Wis.LIRC ER Decision: Rathbun - December 19, 1996 - Arrest record discrimination -- 'substantially related' -- sexual assault and threat with deadly weapon / licensure as taxicab driver, charges dismissed; Parties - proper parties respondent - city departments; individual agents of respondent

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICHARD RATHBUN, Complainant

CITY OF MADISON, Respondent A

WILLIAM KNOBELOCH, Respondent D

SERGEANT EMIL QUAST, Respondent E

FAIR EMPLOYMENT DECISION
ERD Case No. 199500515

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:

Delete the Conclusions of Law and substitute:

"1. Madison, through MPD, is a licensing agency within the meaning of the Fair Employment Act.

"2. The actions of Mr. Quast and Mr. Knobeloch in this case were entirely within the scope of their authority as agents of MPD and MTD, respectively.

"3. The circumstances of the sexual assault charges against Mr. Rathbun substantially relate to the licensed activity of driving a taxicab.

"4. There is no probable cause to believe that the decision by Mr. Quast and MPD, and ultimately by Madison, to revoke and refuse to renew the taxicab license of Mr. Rathbun because of his arrest record violated the Wisconsin Fair Employment Act."

DECISION

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed December 19, 1996
rathbri.wmd : 101 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant filed a discrimination complaint against the City of Madison, its police department, and its transportation department. The complainant alleged that these entities (and two individuals employed by them), acting as a licensing agency, unlawfully discriminated against him by suspending and refusing to renew his taxicab driver's permit from June 23 to September 1, 1994. Specifically, the permit was suspended and not renewed based on the complainant's arrest on four counts of sexual assault and two counts of threat to injure another while in possession of a dangerous weapon.

All charges against the complainant were eventually dismissed on motion of the assistant district attorney dated August 26, 1994 (1 ). In his motion to dismiss, the assistant district attorney stated he concluded he could not prove the case against the complainant beyond a reasonable doubt as a result of matters brought to his attention over the prior fourteen days, including "the acquisition of police reports not previously acquired which make less probable the facts asserted in the information." Respondent's exhibit 4. The motion to dismiss was granted and the case against the complainant dismissed by order of a circuit judge on August 29, 1994. Two or three days later, the complainant's taxicab driver's permit was reissued.

1. Probable cause

Because this case arises from a probable cause hearing, the complainant is only required to show probable cause with respect to his claim of discrimination. This burden, while low, still rests with complainant. Boldt v. LIRC, 173 Wis. 2d 469, 276 (Ct. App., 1992). See also sec. DWD 88.01 (8), Wis. Adm. Code.

The complainant testified that he was arrested and charged based on false accusations brought by an individual against whom the complainant was scheduled to testify in another criminal matter. The record before the commission certainly does not disprove this assertion, especially given the relatively low standard of proof applicable in probable cause hearings. The complainant further points out that the same entity which denied his taxicab driver's permit, the City of Madison Police Department, also generated the police reports which led the district attorney top drop the charges against him. He also contends that the [police department should have acted more quickly in bringing its reports to the attention of the assistant district attorney. The complainant also asserts that, had the police department as licensing authority undertaken the proper investigation before denying his taxicab driver's permit, it would have learned the charges against him were false.

On these bases, then, the complainant contends that the circumstances of charges against him did not "substantially relate" to the circumstances of the licensed activity of taxicab driving. The complainant also contends in the documents he submits with his brief that sec. 111.335 (1)(b), Stats., violates the constitutionally protected due process and equal protection rights of a person merely accused, but not convicted, of a crime.

Section 111.335 (1)(b), Stats., provides that employment discrimination because of arrest record does not include refusing to license, or suspending from licensing, any individual who is subject to a pending criminal charge, if the circumstances of the charges substantially relate to the circumstances of the job or activity. The supreme court has explained that when inquiring into the "circumstances" under sec. 111.335 (1)(b), Stats., it is the circumstances which foster criminal activity that are important: 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, 824 (1987). The inquiry should involve ascertaining the relevant, general character related circumstances of the offenses or the job, and the employer or licensing authority may look to the complaint or criminal information in determining the "circumstances". Id., at 139 Wis. 2d 825. Looking at the elements of the crime is an accepted way to ascertain the circumstances of an offense, and a full blown factual inquiry is neither necessary nor practical. Id., at 139 Wis. 2d 826.

In this case, the elements of the crimes with which the complainant was charged, sexual assault and threatening to injure another while in the possession of a dangerous weapon, are substantially related to the licensed activity of taxicab driving. A cab driver obviously has the opportunity to commit such acts while transporting a passenger, if the two are alone in a vehicle the cab driver controls. There can be no dispute that the character traits exhibited by someone who commits sexual assault or threats with a dangerous weapon are extremely undesirable in a cab driver. Under the County of Milwaukee analysis, then, the City of Madison Police Department as a licensing authority was justified in temporarily suspending or denying the renewal of the complainant's taxicab driver's license pending the resolution of the criminal charges against him.

