JONAS MILES, Complainant

REGENCY JANITORIAL SERVICE, Respondent

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 conclusions in that decision as its own, except that it makes the following modifications:

Paragraphs 16, 17, 18 and 19 of the FINDINGS OF FACT are deleted and the following paragraphs are substituted therefor :

"16. The information from Det. Preuss indicating that Miles had a conviction record for armed robbery caused Kusch concern because she did not believe that anyone with that type of conviction was covered under the respondent's bonding agreement.

17. As a result of the information from Det. Preuss, Kusch instructed Schaible to check Miles' employment application to see what he had noted about having a conviction record and to make sure that the respondent had a Milwaukee background check on him in his file. Kusch learned from Schaible that Miles had answered "no" to the question inquiring if he had ever been convicted of a crime. The respondent's policy is to terminate employees who falsify their applications.

18. After learning that Miles had answered "no" to the question inquiring if he had ever been convicted of a crime, Kusch had further conversations with Det. Preuss who again informed her that Miles had convictions.

19. Based on the information from Det. Preuss indicating that Miles had a conviction record, including a conviction for armed robbery, Kusch believed that Miles had falsified his employment application and that he was not bondable under its bonding agreement. Kusch therefore determined that Miles' employment should be terminated."

Paragraph 22 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor :

"22. As noted in Finding No. 14, above, Heinz Dietrich was the other Regency employee who had a conviction record, according to the information provided by Det. Preuss. Kusch obtained Dietrich's conviction records from the Milwaukee Police Department and went over them with Dietrich. Dietrich's application noted that he had been convicted. Kusch did not believe that the type of offense for which Dietrich was convicted (i.e., domestic violence) made him ineligible for coverage under the bonding agreement."

Paragraphs 3 and 4 of the ORDER are deleted and the following paragraphs are substituted therefor :

"3. That the Respondent shall pay the reasonable attorney's fees and costs incurred by the Complainant in pursuing this matter. As of the date of this order, the amount of those fees and costs are as follows: $7,260.00 for attorney's fees and $10.83 for costs, for a total sum of $7,270.83. This total sum shall be paid by check, made jointly payable to Jonas Miles and to his attorney, Hazel J. Washington.

4. That within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).

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

Dated and mailed May 31, 2001
milesjo . rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The respondent, Regency Janitorial Service, provides janitorial services. Maggie Kusch is a co-owner of the respondent.

The respondent is required to have bonding insurance in order to provide janitorial services to commercial facilities. The respondent has an agreement for bonding insurance with West Bend Mutual Insurance. Under this agreement the respondent is to only hire people who can be bonded. It was Kusch's understanding that anyone with convictions for theft and robbery did not qualify under the bonding agreement.

The complainant, Jonas Miles, completed an application for employment with the respondent on March 20, 1998. In response to the application question "Other than a minor traffic violation, have you ever been convicted of a crime?" Miles indicated that he had not been convicted of any crime by underlining the word "NO."

On or about March 24, 1998, Miles began working as a cleaning worker for the respondent. Miles was assigned to clean at the respondent's account with Westwood Health and Fitness.

In early July 1998, the theft of a diamond ring was reported at Westwood Health and Fitness. The general manager of Westwood Health and Fitness asked Kusch for a list of the names of employees who may have been at the facility at the time of the theft. The names of these employees were turned over to the Waukesha Police Department. Subsequently, Debbie Preuss, a detective from the Waukesha Police Department, met with Kusch. Preuss informed Kusch that Miles might have been involved in the theft of the ring because she had records showing convictions for Miles in the states of Illinois and Louisiana. Kusch did not ask Preuss to see the conviction records for Miles. Kusch took Preuss' word that Miles had a conviction record.

Kusch testified that after told about the convictions this caused her concern because if she had employed someone who had a record of convictions, she was in violation of her bonding agreement and could not retain that employee. Kusch testified that as a result of the information from Detective Preuss she instructed human resources manager, Heidi Schaible, to check Miles' employment application to see what he had noted about having been convicted and to make sure the respondent had a Milwaukee background check on him in his file. Kusch testified that she learned from Schaible that Miles' application did not disclose that he had been convicted of a crime.

