PAUL H MONPAS, Complainant
MRS MACHINING CO INC, 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, except that it makes the following modifications:
1. The following paragraph is inserted after paragraph 5 of the administrative law judge's ORDER:
"That the respondent shall pay to the complainant reasonable attorney's fees and expenses associated with responding to the respondent's petition for commission review, in the amount of $2,537.44. A check in that amount shall be made jointly payable to the complainant and Attorney Carol Dittmar and delivered to Attorney Dittmar's law office."
2. Paragraph 6 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:
"That 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. § § 111.395.395, 103.005(11) and (12)."
3. The administrative law judge's Memorandum Opinion is deleted.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed April 8, 2013
monpapa . rmd : 107 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The respondent's central argument is that the decision-maker, Roger Guse, could not have been motivated by the complainant's conviction or his being sentenced to jail, because the complainant had two prior convictions for DUI when Guse hired him, Guse was willing to maintain his employment when he got a third DUI conviction and jail sentence during his employment, did not fire him for several months after he got a fourth DUI conviction, and had kept other employees with conviction records.
Respondent argues that these facts defeat the complainant's case "as a matter of law," and cites two cases in support, Ynocencio v. Chrysler Corp., ERD Case No. 199801383 (LIRC Aug. 11, 2000), and Greenwood v. Ross Furniture, ERC Case No. CR200001517 (LIRC Dec. 30, 2004). In Ynocencio, the commission was persuaded that the employer did not take action against the complainant because of his drug conviction because of evidence that it rehired employees who had been convicted of drug offenses. In Greenwood, the commission determined that the employer's failure to recall the complainant to work was not because of his conviction record, considering that the employer had recently hired an applicant knowing that he had a recent DUI conviction, and had maintained another employee who was on Huber release privileges. Neither case declares that an employer who has a past record of not discriminating against others in a protected class is immune as a matter of law from a discrimination complaint-and such a reading would conflict with the purpose of the law "to protect by law the rights of all individuals" to be free from discrimination in employment. Wis. Stat. § 111.31(2) (emphasis added). The proper interpretation of Ynocencio and Greenwood is that evidence of an employer's favorable treatment of employees in the protected class may be relevant evidence to rebut a claim of discrimination by showing a lack of discriminatory intent by the employer, but would not operate as a bar to the claim. (1)
The respondent's evidence of its prior treatment of the complainant and its treatment of other employees with conviction records is somewhat supportive of a conclusion that Guse did not have discriminatory animus, but it is not as strong as it appears on the surface. First, there was no evidence that when Guse hired the complainant he was aware of the complainant's two prior DUI convictions, so he cannot point to his hiring decision as evidence of a lack of animus. Second, even though the complainant's fourth conviction happened in August 2007, there is no evidence that Guse knew of his conviction until late January of 2008. Guse testified that he understood in September or October 2007 that the complainant got "picked up" for drunk driving, but that the complainant had an attorney and that everything would be "fixed up." Guse did not understand differently until late January or early February, 2008, when he found out the complainant was going to jail. So, Guse cannot point to the complainant's continued employment in the five-month gap between his conviction and sentencing as evidence of a lack of animus.
Third, Guse's evidence of treatment of others with conviction records is vague. Guse was aware that other employees had conviction records, including convictions for drinking while driving, but it is not known how old these other DUI convictions were, and it is not known if, like the complainant, the other employees had multiple DUI convictions, or had to serve jail sentences because of these convictions. There was evidence that Guse had allowed other employees with conviction records to use Huber privileges, but it is not known when that happened or for what convictions. Just as a complainant's evidence of favorable treatment of others outside a protected class is more persuasive of discriminatory animus when the favored employees are similarly situated to the complainant, the employer's evidence of favorable treatment of others in the protected class is more persuasive of a lack of discriminatory intent when the favored employees are similarly situated to the complainant. In Ynocencio, for example, the fact that the employer had reinstated other employees after serving sentences for convictions for selling drugs, including heroin, was strong support for the inference that it did not hold the complainant's conviction for selling heroin against him.
