STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
MARK ALLEN MALINE, Complainant
WISCONSIN BELL, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 8751378
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 April 28, 1989. Complainant filed a timely petition for review by the Commission and Respondent submitted written arguments in opposition to Complainant's petition.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
FINDINGS OF FACT
1. The Respondent, Wisconsin Bell ("Bell"), is a company engaged in providing local telephone service, doing business in Milwaukee, Wisconsin and other locations.
2. The Complainant, Mark Allen Maline ("Maline"), was first employed by Bell in 1970 and continued in that employment thereafter. In 1987, Maline was employed by Bell as a service technician in Milwaukee. His duties were to install and repair communications equipment. He was assigned a company vehicle which he used in the course of performing his duties.
3. On June 29, 1987, at approximately 11:00 p.m., Maline was arrested at his home by an officer of the Milwaukee Police Department. Maline was charged with delivery of a controlled substance (cocaine). One allegation of the charge was that, on May 8, 1987, Maline had engaged in delivery of cocaine out of the Bell company van in which he was working at the time.
4. Maline was scheduled to work on June 30, 1987, but he did not appear at work because he was still being held in jail.
5. Maline did not call Bell on June 30, 1987 to advise it that he would not be in to work. However, he did arrange to have someone call the employer on that day. This person called Elmer Bartz, Bell's Assistant Manager for District Services, identified herself as a neighbor of Maline's, and told Bartz that Maline had been rushed to a hospital the night before. On the basis of this call, Bartz made a notation in the company's records that Maline would be on sick leave status for that day.
6. After he received the call from the person stating that Maline had been hospitalized, Bartz telephone Maline's mother and asked her if she knew what hospital Maline was in. She advised him that she did not know but that she would check. Later that day, Maline's mother telephoned Bartz and informed him that she had determined that Maline was not in the hospital but was being held downtown in the Police Department.
7. At some point on June 30, 1987, the Milwaukee Police Department telephoned Bell's Security Department and provided it with information that Maline had been arrested. Information about the nature of the allegations of the charge, including the allegation that Maline dealt drugs out of a company van on May 8, 1987, was also provided to Bell at this time.
8. At some point on June 30, 1987, Bartz discussed the situation concerning Maline with Ken Nelson, another employe of Bell who was apparently in a position of higher authority than Bartz.
9. Maline was also scheduled to work on July 1, 1987. He did not report to work. At approximately 1:20 p. m. that day, Maline telephoned Bartz and told him that he had just been released from a hospital in Illinois where he had been treated for food poisoning. Maline stated that he would report to work on July 2, 1987. Bartz did not confront Maline at this point with any allegations concerning his conduct, but merely told him something to the effect that it was acceptable to him if he reported the following day.
10. At some point on July 1, 1987, Bartz again discussed the situation concerning Maline with Ken Nelson. By the time of this meeting, Bell had already received the information from the Police Department that Maline had been arrested on charges that included dealing cocaine out of a Bell van. In that meeting, Nelson instructed Bartz to terminate Maline.
11. Shortly after 8:00 a.m. on the morning of July 2, 1987, Maline telephoned Bartz and told him that he had too many things to do that day and would not be in to work. Bartz told Maline that he should report to work by 8:30. Maline agreed to come in at 8:30. However, at approximately 8:25 a.m., Maline again telephoned Bartz and again told him that he had too many things to do to report to work. Bartz then instructed Maline unequivocally that he was required to report to work by 8:30 a. m. Maline thereupon did report to his workplace, and at that time a meeting was held between Maline, Bartz, Maline's union steward, and Joseph Dudley, a representative of Bell's Security Department.
12. In the meeting held on the morning of July 2, 1987, Maline was told by representatives of Bell that they had been informed by the Police Department, which had called Bell's Security Department, that Maline had been arrested for allegedly dealing drugs. Maline was asked if he had anything to say, and Maline then admitted that he had not been ill on the previous two days but had in fact been incarcerated. Dudley asked Maline if he was aware of the specifics of the charges against him, and Maline said that he was. Dudley then asked Maline if had used a company vehicle in connection with dealing drugs, and Maline merely confirmed that that was what was alleged in the criminal charges, but he did not admit having done so.