Kusch testified that it is the respondent's policy to terminate if someone falsifies his or her employment application. Kusch testified that she instructed Schaible to terminate Miles' employment and that the reason why was "because of the information Detective Preuss gave me that she believed that he had been convicted of crimes, he falsified his application." Kusch also testified that Miles was discharged because he was not bondable.

Miles testified that he has never been convicted of a crime. Miles testified that in 1978 he had been arrested in Chicago, Illinois on a charge of armed robbery, but the charge was subsequently dismissed. Miles testified that he has never been arrested or convicted of a crime in Louisiana.

Miles and Schaible relate a different version of events as far as who notified Miles of his termination and what transpired upon notice of his termination, but this difference has little significance in this case. Miles was presented with an "Employee Disciplinary Report" that stated he had lied on his application, that he is unbondable and that he is dismissed.

Kusch did not meet with Miles to discuss his alleged conviction record prior to her decision to discharge him. After Miles filed his complaint of discrimination with the Equal Rights Division in November 1998, Schaible made a request to the State of Illinois for conviction records for Miles. The respondent did not receive a conviction report from Illinois for Miles. No documentation was presented at the hearing to show that Miles has a conviction record.

Kusch testified that as a result of her conversations with Preuss, she also learned that another employee assigned to Westwood Health and Fitness, Heinz Dietrich, had convictions for domestic violence. Kusch obtained Dietrich's conviction records from the Milwaukee Police Department and went over them with Dietrich. Kusch testified that Dietrich's employment application indicated that he had been convicted. Kusch testified that Dietrich's employment was not terminated because his convictions were for domestic violence and not related to the respondent's bonding agreement.

Kusch did not discuss Miles' alleged situation with the West Bend Mutual Insurance Company to determine if he qualified for bonding insurance. Kusch did not inquire about alternative bonding insurance with other insurance companies. Kusch testified that in her twelve years with the respondent she had never found a bonding agency that accepted people with convictions of theft or robbery.

The ALJ determined that an employment decision based on information indicating that an individual has a conviction record, even if the individual has no conviction record, is a decision based on conviction record within the meaning of the Act. The ALJ determined that Miles' employment was terminated on the basis of conviction record because Kusch's decision to terminate him was primarily motivated by a belief that Miles was not bondable (based on information indicating that he had an armed robbery conviction) under the respondent's bonding agreement.

The ALJ rejected the respondent's argument that Miles' employment was terminated because he had falsified his application for employment and not on the basis of conviction record. The ALJ determined that the issue of falsification only arose after Kusch had already made her decision to terminate Miles due to her concerns about bondability. The ALJ determined that even assuming that falsification, rather than bondability was in fact the respondent's primary reason for terminating Miles, the falsification theory did not withstand scrutiny. The ALJ decided that the reason that it did not was because unlike the case of Luckman v. Western-Southern Life Insurance Co. (LIRC, 2/16/90), aff'd sub nom Luckman v. LIRC (Milw. Co. Cir. Ct. 9/4/90), the respondent had obtained no documentation to establish that Miles had in fact falsified his application.

Finally, the ALJ determined that the bondability exception to the prohibition against conviction record discrimination set forth in § 111.335(1)(c)2, Stats., was not applicable.

DISCUSSION

The Wisconsin Fair Employment Act, sections 111.321 and 111.322, prohibits an employer from terminating an individual on the basis of conviction record. Wisconsin Statute § 111.32(3) defines the term "conviction record" as follows:

"`Conviction record' includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority."

One exception to the prohibition against conviction record discrimination is contained in § 111.335(1)(c)2. That section provides that notwithstanding § 111.322, it is not employment discrimination because of conviction record to terminate from employment, any individual who:

"Is not bondable under a standard fidelity bond or an equivalent bond where such bondability is required by state or federal law, administrative regulation or established business practice of the employer."

