TODD VANDERKIN, Complainant

COMMUNITY BIO RESOURCES, 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 conclusion in that decision as its own, except that it makes the following modifications:

The fifth and sixth paragraphs of the Memorandum Decision section are deleted and the following paragraph substituted in order to clarify the underlying rationale for the commission's decision:

The Complainant reacted to the responsibility his previous employer accorded him by stealing the employer's money through his dishonest manipulation of its financial records and instruments. As a Phlebotomist 1 for the Respondent, the Complainant worked with limited oversight in close proximity to a large amount of cash. This position requires an employee who would react to such a circumstance honestly, by acting to protect rather than to exploit his employer's assets. The Complainant failed to demonstrate this reaction to responsibility or this trait of honesty under similar circumstances when he carried out the criminal activities under consideration here.

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

Dated and mailed September 30, 2003
vandeto . rmd : 115 : 9   

/s/ David B. Falstad, Chairman

James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Wisconsin Statutes § 111.335(1)(c)1. provides that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of an "offense the circumstances of which substantially relate to the circumstances of the particular job." In defining the scope of this "substantial relationship" test, the court in County of Milwaukee v. LIRC, 139 Wis.2d 805, 407 N.W.2d 908 (1987) stated as follows, in relevant part:

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. . . It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person.

The elements or contexts of the criminal offense and the job need not be identical, and a common sense approach is to be taken when determining whether the substantial relationship test has been satisfied. Gibson v. Transportation Commission, 106 Wis.2d 22, 315 N.W.2d 346 (1982); Law Enforcement Standards Board v. Lyndon Station, 101 Wis.2d 472, 305 N.W.2d 89 (1981); Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989).

The Complainant argues that the substantial relationship test has not been met here because the work activities of the subject Phlebotomist 1 position do not involve control over the assets of the Respondent, a key element of the Complainant's theft in a business setting offense, but only access to such assets. However, in advancing this argument, the Complainant urges the adoption of too narrow an interpretation of the substantial relationship test.

In Young v. Wal-Mart Distribution Center, ERD Case No. 199705063 (LIRC Oct. 27, 2000), the commission held that the offense of forgery, i.e., dishonesty in relation to the genuineness of a document, had a substantial relationship to the job duties of an order filler in a merchandise distribution facility. The commission reasoned that forgery is just a variation of theft, and that employment at a merchandise distribution center offered a significant temptation or opportunity to steal the property of others.

In Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989), the commission held that the offense of shoplifting, i.e., theft of a sweater from a retail store, had a substantial relationship to the job duties of a group medical claims technician, with responsibility for independently reviewing, processing, and authorizing medical payment insurance claims up to $15,000 in value. The commission concluded that there was a "very definite similarity of circumstances" since "common sense dictates that a conviction for. . . theft of another's property substantially relates to the job duties of an individual who exercises unsupervised control" over "expenditure of large amounts of money for an employer and its clients."

In Mullikin v. Wal-Mart Stores, ERD Case No. 8901365 (LIRC Aug. 27, 1992), the commission held that the offense of welfare fraud was substantially related to the job duties of an automotive department manager of a retail department store who had access to merchandise as well as the contents of several cash registers. The commission reasoned that welfare fraud was a form of theft, and that the automotive department manager position presented an opportunity to engage in the theft of merchandise or cash.

The facts of the instant case compel a parallel analysis and result. Although the Complainant had access to certain promotional items of comparatively little value and to the property maintained by his co-workers in their lockers, the primary "temptation" here would have to be the large amount of cash maintained in the Respondent's cash drawer. The Complainant was convicted of theft in a business setting, a form of theft, and the Phlebotomist 1 position, with its relatively easy access to this large amount of cash, provided him an opportunity to engage again in this form of criminal activity. Opportunity and access, even without control, are sufficient, given the circumstances present here, to provide the required nexus between the offense and the job.