13. Following the questioning of Maline described above in Finding of Fact number 12, Bartz then read Maline excerpts from a Bell handbook, "A Personal Responsibility," and from the Bell "Supervisor's Reference Guide. " The sections Bartz read to Maline from the handbook, "A Personal Responsibility," were:
Paragraph five of the "Conflict of Interest" section which states, "Employes should avoid any outside activity that could adversely affect the independence and objectivity of their judgment, interfere with the timely and effective performance of their duties and responsibilities, or that could discredit the company or conflict or appear to conflict with the company's interests;"
That part of paragraph two of the "Company Property" section, which states, "Company property should not be used for personal benefit, or any other improper purpose;"
That part of paragraph two of the "Company Records" section, which states, "A false or misleading report or record of measurement data is considered as serious as falsifying vouchers, financial data, or records pertaining to company funds or property;"
That part of the "In Conclusion" section which states, "Violations or suspected violations of any of the policies or principles contained in this booklet, or in other company rules and practices, should be promptly reported to the company security organization. Violations can result in disciplinary action including dismissal and criminal prosecution;"and the section Bartz read to :saline from the "Supervisor's Reference Guide" was paragraph f of section 65. 5 which read:
"The sale, distribution or possession of illegal drugs on company premises, or while on company business, is prohibited. Employes who sell, distribute or have in their possession illegal drugs while on company premises or on company business shall be relieved of their duties. "
After reading these sections to Maline, Bartz advised Maline that he was terminated. The meeting then ended.
14. Subsequent to his termination, Maline filed a grievance challenging the termination under the applicable collective bargaining agreement. Pursuant to the filing of this grievance, a meeting was held between union president Andridge, union vice president Burns, union chief steward Fenstermacher, Bell division manager Gillard, Bell district manager Rintelman, and Bell manager Johnson. In this meeting, the Bell representatives indicated that they felt that Maline had committed the crime, that he was in violation of the cede of ethics, and that whatever the officer had in his complaint was the basis for their dismissing him and their conclusion that he violated their cede of ethics. The representatives of Bell confirmed in this meeting that the Police Department had contacted them by telephone on June 30 to advise them of Maline's arrest.
15. A determining factor in Bell's decision to terminate Maline was Bell's belief that Maline had engaged in dealing cocaine out of a Bell company truck while on work time. The sole basis for Bell's belief that Maline had engaged in this conduct was its awareness that he had been arrested on a charge of engaging in such conduct. His arrest was thus a determining factor in Bell's decision to discharge him.
Based on the Findings of Fact made above, the Commission makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Wisconsin Bell, is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Bell terminated Maline because of his arrest record, in violation of section 111. 321 and 111. 322(1), Stats.
3. The circumstances of the charge pending against Maline at the time of his discharge, and because of which he was discharged, were substantially related to the circumstances of his job, within the meaning section 111. 335(1)(b), such that Bell was legally entitled to suspend Maline from employment at the time of his discharge.
Based on the Findings of Fact and Conclusions of Law made above, the Commission makes the following:
ORDER
1. That Bell rescind the termination of Mark Allen Maline, and that Bell reinstate Mark Allen Maline as an employe, provided, however, that Maline's status upon reinstatement shall be that of suspension from employment for so long as the criminal charges on which he was arrested on June 29, 1987 are pending. Bell is not required to pay Maline or provide him any other benefit of employment during the period of this suspension.
2. Within 30 days of the expiration of time within which an appeal may be taken herein, Respondent shall 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.
Dated and mailed October 30, 1989
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
MEMORANDUM OPINION
This case concerns the decision of Wisconsin Bell to terminate its employe, Mark Allen Maline, in July 1987. Bell contended, and the Administrative Law Judge found, that Maline was terminated because he lied to Bell about the reasons for an absence, claiming to be sick when in fact he was not. However, the Commission has concluded that this was not the only reason for Bell's decision. The Commission is satisfied that Maline's arrest on charges of dealing cocaine out of one of Bell's trucks while on duty was also a determining factor in the decision. As will be discussed below, Bell could have suspended Maline from employment based on that arrest, with legal impunity. Because it chose to terminate him outright, however, the Commission is compelled to find that Bell violated the Wisconsin Fair Employment Act.
The Commission is convinced by the evidence that Bell's Security Department was contacted directly by the arresting police department and informed of the nature of the charges against Maline, no later than June 30, 1987. This is established by Maline's testimony that he was told precisely that at the discharge meeting (TR 5), and by his testimony as to what was said at the grievance meeting subsequent to his termination (TR 12-13). (1) It is also confirmed by the evidence that in the discharge meeting, the representative of Bell's Security Department asked Maline if he had used the company van in dealing drugs. Clearly, this was more than just a wild guess on his part; it was informed by the communication he had received from the Police Department on the specifics of the charges.