The respondent argues that there was no violation of the Act when it terminated Miles' employment. The respondent argues that nothing in the record supports the ALJ's determination that bondability was the primary basis for terminating Miles, or her determination that the respondent's concern about Miles' alleged falsification of his application arose only after it had already decided to terminate Miles due to his perceived lack of bondability. The respondent argues that based upon the information that a detective provided (that Miles had criminal convictions in two states, including a criminal conviction for armed robbery), Kusch believed that Miles was not bondable and that he made a false representation on his application. The respondent argues that Kusch's motivation in discharging Miles was her belief that Miles was not bondable and that he had made a false representation on his application. The respondent argues that Kusch's motive therefore had nothing to do with Miles' conviction record. The respondent argues that it held good-faith beliefs both that Miles was not bondable and that he had lied on his employment application.

The commission tends to agree with the respondent's argument that the record does not support the ALJ's determination that bondability was the primary basis for its decision to terminate Miles' employment, or the ALJ's determination that the respondent's concern about falsification of the application only arose after it had already decided to terminate miles' employment due to a lack of bondability. There is no specific evidence from which to draw these conclusions. It could be that the ALJ drew an inference that the issue of bondability primarily motivated Kusch's decision because the respondent could only hire individuals who could be bonded and because when testifying about her concerns after being told Miles had a conviction record, bondability was the first concern that Kusch mentioned. But neither of these reasons provides a sufficient basis from which it can be concluded that bondability was the primary basis for Kusch's decision to terminate Miles' employment. Regardless of how important or what sequence the concerns about Miles' bondability and falsification of application factored into the decision to terminate Miles' employment, however, both concerns were solely based on information indicating that he had a conviction record.

The commission will now turn to the respondent's argument that the Luckman case supports its position that Miles' termination was not a violation of the Act. In Luckman, the complainant, an insurance salesperson, alleged that the employer discharged him because of his conviction record. The employer asserted that Luckman was not discharged because of his conviction record, but because he falsified his application for employment by indicating that he had never been convicted of a criminal offense when, in fact, he had. Two arguments were presented by the complainant to support his claim that he had been discharged because of his conviction record and not because of any concern about falsification of his application.

First, the complainant argued that the employer had learned of his conviction record immediately after his hire through some records it had received and that he had confirmed that he had a conviction record in a meeting with his supervisor, but the employer did not discharge him until later when it learned about the nature of his criminal offenses. The commission determined, however, that the records cited by the complainant were hardly reliable enough proof of the existence of a conviction record, and that there was no reliable evidence the complainant's supervisor had communicated the complainant's admission to having a conviction record to the individual who was responsible for terminating his employment.

Second, the complainant argued that he had not, in fact, falsified his employment application because he left the question concerning prior conviction record blank. Rejecting this argument as a basis for alleged conviction record discrimination, the commission reasoned as follows:

"An allegation of discrimination because of conviction record (or any other protected status under the Fair Employment Act) raises a question as to why an employer made a particular decision. If the decision was made because of the protected characteristic, it may (subject to the applicability of any affirmative defenses) be found to have violated the Act; if, on the other hand, the decision was not made because of a protected characteristic, there will be no violation. If an employment decision is not made because of a protected characteristic, it is irrelevant if it was made because of a mistaken view as to certain facts. The `real' state of the underlying facts does not necessarily have any direct bearing on the question of what the decisionmaker's motive was; it is necessary to look at the evidence as to what the decisionmaker believed the facts of the case were."

(Luckman, mem. op., p. 10)(Emphasis added)

In Luckman, the commission went on to point out that the question of whether the complainant had checked the "no" box or left it blank was not relevant because: 1) the complainant had introduced no convincing evidence that the decisionmaker did not in fact believe that he had checked the "no" box under the prior convictions question on his application; 2) however the checkmark in the "no" box came to be, the complainant's employment application had a checkmark by the time it reached the decisionmaker; 3) it was only subsequent to the complainant's discharge that he claimed he left the box open; and 4) the complainant also failed to offer any convincing evidence that someone else had checked the box, much less that anyone else had done so out of some motivation prohibited by the Fair Employment Act.

Relying on Luckman, the respondent herein argues that in determining whether it violated the Fair Employment Act when it terminated Miles' employment, its motive is the key factor; whether its belief was correct or incorrect is not relevant. The respondent argues that it is irrelevant whether Kusch's belief concerning Miles' conviction record was mistaken because a discharge motivated by a mistaken belief is not a violation of the Fair Employment Act.

