WILLIAM SPRINGER, Complainant

TOWN OF MADISON, Respondent

On November 26, 1986, an administrative law judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter dismissing the Complainant's complaint of unlawful discrimination on the basis of arrest record. The Complainant filed a timely petition for Commission review of the Administrative Law Judge's decision and both parties subsequently submitted written arguments with respect to their respective positions.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

1. In paragraph 11 of the FINDINGS OF FACT, the last sentence is deleted and the following sentences substituted therefor:

"The citation itself which was issued to Complainant and ultimately dismissed was not the reason Respondent refused to hire Complainant, it was because Respondent believed he had failed to adequately explain why he had not reported the accident. This led Respondent to believe that he had violated section 346.70 (1), Wis. Stats., and therefore would be unable to carry out the duties and responsibilities of a police officer.

2. Paragraph 2 of the CONCLUSIONS OF LAW is deleted and the following paragraph substituted therefor:

"The Respondent did not refuse to hire the Complainant as a police officer because of his arrest record. Respondent refused to hire him because Respondent believed he had been involved in an accident which he failed to report in violation of s. 346.70 (1), Stats."

As modified, the decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed September 22, 1987

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

Without specifically citing paragraph 2 of the Administrative Law Judge's Conclusions of Law, but in apparent reference to that conclusion, the Complainant argues that the Administrative Law Judge erroneously concluded that it is possible under the Wisconsin Fair Employment Act for an employer to discriminate (i.e. refuse to hire) against an individual because the circumstances of a pending non-criminal charge substantially relate to the particular circumstances of the job. Complainant argues that the exception provided in s. 111.335 (1)(b) is inapplicable in this case because the offense with which the Complainant had been charged was not a criminal offense. The penalty for violating s. 346.70 (1) (Duty to report accident) is punishable only by a forfeiture (s. 346.74 (2), Wis. Stats. and conduct punishable only by a forfeiture is not a criminal offense (s. 939.12, Wis. Stats.)

The Commission agrees that the exception to the prohibition against discrimination because of arrest record contained in s. 111.335 (1)(b) is inapplicable because there was no pending criminal charge. However, the Commission concludes that there was no unlawful discrimination in this case because the Respondent's decision not to hire the Complainant was based on its investigation of the circumstances surrounding the citation, not the fact that the Complainant had received a citation. The Respondent has argued that the contention that s. 111.335 (1)(b) does not apply to, this case is clearly not the law under City of Onalaska v. LIRC 120 Wis. 2d 363, 354 N.W. 2d 223 (Ct. App. 1984). In City of Onalaska the complainant was discharged from his position as police trainee because of his involvement in racing an automobile on the street. Charges were not yet pending at the time of his discharge. Shortly thereafter, he was charged with racing in violation of s. 346.94 (2), Wis. Stats. That section of the statute carries as a penalty only a forfeiture (s. 346.95 (2), Stats.). The Respondent herein argues that despite the fact that a violation of s. 346.94 (2) only resulted in a forfeiture, the Court of Appeals nevertheless held that it was not a violation of the Act for the City of Onalaska to investigate the circumstances of the incident and then to terminate the complainant's employment based on the City's conviction that the complainant had violated the law. The Commission does not agree. The sole issue before the Court in City of Onalaska was whether an employer discriminates on the basis of arrest record if the employer discharges an employe because the employer believes on the basis of its own investigation that the employe engaged in an illegal activity. The Court held that if the 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 questioned, and therefore does not rely on an arrest record as defined by the Act.

Secondly, Complainant argues that the Administrative Law Judge made a material factual error in concluding that the existence of the citation was not a reason for Respondent's refusal to hire Complainant because (1) The great weight of the evidence does not support such conclusion and most significantly, (2) the parties had specifically stipulated to the fact that the citation was a factor in Respondent's failing to hire Complainant. Somewhat related to the second basis for the Complainant's argument here is a further contention by Complainant that the Administrative Law Judge had acknowledged in his Summary of Proceedings that the only issue before him was whether the exception contained in s. 111.335 (1)(b) applied.

