Wis.LIRC ER Decision: Murray - May 11, 2001 - Conviction record discrimination - 'substantially related' - obtaining narcotics by fraud / R.N. - discharge because of negative publicity over a conviction, or because of learning crime involved was a felony, is discharge "because of" conviction - where crime is committed on the job, it is per se substantially related to that job

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

JAMES MURRAY, Complainant

WAUKESHA MEMORIAL HOSPITAL, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199901234, EEOC Case No. 26G991294

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 last sentence of Paragraph 7 of the Findings of Fact.

Delete the last sentence of Paragraph 8 of the Findings of Fact.

Delete Paragraphs 16 through 18 of the Findings of Fact and substitute therefor the following:

16. On March 9, 1999, Constable made the decision to terminate Murray's employment.

17. Constable decided to terminate Murray's employment because he had learned of the fact that the offense for which Murray had been convicted was classified as a felony, because he was concerned about negative media attention that would occur if Murray were to continue to be employed by Respondent as an R.N. after he had been convicted of that crime, because he believed that the background check law prohibited the Respondent from employing Murray given the crime he had been convicted of, and because of Murray's failure to keep the Respondent informed of the status of the criminal proceedings as he had been expected to do, resulting in Respondent being surprised by and not prepared to immediately respond to the publicity which was given to Murray's conviction when it occurred.

18. Constable prepared a termination letter to Murray on March 9, 1999. He chose to tell Murray only that the termination was because of the background check law, which he believed barred Murray's continued employment, rather than describing all of the reasons that actually motivated his decision, because he felt that doing so would be the easiest way to explain the decision to Murray.

Delete Paragraph 19 of the Findings of Fact.

Delete Paragraph 4 of the Conclusions of Law and substitute therefor the following:

4. By deciding to terminate Murray's employment because he had learned of the fact that the offense for which Murray had been convicted was classified as a felony, and by deciding to terminate Murray's employment because he was concerned about negative media attention that would occur if Murray were to continue to be employed by Respondent as an R.N. after having been convicted of that crime, Constable terminated Murray "because of" conviction record, within the meaning of Wis. Stat. � � 111.322 and 111.335.

5. The circumstances of the offense for which Murray was convicted substantially related to the circumstances of the job from which Murray was terminated, within the meaning of Wis. Stat. � 111.335 (1)(c)1.

6. There is no probable cause to believe that Respondent violated the Wisconsin Fair Employment Act's prohibition of discrimination because of conviction record when it terminated Murray's employment.

DECISION

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

Dated and mailed May 11, 2001
murraja . rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Reasons for the discharge; whether it was "because of" conviction -

The administrative law judge made a number of findings suggesting that the Respondent was not aware of the severity of Murray's conduct prior to learning of his conviction and that part of its reason for terminating him was its discovery after his conviction of just how serious his conduct had been. The administrative law judge also made an implicit conclusion of law, that terminating Murray because of this motivation did not amount to terminating him "because of" conviction record. (1 ) The administrative law judge may have had in mind here, the principle which had its origin in City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984), in which the Court of Appeals held that a discharge was not "because of" a conviction record where it was motivated by the employer's belief, formed on the basis of a statement by the employee in the course of an internal investigation, that he had in fact engaged in the conduct on which the conviction was based.

Based on its review of the record, the commission could not agree with the administrative law judge's analysis of this aspect of the case. The commission believes that the record is persuasive, that the Respondent acquired a fairly good idea of exactly what Murray's conduct was, and how severe it was, within a relatively short period of time after Complainant collapsed at work on January 4, 1998. Murray's conduct occurred at the workplace and was discovered there. Respondent's Exhibits 10, 11, 13 and 14 provide indications of the extent of Respondent's "in-house" knowledge about what Murray had done. Even knowing these things, Respondent did not discharge Murray. This undercuts any suggestion that Respondent was motivated to discharge Murray in part because it first learned only after his conviction how severe his conduct had been. Furthermore, whatever knowledge the Respondent had prior to the conviction as to what Murray had done, it acquired no new knowledge about what he had done after the conviction, except for the specific information as to the nature of the conviction.

Generalizing the rule of Onalaska, the commission has held that an employer's decision to discharge an employee is not "because of" an arrest or conviction record when it is motivated by the employer's belief that the employee has engaged in certain unacceptable conduct, and when that belief arises from sources other than the mere fact of the arrest or conviction. See, e.g., Delapast v. Northwoods Beach Home Caring Homes (LIRC, Feb. 17, 1993). The commission does not believe that learning by way of a conviction about such things as the specific statute involved, the number of counts, or the felony classification of an offense, is equivalent to learning about the underlying conduct from sources other than by way of the conviction. For this reason, it has modified the administrative law judge's decision to remove any suggestions that this case involves an Onalaska-type situation.

