CEDRIC A JOHNSON, Complainant

KELLY SERVICES, 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 conclusions in that decision as its own, except that it makes the following modifications:

1. The second sentence in paragraph 7 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"In the month after the Complainant applied for employment with the Respondent, Claudia Krepsky was responsible for screening and hiring Kelly employees to work at MAXIMUS."

2. The first sentence in paragraph 10 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"Eligibility Specialists have periodic, unsupervised contact with MAXIMUS employees, state employees, adoption workers and case managers."

3. Paragraph 15 of the FINDINGS OF FACT is deleted and the following is substituted therefor:

"The circumstances of the Complainant's pending criminal charges are substantially related to the circumstances of the job of an Eligibility Specialist."

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

Dated and mailed April 21, 2009
johnsce . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

This case arises from a discrimination complaint Cedric Johnson filed against Kelly Services (Kelly) in which Johnson alleged that Kelly violated the WFEA by refusing to hire or employ him on the basis of arrest record. A hearing was initially held in the matter by an ALJ of the Equal Rights Division on April 15 and July 8, 2005, who subsequently issued a decision dismissing Johnson's complaint. Johnson filed a petition for review by the commission and the commission set aside the ALJ's decision and remanded the matter to the ERD for a new hearing before a different ALJ and for a new decision on the merits of Johnson's case.

The case is now before the commission on Johnson's appeal following the remand hearing and decision issued by a different ALJ who dismissed Johnson's discrimination complaint.

While seeking employment as a social worker with the Hatch Temporary Employment Agency Johnson was advised that Kelly might have that type of work available and that Kelly would be notified. Kelly subsequently contacted and interviewed Johnson during October of 2003 for the position of Eligibility Specialist. This position involved work for the State of Wisconsin Bureau of Child Welfare, which had been subcontracted out to a company called MAXIMUS. Kelly hired employees to staff positions for MAXIMUS. The Eligibility Specialist makes service and monetary determinations for children in foster care. The Eligibility Specialist work was to be performed at the state office building in Waukesha, Wisconsin.

Johnson testified that in his interview with Kelly's Linda Ullrich that Ullrich specifically mentioned that the job didn't involve any contact whatsoever with clients of the Bureau of Child Welfare; that the only contact would be with the other two Eligibility Specialists working under a supervisor; that the only contact outside of those three people would be over the phone with social workers; and that the social workers would provide information on the clients to the Eligibility Specialist, who would take that information and determine who was eligible.

Johnson testified that he next had an interview with Jessica Nyenhuis, the individual who would be his supervisor. Johnson testified that Nyenhuis also stressed that he wouldn't have any outside contact with "employers"; that it would be an office job at a computer and the only contact would be with social workers over the phone to go back and forth with information about the clients to decide whether these clients qualified for the services from the state.

Ullrich testified that the Eligibility Specialist job is a job in which the individual must regularly follow orders and that this was an important part of the Eligibility Specialist's job. Ullrich testified that she supervises Eligibility Specialists and interacts with them daily; that she knows for a fact that the Eligibility Specialists regularly have to implement decisions they disagree with; that the ability to follow her instructions, even if they disagree with her and even if she happened to actually be wrong, was an important part of the job of Eligibility Specialist.

Ullrich also testified that the job of Eligibility Specialist regularly involves stress and conflict; that it is a high-volume, high-stress, and high-conflict-job; that ability to handle stress, conflict and high volume is an important part of the job. Further, Ullrich testified that had Johnson been hired, Claudia Krepsky would have had supervisory oversight over him; that in late 2003 Krepsky came to have managerial responsibility over the MAXIMUS account.

Krepsky was employed by Kelly from November of 2003 until July of 2005 as the partner and staffing manager responsible for screening, recruiting and the hiring process for associates placed on-site at MAXIMUS. Krepsky acknowledged that she did not regularly interact with Eligibility Specialists and only had a chance to observe them working on occasion, but testified she was familiar with the Eligibility Specialist position through knowledge of the job description and random site visits prior to screening applicants and suggesting qualified applicants to the MAXIMUS contract holder.