The commission's decision in Luckman does not support the respondent's argument that there was no violation of the Act when it terminated Miles' employment. First, as decided by the ALJ, in Luckman the employee actually had a conviction record, a fact he admitted to upon questioning by the employer and that the employer subsequently had verified. Without proof that Miles actually has a conviction record the respondent has no basis to establish that he lacked bondability and had falsified his employment application.

But there is also a second important distinguishing factor. The debate in Luckman particularly relevant here was whether the complainant in that case had checked or left blank the "no" box concerning prior convictions on his application. The complainant claimed that he had not. The employer believed that he had. It was this issue, whether the employer was correct or mistaken in its belief that complainant Luckman had checked the "no" box concerning prior convictions, that the commission found irrelevant. The reason that this was irrelevant is because the employer's belief that the complainant had checked the "no" box on the employment application was not itself a concern involving a protected characteristic under the Act. Because the basis for the employer's termination decision in Luckman was a belief that the complainant had checked the "no" box concerning prior convictions, thereby falsifying his application, the commission concluded that "If an employment decision is not made because of a protected characteristic, it is irrelevant if it was made because of a mistaken view or belief of certain facts."

Unlike Luckman, in the instant case it was solely the reliance on information indicating that Miles was a person with a record of criminal convictions, a characteristic protected under the Act, that accounted for the respondent's beliefs about Miles' bondability and alleged employment application falsification. As stated by the respondent itself:

"Mr. Miles underlined the word "no" in response to the question regarding criminal convictions when he filled out his employment application. (Tr., p. 13; Ex. 1.) A police detective, however, told Maggie Kusch that Mr. Miles had criminal convictions in two states, including a conviction for armed robbery. (Id. at 49.) Based upon the information that the detective provided to her, Maggie Kusch believed that Mr. Miles was not bondable and that he made a false representation on his application. (Id. At 58-59.) This was Maggie Kusch's motivation in (discharging) Mr. Miles and her actions were consistent with standard company policy. (Id. at 45, 51.) Ms. Kusch's motive, therefore, had nothing to do with Mr. Miles' conviction record."

(Resp. brief, p. 6)(Emphasis added)

Contrary to argument by the respondent, Kusch's motivation had everything to do with Miles' alleged conviction record. Based on information from a police detective indicating that Miles had criminal convictions, Kusch believed that Miles was not bondable and had made a false representation on his application and therefore terminated his employment. There could not be any clearer proof that the respondent's employment decision was motivated by Miles' alleged conviction record. Contrary to argument by the respondent, it is not irrelevant that an employer's belief concerning a protected characteristic was mistaken. Employment actions that are based on an individual's protected status under the Act -- whether made on a mistaken view of certain facts or not -- is exactly what is proscribed by the Act.

The respondent further argues that the case of Ponto v. Grand Geneva Resort & Spa (LIRC, 8/22/96), supports its position that no discrimination occurred. The complainant in that case, whose duties as a fitness center director brought him into contact with individuals under age, was arrested on charges of second degree sexual assault of a child and exposing a child to harmful material. The central issue in the case was one of arrest record discrimination, not conviction record discrimination. (The complainant had not been convicted of any offense at the time of his suspension or termination, nor was it established that the employer perceived him to have a conviction record.) The fact that the complainant's arrest was substantially related to his employment allowed the employer to lawfully suspend him. The fact that the complainant's termination did not occur when the employer learned of his arrest, but over a month later when it came to believe, through additional information obtained through a newspaper that he had confessed to the charges against him, together with the absence of any evidence that the employer's belief that the complainant had confessed was false or incredible, established that the complainant had not been terminated merely because of his arrest.

The respondent argues, "Certainly if the employer in Ponto was justified in relying upon a newspaper article, Maggie Kusch was justified in relying upon information that she received from a police detective." Ponto does not support the respondent's case. In Ponto, what the employer believed in reliance on the newspaper article was that the complainant had confessed to the crimes. An employer's decision to terminate an individual because it believes the individual confessed to crimes is not a decision to terminate on the basis of that individual's arrest record. In Ponto the fact of the complainant's arrest was not the one source and only source for the employer's belief that he had engaged in a dischargeable offense. In this case, what Kusch believed in reliance on the police detective was that complainant Miles had a conviction record. This was the sole basis for Kusch's belief that Miles had a conviction record. It was only after Kusch came to believe that Miles had a conviction record that she then believed that he lacked bondability and had falsified his employment application.

