MARY A ROBINSON, Complainant

CITY OF MILWAUKEE
POLICE AND FIRE COMMISSION, 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 August 27, 2010
robinma . rsd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant alleges that she was discriminated against on the basis of conviction record when the respondent rejected her application for a police officer position.

Pursuant to Wis. Stat. § § 111.321 and 111.322, it is an act of employment discrimination to refuse to hire or employ any individual because of conviction record.

The proper inquiry here is what actually motivated the respondent's decision not to hire the complainant. See, Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002).

The record shows that applicants for police officer positions are first administered a written exam. Those who pass this exam are then subject to further screening, including a physical ability test, writing sample exercise, oral interview, and background check, including a review of the applicant's criminal history on DOJ and CCAP databases.

Here, the respondent reviewed the complainant's criminal history before her written exam had been graded because the complainant had included a letter from her criminal defense attorney with her initial application stating that, contrary to the records of DOJ and CCAP, the complainant had been convicted of misdemeanor battery, not felony aggravated battery.

In its letter to the complainant of December 4, 2007, the respondent stated that the complainant's application had 'been rejected" because of this criminal history record.

However, this, in fact, was not what actually occurred. Instead, the respondent continued to process the complainant's application by grading her written exam, and provided her an opportunity to correct her criminal history records in order to remain eligible for hire.

Ultimately, the reason the complainant was eliminated from the selection process was her failure to pass the written exam. The record shows that an applicant must receive a score of 52 or higher to pass the exam, but the complainant received a score of 33. Although the complainant now claims that the respondent manipulated her score to prevent her from qualifying, she offered no evidence to substantiate this at the hearing.

Consequently, the respondent ultimately decided not to hire the complainant because of her exam score, not because of her conviction record, as required to satisfy Wis. Stat. § 111.322.

However, even if the respondent had eliminated the complainant from consideration because of her conviction record, the exception stated in Wis. Stat. § 111.335(1)(c)1. would apply here. This statutory provision states:

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...

The records upon which the respondent reasonably relied in performing criminal history background checks of applicants for police officer positions, i.e., DOJ and CCAP, stated, as the complainant concedes, that the complainant was convicted of the felony of aggravated battery. Certainly, the elements of aggravated battery, i.e., intentional infliction of bodily harm on another person, would be substantially related to the duties and responsibilities of a police officer.

Moreover, in order to qualify as a police officer, an individual must be eligible to carry a firearm. Pursuant to federal law, those convicted of felonies are ineligible to do so.

The complainant appears to be contending that it was unreasonable for the respondent to require her to provide a copy of the judgment of conviction when the respondent could have just called her attorney and relied upon her attorney's representation that her conviction was actually for misdemeanor battery rather than felony aggravated battery.

However, it was reasonable and responsible for the respondent to require the complainant to provide properly authenticated court records to resolve a discrepancy such as that under consideration here.

The complainant failed to sustain her burden to prove that probable cause exists to believe that she was discriminated against on the basis of conviction record when she was not hired by the respondent as a police officer.

cc: Attorney Leonard A. Tokus

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uploaded 2010/09/21