Wis.LIRC ER Decision: Larsen - February 24, 1995 - Arrest record discrimination

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

THOMAS E. SCHNEIDER, Complainant

WADE LARSEN, Complainant

STOUGHTON TRAILERS, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9002094, ERD Case No. 9002522

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 21, 1994. Respondent filed a timely petition for review by the commission and the parties submitted written arguments in support of their positions.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached) is modified as follows:

1. The last three sentences in paragraph 10 of the administrative law judge's FINDINGS OF FACT are deleted and the following sentences are substituted therefor:

"Sundby informed John Schneider that Stoughton Trailers would not grant an indefinite leave of absence. Although Sundby would have been able to approve two days leave for Schneider and could have granted a leave of absence for a definite period of time, she did not explain these options to John Schneider."

2. The last sentence in paragraph 13 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"He also told Schneider that it was all over the plant that Schneider and Larsen had gone out to New York to buy drugs and that "they" didn't want "those kind of people" working at Stoughton Trailers.

3. The following sentence is inserted after the first sentence in paragraph 17 of the administrative law judge's FINDINGS OF FACT.

"Larsen pled guilty to a misdemeanor possession of marijuana charge."

4. Paragraph 5 of the administrative law judge's ORDER is deleted and the following paragraph substituted therefor:

"Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin, 53708."

As modified, the decision of the administrative law judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 24, 1995
164

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

In the petition for commission review the respondent argues, as it did at the hearing, that it discharged the complainants because they were currently unavailable for work with an uncertain date of return and because the respondent was in need of welders. The respondent contends that the termination was strictly a business decision which was not tainted by unlawful bias. The commission, like the administrative law judge, does not find this argument persuasive. Although the complainants were ostensibly discharged due to their absence from work, it is clear that their termination fell outside of any attendance policy or practice then in effect with the respondent. First, neither complainant had amassed anywhere near a sufficient number of "occurrences" to warrant termination under the respondent's no- fault attendance policy. In addition, the complainants provided notice of their absences each day and were not subject to termination under the respondent's policy that applied to three consecutive absences without notice. Although the complainants did not provide the respondent with a definite date when they would return to work, the respondent's attendance policy contains no separate provision for the termination of employes who are absent with an uncertain date of return, and the record is devoid of any evidence to suggest that the respondent had a practice of discharging employes under such circumstances. For example, there is no reason to believe that an employe who called in sick would be terminated merely because he was unable to cite a definite date on which he would be healthy and able to return to work. The fact that the respondent circumvented its own attendance policy in order to discharge the complainants leads the commission to doubt the respondent's proffered explanation that the complainants were discharged because of their absence from work.

The commission also rejects the respondent's suggestion that its actions were justified based upon a pressing need for welders. Although complainant Larsen was ordinarily employed as a welder, at the time of his termination he was on a light duty assignment which did not involve any welding. Therefore, there is no reason to believe that Larsen's absence created any immediate gap in the respondent's welding department. In addition, complainant Schneider credibly testified that he notified Ted Zink on Wednesday night of his availability to return to work in time for his shift on Monday, but was informed that his termination still stood. If, in fact, the respondent's primary concern was to obtain welders, it stands to reason that Schneider's termination would have been rescinded at the point he notified Zink of his availability to return to work, particularly as the respondent had not yet procured a replacement for Schneider at that point. The commission, therefore, does not believe that the respondent's actions in discharging the complainants were motivated by a need for welders.

The respondent has protested that it is inconceivable to suggest it could have been motivated by bias based upon arrest record. However, the record is fraught with evidence of exactly such bias and the commission believes that the complainants have succeeded in establishing that their arrest records did play a role in the respondent's decision to discharge them. Perhaps the strongest evidence of unlawful bias is in the form of the sworn testimony which Julie Sundby provided at the complainants' unemployment compensation hearing and which has been incorporated into the record in the instant matter. That testimony indicates that Sundby's decision to deny a leave of absence to complainant Schneider and her ultimate decision to discharge the complainants were based upon the fact of the complainants' arrest records and upon her beliefs about the behavior leading up to the arrests. At the unemployment compensation hearing Sundby specifically testified that she denied complainant Schneider's request for a leave of absence because he was in jail and because it was her policy that jail did not constitute a valid reason to request a leave of absence. She also admitted that the decision to terminate the complainants was in some way predicated on the fact that she had knowledge about why the complainants were incarcerated. Although the respondent avers that Julie Sundby was unaware that the complainants' arrests involved drug-related charges, Sundby acknowledged that she was aware that rumors to that effect were circulating in the plant and the commission believes that her decision to discharge the complainants was based, at least in part, on her awareness of those rumors.

In addition, the respondent's own personnel records indicate that the complainants were discharged due to their arrest records--the personnel files for both complainants contain a section entitled "termination" on which the respondent recorded the reason for the termination as "jail." Although Julie Sundby testified that the notation was made by Dawn Hudson, the personnel secretary, without benefit of consultation with Sundby, the commission does not believe that the mere fact the notation was made by the personnel secretary rather than Sundby herself negates the significance of the notation. Further, although Dawn Hudson testified at the hearing and was subject to direct examination by the respondent's attorney, she did not provide any neutral explanation for her actions in indicating that the complainants were terminated because of "jail."

