Wis.LIRC ER Decision: Kort - October 23, 1996 - Conviction record discrimination -- 'substantially related' -- possession of firearm by a felon / pizza company

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

ANTHONY KORT, Complainant

TOMBSTONE PIZZA COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9302853, EEOC Case No. 26G931966

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 23, 1996
kortant.rsd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In his Petition for Review, the Complainant expressly challenged 4 specific findings of fact (contained in Findings of Fact paragraphs No. 4, 6, 10, and 13). However, in the Complainant's Brief in Chief (1 ), no claim or argument is made that the Administrative Law Judge's findings of fact were erroneous in any respect. Notwithstanding the Complainant's apparent abandonment of any claim that findings of fact are not supported by the record, the commission has reviewed the evidence to determine if the findings of fact are supported. Concluding that they are, the commission has adopted them as its own.

In particular, the commission finds that evidence supports the critical findings of fact which the Complainant initially objected to in his Petition for Review but has now failed to follow up with argument.

The Complainant claimed, that his statement to the female employe with whom he had a dispute, "if you were a man and did this to me you'd be in the hospital already", was not intended as a threat, but was an opinion that the employe was so upset that she would (if a man) have been hospitalized for it. That claim is so patently illogical and unbelievable that it is difficult to understand why the choice was even made to advance it in this proceeding. The inference that this was a thinly-veiled threat respecting physical violence is inescapable.

There is ample credible evidence that in this meeting with Mr. Retterath, Kort was "extremely agitated and enraged" and that this conduct "frightened" Retterath. That evidence is the direct testimony of Retterath concerning the incident. Among other things, the commission notes that Retterath's testimony that Kort was "enraged" was supported by concrete, specific observations, including the fact that Retterath "could see the veins popping out in [Kort's] neck".

Finally, there is ample basis for the findings that Kort had indicated on his application for employment that he had been employed by J. D. Anderson for 15 years when in fact he had been so employed for only 12 years, and that the information which Kort provided was not merely incorrect but "false". The facts were known to Kort when he completed his application; he also knew at the time that he had been in prison for three years. His assertion that he simply made a mistake in providing information was not credible. The inference that he intentionally overstated the length of his tenure at J. D. Anderson by the length of his prison sentence, so that there would be no inquiry about the "missing" years and so that he could thereby avoid disclosing his criminal record, is compelling.

Therefore, the commission concludes that the Administrative Law Judge's findings of fact are fully supported by the record.

In his Petition for Review, the Complainant has chosen to specifically identify and address only one issue, that being whether his conviction for illegally possessing a firearm was substantially related to the circumstances of his employment. The commission agrees with the Administrative Law Judge that there was such a substantial relation.

Kort's argument that Tombstone failed to make an adequate investigation of the specific circumstances of his firearms possession conviction, is untenable in view of the very clear indication in County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), that such an investigation is not necessary. Tombstone was aware of the essential circumstances of the offense by virtue of its elements: Kort, as a felon, was not lawfully allowed to possess a firearm, and his conviction for such possession established that he had intentionally gone about acquiring possession of a firearm notwithstanding the fact that he knew he could not legally do so.

The commission is satisfied that there was a clear and substantial relation between Kort's offense of acquiring possession of a firearm, notwithstanding the fact that he knew he could not legally do so, and the circumstances of his employment. The evidence here paints a picture of an employe who had trouble keeping his anger under control, and who resorted to threats of physical violence against co-workers. Furthermore, it is simply not true, as the Complainant argues in his brief, that the actions which led to the firearms possession conviction occurred "under circumstances that were not investigated and remain unknown to Tombstone". On the contrary, there was at least one very significant circumstance of Kort's possession of a firearm which was known to Tombstone: that possession was unlawful because Kort was a felon, and Kort knew that it was illegal for him to possess a firearm, and he chose to obtain one just the same. Kort's intentional decision to acquire a firearm despite his knowledge that it was unlawful for him to do so thus does not disclose merely a disregard of his legal obligations; it discloses, more frighteningly, a strong desire to obtain a firearm, a desire strong enough to make Kort violate the law and put himself at risk of criminal prosecution.

Thus, to the picture of an employe who had trouble keeping his anger against co-workers under control, and who resorted to threats of physical violence against co-workers, there must be added , "and who had and acted on a strong desire to get hold of a firearm". Perhaps in the case of an employe in Kort's job who had good relations with his co-workers, there would be some reason to question what the connection was between the job and a conviction for illegal possession of a firearm. However, Kort himself made his firearms possession conviction particularly related to the circumstances of his employment, because the circumstances of his employment included his simmering anger against and his threats of physical violence towards co-workers.

cc: Thomas J. Molinaro, Attorney for Complainant
Debra L. Duzinskas, Attorney for Respondent

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Footnotes:

(1)( Back ) The briefing schedule established by the commission provided that the Complainant could file a Reply Brief. That Reply Brief was due by August 13, 1996. As of the date of this decision, no Reply brief has been filed. The commission must thus look exclusively to the Complainant's brief in Chief to determine what issues and arguments the Complainant has elected to pursue.