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

DAPHNE ZEILER, Complainant


ERD Case No. 200302940

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 September 16, 2004
zeileda . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


In her petition for commission review the complainant argues that the administrative law judge's decision relies on the unfounded assumptions that a teacher's assistant at the respondent would have contact with inmates and that the complainant, if so employed, would distribute drugs to inmates. The complainant argues that no evidence was presented to support these assumptions. She maintains that it was not proven she illustrated a propensity to use drugs after her conviction or after 1998, that she ever distributed drugs to any individuals, or that she used drugs while on probation. The complainant points out that she was the number one candidate ranked for the job and asserts that the respondent failed to prove that there existed circumstances that created a nexus with her conviction.

The complainant's arguments fail. In considering the question of whether the circumstances of a criminal conviction are substantially related to a particular job, the focus is not on the specific details of the facts of the offense or on the facts of the employee's post-conviction conduct, but on "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" by having engaged in the offense of which the individual was convicted. Milwaukee County v. LIRC and Serebin, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987). The appropriate method for evaluating the "substantially related" question is to look first and foremost at the statutory elements of the offense involved. Lillge v. Schneider Nat'l. (LIRC, June 10, 1998). In this case, the complainant was convicted of possession of a controlled substance, cocaine. Wis. Stat. § 961.41(3g)(c). The character traits revealed by violation of this criminal statute include a tendency to possess illegal drugs and, presumably, to engage in unlawful drug use. See, Herdahl v. Wal-Mart Distribution Center (LIRC, Feb. 20, 1997), aff'd sub nom. Wal-Mart Stores v. LIRC (unpublished opinion, Ct. App. June 4, 1998). It might also be said that a conviction for such offense demonstrates an unwillingness to comply with laws and rules. See, Goerl v. Appleton Papers, Inc. (LIRC, Oct. 22, 1992).

The complainant cannot reasonably dispute that the job she sought would have put her in contact with inmates, as the record clearly demonstrates that face-to-face inmate contact is a fundamental part of the job. Moreover, much of this contact is unsupervised. The question to ask, then, is whether, given the character traits demonstrated by the complainant's conviction for possession of a controlled substance, the circumstances of the job of teacher's assistant in a medium security prison would provide a potential temptation and a significant opportunity for her to reoffend. The commission must answer that question in the affirmative. Unsupervised personal contact with prison inmates, a high percentage of whom have a history of drug abuse, and who, according to undisputed testimony in the record, are likely to have a strong incentive and desire to manipulate and obtain favors from staff members, would certainly seem to be a circumstance that would foster a repeat offense for an individual with a demonstrated propensity to possess illegal drugs.

In her petition the complainant attempts to draw a distinction between types of illegal drugs. She argues that a "glaring weakness" in the respondent's case is a lack of testimony documenting cocaine use by inmates and contends that it was not proven she had access to or had used marijuana. This argument is disingenuous. The record clearly establishes that there is a large portion of the prison inmate population which might have a propensity to or interest in seeking out illegal drugs. The commission is satisfied that such a work environment would present the complainant with a greater than usual opportunity to reoffend, regardless of the type of drug at issue.

Next, the complainant maintains that the administrative law judge's decision relies upon the premise that a teacher was caught smuggling drugs to inmates in 2000. The complainant states that the teacher did not have any criminal convictions, and asserts that whether or not someone has a conviction record is not proof that she will distribute drugs to inmates. This argument is not helpful to the complainant's case. If anything, the fact that staff members without drug-related convictions have been tempted to distribute drugs to inmates, and are able to do so, renders it even more likely that a staff member with a drug-related conviction would engage in such conduct. Given the respondent's legitimate concerns about keeping illegal drugs out of the prisons, it should not be required to take such a risk.

In her petition the complainant also argues that the administrative law judge's analysis of her credibility is "tepid." The complainant states that the administrative law judge found her not credible because she mistakenly testified about when she was arrested and believed she was terminated early from probation for the offense, and contends that the administrative law judge erroneously treated all of her testimony as suspect because of these errors. The complainant maintains that the administrative law judge treated her like a criminal defendant would be treated in circuit court and inappropriately applied a standard by which, having concluded a witness has lied about something, the fact-finder is able to disregard all of her testimony. The commission considers it unnecessary to address this argument or to comment upon the administrative law judge's credibility determination, because the complainant's credibility is simply not at issue in this case. The parties stipulated that the complainant was convicted of possession of a controlled substance and that she was denied hire for the position of teacher's assistant based on that conviction. A conclusion that the conviction was substantially related to the job is essentially a question of law, the resolution of which does not depend upon an assessment of the credibility of witnesses.

The complainant also makes the argument that no one from corrections took any considerable time to review policy considerations or to review the complainant's conviction in detail before deciding not to hire her. She asserts that the decision was made on December 22, 2000, the last work day of the year before the Christmas holidays, and that the decision was made quickly. This argument is also without merit. Even assuming that the respondent failed to carefully consider whether the complainant's conviction was substantially related to the job, this fact would have no bearing on the commission's determination. The substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. Schroeder v. Cottage Grove Coop. (LIRC, June 27, 2001), aff'd sub nom. Schroeder v. LIRC (Dane Co. Cir. Ct., Jan. 31, 2002). To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after-the-fact by a reviewing tribunal. Thus, the relevant question is not whether the respondent made an independent determination that the complainant had engaged in conduct prohibited under its rules and policies, but whether there is an objective basis for the administrative law judge or commission to conclude that the circumstances of the offense of which the complainant was convicted were related to the circumstances of the job. Id.

Finally, the complainant states that, only through the litigation process did the respondent attempt to make its policy consistent, and that no one can explain how it is that all the people in the complainant's brief tables (attached to the brief submitted to the administrative law judge), that were convicted of a criminal offense were hired, yet the complainant was not. The complainant makes reference to the "mysterious" five and ten year rule, and states that, if this policy is true today, the complainant has passed the five-year span from the time she was convicted. Again, these arguments fail. Presuming, without deciding, that the complainant had demonstrated the respondent was not consistent in the application of its policy, such a conclusion would have no effect on the outcome of this case. An employer has a right to deny employment to individuals who have conviction records which are substantially related to the circumstances of the job. Wis. Stat. § 111.335(1)(c)1. The fact that an employer does not refuse employment to everybody it has a right to does not render its decision to refuse employment to one such person a violation of the law. The "substantial relationship" test is a legal test, not a test of the employer's motives. Black v. Warner Cable Communications Co. of Milw. (LIRC, July 10, 1989). Moreover, the question of whether the complainant would be eligible for hire today under the respondent's policies has no bearing on the issue of whether the respondent violated the Fair Employment Act when it decided not to hire her in December of 2000. Because the commission concludes it did not, the dismissal of the complaint is affirmed.

Attorney John K. Smerlinski
Attorney Kathryn R. Anderson

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