The commission agrees with the administrative law judge's factual finding, that Respondent was motivated to discharge Complainant in part because of its concern about negative media coverage resulting from Murray's conviction and its effect on Respondent's public image. (2 ) However, the commission did not agree with the administrative law judge's implicit conclusion of law, that making a decision because of such a motivation did not amount to making the decision "because of conviction record." The commission believes that discharging someone because of negative publicity over a conviction is precisely what the prohibition on conviction record discrimination was intended to prevent.

When an employer asserts that it was not affected by its awareness of a particular characteristic of an employee, but that it made a decision on the basis of adverse media publicity about that characteristic of that employee, it is clearly relying on a supposition that it would or could be harmed by the responses of third parties (such as customers, clients, etc.) who could be affected by that publicity. However, an employer may not avoid liability for a discriminatory decision by asserting that it was simply responding to the preferences of co-workers, or customers, or clients, or prospective partners in or purchasers of the business; see, Stanton v. Abbyland Meat Processing, Inc., (LIRC, May 30, 1985), Richter v. Milw. Bd. Of School Directors (LIRC, October 14, 1977), Waldo v. Milw. Metropolitan Security (DILHR Commission, April 8, 1976), Trainor v. Hanson (LIRC, April 28, 2000), Swanson v. State Street Stylists (LIRC, November 26, 1997). The salient principle involved here, the commission has noted, is that an employer may not discriminate simply because it is urged or pressured by some third party to do so. Swanson. That principle also requires the conclusion, that an employer may not discriminate simply because adverse media publicity about an employee causes the employer to fear that there will be an adverse response by third parties if it does not do so.

For this reason, the commission has modified the administrative law judge's decision to reflect its opinion that, to the extent that the Respondent made the decision to terminate Murray because of its concern about the adverse media coverage which his conviction attracted, it made the decision "because of" his conviction.

The commission agreed with the administrative law judge's findings, that the Respondent was also motivated to discharge Murray by two other factors. One was Respondent's belief, apparently mistaken but unquestionably held in good faith, that it was required to do so by the provisions of the "Criminal history and patient abuse record search" statute, Wis. Stat. � 50.065, and rules thereunder. The other was Murray's failure to keep Respondent apprised of developments in the criminal proceedings, which resulted in Respondent being caught unawares and unprepared to respond when the story about Murray's conviction broke in the media. (3 )

In addition to making findings that these two things were part of the reason that Respondent decided to terminate Murray, the administrative law judge made an implicit conclusion of law that neither of these amounted to deciding to terminate Murray "because of" conviction record. (4 ) The commission's modification of the administrative law judge's findings of fact is intended, in part, to remove this conclusion of law. Whether it is a discharge "because of" conviction record under the WFEA to fire someone because of a good-faith belief that another statute requires the discharge of a person who has been convicted of a particular crime, is a significant and problematic question of law. The question of whether it is a discharge "because of" conviction record to fire an employee because they failed to comply with a requirement to keep an employer apprised of developments in a criminal case concerning the employee, is also significant and problematic. Neither of these questions has previously been addressed by the commission. Because of this, and because it is not necessary to the resolution of this case that they be addressed, the commission elects not to do so, and it expresses no opinion on those questions at this time.

"Substantially related" --

Although the commission finds for the reasons discussed above that Respondent discharged Murray "because of" his conviction, within the meaning of Wis. Stat. � 111.335, that does not end the inquiry, because Wis. Stat. � 111.335 (1)(c) provides that it is not employment discrimination because of conviction record to terminate from employment an individual who has been convicted of any crime the circumstances of which relate to the circumstances of the particular job. While the proceeding in this case was one on review of an Initial Determination finding no probable cause and was thus limited to the question of whether there was probable cause to believe that there had been a violation of the Act, the "substantially related" issue was still relevant. Even if there is probable cause to believe that an employer has discharged an employee because of conviction record, if the offense is substantially related to the particular job it is clear that there could be no finding of discrimination in a proceeding addressing the merits of the case, and the complaint should therefore be dismissed.

The commission is in complete agreement with the administrative law judge, that the offense for which Murray was convicted was "substantially related" to the job from which he was terminated.

