 (Ct. App. 1991). See, Kotecki & Radtke, supra, noting that the question is at best an open one. At this point, there is more direct precedent Puetz, Kovalic) supporting a "determining factor" analysis, than there is supporting a Muskego-Norway "mixed motive"/"in part" analysis. Particularly in a case like this, where impermissible motives, if present at all, were a minor factor, the appropriateness of finding liability based on the Muskego-Norway "mixed motive"/"in part" analysis is very questionable.

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