Next, the respondent argues that because detective Preuss had also identified Heinz Dietrich as having a conviction record, and because a check of his employment application disclosed a conviction record and his employment was not terminated, this suggests that it did not terminate Miles on the basis of conviction record. The respondent's handling of Dietrich fails to prove that Miles' employment was not terminated on the basis of conviction record. The fact that Dietrich's employment was not terminated does not change the fact that the respondent terminated Miles' employment solely based on information indicating that he had a conviction record. Unlike the case with Miles, the respondent obtained and reviewed actual criminal records for Dietrich and then reviewed them with Dietrich. In making a decision to terminate Miles' employment without ever obtaining a report showing that he had a conviction record and without ever questioning him about having a conviction record, all that exists is evidence that the decision to terminate was made in reliance on information indicating that he had a conviction record.

As stated above, the ALJ determined that an employment decision based on information indicating that an individual has a conviction record, even if the individual has no conviction record, is a decision based on conviction record within the meaning of the Act. The ALJ cited the commission's decision in Hart v. Wausau Insurance Co. (LIRC, 4/10/87) as support for this proposition. In a footnote the ALJ commented that in a sense, the WFEA prohibits discrimination on the basis of "perceived" conviction record, although the term "perceived" is not used in Wis. Stat. § 111.32(3), as it is in Wis. Stat. § 111.32(8)(c), which relates to perceived disability. Wis. Stat. § 111.32(8)(c) provides that an "individual with a disability" means an individual who is "perceived" as having a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work.

The respondent argues that if Miles had no conviction record, it could not have discriminated against him on the basis of conviction record, and the ALJ's conclusion that the Act prohibits discrimination on the basis of a perceived conviction record is erroneous. The respondent argues that two long-standing principles of statutory construction apply here. The first cited is the principle that where the legislature has expressed one thing, it excludes another. The respondent argues that by including perceived disability in the definition of an individual with a disability but not the definition of conviction record, the legislature excluded perceived conviction record as a basis of discrimination. Second, the respondent argues that extra words should not be read into a statute to achieve a specific result. The respondent's arguments fail. It is not necessary that the word "perceived" appear in the definition of conviction record in order to conclude that discrimination on the basis of conviction record could occur even though the individual has no conviction record. This is so because the Act expressly defines the term "conviction record" to include "...information indicating that an individual has been convicted of any felony, misdemeanor or other offense." Wis. Stat. § 111.32(3)(Emphasis added). "Information indicating" does not mean absolute proof that a conviction record exists. Clearly, the police detective's oral communication to Kusch that Miles had a conviction for armed robbery in Illinois, and a number of other convictions in both Illinois and Louisiana constituted "information indicating" that Miles has been convicted. No extra words need be read into the statute to conclude that the concept of conviction record under the Act is not limited to only situations where absolute proof exists that an actual conviction exists.

Finally, the commission concludes that the bondability exception to the prohibition against conviction record discrimination set forth in Wis. Stat. § 111.335(1)(c)2. is not applicable. The respondent has no basis to establish that Miles lacked bondability without first establishing that he has been convicted. It is only the fact of actually having been convicted of a crime that would call into question Miles' bondability.

ATTORNEY'S FEES

The ALJ awarded attorney's fees of $4,740.00 plus costs of $10.83 for a total award of $4,750.83 incurred by Miles as of the date of her decision. The fee award was based on 31.6 hours work at $150 per hour.

Miles requests an additional $2,520.00 in attorney's fees (16.8 hours at $150 per hour) for services performed in connection with the respondent's petition for review in this matter.

The respondent has not submitted any objection to the attorney's fees awarded by the ALJ, nor has it objected to Miles' request for attorney's fees for services performed on appeal before the commission. An award of $7,270.83 is a reasonable award for this case.

cc: 
Hazel J. Washington
Ronald S. Stadler

Appealed to Circuit Court. Reversed and remanded, March 12, 2002.

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