GREGORY BLUNT, Complainant

STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS, Respondent

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 makes the following:

1. Gregory Blunt began employment with the Department of Corrections in September 1994 as a Youth Counselor 1 (YC-1) at Ethan Allen School (EAS) in Waukesha, Wisconsin. Blunt is a black male. EAS is a correctional facility that houses male juvenile offenders aged 10 to 25. Seventy-five percent of the offenders at EAS have been involved in drug or alcohol usage.

2. Effective as of June 20, 1999, Blunt was employed as a YC-3 at EAS. A YC-3 position is a lead worker position whose duties include enforcing cottage and EAS rules, providing leadership and training to other youth counselors, and providing instruction, counseling and serving as a role model to the offenders. Blunt was assigned to work at the Juneau Cottage, a cottage that held the less physically and emotionally mature residents of EAS. Blunt's supervisor was Audrian Brown, a black male.

3. In 2000, Blunt was experiencing a number of problems, both in his personal life and at work. On the advice of an individual with the respondent's Employee Assistance Program Blunt spoke to an outside counselor and ended up taking a leave of absence. This leave apparently began in March 2000.

4. On April 24, 2000, while still on the leave of absence, Blunt was stopped by the Milwaukee Police and in a search of his car the police found some marijuana. Blunt was arrested and charged with possession of marijuana. Blunt contacted his supervisor, Brown, to report his arrest on May 30. The department's Arrest & Conviction Policy required that Blunt report his arrest before the start of his next shift. Blunt's May 30 report was considered to be in compliance with the department's arrest/conviction record policy since Blunt was still on a leave of absence at the time.

5. The respondent established its Arrest & Conviction Policy on April 4, 1996, by Executive Directive 42.

6. Blunt, who had been receiving treatment for depression while out on his medical leave, began AODA treatment after his April 24 arrest and release from jail.

7. For financial reasons, Blunt needed to return to work but the psychologist he was seeing did not feel he was ready to return to work. EAS sent Blunt to an independent medical examiner to determine his fitness to return to work as a YC-3. The medical examiner determined Blunt to be capable of returning to work. Blunt then returned to work on July 26, 2000.

8. On September 5, 2000, Brown conducted an investigatory interview regarding Blunt's April 24, 2000 arrest. Brown testified that it took a long time before the investigation was done because there was no official documentation on what the arrest was all about, because he had been on vacation a couple of periods of time and because of other duties he had.

9. Union President, Julie Peters, appeared as Blunt's representative at the investigatory interview. According to Brown's notes of the interview, Blunt did not bring any paperwork documenting what he had been arrested for but Blunt stated his lawyer would provide it to EAS. Brown's notes indicate that Blunt said the Milwaukee Police pulled him over, informed him that they had a bench warrant for his arrest and while searching his car they found a "nickel" bag of marijuana. Brown's notes indicate Blunt stated he was arrested for violating a restraining order and on a felony marijuana charge. The notes indicate that Blunt stated there was an offer by the DA for 90 days in jail and a $500 fine. The notes indicate that Blunt stated he had gone through outpatient treatment. The notes also indicate Brown told Blunt that EAS needed him to bring in the paperwork to substantiate the actual arrest charges.

10. On September 15, 2000, Brown met with Blunt again and told him to bring in the paperwork by September 20 or he could possibly face suspension.

11. Apparently since Blunt had not provided any documentation as to what he had been charged with, on or about September 17, 2000, EAS had a criminal investigation background check run on Blunt and found there were some active warrants out for him. The background check revealed an outstanding warrant for Blunt in Waukesha County for operating a vehicle after revocation of his license, a Milwaukee County warrant (apparently relating to the violation of the restraining order) and a Brown County bench warrant. The Brown County bench warrant apparently related to a prior ordinance violation for marijuana possession.

12. As a result of knowledge of an outstanding warrant, EAS was required to contact law enforcement officials to report that Blunt was at EAS. On September 20, 2000, the Waukesha County Sheriff's Department arrested Blunt and took him into custody. Blunt was placed on leave without pay as a result of his inability to report for work due to being taken into custody by the sheriff's department.

13. On October 11, 2000, Blunt's attorney faxed a copy of the criminal complaint that served as the basis for Blunt's April 24, 2000 arrest and felony marijuana possession charge. The criminal complaint read in part as follows:

...
Because the defendant has previously been convicted under a state statute or a statute of the United States relating to a controlled substance, upon conviction of this offense, a felony, defendant may be fined not more than $2,000 or imprisoned for not more than 1 year or both.

