STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

C ROBERT MANNING, Complainant

CEDARBURG HIGH SCHOOL, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201100165,

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.

DECISION

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

Dated and mailed October 31, 2013
manniro_rsd . doc : 107 :  122.23

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION


In his petition for commission review, the complainant argues against the conclusion that there was a substantial relationship between his convictions for possession of marijuana and drug paraphernalia and the circumstances of his job as an assistant debate coach. The thrust of his argument is that in the setting where he carried out his duties as assistant debate coach, there was little opportunity for him to have engaged in the possession or use of marijuana. If the complainant's ability to repeat his or her criminal behavior at the work place were the only measure of a substantial relationship, the complainant would have a point. As to his ability to use marijuana, even though he was not closely supervised while performing his job, the school library where he worked with his students was open to other students and staff while he was performing his job, and thus was very unlikely to be a location where he could safely use marijuana. As to possession, while it would have been possible for the complainant to possess small amounts of marijuana while performing his job, the critical factor is whether the work setting allowed the complainant a particular and significant opportunity, or a greater than usual opportunity, to engage in the criminal tendency revealed by the conviction. Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005). The complainant had no particular or significant opportunity to possess marijuana by virtue of his position as an assistant debate coach, compared to his ability in general to possess marijuana. The complainant's argument, then, that he would have no particular opportunity to possess or use marijuana while at the work setting is sound, as far as it goes.

The trouble with the complainant's argument is that an employee's opportunity to engage in the behavior for which he or she was convicted is only one aspect of whether a substantial relationship exists. To be sure, in some work settings that aspect may be the primary consideration. For instance, if an employee's job simply involves stocking shelves for an employer, and does not involve any special responsibility to monitor or enforce the conduct of others, the opportunity to engage in criminal behavior at work without detection is critical to the question of substantial relationship. See, Robertson, supra; Herdahl v. Wal-Mart Distribution Center, ERD Case No. 9500713 (LIRC Feb. 20, 1997), aff'd sub nom. Wal-Mart Stores v. LIRC, 220 Wis.2d 716, 583 N.W.2d 674 (Ct. App. 1998, unpublished). The substantial relationship test, however, is not simply a question of whether an individual has a particular opportunity at the work setting to re-commit the very crime for which he or she was convicted; it is a question of whether the individual's character traits and tendencies revealed by commission of the crime are likely to reappear in the context of the employee's job. County of Milwaukee v. LIRC, 139 Wis.2d 805, 824-28, 407 N.W.2d 908 (1987). In County of Milwaukee, the employee had been found guilty of misdemeanors relating to patient neglect while he was a nursing home administrator. The county later terminated him from a position as a crisis intervention specialist. The Court found a substantial relationship not because the individual had an opportunity to re-commit the specific misdemeanors at his job for the county, but because the misdemeanors revealed a behavior pattern of neglecting a duty for the welfare of people unable to protect themselves, which was found to be substantially related to the circumstances of his job. Id. at 828. The Court specifically noted in County of Milwaukee that the opportunity to engage in criminal behavior is only one example of a substantial relationship:

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.

Id. at 824.

In this case, the respondent school district placed a special responsibility on its staff to "observe that all school sponsored events are smoke, alcohol and drug free and that all school district properties are smoke, alcohol, and drug free zones." In addition, employees were charged with the responsibility to enforce the rules of the school board and the rules of student conduct.

The respondent argued that the complainant's drug convictions, which demonstrated a propensity for illegal drug use, were "fundamentally inconsistent with supervising students to ensure a drug-free environment." (Respondent's Hearing Brief, p. 2). The commission agrees. The complainant's propensity for illegal drug use revealed a character trait and an attitude that made it reasonable to suspect how faithfully he would carry out his responsibility to monitor and enforce the school's drug-free policies.

The commission has recognized a substantial relationship to exist between an employee's criminal record of possession of marijuana and his monitoring duties at work. In McClellan v. Burns International Security, ERD Case No. 8300050 (LIRC March 31, 1988), the employee, a security guard, had a marijuana possession conviction. The commission found that the employee was not discharged because of that conviction record, but went on to state that even if he were, there was a substantial relationship between his conviction record and his work, not because of any particular opportunity to possess or use drugs at work, but because one of the employee's job duties was to interdict illegal drugs such as marijuana. The commission stated:

The Complainant's admission to possession (and prior use) of marijuana gave Respondent ample reason to doubt his devotion to the task of prohibiting use and possession of drugs at the job site.

Similarly, in this case the complainant's convictions for marijuana possession gave the school district reasonable grounds to doubt his devotion to his responsibility to monitor and enforce the school's drug-free policies with respect to students. As in McClellan, supra, that is sufficient to show a substantial relationship.

cc: Attorney Steven B. Rynecki

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

uploaded 2013/11/25