Wis.LIRC ER Decision: Moore, Mark - April 17, 1998 - Conviction record discrimination -- 'substantially related' -- injury by conduct regardless of life / school boiler attendant

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

MARK MOORE, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604335

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. The complainant began working for the respondent, the Milwaukee Public Schools, in 1979 as a Building Service Helper I.

2. In 1992 the complainant was convicted of injury by conduct regardless of life, in violation of Wis. Stat. � 940.23(1), based upon an offense he committed in 1988. According to the criminal complaint, the complainant threw a pan of hot grease at his girlfriend during an altercation, but missed the girlfriend and struck her 20-month old daughter with the grease, causing her serious injury. As a consequence of his conviction, the complainant spent 90 days in a work-release program, during which time he continued to work for the respondent.

3. In 1993 the respondent instituted a policy of conducting criminal background checks on all applicants.

4. In 1995 the complainant applied for and was promoted to the position of Boiler Attendant Trainee. The complainant was assigned to work at Samuel Morse Middle School on the first shift, from approximately 6:00 a.m. until 2:00 p.m., during which time students were present in the building. As a Boiler Attendant Trainee the complainant worked on projects with the school engineer and his job duties included operating the boiler, material handling, and performing general maintenance and custodial work.

5. After the complainant had been working as a Boiler Attendant Trainee for approximately three months, the respondent discovered he had been convicted of injury by conduct regardless of life, a matter which the complainant had failed to divulge when filling out his application for the position. The complainant was discharged for falsifying his application.

6. In 1996 the complainant reapplied for the position of Boiler Attendant Trainee, this time disclosing his conviction record on the application.

7. In a letter dated October 30, 1996, the respondent informed the complainant:

". . . Based on information listed on your application as well as information from the Wisconsin Department of Justice, Crime Information Bureau, and the Milwaukee County Clerk of Circuit Court, we have noted that you have been convicted of "Injury by Conduct Regardless of Life." Based on the violent nature of your conviction and the fact that victim [sic] of you [sic] offense was a small child, the nature of the position for which you applied, and the nature of our business (public education), we must reject your application for employment."

Based on the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act.")

2. The complainant is a member of a protected classification, within the meaning of the Act.

3. The evidence failed to demonstrate that the complainant's conviction is substantially related to the duties of Boiler Attendant Trainee.

4. There is probable cause to believe that the respondent unlawfully refused to hire the complainant based upon his conviction record, in violation of the Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

ORDER

The decision of the administrative law judge is reversed. This matter is remanded to the Division for further proceedings.

Dated and mailed: April 17, 1998
moorema.rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This matter is before the commission on probable cause. A complainant's burden of proof is less in a probable cause proceeding than it would be at a hearing on the merits. Thus, rather than demonstrating by a preponderance of the evidence that discrimination occurred, the complainant need only show a reasonable ground for belief, supported by facts and circumstances strong enough to warrant a prudent person in the belief, that he was discriminated against in violation of the law. See Herling v. Dealer's Office Equipment, Inc. (LIRC, February 18, 1987). The record in this case clearly demonstrates that the complainant was denied hire by the respondent based upon his conviction record. While the respondent asserted that the complainant's conviction record was substantially related to the circumstances of the job--a matter which if proven would constitute an affirmative defense to the complainant's allegations--the commission does not believe it presented sufficient evidence to defeat the complainant's showing of probable cause.

The respondent's argument at the probable cause hearing was essentially that the complainant had engaged in a crime causing bodily injury to a child and that the respondent does not want a violent individual around children. However, a conclusion that a substantial relationship exists necessitates evidence about the specific requirements or circumstances of the position that are incompatible with the circumstances of the conviction and that are likely to foster repeat criminal conduct, and the commission is unwilling to infer a substantial relationship based upon the mere proximity of children in the building. This is particularly true in the absence of evidence establishing how much actual contact the complainant would have with children and under what circumstances. Further, while the commission might speculate that the job of operating a boiler would require the complainant to utilize dangerous materials and would entail a high degree of responsibility, the record is devoid of any evidence to establish that this is the case or to demonstrate how these circumstances relate to the circumstances of the complainant's conviction.

This matter is therefore remanded for a more complete exposition of those factors that might support the respondent's contentions that the complainant's conviction record is substantially related to the job of Boiler Attendant Trainee.

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based on a differing credibility assessment, but is as a matter of law.

cc: Tracy M. Johnson

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