JEFFREY K SHULFER, Complainant

SCHIERL SALES CORPORATION, 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 August 16, 2007
shulfje . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Jeffrey Shulfer petitions for a review of the ALJ's decision, which concluded that there was no probable cause to believe the respondent violated the WFEA by terminating Shulfer's employment, or refusing to hire him, because of his arrest and/or conviction record.

The respondent operates convenience store/gas stations. The respondent employed Shulfer as a Customer Service Representative at one of its businesses in Stevens Point, Wisconsin. On August 9, 2004, Shulfer was arrested and jailed. Shulfer was scheduled to work on August 10, 11 and 12 but did not report on those days because he was incarcerated.

On August 13, 2004, the respondent terminated Shulfer's employment effective that day. Subsequent to Shulfer's termination of employment the respondent had several communications with him welcoming him to reapply for employment. After released from jail on May 5, 2005, Shulfer submitted an application for employment with the respondent. By letter dated May 18, 2005, Candace Meronk, Director of Association Services, notified Shulfer that as a result of his actions on May 14 and 15, the respondent would not be open to rehiring him. The letter states that on May 14 Shulfer came to the respondent's store and stood in the automotive aisle for 5-8 minutes, just staring at the clerk on duty, behavior which made the clerk feel very uncomfortable. It states that on May 15 Shulfer came to the store and questioned the clerk on duty as to why Team Leader Rosemary Abbott had not hired him, questioning which made this clerk feel uncomfortable. Meronk, the primary decision-maker involved in the refusal to hire Shulfer, testified that the clerk on duty on May 15 actually stated that Shulfer was badgering him about whether he was being rehired. Meronk further testified that not included in her letter but also reason for her decision not to rehire Shulfer was his actions in circling the store's parking lot on his bicycle and staring into the store, which made Abbott uncomfortable.

On appeal from the ALJ's decision, Shulfer argues that it is his belief the respondent intended to terminate his employment the moment it learned of his arrest. However, testimony and evidence presented by the respondent shows that the reason the respondent terminated Shulfer's employment was because of his unexcused absence from work on August 10, 11 and 12 and his stated unavailability for work for an undetermined amount of time. Shulfer has not established reason to believe that the respondent's stated reasons for the termination of his employment were a mere pretext for discrimination on the basis of arrest record.

With respect to the respondent not hiring him, Shulfer apparently argues that he was discriminated against on the basis of arrest and/or conviction record prior to his actions on May 14 and 15. Shulfer asserted at the hearing that he was led to believe that he would be offered re-employment and that on May 10 when he asked Abbott about a good day to schedule an interview she kept saying "that wasn't a good day, or this wasn't a good day", which he took to mean she was "putting him off". Further, Shulfer asserted that it was his belief that District Supervisor Tony Blather had initiated an order not to hire him. Shulfer has failed to establish reason to believe that the respondent refused to hire him because of his arrest and/or conviction record. Meronk testified that at no time did the respondent say that Shulfer would in fact be rehired, but the respondent never got to the point of making a decision as to whether he would be rehired. Meronk testified that Shulfer's arrest and conviction record was irrelevant and denied that it had anything to do with the respondent's not rehiring him. In fact, Meronk testified that it is not the respondent's policy to do background checks on applicants and therefore it was very possible the respondent had individuals in its employ with conviction records. Shulfer admitted that he did not know whether or not Blather had initiated an order not to hire him. Moreover, Meronk testified that the decision not to rehire Shulfer was primarily her decision, in conjunction with Association Services Specialist Sue Bergh, and that the reason was because of his actions as stated in her letter of May 18, 2005.

cc: Attorney Dean F. Kelley

Appealed to Circuit Court.  Appeal dismissed as untimely, December 4, 2007.

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