P O BOX 8126, MADISON, WI 53708-8126

JONI M FOLEY, Complainant

COST CUTTERS, Respondent

ERD Case No. CR201203538

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. In the first sentence of paragraph 9 of the ALJ's FINDINGS OF FACT, change "Cutter's" to "Cutters' ".

2.  Add the following to paragraph 17 of the ALJ's FINDINGS OF FACT:

Cost Cutters delayed its action to discharge Ms. Ward until after it learned of her arrest out of consideration for the fact that Wal-Mart had not completed its own investigation of Ms. Ward's activities until the arrest occurred.

3. In the ALJ's MEMORANDUM OPINION, paragraph 4 of Section II-B, Applicability of the Onalaska Defense, make the following changes in party designations (corrections are made in italics):

The Complainant faults Ms. Ward, for example, for "not question[ing] Complainant about the incident or ask[ing] for an admission or denial of her participation in the alleged theft at Wal-Mart." (Complainant's Br. 10). Moreover, the Complainant correctly notes the Ms. Ward "never reviewed any of the [Wal-Mart] security footage." (Complainant's Br. 3). Lastly, the Complainant points out that the Respondent terminated her employment "prior to confirming that a 'no contact' order prohibited her from entering the Wal-Mart which housed its business." (Complainant's Br. 9).

4. In paragraph 5 of Section II-B of the MEMORANDUM OPINION, change "Ms. Ms. Ward" to "Ms. Ward" in the second sentence, and delete the word "For" at the beginning of the fourth sentence.


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

Dated and mailed  January 15, 2015
foleyjo_rmd . doc : 107 : 9  122.13


/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner


The complainant made two arguments in its brief to the commission. First, she argued that the Wisconsin Fair Employment Act (WFEA) prohibited the respondent from taking any action more severe than suspending the complainant once it discovered that she was arrested, and that the respondent violated the WFEA by taking the more severe action of terminating her employment. Second, she argued that the respondent unlawfully relied on the complainant's arrest record in deciding to terminate her employment. The first argument is unsuccessful because it attempts to hold the respondent liable without proof of an essential element of her case, namely, that the respondent terminated the complainant's employment because of her arrest record. The second argument addresses the causation issue that was overlooked in the first argument, but it does not succeed because the evidence establishes that the respondent was motivated to discharge the complainant by its belief that she engaged in unacceptable conduct, a belief formed primarily on its own investigation, and not on the mere fact of her arrest. A decision based on such a belief is not a decision based on arrest record. City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984). 

The respondent was not barred from terminating the complainant once she was arrested

The complainant's first argument focuses narrowly on a statutory exemption that allows employers to take certain actions-"to refuse to employ...or to suspend from employment"-individuals who are subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the job. Wis. Stat. § 111.335(1)(b). The complainant, noting that the exemption does not allow the employer to terminate, takes the provision to mean that once an employee becomes subject to a pending criminal charge, or at least once the employer realizes that fact, the most serious sanction the employer can impose is a suspension; in other words, as soon as the employer knows that the employee has been arrested, the idea of terminating the employee is off-limits.

This interpretation of the law improperly takes the question of causation out of the case. It overlooks the fact that the exemption from liability comes into play only if it is first determined that the employer took an adverse action against an employee because of an arrest record. The WFEA generally prohibits discriminatory acts "because of" arrest or conviction record under Wis. Stat. § 111.322, then provides exceptions in certain cases. The proper order of inquiry is to first address what actually motivated the employer to take the action it did. Williams v. Medical College of Wisconsin, ERD Case No. CR200800850 (LIRC Oct. 10, 2011). It is only when causation is proven that the applicability of an exemption is to be considered. The fact that an employer had knowledge of an employee's arrest before it took some adverse action does not imply that the arrest caused the employer to take the adverse action. Sanford v. Luther Midelfort/Mayo Health System, ERD Case No. CR200704413 (LIRC Oct. 1, 2010).

