Wis.LIRC ER Decision: Stroede - August 14, 1996 - Conviction record discrimination -- 'substantially related' -- lewd and lascivious behavior / courier for delivery company

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

DAVID M. STROEDE, Complainant

FEDERAL EXPRESS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9202114

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. 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:

1. In paragraph 11 of the FINDINGS OF FACT, the word "compliant" is deleted and the word "complaint" is substituted therefor.

2. In paragraph 12 of the FINDINGS OF FACT, where the date "April 25, 1991" appears it is deleted and the date "June 28, 1991" is substituted therefor.

DECISION

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

Dated and mailed: August 14, 1996
stroeda.rmd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The ALJ found that the complainant has an arrest and conviction record, that the complainant was convicted of one count of lewd and lascivious behavior, and that neither his arrest or conviction record were determining factors in the decision to suspend and discharge the complainant as the respondent acted on the basis of his conduct, and such conduct was substantially related to his job as a courier.

The complainant makes several arguments on appeal in support of his position that the ALJ's decision should be reversed and a finding of unlawful discrimination entered against the respondent.

First, the complainant argues that the greater weight of the credible evidence supports a finding that his arrest and/or conviction record was a substantial factor in the respondent's decision to discharge him. He argues that except for his written statements to the respondent which did not admit to any misconduct and the medical documentation which supported his version of the two incidents, the only evidence relied on by the respondent in its decision to discharge him was the police report, the court minutes and the criminal complaint. He argues that the best the respondent could present in its defense that it had relied on the underlying conduct as opposed to his arrest and conviction record were mere "blanket denials" by the decisionmakers that they had considered his arrest and/or conviction record as a factor in the decision to discharge.

Ample evidence supports the ALJ's decision that the complainant's arrest and/or conviction record were not determining factors in the respondent's decision to suspend and later terminate the complainant's employment. Contrary to argument by the complainant, the evidence showing that the complainant's arrest and conviction record were not reasons for suspending and terminating the complainant's employment was not limited to mere blanket denials by the respondent. The record also shows that Sanchez, Fries and Jones had conducted their own investigation into the matter, which included meeting twice with the complainant to obtain statements from him about the allegations in the criminal complaint and consultation with the respondent's legal department, and that the respondent concluded that the complainant had admitted to the conduct set forth in the criminal complaint. Further, with respect to employes with criminal records, the record shows that it was the respondent's policy to conduct an investigation with a focus on the underlying conduct involved and its job-relatedness, and, further, that all management employes received management applied personnel skills (MAPS) training, which included a segment which taught managers to focus on the underlying conduct and the issue of job- relatedness of the crimes when determining the employability of individuals with criminal records. Together, all of the above provide persuasive evidence that the complainant's arrest and conviction record was not a factor in the respondent's decision to suspend or discharge the complainant.

The complainant has argued, however, that the respondent essentially admitted that at least one, if not both, of the charges involved in his arrest and conviction record was a substantial factor in the respondent's decision because the Regent Apartments incident was dismissed almost two months before he was discharged yet the respondent concedes that it relied on this charge in its termination decision. The complainant misconstrues the testimony given by the respondent. While the respondent admits that the charge involving the Regent Apartment incident was among the information reviewed by the respondent, it has not admitted that the charge itself was what prompted the respondent to take the action that it did. Instead, what the respondent does state is that it concluded from its investigation, which included questioning the complainant, that the complainant had admitted to engaging in the conduct that was alleged to have occurred at the Regent Apartments.

Next, the complainant argues that in order for the respondent to escape liability under the Act, it must have performed an investigation independent of that which is subsumed in the arrest and/or conviction record, and/or have obtained an admission of the offending conduct from him, but that it did neither. First, with respect to an admission of the offending conduct, the complainant argues that there was no admission because all he admitted to was that he was masturbating in hotel rooms while he was enjoying privacy, an activity that would not have resulted in a discharge. However, the respondent concluded from this admission that the complainant had engaged in the offending conduct. The respondent found great significance in this admission because this admission placed him at the scene engaged in the very act that people had reported to have seen him engaging in and because he was admitting that this had occurred on at least two occasions. Where an employer discharges an employe because the employer concludes from its own investigation and questioning of the employe that he or she has committed an offense, the employer does not rely on information indicating that the employe has been charged with or convicted of an offense, and therefore does not rely on an arrest or conviction record. City of Onalaska v. LIRC, 120 Wis.2d 363, 367, 354 N.W.2d 223 (Ct. App. 1984).

