VALERIE A MORAN, Complainant
STATE OF WISCONSIN
UNIVERSITY OF WI - MADISON, 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 12 of the administrative law judge's FINDINGS OF FACT the term "the fact" is deleted and the term "her belief" is substituted therefor.
2. Paragraph 22 of the administrative law judge's FINDINGS OF FACT is deleted.
3. Paragraph 2 of the administrative law judge's CONCLUSIONS OF LAW is deleted and the following three paragraphs (numbered as paragraphs 2, 3 and 4) are substituted therefor:
"That the circumstances of the complainant's drug-related convictions are not substantially related to the circumstances of the job of cleanup worker/custodian for the respondent, within the meaning of the Wisconsin Fair Employment Act."
"That the circumstances of the complainant's battery conviction are not substantially related to the circumstances of the job of cleanup worker/custodian for the respondent, within the meaning of the Wisconsin Fair Employment Act."
"That the circumstances of the complainant's conviction for taking and driving a vehicle without consent are substantially related to the circumstances of the job of cleanup worker/custodian for the respondent, within the meaning of the Wisconsin Fair Employment Act."
4. Paragraph 3 of the administrative law judge's CONCLUSIONS OF LAW is renumbered accordingly to paragraph 5.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
September 16, 2013
moranva_rmd . doc : 164 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The commission has modified the administrative law judge's decision to reflect its disagreement with the administrative law judge's conclusion that the complainant's drug-related convictions and battery conviction are substantially related to the job of cleanup worker/custodian. However, because the commission agrees that the complainant's conviction for taking and driving a vehicle without consent is substantially related to the job at hand, the ultimate finding of no discrimination is affirmed.
Substantial relationship test
The Wisconsin Fair Employment Act prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § § 111.321 and 111.322. However, the law contains the following exception:
Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:
1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .
Wis. Stat. § Section 111.335(1)(c)1.
In drafting the substantial relationship exception, the legislature sought to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee, the Wisconsin Supreme Court stated, in relevant part:
This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience.
In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related.
Id. at 823.
The purpose of the 'substantially related' test is to assess whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987).
In deciding whether a particular criminal offense is substantially related to a particular job, the question is whether the circumstances of the employment provide "a greater than usual opportunity for criminal behavior," Moore v. Milwaukee Bd. of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999), or "a particular and significant opportunity for such criminal behavior." Herdahl v. Wal-Mart, ERD Case No. 9500713 (LIRC Feb. 20, 1997).
Relationship between drug-related convictions and the job
The respondent has contended that the complainant's drug convictions are substantially related to the job because of the presence of college students, which the respondent describes as a "vulnerable population" with respect to drug use. On this point, Nancy Graff Schultz, the human resource director for the athletic department, testified that student athletes can be a very vulnerable population because many of them come from backgrounds where drug activity may be prevalent and where "perhaps they would not make it into an institution of higher education like UW-Madison but for their athletic ability." However, this assertion relies on stereotypes and is unsupported by any competent factual evidence in the record. There was no evidence presented to indicate that students in general, or student athletes in particular, are more vulnerable to drug use than the general population. (1)
Nor is there any reason to believe that the job of cleaning up during or after events would provide the complainant with a particular opportunity to supply these individuals with illegal drugs, even assuming such vulnerability was established. The complainant's job did not require her to interact with students, and the complainant testified that it would not have been easy for her to do so. One of the respondent's witnesses, Mark Walters, the director of the classified human resource office, who was not shown to have any firsthand knowledge about the workplace, stated that it was his understanding that students are "around the area" during clean up after events, but agreed that custodians would not have direct conversation with students as part of their jobs. While Walters testified there "may be some situations" where the custodians would be providing "some sort of service" to students, he did not explain what those situations would be. There is no evidence in the record to show what types of interactions, if any, the complainant ever had with students, and Walters' testimony that there might be a situation where this would occur was entirely speculative.
The commission has previously noted that the mere presence of other human beings in the workplace is not sufficient to support a finding of a substantial relationship between a drug-related conviction and a particular job. See, Herdahl v. Wal-Mart Distribution Center, ERD Case No. 9500713 (LIRC Feb. 20, 1997), and Black v. Warner Cable Communications Co. of Milwaukee, ERD Case No. 8551979 (LIRC July 10, 1989). In Black, the commission stated, in relevant part:
Certainly, any such person whose job involved any degree of contact with any other persons could conceivably attempt to sell illegal drugs to them, if they were so inclined. The mere possibility that this could happen because of some contact with other persons, however, seems to the Commission inadequate in the absence of other facts to justify a finding of 'substantial relation.' Such a broad approach could conceivably result in a finding that offenses such as those involved here would be substantially related to virtually all jobs, since virtually all jobs entail some degree of contact with other persons. The overwhelming breadth of this conclusion is in itself a suggestion that it is not what the statute anticipates.
Thus, the fact that the complainant would have occasional contact with students or other workers is not, standing alone, considered to be a circumstance that would foster criminal activity.
Finally, it must be noted that the complainant's workplace was monitored by security cameras and that there were security guards posted in every doorway or opening during events at which students would be present in the building, circumstances not conducive to drug-related activity. See, Robertson v. Family Dollar Stores, ERD Case No. CR200300021 (LIRC Oct. 14, 2005).