...on the above-stated date at approximately 10:41 p.m., while officers were on routine patrol, they observed a blue Cadillac violating numerous traffic laws. The Cadillac was subsequently stopped and as Officer Riley approached the vehicle, the driver (Gregory Blunt, the defendant) tried to hand the officer the keys to the vehicle. Officer Riley did smell a strong odor of marijuana and asked him why he could smell marijuana and the defendant stated he had smoked some....As Officer Riley was speaking with the defendant, he observed a white envelope with a clear plastic window and in the window of this envelope, Officer Riley did observe a green and brown plant-like substance, suspected marijuana.

The defendant consented to a search of his vehicle and Officer Riley retrieved the envelope, which contained the suspected marijuana. The defendant was taken into custody; Officer Riley conveyed the suspected marijuana to the City of Milwaukee Police Department, Vice Control Division where it was tested by Detective Dela Cruz...She subjected a sample of the substance recovered by Officer Riley...and received a result that was positive for the presence of THC with a total weight of 1.38 grams without container.

Detective Otzelberger advised the defendant of his Constitutional rights and he did provide a statement. The defendant stated that he had one previous arrest in 1988 or 1989 for possession of a (sic) cocaine and believes he got a "time served" sentence. The defendant also received a ticket in Green Bay for having a "roach" in his car's ashtray. The defendant stated that regarding his arrest, the marijuana was for his own use....The defendant bought a nickel bag and paid $5 for it. The defendant did use some of the marijuana to smoke a joint....

The defendant has been smoking marijuana for about 17 years and smokes nearly everyday and smokes it in joints. The defendant does not use any other type of drugs and does not sell any drugs. The defendant did sign this statement indicating that it was truthful and correct.

Complainant further states that s/he has reviewed a printout of the Justis Criminal Report for Milwaukee, which indicates that the defendant was previously convicted of an offense relating to a controlled substance as that is defined under section 961.48 of the Wisconsin Statutes, to wit: Delivery of a Controlled Substance, in case number 2-819593, State of Wisconsin v. Gregory Blunt, DOB 10/06/1963. The certified copy of this conviction was unavailable at the time of filing, but has been ordered from warehouse and will be available.

14. Blunt's DOB is 10/06/64. Blunt testified that previously when he had transferred to Southern Oak's Girls' School, the Department of Corrections ran a background check on him and it was discovered that there was another Gregory Blunt whose DOB is 10/06/63. Blunt denied telling the police that he had been using marijuana for 17 years. Further, with respect to the statement attributed to him in the criminal complaint Blunt testified that he was pretty much told by the detective what to say, that he was misled by the detective and that whatever the detective was telling him to say, he was pretty much saying that to get out of jail.

15. Blunt first reported back to work on October 12, 2000, at which time Brown held a pre-disciplinary meeting with Blunt. Julie Peters again appeared as Blunt's union representative. Brown indicated that the purpose of a pre-disciplinary meeting is to indicate to an employee that through the employer's investigatory interview and subsequent investigation that the employer thinks there is enough evidence to go forward with the disciplinary process. Brown also indicated that this meeting is designed to bring out any extenuating circumstances, so if there was something that was not said before, the pre-disciplinary meeting was the time to get it said.

16. Brown's notes of the pre-disciplinary meeting indicate that he explained the purpose of the pre-disciplinary meeting and the concept of whether a "nexus" existed between his arrest and employment. The notes show that Blunt stated there was an offer of 75-90 days house arrest on the table for the April 2000 marijuana charge and that he had a pretrial hearing date set for December 7, 2000. Brown's notes show that Blunt stated there was a motion to drop the charge due to an illegal search and seizure, and also a motion to throw out a statement he made at the time of arrest. The notes also indicate that Blunt stated he is currently "dropping urine analysis weekly with 'W.C.S.' " Brown's notes indicate Blunt stated that the charge of violating a restraining order is still open and that Blunt produced documents showing that on 9/25/00 his wife "vacated the restraining order." The notes indicate Blunt stated that there was still a warrant open in Brown County for his arrest on a possession of marijuana charge and that Blunt produced documents that asked the judge in Brown County to reopen that case. Finally, Brown's notes state that "(t)he union rep. asked that, when considering nexus, we take into consideration that this all happened prior to rehab."

17. Brown testified that his notes of the investigatory and pre-disciplinary meetings with Blunt reflected the conversations he had with Blunt.

