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

LEN WISNESKI, Complainant

KIMBERLY-CLARK CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9404644

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter on December 12, 1995. A timely petition for review was filed. The commission received the file from the division on January 17, 1997.

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.

DECISION

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

Dated and mailed: January 29, 1997
wisnele.rsd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

NOTE: Apparently as evidence of his suitability for employment, the complainant has submitted a December 13, 1996 letter of recommendation regarding his satisfactory performance from an individual where he is currently temporarily employed. However, the commission's review is limited to the testimony or other evidence that was presented at the hearing. The commission cannot consider any documents which were not submitted at the hearing. Even if it were appropriate to consider the letter of recommendation, however, the recommendation is really not relevant. "Whether an individual can perform a job up to the employer's standards is not the relevant question. This does not constitute a proper inquiry into the `circumstances'" required under the statute. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 827, 407 N.W.2d 908 (1987). "The test is when the circumstances, of the offense and the particular job, are substantially related." 139 Wis. 2d at 823. "Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test." 139 Wis. 2d at 824. The record clearly shows, as found by the ALJ, that the circumstances of the complainant's criminal convictions are substantially related to the position of production worker at the respondent.

cc: XUAN THI TRAN

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