GREGG TURNER, Complainant

MANIFOLD SERVICES INC, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:

1. The respondent, Manifold Services, Inc. (hereinafter "Manifold") is a company that owns and manages Wood Creek Apartments, a residential apartment complex in Kenosha, Wisconsin. Manifold's corporate headquarters are located in Kalamazoo, Michigan.

2. From August of 1999 until August of 2000, Brian Spencer (hereinafter "Spencer") was the assistant manager at Wood Creek Apartments. As an assistant manager, Spencer supervised employees at Wood Creek Apartments who performed a variety of duties, including maintenance of occupied apartments and refurbishing unoccupied apartments. Spencer also had the authority to hire and fire employees at Wood Creek Apartments.

3. In November of 1999, Wood Creek Apartments advertised in the newspaper for individuals to work as "redecorators." The duties of a redecorator are to repair and refurbish unoccupied apartments and make them look "new" for the next tenant. In rare circumstances, a redecorator might be asked to perform other duties, such as shoveling snow or repairing a leak.

4. On November 12, 1999, the complainant, Gregory S. Turner (hereinafter "Turner") completed an application to be a redecorator at Wood Creek Apartments. On the application, Turner was asked the following question: "Have you ever been convicted of a crime?  If so, when, where, and nature of offense?"  Turner decided to answer "no" on the application because he was concerned that he would not be considered for employment if he accurately answered the question. Turner was aware when he completed the application that by signing the application, he was agreeing to allow Manifold to investigate the information he provided on the application. Turner was also aware that Manifold's application stated that an applicant could be dismissed for omitting or misrepresenting information on the application.

5. In December of 1999, Spencer interviewed Turner for the redecorator position at Wood Creek Apartments. During the interview, Spencer told Turner that Manifold was stringent about conducting background checks and asked Turner if he had anything that he wanted to disclose. Turner told Spencer that he omitted the information about his conviction because he was afraid that he would not be hired. Spencer gave Turner some "white-out" and allowed Turner to change his answer on the application. Turner then changed his answer to the question of whether he had been convicted of a crime to "Yes." He wrote on the application: "Minor drug charge 14 years ago. No more problems - Drug Free."

6. At some point after interviewing Turner, Spencer decided to hire him as a redecorator at Wood Creek Apartments. Spencer contacted Turner and told him that he could begin working at Wood Creek Apartments on Monday, January 24, 2000. Spencer instructed Turner to bring a copy of his conviction record with him to work when he began on January 24, 2000.

7. Brian Mead (hereinafter "Mead") is a property manager for Manifold who works in Kalamazoo, Michigan. As part of his job duties, Mead is responsible for reviewing the applications of employees. At some point after Spencer interviewed Turner, Mead reviewed Turner's employment application. Mead reviewed the application to see if it was complete and accurate. Mead noted that Turner had stated on the application that he had a conviction for drug use. Mead called Spencer to ask about the circumstances of Turner's drug conviction. After talking to Spencer, Mead decided to approve Turner's application for employment. Mead's decision was based on the information on the application and the information that he obtained from speaking to Spencer. Mead decided that a minor drug offense that occurred 14 years ago would not prevent Turner from being able to perform the job duties of a redecorator. Mead was unaware that Turner had initially lied on his employment application by stating that he did not have any criminal conviction record when he made the decision to approve Turner's employment with Manifold.

8. On Monday, January 24, 2000, Turner reported for his first day of work at Wood Creek Apartments. Turner gave Spencer a copy of an arrest and conviction record report that he had obtained from the Kenosha Police Department. The report showed that Turner had been arrested on December 1, 1986, for possession of marijuana and had been found guilty of a reduced charge. The document also showed that he had been arrested on three other charges. Turner was found guilty of disorderly conduct with respect to two of the arrests and the charges were dismissed in connection with the third. The police report also showed that Turner had been found guilty of four motor vehicle related violations. The motor vehicle convictions were for speeding, operating a motor vehicle while a license was suspended or revoked, failure to return suspended license plates, and improper use of vehicle registration. The report additionally showed that Turner was arrested on October 26, 1995, for operating a motor vehicle while his driver's license was revoked or suspended. The report listed the disposition of the last citation as "other."

9. When Turner gave Spencer the police report on January 24, 2000, Spencer asked him to explain the three offenses listed directly under the arrest for marijuana conviction. Turner explained that he was arrested and found guilty on November 12, 1989, of disorderly conduct for making annoying telephone calls to a former landlord and that he paid a $250 fine. Turner explained that he was arrested on September 20, 1996, for disorderly conduct, resisting arrest, and obstructing a police officer. Turner told Spencer that the disorderly conduct charge was reduced to a conviction for using profanity in public and that he paid a $96 fine. He informed Spencer that the charge of resisting arrest and obstructing an officer was dismissed. Spencer did not ask Turner about the motor vehicle related citations listed on the report. After listening to Turner's explanation, Spencer decided to allow Turner to begin work.

10. After Turner gave Spencer his arrest and conviction report, Spencer sent it to Manifold's payroll department in Kalamazoo, Michigan. The payroll department forwarded the report to Mead for review. When Mead reviewed the police report, he was surprised to note the number of convictions on the report. Mead located Turner's application so that he could compare the two documents. He noted that the application did not show all of the convictions that were listed on the police report. Mead considered Turner's omission of all of the convictions to be unacceptable. Manifold's application stated that an applicant who omitted requested information or who misrepresented information on the employment application would be dismissed. Mead had previously terminated the employment of other employees at Manifold who failed to truthfully complete the employment application.

