JULIE A RASE, Complainant

INTERIM HEALTH CARE, 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 makes the following:

1. Interim Health Care (IHC) employs individuals to perform services as personal care workers. At the time of the events giving rise to these proceedings Jennifer Juntunen and Krista Kocha were IHC's human resources managers.

2.  IHC employed Julie A. Rase as a personal care worker from May 27, 2008 until February 4, 2009. Rase's duties included assisting elderly patients with their basic living needs.

3. Rase completed an application on or about May 23, 2008. As part of the application process she submitted a background information disclosure form in which she denied having any criminal charges pending against her.

4. On or about April 21, 2008 Rase was interviewed by a police officer regarding an allegation that she had physically abused a child. Following the interview the officer wrote a report requesting that the matter be reviewed by the district attorney's office for possible charging.

5. On June 13, 2008 Rase was served with a summons and complaint charging her with the crimes of physical abuse of a child and disorderly conduct.

6. At or around the time of Rase's hiring, IHC obtained a background report on Rase that did not state she had been charged with these crimes.

7. In January 2009 someone called IHC and expressed a concern about Rase working as a personal care worker because she had been charged with child abuse and driving while intoxicated.

8. Juntunen and Koch reviewed the earlier background report, and, finding no such charges, took no other action in response to the call.

9. A few weeks later IHC received notice from its corporate office that it had received a similar report about Rase. The corporate office directed IHC to suspend Rase's employment and investigate the matter.

10. Juntunen and Koch asked Rase if they would find anything in the public record relating to charges of child abuse against her, and Rase said they would. They then contacted the court where the charges were filed and received a copy of the police report that was written following the interview of Rase on April 21, 2008.

11. Based on their reading of the police report, Juntunen and Koch believed that at the time of Rase's application for employment criminal charges against her were, to their understanding, pending, and they concluded that Rase was not honest when she indicated in her background information disclosure form that she did not have a pending criminal charge.

12. Koch, Juntunen and the owner of IHC together decided to terminate Rase's employment. The decision was based on the belief that Rase was dishonest when she denied that she had any pending criminal charges against her at the time of her hiring, and on the belief that the charge of child abuse made her unsuitable for the job of caring for the elderly.

13. IHC would have terminated Rase's employment based on its belief that she was dishonest, even in the absence of the belief that the charge of child abuse made her unsuitable for the job.

Based upon the above FINDINGS OF FACT the commission hereby makes the following:

1. Interim Health Care (IHC) was an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).

2. Julie A. Rase was a member of a protected class within the meaning of the WFEA in that she had an arrest record.

3. Rase has shown by a preponderance of the evidence that IHC terminated her employment in part because of its belief that the charge against her of child abuse made her unsuitable for employment, which was in violation of the WFEA

4. The evidence also showed that IHC terminated Rase's employment in part because of its belief that she was dishonest when she denied that she had any pending criminal charges against her at the time she applied for employment, which was not in violation of the WFEA.

5. IHC would have terminated Rase's employment even in the absence of the belief that the charge of child abuse made her unsuitable for employment, therefore her remedy is limited to a finding of discrimination and an order to cease and desist discriminating. Hoell v. LIRC, 186 Wis.2d 234 (Ct. App. 1994).

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:

1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.

2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final 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).

3. Cease and desist. The Respondent shall cease and desist from discriminating against the complainant on the basis of arrest record.

4. Compliance Report. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:

Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708

or faxed to (608) 267-4409

or emailed to lirc@dwd.wisconsin.gov

The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.

Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.

Dated and mailed July 16, 2013
rasejulrrr . doc : 107 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

The fact that criminal charges against the complainant had not been filed at the time she applied for employment has not been disputed. She did not receive a summons and complaint of physical abuse of a child until two and one-half weeks after she was hired. The complainant argues in her petition that the respondent wrongly assumed that she knew she was being charged at the time of her hiring; she maintains that she did not know.

An employer's liability under the WFEA for taking an action adverse to an employee turns on whether the employer's action was based on a discriminatory motivation. If a respondent-employer articulates a nondiscriminatory reason for its action, the complainant bears the burden of showing that the articulated reason is a pretext for impermissible discrimination. The focus of a pretext inquiry is on whether the employer's stated reason for an action is honest, not whether it is accurate, wise, or well-considered:

...if the respondent genuinely believed its asserted nondiscriminatory reason to be true, even if it was mistaken, the respondent cannot be found to have had discriminatory intent. Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008). As noted in Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001), citing Stewart v. Henderson, 207 F.3d 374 (7th Cir. 2000), courts do not sit as a superpersonnel department to second guess an employer's business decision.

Thobaben v. Waupaca Sheriff's Department, ERD Case No. 200602483 (LIRC Dec. 23, 2011).