In Onalaska v. LIRC and Bentzen, 120 Wis. 2d 363 (Ct. App. 1984), the court of appeals held that a termination was not "because of" an arrest where the termination resulted from the employer's belief that the employe had engaged in certain illegal conduct and where that belief was not used on the fact of the arrest but was rather based on other information which the employer came into possession of through its own investigation. This rule is not applicable here, since it is clear that Bell had one source and only one source for its belief that Maline had used company property and work time to deal cocaine: the fact of his arrest on charges that he had done so. Maline did not admit that he had done so, his mother (in her telephone call with Bartz) communicated only the fact that he had been arrested, and there was simply nothing besides the fact of the arrest that could have led Bell to believe that Maline had engaged in the conduct in question. Therefore, if Bell discharged Maline because of that belief, it discharged him because of arrest record within the meaning of section 111. 335(1)(b), Stats.
The conclusion that the arrest was in fact a reason for the discharge is one the Commission finds virtually unavoidable given the evidence as to what occurred in the discharge meeting. After an initial admission by Maline that he had not been sick but had in fact been incarcerated, and after some questioning by Bell's Security Department representative about whether Maline used the company truck in dealing drugs, Bartz read a number of items to Maline and then informed him that he was terminated, without stating a particular reason for the termination. Clearly, the items Bartz read to Maline served as, and can be seen as, the indications of the reasons for the termination: they represent standards of behavior which Bell evidently believed Maline had violated and the violations of which were being offered to him as explanations for his discharge. Although one of the quoted texts related to false reports and records, and can thus be viewed as consistent with Bell's claim that it discharged Maline simply for lying about the reasons for his absence, three of the five items to which Maline's attention was directed were obviously aimed at the allegations of his having sold cocaine out of the company's truck while at work. The item about "outside activity" which could interfere with the employe's performance or discredit the company, the item about use of company property for personal benefit or other improper purposes, and particularly the item about use, possession or distribution of illegal drugs on work premises or business, clearly have no arguable connection to a concern over lying about the reasons for an absence, but they just as clearly implicate a concern over the charged drug activity. Considering this evidence together with the evidence as to the statements made in the grievance meeting, there is virtually no doubt that Bell's belief that the employe had dealt drugs out of the company vehicle, which belief was based solely on his arrest on those charges, was a significant and determining factor in his discharge.
While Maline indisputably lied to Bell about the reasons for his absences, Bell cannot escape a finding that it violated the Act by asserting that it would have fired Maline in any event. Although the law may be different in other jurisdictions and under other enactments, cf. Price Waterhouse v. Hopkins, __U. S.__ (1989), 49 EPD par. 38,936, the rule in Wisconsin under the Fair Employment Act is that an employe may not be lawfully terminated if the termination was motivated in part by prohibited bias, even though valid reasons might exist for the discharge. Collins v. Madison Area Technical College and Kelly Services (LIRC, 12/19/86). The "but for" test for causation described in Mt. Healthy City Board of Education v. Doyle, 492 U. S. 274 (1977), is not applicable under the Wisconsin Fair Employment Act; the appropriate causation standard is the "in part" test, requiring the employe to demonstrate only that the employer's action was based at least in part upon an impermissible consideration. The discriminatory reason must be a determining factor in the employer's decision, but it need not be the only determining factor. Olsen v. County of La Crosse (LIRC, 6/12/89), Lohse v. Western Express (LIRC, 2/4/86). The courts in Wisconsin have agreed with this approach. Sex need only be shown to have been a factor in order to support a finding of sex discrimination; Appleton Electric v. DILHR and Kreider, Dane County Circuit Court, November 7, 1977. Handicap discrimination can be shown where the handicap is one of the reasons for non-hire regardless of how legitimate the other reasons are; Wisconsin Dept. of Agriculture v. LIRC and Anderson (Dane County Circuit Court, May 25, 1978). The holding of the Wisconsin Supreme Court in Muskego-Norway Consolidated Joint School District No. 9 v. WERB, 35 Wis. 2d 540 (1967), that an employe may not be fired when any one of the motivating factors is a statutorily protected one, is applicable to issues arising under the Fair Employment Act; Pokrass v. LIRC and Applied Power (Waukesha County Circuit Court, August 20, 1981), Abbyland Processing, Inc. v. LIRC (Court of Appeals District III, unpublished opinion, February 3, 1987). The holding of the court of appeals in Puetz Motor Sales v. LIRC, 126 Wis. 2d 168 (Ct. App. 1985), that a termination is unlawful if age is a determining factor in the termination decision, is also consistent with this rule.