Finally, both of the complainants testified that Ted Zink told them the respondent did not want "those type of people" working for Stoughton Trailers, and complainant Schneider's brother testified that he received the same information from Julie Sundby. The respondent now contends that the complainants' testimony was fabricated, that John Schneider's testimony should not be credited, and that the respondents' denials were more credible. The commission disagrees. The administrative law judge, who was able to observe the demeanor of the witnesses and could make a first-hand assessment of their credibility, believed the testimony of the complainants and their witness and the commission sees no compelling reason to reverse that credibility assessment. While, it is true that John Schneider did have a poor memory for exact dates, as the respondent has hastened to point out, this fact alone does not render the entire substance of his testimony incredible. It is often easier to recall the substance of a conversation than it is to remember the exact day of the week on which the conversation occurred, particularly when the conversation in question took place two years ago, and in all important respects John Schneider's testimony was consistent with that of the complainants. The commission also notes that Ted Zink never affirmatively denied having made the statement that the respondent did not want "those type of people," stating only that he could not "recall" having done so. The commission believes that the respondent did tell the complainants it did not want to employ their type of people and that this statement constitutes further evidence of unlawful bias on the part of the respondent.

The respondent makes the argument that no discrimination occurred because it did not discharge other absent employes who were in jail where those employes informed the respondent when they would return to work. Specifically, the respondent mentions employes by the name of Wedvick, Valley and O'Dell. However, while comparative evidence can be material in a discrimination case, the fact that the respondent did not discharge everybody in the protected class does not mean that it did not discriminate against the complainants. Moreover, the cases of Wedvick, Valley and O'Dell are readily distinguishable from that of the complainants. Julie Sundby, who made the decision to discharge the complainants, specifically testified that she was never made aware that Wedvick called in absent due to being in jail. She did not indicate whether she was aware that Valley was absent from work based upon an arrest and stated that she did not know why he was arrested. Thus, the fact that Wedvick and Valley were not terminated by Sundby says nothing about her attitudes regarding employes with arrest records. With respect to O'Dell, Sundby testified that she was aware he was absent due to an arrest and that, to her knowledge, the reason for his arrest was a failure to pay traffic fines. The fact that Sundby did not discharge an individual incarcerated for failing to pay traffic fines does not establish that she did not discharge the complainants because they had been arrested and she had heard rumors that the arrests were due to drug-related activity. To the contrary, and for the reasons set forth above, the commission believes that this is exactly what occurred.

The respondent's final argument is that, had the complainants not been discharged when they were, the respondent would have conducted an investigation into the reasons for their absence, the results of which would have led the respondent to believe that the complainants violated its drug policy. The respondent contends that the complainants would have ultimately been discharged for misconduct. It argues that this fact should serve as a bar to back pay relief and that the administrative law judge abused her discretion by prohibiting it from submitting such after-acquired evidence. However, upon reviewing the two separate offers of proof made by the respondent at the liability and damage hearings, the commission concludes that the respondent was not actually in possession of any after-acquired evidence of misconduct and that, consequently, the administrative law judge properly prohibited the respondent from submitting the testimony in question. It is clear from the respondent's initial offer of proof that the respondent had no actual evidence of any conduct on the part of the complainants that violated its drug policy and could only guess that it might have conducted an investigation and that, had it done so, it might have discovered such evidence. When the respondent subsequently broached the issue at the damage hearing it contended that Julie Sundby had actually begun to make an investigation into the reason for the complainants' absence and that she had heard rumors from various unnamed sources that the complainants were involved in drug-related activities. The respondent explained that such rumors, if pursued through further investigation, might have lead the respondent to believe that the complainants violated its drug policy in some manner and that the complainants might have been discharged as a consequence. In other words, had the respondent been permitted to go forward with its after-acquired evidence theory at that point, it would have presented a variety of hearsay and speculation from which no rational decision-maker could conclude that the complainants actually engaged in any misconduct or that their employment would have been terminated as a result. The commission cannot find that the administrative law judge erred in failing to allow the respondent to present such testimony.

NOTE: The commission has modified the administrative law judge's decision in order to augment and clarify certain findings of fact. These modifications notwithstanding, the commission agrees with and affirms the administrative law judge's decision.

PAMELA I. ANDERSON, CHAIRMAN, (Concurring)

I write separately because I think that this is a close case and I disagree with some of the facts. I believed Sundby when she denied making the "we don't want those people" statement. I did believe that Zink could have made the statement.

I did find credible that the respondent was concerned with the indefinite nature of the absence. The complainants' credibility on the length of their absences is reduced because the respondent first found out about the arrests from a New Jersey detective rather than the complainants or their families while at the same time Schneider's brother told the respondent that his brother was merely out of state.

The problem with this case is that the complainants' conduct and their arrest are almost impossible to separate unless the respondent did an investigation prior to the discharge. The fact that the respondent allowed other people with arrest records to work for it lessens the chances that the arrest record was the motivating factor, but by itself it is not enough to overcome the intertwined problem. Therefore, I concur in the decision.

Pamela I. Anderson, Chairman

cc:
John R. Sweeney
Bruce M. Davey

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