Krepsky testified that based on her observations, stress and conflict entered into the Eligibility Specialist's position in that the workplace at MAXIMUS has very tight quarters with people working in cubicles and carrying a very high caseload of upwards of 500 cases; that they would also be dealing with the stress of both the funding levels that come from the State, as well as being able to help people receive the funding limits and/or having to determine that they were not eligible for as much as they had hoped for. Further, Krepsky testified that there were sometimes disagreements over funding decisions; that Eligibility Specialists had to implement decisions they might disagree with or instructions they might think were wrong; and that ability to follow instructions and rules would be important for an Eligibility Specialist.

Johnson testified that on October 20, 2003, he called Kelly and spoke to Erica Berger, a branch manager, who informed him that she would talk to Nyenhuis to see what her decision was about hiring him and get back to him. Johnson testified that on October 21 he received a call from Berger who stated that Nyenhuis said to offer the position to him; that it was offered and he accepted it and was told that all that was needed was for him to fill all the payroll information out before he starts.

Ullrich testified that not to her knowledge does Kelly ever offer anyone a job before they filled out an application. Similarly, Krepsky testified that Kelly never hires anybody as a "temp" without them filling out an application.

Johnson testified that on October 22, 2003, he completed employment paperwork, including an Employment Application, an Employee's Withholding Allowance Certificate, an Employment Eligibility Verification (Form I-9), a Release and Consent for Drug Testing and a Background Screening Disclosure and Authorization. See Exh. C-17.

The employment application asked, among other things, "In the last 7 years, have you been convicted of, pled guilty or no contest to, been imprisoned, or on probation or parole for any felony?", and, "In the last 7 years, have you been convicted of, pled guilty or no contest to, been imprisoned, or on probation or parole for any misdemeanor?" Johnson answered "No" to both questions.

In response to the question, "Do you currently have charges pending", however, Johnson answered "Yes" and provided the following explanation:

I have 2 cases pending: 1) Disorderly Conduct - which I plan to plead not guilty to. 2) Disorderly conduct, battery, & resisting or obstructing - which I also have [pled] not guilty to.

Johnson's first pending charge involved a March 2003 arrest charge under Wis. Stat. § 947.01 for disorderly conduct. (According to the evidence, there was also a resisting or obstructing an officer charge made in connection with this pending case.) Johnson's second pending charge involved July 2003 arrest charges for a non-criminal disorderly conduct charge, a charge under Wis. Stat. § 940.20(2) for battery to law officers and also a charge under Wis. Stat. § 961.41(3G)(b) for possession of a controlled substance.

Johnson testified that Berger looked at his application and said to him, "I'm going to need to ask you some questions about the charges that you have pending on here."

Johnson testified that he told Berger what happened. Johnson's testimony about what he told Berger regarding his first pending charge appears at pages 117-122 of the transcript of the first day of the hearing on remand held on December 19, 2006. Johnson's testimony about what he told Berger regarding the charges involved in his second pending case appears at pages 123-130 of the December 19, 2006 hearing transcript. Berger's written notes of her interview with Johnson regarding his pending charges, though in considerably less detail than what Johnson states he told Berger, read as follows:

Went to police dept to file a complaint (unrelated to charges) and while there...arrested for disorderly conduct. After being arrested he was searched by police officers. They found prescription meds on his person. Officers loaded him into car in order to transport him to station to test meds to verify they are prescription...Being transported in police car. Cuffs were too tight [in] back of police car. When tried to get out of police car, had trouble getting out of car. Police dragged him out car & when he got out of car, kicked officer.

...went to ER at Veterans Hosp for treatment and was turned away. Got upset, refused to leave w/o meds, was given disorderly conduct....

Johnson testified that after telling Berger about the pending charges against him Berger said she would have to forward the information to the corporate human resources department to make a decision regarding his hire.

Johnson testified that the next day he received a call from an employee of the respondent and that he wrote down what she said word-for-word on Exhibit C-5. Included on this exhibit is the following statement:

"We are unable to continue the hiring process at this time until the court has made a determination on these pending charges. After the court makes its determination we need you to bring in a copy of the criminal complaint and the judgement (sic) of conviction and have you fill out Kelly Services paperwork regarding criminal convictions in order to have the corporate H.R. department make a hiring decision."