18. Blunt testified that during the investigation by Brown he was never asked if he had used marijuana in April 2000. Blunt testified that he did not tell Brown he was in possession of marijuana, he told Brown that that's what he was charged with and that there was a motion to have all of the evidence dismissed due to an illegal stop. Blunt testified that through the process of an investigatory meeting and a pre-disciplinary meeting he was never asked if he was in possession of marijuana.

19. Brown, when asked by the respondent's counsel if during the investigation Blunt had admitted to possession of marijuana replied, "Mr. Blunt said there was some marijuana in his car." Brown was then asked if at any time Blunt had denied that he was in possession of marijuana and replied, "No, he did not."

20. Blunt was suspended with pay at the end of the pre-disciplinary meeting. This was put in writing in a letter to Blunt dated the next day. With respect to the suspension, the letter read as follows:

This letter is to notify you that you are being relieved of duty, with pay, effective Friday, October 13, 2000, pending investigation of your possible violation of Department of Corrections Work Rule 2, "Failure to follow policy or procedure, including but not limited to the DOC ...Arrest and Conviction Policy."

21. Under Work Rule 2, the failure to report an arrest or conviction would constitute a violation of that rule.

22. Following a conversation on October 17, 2000, with Nick Korenenos, EAS's Human Resources Director, Department of Corrections Employment Relations Specialists, Donna Biddle and Mike Frahm, and Office of Legal Counsel Attorney, Kitty Anderson, Brown held another investigatory meeting with Blunt to go through the criminal background document that had been obtained on or about September 17, 2000. Brown's notes of this meeting with Blunt indicate that the criminal background document was reduced to 4 basic incidents, all, except for one, of which had been verified as being reported to Blunt's supervisors.

23. At the end of October, Brown recommended that Blunt's employment be terminated. Brown testified that because of Blunt's level of authority and job duties his "behavior and marijuana usage was something that was not conducive to counseling and leading offenders to non-usage and obeying of rules." Brown also testified that a person with convictions for alcohol abuse would also compromise a person's ability to counsel youth on alcohol usage.

24. Blunt was notified of his termination of employment by letter dated November 10, 2000, apparently issued by then EAS Superintendent, Jean Schneider. The letter reads as follows:

This letter will serve as official notice that you are hereby terminated from your position as a Youth Counselor Advanced at Ethan Allen School effective November 10, 2000. This action is being taken as a result of your violation of the following Department Work Rule:

Work Rule No. 11: "Violating a criminal statute or ordinance, or other regulation having the force and effect of law."

Specifically, on April 24, 2000, you were stopped by the Milwaukee Police. Your vehicle was searched and you were found to be in possession of a quantity of marijuana.

On May 30, 2000, you reported your arrest to your supervisor. As a result, an investigation was initiated. During the course of the investigation, it was discovered that you had a prior arrest and conviction for possession of marijuana that resulted in an ordinance violation and fine. Regarding the current violation, you admitted to the possession of marijuana.

Possession of illegal drugs cannot be tolerated as it directly relates to your position as Youth Counselor. There are youth in the institution who have engaged in the same behavior. Your actions leave no choice but to terminate your employment.

If you believe this action is not taken for just cause, you may appeal through the contractual grievance procedure.

25. The matter involving Blunt's prior possession of marijuana offense that resulted in an ordinance violation and Blunt being fined occurred in the spring of 1999 in Green Bay. It was apparently due to non-payment of the fine that in 2000 a Brown County warrant existed for Blunt's arrest.

26. Blunt's termination letter indicates that he was not discharged for violating Work Rule 2.

27. On November 17, 2000, Blunt and Julie Peters filed a grievance over Blunt's termination for a work rule 11 violation (possession of marijuana). Grievances started at the second step in the grievance process. The grievance asserted that termination was excessive, that other staff had been given breaks and that Blunt was in treatment after his arrest to deal with his addiction. It was asserted that the termination was not for just cause.

28. Donna Biddle, an employment relations specialist who heard second-step grievances, denied Blunt's grievance on February 5, 2001.

