DEBORAH L LAMB, Complainant

HAPPY CHEF OF SPARTA, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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:

Under Conclusions of Law, replace paragraphs 3 and 4 with the following:

"Respondent did not discriminate, in violation of the Wisconsin Fair Employment Act, against the complainant on the basis of arrest record in regard to her termination."

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

Dated and mailed September 29, 1995
lambde . rmd : 135 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

Case law recognizes a distinction between an employer that terminates an employe because of an arrest record and an employer that terminates an employe for engaging in unacceptable conduct that is discovered from some source other than the mere fact of an arrest. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367 (Ct. App. 1984). Independent investigations such as the one conducted in City of Onalaska or an employe's own admission to committing the conduct (Levanduski v. LIRC & Visiting Nurses Association, Sheboygan County Circuit Court #88-CV- 263, 9/13/88, affm'd LIRC decision of 2/10/88) may serve as the basis for this independent source. Here, the complainant contends that the respondent's termination notice and testimony support a finding that it terminated the complainant because of her arrest record and not because of her admission in the involvement of selling controlled substances or any independent investigation to that effect. The commission disagrees. Although the general manager and the area supervisor were aware of the complainant's arrest, she admitted to the conduct during the respondent's investigation. Based on its review of the record, the commission concludes that this admission of unacceptable conduct led to the complainant's discharge.

The commission's modification reflects its conclusion that the respondent did not discriminate against the complainant, because of an arrest record, when it terminated the complainant, as found in finding of fact number 10 of the ALJ's decision. In view of this, the ALJ's conclusion that the complainant's actions were substantially related to her employment is unnecessary. Essentially, this is an affirmative defense permitting employers to justify their employment conduct if an employe's conduct is substantially related to his or her employment. Here, however, this issue need not be addressed since both the ALJ and the commission concluded that the respondent discharged the complainant because she admitted to involvement in selling a controlled substance and not because of her arrest record.

cc:
Robert M. Osborne
Shari Lepage Locante

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