CHRIS ΜΙСΗΑΕL FΑRLΙΝGΕR , Complainant
SPHERION CORP, 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. The respondent Spherion Corporation (Spherion) is a nationwide company that provides temporary workers to its client businesses. At its Beloit office, Spherion maintains approximately 3,000 active workers in its system with approximately 300 working in temporary assignments at any given time.
2. Workers indicate their availability by calling the Spherion office to which they are assigned.
3. The complainant Chris Fаrlіngеr (Fаrlіngеr) has a record of convictions for theft (August 1993); sexual assault (July 1994); and sexual assault of a child (October 1994).
4. Fаrlіngеr worked in temporary assignments for Spherion out of its Beloit office beginning in November of 1995. At the request of a client due to attendance deficiencies, the employment relationship ended on February 24, 1998.
5. In March of 1998, after violating the terms of his probation, Fаrlіngеr began serving a prison sentence.
6. During his 1995-1998 period of employment for Spherion, Fаrlіngеr had the following record of no call/no show absences:
|
Date(s) |
Client |
Spherion action |
|
7/21/97 |
Amerimark |
|
|
8/12 - 8/15/97 (3 work days) |
Tankcraft |
Corrective action taken Fаrlіngеr reported on 8/15 that had been ill without phone |
|
12/26/97 - 2/23/98 (7 work days) |
Reynolds |
Discharge at client request |
7. The record does not show, as it relates to this 1995-1998 time period, what Spherion's policy relating to no call/no show absences was, who assigned work to Fаrlіngеr, how this individual(s) interpreted and enforced Spherion's no call/no show policy, and whether this individual(s) had reason to be aware of Fаrlіngеr's criminal record. In his final assignments during this period of time, Fаrlіngеr earned $7.25 to $7.50 an hour.
8. In August of 2002, five months after his release from prison, Fаrlіngеr again applied for work with Spherion. On his application, Fаrlіngеr stated he was available for work as a material handler, and was willing to work full time (not flexible assignments) on first or second (not third) shift, for $8 an hour in the Janesville/Beloit/South Beloit area in locations accessible by public transportation. Fаrlіngеr also stated he had a conviction record which he would "explain in interview."
9. Belynda Gerber began working in Spherion's Beloit office as Operations Manager in 2000. Gerber conducted the interview of Fаrlіngеr in August of 2002. During this interview, Gerber and Fаrlіngеr discussed in detail Fаrlіngеr's conviction record. In regard to the sexual assault of a child conviction, Fаrlіngеr explained that, as a 19-year-old, he had a consensual sexual relationship with a 14-year-old girl. Gerber stated in response, "That's not good," or words to that effect.
10. After this interview, Gerber re-hired Fаrlіngеr, despite his previous attendance record, in order to give him a second chance.
11. The following chart represents Fаrlіngеr's availability calls to Spherion and his work history during the relevant time period:
|
Date(s) |
Action |
|
8/6/02 |
Application with Spherion |
|
10/02-12/02 |
Parts quality inspector for SMI, Inc. discharged when unavailable due to jailing for possession of controlled substance (THC) |
|
12/02 |
Seasonal job as parts quality inspector at Playstar, Inc. |
|
1/9/03 |
Called in availability any shift |
|
1/16/03 |
Called in availability first shift |
|
2/20/03 |
Called in availability first or second shift |
|
2/24/03 |
Called in availability first shift |
|
3/03 1/04 |
Machine operator for Tyson Foods resigned due to strike violence and inconvenience of travel distance |
|
1/28/04 |
Called in availability |
|
1/29/04 |
Called in availability |
|
2/3/04 |
Called in availability for first shift |
|
3/04-4/04 |
Sales representative for United Solideal Tire Co discharged due to lack of continuing funding for position |
|
4/7/04 |
Called in availability for first shift |
|
6/2/04 |
Called in availability for second shift |
|
6/4/04 |
Offered and accepted job through Spherion at Janesville Gazette beginning on 6/5/04 no call/no show |
|
6/24/04 |
Offered job through Spherion at Janesville Gazette no call/no show |
|
6/14/04-7/14/04 |
Sales representative for Traders League resigned |
|
7/19/04 |
Called in availability for industrial or data entry |
|
8/18/04 |
Called in availability for any shift |
|
8/19/04 |
Called in availability for any shift |
|
8/24/04 |
Called in availability for any shift |
|
9/04 11/04 |
CNC operator for United Tool and Engineering discharged |
|
11/29/04 |
Called in availability for flex number of hours/any shift, $9/hour |
|
12/1/04 |
Called in availability for flex number of hours/any shift, $9-10/hour |
|
12/2/04 |
Called in availability for flex number of hours/any shift, $9-10/hour |
|
12/3/04 |
Called in availability for flex number of hours/any shift, $9-10/hour |
|
12/6/04 |
Called in availability for any shift, $8.50/hour |
|
12/13/04 |
Called in availability for any shift |
|
1/3/05 |
Called in availability for any shift |
|
1/18/05 |
Called in availability |
12. On January 21, 2005, Fаrlіngеr called in his availability to Spherion. His call was taken by new Spherion employee Tracy Cherry. Fаrlіngеr asked Cherry why he had not been getting any assignments. Cherry told him she did not know, but would do some checking and call him back. Cherry called Fаrlіngеr back about ten minutes later.
