BEVERLY A MCCLAIN, Complainant
FAVORITE NURSES, 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 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 April 27, 2005
mcclabe . rsd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The record, however, does not support a conclusion that the termination decision was based in whole or in part on McClain's arrest record. McClain testified that, during the termination meeting with manager Abrams, Abrams "read off everything listed on Exhibit 1, both arrest charges and convictions, and said that was the reason I was discharged." Exhibit #1, however, relates solely to the history of McClain's arrest, charge, plea, conviction, and sentence for the May 2002 incident which resulted in the misdemeanor battery conviction leading to the inquiry and action at issue here, not to any other arrests. Moreover, since Favorite Nurses did not become aware of McClain's arrest for the May 2002 incident until she had already been convicted of the resulting charges, the fact of the arrest alone would not have played a part in the termination decision.
In addition, although human resource manager Lite testified that Favorite Nurses was aware that McClain had at least two previous charges for driving while intoxicated and that a restraining order had previously been imposed on her, his termination decision was based "on the seriousness of the [battery] conviction and the fact that she was still on probation for that conviction." Given the nature and immediacy of the battery conviction and its consequences, in contrast to the significantly less serious nature and remoteness in time of the other charges/orders, as well as the lack of evidence tending to undermine Lite's testimony in this regard, the commission credits this testimony and concludes that McClain's other arrests did not form any part of the basis for the subject termination action.
Pursuant to Wis. Stat. § § 111.321 and 111.322, it is an act of employment discrimination to terminate any individual because of conviction record.
Wisconsin Statutes § 111.335 states as follows in this regard, as relevant here:
111.335 (1)(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record...to...terminate from employment..., any individual who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job...
The test for determining whether an offense 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 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 offense of misdemeanor battery is the intentional infliction of bodily harm on another person. The underlying traits evidenced through such conduct include, for example, disregard for the health and safety of others; inability to control anger, frustration, or other emotions; and use of violence to achieve power or to solve problems.
As a nurse, McClain delivered direct care, while unsupervised, to hospital patients, many of whom were combative or disoriented. McClain was required to deliver this care with the highest regard for the patients' health and safety, with control over her emotions, and without resorting to violence, expectations in direct conflict with the traits evidenced through her commission of a battery. It is concluded as a result that the record establishes a substantial relationship between McClain's duties and the offense of misdemeanor battery. See, also, Williams v. Havenwood Health & Rehabilitation Center, ERD Case No. 200202280 (LIRC March 11, 2005)(complainant's two convictions for misdemeanor battery substantially related to his job as certified nursing assistant in nursing home).
In McKnight v. Silver Spring Health & Rehabilitation, ERD Case No. 199903556 (LIRC Feb. 5, 2002), the commission concluded that a substantial relationship did not exist between the job of certified nursing assistant in a skilled nursing facility and the offense of disorderly conduct committed during a domestic dispute. However, the distinctions between the elements of the crime of misdemeanor battery and those of the offense (1) of disorderly conduct, and between the underlying traits evidenced through the commission of such offenses, support a different result here.
Disorderly conduct is defined (2) as engaging "in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance." The elements do not include the intentional infliction of bodily harm, and the concomitant traits do not necessarily include a disregard for the health or safety of others, inability to control emotions, or the use of violence. Even considering the factual details established (3) in McKnight, i.e., that the complainant and the father of her children engaged in a dispute during which each of them possessed a knife and she was required to defend herself against his aggression, it was not established that the complainant in McKnight intended to inflict bodily harm or actually did inflict such harm, or evidenced an inability to control her emotions or a propensity for violence.
Finally, McClain argues that her record of satisfactory employment over a period of more than ten years should be considered in applying the substantial relationship test here. However, in County of Milwaukee, supra., the court expressly rejected this argument, stating that prior satisfactory job performance was not germane to the inquiry that must be conducted in applying the substantial relationship test. See, Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989).
cc:
David Lite
Human Resources Manager
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