Fourth, because conviction records are subject to change, an employer's evidence of past favorable treatment of an employee with a conviction record is vulnerable to the argument that the employer discriminated because of a change in conviction record, despite prior favorable treatment. Each addition to an employee's conviction record gives an employer a new opportunity to make a decision that this time the employee has crossed a line, and deserves to be fired. An employer, in other words, can develop a discriminatory attitude based on what it views as the egregiousness of the employee's conviction record. So, here, Guse's tolerance of the complainant's earlier conviction and sentencing does not necessarily protect Guse from the conclusion that, with the complainant's new sentencing for another DUI, Guse had "had enough."
The respondent's prior treatment of the complainant, then, does not create a strong inference of a lack of animus. That inference is outweighed by the complainant's evidence that Guse fired the complainant because of his sentencing in February 2008. The case for finding causation is based on suspicious timing and on direct evidence of animus related to the complainant's going to jail. As to timing, as noted above, Guse discovered in late January or early February 2008 that the complainant was going to jail for another DUI. No significant event occurred from the time of this discovery until Guse discharged the complainant just a few days later, on February 4, 2008.
The direct evidence came from Ms. Monpas, the complainant's wife, who testified that she spoke to Guse on February 4th, the day of the termination, and asked him why her husband was terminated. His response was that he was not in the habit of hiring somebody out of jail, and that he had given him one chance. The latter statement refers to the fact that the complainant was convicted of DUI and served time in jail at an earlier point in his employment, but Guse allowed him to maintain his job through the Huber program at that time. Guse's statement, directly in answer to the question of why he fired the complainant, made at a time nearly contemporaneous with the act of firing him, is strong evidence of what was in Guse's mind at the time. From the statement, it is reasonable to interpret Guse's firing of the complainant as being motivated by the complainant's having been sentenced to jail for a second time during his employment.
Guse did little to dispel that interpretation in his own testimony. First, he did not dispute Ms. Monpas' testimony. Second, he was asked more than once why he fired the complainant, and his answers were evasive, or failed to clearly articulate a reason that was independent of the Complainant's conviction or his jailing. (2) Guse had several chances to say that the complainant's conviction record had nothing to do with his decision to fire Guse. He never made that statement. To the extent Guse pointed to other reasons for his decision, he was not credible. The other reasons he offered were:
1. The attendance issue
Guse's offer of the complainant's poor attendance as a reason for discharge was not persuasive. It came out only after a leading question by his attorney, an objection to which was sustained, and sounded like an afterthought (Q: "Were there any other reasons?" A: Well, and the attendance, not showing up for work, you know. (inaudible)."). In addition, the facts surrounding the complainant's last attendance violation undercut it as a reason for discharge. While it is true that the complainant did not have a good attendance record, as of February 4, 2008 he was not yet at the point of being discharged for poor attendance. On January 30, 2008 the respondent's assistant general manager, Chad Breaker, issued a written warning for the complainant's absence from work that day, noting that his next offense would result in termination. He did not have another offense. He was absent on January 31, February 1 and 2, but those absences were for approved vacation. The respondent's attorney argues that Guse "over-rode" Breaker and decided to fire the complainant for poor attendance despite the wording of the warning notice. This argument has no support in the evidence. Guse was not even aware of Breaker's warning notice for January 30th. The suggestion that he "over-rode" it, in the sense of consciously deciding to countermand it is nowhere in the record. In any case, Guse himself never offers the complainant's attendance as his primary reason for discharging him.
2. Poor judgment/bad decisions
This is the primary reason offered by Guse for firing the complainant. The problem with it, however, is that it doesn't stand as a non-discriminatory reason separate from the complainant's conviction record. (See excerpt of Transcript at p. 161, ftnt. 2 above). The respondent's reference in its argument to the complainant's prior convictions for DUI as examples of his poor judgment serves to strengthen the impression that poor judgment is a substitute for getting convicted of DUI.