Murray, a Registered Nurse working as a health professional in a job involving patient contact and care, stole controlled substances from his employer while at work (in such a manner that they ended up being charged to patients who had not received them), administered them to himself at work, and engaged in his job duties, including his duties of patient care, while under the influence of those drugs, sometimes being so impaired that he was incoherent or incapable of standing. The position from which he was discharged was not exactly the same position he had been in when he engaged in this conduct, but it was also a patient contact position in which he was acting as an R.N. and dealing with patients in connection with their care and treatment, and it was still a position in the same hospital building where the narcotics he had stolen and used were kept.

The commission has previously held, that a conviction for conduct which an employee has engaged in on the job is per se "substantially related" to that job. Kozlowicz v. Augie's Pizzaria (LIRC, December 7, 1983). This interpretation recognizes that in such cases, the person's own conduct evidences the fact that the job is apparently a circumstance predisposing them to commit the type of offense they committed. Murray was convicted for offenses he committed while he was working for Waukesha Memorial as an R.N. in a position involving patient contact and responsibility for the patients' care; the job from which he was discharged was one in which he was working for Waukesha Memorial as an R.N. in a position involving patient contact and responsibility for the patients' care. In these circumstances, the conclusion that the circumstances of the offense are "substantially related" to the circumstances of the job is compelling.

In addition, the specific holding of the Supreme Court in Milwaukee County v. LIRC and Serebin, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), counsels strongly that a conclusion of "substantially related" is appropriate here. That court clearly found it significant in that case, that the offense was committed by Serebin while he was in the course of working at a job that involved caring for dependent persons in an institutional setting, and that the job he was subsequently discharged from (crisis hotline worker) was also involved with providing care or services to people in trouble. In Murray's case, there is a much more direct involvement in patient care, both in the job in the course of which Complainant engaged in the offense, and in the job from which he was subsequently terminated.

In closing, the commission wishes to emphasize that this decision should not necessarily be interpreted as endorsing a view, that Respondent should have terminated Murray, either when it did, or earlier. The WFEA does not require employers to discharge employees who are convicted of offenses the circumstances of which "substantially relate" to the circumstances of their employment; it merely insulates them from liability under the Act if they choose to do so. The fact that not discharging such an employee might be a reasonable course in certain circumstances is recognized by Wis. Stat. � 50.065 (5m), which provides that an entity such as Respondent herein "may" refuse to employ a person who has been convicted of a crime that is not a "serious crime" under the statute but which nonetheless is "substantially related" to patient care. That a hospital may choose to refuse to employ a person in such circumstances makes it clear that they also may choose to employ such a person. In cases involving crimes which are not classified as "serious crimes" under � 50.065 but which are nonetheless "substantially related" to the work involved, the law places the matter in the discretion of the employer. There are good reasons for allowing that discretion; impaired professionals programs such as the one the Respondent initially placed Murray in are potentially valuable, and considerations of the possibility of rehabilitation are also important and appropriate considerations in cases of this type, as recognized by Wis. Stat. � 50.065 (5). This decision addresses only the question arising under the Wisconsin Fair Employment Act. As far as that law, standing by itself, is concerned, Respondent had the right to decide to retain Murray as an employee, or not, notwithstanding his conviction. All that this decision determines, is that Respondent has no liability under the WFEA for the choice it made.

cc: Larraine McNamara-McGraw, Attorney for Complainant
Thomas W. Scrivner, Attorney for Respondent

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Footnotes:

(1)( Back ) This was implicit in the administrative law judge's recitation, in paragraph 18 of his findings, of this (and other) things found to have been the reasons for the discharge decision, followed immediately by a statement that "[t]he Respondent did not terminate Murray's employment because he had a conviction record."

(2)( Back ) The administrative law judge's findings of fact were somewhat ambiguous, as to whether the problem was media publicity about Murray's conduct, or his conviction. The commission does not believe that the facts on this are ambiguous, and it is partly for that reason that it has modified some of the administrative law judge's findings. The record demonstrates that there was substantial adverse media publicity about Murray's conduct in the period after it was first discovered and was being investigated; this, however, did not cause Respondent to decide to discharge Murray. The adverse media publicity that arose in March, 1999, was focussed on the fact that Murray had been convicted, and it was this adverse media publicity that was one of the factors motivating Respondent to discharge Murray.

(3)( Back ) This was an area of the case in which there was some significant dispute as to the facts. The commission would note that it is in complete agreement with the findings of the administrative law judge in this respect and with his discussion of those matters in the second paragraph of his Memorandum Opinion.

(4)( Back ) See note 1, supra at p. 3.

uploaded 2001/05/11