Overall, the commission does not believe that the circumstances of the job would provide the complainant with a significant opportunity to reoffend. While the job did not entail much direct supervision, a supervisor was always present and the facility was monitored by security cameras and patrolled by hired security guards. Further, the complainant's work did not involve direct interactions with the public; she worked in the vicinity of people, but her job was primarily to clean bathrooms and floors. While it might have been possible for the complainant to use or sell drugs at the workplace, the circumstances of her employment did not provide a greater than usual opportunity to do so.
For the reasons set forth above, the commission does not believe the evidence supports a finding that there is a substantial relationship between the job and the complainant's drug-related offenses.
Relationship between battery conviction and the job
The burden of proving that a statutory exception applies is on the proponent of the exception. Robertson v. Family Dollar Stores, ERD Case No. CR200300021 (LIRC Oct. 14, 2005), citing Chicago & Northwestern R.R. v. LIRC, 91 Wis. 2d 462, 467, 283 N.W. 2d 603 (Ct. App. 1979). The respondent has not met its burden with regard to the complainant's conviction for misdemeanor battery. The respondent testified that it considered the battery conviction to be substantially related to the job, but did not explain why it believed this to be the case. The mere assertion that a particular conviction is related to a job, without any explanation as to how it might be related is insufficient to satisfy the affirmative defense, and no evidence was presented to establish that such a relationship exists.
The commission has previously held that the central element of the offense of misdemeanor battery is the intentional infliction of bodily harm on another person and that the underlying traits evidenced through such conduct might include "disregard for the health and safety of others; inability to control anger, frustration, or other emotions; and use of violence to achieve power or to solve problems." McClain v. Favorite Nurses, ERD Case No. 200302482 (LIRC April 27, 2005).
The commission has found those traits to be substantially related to the duties and responsibilities of a police officer (Mary Robinson v. City of Milwaukee PFC, ERD Case No. 200704546 (LIRC Aug. 27, 2010)), a nurse who was responsible for delivering direct care to hospital patients, many of whom were combative or disoriented (McClain, supra), and a CNA in a nursing home (Williams v. Havenwood Health & Rehabilitation Center, ERD Case No. 200202280 (LIRC March 11, 2005)). All of the jobs in question entail working in a position of trust with vulnerable people, and all are jobs in which patience and calm are necessary attributes. However, the complainant in this case did not work directly with people; her job was primarily to clean bathrooms and floors. There is no reason to presume that the job of custodian would pose particular opportunities for criminality for a person with anger management issues or a tendency to solve problems through violence. As in the case of the drug-related convictions, the mere presence of other human beings in the workplace is not enough to support a finding of a substantial relationship.
The commission therefore does not believe the evidence warrants a finding that there is a substantial relationship between the job and the complainant's conviction for misdemeanor battery.
Relationship between conviction for taking and driving a vehicle without consent and the job
In 1997 the complainant was convicted of a violation of Wis. Stat. § 943.23(2), "taking and driving a vehicle without consent," for which she served two years in jail.
Wis. Stat. § 943.23(2) provides:
Except as provided in sub. (3m), whoever intentionally takes and drives any vehicle without the consent of the owner is guilty of a Class H felony.
Wis. Stat. § 943.23(3m) provides:
It is an affirmative defense to a prosecution for a violation of sub. (2) or (3) if the defendant abandoned the vehicle without damage within 24 hours after the vehicle was taken from the possession of the owner. An affirmative defense under this subsection mitigates the offense to a Class A misdemeanor. A defendant who raises this affirmative defense has the burden of proving the defense by a preponderance of the evidence.
Wisconsin Stat. § 943.23(2), which falls under the subchapter entitled "Misappropriation," is the Wisconsin car theft statute. As indicated above, an affirmative defense is available if the individual can establish that he or she did not intend to permanently deprive the owner of possession of the vehicle. However, absent such a defense, a conviction for a violation of the taking and driving statute demonstrates a propensity to engage in the theft of another's property.
In her petition the complainant argues that there is no substantial relationship between the conviction and the job because the job did not require her to drive a vehicle. However, in applying the substantial relationship test, it is not the specific type of item stolen that matters, but rather the character traits revealed by having committed a crime of theft. The relevant consideration is the fact that an individual has demonstrated untrustworthiness and a willingness to misappropriate an item belonging to someone else. See, Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989).
In this case, the complainant had access to a supply closet containing cleaning supplies, paper towels and the like. More importantly, she would sometimes clean the offices of the coaches and their secretaries, as well as the weight rooms that the athletes use, which have lounges associated with them. The evidence indicates that both the coaches' offices and the students' lounges contain expensive equipment, including monitors, and the respondent contended that monitors valued at as much as $6,000 have been stolen from both the Kohl Center and Camp Randall. The respondent's witnesses also testified that people have repeatedly reported items missing from their desks, including money and an expensive watch and that, because some of the offices are out of the way, they did not always discover the missing items until several days later, too late to determine who was responsible for the theft.
Unsupervised access to private offices and lounges containing expensive equipment and personal items could pose a significant opportunity for criminal behavior for someone already inclined to theft. Although the complainant had worked for the respondent for three years without incident, a circumstance which the respondent could have chosen to consider in deciding whether or not to rehire her, the commission agrees with the administrative law judge's conclusion that the conviction for taking and driving a vehicle without consent is substantially related to the job at issue and, therefore, with her ultimate conclusion that the respondent did not discriminate against the complainant when it refused to employ her because of her conviction record.
cc:
Attorney Paul Burant
Attorney Brian D. Vaughan
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