WILLIAM E MARCIN, Complainant

CHARTER COMMUNICATIONS LLC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The first sentence in paragraph 2 of the administrative law judge's ORDER is deleted and the following is substituted therefor:

"That the respondent shall make the complainant whole for all losses in pay and benefits the complainant has suffered by reason of the respondent's unlawful conduct by paying the complainant the sum the complainant would have earned as an employee of the respondent from February 22, 2012 through April 30, 2012 (excluding February 22 and 24, 2012, days on which the complainant requested to be off work)."

2. That paragraph 3 of the administrative law judge's ORDER is deleted and the following is substituted therefor:

"That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter, in the total amount of $14,754.05. A check in that amount shall be made payable jointly to the complainant and his attorney, Mick H. Sellergren, and delivered to Mr. Sellergren."

3. That paragraph 4 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"That within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent shall submit a copy of the Compliance Report to the complainant at the same time that it is submitted to the commission. Within 10 days from the date the copy of the Compliance Report is submitted to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report."

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

Dated and mailed July 14, 2015

marciwi_rmd . doc : 164 : 5  122.1

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The question presented in this case is whether the respondent violated the Wisconsin Fair Employment Act (Act) when it questioned the complainant about his arrest record and suspended his employment based upon that record. The administrative law judge found that the respondent's actions were undertaken in violation of the Act, and the commission agrees.

Sections 111.321 and 111.322(1) of the Act prohibit an employer from engaging in any act of employment discrimination against any individual on the basis of arrest record, with only one exception:

Notwithstanding s. 111.322, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity.

Wis. Stat. § 111.335(1)(b).

In this case, no criminal charges were ever filed against the complainant. Consequently, the statutory exception referenced above does not apply.

In its brief in support of commission review, the respondent argues that this conclusion is in error. The respondent asserts that the term "subject to" indicates that an actual charge is not required under the Act. The respondent maintains that the complainant was "subject to" a pending criminal charge in that the district attorney could have potentially decided to charge him with a crime, and contends that the "subject to" language in the statute was specifically intended to address situations where a prosecutor has deferred criminal charges but where charges could be filed in the future.

The respondent's arguments are unpersuasive. The statute specifies that there must be a "pending" criminal charge for the exception to apply. A pending charge refers to a charge that has already been filed, but has not yet been fully resolved. See, Black's Law Dictionary, 1979 ed., p. 1021 ("[A]n action or suit is "pending" from its inception until the rendition of final judgment"). If the legislature had intended the statute to apply in cases in which criminal charges could theoretically be filed, but were not filed, such as where there was a deferred prosecution agreement (DPA),(1) it would not have included the word "pending" in the statute.

The commission also notes that the respondent's suggested reading of the statute would create difficulties in its application that were clearly not intended by the legislature. Under the respondent's proposed interpretation, anyone with an arrest record could be suspended by his or her employer, at least until such point as the statute of limitations had run out and the person could no longer be charged. The respondent's broad reading of the statute could also encompass situations in which the district attorney is considering bringing charges against a person who has not yet been arrested. Clearly the sweep of the statutory exception was not meant to be so broad. Moreover, if the phrase "subject to a pending criminal charge" can be read as applying where no charges have actually been filed, it becomes impossible to perform a substantial relationship analysis. The substantial relationship test as it applies to an employee with an arrest record requires comparing the circumstances of the specific criminal offense with which the individual has been charged to the circumstances of the specific job. In the absence of an actual charge the decision-maker has no way of determining what the elements of the crime are and, therefore, no way of applying the substantial relationship test to the job at hand.