Laura Lanway was Kelly's human resource manager. Lanway was located in Troy, Michigan. Lanway testified that she was the individual who made the decision to place Johnson's employment application on hold. Lanway testified that prior to making that decision Kelly's branch manager (Berger) had faxed to her information regarding behavior admitted to by Johnson and that she did not base any part of her decision to place Johnson's employment application on hold due to the fact of his arrest; she based the decision entirely on Johnson's admitted behavior.  
 

DISCUSSION

Under the WFEA, subject to ss. 111.33 to 111.36, it is an act of employment discrimination for an employer "to refuse to hire, employ...any individual...because of any basis enumerated in s. 111.321." Wis. Stat. s. 111.322. An individual's arrest record is one basis of prohibited discrimination under s. 111.321. The term "arrest record" includes, but is not limited to, information indicating that an individual has been "charged with...any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." Wis. Stat. § 111.32(1).

It is not discrimination on the basis of arrest record, however, if an employer discharges or refuses to hire an employee because the employer concludes from its own investigation and questioning of the employee that he or she has committed an offense. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 22 (Ct. App. 1984).

In addition, notwithstanding s. 111.322's prohibition against discrimination against an individual on the basis of arrest record, "it is not employment discrimination because of arrest record to refuse to employ...or 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. s. 111.335(1)(b).

Like the exception to the prohibition against arrest record discrimination, the WFEA also contains exceptions to the prohibition against conviction record discrimination. The WFEA exceptions to conviction record discrimination provide, among other things, that "Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ...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..." Wis. Stat. s. 111.335(1)(c). Explaining what the substantially related test meant in a case involving a conviction record discrimination claim, in County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the court stated as follows:

Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test. What is important in this assessment is not the factual detail related to such things as the hour of the day the offense was committed, the clothes worn during the crime, whether a knife or a gun was used, whether there was one victim or a dozen or whether the robber wanted money to buy drugs or to raise bail money for a friend. All of these could fit a broad interpretation of "circumstances." However, they are entirely irrelevant to the proper "circumstances" inquiry required under the statute. 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, 139 Wis. 2d at 824.

Further, in County of Milwaukee, noting the similarity of the exceptions to the prohibition against conviction record and arrest record discrimination, the court stated:

We find it significant that the...[arrest record] exception is phrased in terms similar to the [conviction record] exception at issue in this case. An employer faced with an applicant who has a pending criminal charge against him has little to base a "circumstances" inquiry on other than what is contained in a complaint or information. Thus, the employer's inquiry is limited to general facts. It is not unreasonable to assume that the legislature, in choosing the same test for both exceptions [111.335(1)(b) and 111.335(1)(c)1], contemplated a [similarly] limited inquiry under the [111.335(1)(b)] exception. This court's definition of the proper "circumstances" inquiry may be employed in situations arising under either [111.335(1)(b) or 111.335(1)(c)1]. (Emphasis added.)

Id. at 824-825.

Also, the commission has consistently held that the "substantial relationship" test is an objective legal test to be applied after-the-fact by the reviewing tribunal regardless of whether the employer considered the substantially related issue when making its decision. See e.g.,   Ѕhеrіdаn v. United Parcel Service (LIRC, 07/11/05); Wilson v. New Horizon Center, Inc. (LIRC, 09/11/03); Schroeder v. Cottage Grove Cooperative (LIRC, 06/27/01); Santos v. Whitehead Specialties (LIRC, 02/26/92); Collins v. Milwaukee County Civil Service Commission (LIRC, 03/08/91); and Black v. Warner Cable Communications Company of Milwaukee (LIRC, 07/10/89).