Secondly, the complainant's argument that the respondent must have performed an investigation independent of the documents retrieved from the court, Madison Police Department and First Offender's Program, in order to constitute a proper investigation that would allow the employer to conclude that the complainant had committed the offense, has previously been rejected by the commission in Springer v. Town Of Madison, (LIRC, 9/22/87). Springer, who had been denied hire as a police officer, claimed that his nonhire was based upon his arrest record consisting of a traffic citation and the reports generated by the sheriff's department which the employer had reviewed. He argued that because the employer had not contacted the individual who had reported the incident or law enforcement officials to determine the accuracy of the allegations, that the employer had not conducted an investigation independent from the citation and police records. The commission disagreed, concluding that by requesting copies of the citation, the accident report and all other reports generated by the sheriff's department, reviewing these documents, and then questioning Springer about the matter, the employer had conducted a sufficient investigation. Id. at p. 5. It must not be forgotten that the purpose of the prohibition against arrest and conviction record discrimination is to prevent employment decisions from being made based on the stigma of an arrest or conviction record. Miller Brewing Co. v. ILHR Department, 103 Wis.2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981). The record herein is sufficiently clear that the respondent terminated the complainant's employment not merely because he had an arrest or conviction record, but because based on its investigation the respondent believed that he had in fact engaged in conduct that was in violation of its acceptable conduct code.

Next, the complainant argues that the evidence does not support the ALJ's findings that the respondent's reasons for terminating his employment was a pretext for unlawful discrimination. For example, the complainant notes that in the respondent's policy on acceptable conduct, it is stated under the section labeled "MISCONDUCT" that the respondent may terminate an employe for conviction of a crime. The complainant ignores the operative word, may, however. He also ignores the fact that under the acceptable conduct policy, conviction of a crime is conspicuously absent from the listed "DISCHARGE OFFENSES," and testimony by respondent that it is not listed because where an employe is convicted of a crime, an investigation must be conducted to consider whether the underlying conduct is related to the employe's job and the impact of that conduct to the respondent's business.

Further, citing testimony of Matthew Thornton, Managing Director, the complainant argues that the respondent's main concern as an institution was its image and what customers would think about a convicted criminal on its staff. The complainant completely distorts Thornton's testimony. The record is clear that all Thornton stated was that it was the underlying conduct and behavior of employes convicted of a crime that caused the respondent concern about its image and negative customer reaction. (Compl. Ex. 47, p. 20). This is a perfectly legitimate concern. An employer is not required to ignore the adverse affect that an employe's unacceptable behavior could cause its business operation.

The complainant also contests the ALJ's conclusion that the conduct of three other employes, without arrest or conviction records and who were not discharged, was not sufficiently comparable to his conduct so as to require the conclusion that the respondent had acted because of his arrest or conviction record. The complainant's arguments in this regard have been examined. The commission finds that the ALJ's consideration and discussion of this matter at pages 11 and 12 of his decision adequately refutes the contention made by the complainant. The commission would further note that the complainant also contests the ALJ's conclusion asserting that the respondent's agents admitted that the respondent had a policy of not hiring persons with a criminal background. This argument is not borne out by the record. All the respondent stated was that in cases involving individuals with a conviction record a determination as to the job relatedness of their conviction would be made before they were given further consideration for employment. It is also noted that the complainant attempts to find some significance in the fact that while Sanchez asserted that he had been "mooned" by the complainant on several occasions and considered this serious in light of the indecent exposure charges, Sanchez did not tell anyone about this at the time of the investigation to determine whether the complainant should be discharged or during the subsequent GFT procedure involving the complainant's appeal of his termination. However, Sanchez' explanation that the "mooning" incidents, which had occurred sometime in 1985, had never been made a matter of record constitutes a plausible explanation as to why he did not raise this matter in 1991.

Next, the complainant challenges the ALJ's determination that the respondent's witnesses were credible. He contends that virtually every one of the respondent's witnesses gave testimony that was inconsistent with their prior deposition testimony. The commission has carefully examined the asserted differences in testimony cited by the complainant and is satisfied that the record supports the conclusion drawn by the ALJ--none support the conclusion that the respondent's witnesses were untruthful or that anything other than the underlying conduct and the employer's policies were determining factors in the employment decisions involving the complainant.

The complainant also attempts to suggest a lack of credibility in the respondent's witnesses, apparently asserting that it defies logic or common sense that a report of an alleged off-color comment by the complainant and a report of a pornographic magazine in his van would have triggered Sanchez' investigation of him. Further, it is asserted that the manner in which the respondent investigated these claims lacks credibility. The complainant asserts that after discovering that he was subject to possible loss of license when reviewing the complainant's file for information regarding the previous pornographic magazine incident, Sanchez went to the court house to review the court records regarding the license issue, instead of contacting the Department of Motor Vehicles (DMV) or utilizing the respondent's own Personnel Information Center (PIC) to obtain information about his license, and failed to diligently look for the pornographic magazine. These assertions are without merit. Sanchez, who was the complainant's immediate supervisor, had been advised that two female employes had made these claims about the complainant. Also, when advised of the pornographic magazine, Sanchez recalled a similar incident of this nature involving the complainant. A failure to have investigated reports of this conduct could have subjected the respondent to claims of sexual harassment. The evidence also showed that the respondent was concerned that it obtain information about the complainant's license right away since it had just lost another employe due to a loss of license, and that neither the DMV or PIC could provide an immediate answer regarding the complainant's license. There is nothing which suggests that the respondent failed to diligently search for the pornographic magazine.