In its brief the respondent also argues that on March 15, 2012, the complainant was charged with disorderly conduct, and it suggests that this could form the basis for the application of the substantial relationship test. However, the statutory exception applies only to criminal charges. The complainant's disorderly conduct charge was a municipal violation, the penalty for which is a forfeiture but not incarceration. It is well established law that a municipal ordinance violation that can only result in a forfeiture is not criminal. See, Hart v. Wausau Insurance Co., ERD Case No. 8401264 (LIRC April 10, 1987), citing State v. Roggensack, 15 Wis. 2d 625, 113 N.W.2d 389 (1962)("It is clear that conduct punishable only by a forfeiture is not a crime.") The cases cited by the respondent for the proposition that municipal charges can be treated as criminal are legally and factually distinguishable and do not make a persuasive argument to the contrary.

The commission also notes that the disorderly conduct charge was not filed until March 15, 2012, approximately four weeks after the complainant's suspension began, and that the respondent did not become aware of the charge until approximately March 26, 2012, five and a half weeks into the suspension. Consequently, even accepting that the substantial relationship test could be applied to that charge--and for the reasons articulated in the paragraph above, the commission does not believe it can--that defense could not be used to justify the respondent's actions in suspending the complainant's employment beginning on February 22, 2012.

Next, the respondent argues that, even in the absence of a pending criminal charge, it was within its rights to suspend the complainant's employment because it conducted an investigation consistent with Onalaska. This argument fails. The so-called "Onalaska defense"(2) applies if an employer discharges the employee because it believes, based on its own investigation, that the employee has engaged in an illegal or unacceptable activity. However, there is nothing in this record to indicate that the respondent either 1) conducted an investigation that conformed with the Onalaska requirements or, 2) suspended the complainant's employment based on a belief that he engaged in an illegal or unacceptable activity.

Regarding the first point, it is settled law that in order to satisfy Onalaska requirements the investigation must focus on facts the employer gathers itself and not simply on what is in the police records. For example, an employer can legitimately base its decision on an admission from the employee,(3) statements from others who witnessed the employee's conduct,(4) or direct observations of that conduct.(5) None of those sources of information were relied upon in this case. Instead, the primary evidence that the respondent sought to avail itself of was the police report.(6) However, the commission has held that police reports are a component of the arrest record and may not be relied upon as a part of an independent investigation as to whether adverse action should be taken against an employee. Betters v. Kimberly Area Schools (LIRC July 30, 2004). Where, as here, the respondent's "investigation" consisted almost entirely of attempting to collect arrest record information, the Onalaska defense is unavailing.

In addition to the fact that the respondent failed to conduct an investigation that conformed with Onalaska requirements, there is also nothing in the record to suggest that the respondent suspended the complainant's employment because it believed he had engaged in illegal or objectionable conduct. To the contrary, the respondent's witnesses testified that they were not satisfied they had sufficient information about the complainant's underlying conduct to make a decision about his continued employment. Where the reason for the suspension was the respondent's desire to conduct an investigation relating to the incident that resulted in the complainant's arrest, and not its belief that he had actually engaged in criminal conduct, the Onalaska defense does not apply.

The respondent has also suggested that its actions were justified by the complainant's refusal to cooperate with the investigation. However, the evidence does not indicate that the complainant refused to cooperate. To the contrary, the complainant answered all of the respondent's questions and provided it with the documents that he had access to. While the complainant's responses may have been somewhat lacking in detail regarding the underlying incident, the respondent asked only general questions and never told the complainant that it wanted more complete information. Further, the respondent did not contend that it suspended the complainant as a disciplinary action for failure to cooperate with an investigation. Rather, it has steadfastly asserted that the complainant was suspended while it investigated, and the record indicates that this is what occurred.

Finally, it must be noted that the Act specifically prohibits an employer from requesting an employee "to supply information regarding any arrest record of the individual except a record of a pending charge." Wis. Stat. § 111.335(1)(a). The only exception to that prohibition occurs under the following circumstance:

". . . when employment depends on the bondability of the individual under a standard fidelity bond or when an equivalent bond is required by state or federal law, administrative regulation or established business practice of the employer and the individual may not be bondable due to an arrest record."