11. On February 2, 2000, Mead called Spencer. Mead told Spencer that Turner's police report showed more than just a marijuana drug charge. He told Spencer that Turner's police report was unacceptable and instructed Spencer to terminate Turner's employment.

12. Directly after speaking to Mead, Spencer informed Turner that the Michigan office had directed him to terminate Turner's employment. Spencer told Turner that the decision was based on his police report being unacceptable.

13. Mead's decision to terminate Turner's employment was based on the fact that Turner failed to report all of the convictions on his employment application. Turner was discharged solely because of his failure to truthfully complete the employment application.

Based on the FINDINGS OF FACT made above, the commission makes the following:

1. The respondent did not discriminate against the complainant based upon his conviction record, within the meaning of the Wisconsin Fair Employment Act.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW above, the commission issues the following:

That the complaint in this matter is dismissed.

Dated and mailed January 31, 2002
turnegr . rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Both parties have filed petitions for commission review of this matter. In the complainant's petition, he contends that his discharge was motivated by the mere existence of his prior convictions and that there is no evidence he engaged in any misconduct. The complainant therefore seeks broader relief than that afforded by the administrative law judge. In support of his argument, the complainant points out that, under Wis. Stat. § 939.12, a crime is conduct which is punishable by fine or imprisonment, but that conduct punishable only by a forfeiture is not a crime. The complainant argues that he did disclose his criminal convictions, but that his remaining civil adjudications are not considered crimes under the statute, so his failure to disclose them was accurate. He contends that, because he had no further crimes to disclose, the respondent's assertion that it discharged him on that basis is not factually possible.

The commission finds this argument unpersuasive, for two reasons. First, under the Wisconsin statutes, disorderly conduct is a Class B misdemeanor, and a misdemeanor is considered to be a crime. See Wis. Stat. § 939.60 and § 947.01. While the complainant testified that the second disorderly conduct charge on his record was reduced to profanity in public, he has not alleged that the 1989 charge was reduced, and this would appear to be a criminal charge. Further, Wis. Stat. § 343.44, which addresses driving after license suspension or revocation, provides for penalties for habitual traffic offenders or repeat offenders including fines and imprisonment, suggesting that in certain circumstances such offense is considered to be a crime. Whether or not the complainant's conviction in this case was a criminal one cannot be ascertained from the record, but it is certainly not beyond the realm of possibility. Overall, while the record lacks sufficient information to assess the nature of all of the offenses on the complainant's police report, it does appear that there was at least one additional "crime" which he failed to disclose.

Second, and more importantly, the question of whether the complainant was correct in his understanding that he had reported all of his crimes to the respondent is not dispositive of this case. Even if the complainant had no further crimes on his record, the critical question is whether the respondent believed he did. See, Moncrief v. Gardner Baking (LIRC, July 1, 1992) (the question of whether an employer's asserted nondiscriminatory reason is true can be considered irrelevant if it appears that the employer genuinely believed it to be true). Thus, if the respondent genuinely believed that the complainant had concealed his criminal convictions, this could provide a legitimate nondiscriminatory reason for the complainant's discharge. Having reviewed the record, the commission sees no reason to question the respondent's testimony that it thought the complainant had additional crimes on his record which he deliberately failed to disclose. Indeed, given that the commission's own review of the complainant's police report leads it believe that there may have been further undisclosed criminal convictions, it would find it difficult to doubt the respondent's testimony on that point. Under the circumstances, the commission concludes that the respondent's proffered reason for discharging the complainant was legitimate, and not, as the complainant alleges, a pretext for discrimination based upon the mere existence of prior convictions.

Turning now to the respondent's petition, the respondent takes issue with the administrative law judge's finding that, in addition to the legitimate motivation for its actions discussed above, it was partially motivated by the number of convictions contained in the police report. The respondent argues that the sole reason for discharging the complainant was the fact that he knowingly falsified the employment application, and that the complainant's criminal history was not a factor in the decision to terminate his employment. The respondent explains that the complainant's criminal history was only a factor to the extent that this was the subject of the falsification of the employment application. The commission finds this argument persuasive. At the hearing the respondent testified that the sole motivation for discharging the complainant was his failure to reveal all of his criminal convictions when asked. The commission sees nothing in the record to support a finding that the respondent had any independent concern about the sheer number of convictions on the complainant's record except to the extent that they were undisclosed. Moreover, given that the respondent hired the complainant with full awareness of his prior drug conviction, there is no reason to presume it would have been deterred from hiring him had it known about his lesser convictions for traffic violations or disorderly conduct. Consequently, the commission concludes that the respondent's decision to discharge the complainant was based entirely on legitimate nondiscriminatory factors.

NOTE: The commission conferred with the administrative law judge regarding witness credibility and demeanor. The administrative law judge indicated that, while she credited the respondent's testimony that it believed the complainant had falsified his application, the "flavor" of Spencer's testimony was that the number of convictions was unacceptable to Mead and that it appeared Spencer formed the impression that Mead did not want someone with all those convictions working for him. However, at the hearing neither Spencer nor Mead testified that Mead was concerned with the sheer number of convictions. Mead, who made the actual decision to discharge the complainant, explained that the sole reason for the discharge was the fact that so many convictions remained undisclosed. For the reasons set forth above in the memorandum opinion, the commission finds that testimony to be compelling.

cc: 
Attorney David E. Celebre
Richard Glennon

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