Finally, the complainant apparently reads the ALJ's decision to state that the Act categorically fails to provide any protection for individuals who are "perceived" as having a conviction record. Actually, the ALJ's holding on this issue is stated in the alternative as his decision states that "To the extent that the statutory definition (of conviction record, s.111.32(3)) takes into account perception, meeting this definition qualifies the Complainant as having a conviction record within the meaning of this Act..." (ALJ decision at p. 9) Indeed, the definition of conviction record does suggest a recognition for coverage against discrimination on the basis of perceived conviction record: "`Conviction record' includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor, or other offense..." Section 111.32(3), Stats. (emphasis added) Also, the record shows, and the ALJ's decision indicates, that based on the court minutes and questioning of the complainant, the respondent believed that the complainant had been convicted of lewd and lascivious behavior.

The complainant was originally charged with two counts of lewd and lascivious behavior. One count was dismissed. He pled "No Contest" to the other count and entered into an agreement under the Deferred Prosecution/First Offender Program. The complainant cites a number of court decisions, statutory language under s.937.37, Stats., regarding the deferred prosecution program and prior commission decisions for the proposition that he does not actually have a "conviction." From this premise, he then argues that because there had been no actual conviction, the employer could not rely on the affirmative defense of substantial relationship between the offense and his job under s.111.335(1)(c)1, Stats., citing the commission's prior decision in Hart v. Wausau, (LIRC, 4/10/87)(Employer could not rely on substantial relation defense since the complainant had not yet been convicted at the time she was discharged).

Even assuming that the complainant had no actual conviction, however, this would not warrant a different outcome in this case. First, on appeal the court reversed the commission's decision in Hart, holding that the substantial relationship defense was available to the employer. "It is unreasonable to conclude that the Fair Employment Act applies without its affirmative defenses because Hart was not `convicted' even though she has a `conviction record.'" Employers Insurance of Wausau v. LIRC & Hart, Case No. 88-0478, Ct. App., Dist. III, unpublished decision, 1988. Secondly, the record contains substantial evidence that while the respondent may have believed that the complainant had been convicted of the offense, the respondent's decision to discharge the complainant was not based on the mere belief that he had been convicted but on the belief that he had engaged in conduct in violation of its acceptable conduct policy. Thus, the entire issue of the substantial relationship affirmative defense need not have been addressed.

In any case, even assuming for purposes of argument that it were to be concluded that the respondent had acted (either solely or in part) on the basis of a belief that he had been convicted of lewd and lascivious behavior, such an offense is substantially related to the job of courier. In assessing whether the circumstances of the offense of lewd and lascivious behavior is substantially related to the job of courier, what is important is the "fostering" circumstances, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis.2d 805, 407 N.W.2d 908 (1987). More than anything else, a conviction for violating s.944.20(2), Stats., demonstrates a lack of good judgment and concern for the welfare of others. The position of courier requires a high degree of responsibility and trustworthiness. It involves a great deal of customer contact and is virtually unsupervised throughout the day. Clearly, the propensities and personal qualities exhibited by one convicted of lewd and lascivious behavior are manifestly inconsistent with the expectations of responsibility associated with the job of courier. Focusing on whether the job of courier provided the opportunity to engage in indecent exposure, the complainant relies on testimony by an electronic monitoring expert, and a psychologist who opined that it was unlikely that a person would repeat lewd and lascivious behavior while on the job, for the proposition that the job did not provide an opportunity for criminal activity. These arguments fail. The complainant's psychological expert could testify only generally and could not testify as to whether the complainant in particular would be likely to engage in such a crime again. The complainant's electronic monitoring expert could not speak directly as to the capabilities of the respondent's electronic monitoring equipment. The evidence regarding the respondent's electronic monitoring system indicates, as noted by the ALJ, that the electronic monitoring system only meant that the complainant would be caught after the fact, not that it would prevent the conduct from occurring or decrease the circumstances that foster criminal activity. It is also significant to note that the complainant was identified as having engaged in acts of masturbation based on the fact that he had driven his own personal vehicle with "FedExp" license plates to the motels and registered under his own name.

Based upon all of the above, the commission has affirmed the ALJ's decision finding that the complainant has failed to prove by a preponderance of the evidence that the respondent had unlawfully discriminated against him because of his arrest or conviction record with respect to his terms or conditions of employment, or discharge.

cc:
ROBERT M. HESSLINK, JR.
PAMELA D. PITTS
ANNE B. SHINDELL

Appealed to Circuit Court. Affirmed June 12, 1997.

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