WILLIAM J WOZNIAK, Complainant

BANK ONE MILWAUKEE NA, 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.

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

Dated and mailed October 10, 2003
wozniwi . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

On January 29, 2001, the complainant, William Wozniak, completed and signed an employment application and at least one other document in connection with obtaining employment with the respondent. At the end of the employment application was a section titled "CERTIFICATION". The language at the very beginning of this section stated "I certify that the information contained in this application, and accompanying resume, if any, is true and complete to the best of my knowledge and understand that falsification, misrepresentation and/or omission of information is grounds for refusal to hire, or if hired, dismissal." This section also included language stating that the applicant agreed that employment was contingent upon satisfactory results of various pre- and post-employment checks, including fingerprinting. Wozniak signed the application certifying that the information in the application was true and complete.

In response to a question on the application asking if he had ever been convicted of, or pled guilty to, an offense other than a minor traffic violation (including offenses for which he had plead no contest or received probation), Wozniak listed a September 9, 1999 OWI conviction. Wozniak also had a misdemeanor conviction for violating a domestic abuse injunction and a misdemeanor conviction for bail jumping on November 15, 1999, but he failed to disclose those convictions on his application.

The respondent subsequently hired Wozniak and he began working on February 2, 2001. In accordance with prior notice given at the time he completed his application for employment, Wozniak's fingerprints were taken for a background check when hired. Wozniak's fingerprints were submitted to the FBI for a background search.

In a letter to Wozniak dated March 19, 2001, the respondent's security analyst, Sheryl Larrick, informed him that the results of the FBI background search indicated arrest activity that required additional information. The letter noted that the details reported by the FBI pertained to "Domestic Violence/Battery" on January 5, 1991 and "Violation/domestic abuse (2 cts)" on February 26, 1991. After citing these details Larrick's letter stated the following:

"AFTER ARRESTED, THE CASE(S) WAS CONCLUDED IN SOME MANNER. YOU MUST OBTAIN COURT DOCUMENTS SHOWING THE COMPLETION AND DISPOSITION OF THE ABOVE CRIMINAL MATTERS WITHIN 15 CALENDAR DAYS FROM THE DATE OF THIS LETTER."

(Underlining emphasis in original.)

In response Wozniak submitted not only the court records showing the "completion and disposition" of the criminal matters, i.e., the judgment of conviction for violating a domestic abuse injunction and the judgment of conviction for bail jumping, but also the criminal complaints charging him with violating a domestic abuse injunction and bail jumping. Wozniak submitted this information on April 11, 2001.

On May 1, 2001, the respondent's security officer, Mike Melvin, faxed the material Wozniak had submitted in response to the March 19, 2001 letter, to Kate Shryne, the respondent's human resource business partner. Also included in this packet of faxed materials were, among other things, a copy of Larrick's March 19 letter and a copy of Wozniak's employment application.

Sometime between April 11, 2001 and May 1, 2001, Shryne was informed by Melvin via a voice mail message that Wozniak had falsified his employment application.

On May 3, 2001, Jeannie Lanza, the respondent's senior managing director of operations and systems, Mary Witt, the assistant manager, along with Shryne via telephone from Columbus, Ohio, held a conference with Wozniak. Shryne advised Wozniak that his employment was being terminated based on the falsification of his employment application.

ALJ Larry Jakubowski dismissed Wozniak's claim of conviction record discrimination following a probable cause hearing. Referencing the period between April 11 and May 1, 2000, when the respondent's security office informed Shryne that Wozniak had falsified his employment application, the ALJ stated in paragraph 8 of his findings of fact as follows:

"...Shryne decided to terminate Wozniak's employment because he had falsified his employment application. She made that decision before she even knew the nature of the convictions that were not disclosed on the application."

In paragraph 10 of the findings the ALJ stated as follows:

"On May 3, 2001, Shryne held a telephone conference with Jeannie Lanza, the Department Manager, and Mary Witt, the Assistant Manager. During that [conference] she verified with the security department that Wozniak had falsified his employment application. She did not discuss the nature of the convictions. Wozniak was then brought into the telephone conference meeting. Shryne informed Wozniak that he was being terminated because he had falsified his employment application because he failed to disclose all his convictions on his application. Wozniak tried to discuss the circumstances of the convictions, and Wozniak raised the issue of his conviction involving a crime of violence. Shryne insisted that the discharge was because he had failed to disclose the information and she did not want to discuss the circumstances of the convictions. Lanza asked Shryne what would have happened if the convictions had been disclosed. Shryne said she was not involved in hiring Wozniak but the Respondent does take violence seriously and would have reviewed the convictions before making a hiring decision. Lanza also asked what Wozniak should do next, and Shryne told her that Wozniak should accurately complete all employment applications and he might contact an attorney to see if his record could be cleared, but that this would not change the decision to terminate him for falsifying his employment application."