On a number of occasions, the commission has found that an employer's termination or non-hiring of an individual based on a good faith belief that the individual lied about his or her conviction record was not a violation of the WFEA, even when that good faith belief was mistaken:

Even if the complainant had no further crimes on his record [than the ones he reported], the critical question is whether the respondent believed he did. See, Moncrief v. Gardner Baking (LIRC, July 1, 1992) (the question of whether an employer's asserted nondiscriminatory reason is true can be considered irrelevant if it appears that the employer genuinely believed it to be true). Thus, if the respondent genuinely believed that the complainant had concealed his criminal convictions, this could provide a legitimate nondiscriminatory reason for the complainant's discharge.

Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002). To the same effect, see Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002) ("It matters not whether Miles actually falsely stated that he had no conviction record on his employment application. Miles cannot prevail if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial or even baseless. [citation omitted]. The record provides no reason to believe that [the employer] did not have a good-faith belief that Miles had a conviction record."); and Bonds v. Roundy's Supermarkets, Inc., ERD Case No. 200902091 (LIRC Sep. 30, 2011) ("...even if it could be found that the complainant did not deliberately lie on her application, the fact that the respondent genuinely believed she had done so provided a legitimate nondiscriminatory reason for its refusal to hire her.").

Here, the question is whether the respondent was insincere in asserting the belief that the complainant had falsified her application. The respondent's belief was based entirely on the HR managers' review of the police report, in particular, the statements in the report that the officer requested the district attorney to review the report for charging.

Both of the respondent's two HR managers, Juntunen and Kocha, testified that they believed charges against the complainant were pending at the time of hiring. The key in deciding whether they were acting in good faith comes down to what they believed a pending charge was. The term is not defined in the WFEA. It appears from the testimony of the HR managers that they considered the complainant's charge to be pending in the sense that it was either under deliberation or on the way. Kocha testified that she interpreted the April 2008 police report as indicating that the matter was "being sent for charges." Juntunen, in explaining her belief that charges were pending, equated the term pending to being "up in the air."

Although the more reasonable interpretation of the term pending is "filed in court but not yet decided," the respondent's interpretation is not irrational. The definition of "pending" in Webster's New College Dictionary, third ed., states:

1. Awaiting action, confirmation, or decision.
2. Impending: imminent.

Because the definition of the term allows for the managers' interpretation, it cannot be concluded that it was in bad faith on its face. Furthermore, the complainant failed to present any specific evidence challenging the HR managers' assertion that they believed charges were pending at the time the complainant was hired. The commission therefore accepts the respondent's assertion that it was motivated by a good-faith belief that the complainant had not been honest in denying that charges were pending.

Nevertheless, the commission has reviewed the evidence in its entirety, and has concluded that the respondent was also partially motivated to terminate the complainant's employment because of the nature of the charge of child abuse filed against the complainant. At hearing, the complainant testified that when she was discharged she was told by Juntunen, one of the respondent's decision-makers, that it was because of the nature of the charges against her and the nature of her job, taking care of elderly people. Juntunen herself supported this testimony in part, by testifying that the reason for the complainant's termination was "because of her dishonesty on her application and her background check." It is not permitted under the WFEA to terminate an individual's employment on the basis of an arrest record, even if that record includes a pending criminal charge. Nunn v. Dollar General, ERD Case No. 200402731 (LIRC March 14, 2008). An exception allows suspension of an employee when the employer shows that the circumstances of the pending charge are substantially related to the circumstances of the individual's job, but it does not allow termination. Wis. Stat. § 111.335(1)(b).

When an employer has terminated an individual's employment in part due to a prohibited discriminatory reason and in part due to a legitimate nondiscriminatory reason, liability attaches to the employer under the WFEA. The remedy, however, depends on whether the termination would have taken place in the absence of the impermissible factor. If the employer would have made the same decision in the absence of the impermissible discriminatory reason, the complainant's remedy is limited to a cease and desist order and attorney's fees. Hoell v. LIRC, 186 Wis.2d 234 (Ct. App. 1994). The commission concludes that the respondent here would have terminated the complainant's employment based solely on its perception that she had been dishonest about whether charges were pending against her. Kocha offered more detailed information than Juntunen did about the respondent's process of coming to a decision to terminate the complainant, and asserted that the group's opinion was that the complainant's employment should be terminated because of the perception that she had been dishonest with them when they hired her. There is no substantial reason in the record to doubt this explanation of the respondent's primary motive for discharging the complainant. The remedy, then, since the complainant was not represented by an attorney, is limited to a cease and desist order.

NOTE: The commission did not consult with the administrative law judge about his impressions of the witnesses' demeanor and credibility. The commission has changed the ALJ's decision not because it disagrees with the ALJ's assessment of the witnesses' credibility, particularly that of Juntunen, but because it has taken account of certain undisputed testimony of Rase and Juntunen pointing to the conclusion that the complainant's arrest record was a factor in the respondent's decision.

cc:
ATTORNEY JULIE REYES
SEYFARTH SHAW LLC

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