Besides the fact that this rule is firmly grounded in a continuing line of precedent in Wisconsin, it is appropriate to apply it here because of the evidence that raises a question as to whether Maline would in fact have been discharged simply for his offense of lying to the employer concerning the reasons for his absence. The employer's witness, Bartz, when directly asked whether it was the normal and standard procedure for Wisconsin Bell to terminate an employe who called in falsely reporting illness when not ill, stated that he could not answer the question, and that each case would have to be decided under its own merits. He disclosed that in his years as a supervisor, he never had the occasion to terminate anyone for calling in sick when they really were not. Furthermore, Bell introduced no evidence of an attendance policy or disciplinary policy that specified the appropriateness or even the possibility of discharge for falsely reporting illness to explain an absence. While it is certainly possible to speculate that Bell might have terminated Maline simply for calling in and claiming that he was sick when he was not, the record here hardly takes the matter beyond the point of speculation.
The direct evidence which Bell offered at the hearing, by testimony of the arresting officer, that Maline actually did deal cocaine out of the Bell truck, also cannot avoid a finding of liability. First, the Commission is reluctant to endorse a procedure by which, in hearings before the Equal Rights Division on allegations of arrest record discrimination, litigation on the guilt or innocence of the arrested person takes place while the actual criminal charge is still unresolved by the criminal justice system. An accused, the beneficiary of the Fifth Amendment right against self-incrimination, may be understandably reluctant to testify about the incident in the civil administrative proceeding, yet may feel constrained to do so in order to avoid a finding by a tribunal that he or she did what was alleged. Arrest record discrimination cases should not be turned into criminal trials. Second, the evidence offered by Bell is essentially irrelevant to the question of liability for arrest record conviction. Even in a case in which the guilt of the accused is established in the most definitive (and acceptable) way possible -- by actual criminal conviction -- it will still be held that a discharge of that employe because of their arrest was a violation of the Wisconsin Fair Employment Act. Shipley v. Town and Country Restaurant (LIRC, 7/14/87). This is because there are no exceptions to the illegality of discharging an employe because of arrest record.
The guilt or innocence of Maline will be eventually determined by the disposition of the criminal charges against him (which were unresolved at the time of the hearing, and which continue to be unresolved insofar as the Commission is aware). Until that happens, it continues to be the case that Bell did not and cannot legally discharge Maline because of his arrest. Information provided by the arresting officer now is really no different from information provided by the arresting police department at the time; it is information arising out of and in connection with the arrest, not out of some other source such that the rule of Onalaska, supra, could be invoked.
For these reasons, the Commission has concluded that Bell violated the Wisconsin Fair Employment Act by discharging Maline because of arrest. This presents the question of the remedy Maline is entitled to. As noted above in its Conclusions of Law, the Commission concluded that the circumstances of the offense with which Maline was charged were substantially related to the circumstances of his job. The Commission has previously held, in the case of a pizza delivery driver who was arrested for soliciting a prostitute while on duty and in the vehicle used in connection with his job, that where an employe is arrested for conduct engaged in while on duty for his employer, the circumstances of the arrest are per se related to the job. Kozlowicz v. Auqie's Pizzaria (LIRC, 12/7/82). The Commission considers this rule to be applicable here. Section 111. 335(1)(b), Stats., provides that it is not employment discrimination to suspend from employment any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity. Bell thus could have legally suspended Maline from employment on July 5, 1987, and continued him in the status of a suspended employe to date, and until the charges against him are resolved. For this reason, Maline is not entitled to back pay, nor is he entitled to an order that he be reinstated to actual employment.
The Commission wishes to affirmatively note that it does not consider it inconsistent with application of the "in part" rule of causation, to hold that Maline is entitled to no monetary remedy here because the employer could have suspended him. The "in part" test of causation relates to the question of whether there has been a violation of the Act; the question of what remedy is due given any violation found implicates different concerns. Given the provisions of section 111. 335(1)(b), Stats. , the Commission cannot legally require an employer to employ a person who is subject to a pending criminal charge, the circumstances of which substantially relate to the person's employment. Bell is not now, and never has been, legally required to provide actual remunerative employment to Maline while this charge is pending against him, and the Commission will not issue an order inconsistent with that legal reality. Here, as in Shipley v. Town and Country Restaurant, supra, a violation of the prohibition against discharge because of arrest record may be found and there will still be no remedy to which the employe is entitled where the circumstances of the charged offense substantially relate to the employment such that suspension of the employe would be legal.