As the commission stated in Black:

The "substantial relation" test provided for in s. 111.335, Stats., is an objective, legal test, not a test of the employer's motives. It is an affirmative defense, and if it is demonstrated at hearing to have been applicable as a matter of law to a challenged decision, it operates as a bar to any finding of liability whether or not, at the time of the challenged decision, the employer had a conscious intention or belief that it was acting because of a "substantial relationship" between certain offenses and the job. Such a belief on the part of the employer would not shield the employer, no matter how strongly and honestly the employer held the belief, if it were not a legally appropriate conclusion under all of the circumstances. By the same token, where a finding of a "substantial relation" is legally appropriate, it does not matter whether this was the basis on which the employer subjectively acted.

On remand, the ALJ appears to have come to a conclusion that no discrimination occurred using a "combined analysis" of the substantially related and Onalaska defenses. At page 12 of the ALJ's decision he states:

Given the nature of the Eligibility Specialist job and given that it was the Respondent's understanding, based on an interview of the Complainant, that one of the incidents for which the Complainant had pending charges involved a situation where he had kicked a police officer, the Respondent's putting the Complainant's application on hold falls under the Onalaska defense and the Complainant has failed to show that arrest record was a motivating factor in the Respondent's refusal to hire or employ him at least until a determination was made on the charges. (Emphasis added.)

The commission questions whether this constitutes a proper analysis. Under the Onalaska defense there is not discrimination on the basis of arrest record if an employer refuses to hire an individual because the employer concludes from its own investigation and questioning of the individual that he or she has committed an offense. In short, the employer has not acted on the basis of the individual's arrest record. On the other hand, where an employer has acted on the basis of an individual's arrest record, the employer may avoid liability if the circumstances of the individual's pending criminal charge substantially relate to the circumstances of the job. The substantially related defense under s. 111.335(1)(b) requires an assessment of the relatedness of an offense and the job in question, which, if shown establishes an exception to the prohibition against discrimination on the basis of arrest record. The ALJ's reference to the nature of the Eligibility Specialist position and what was involved in one of the pending charges against him suggests that the ALJ finds that Kelly did not discriminate against Johnson on the basis of arrest record in part based on the § 111.335(1)(b) exception. The commission believes it is erroneous to both hold that the employer did not act on the basis of Johnson's arrest record and that the employer did act on the basis of his arrest record but that such action falls under the exception to the prohibition against discrimination on the basis of arrest record.

In this case, since Kelly apparently elected to await a court's determination on Johnson's pending criminal charges before it made a hiring decision on Johnson's application for employment, there is a lack of any real basis to support a conclusion that the action Kelly had taken was because it had determined from its own investigation and questioning of Johnson that he had committed an offense. The commission has therefore examined the evidence to determine whether or not the circumstances of Johnson's pending criminal charges are substantially related to the circumstances of the job of an Eligibility Specialist. The commission concludes that they are substantially related.
 

Circumstances of the job of Eligibility Specialist

Johnson testified that what he was told by Ullrich and Nyenhuis was that the job didn't involve any contact whatsoever with clients of the Bureau of Child Welfare; that the only contact would be with the other two Eligibility Specialists working under a supervisor; that there would be no person-to-person contact with anyone outside the four-person office; that his only contact outside of those three people would be over the phone with social workers; and that it would be an office job at a computer. The responsibilities of the Eligibility Specialist's day-to-day tasks listed under the first two points of the job description for this position suggests somewhat broader outside phone contact than asserted by Johnson, however. The job description includes the following responsibilities:

1. Completing timely IV-E recommendations, including requesting missing or additional information from counties, tribes and state adoption staff, and documenting the requests and the responses to those requests.

2. Completing timely annual recommendations for redeterminations, including requesting missing or additional information form (sic) counties, tribes and state adoptions staff, and documenting the requests and the responses to those requests.

Exhibit C-2 (Emphasis added.)

In any case, Ullrich testified that the position of Eligibility Specialist is a job in which the individual must regularly follow orders and that this was an important part of the Eligibility Specialist's job; that she supervises Eligibility Specialists and interacts with them daily; that she knows for a fact that the Eligibility Specialists regularly have to implement decisions they disagree with; that the ability to follow her instructions, even if they disagree with her and even if she happened to actually be wrong, was an important part of the job of Eligibility Specialist; that the job of Eligibility Specialist regularly involves stress and conflict; that it's a high volume, high stress, high conflict job; and that ability to handle stress, conflict and high volume is an important part of the job.

