ERD Case No. 8901365

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 30, 1991. Complainant filed a timely petition for review by the Commission. Both parties subsequently submitted written arguments to the Commission.

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:

1.  The first and second sentences of paragraph 1 of the FINDINGS OF FACT are deleted and the following sentences substituted therefor:

"Delos Mullikin was convicted of welfare fraud on August 11, 1988. On September 27, 1988, a sentence of five years in the Wisconsin State Prisons was imposed and stayed, and ten years probation ordered, with the condition that ten months be served in the Dane County Jail."

2.  In paragraph 2 of the FINDINGS OF FACT, on line 2 of the quoted portion of that finding, the word "breech" is deleted and the word "breach" is substituted therefor.

3.  n paragraph 9 of the FINDINGS OF FACT, the second sentence is deleted and the following sentence substituted therefor:

"Mullikin gave Smith the slip and Smith told him he (Smith) would have to send it down to Bentonville."

4.  In paragraph 10 of the FINDINGS OF FACT, the surname "Marcin" is deleted and the name "Brett Morrison" is substituted therefor.

The above modifications have been made to make the findings better conform to the evidence, and to correct a misspelled word and a misspelled name.

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed August 27, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The underlying issue in this case is one of credibility. Did the Complainant inform Tubbs and Smith about his conviction for welfare fraud during an interview prior to hire? The ALJ concluded that he had not, that instead he had only informed them of an OWI conviction, about which he stated he had not been sentenced and might have to serve some time in jail, resulting in Respondent's unawareness of his welfare fraud conviction and causing Respondent to believe that Complainant was to begin serving a sentence for his OWI conviction when he later told Respondent he was to start serving a jail sentence beginning on February 22, 1989.

Complainant argues that because he testified that he told Tubbs and Smith about both his OWI conviction and the welfare fraud conviction, because Tubbs and Smith denied that Complainant had told them about either conviction and because the ALJ had obviously believed that Complainant told them about his OWI conviction, this makes Complainant's testimony more believable and therefore the ALJ should have found Complainant's entire testimony credible and not just adopted a portion of it; that there is evidence in the record to support the ALJ's decision to reject Complainant's testimony regarding the welfare fraud conviction.

Based upon the commission's review in this matter, however, the record fails to show that Complainant's testimony is the most believable. The Commission finds that the ALJ committed no error with respect to assessment of credibility. First, despite having been convicted for welfare fraud, Complainant responded "No" to the employment application question, "Have you ever been convicted of a crime involving dishonesty, breach of trust, violence, or one related to your work here?" Secondly, when it came to explaining why he had responded no on his application Complainant stated in deposition testimony that it was because he hadn't been sentenced yet. In other words, there was simply no reason to at that time. (Deposition, p. 41) Further, Complainant stated in the deposition testimony that he told the Respondent at his pre-employment interview that he had been convicted of welfare fraud, "but I haven't been sentenced yet, so I didn't put that on there (employment application)." (Deposition, 40). Then, two weeks later at the hearing in this matter, Complainant changed his testimony and stated that he responded no simply because he initially wasn't going to tell the employer about his conviction record; however, he decided to "come clean." (Hearing Transcript, 40). The Complainant's different explanations as to why he responded no on his employment application are completely incompatible. Additionally, at the hearing Complainant reversed himself and testified that he had been sentenced when he responded no to the question regarding his conviction record. As explanation for this further change in his testimony, Complainant asserted that he had the different hearings involving his conviction for welfare fraud (pre-sentence, sentencing and restitution) "mixed up." However, in view of Complainant's deposition testimony that he had told Respondent at his pre-employment interview that he had not yet been sentenced, in order to accept Complainant's explanation for this change in his testimony one would have to believe that from September 27, 1988 (date Complainant was sentenced) to the time he completed his employment application (1) and was interviewed - a period of roughly 30 days - that Complainant would have also been mixed up and "forgotten" about being sentenced to ten months in the Dane County Jail. This is simply incomprehensible.

All of the above is linked specifically to Complainant's claim of having told Respondent about his conviction with respect to welfare fraud and therefore casts considerable doubt as to the credibility of such claim. In fact, the only evidence which supports Complainant's contention that he told Respondent of the conviction for welfare fraud was the Complainant's own testimony. Under the circumstances, the Commission cannot find that the ALJ committed error by not adopting and finding Complainant's entire testimony credible.

However, even if it is assumed that Complainant had told Tubbs and Smith about his conviction for welfare fraud, this would not change the result reached herein. Under the Wisconsin Fair Employment Act it is an act of employment discrimination to terminate from employment any individual on the basis of conviction record; however, an exception exists in that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job. There is no dispute by the parties as to the fact that Complainant was discharged because of his felony conviction for welfare fraud. They do, however, dispute whether or not Complainant's conviction bears a substantial relation to his job as automotive department manager.