So, although it is true that the exemption from liability under Wis. Stat. § 111.335(1)(b) would not have protected the respondent for terminating the complainant if it had been established that it terminated the complainant because of her arrest record (See Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC Mar. 14, 2008), the causal link must first be established, and it cannot be established simply by proving that the respondent became aware of the arrest before it terminated the complainant. Therefore, the commission turns to the complainant's second argument, that the respondent was motivated to terminate the complainant because of her arrest.

The respondent terminated the complainant based on a belief that she engaged in unacceptable conduct, formed independently of her arrest

It is not arrest record discrimination for an employer to discharge an employee in the belief that the employee engaged in certain unacceptable conduct, if that belief arises from a source other than the mere fact of the arrest. Delapast v. Northwoods Beach Home Caring Homes, Inc., ERD Case No. 8901907 (LIRC Feb. 17, 1993); City of Onalaska, supra. The commission, applying Onalaska to determine whether an employer's belief in an employee's guilt arises from a source other than the employee's arrest, has framed the issue as follows:

The critical question which needs to be answered to properly apply Onalaska in a case where an employer has both learned of and about an employee's arrest from the arresting authorities, and has learned things about the employee's conduct independently of the arresting authorities, is the question of the employer's motivation. Mielke v. Orkin, (LIRC April 11, 1988). The question is whether the employer made the decision to discharge the employee because of the information it acquired from the arrest and the arresting authorities, or because of the information it acquired through its own investigation independent of the arresting authorities.

Betters v. Kimberly Area Schools, ERD Case No. 200300554 (LIRC July 30, 2004).

The complainant's argument that the arrest itself provided the motivation for her discharge depends primarily on the fact that the discharge did not take place until after the respondent was made aware of the arrest. The complainant argues that store manager Lisa Ward's observations of the complainant's behavior, and the information Ward gathered from Wal-Mart, must not have been a sufficient motivation to discharge her, since she was not discharged until Ward learned of her arrest. Ward, however, gave the following explanation for waiting until the complainant's arrest before recommending termination. As recounted in the ERD's synopsis of testimony, Ward stated:

At the time that I first talked to Ms. Vesely about what I believed Ms. Foley was doing, the matter was still being investigated by Walmart. I was aware that something was going down that was going to be brought to a head. I had a concern about whether or not terminating Ms. Foley would affect Walmart's investigation. I had to remain quiet about what was going on because Walmart was reviewing video and taking care of what they needed to take care of. If I terminated Ms. Foley at that point, she would have very possibly been aware that she was under investigation for theft by Walmart. They had not concluded their investigation yet.

Ward asserts in this testimony that her belief about the complainant's conduct was formed before there was any arrest ("At the time that I first talked to Ms. Vesely about what I believed Ms. Foley was doing..."), and it explains her decision to delay the termination until after the arrest as a courtesy to Walmart, not as a reflection of some uncertainty about whether the conduct she observed was unacceptable. The conduct Ward observed, which was not disputed by the complainant, clearly supports the conclusion that her belief that the complainant was shoplifting was based on her own observation and her communication with Wal-Mart employees, which occurred prior to the complainant's arrest, and without the receipt of any information from an arresting authority. As pointed out in the respondent's reply brief, p. 2, Ward formed her belief about the complainant's conduct based on the following:

As the ALJ stated, the fact of the complainant's arrest provided some corroboration of the respondent's belief that the complainant had been shoplifting from Wal-Mart, but it is clear that the respondent's belief arose from its own investigation and conversations with Wal-Mart personnel, not from the fact of the complainant's arrest.

The complainant argued that a decision motivated in part on an illegal basis creates liability on the part of an employer, and that the arrest in this case was a sufficient factor to support liability on a mixed-motive theory. Hoell v. LIRC, 186 Wis.2d 603, 609, 522 N.W.2d 234 (Ct. App. 1994). On this evidentiary record, however, the corroborative fact of the complainant's arrest was not significant enough to create liability, even under a mixed-motive theory. In order for an illegal factor to create liability, it must be a "determining factor," even under a mixed-motive theory. Nelson v. State Historical Society of Wisconsin, ERD Case No. CR200303141 (LIRC Mar. 31, 2005). The complainant's arrest had no determinative effect on the respondent's belief in the employee's guilt.

Attorney Colin B. Good
Attorney Alan E. Seneczko

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