Wis. Stat. § 111.335(1)(a).

There is nothing in the record to indicate that the complainant's employment depended on bondability or that the respondent was questioning him about his arrest record for that reason. The complainant's failure to provide the respondent with information that the respondent was prohibited by statute from requesting in the first place cannot provide the respondent with a defense to an allegation of arrest record discrimination. To the contrary, the commission agrees with the administrative law judge that the respondent's actions in insisting that the complainant supply it with arrest record information, in the absence of a pending charge, were undertaken in violation of the statute.

In its brief to the commission the respondent argues that it had the right to request the information from the complainant because when it first made its request it reasonably understood that he had a pending child abuse charge. This is unpersuasive, for several reasons. First, the evidence does not support a conclusion that the respondent believed there was a pending charge. The first time the respondent requested information from the complainant was on February 22, 2012, at which point the complainant told the respondent that he "may" be charged with felony child abuse. On March 2, 2012, the complainant informed the respondent that his attorney and the district attorney were working on a deal which would result in no charges being filed, and on March 9, 2012, he informed the respondent no charges would be filed. The respondent continued to request information thereafter, even though it had no reason to believe there was a pending child abuse charge. Second, and more importantly, the statute does not permit an employer to request an employee to supply information about an arrest because it believes he has been or may be charged with a crime. Rather, the only time the employer is permitted to request such information in the absence of an actual pending charge is when it is necessary to determine if the employee is bondable. Lacking any evidence to suggest that bondability was an issue, the statute did not permit the respondent to request the information from the complainant.

Remedies

The complainant's attorney requested $8,491.05 in fees and costs through the issuance of the administrative law judge's decision. Payment of that amount was ordered by the administrative law judge without objection from the respondent. The complainant's attorney now requests an additional $98 for his work through the hearing level that had not yet been billed at the time he submitted his original fee request. As the complainant's fee request is reasonable, and as the respondent has made no objection to it, the commission has ordered payment of the additional $98 requested.

The complainant's attorney has also requested payment in the amount of $6,165 for the time spent conducting research and preparing his two briefs to the commission, along with his affidavit and petition in support of attorney fees. The commission has reviewed the complainant's attorney's itemized fee request, to which the respondent has again raised no objection, and considers it reasonable. The respondent is therefore ordered to pay an additional $6,165 in attorney's fees and costs, for a total of $14,754.05 in reasonable attorney's fees and costs associated with this matter.

The commission has also modified the administrative law judge's remedial order to include back pay for February 23, 2012. The record indicates that the complainant asked to be off work on February 22 and 24, 2012, but not on February 23, 2012. Consequently, he is eligible to receive back pay for that date.

cc: Attorney Mick Sellergren
     Attorney Laura Lindner
     Attorney Julia Arnold

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(1)( Back ) While the respondent seems to suggest that the complainant was subject to a DPA, there is nothing in the record to indicate this was the case. The mere fact that the district attorney indicated there was a possibility he could file charges at some later point does not establish the existence of a DPA.

(2)( Back ) This defense is derived from City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984).

(3)( Back ) Levanduski v. Visiting Nurses Association (LIRC, Feb. 10, 1988); Hoskins v. County of Juneau, ERD Case No. CR200403113 (LIRC Feb. 26, 2010).

(4)( Back ) Redmon v. Milwaukee (LIRC Feb. 22, 1990); Decker v. Biewer Sawmill Inc., ERD Case No. CR200901589 (LIRC Sept. 16, 2003).

(5)( Back ) Seever v. Catholic Charities Bureau, ERD Case No. 8802095 (LIRC Sept. 20, 1990).

(6)( Back ) The respondent also requested information about the counseling program the complainant was participating in, although it is not clear why it wanted this information. When the complainant asked the respondent to explain why it believed his counseling information was relevant to the job, the respondent declined to respond but continued to request the information. 

uploaded 2015/07/22