The Complainant has argued as follows:

"The conviction in this case, one of welfare fraud, does not have a substantial relationship to the Complainant's job in that the Respondent hired him knowing that he had the conviction. That is a tacit admission that the crime was unrelated to the position. If there was worry that he would have a propensity to steal from his employer, surely it would have prevented the employer from hiring him in the first instance."

In short, the Complainant apparently argues that Respondent simply did not care about his conviction record, and because the Respondent did not care about his conviction record, this proves (or should prove) that his crime was not substantially related to his job. The difficulty with Complainant's argument, however, is that "the Respondent" did care about his conviction record and felt it was related to his job. Although Smith and Tubbs, the Assistant and Store Manager, respectively, may have hired Complainant, when Jeff Krause, Respondent's District manager, learned of Complainant's welfare fraud conviction he reviewed the matter and determined that the conviction did in fact warrant Complainant's discharge. The record firmly establishes that Krause had first learned of Complainant's conviction for welfare fraud on February 28, 1989, and that the very next day, after consultation with Respondent's Legal Department, he made the decision that Complainant should be discharged because his conviction record bore a substantial relationship to his job. The Respondent has thus not admitted that Complainant's conviction was unrelated to his job. In fact, it is reasonable to infer that had Krause known about Complainant's welfare fraud conviction at the time Complainant sought employment with Respondent, Complainant would never have been hired in the first instance.

In any case, the Commission has previously held that the "substantially related" test is intended to be a legal test, applied after the fact by the reviewing tribunal, not a subjective test of the decision-making employer.

"The substantial relation test provided for in sec. 111.335, Stats., is an objective legal test, not a test of the employer's motives.. It is an affirmative defense, and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of `substantial relationship' between certain offenses and the job . . .

Collins v. Milwaukee County Civil Service Commission (LIRC, 3/8/91).

It is clear in this case that Complainant's criminal conviction record was substantially related to the circumstances of his job.

Complainant was convicted of welfare fraud under secs. 49.12(1) and 943.20(3)(c). To be convicted of this felony, Complainant must have wilfully made false representations with the intent to secure public assistance where the value of the property exceeds $2,500. The Respondent's store where Complainant is employed is a very large retail department store with high shelving, making the constant observation of personnel impossible. There are several cash registers located throughout the store, one of which is located in the automotive department where Complainant worked. Complainant had access to all of the cash registers. He was also entrusted by Respondent to perform such duties as maintain inventory, stock shelves, watch for shoplifters and to record price markdowns on merchandise. In County of Milwaukee v. LIRC, 139 Wis.2d 805, 407 N.W.2d 908 (1987), the court stated that the purpose of the substantially related test is in "assessing whether the tendencies and inclinations to behave in 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." Id. At 824. The Complainant's conviction was for having stolen property from the State of Wisconsin exceeding the value of $2,500. It is very likely that his criminal tendencies were going to manifest in a job presenting an opportunity for criminal behavior.

The Complainant has further argued that Respondent's employment of a person named McDaniel, who had been convicted of car theft, at another of Respondent's stores is evidence of his (Complainant's) discharge was unlawful. The testimony of Krause, who learned of McDaniel's conviction record prior to McDaniel's hire, indicates that he was satisfied that McDaniel's theft conviction was something that was "in the past". Krause testified that McDaniel was an individual who had committed a crime some time earlier (approximately five years before hire) and had "paid his dues," whereas Complainant's situation was happening "right now." Complainant argues, however, that the fact that Respondent hired McDaniel even though he had previously been convicted of car theft is a tacit admission that McDaniel's conviction was not substantially related to his job, and that by analogy it is reasonable to assume that Mullikin's conviction for welfare fraud was not substantially related to his job. Further, Complainant argues that sec. 111.335, Stats., recognizes only two exceptions to the prohibition against conviction record discrimination (substantial relationship between the offense and job; whether individual is bondable) and that there is no exception based on the length of time between the conviction and the employment action in question.

Since the Commission finds that Complainant's argument in which he compares his conviction record with that of McDaniel's is fully dispositive of this case, there is no need to address his further argument. In this regard, the Commission again notes, as shown above, that the record conclusively establishes that a substantial relationship exists between the circumstances of the Complainant's offense and his job. This, in turn, can only mean one of two things in terms of the argument Complainant makes regarding McDaniel: (1) that while Complainant's conviction record is substantially related to his job, McDaniel's conviction record is not; or (2) that both Complainant's and McDaniel's conviction records are substantially related to their jobs. In either case, the result fails to establish that there was a violation of the Act. Having found Complainant's conviction record to be substantially related to his employment, it really does not matter what action the Respondent took with respect to McDaniel. This is so, because sec. 111.335, Stats., expressly provides that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of an offense the circumstances of which substantially relate to the circumstances of the particular job. The fact that an employer may choose to discriminate in the employment of individuals with conviction records the circumstances of which substantially relate to a particular job, is not a prohibited basis of discrimination made unlawful under the Act.


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(1)( Back ) There is testimony by Respondent that Complainant completed his employment application on 10/28/88, but the Complainant's employment application itself is dated 10/29/88. However, this discrepancy is not material to the decision in this case.