29. Biddle testified that she had not been involved in discussions on whether or not to terminate Blunt, but became involved after Blunt filed his grievance. Biddle testified that in discussions with Michael Frahm, and she believed discussions with Kitty Anderson and Quala Champagne, who was then Deputy Superintendent at EAS, there were factors that they felt did not make it good to enter into a last-chance agreement with Blunt. The factors Biddle identified were that Blunt's arrest (April 2000) for marijuana possession occurred during a time when he was in treatment for drug use and it was discovered that Blunt had had "other cases of arrest for marijuana possession and use." Biddle stated, in part, on a form titled "Grievance Analysis" as follows:

"The Grievant has been using marijuana for many years. In fact he was arrested and convicted in 1963 of possession and delivery of a controlled substance. While this past arrest is not part of this investigation, it does establish that his use of marijuana is very long term. His last arrest in April 2000 was during the time he was in treatment for marijuana use."

30. Biddle testified that she did not know where the information was gotten that Blunt was in treatment for marijuana use when he was arrested. Regarding Blunt's use of marijuana, Biddle testified that "those were the facts that were given", that she "used the facts that had been investigated by the agency."

31. Biddle testified that Blunt's race was not in any way a factor in her analysis, that she in fact did not even know Blunt's race and that no one had mentioned it. Biddle asserted that she "certainly knew the people in the institution (apparently EAS) would have known his race, but did not know how many people at corrections would have known because there's nothing on the forms that would have informed us."

32. Biddle testified that in talking to Frahm, who had been involved in the decision to enter into a last-chance agreement with Wendy Williams, it was her understanding that Williams was given a last-chance agreement because she had not had any other marijuana violations or any other drugs on her record up to that time. Biddle also testified that she was involved in discussions with others relating to Williams' last-chance agreement, including then Secretary of the Department of Corrections, John Litscher, and that there was a consensus that they would not do a last chance agreement with Blunt.

33. The felony marijuana possession charge against Blunt stemming from the April 24, 2000 incident in Milwaukee was resolved in April 2001 with Blunt pleading guilty.

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, by virtue of his race and arrest record, is an individual in those protected classes within the meaning of the Act.

3. The respondent terminated the complainant's employment on the basis of his arrest record in violation of the Act.

4. The circumstances of the charge pending against the complainant at the time of his discharge on November 10, 2000, were substantially related to the circumstances of his job, within the meaning of Wis. Stat. § 111.335(1)(b), such that the respondent was legally entitled to suspend the complainant's employment on November 10, 2000. The circumstances of the complainant's subsequent conviction in April 2001 were substantially related to the circumstances of his job, within the meaning of Wis. Stat. § 111.335(1)(c)1, such that the respondent was legally entitled to terminate his employment in April 2001.

5. The respondent did not discriminate against the complainant on the basis of race with respect to termination of his employment in violation of the Act.

1. That the respondent cease and desist from discriminating against the complainant on the basis of arrest record in violation of the Wisconsin Fair Employment Act.

2. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent submit a compliance report which provides details of the specific action it has taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.

3. That the complainant's allegation of race discrimination is dismissed.

Dated and mailed February 4, 2005
bluntgr . rrr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This case presents the question of whether or not the State of Wisconsin, Department of Corrections unlawfully discriminated against Gregory Blunt on the basis of arrest record and/or race when it terminated his employment. Blunt alleges that he was discharged in violation of the Fair Employment Act because the respondent discharged him before it knew of the disposition of the possession of marijuana charge filed against him. Blunt also alleges that the respondent discriminated against him on the basis of race because white employees who had engaged in the same or similar conduct were not terminated. Blunt filed his complaint of discrimination on July 27, 2001, with the Personnel Commission and a Personnel Commission Equal Rights Supervisor issued an initial determination of probable cause on October 21, 2002. Before the merits of the case could be heard, however, the Personnel Commission was eliminated effective on July 1, 2003, and authority over this complaint was transferred to the ERD.

An ALJ for the ERD conducted a hearing on the merits of Blunt's complaint on September 8 and 10, 2003. The ALJ issued a decision in which he concluded the respondent did not discriminate against Blunt on the basis of arrest record or race with respect to his termination in violation of the Act. 
 

Arrest Record

Subject to a number of exceptions, the Wisconsin Fair Employment Act makes it unlawful to discriminate against an individual on the basis of arrest record. "Arrest record" includes information indicating that an individual has been "arrested, charged with...any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." Wis. Stat. § 111.32(1).

One exception is that it is "not employment discrimination because of arrest record...to suspend from employment...any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job..." Wis. Stat. § 111.335(1)(b). (Emphasis added.)