The Commission considers it advisable to express its views on the effect of its order in this case on the relationship between Bell and Maline in the future and at such time as the criminal charges against Maline are finally resolved. At this point, based on its assumption that the charges are still unresolved, the Commission has ordered simply that Bell rescind the termination of Maline and "reinstate" him into the status of a suspended employe, who has been on suspension since July 5, 1987. Because section 111. 335(1)(b), Stats. , mentions nothing about suspension "with pay," the Commission concludes that the suspension which that section authorizes may be a suspension without pay or any other benefits, and it thus does not require anything other than this from Bell.
The Commission recognizes that, at some point, the criminal charges against Maline will be resolved in some fashion. If, at that time, Bell takes action to alter the employment status of Maline, as for example by formally terminating his employment, and if Maline considers that that action constitutes a violation of the Wisconsin Fair Employment Act, his remedy will be to file a new complaint alleging such a violation, rather than to return to the Commission in connection with this case. However, it would be the Commission's view, expressed here solely for the information of the parties, that if Maline is convicted of a criminal charge arising out of his arrest on June 29, 1987, a termination of his employment at that point because of the conviction would be subject to the affirmative defense set forth in section 111. 335(1)(c)1, Stats., relating to termination of an individual who has been convicted of an offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. It is also the Commission's view that, if Maline is acquitted of all of the charges arising out of his arrest, or if the charges are otherwise disposed so that they are no longer pending and in such a fashion that no conviction results, and Bell thereupon terminates Maline's employment, the termination will arguably constitute a violation of section 111. 335(1)(b), Stats. , unless it can be concluded that the termination is not "because of" the arrest. Finally, it is the Commission's view that, even if the charges against Maline are resolved without any conviction, he will not be entitled to any retroactive remuneration for the period of his suspension since section 111. 335(1)(b), Stats. , makes no reference to suspension "with pay. "
NOTE: Despite the fact that it has reversed the Administrative Law Judge's implicit finding that Maline's lying to Bell concerning the reason for his absence was the sole reason for the termination, the Commission has not consulted with the Administrative Law Judge. The Commission considers that the requirement of consultation is not present in this case. The consultation requirement does not come into play where the Commission's disagreement with the Administrative Law Judge does not involve a question of credibility. Briggs & Stratton Corp. v. ILHR Dept. , 43 Wis. 2d 398, 410 (1968). Not every question of fact implicates questions of credibility. While genuine credibility questions are presented when, for example, the testimony of two witnesses on a particular point of fact is in direct disagreement, many questions of fact concern only the proper conclusions and inferences to be drawn from other facts in the record. The Commission considers that it is not required to consult with administrative law judges when reversing them on findings of fact that are the product of such "derivative inferences" (as distinguished from "testimonial inferences" drawn by the trier of fact from the manner in which testimony is presented, which the administrative law judge will be in a position to evaluate). Savage v. Stroh Container (LIRC, 9/20/89). In this case, there were no actual direct disputes of fact between Maline and Bell's witness, Bartz. The sole significant issue in the case was whether Bell's decision was motivated solely by the fact that Maline had lied to it concerning the reason for his absence, or whether it was also motivated by its concern over Maline's arrest. There was no actual "conflicting testimony" on this point; there was simply an assertion by Bell as to its reason, and the evidence as to all of the surrounding circumstances. A decision-maker, in such a case, is required to resolve the issue by drawing inferences from the other facts in the record. The Commission has simply drawn a different inference from the Administrative Law Judge, for the reasons described above. It does not consider that the Administrative Law Judge's observations of the demeanor of the witnesses at hearing would have any significance to the question of the appropriateness of what inference should be drawn on this question.
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Footnotes:
(1)( Back ) Maline was not at this grievance meeting and his testimony concerning it was obviously a hearsay description of what he was subsequently told occurred at it. However, Bell's counsel did not object to Maline's testimony about what occurred at that grievance meeting. Hearsay testimony which is received into the record without an objection being made is available to the trier of fact as much as any other evidence, and can be considered by the trier of fact to whatever extent he or she finds it to have probative value. Schlicting v. Schlicting, 15 Wis. 2d 147 (1961). Therefore, the Commission has found it appropriate to consider this evidence.
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