STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LINDA CRAEMER, Complainant

INDIANHEAD COMMUNITY ACTION AGENCY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200103491


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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 27, 2005
craemli . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


The issue here is one of probable cause.

The Wisconsin Fair Employment Act provides that, notwithstanding the prohibition against arrest record discrimination, "...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). The test for determining whether a charge is substantially related to a job is whether the tendencies and inclinations to behave a certain way in a particular context, determined through an examination of the elements of the charged offense, are likely to reappear later in a related context. 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, 407 N.W.2d 908 (1987). A common sense approach is to be taken when applying the substantial relationship test. Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981).

The central element of the criminal offenses with which the employee was charged is the failure of an adult to safeguard the welfare of, or act in the best interest of, children entrusted to her care. As the Center Facilitator, a position parallel to that of a school principal, Craemer had overall responsibility in two Head Start centers for the delivery of educational, social, food, and transportation services to preschool children. Craemer, in her hearing testimony, tries to downplay the extent of her direct interaction with the children served by the centers or their parents, and the extent to which those decisions requiring the exercise of her independent judgment could have an impact on the children served by the centers. The record shows, however, that Craemer was responsible, for example, for hiring and supervising staff, evaluating the quality of classroom instruction, and investigating and resolving parent complaints. The exercise of these responsibilities could have a direct and significant impact on the welfare of the children served by the centers. Common sense dictates that oversight of an educational program necessarily entails significant responsibility for the welfare of the children who attend that program, and that the elements of the criminal offense of encouraging or contributing to the delinquency of a child would bear a substantial relationship to that responsibility.

Craemer argues that the fact that the offenses with which she was charged involved the activities of teenaged children in her home, and that, in contrast, her job responsibilities involved preschool children in an educational institution, support a conclusion that the circumstances are not sufficiently similar to satisfy the substantial relationship test. However, the circumstances of the charge are to be gleaned based upon a review of the elements of the charged offense, as set forth above, not upon an inquiry into the factual details of the actions upon which the charge is based. County of Milwaukee, supra.

The commission agrees with the administrative law judge that Craemer failed to sustain her burden to prove that probable cause exists to believe that she was discriminated against based on arrest record as alleged.

cc:
Attorney Teresa E. O'Halloran
Attorney Christopher R. Bloom



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uploaded 2005/05/02