CEDRIC L WILLIAMS, Complainant

HAVENWOOD HEALTH & REHABILITATION CENTER, 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 March 11, 2005
willice . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant submitted an application for employment with the respondent as a certified nursing assistant (CNA) on November 23, 2001, and was hired as a CNA by the respondent on February 4, 2002. The respondent is a nursing home. Sometime in April 2002, the respondent terminated the complainant's employment. In a complaint filed with the Equal Rights Division, the complainant alleged that he was discriminated against in his terms and conditions of employment and termination of employment on the basis of his arrest and conviction record. Following an initial determination that found no probable cause to believe the respondent had violated the Fair Employment Act, evidence was presented at a hearing before an administrative law judge (ALJ) regarding the complainant's claim. The ALJ concluded that the complainant failed to establish probable cause to believe the respondent had violated the Act by discriminating against him in his terms or conditions of employment and by terminating his employment because of his arrest or conviction record. Accordingly, the ALJ dismissed the complainant's complaint. The complainant requests commission review of the ALJ's decision.

The complainant apparently argues that the ALJ erred in her determination that the respondent's requirement that he provide the respondent with a written request for a copy of the criminal background report the respondent had obtained on him was not a desire to discriminate against on the basis of his arrest or conviction record. This argument fails. While the applicant information release form statement signed by the complainant indicates that the respondent would give him a copy of reports used to verify and confirm information provided by him on his application, the respondent's requirement that he put his request for the report in writing bears no evidence that he was discriminated against on the basis of his arrest and conviction record.

Next, the complainant apparently argues that because the ALJ received into evidence a copy of a federal complaint he filed against the Milwaukee County Office of Clerk of Courts alleging negligence on the part of the clerk's office in erroneously reporting that he had two open felony arrest charges, he was unduly prejudiced with respect to his attempt to "defend [his] position on the relevance of the information contained in [his] background report." However, the complainant does not explain how he was prejudiced by the admission of this evidence, nor does the commission see any reason to believe that this evidence was somehow prejudicial to him. The record indicates that on April 4, 2002, the complainant presented the respondent's assistant administrator, Michael Fogel, with information showing that the felony charges against him had been dismissed. However, the information he presented to Fogel also showed that he had two misdemeanor convictions for battery. The complainant's convictions for battery were substantially related to the circumstances of his job. Furthermore, the complainant had failed to disclose his convictions for battery on his application for employment.

Finally, in connection with his claim that his arrest and conviction record was the basis for an accusation that he had intentionally bumped a resident on March 13, 2002, and the reason the respondent's administrator, Karen Mason, issued him a final warning regarding this alleged incident, the complainant argues that the respondent had obtained a criminal background report on him within a week of March 7, that it was the activity associate supervised by Fogel who had accused him of intentionally bumping the resident and that Mason had issued him the warning on March 25, 2002. These arguments also fail. First of all, with respect to his claim of being accused of intentionally bumping a resident because of his arrest and conviction record, the complainant admitted that he did not know for certain when the respondent had received his criminal background report, and no evidence exists in the record to show exactly when the respondent had received this report. Further, there is absolutely no support for the complainant's apparent assertion that the activity associate supervised by Fogel knew of his criminal background report. Indeed, even Fogel testified that he did not become aware of the complainant's background check until the end of March 2002. Second, with respect to the final warning issued to him on March 25, in addition to the lack of evidence as to the exact date the respondent obtained the complainant's criminal background report, the final warning issued to the complainant indicates that it was the respondent's director of nursing, Tony Krystowiak, not Mason that had decided to issue him the final warning, and that Mason had simply signed off on the form. The complainant did not subpoena Krystowiak to appear as a witness, and thus no evidence was presented to show if she had known about the complainant's criminal background report at the time she issued the warning to the complainant.

Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Lynn M. Stathas

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