MYRON WESTON, Complainant

ADM MILLING CO, 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, except that it makes the following modifications:

In footnote 4, the words "use of" are changed to "use or" in the quotation of the statutory language in order to correct an error.

In footnote 5, the citation of the statutory provision is corrected to read "§ 940.19(2)."

In footnote 6, the citation of the statutory provision is corrected to read "§ 943.20(1)(a)."

Footnote 7 is deleted because it is not necessary in order to reach a decision in this matter.

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

Dated and mailed January 18, 2006
westomy . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire..., to...terminate from employment..., or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment...because of any basis enumerated in s. 111.321.

111.321 Prohibited bases of discrimination. Subject to ss. 111.33 to 111.36, no employer,...employment agency,...or other person may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of...conviction record...

111.335(1)(c) Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license, or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity; ...

It is obvious that the complainant was terminated from his temporary assignment and not hired for a permanent pack and load position because of his conviction record.

The remaining question then is whether the exception stated in Wis. Stat. § 111.335(1)(c)1. would apply here, i.e., whether the circumstances of the complainant's convictions substantially relate to the circumstances of the pack and load position.

The test for determining whether an offense is substantially related to a job is whether the tendencies and inclinations to behave a certain way in a particular context, determined through an examination of the elements of the offense, are likely to reappear later in a related context. It is the circumstances which foster criminal activity that are important, 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). A common sense approach is to be taken when applying the substantial relationship test. Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981).

The elements of the crime of second degree sexual assault, as relevant to the complainant's conviction, are the commission of a nonconsensual sexual act through the use of force or violence. The elements of the crime of aggravated battery are the intentional infliction of bodily harm on another person. The elements of the crime of felony theft are the taking of the property of another without their knowledge or consent.

The traits associated with the commission of these crimes, as relevant here, would include disregard for the health and safety of others, particularly women; the use of force to obtain sexual gratification; the use of violence to achieve control over others or to resolve conflicts; the inability to control anger or other emotions; disregard for the property rights of others; and dishonesty and lack of trustworthiness.

There is a substantial relationship between the elements of these crimes, and the traits associated with them, and the circumstances of a job, like the pack and load position, which entails unrestricted access to unsecured property of significant value; work with little supervision in close proximity to others, including female employees; and location in a vast facility with many possible hiding places and with a high noise level which could prevent detection. This job setting creates a greater than usual opportunity for criminal behavior given the nature of the complainant's convictions. See, Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005).

The complainant argues by implication that, because none of his crimes occurred in an employment setting, the substantial relationship test has not been met. However, in County of Milwaukee, supra., the court rejected the argument that the substantial relationship test requires an identity between the context in which the offenses were committed and the context in which the job duties are carried out. See, Benna v. Wausau Insurance Companies, ERD Case No. 8401264 (LIRC July 10, 1989).

The complainant also argues by implication that his successful performance of the duties of the pack and load position, without incident, for a period of months, demonstrates the lack of a substantial relationship. However, in County of Milwaukee, supra., the court expressly rejected this argument, stating that prior satisfactory job performance was not germane to the inquiry that must be conducted in applying the substantial relationship test. See, McClain v. Favorite Nurses, ERD Case No. 200302482 (LIRC April 27, 2005).

cc: Attorney Scott C. Baumbach

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