CHRISTOPHER LAHEY, Complainant

KOHLER CO, 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 modification:

Page 6 of the administrative law judge's decision and all but the last sentence beginning on page 7 of the administrative law judge's decision are deleted.

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

Dated and mailed October 28, 2011
laheych . rmd : 164 : 5   Conviction record discrimination - "substantial relationship" - "Associate Systems Analyst" position with access software applications containing customer credit card, purchase and banking  info, retail theft convictions

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review the complainant argues that the respondent's witnesses lacked an adequate foundation for testimony regarding the associate systems analyst (ASA) position. The complainant contends that, rather than producing testimony from any of the ten current employees who have worked as or are currently working as ASA's in the IT rotational program, it offered testimony from two employees in its human resources department who lacked firsthand knowledge about the position. The commission agrees that both Ms. Pekarske and Ms. Smith lacked firsthand knowledge about the responsibilities of the job, and it does not find their testimony useful in evaluating whether the circumstances of the job are substantially related to the circumstances of the complainant's conviction record. However, the respondent's third witness, Lorna Kopell, the director of IT security, could competently testify about the matters at issue in this case. Ms. Kopell, while never having worked in the position herself, works with ASA's when they do a rotation through her team and, further, is responsible for monitoring those employees from the standpoint of security access. The commission is satisfied that Ms. Kopell has sufficient familiarity with the ASA job to offer competent testimony about the responsibilities and duties of the position and to provide details about the access an ASA would have to confidential financial information.

The complainant also argues that the respondent did not offer credible evidence to establish that he had a significant opportunity to engage in retail theft as an associate systems analyst. The commission initially notes that this argument mischaracterizes the law: The question is not whether the complainant had a significant opportunity to engage in a crime identical to that for which he was previously convicted -- in this case, retail theft -- but whether the circumstances of the crime and the circumstances of the job are substantially related. See, Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989). The circumstances of the complainant's three prior convictions for retail theft demonstrate an inclination to steal. The question presented is whether those circumstances are substantially related to the circumstances of the ASA job. In arguing they are not, the complainant emphasizes that the position is an entry level one to be carried out with "supervigilant, direct supervision," and that the job carries no authority to write checks, transfer money among bank accounts, or make purchases other than necessary travel expenses while on the road. The complainant further contends that the respondent has significant security measures in place, including log-in requirements, password protections which enable the respondent to track what an employee has been doing on the system, and a strategy to handle data loss and theft within the system that is geared towards fraud detection.

The commission has considered these arguments, but does not find them persuasive. Although ASA's are subject to a high degree of supervision, they are not constantly monitored and have opportunities to access confidential information without the employer's awareness. Moreover, the commission notes that the ASA position is an entry level training position, and that the goal is to move ASA's into permanent positions within approximately one year. There is no reason to presume that the high degree of supervision the respondent provides to trainees would continue indefinitely. With respect to the respondent's security measures, while some of those measures are designed to make it more difficult for an employee to engage in fraud, others appear to be aimed at detecting fraud after the fact. The focus of the statute is not on whether an individual with a criminal record would be easily caught if he were to reoffend in the course of the job, but on whether he would be likely to reoffend in the first place. Here, the evidence establishes that the complainant would have had access to all of the software applications used by the respondent, including those containing customer credit card information and purchase information, as well as confidential employee information including employee banking information. Most significantly, the complainant would have had the ability to print out customer credit card numbers undetected. Such credit card numbers in the hands of one inclined towards theft could pose a significant opportunity for criminal behavior.

The commission agrees with the administrative law judge that the evidence establishes that the circumstances of the complainant's convictions for retail theft were substantially related to the circumstances of the ASA job with the respondent. Accordingly, the dismissal of the complaint is affirmed.

NOTE: The first two pages of the administrative law judge's memorandum opinion are devoted to a discussion of burden shifting and allocations of burdens of proof. However, there is no dispute in this case that the complainant was denied hire because of his conviction record, and the only question is whether the respondent established that the complainant's conviction record was substantially related to the job. Because the burden shifting analysis has no bearing on any issue presented in this case, the commission has deleted that portion of the administrative law judge's memorandum opinion.

cc:
Attorney Robert A. Mich, Jr.
Attorney Jack Pawley

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