BILLY J DECKER, Complainant

BIEWER WISCONSIN SAWMILL INC, 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.

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

Dated and mailed September 16, 2013
deckebi_rsd . doc : 164 : 

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

An "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. Wis. Stat. § 111.32(1). The complainant, having been questioned by the Price County Sheriff's Department, has an "arrest record," within the meaning of the statute. The issue presented in this case is whether the complainant's arrest record was a motivating factor in the termination of his employment. The administrative law judge held it was not, and the commission agrees.

While it is unlawful to discharge an employee because of the fact of the employee's arrest [record], an employer's decision is not because of the arrest [record] when it is motivated by the employer's belief that the employee has, in fact, engaged in certain unacceptable conduct, and when that belief arises from some source other than the mere fact of the arrest [record.] City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984). In this case, the respondent disciplined the complainant and put him on a six-month probationary period based upon allegations by two female employees that he had exposed himself to them in the workplace. The respondent was not convinced that the complainant had engaged in the behavior alleged and did not want to terminate the employment relationship at that point. However, the respondent advised the complainant that "any additional situations" would result in the termination of his employment. Shortly thereafter, two additional female employees came forward to report similar conduct. The respondent therefore decided to terminate the employment relationship. It did so, not because of the complainant's arrest record, but because it believed the complainant had engaged in sexual harassment at the workplace.

In his petition for commission review the complainant argues that he provided direct evidence establishing that the termination was based on his arrest record. Specifically, the complainant points to his own testimony that Craig Smith, the respondent's plant manager, told him he was being discharged because charges were going to be filed against him. The complainant maintains that, because Smith did not specifically dispute this version of events at the hearing, the complainant's testimony establishes that he was discharged because of his arrest record. This argument fails. In the first place, the complainant's testimony is contradictory with respect to what he was told by Mr. Smith. After initially testifying that he was told he was being terminated because of his arrest record, the complainant subsequently acknowledged that when he filed his equal rights complaint he stated that he was told he was being discharged for sexual harassment, which he agreed was an accurate statement. Moreover, Craig Smith -- who was not questioned as to what reason he gave the complainant for terminating his employment -- repeatedly testified that the discharge decision had nothing to do with the fact that the sheriff's department was conducting an investigation into the complainant's conduct. To the contrary, Smith stated that the respondent would not have discharged the complainant, notwithstanding the investigation by the sheriff's department, had it not learned of the additional allegations against him. Smith stated, essentially, that the respondent's policy calls for discharge for sexual harassment and that the complainant was discharged because the respondent concluded sexual harassment had occurred. Under these circumstances, there is no reason to believe that the complainant was discharged because of his arrest record.

Next, the complainant contends that the respondent failed to conduct an independent investigation into the circumstances of his arrest, as required by the Fair Employment Act. This argument also fails. The Fair Employment Act does not require that an employer conduct any specific type of investigation; it requires only that no employment decision be based solely upon the fact of the employee's arrest. In this case, the respondent interviewed the two female employees who complained about the complainant in the first instance, and spoke with the complainant to get his version of events. The respondent then interviewed the two female employees who came forward with additional allegations. The respondent also attempted to contact two former employees whom it had some reason to believe were subjected to similar conduct on the part of the complainant, but was unable to locate these individuals. While the respondent did not reinterview the complainant after the second set of allegations was brought to its attention, it reasonably believed at that point that it had sufficient information to warrant a conclusion that the complainant had engaged in sexual harassment at the workplace.

Finally, the complainant argues that the most severe action an employer can take with a current employee with an arrest record or pending arrest is unpaid suspension and that the respondent should have, at worst, suspended him without pay pending the outcome of the criminal investigation or subsequent arrest. There is no merit to this argument. The Fair Employment Act provides an 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). It is not necessary to consider that exception in this case, however, since the respondent did not discriminate against the complainant based upon his arrest record. Rather, the respondent discharged the complainant for a legitimate, nondiscriminatory reason, having concluded, based upon its own investigation, that the complainant had sexually harassed at least four of its female employees. Where, as here, the respondent's actions are not taken because of the complainant's arrest record, the statutory exception to discrimination does not apply.

For the reasons set forth above, the dismissal of the complaint is affirmed.

cc:
Attorney Nicholas E. Fairweather
Attorney S. Douglas Touma

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2013/09/19