The respondent raises two aspects of poor judgment that are separate from the complainant's conviction record. First, there is the fact that the complainant did not ask Guse in February 2008 if he would approve of his going to work through Huber again, as he had done in the past. Instead, the complainant picked up the paper work from the respondent's controller, who willingly handed it over, and he delivered it to the jail, figuring that the controller's having given him the paper work amounted to approval. The respondent's attorney argues strenuously that the complainant's failure to ask Guse for permission showed bad judgment and a lack of respect. The respondent, however, presented absolutely no evidence that Guse gave any consideration at all to the fact that the complainant did not personally ask him if he would approve of his going on Huber. The entire argument is a product of the respondent's attorney's mind, divorced from the record.
The other aspect of poor judgment is the evidence that the complainant violated the law by driving to and/or from work without a valid license. Clearly, this was poor judgment. The problem is that it was not causally related to the discharge. There was one occasion during the employee's prior jail sentence, when Guse caught the employee driving to work from jail, and Guse essentially revoked the complainant's permission to come to work for the remaining period of his sentence, which apparently was three or four days. Then he returned to work. That particular episode was closed at that point, and cannot credibly serve as Guse's reason to discharge the complainant a year or so later. Guse did testify, however, to "at least" three more occasions, in the fall of 2007, when he believed the complainant drove his car to work while his license was suspended. But he took no action against the complainant at that time, and when asked why he took no action, he answered: "Because that's his business if he wants to drive." Given that blas‚ attitude, it is not believable that when the complainant started his jail term in February 2008, Guse suddenly became so concerned about the possibility of his driving without a license that he was willing to terminate his employment.
3. The employer's Huber responsibilities
The respondent argues that it was not obliged to participate in the Huber program for the complainant by way of an accommodation, citing Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998). It may be that this case is distinguishable from Knight on the issue of whether the employer was being asked to take "affirmative steps" to accommodate an individual with a conviction, (3) but it is unnecessary to consider that question here unless there is evidence that Guse was actually motivated to terminate the complainant because of the employer's responsibilities in connection with the Huber program. (4) There is no evidence that he was so motivated. Guse offered no testimony that he felt put upon by the requirements of the Huber program, or that he even knew what they were. When he called the jail concerning the complainant, it was not to say he did not want to participate in Huber, it was to say that the complainant no longer had a job. The responsibilities of the Huber program did not figure into his thought process. The fact that Guse allowed other employees in the past to come to work through the Huber program works against him here, since it indicates that he did not object in general to participating in Huber.
Error of Law
Finally, the respondent makes the argument that the ALJ misapplied the law by "leap-frogging" over the issue of causation, and focusing on whether there was a substantial relationship between the complainant's conviction record and the duties of his job. In making this argument the respondent's attorney unequivocally states that the respondent has not raised a substantial relationship defense. It is true that the respondent did not raise a substantial relationship defense in its Answer, and made no mention of it in the hearing. The commission does not consider a substantial relationship issue to be in the case.
The commission agrees with the respondent that the administrative law judge devoted several pages of his memorandum opinion to a review of substantial relationship cases. Nevertheless, the commission does not accept the respondent's claim that the administrative law judge skipped the issue of causation. He made an ultimate finding of fact (No. 21) that the respondent discriminated on the basis of conviction record, and a similarly worded conclusion of law (No. 3). The first three pages of his memorandum recited excerpts from case law on the issue of causation, not substantial relationship, and at page 16, the administrative law judge addressed causation in his memorandum opinion. He did not "leap-frog" the issue.
NOTE: The commission has deleted the administrative law judge's memorandum opinion and replaced it with its own in order to clarify why the findings of fact support a conclusion of termination because of conviction record.
cc:
Attorney Carol Dittmar
Attorney Terry Moore
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