ΜΑΤΤΗΕW L ΗΟЅΚΙΝЅ, Complainant

COUNTY OF JUNEAU, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In the first sentence of paragraph 11 of the administrative law judge's FINDINGS OF FACT the date "September 30, 2008," is deleted and the date "September 30, 2003," is substituted therefor.

2. In the last sentence of paragraph 11 of the administrative law judge's FINDINGS OF FACT the date "October 1, 2008" is deleted and the date "October 1, 2003" is substituted therefor.

3. The second and third sentences in paragraph 17 of the administrative law judge's FINDINGS OF FACT are deleted and the following sentence is substituted therefor:

"The draft press release indicated that as of September 26, 2003, Ηоѕkіnѕ was no longer working for Juneau County."

4. In the fourth sentence of paragraph 17 of the administrative law judge's FINDINGS OF FACT the date "September 26, 2008" is deleted, and the date "September 26, 2003" is substituted therefor.

5. In the first sentence of the first indented paragraph in paragraph 19 of the administrative law judge's FINDINGS OF FACT, the date "September 26, 2003" is rewritten as "September 26 [sic], 2003."

Dated and mailed February 26, 2010
һоѕkіmа . rmd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In his petition for commission review the complainant argues, without benefit of citations to the record, that many of the administrative law judge's factual findings are in error. However, the commission's review of the record reveals no material errors in the administrative law judge's decision. The commission has modified the appeal tribunal decision to correct those minor errors which were apparent to the commission based upon its review, but otherwise defers to the administrative law judge's factual findings.

The issue presented in this case is whether the complainant's discharge was based on his arrest record or whether it was, as the respondent alleges, because it learned through its independent investigation that the complainant had violated its Use Of Force policy by firing warning shots. The administrative law judge accepted the respondent's explanation for its actions, and the commission agrees.

While it is unlawful to discharge an employee because of the fact of the employee's arrest, an employer's decision is not because of the arrest when it is motivated by the employer's belief that the employee has, in fact, engaged in certain unacceptable conduct, and when that belief arises from some source other than the mere fact of the arrest. City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984). Here, the record establishes that, after learning of the complainant's arrest, the respondent conducted an investigation during which the complainant admitted to having fired warning shots. While the complainant describes this as "cursory questioning," which he contends was inadequate to avoid liability under City of Onalaska, the commission has held that City of Onalaska requires only that an employer question the employee to ascertain whether he has engaged in the conduct. Mielke v. Orkin Exterminator Co. (LIRC, April 11, 1988). That is exactly what occurred here. The complainant's written statement, together with his responses to the respondent's questions during the Garrity hearing, clearly constituted a source of information indicating he engaged in unacceptable conduct that was separate and apart from the mere fact of the arrest.

The complainant argues strenuously that the respondent did not really care about his firing the warning shots and that this explanation for its actions is "ludicrous." The commission disagrees. The respondent's Use Of Force Policy specifically and unambiguously prohibits the firing of warning shots. The record contains absolutely no evidence to suggest that the respondent did not take its own policy seriously or that other employees have been permitted to fire warning shots without being discharged. Moreover, the complainant himself testified that, during the Garrity hearing, he was immediately asked about the warning shots and, further, that when he was notified that same day that the respondent was going to move to terminate his employment, he was told it was because of having fired warning shots. Thus, the complainant's own testimony supports a conclusion that the respondent was genuinely concerned about the warning shots and that this was not simply an after-the-fact pretext for an unlawful discharge.

In advancing his view that the discharge was not really because of a violation of the respondent's Use Of Force policy, the complainant asserts that he interpreted the policy as allowing him discretion to fire warning shots, that he did not think the policy applied to him while he was off duty and in a different county, and that the prohibition against warning shots contained in the policy was wrong. However, even if the complainant had a good-faith belief that the policy was ill-advised and/or that he was permitted to act as he did, it is the respondent's motivations that matter, not his. The trier-of-fact need only determine that the employer in good faith believed that the alleged non-discriminatory reasons for taking a particular employment action were true and that the asserted reasons were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers (LIRC, Dec. 18, 1996); Stichmann v. Valley Health Care Center (LIRC, June 14, 2005); Ford v. Lynn's Hallmark, Inc. (LIRC, June 27, 2005). In this case, there is no reason to think that the respondent did not genuinely believe the complainant had violated its policy and that this disqualified the complainant, who was still within his probationary period, from working for the respondent as a jail lieutenant.

Finally, and notwithstanding the fact that the complainant has consistently asserted that he was discharged for "one and only one reason," (see complainant's Post-Hearing Brief, p. 1), the commission has considered whether the respondent's concerns about negative publicity stemming from the complainant's arrest may have provided a second motive for the discharge such that a "mixed motive" analysis would apply. However, the commission is unpersuaded this was the case. While it is clear from the record that Sheriff Oleson was concerned about negative publicity (and the commission agrees with the administrative law judge that this was the true reason for his erroneous use of the September 26 date in the draft press release) the commission nonetheless finds credible Oleson's testimony that these concerns did not drive his actions. There is no reason to assume that the complainant would have been discharged in the absence of evidence that he acted in violation of the respondent's policies, and the commission believes that the respondent's concerns about negative publicity, to the extent they entered into the decision at all, were not a significant or determining factor in the discharge. See, Paxton v. Aurora Health Care Co. (LIRC, Oct. 21, 1993) (there is a distinction between a motivation which is "a factor" in a decision, and one which is "a determining factor").

Under all the facts and circumstances, the commission agrees with the administrative law judge that the complainant's discharge was not in violation of the Wisconsin Fair Employment Act. Accordingly, the administrative law judge's decision is affirmed.

cc:
Attorney James G. Birnbaum
Attorney Michele M. Ford

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