13. Based on this second phone conversation, Fаrlіngеr appeared at Spherion offices with a video camera; sat down in a chair next to Cherry's desk; recorded her responses to his questions attempting to gain her admission that she had referenced his criminal background in their earlier conversation; was provided a letter (exhibit #4) stating that Spherion did not consider him a reliable candidate for employment and would no longer be providing work to him because of his poor previous work history, including being a no call/no show "to the one assignment we placed you at;" and refused to leave after receiving this letter until Cherry's male coworker placed a call to the police. Cherry felt this conduct "scared" and "intimidated" her, and that Fаrlіngеr was "badgering" her.
14. Gerber, Cherry's supervisor, was not in the office on January 21, but Cherry phoned Gerber after she had spoken for the second time with Fаrlіngеr and he had indicated he was coming in to the office. Gerber told Cherry to phone Fаrlіngеr again and suggest that he come in the following Monday and discuss the matter with Gerber. Cherry tried to reach Fаrlіngеr after this conversation with Gerber but he did not answer, presumably because he had already left to come to the Beloit office.
15. After January 21, 2005, Fаrlіngеr did not again call in his availability to Spherion, and Spherion did not offer him any assignments.
1. Spherion is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Fаrlіngеr has the burden to prove that he was discriminated against on the basis of arrest or conviction record as alleged.
3. Fаrlіngеr has failed to sustain this burden.
This complaint is dismissed.
Dated and mailed July 23, 2007
farlich . rrr : 115 : 9
/s/ James T. Flynn, Chairman
/s/ Ann L. Crump, Commissioner
111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:
(1) To refuse to hire..., to...terminate from employment..., or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment...because of any basis enumerated in s. 111.321.
111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer,...employment agency,...or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of...conviction record...
111.335(1)(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, 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 or licensed activity; ...
The proper inquiry is what actually motivated Spherion's decisions not to offer more assignments to Fаrlіngеr. Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002). As a result, it would be Fаrlіngеr's burden to prove that he was not offered assignments by Spherion after August 6, 2002, because of his conviction record. (1)
Direct Evidence
Fаrlіngеr relies upon his version of the second phone conversation he had with Cherry on January 21, 2005, as direct evidence of discrimination. Fаrlіngеr claims that Cherry stated in this conversation that he had not been getting assignments because of his conviction record.
The commission agrees with the administrative law judge (ALJ), however, that Cherry's statements on the video recording of her interaction with Fаrlіngеr when he came to her office after this second phone conversation, could reasonably be interpreted in more than one way, and it is a close question whether Cherry was in fact indicating her agreement that she had referenced his criminal background during their earlier phone conversation. As the ALJ indicated, it is not possible to clearly discern from Cherry's responses whether she is agreeing with the complainant that she referenced his criminal background in their phone conversation, or whether she is denying it and simply acknowledging that she is attending to what he is saying.