The Commission will address the second part of the Complainant's argument first. Prior to the taking of any testimony and while on the record, the attorneys for the parties engaged in a discussion about the respective positions the parties appeared to be taking. Based on the initial remarks made by counsel during the discussion it did appear that the parties were going to stipulate that the citation was a determining factor in Respondent's failure to hire the Complainant. This apparently would have resulted in only the issue involving the exception provided in s. 111.335 (1)(b) remaining before the Administrative Law Judge. However, near the end of this discussion Respondent's counsel responded negatively to the Administrative Law Judge's inquiry about stipulating that the citation was a factor in the failure to hire. Complainant and just submitting briefs to him on the issue of whether or not that constituted a violation of the Act. Respondent's counsel stated that she thought it was necessary to take testimony in the matter because it wasn't simply the fact that Complainant received a citation that was significant, but the circumstances of the behavior, what had happened and what Respondent knew about that was what Respondent was essentially basing its determination not to hire on. Thereafter during the discussion, the only thing that the Respondent agreed to stipulate to was that the citation Complainant had received was for violation of s. 346.70 (1), Wis. Stats. In further support of its argument the Complainant has asserted that the arguments contained in Respondent's post-hearing initial and reply briefs to the Administrative Law Judge, clearly establish that the main thrust of Respondent's defense was a legal argument about whether the exception to discrimination in sec. 111.335 (1)(b) applied to this case. The Commission finds no merit in this argument. The main thrust of  Respondent's argument was that Respondent did not discriminate against Complainant on the basis of arrest record because the reason he was not hired was his underlying actions in failing to properly report the accident and not the fact that he received a traffic citation. Respondent argued in the alternative that if there had been discrimination on the basis of arrest record that such discrimination was permitted under section 111.335 (1)(b), Stats. Accordingly, the Administrative Law Judge's Summary of Proceedings is inaccurate insofar as it states that the citation received by Complainant was a factor in Respondent's failure to hire him and that the only issue before him was whether or not the exception contained in s. 111.335 (1)(b) provided an exemption for the failure to hire.

Complainant argues that the great weight of the evidence does not support a conclusion that the existence of the citation was not a reason for Respondent's refusal to hire Complainant because Chief Barth had the citation before him when he met with Complainant on February 4, 1985, the Chief asked Complainant for an explanation of the citation and because Chief Barth specifically stated it was his belief that Complainant had violated section 346.70 (1), Stats., and that belief was a factor in his decision not to hire Complainant. The Commission disagrees. This is exactly what the Court held to be proper in City of Onalaska, supra. An employer does not rely on an individual's arrest record if it concludes from its own investigation and questioning of the employe (applicant in this case) that he has committed an offense.

The Complainant argues, however, that the record in this case is void of any proof that Respondent conducted any kind of investigation independent from the citation and reports to support its conclusion that Complainant had committed an offense. Complainant argues that Chief Barth made no attempt to conduct an independent investigation of the facts; that the Chief did not call the property owner to see if the damage figure reported to the police 15 minutes after the accident and shown on the citation was an accurate statement of the actual damages, he did not contact Deputy Brink at the Dane County Sheriff's Department to discuss his conversation with Complainant or to determine if there had been any investigation made by the Sheriff's Department and he did not discuss the issue with Complainant's attorney to find out the basis for contesting the citation. The Commission believes that Chief Barth made an adequate investigation. The Chief took the actions most calculated to discover the facts concerning the accident. First, he contacted the Dane County Sheriff's Department and requested copies of the citation, the accident report and any other reports which the Sheriff's Department had concerning the incident and he reviewed all of this information. Next, Chief Barth contacted the Complainant and asked him to come in to discuss the Chief's concerns about the accident. Who could better explain to the Chief the circumstances surrounding the incident and offer any explanations or mitigating circumstances which might justify his action or establish that there was no basis in fact for the charge that had been issued? After all, the Complainant was hoping to be hired by the Respondent as a police officer. He knew the Chief was concerned about the accident. Yet Complainant made no attempt to provide the Chief whatever explanation he had concerning the circumstances surround the accident. The only thing Complainant offered that would come close to explaining his conduct in not reporting the accident was to state something about a babysitter at home. Complainant did not tell the Chief that there was a witness to the accident, he did not tell the Chief there was a deputy sheriff in the car with him, he did not tell the Chief that he thought the amount of damages was less than that required for reporting an accident, he did not tell the Chief that upon arriving at his home he tried to call the property owner whose tree was damaged, he did not tell the Chief that he had notified his insurance company, he did not tell the Chief that he had informed his current employer, the Chief of the Marshall Police and he did not tell Chief Barth that he had filed an accident report with the Department of Transportation. Twice the Chief offered the Complainant an opportunity to provide an explanation of the facts concerning the accident and he nevertheless chose not to.

Finally, the Complainant argues that to uphold the Administrative Law Judge's decision to dismiss the complaint in this case would violate the very purpose for which the arrest record provision was enacted. Complainant asserts that "(t)his case is the epitome of the purpose for having laws against 'arrest record' discrimination by employers. Mr. Springer lost a job simply because he had been charged with an offense and Chief Barth accepted those unadjudicated allegations and assumed that Mr. Springer had violated the law by failing to report an accident that the law required him to report." (Emphasis in original.) Again, the Commission disagrees. The preponderance of the evidence establishes that the Respondent's decision not to hire Complainant was based upon the information (or lack thereof) provided by the Complainant himself about the citation. The Respondent concluded from its own proper investigation and questioning of the Complainant that he had committed an offense and failed to hire him for that reason, not because of a reliance on information (i.e., the citation) indicating that he had an arrest record.

125 :  nkm

Appealed to Circuit Court.  Affirmed June 13, 1988.

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