Nevertheless, the complainant argues, the City of Madison Police Department should have investigated further before acting on his license request, and come to the conclusion that the charges were not warranted. After all, the complainant points out, the very information that led the assistant district attorney to drop the charges was in the possession of the City of Madison Police Department, apparently at the time the licensing decision was made.

However, the commission cannot conclude that the police department, in acting on the licensing request, should have reconsidered the facts underlying the charging decision. That course would seem to go well beyond the scope of the limited, practical test set out for the "circumstances" inquiry under sec. 111.335 (1)(b), Stats., by the court in Milwaukee County. It could also render a licensing agency potentially liable for failing to exercise the judgment of a criminal prosecutor. Stated another way, the test in Milwaukee County does not require a licensing agency to determine whether a conviction on pending criminal charges is likely before basing a licensure decision on those pending charges.

Nor may the commission act on the complainant's assertions that sec. 111.335 (1)(b), Stats., is unconstitutional. An administrative agency is not empowered to pass on the constitutionality of the statutory provisions it administers. McManus v. Revenue Dept., 155 Wis. 2d 450, 454 (Ct. App., 1990).

The commission realizes that the complainant sustained a significant financial loss based on the denial of his taxicab driver's permit for two months based on criminal charges that were later dismissed. However, the fact that criminal charges are dismissed, or that an employe is acquitted of the charges, does not prove that the prior action taken on the basis of an arrest on those charges was unlawful discrimination. (2 ) Nor is unlawful discrimination established by the complainant's allegation that the police department might have acted more quickly in bringing to the attention of the assistant district attorney the information which led him to dismiss the complaint. Stated simply, while the complainant has provided evidence tending to show he was damaged by a false accusation, he has not shown probable cause to believe that any of the named respondents unlawfully discriminated against the complainant under the Wisconsin Fair Employment Act.

Finally, the complainant alleges in his petition that the ALJ was prejudiced against him and misled him with respect to filing a brief. The commission, frankly, sees no evidence of bias or mis-instruction in the record. Moreover, the commission conducted an independent review of the facts, and carefully considered the hearing record and all of the documents the complainant submitted in connection with the complainant's petition. Having done so, it finds the ALJ's findings of fact and conclusions of law to be supported by the record. It therefore affirms the decision of the ALJ, with the minor modification explained below.

2. Proper parties respondent

The respondent contends that the ALJ erred by finding that the City of Madison Police Department was a licensing agency, which was tantamount to concluding the department is sui juris or a body politic capable of being sued under civil procedure. The commission does not agree. The police department is an agency of the City of Madison, and it did act on the complainant's taxicab driver's permit. Thus, the police department fits the definition of a licensing agency under sec. 111.32 (11), Stats., which specifically includes a department within a political subdivision such as a city. In light of clear wording of the statute, it is unnecessary to inquire whether the police department is sui juris to determine whether it is a licensing agency under the Wisconsin Fair Employment Act.

However, the fact remains that the City of Madison, the City of Madison Police Department, and the City of Madison Transportation Department are for the purposes of the employment discrimination laws the same legal entity. At least, in prior cases the commission and the department have treated them as such. See, for example: Kemmerer v. City of Madison Police Department, ERD case no. 8901236 (LIRC, June 30, 1993). See also, Davidson v. Town of Madison Police Department, ERD case no. 8900983 (LIRC, October 15, 1991). Consequently, the commission has modified the caption of the case to name only the City of Madison as respondent.

In addition, the commission has previously held that where an individual person has acted under color of his or her authority as an agent of an employer, the employer rather than the individual person is properly held liable as the respondent. Nelson v. Waybridge Manor, Inc., and Theodore Sternbach, ERD case no. 8651771 (LIRC, April 6, 1990) and Sinclair v. Mike's Town and Country, ERD case no. 92201449 (LIRC, October 15, 1993). The same reasoning applies with equal force to cases involving licensing agencies instead of employers. In this case, the record contains no evidence showing that Mr. Quast or Mr. Knobeloch acted outside of their authority as agents of the City of Madison's police department and transportation department. Consequently, while the commission has left these individuals in the caption, they could not be held liable to the complainant, even if unlawful discrimination were found.

c c: Guy Debeau

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Footnotes:

(1)( Back ) The motion is misdated "1993", exhibit R-4.

(2)( Back ) See, on a related issue, Paxton v. Aurora Health Care, ERD case no. 9052833 (LIRC, October 21, 1993).