However, even if Cherry had made this statement to Fаrlіngеr over the phone, the commission views her connection to Spherion's work assignment process as too tenuous to ascribe much significance to it. The record, for example, does not show that Cherry had ever made a decision not to offer work to Fаrlіngеr in response to his indication of availability, or, in fact, that she even had this authority. Cherry apparently did not even begin working for Spherion until some time in late 2004, more than two years after Fаrlіngеr was added to Spherion's worker database. The record also does not show that Cherry had reason to be privy to the bases for offering assignments to workers in general or to Fаrlіngеr in particular. Moreover, if Fаrlіngеr is arguing that Cherry's statement evidenced the existence of a general and accessible prohibition on offering assignments to Fаrlіngеr due to his conviction record, the fact that Fаrlіngеr was in fact offered at least one assignment in June of 2004 militates against the existence of such a prohibition.
Indirect Evidence
Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
In general, to establish a prima facie case of discrimination, a complainant must show that he was a member of the protected group, and that the relevant circumstances create an inference of discrimination, i.e., generally, that others not in the protected group were treated more favorably.
Such an inference is not created here. Specifically, the record does not show that, on those occasions when Fаrlіngеr indicated he was available for work of a particular kind on a particular shift at a particular rate of pay, such work was actually available. Moreover, the record does not establish that the frequency of offers of assignments to Fаrlіngеr was unusual. In this regard, it should be noted that Fаrlіngеr, over a 2.5-year period, called in his availability less than 25 times; only 10% of Spherion's 3,000-member workforce was working in an assignment at any given time; and Gerber testified without rebuttal that the frequency of offers of assignments to Fаrlіngеr was not unusual. In addition, Fаrlіngеr's 1995-98 employment record, when Spherion may have been unaware of his conviction record, also shows significant gaps between assignments, one as long as 12 months.
The record also does not show that similarly situated workers without conviction records were offered available work within their parameters more frequently than Fаrlіngеr.
Moreover, Gerber, Spherion's Beloit operations manager, testified without rebuttal that Spherion had successfully employed workers with conviction records over a period of years.
In addition, the record does not show that those responsible for deciding whether an assignment would be offered to Fаrlіngеr, other than Gerber, had reason to be aware of his conviction record.
As a result, Fаrlіngеr did not prove a prima facie case of conviction record discrimination. If he had, Spherion articulated legitimate, non-discriminatory reasons for its failure to offer assignments prior to June of 2004, i.e., the lack of assignments satisfying relevant criteria on the nine occasions he called in his availability; and for its failure to offer assignments after June of 2004, i.e., his two no call/no shows for assignments with the Janesville Gazette on June 4 and 24, 2004, after an unsatisfactory attendance record in his previous period of employment.
The burden would then shift to Fаrlіngеr to show that these reasons were a pretext for conviction record discrimination.
Fаrlіngеr first points to the contrast between the number of assignments offered to him in 1995-98, when Spherion may not have been aware of his conviction record, versus 2002-05 when Spherion was so aware, as demonstrating pretext.
However, this comparison is not a compelling one for several reasons. First, there is no record of the number of times Fаrlіngеr communicated his availability to Spherion between 1995 and 1998, and no record of the relative demand, or placement rate, for workers with Fаrlіngеr's skill set in 1995-98 and 2002-05.
Moreover, intent is a necessary element of a disparate treatment claim, such as this one, under the Wisconsin Fair Employment Act. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707(Ct. App. 1991). See, also, Eleby v. Meriter Retirement Services, ERD Case No. 9401078 (LIRC Aug. 28, 1997). It is difficult, if not impossible, to discern or infer the intent of individual placement staff operating at least four years apart whose identities and awareness of Fаrlіngеr's conviction record are unknown.
Finally, and most significantly, Spherion's records show that Fаrlіngеr's attendance deficiencies arose during the last seven months of his 1995-98 period of employment; and that Spherion attended to these deficiencies by warning him, assigning him to a single client after this warning, and then discharging him at this client's request when he had additional no call/no show absences. Contrary to the impression created by Fаrlіngеr in his argument, Spherion did not ignore Fаrlіngеr's 1995-98 no call/no show absences, and did not continue to regularly offer assignments with impunity to him after these absences. It was not unreasonable or surprising for Spherion, after giving Fаrlіngеr another chance to prove his reliability, to take his earlier unsatisfactory attendance record into consideration and to cease offering him assignments after a single series of no call/no shows in June of 2004. As a result, a comparison of the 1995-98 circumstances in this regard and those in 2002-05 does not establish pretext.