It is not arrest record discrimination, however, if an employer discharges an employee because the employer concludes from its own investigation and questioning of the employee that he or she had committed an offense. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 22 (Ct. App. 1984)

In finding no arrest record discrimination in this case the ALJ determined that:

...the Respondent, after conducting its own investigation that included discussions with the Complainant on more than one occasion, had a reasonable belief that the Complainant in fact had possession of marijuana on April 24, 2000. The respondent then determined to terminate the Complainant based on this reasonable belief along with information that the Complainant had failed to report a previous arrest in Brown County on an earlier marijuana-related offense, albeit apparently an ordinance violation.

The evidence in this case, however, is inadequate to support a showing that the employer discharged Blunt because it had concluded from its own investigation and questioning of him that he had committed an offense. The evidence indicates that the respondent's "own investigation" primarily consisted of consideration of the criminal complaint against Blunt, and that the limited questioning it undertook of him was insufficient to support a conclusion that he had committed the offense of marijuana possession. Evidence of the respondent's primary reliance on the criminal complaint is apparent based upon its repeated requests for Blunt to furnish the respondent with the paperwork documenting what he was arrested for. It is also apparent based on its termination letter statement that Blunt had admitted to the possession of marijuana, a conclusion the support for which can only be drawn from the criminal complaint against Blunt. It is further apparent based on Biddle's testimony that Blunt's use of marijuana was a fact that had been investigated by the agency, since the evidence fails to show that the agency ever questioned Blunt about marijuana use, and that reference to Blunt's use of marijuana only appears in the criminal complaint.

Also, the letter of termination issued to Blunt does not list as reason for the discharge that Blunt had failed to report an arrest in Brown County on an earlier marijuana-related offense. It does, however, indicate that part of the reason for the termination decision was that Blunt had been arrested and convicted of a marijuana-related offense in Brown County that resulted in an ordinance violation and fine.

The proper approach in determining whether an employer's conclusion that an employee has engaged in unacceptable behavior should be based on information "independent of the arrest and of the arresting authorities." Betters v Kimberly Area Schools (LIRC, 07/30/04). During the investigation conducted by the respondent, Blunt was never asked if the marijuana was his and Blunt never admitted to possession of marijuana on April 24, 2000. Indeed, when asked if Blunt had admitted to possession of marijuana on April 24, Audrian Brown, Blunt's supervisor who had responsibility for investigating the matter, could only state that Blunt said the police found marijuana in his car and that Blunt did not deny possessing marijuana. Blunt, however, testified that throughout the process of the investigatory meeting and the pre-disciplinary meeting he was never asked if he was in possession of marijuana.

The ALJ has not specifically cited what evidence existed from the employer's investigation that allowed it to come to a reasonable belief that Blunt in fact had possession of marijuana on April 24, 2000. The decision contains findings that Blunt told the respondent about a prosecution offer to resolve the charge against him, that there were motions to drop the charge due to an illegal search and seizure and to throw out a statement made at the time of his arrest and that Blunt had indicated going through outpatient treatment. However, none of these statements by Blunt was tantamount to an admission that he had committed the offense of possession of marijuana on April 24, 2000.

Perhaps the only thing of any significance at all that possibly could have formed some basis for the respondent to have believed Blunt had possession of marijuana on April 24, a fact not noted in the ALJ's decision, was Blunt's union representative's request that when considering nexus the respondent take into consideration that "this" all happened prior to rehab. However, even the import of this statement request is at best ambiguous since Brown and apparently other management staff were of the belief that Blunt was guilty of both possession and use of marijuana.

A finding that the respondent terminated Blunt on the basis of arrest record affords the commission the discretion to issue an order that the respondent take such action as will effectuate the purpose of the WFEA, with or without back pay. Wis. Stat. § 111.39(4)(c). However, a violation of the prohibition against termination on the basis of arrest record may be found but the employee still not be entitled to any remedy for that violation because the circumstances of the charged offense substantially related to the employment such that suspension of the employee would be legal. Shipley v. Town & Country Restaurant (LIRC, 07/14/87); Maline v. Wisconsin Bell (LIRC, 10/30/89). This is the situation presented here.

Wisconsin Statute § 111.335(1)(b) provides that it is not employment discrimination because of arrest record "to suspend from employment...any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job..." Blunt was subject to the pending criminal charge of felony possession of marijuana on November 10, 2000. It is also clear from the record that the circumstances of Blunt's pending criminal charge substantially related to the circumstances of his job as a YC-3 counselor. Blunt's job was a lead worker position with duties that included enforcement of cottage and EAS rules, providing leadership and training to other youth counselors and providing instruction and counseling to the offenders. Further, there was evidence that approximately 75 percent of the youth offenders at EAS had drug and alcohol problems. Clearly, Blunt who had a pending marijuana possession charge against him was in no position to credibly provide leadership and training to other counselors, nor to provide instruction and training to the youthful offenders at the institution, many of whom had had problems with drugs. The respondent thus could have legally suspended Blunt from employment on November 10, 2000.