Similar to the testimony by Ullrich, Krepsky testified that based on her observations, stress and conflict entered into the Eligibility Specialist's position in that the workplace at MAXIMUS has very tight quarters with people working in cubicles and carrying a very high caseload of upwards of 500 cases; that they would also be dealing with the stress of both the funding levels that come from the State as well as being able to help people receive the funding limits and/or having to determine that they were not eligible for what they had hoped for or not as much as they had hoped for; that there were sometimes disagreements over funding decisions; that Eligibility Specialists had to implement decisions they might disagree with or instructions they might think were wrong; and that ability to follow instructions and rules would be important for an Eligibility Specialist. 
 

Circumstances of the charge(s)

With respect to disorderly conduct, Wis. Stat. § 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." With respect to battery to law officers, Wis. Stat. § 940.20(2) provides: "Whoever intentionally causes bodily harm to a law enforcement officer or firefighter, as those terms are defined in s. 102.475(8)(b) and (c), acting in an official capacity and the person knows or has reason to know that the victim is a law enforcement officer or fire fighter, by an action done without the consent of the person so injured, is guilty of a Class H felony." With respect to resisting or obstructing an officer, Wis. Stat. § 946.41(1) provides: "Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor."

In addition to the above, evidence was presented at the hearing which showed, among other things, that in October 2003 Johnson had a § 947.01 disorderly arrest charge for domestic related abuse on January 20, 20031(1); a pending municipal citation for an ordinance violation for disorderly conduct on July 16, 2002; and a pending municipal citation for an ordinance violation for disorderly conduct on July 17, 2003.

In one of the pending disorderly conduct ordinance violation citations, the police had to remove Johnson from the drive-thru of a fast food restaurant called "Checkers" because he refused to leave the drive-thru. Johnson gave the following testimony about this incident at the hearing:

I had an argument with someone at a fast food drive-thru-a worker at a fast food drive-thru over something they (sic) said to me....they lied to me about what they - what services and what they had, what food they had. We had an argument about that. The guy told me that they didn't have the sandwich that they had a sign right there saying they had, told me they didn't sell it, and, you know, they had a sign right there selling it. I bought the sandwich the day before...

Discussing the substantially related test in County of Milwaukee, the court stated, "Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test....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." 139 Wis. 2d at 824. Further, the court stated that its definition of the proper "circumstances" inquiry may be employed in situations arising under either the exception to the prohibition against conviction record or arrest record discrimination.

The commission has held that the appropriate method for evaluating the substantially related question is to look first and foremost at the statutory elements of the offense(s) involved. Lillge v Schneider National, Inc. (LIRC, 06/10/98). The rationale for this approach is that frequently the only person at the discrimination case hearing with any personal knowledge of the underlying factual circumstances of the offense is the person who was charged with or convicted of an offense -- and frequently that person describes a version of the underlying factual circumstances that is self-exculpatory and inconsistent (to a greater or lesser degree) with the charge or the fact that they were convicted.

The character traits revealed by the offenses for which Johnson was charged include the following: a tendency to become engaged in conflicts with others, to become violent, to exhibit poor self control and a lack of good judgment, and a refusal to follow orders.

Based on the qualifications required of an Eligibility Specialist as described by Ullrich and Krepsky -- the ability to handle stress and conflict, ability to implement decisions that one may disagree with, ability to follow directions -- the commission concludes that the offenses with which Johnson was charged are substantially related to the job of an Eligibility Specialist.

On appeal, Johnson takes issue with several of the ALJ's findings of fact. For example, Johnson asserts that in paragraph six of the findings the ALJ fails to note that his July 17, 2003 arrest charge of battery to law officers was changed to a lesser charge of battery and that the charge of possession of a controlled substance was dropped. Johnson accuses the ALJ of being biased for not considering his explanation of what subsequently occurred with respect to these charges. Johnson's assertion of bias on the part of the ALJ is without merit. Johnson himself acknowledges that what was relevant for the ALJ to consider in deciding the case was "the pending charges at the time of the application only, because that is what the application asked..." (Emphasis in original.) Johnson's application lists the charge of battery to law enforcement officers and disorderly conduct.