Fаrlіngеr also argues that the fact that Gerber inquired about, and then reacted negatively to, his recitation of the circumstances of his criminal convictions during their 2002 interview tends to establish pretext. However, and most significantly, the record does not show that Gerber was ever involved in a decision not to offer an assignment to Fаrlіngеr. Consequently, Fаrlіngеr failed to prove that, even if Gerber harbored a discriminatory animus toward him based on his conviction record, it had any effect on Spherion's offer of assignments to him.
Furthermore, as Gerber explained, it was her responsibility to inquire about his convictions in order to determine whether the circumstances of his offenses related to the types of work he was requesting. Moreover, Fаrlіngеr had indicated in his application that he would provide this information at interview rather than in writing on his application. In addition, Fаrlіngеr's testimony that Gerber stated "that's not good" or words to that effect could be interpreted in several ways including Fаrlіngеr's, i.e., that Gerber was offering a negative value judgment as to his criminal conduct, or, instead, that Gerber was attempting to commiserate with the situation in which Fаrlіngеr found himself after having a consensual sexual relationship with a teenager whom he considered to be his girlfriend. Finally, after this interview, Gerber hired the employee, despite his criminal record and his prior attendance failures, and Spherion offered him at least one assignment in June of 2004, tending to militate against a conclusion that Gerber was biased against Fаrlіngеr, or that Spherion failed to offer work assignments to Fаrlіngеr because of his conviction record.
Fаrlіngеr failed to sustain his burden to prove that he was discriminated against based on his arrest or conviction record as alleged.
JAMES T. FLYNN, Chairman (concurring opinion)
After consulting with the administrative law judge (ALJ), and reviewing the record in this case, including the videotape of Fаrlіngеr's interaction with Cherry in the respondent's offices, in my opinion, the record does not support the ALJ's determination that Cherry told the complainant in their second phone conversation that he was not receiving assignments because of his criminal background.
The ALJ indicates that he relied upon the videotape which he admits was ambiguous. Moreover, to reach the conclusion he did, the ALJ would have had to discredit Cherry's hearing testimony that she had no reason to be aware of the complainant's conviction record at that time. Cherry testified that she was not aware of the complainant's criminal history; had not consulted any criminal history web site or database; had not received any information about the complainant's criminal history from a supervisor or coworker; and the only information she relied upon in responding to the complainant was the Spherion database which does not include a worker's criminal history, only his work history. Gerber, Cherry's supervisor, was not in the office on January 21, but Cherry phoned Gerber after she had spoken for the second time with the complainant and he had indicated he was coming in to the office. Gerber and Cherry consistently testified that neither mentioned the complainant's criminal record in this conversation, and that, after Cherry told Gerber that the complainant had not seem satisfied with the work history explanation she had given him, Gerber told Cherry to phone the complainant again and suggest that he come in the following Monday and discuss the matter with Gerber.
In my opinion, it just does not make sense that a new receptionist/customer services representative, who recently completed equal rights/harassment training, and who apparently utilized, in responding to the complainant, her access to the respondent's work history database, which does not include information as to a worker's conviction record, would state to an obviously unhappy worker that he was not being offered assignments because of his criminal background.
In addition, it is interesting to note certain details of the complainant's statements relating to this conversation. First, before he enters respondent's offices, he states on the video that Cherry told him over the phone that he had not been receiving offers because of his "arrest and conviction record." He later indicates on the video that, in their earlier phone conversation, Cherry had attributed his lack of offers to his "criminal background" or his "criminal behavior and background." Cherry, meanwhile, twice indicates that she told him over the phone that he was not receiving offers due to his "background" which she explains relates to his work history. Then, at hearing, in questioning Cherry, the complainant states, "...background and work history are two different things." In my opinion, it is more plausible, particularly if, as I believe the record shows, Cherry had no reason to be aware of the complainant's criminal record, that this could indicate, as Cherry testified, she told the complainant on the phone that he had not been hired because of his "background," and he interpreted this as meaning something other than his work history and, in particular, his criminal background.