Furthermore, the record also shows that Blunt eventually pled guilty to the possession of marijuana charge in April 2001. 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. 111.335(1)(c)1. For the same reasons stated above, the circumstances of this conviction substantially related to the circumstances of Blunt's particular job. In assessing whether the circumstances of an offense of which an individual has been convicted is substantially related to his particular job, 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). Individuals in Youth Counselor positions were expected to set examples of model behavior for the youthful offenders. Blunt's conviction for possession of marijuana demonstrated that he was unwilling accept the responsibility of obeying the law. Blunt's behavior was not conducive to that of serving as a role model or instructing and providing counseling to youth that had been adjudicated as juvenile offenders by the court system. The respondent thus could have legally terminated Blunt's employment in April 2001.

In addition, there is also further reason to conclude that Blunt should not be entitled to any remedy with respect to the respondent's violation of the prohibition against arrest record discrimination. Part of the respondent's reason for discharging Blunt on November 10 was that it had also discovered he had a prior possession of marijuana offense that resulted in an ordinance violation and fine. This was the Brown County marijuana-related offense. Blunt's ordinance violation and fine for this offense constituted a conviction record as defined under Wis. Stat. § 111.32(3). Blunt initially asserted he had reported this marijuana offense to his then supervisor, but ultimately admitted that he had only informed a union representative and had no information as to whether or not the rep had reported this to his supervisor. The circumstances of Blunt's prior marijuana-related offense likewise substantially related to the circumstances of his particular job such that the respondent could have lawfully discharged Blunt for this offense on November 10, 2000. 
 

Race discrimination

Blunt alleges that he was discriminated against on the basis of race because there were a number of other employees that had engaged in the same or similar conduct as he, all of whom are white, that the respondent did not discharge while the respondent did discharge him. Blunt cites Wendy Williams as a person whose situation was most similar to his as evidence that he was treated differently by the respondent. Williams, a Youth Counselor, was arrested for possession of marijuana on February 10, 1999. She was subsequently discharged on May 27, 1999, following a pre-disciplinary meeting. However, following a grievance over her discharge she was returned to EAS under a last-chance settlement agreement. Williams was subsequently arrested again, failed to fully report the basis for her arrest and was discharged.

The evidence indicates that Blunt was treated differently by not being offered a last-chance agreement not because of his race, however, but because the respondent determined that his circumstances were not the same as those of Wendy Williams. Testimony by Biddle indicated that the reason for this difference in treatment was not racially motivated. Biddle indicated that the question of the success of a last-chance agreement was something that was considered in determining whether or not to permit a last-chance agreement and that were reasons not to do this with Blunt. Biddle indicated that it was believed that Blunt had been undergoing drug treatment when he was arrested and charged with marijuana possession in April 2000. Biddle stated on the Grievance Analysis form she prepared that "If he continued to use (marijuana) while he was in treatment, how can the institution trust that the use will not continue?" Biddle also indicated that consideration was given to the fact that "we found out that there had been other cases of marijuana use and arrest," whereas Williams had not had any prior marijuana violations or drugs on her record.

The respondent's belief that Blunt was undergoing drug treatment when arrested for possession of marijuana in April 2000, although a mistaken belief, was a legitimate nondiscriminatory reason for the failure to offer Blunt a last-chance agreement. There is no evidence that this was not a good-faith belief on the part of the respondent.

The second reason Biddle gives for not entering into a last-chance agreement with Blunt is more problematic, however. With respect to Blunt's "marijuana use" Biddle testified that this was part of the "facts given" and that she used "facts that had been investigated by the Agency." With respect to "other cases of marijuana arrest," Biddle referenced her "E.R. ANALYSIS" at the bottom of Exhibit 117, which reads, in part, "The Grievant has been using marijuana for many years. In fact, he was arrested and convicted in 1963 (sic) of possession and delivery of a controlled substance. While this past arrest is not part of this investigation, it does establish that his use of marijuana is very long term." The record fails to establish that the investigation conducted by the Department of Corrections had included questioning Blunt about years of marijuana use. Biddle's reference to Blunt's years of marijuana use reflects information that is only contained in the criminal complaint against Blunt. Biddle's reference to Blunt having been "arrested and convicted in 1963 of possession and delivery of a controlled substance", is also information that is only reflected in the criminal complaint.