Johnson disagrees with the finding in paragraph 7 that when he applied for work with Kelly that Krepsky was responsible for screening and hiring Kelly employees to work at MAXIMUS. Johnson is correct about this. Krepsky did not become employed by Kelly until the month after Johnson's application for employment. Johnson's further argument that because Krepsky "was not involved in the incidents or decisions that occurred in the case whatsoever" she therefore had no firsthand knowledge about any of this is also true. However, Krepsky did have firsthand knowledge regarding the job responsibilities of the Eligibility Specialist position. Krepsky was employed by Kelly beginning in November 2003 as the partner and staffing manager responsible for screening, recruiting and the hiring process for associates placed on-site at MAXIMUS. Although she did not regularly interact with the individuals employed as Eligibility Specialists, she was familiar with this position through her knowledge of the job description and random site visits prior to screening applicants and suggesting qualified applicants to MAXIMUS.

Johnson also takes issue with the ALJ's paragraph 8 findings regarding the working conditions for an Eligibility Specialist. However, the testimony given by Ullrich and Krepsky provide sufficient support for those findings made by the ALJ.

Next, referencing the paragraph 9 finding that Eligibility Specialists and Social Workers may disagree about whether benefits should be awarded to applicants, Johnson notes that disagreements arise in most job environments and further asserts that "just because a person has had a confrontation with unreasonable people in the past, and that [the] situation may have gotten a little bit out of hand because of the circumstances surrounding the incident, that doesn't extrapolate to all of the future experiences between that person and any, or every, one else. If that were to be the case, that would mean that everyone who ever received a disorderly conduct charge, or battery charge, etc., should be given extended prison sentences, and barred from any type of future employment..."

Johnson's assertions are unpersuasive in the instant case, however. In addition to the fact that Johnson's pending criminal charges for battery to law enforcement officers and disorderly conduct are substantially related to the job of an Eligibility Specialist, at the same time of these charges Johnson also had pending against him two municipal citations for disorderly conduct, one of which it was necessary for the police to remove him from the drive-thru of a fast food restaurant due to his argument with a restaurant employee about whether or not the restaurant had a sandwich that he wanted to purchase.

Johnson argues that the paragraph 10 finding (first sentence) that Eligibility Specialists have periodic, unsupervised contact with benefit applicants is totally false. Johnson is correct. Ullrich testified that an Eligibility Specialist did not have any physical contact with the children or their parents. Eligibility Specialists have periodic, unsupervised contact with MAXIMUS employees, state employees, adoption workers and case managers.

Next, Johnson takes issue with the ALJ's paragraph 11 and 12 findings, asserting that they are extremely vague summaries of the explanations he provided to Kelly regarding the pending charges against him. However, the exception Johnson takes to these findings does not provide any reason for the commission to reach a different result than that reached by the ALJ on his discrimination complaint.

Finally, Johnson disagrees with the paragraph 15 finding that "Arrest record was not a motivating factor in the Respondent's refusal to hire or employ the Complainant." Johnson argues that his arrest record was the "sole reason for the Respondent's decision to terminate the Complainant's employment with the Respondent." First, it must be noted that the respondent did not terminate Johnson's employment. What the respondent did was place Johnson's employment application on hold and not continue the hiring process until the court made a determination on his pending arrest charges. The ALJ essentially states that this is what occurred in the second to the last paragraph on page 12 of his decision. However, it is indeed difficult to conclude that Kelly's decision to place Johnson's application on hold was not based on Johnson's arrest record and therefore falls under the Onalaska defense, especially since the evidence shows that Kelly elected to await a court's determination on Johnson's pending charges before it made a hiring decision on Johnson's application for employment. The commission is also not unmindful of the possibility that the respondent had actually hired Johnson but then effectively suspended his employment after learning about his pending criminal charges. In placing Johnson's application for employment on hold the respondent acted on the basis of Johnson's arrest record. This would be a violation of the WFEA, except that Johnson's arrest record is substantially related to the position of an Eligibility Specialist. Also, even assuming that the respondent had hired Johnson but effectively suspended him from employment based on his arrest record there would be no violation of the WFEA because Johnson's arrest record is substantially related to the position of an Eligibility Specialist.