The Complainant argues that Herdahl v. Wal-Mart Distribution Center #6025, ERD Case No. 9500713 (LIRC Feb. 20, 1997), aff'd Wal-Mart Stores v. LIRC (unpublished, Ct. App. June 4, 1998) suggests a different result. In Herdahl, the complainant had been convicted of possession of a controlled substance with intent to deliver, and was working at the time stocking shelves in a merchandise distribution center. The commission did not find a substantial relationship between the offense and the job, concluding that the complainant did not pose a safety threat since, although she worked near dangerous equipment, she was not expected to operate such equipment; and that her structured and regimented work routine presented an unusually limited opportunity for the use or distribution of illegal drugs. Complainant argues that, in regard to the equipment operation aspect of the Herdahl case, the commission determined that control, not simply access, is the proper criterion, and urges that this should be the approach in the instant case as well, i.e., that, since Complainant did not have control over the Respondent's assets in his Phlebotomist 1 position as he did over his former employer's assets when he committed the theft in a business setting offense, and control rather than access is the proper criterion, a substantial relationship does not exist. The Complainant's attempt to draw a parallel here, however, is a strained one. Drug offenses require different considerations than theft offenses since the possible impact of physical impairment in the work setting, as well as the opportunity for engaging in the use or distribution of drugs, must be taken into account. The use of the control criterion in the Herdahl analysis was limited to the physical impairment aspect of the case which has no parallel here.

The record, however, does not support a conclusion that there is a substantial relationship between the Complainant's offense and the record-keeping duties of the Phlebotomist 1 position. The inclination shown by the Complainant when he embezzled money from his former employer was to falsify records for his own benefit. The record does not show that falsifying donor or other business records would inure to complainant's benefit in any significant way in the Phlebotomist 1 position.

Moreover, Complainant's statements about, or failure to acknowledge responsibility for, his conviction, as well as the quality of his work performance in the Phlebotomist 1 position, are not relevant to the issue of whether the circumstances of the offense bear a substantial relationship to the circumstances of his job. Although complainant's attitude toward his conviction may be relevant to the quality of his character in general, the proper inquiry here relates not to the quality of his character in general but instead to those particular character traits he demonstrated when he engaged in the subject criminal offense. In addition, although the quality of his work performance in the Phlebotomist 1 position may be relevant to his ability to perform this job, the proper inquiry here relates not to the Complainant's ability to carry out the job but instead to the nature of the assigned duties and responsibilities of this job and the setting in which they are to be carried out, and the opportunity these duties and responsibilities and this setting provide for him to engage in criminal activities similar to those in which he engaged in carrying out the subject offense. See, Collins v. LIRC, No. 91-2839 (unpublished Ct. App. Dec. 15, 1992), affirming Collins v. Milw. Co. Civil Svc. Comm, ERD Case No. 8822724 (LIRC March 8, 1991).

Complainant argues that Respondent could remove his opportunity for access by locking the areas where its cash, promotional items, and co-worker belongings are stored. However, the relevant inquiry, in applying the substantial relationship test, is what the Respondent's actual business practices are, not what they could be. Moreover, the Respondent offered a legitimate business reason for keeping its cash drawer unlocked, i.e., the frequency with which it needs to be accessed each day.

Complainant also argues that, since most work settings allow an employee access to the assets or property of others, there would be few if any jobs in which he could be employed that would not bear a substantial relationship to the circumstances of his theft in a business setting conviction, and that this would frustrate the goal of the Wisconsin Fair Employment Act of providing jobs for those who have been convicted of crime. Of course, as explained in Milwaukee County, supra., this goal is to be balanced with that of "not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the propensity to commit similar crimes." Moreover, although each circumstance has to be examined on its own merits, it is certainly reasonable to assume that there are many jobs which do not involve relatively easy access to large amounts of cash, the primary component of the work site temptation present here.

The commission concludes that the record shows that a substantial relationship exists between the circumstances of the Complainant's theft in a business setting conviction and the circumstances of the subject Phlebotomist 1 position.

cc: 
Attorney Charles H. Barr
Attorney Sari M. Alamuddin

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