While Biddle's revelations do not appear to raise any evidence of racial bias, they do appear to raise the issue of whether or not Blunt was discriminated against in part on the basis of arrest record when denied a last-chance agreement. Biddle's conclusion that Blunt had been using marijuana for many years appears to have come from the criminal complaint. The criminal complaint states that Blunt has been smoking marijuana for 17 years. There was no testimony by Brown that Blunt was ever questioned about his use of marijuana. Blunt denies admitting to Brown that he had used marijuana. Blunt testified that he was never questioned about his marijuana use. The commission notes that on Biddle's Grievance Analysis form (Exh. 117), under summary of the "Union/Grievant Position", she states that "The Grievant admits that he has used marijuana for 17 years, but he did go to treatment in 2000." However, Blunt denies that he has used marijuana for 17 years and he denies that he ever told anyone he has used marijuana for 17 years. Biddle's reference to Blunt having been convicted of possession and delivery of a controlled substance is clearly information that was taken directly from the April 2000 criminal complaint.

The commission therefore concludes that the respondent's decision to deny Blunt a last-chance agreement resulted in part from a legitimate nondiscriminatory business reason but also in part on the basis of a prohibited discriminatory basis.

A violation of the WFEA occurs where it has been established that an employment action has been taken in part because of an impermissible motivating factor, even though such action may have been motivated by other factors, thus leaving the question of fashioning an appropriate remedy. Hoell v. LIRC, 186 Wis. 2d 603, 608-609, 522 N.W.2d 234 (Ct. App. 1994). If the employment action would not have occurred in the absence of the impermissible motivating factor, the commission has the discretion to award some or all of the remedies ordinarily awarded. If the employment action would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney's fees. Id. at 610.

The record in this case indicates that the respondent would have denied Blunt a last-chance agreement absent consideration of the impermissible motivating factor. Biddle indicated that the likelihood of the success of a last-chance agreement was a consideration for giving a last-chance agreement. Biddle indicated that the respondent had granted Williams a last-chance agreement because she had not had any prior marijuana violations or drugs on her record. Part of the respondent's reason for terminating Blunt's employment was that while investigating Blunt's April 2000 arrest for possession of marijuana, it was discovered that he had previously been ticketed and fined for a Brown County marijuana-related ordinance violation. And while Blunt initially asserted he had reported this marijuana offense to his then supervisor, he ultimately admitted that he had only informed a union representative and that he had no information as to whether or not the rep had reported this to his supervisor. Given Blunt's prior ordinance violation for possession of marijuana and the respondent's criteria for giving a last-chance agreement, the respondent would not have given Blunt a last-chance agreement.

Under the rationale of Hoell, Blunt would be entitled to an award of a cease and desist order and attorney's fees. However, Blunt is limited to only an award of a cease and desist order because no authority exists for the commission to order a state agency to pay Blunt's attorney's fees. Wisconsin Dept. of Transportation v. Wisconsin Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993)(Costs, including attorney's fees, may not be taxed against the state without express statutory authorization, citing Martineau v. State Conservation Comm., 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972). No express statutory authority exists to tax costs and attorney's fees against the state.)

Blunt also cites the respondent's treatment of Greg Hansen, a Youth Counselor, as evidence that he was discriminated against on the basis of race. Hansen was arrested in 1994 and charged with a number of offenses for forging prescriptions, making a fraudulent insurance claim and obtaining prescription drugs by fraud. The respondent learned of Hansen's arrest from Waukesha County. Termination was recommended for Hansen. However, based on a settlement agreement with the union in May 1995, Hansen was given a last-chance agreement and a 30-day suspension. Subsequently, in June 1995 Hansen was again arrested and charged with obtaining prescription drugs by fraud. The respondent placed Hansen on suspension with pay and subsequently terminated his employment for violating the last-chance agreement. However, in a settlement agreement with the union in July 1996, Hansen was restored to his position.

The evidence fails to show that the respondent treated Blunt differently than Hansen on the basis of race. The respondent's treatment afforded Hansen is not probative of race discrimination because Hansen's arrests occurred before the respondent had adopted its Arrest & Conviction Policy (Executive Directive 42) while Blunt's arrest in April 2000 had occurred after the respondent's adoption of this Arrest & Conviction Policy.