In the final paragraph of his decision, the ALJ comments that "It is noted that the Complainant was subsequently convicted on some of the pending charges, but there is no conviction record allegation before the administrative tribunal in this case." Johnson argues that his subsequent convictions are irrelevant. Johnson's argument is correct, but for the wrong reason. Specifically, as support for his argument, Johnson paraphrases language from the commission's decision in Maline v. Wisconsin Bell (LIRC, 10/30/89), which cites the commission's earlier decision in Shipley v. Town & Country Restaurant (LIRC, 07/14/87). The commission stated the following in Maline:

Even in a case in which the guilt of the person accused is established in the most definitive (and acceptable) way possible - by actual criminal conviction - it will still be held that a discharge of that employee because of their arrest was a violation of the Wisconsin Fair Employment Act. Shipley v. Town and Country Restaurant (LIRC, 7/14/87). This is because there are no exceptions to the illegality of discharging an employee because of arrest record. (Bold text and underlining emphasis in original.)

In Maline, what the commission held was that an employer cannot be found to have not violated the Act's prohibition on arrest record discrimination based on an employee's subsequent conviction when the employer had discharged the employee on the basis of his or her arrest record. In both the Maline and Shipley cases the employers had discharged their employees on the basis of the employees' arrest records, and the question presented was whether that adverse action qualified as an exception under Wis. Stat. § 111.335(1)(b) because of their subsequent convictions. In Shipley, noting that § 111.335(1)(b) provided in pertinent part that "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...", the commission held that because the employer had terminated the employee instead of suspending her, the statutory defense under § 111.335(1)(b) did not exonerate the employer. It was for this reason after citing the Shipley decision in Maline the language "there are no exceptions to the illegality of discharging an employee because of arrest record" appears.

Kelly did not discharge Johnson. What Kelly did was not continue the hiring process by placing Johnson's application on hold (or, alternatively, it hired and then suspended his employment) until the court made a determination on his pending charges. Regardless of what actually occurred, however, there was no violation of the Act because the circumstances of Johnson's pending criminal battery and disorderly charges are substantially related to the circumstances of the job of an Eligibility Specialist. Furthermore, here the ALJ specifically acknowledged that there was no conviction record allegation before him.

With respect to pre-hearing issues following the commission's remand order, Johnson argues that during an October 18, 2006 telephone conference the ALJ granted the parties the opportunity to raise any unresolved discovery issue from the original hearing but then during a November 22, 2006 telephone conference the ALJ denied his right to the same, even though he had followed the ALJ's orders (by putting his discovery request in writing by November 1, 2006) and even though he had proved that his discovery issue was an unresolved discovery issue and not a new discovery issue. Johnson's argument fails.

There was no "unresolved discovery issue" from the original hearing. The discovery issue that Johnson asserts was unresolved during the November 22, 2006 telephone conference involved his March 14, 2005 Second Request for Production of Documents. The respondent submitted a response to this document request by mail dated April 12, 2005. Any dispute that Johnson had with that response by the respondent was waived. The original ALJ advised the parties by letter dated April 4, 2005 (which was 11 days before the original hearing that began on April 15, 2005), that any continued discovery issues were waived because no motion to compel had been filed and because it was too close to the April 15 hearing to address any discovery motion.2(2) Furthermore, on remand the new ALJ reasonably determined that the parties were "going to live with" whatever preparation had been done prior to the first hearing before the original ALJ since the parties had had plenty of time to get ready for the original hearing. Indeed, the original ALJ twice postponed scheduled hearing dates before Johnson's case was ever brought to hearing in order to entertain and attempt to resolve discovery issues between the parties.