More importantly, however, it is not clear to me why the ALJ attributed so much significance to his finding that Cherry told the complainant he was not receiving offers due to his criminal background. The record does not show that Cherry ever made the decision not to offer work to the complainant in response to his indication of availability, or, in fact, that Cherry even had this authority. Cherry apparently did not even begin working for the respondent until some time in late 2004, more than two years after the complainant was added to the respondent's worker database. If the ALJ is implying in this finding that the respondent's employees in fact had access to workers' conviction records, such a conclusion would be inconsistent with the worker records which are part of the hearing record as well as the testimony of respondents' witnesses, including Cherry, who no longer works for the respondent and would appear as a result to have no motive to protect it, that such records do not include information about workers' conviction records.
/s/ James T. Flynn, Chairperson
ANN L CRUMP, Commissioner (concurring opinion)
After consulting with the ALJ and reviewing the hearing record, including the videotape, I agree with the ALJ's determination that Cherry told Fаrlіngеr he was not receiving assignments because of his criminal background.
However, even given this determination, I believe, as stated above in the Memorandum Opinion, that the record as a whole does not support a conclusion that Fаrlіngеr was discriminated against based on his conviction record as alleged.
/s/ Ann L. Crump, Commissioner
ROBERT GLASER, Commissioner (dissenting):
I agree with the majority that the proper inquiry is what actually motivated Spherion not to offer more assignments to Fаrlіngеr. In my opinion, there is an easy answer to that question.
The record shows, as the ALJ found, and as Commissioner Crump agreed, that Cherry told Fаrlіngеr that he was not receiving assignments because of his criminal background.
I disagree with the majority finding that it was unclear that Cherry had the authority to offer job assignments. Cherry testified that her job title was customer service representative, and describes what she does regarding client requests for workers. She indicates that she in fact had called up Fаrlіngеr's information on the computer to review his criteria. On direct testimony, Belynda Gerber, operations manager, answers in the affirmative to a question regarding what customer service representatives have access to when looking for people to assign. Since Cherry is a customer service representative she would have that authority based on Spherion's own testimony.
The majority opinion finds fault because Fаrlіngеr did not show that Spherion offered jobs to individuals without conviction records. This is in spite of the fact that Spherion admitted to not offering jobs to Fаrlіngеr because of his criminal record. The majority then concluded without question that Spherion had successfully employed workers with conviction records over a period of years. The record only shows Spherion testified, "There's several people that had criminal backgrounds that work for us." There is no testimony as to whether any such employee was assigned any jobs.
Overall, I did not find the employer's witnesses to be credible. A review of the video tape does not support Cherry's testimony that she felt intimidated by Fаrlіngеr's conduct. Gerber testified that it would be important for Spherion to be aware of a worker's criminal background so they would not be inappropriately assigned. However, Gerber also testified that those making job assignments for Spherion had no reason to be aware of a worker's criminal background. Spherion testified that Fаrlіngеr was terminated because of several no shows, but rushed to give him a written form "...thanking you for your interest in Spherion Corporation..." This seems a pretext since it was only given after Cherry's statement to Fаrlіngеr that he was not receiving assignments because of his criminal record.
It has been said if something walks like a duck and quacks like a duck, then it's a duck. That analogy is apropos here. Here an agent of the employer, who has the authority to make job assignments, tells a worker that he is not receiving assignments because of his criminal record. That is discrimination. As such, I would affirm the ALJ's decision.
/s/ Robert Glaser, Commissioner
NOTE: The commission did confer with the ALJ before reversing his decision. Because the commission viewed the videotape of Fаrlіngеr's interaction with Cherry at the respondent's offices, the ALJ was in no better position than the commission to determine what occurred during this interaction. The commission reversed the ALJ's decision based upon a differing conclusion as to what the hearing record in fact established and upon a differing interpretation of the relevant law.
cc: Attorney Frank A. Bear
Appealed to Circuit Court. Affirmed March 3, 2008.
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