Blunt also cites a number of employees with alcohol-related arrests and/or convictions and the fact they were not discharged as evidence that he was treated differently on the basis of race. These employees included James Schmeling, Eric Pingle, Don Woodley, Bill Rosenau and Tracy Miech. However, the evidence also fails to show that the respondent's treatment afforded these individuals is probative of race discrimination. The evidence shows that with respect to alcohol-related offenses the respondent allowed more lenient treatment for such offenses, and that in September 1999 it in fact specifically amended its Arrest & Conviction Policy to reflect this practice. The respondent's practice regarding discipline for alcohol-related offenses was as follows: A verbal reprimand for a first civil OWI conviction; a letter of reprimand for a first criminal OWI conviction; a written reprimand and last-chance warning for a second criminal OWI conviction; and termination for a third criminal OWI conviction. There was no evidence presented to show that the respondent had not followed this practice for a black employee with an alcohol-related offense, nor was there any evidence to suggest that such practice would not have been followed for any black employee with an alcohol-related offense. While one may debate the pros and cons of the respondent's distinction in policy with respect to drug and alcohol discipline, the evidence fails to support a showing that this distinction was based on Blunt's race.

Finally, Blunt argues that during discovery information was discovered involving other employees with the same or similar violations of work rule 11 violations that would have proved he was treated differently. Blunt attempted to enter numerous exhibits into evidence at the hearing in support of this argument. However, the respondent objected to the admission of the exhibits on the grounds that such documents had not been timely identified 10 days prior to the day of the hearing. DWD § 218.17. On the basis of the respondent's argument that introduction of these documents at this point resulted in unfair surprise to the respondent and that it was precluded from properly preparing its case against such documents, the ALJ sustained the respondent's objection. There was no error in the ALJ's refusal to admit Blunt's documents. While the respondent may have furnished these documents to Blunt during discovery, the record indicates that the respondent had supplied Blunt in the vicinity of 9,000 documents in response to his discovery requests. Similar to the commission's decision in Clark v. Friskies Petcare (LIRC, 08/16/01) (there was no error by the ALJ in excluding thousands of documents the complainant there intended to use because he had effectively "hid" anything which was potentially relevant and which might be used at hearing in a flood of other papers), there was no error by the ALJ here because Blunt having received thousands of documents from the respondent through discovery but failing to specifically identify what documents he intended to use, effectively hid the documents which he might use at the hearing. The respondent could not guess what information Blunt would sift and consider relevant and assemble to prepare his legal theories and plan his strategies. By identifying documents intended to be used for the first time at the hearing, Blunt frustrated the purposes that DWD § 218.17 was designed to avoid.

In addition, Blunt has argued that his attorney was negligent in failing to disclose the exhibits in a timely manner. He therefore requests another hearing. However, the commission has held that where a party's attorney makes an error in the presentation of his case, the adverse consequences should fall upon the shoulders of the party who has chosen that attorney, rather than on the party's adversary or the other litigants. See, e.g., Neuberger v. Twin City Storm Sash Co. (LIRC, 01/22/92). Indeed, Blunt himself acknowledges awareness of this position by the commission since Blunt states that he filed a complaint against his attorney with the Office of Lawyer regulation. Blunt further notes, however, that in the opinion of OLR his attorney did nothing wrong.

Perhaps as a result of the opinion of OLR, Blunt apparently attempts to place the blame on the respondent, arguing that the reason for his attorney's failure to timely submit intended documents for use at the hearing was that his attorney had not yet received all of the documents requested from the respondent through discovery. However, a letter dated September 3, 2003, in the case file from the respondent's counsel addressed to the ALJ on this subject refutes this claim. The letter indicates the following: On July 14, 2003, the respondent's counsel mailed a letter to Blunt's attorney requesting payment of $1,327.80 for copying charges. Subsequently, in a letter dated August 18, but not received by the respondent until August 26, Blunt's attorney enclosed a check dated August 25 for the copying charges. However, on August 26 the respondent's counsel had traveled out of state due to the death of her mother and did not return until September 2, when she mailed the requested documents to Blunt's attorney. Blunt's attorney then first presented the documents for use at the hearing at the hearing on September 8, 2003.

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor because its decision in this matter was not based on a differing credibility assessment from that made by the administrative judge, but because it concluded that the facts surrounding the complainant's termination of employment calls for a different legal conclusion than that reached by the administrative law judge.

 

cc: Attorney Gloria J. Thomas

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uploaded 2005/02/07