Johnson next argues that despite his objection, the ALJ allowed Lanway to testify by telephone. Johnson argues that by doing so, this allowed Lanway to "view and study" all of the documents he was going to question her about, and that Lanway's testimony by telephone made it impossible for the ALJ to observe Lanway for purposes of assessing her demeanor and credibility. Johnson also asserts that there was constant trouble with the phone connection, "which hindered the matter." These arguments also fail. It was not an abuse of discretion for the ALJ to allow Lanway to testify by telephone. Counsel for the respondent had apprised the ALJ that Lanway had not worked for the respondent for more than a year, lived in another state and was beyond the subpoena power of the State of Wisconsin. Further, it's hard to imagine that any exhibit Johnson wanted to question Lanway about had not been known about for some time since this was the second time around for a hearing on Johnson's discrimination complaint. In addition, Johnson has not identified any reason for questioning Lanway's demeanor or credibility. While the transcript does indicate that there was some difficulty with the telephone connection during Lanway's testimony, there is no indication that either the respondent or Johnson was unable to obtain answers to the questions that were asked of Lanway.

Finally, with respect to subpoenaing witness for the hearing, Johnson asserts that when he realized that he needed to have all the witnesses that were identified on his (April 5, 2005) witness list present at the hearing, as requested by the ALJ he submitted a written request for subpoenas on August 31, 2007. Johnson asserts that by letter dated November 26, 2007, however, the ALJ refused to provide him any subpoenas for these witnesses. Johnson asserts that these were witnesses already identified on his witness list and not new witnesses; that affording him the opportunity to subpoena his witnesses would not have caused any "irregular or negative consequences"; that he believes the denial of his right to subpoena his witnesses was improper and an abuse of discretion; and that besides making the ALJ's job easier due to less testimony to review, the only reason he can identify for denying his request for the subpoenas was to hamper his case and improve the success of the respondent's case.

The "witnesses" that Johnson had identified on his April 5, 2005 witness list were: "1) Respondent (and any of its agents or representatives); 2) Lyn Malofsky; 3) Jessica Nyenhuis; 4) Crystal Williams; 5) Hector Colon; and 6) Any witness identified by the Respondent." Of the individuals Johnson identified in his August 31, 2007 letter request to subpoena-these are the same individuals listed on Johnson's April 5, 2005 witness list-Lyn Malofsky is the only witness that Johnson had at the first hearing. Johnson wanted Malofsky, who was his current employer, to testify as a "character witness" for him. The original ALJ did not permit Malofsky to testify because she had no firsthand knowledge of the events involved in the case and because Johnson's "character" was not at issue.

On remand, based upon the ALJ's November 26, 2007 letter denying Johnson's August 31, 2007 request for subpoenas to subpoena the individuals on his witness list, the ALJ apparently felt that it was appropriate to limit the hearing testimony to individuals that had been subpoenaed to testify prior to the date the remand hearing commenced on December 19, 2006. Previously, during the October 18, 2006 telephone conference, Johnson had only indicated a desire to subpoena 3 individuals as witnesses for the remand hearing. They were Nyenhuis, Berger and Ullrich, but the only individual that Johnson attempted to serve with a subpoena to testify at the remand hearing was Ullrich. Ullrich did testify; she testified at the continued remand hearing that was eventually held on January 16, 2008.

Even assuming for purposes of argument that the ALJ erred in not allowing Johnson to subpoena additional witnesses after the commencement of the remand hearing on December 19, 2006, Johnson has not established that this hindered his case while improving the success of the respondent's case. Johnson was not requesting to subpoena either Nyenhuis or Berger on August 31, 2007. However, even if he had been seeking to subpoena Nyenhuis or Berger, or any other individual listed on his April 5, 2005 witness list, Johnson has not explained how the testimony of any of these witnesses would make a difference in the outcome of this case.

cc:
Cedric Johnson
Attorney Eric H. Rumbaugh, Michael, Best & Friedrich

Appealed to Circuit Court.  Affirmed, April 6, 2010.

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(1)( Back ) Apparently, this arrest charge was left open. See Complainant's Exhibit 20, p.3.

(2)( Back ) Even if Johnson was claiming that there were unresolved discovery issues relating to the original ALJ's December 16, 2004 order compelling the respondent to provide certain documents to Johnson, those issues were waived as well pursuant to the original ALJ's April 4, 2005 letter.

uploaded 2009/04/27