ROBERT J KAMMERS, Complainant

KRAFT FOODS, 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. The first and second pages of the administrative law judge's Memorandum Opinion (pages 8 and 9 of the decision) are deleted.

2. The portion of the administrative law judge's Memorandum Opinion beginning with the third full paragraph on page 10 of the decision (starting with the words "In County of Milwaukee v. LIRC") through the first full paragraph beginning on page 16 of the decision (ending with the phrase "engage in criminal conduct") is deleted.

3. Paragraph 3 of the administrative law judge's ORDER is deleted and the following substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

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

Dated and mailed August 11, 2011
kammero . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

The Wisconsin Fair Employment Act (hereinafter "Act") makes it unlawful to engage in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § 111.321. The Act defines an "arrest record" as follows:

111.32 Definitions.

(1) "Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

The Act provides only one exception to the injunction against discriminating against an individual with an arrest record; that is, it is not 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. § 111.335(1)(b). However, where, as here, the complainant was discharged based upon his arrest record, the substantial relationship defense is unavailable. It is unlawful to discharge an employee based upon an arrest record, whether or not the circumstances of the charge are related to the circumstances of the job.

The administrative law judge found that the complainant was unlawfully discharged based on his arrest record, but that he would have been discharged nonetheless based on the fact that his driver's license was suspended. Concluding that there was a "mixed motive" for the discharge, the administrative law judge ordered a limited remedy that did not include reinstatement and back pay. See, Hoell v. LIRC, 186 Wis. 2d 603 (Ct. App. 1994). Only the complainant has appealed the decision, and the respondent has waived any argument that the discharge was not, at least in part, based upon the complainant's arrest.

In his petition for commission review the complainant argues that the respondent's defense it discharged him, in part, because his license was suspended, is a red herring which fails to acknowledge or accept the reality of the occupational license. The complainant contends that he had no idea his license had been suspended and that it is ridiculous to suggest the respondent could discharge him before he even realized his license had been suspended. This argument is without merit. The complainant's driver's license had been suspended at the time of the discharge, and his contention that he was unaware of this is simply not credible. At the discharge meeting the respondent showed the complainant the Motor Vehicle Record, which indicated that his license was suspended on October 3, 2005, and explained to him that the license suspension was one of the reasons for the discharge. Consequently, the commission sees no reason to believe the complainant was unaware that he lacked a valid driver's license. Further, even if the commission were to conclude that the complainant was unaware of the license suspension, the fact remains that the respondent knew about it, and it is the respondent's motivations that are at issue in a discrimination case. The respondent was aware that the complainant lacked a valid driver's license and could legitimately act on that knowledge, whether or not the complainant understood that his license had been suspended.

The complainant also maintains that he qualified for an occupational license and could have easily obtained one, and that the respondent cannot make the argument that he did not have a valid license when he was eligible for an occupational one. This argument is also lacking in merit. The complainant did not tell the respondent he could get an occupational license, and there is no evidence that the respondent knew this was a possibility. The individual who made the discharge decision, Theresa Konieczny, the associate director of human resources, testified that she did not have any knowledge of what an occupational license was, and it was not established that anyone else involved with the discharge was aware of the option. Had the complainant told the respondent he could get an occupational license, and had the respondent nonetheless insisted on terminating the employment relationship on the ground that the complainant lacked a valid driver's license, an argument might be made that the respondent's stated reason for discharge was a pretext. However, given that the respondent has a policy requiring a valid driver's license for employees whose jobs involve driving, the fact that the complainant no longer had a valid driver's license, and said nothing to suggest he could get one, constituted a legitimate, non-discriminatory reason to terminate the employment relationship which the complainant has not shown to be a pretext for discrimination.

Based on all the evidence, the commission agrees with the administrative law judge that the complainant was discharged both because of his arrest record and for a legitimate reason -- his lack of a valid driver's license. He is, therefore, entitled to the limited remedies provided for in the administrative law judge's decision, but not to reinstatement or back pay. The commission has modified the memorandum opinion to delete legal references that are extraneous to this decision. As modified, the administrative law judge's decision is affirmed.

cc:
Attorney Carol Dittmar
Attorney Theresa Andre

Appealed to Circuit Court.  Affirmed, June 15, 2012.

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