State of Wisconsin

Labor and Industry Review Commission

Patrick Cisewski	Fair Employment Decision[1]
Complainant
City of Marshfield
Respondent	Dated and Mailed:
ERD Case No. CR201203172	February 13, 2018
	cisewpa_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed, subject to modification.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon his arrest record, in violation of the Wisconsin Fair Employment Act.  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision dismissing the complaint for lack of probable cause.  The complainant filed a timely petition for commission review.  

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing.  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, subject to the following:

Modifications

1.  In the second sentence of paragraph 15 of the administrative law judge’s FINDINGS OF FACT the date “2011” is deleted and the date “2012” is substituted therefor.

2. The third full paragraph of the administrative law judge’s Memorandum Opinion (on page 8 of the decision) is deleted, and the following is substituted therefor:

“While it is acceptable for employers to suspend the employment of individuals who have been arrested while criminal charges are pending, provided the circumstances of the charges are substantially related to the circumstances of the particular job, the WFEA prohibits employers from discharging an employee based upon an arrest record, whether or not the circumstances of the charge are related to the circumstances of the job.  See Wis. Stat. § 111.335(1)(g).”

Memorandum Opinion

On January 7, 2012, during a weekend hunting trip, the complainant was arrested for driving while intoxicated.  The respondent learned about the matter on February 6, 2012.  It questioned the complainant and then discharged him the following day.  The complainant alleges that the respondent violated the Wisconsin Fair Employment Act (hereinafter “Act”) by discharging him based upon his arrest record.

The Act prohibits an employer from discharging an employee because of his arrest record.  See, Wis. Stat. §§ 111.321 and 111.322.  However, no discrimination will be found where the employer can show that the actions it took against the employee were not based on the mere fact that he was arrested, or solely upon the content of a police report, but were based upon the employer’s own investigation which revealed that the employee had actually engaged in conduct that the employer considered incompatible with continuing employment.  City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984).  In order to satisfy Onalaska requirements the employer’s investigation must focus on facts the employer gathers itself and not simply on what is in the police records.  For example, an employer can legitimately base its decision on an admission from the employee, statements from others who witnessed the employee’s conduct, or direct observations of that conduct.  Marcin v. Charter Communications, LLC, ERD Case No. CR201201053 (LIRC July 14, 2015).

In this case, while the respondent used the police report as a basis for questioning the complainant, its decision to discharge the complainant was not based solely upon the contents of the police report, but was the result of its own investigation.  At the hearing the respondent testified it did not make any decision to discharge the complainant prior to meeting with him and that it was waiting to learn the facts after talking to him.  The parties agree that the respondent talked to the complainant at length and attempted to obtain his side of the story.  The complainant told the respondent he had a couple of drinks in the morning and that he went to a bar and began drinking again at 5:30 in the evening.  He admitted to driving thereafter.  The complainant indicated that he could not recall how much he had to drink and, when asked about the .254 BAC measurement contained in the police report, he did not dispute having reached that level but responded that the alcohol might have hit him a little harder because he did not eat any food that day.  Given those statements, the respondent reasonably drew the conclusion that the complainant was admitting to driving while under the influence of alcohol. 

The complainant was subject to a last chance agreement which provided that “alcohol abuse, both on or off the job” would result in immediate dismissal.  The respondent contended that the complainant was in violation of the last chance agreement and, further, that it considered his conduct to be unsafe and disqualifying for a job that required driving heavy equipment.  The respondent also noted that the complainant admitted to asking the arresting officer not to test/ticket him because a drunk driving arrest would cost him his job, conduct which the respondent regarded as a violation of its ethics rules.  Although the complainant may quibble with the respondent’s decision to rely on a 16-year old last chance agreement as a basis to terminate his employment, as well as with the respondent’s interpretation of its ethics rules as prohibiting him from asking the arresting officer not to test or cite him,[2] the commission is not permitted to second guess the respondent’s business decisions provided they are not undertaken as a pretext for discrimination.  As the commission has frequently observed, “We do not sit as a superpersonnel department that reexamines an entity’s business decision and reviews the propriety of the decision.  Our only concern is whether the legitimate reason provided by the respondent is in fact the true one.”  Ebner v. Dura Tech, ERD Case No. CR200504645 (LIRC April 23, 2009), citing Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).  In this case, the commission is satisfied that the respondent genuinely believed, based upon its own investigation, that the complainant engaged in unacceptable behavior, and that the reasons it provided for the discharge were not mere pretexts for discrimination because of the complainant’s arrest record.  Consequently, the commission agrees with the administrative law judge’s ultimate conclusion that discrimination was not established and that the complaint must be dismissed.

NOTE:   The commission has modified the administrative law judge’s decision to clarify that the only circumstance in which an employer may lawfully suspend the employment of an employee who is subject to a pending criminal charge is when the circumstances of the charge substantially relate to the circumstances of the particular job.  See, Wis. Stat. § 111.335(1)(b).

cc:	Attorney Louis Molepske Attorney Kyle Gulya

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] The respondent’s ethics rules provide that “No public official or employee shall use or attempt to use his position with the City to secure any advantage, preference or gain, over and above his rightful remuneration and benefits, for himself or for a member of his family.”  The complainant did not attempt to use his position as a city employee to threaten or bribe his way out of a ticket, nor did he argue that because he was a public employee he should not be cited.  The complainant’s only mention of the fact that he worked for the city was to point out that he was in danger of losing his job.  The commission is not persuaded that the complainant’s conduct is accurately characterized as an attempt to misuse his position as a city employee in order to obtain special favors unavailable to other people.