Finally, in his memorandum opinion, the ALJ stated:

"The only real dispute is what was said during the termination meeting. Upon observation of the demeanor of the witnesses and a careful review of the evidence, the Administrative Law Judge finds that the Complainant's version of that meeting is not credible. It was the Complainant, and not the decision maker for the Respondent, who tried repeatedly to discuss the circumstances of his offense. It is true that Lanza asked questions about what would have happened had the Complainant not falsified his employment application. Lanza was not the decision maker, and she was drawn into an uncomfortable termination meeting where the decision maker was on the phone but not present at the meeting. Her desire to soften the blow and to offer advice to the Complainant about his future applications for employment is not credible evidence that the Respondent considered anything but the falsification of the employment application as the reason for the termination of the Complainant's employment."

On appeal Wozniak argues that the ALJ's finding that Shryne made the termination decision before she knew the nature of the convictions is simply not credible. As the basis for this argument Wozniak asserts that he followed up the information he faxed to the respondent on April 11, 2001, by leaving a voicemail message for Larrick stating that "nothing came of this domestic violence/battery thing" and because on the cover sheet of his April 11 faxed information appears the handwritten notes, "1/5/91 info-had nothing-div. Proceed-Everything Put together." Wozniak's argument fails. The evidence shows that Shryne decided to discharge Wozniak after receiving the voicemail message from Melvin stating that Wozniak had failed to disclose convictions on his application and before ever receiving Melvin's May 1, 2001 fax with Wozniak's April 11 faxed information. Shryne testified that after receiving Melvin's voicemail she called Melvin and left a voicemail message that she would be "having a conversation to terminate Mr. Wozniak." Indeed, Shryne identified a comment on the cover of Melvin's May 1 fax to her as Melvin's handwriting asking her if he could assist in the interview of the employee and termination. Further, Shryne denied having otherwise received any information regarding the nature of the activity about which Wozniak was to report prior to May 1, 2001. Moreover, as noted by the ALJ, when Shryne has learned about employees who have falsified or omitted information from their employment application, she has always terminated their employment.

As grounds for his belief that he was discriminated against on the basis of conviction record Wozniak argues that at the May 3, 2001 conference Shryne took the position that his offenses were substantially related to work for the respondent. Specifically, Wozniak claims that in response to Lanza's question about whether he would have been hired had he disclosed his convictions on the application Shryne replied that his convictions made him unemployable not only at the respondent but throughout the banking industry. Wozniak also claims that in response to Lanza's inquiry about his convictions and moving forward with his career that Shryne replied that getting his convictions expunged would be a way he would be employable within the industry but that he would not be employable at the respondent because it knew of his convictions.

As noted above, however, the ALJ did not find Wozniak's version of the May 3, 2001 meeting to be credible. The ALJ determined that Shryne informed Wozniak that he was being terminated because he failed to disclose all of his convictions on his application and that Wozniak raised the issue of his conviction involving a crime of violence. The ALJ determined that Shryne had not responded to Lanza's questions as alleged by Wozniak. Wozniak argues that Lanza falsely testified that he had used the term "domestic violence." Wozniak also apparently argues that the note "no disclosure of domestic violence (unknown word) 1991", which appears on the copy of his application that was included with his April 11 faxed information sent to Shryne, was placed there by Shryne at the time of his termination and supports his claim that Lanza falsely testified he had used the term domestic violence. This argument fails. First of all, Lanza never testified that Wozniak had used the term "domestic violence." Lanza testified that after being told of his termination for falsifying his application because there were convictions not disclosed on his application, Wozniak responded that it related to his divorce, that he shared quite a bit of information about his divorce and that he used the word violence when referencing his divorce and stated that he did not think this would come up. While there is the notation "no disclosure of domestic violence (unknown word) 1991" on Wozniak's application this provides no reason to conclude that Wozniak himself had not raised the issue involving a crime of violence. Furthermore, the evidence is clear that Shryne decided to terminate Wozniak's employment because he had falsified his employment application by not disclosing all of his prior convictions even before she knew the nature of those convictions.

Finally, Wozniak argues that he was discriminated against on the basis of conviction record because the respondent perceived that he had a conviction for domestic violence/battery. Wozniak makes this argument because assistant vice president of employee relations Judy Millies' June 21, 2001 response to his discrimination complaint states that Wozniak was found guilty of domestic violence/battery. Millies' June 21 response was admitted into evidence as Exhibit 2. To the extent that the statutory definition of conviction record recognizes coverage against discrimination on the basis of a perceived conviction record, Wozniak's argument fails. Millies denied that Shryne and Lanza or anyone had indicated to her that domestic violence/battery was an offense for which Wozniak was convicted. Millies explained that in conversations with Shryne and Lanza, they told her that Wozniak was terminated for falsifying his application and that Wozniak had indicated that he did not believe all of his prior criminal history activity would show up on his record. Millies explained that in her haste in reviewing the documents provided by security, which included Larrick's March 19, 2001 letter stating there was arrest activity that required additional information, she mistakenly indicated that Wozniak had been convicted of domestic violence/battery.

Based upon the foregoing, the commission has affirmed the administrative law judge's dismissal of Wozniak's complaint alleging discrimination on the basis of conviction record.

cc: Attorney Laurence J. Oleksa

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