Wis.LIRC ER Decision: Schmid-Long, Kaye - March 26, 1999 - Arrest record discrimination -- reason other than arrest record - pending 'no contact' order re other employes

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

KAYE ANN SCHMID-LONG, Complainant

HARTZELL MANUFACTURING, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701693,

An administrative law judge 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 administrative law judge. 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, except that it makes the following modifications:

Paragraph 18 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"18. The respondent did not suspend the complainant's employment because of her arrest record, but because she was under court order to have no contact with two of the respondent's other employes, both of whom worked on her shift and with whom she regularly came into contact."

Paragraphs 3, 4 and 5 of the administrative law judge's CONCLUSIONS OF LAW are deleted, and the following is substituted therefor:

"3. The respondent did not discriminate against the complainant because of arrest record, in violation of the WFEA."

DECISION

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

Dated and mailed March 26, 1999
schmika.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In her petition for commission review the complainant argues that the fact her bond restrictions were lifted to permit incidental contact and the fact that the respondent itself indicated it had no fears about the complainant's underlying crime or that problems would occur at work indicate that the pending criminal charges against her were not substantially related to her job and that the respondent's arguments about the "no contact" provision were a pretext to cover up prohibited discrimination. The complainant's argument fails. The commission sees no reason to believe that the respondent's explanation for its actions was a pretext for discrimination. Prior to the arrest which is at issue in this case, the complainant had been convicted of theft and placed on probation. Although the respondent was aware of the complainant's criminal conviction, it continued to employ her and did not undertake any adverse action against her as a result. When the complainant was arrested the second time, however, the respondent suspended her employment because one of the conditions of her bond was that she have no contact whatever with two of her fellow employes. The respondent's decision to suspend the complainant's employment was not based upon discriminatory animus or bias associated with the fact that the complainant had pending criminal charges against her, but upon a legitimate assessment that, while the complainant was subject to the "no contact" order, she was effectively barred from coming to work and performing her job. The fact that the "no contact" order was eventually modified to permit incidental contact while at work does not cast doubt upon the respondent's explanation for its decision to suspend the complainant's employment before that modification was issued or render its actions a pretext for discrimination. To the contrary, the evidence indicates that the respondent would have been willing to return the complainant to work after the "no contact" order was modified, had it not been involved in a lay-off situation at that time.

The commission notes that, in the argument addressed above, the complainant makes reference to a lack of substantial relationship between the circumstances of the charge and the circumstances of the job. The commission considers it unnecessary to reach the question of substantial relationship in this case, and has modified the administrative law judge's decision in accordance with this view. The prohibition on arrest and conviction record discrimination in the Fair Employment Act is designed to protect individuals from employment discrimination based upon the stigma of a criminal record which bears no substantial relationship to the employment. Miller Brewing Co. v. ILHR Dept., 103 Wis. 2d 496, 504, 308 N.W. 2d 922 (1981). The question of whether a substantial relationship exists between the circumstances of the criminal charge and the circumstances of the job arises only where the record indicates that the respondent engaged in an adverse employment action because of the complainant's protected status as an individual with a criminal record. Here, the respondent presented a legitimate, non-discriminatory reason for suspending the complainant's employment, which was unrelated to any animus or bias associated with the fact that the complainant had a pending criminal charge against her: the respondent reasonably concluded that it was unable to employ the complainant while she was under court order to have no contact with two of her co-workers. Moreover, while the "no contact" order may have been a consequence of the complainant's arrest, it is not a circumstance relating to the underlying criminal charge. Thus, even if the commission were to reach the question of substantial relationship, the focus of that inquiry would be upon the relationship between the circumstances of a charge of criminal damage to property and the complainant's job as a machinist, rather than on the relationship between the conditions of the complainant's bond and her employment.

The complainant also makes an argument that the respondent failed to investigate whether or not contact could be avoided, failed to plan any changes to the complainant's placement, and never contacted the court to find out whether the complainant could have incidental contact at work. However, the respondent was under no legal obligation to consider alternate placements for the complainant, nor was it required to determine whether the court would permit any exceptions to the "no contact" order. Further, the respondent did advise the complainant in late March or early April that in order to return to work for it she would have to get the "no contact" order modified, but the complainant opted to wait until August to seek such modification.

The commission has considered the remaining arguments raised by the complainant in her brief, but finds them similarly unpersuasive. Because the complainant failed to establish that she was discriminated against in the manner alleged, the dismissal of her complaint is affirmed.

cc: Warren Lee Brandt
James R. Scott

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