STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


MICHAEL B. LILLGE, Complainant

SCHNEIDER NATIONAL, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199604807


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT

1. Respondent Schneider National, Inc. ("Schneider"), which is located in Green Bay, Wisconsin, operates an over-the-road, irregular route, motor carrier business in 48 states and Canada. At the time of the events giving rise to this matter Schneider employed some 11,000 truck drivers.

2. In July or August of 1996, Complainant Michael B. Lillge ("Lillge") contacted Schneider by calling its toll-free telephone number, and he arranged to have an employment application form sent to him. He completed that application on August 14, 1996, and sent it in to Schneider, which received it on August 16, 1996. Schneider returned the application to Lillge because he had left some areas uncompleted, Lillge then sent it back, and Schneider again received it on August 23, 1996.

3. The employment application form which Lillge completed and submitted to Schneider contained an inquiry stating, "Do you have a record of convictions or deferred prosecutions or any unresolved charges pending in the judicial system?" Lillge checked the box labeled "No" which appeared next to this question. Immediately below this, the application form had an area which requested information on all felonies which the applicant had pled guilty to, been convicted of, or had prosecution deferred, or pled no contest to; it also requested information on "any unresolved charges you currently have pending in the judicial system." Lillge entered the word "None" in this area.

4. At the time that he completed the application for employment with Schneider, Lillge in fact had two charges pending against him, one for violation of the law on tavern closing hours, and one for obstructing an officer. Lillge had pled not guilty to both charges at his initial appearances which had occurred in February, 1996 shortly after the citations were issued, and at that time trial had been scheduled for October 16, 1996.

5. After submitting his application for employment with Schneider, Lillge subsequently met with Joseph B. Snyder, a recruiter for Schneider, in Milwaukee on September 5, 1996, for an interview. In this interview, Lillge told Snyder that there were two charges pending against him, and he told Snyder specifically that the charges were for serving alcohol after hours and for obstructing a police officer. He also told Snyder about the circumstances which led to the charges.

6. The normal practice followed by Schneider in interviewing applicants for positions as a driver is that the interviewer "rates" the applicant in a number of areas and records these ratings on an interview form denominated "Dimension Sheet."

7. In his interview with Lillge on September 5, 1996, Snyder did not "rate" Lillge, because it is against Schneider company policy to rate someone who has charges pending against them. Instead, Snyder wrote "has charges pending in Court System" and "when charges are Disposed of need to IV him" on the interview form. Snyder also told Lillge that Schneider could not hire him until after the court matters were over.

8. At the time he interviewed Lillge, Snyder had Lillge's application and was aware that Lillge had answered "None" to the question about "unresolved charges pending in the judicial system," and he was aware from what Lillge told him during the interview, that Lillge in fact had "unresolved charges pending in the judicial system." However, Snyder still considered Lillge a viable candidate depending on the disposition of the charges pending against him. Snyder's decision not to complete the interview process for Lillge was not motivated by some belief on Snyder's part that Lillge had "falsified" his employment application.

9. Schneider (by its agent Snyder) decided not to allow Lillge to complete the interview process because of the fact that Lillge had criminal charges pending against him.

10. Lillge failed to appear at the trial which had been scheduled for October 16, 1996 on the charges against him, and he was convicted on both charges on a default basis. A forfeiture of $271.00 was imposed for the closing hours violation, and a forfeiture of $74.80 was imposed for the obstruction violation.

11. Following his conviction on the two charges, Lillge contacted Schneider on or about November 7, 1996 to inform it of the disposition of the charges, and at this time he had a telephone conversation with Lisa McCol, a recruiting specialist for Schneider. In this conversation, McCol asked Lillge if he had been convicted, and he said that he had. In response, McCol told Lillge that according to company policy, Schneider could not hire him for five years. When Lillge questioned her on this, McCol put Lillge on hold and then returned to tell him that she had spoken to her superiors and that they had confirmed that Schneider could not hire him for five years, according to company policy. Subsequently, McCol typed "Michael was convicted of furnishing alcohol to a minor and resisting arrest" into the company's record of Lillge's application.

12. Schneider made the decision not to hire Lillge because of the fact that he had been convicted of criminal charges.

Based on the Findings of Fact made above, the commission makes the following:

CONCLUSIONS OF LAW

1. Respondent Schneider National, Inc. is an employer within the meaning of the Wisconsin Fair Employment Act.

2. As of September 5, 1996, Complainant Michael B. Lillge was an individual with an arrest record within the meaning of the Wisconsin Fair Employment Act.

3. As of November 7, 1996, Complainant Michael B. Lillge was an individual with a conviction record within the meaning of the Wisconsin Fair Employment Act.

4. The circumstances of the charges which were pending against Lillge as of September 5, 1996 and of which he had been convicted as of November 7, 1996 were substantially related to the circumstances of the job as a truck driver for Schneider for which he was applying.

5. Schneider did not discriminate against Lillge because of arrest record, within the meaning of the Wisconsin Fair Employment Act, when it refused on September 6, 1996 to allow him to complete the interview process because of the charges pending against him.

6. Schneider did not discriminate against Lillge because of conviction record, within the meaning of the Wisconsin Fair Employment Act, when it refused to hire him on or about November 7, 1996 because of his conviction record.

Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed: June 10, 1998
lillgem.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Schneider argues that Lillge falsified his employment application, and that this precludes Lillge from making out a prima facie case of discrimination. This argument is without merit.

For one thing, it is legally insignificant. When a case has been fully tried and the employer has offered its assertion as to the reasons for its actions, the ultimate issue of whether the Act was violated is reached, and the question of whether a prima facie case of discrimination has been established is no longer important. See, e.g., Mouncil v. Pepsi Cola (LIRC, 02/16/89).

Another reason that Respondent's argument on this point is without merit, is that the evidence shows unequivocally that this matter of "falsification" of the employment application was never a consideration during the process which is at issue here. While there is no discrimination because of conviction record where the evidence shows that decision was made because the Respondent believed that the Complainant had falsified his employment application with respect to prior convictions, Luckman v. Western-Southern Life (LIRC, 02/16/90), aff'd. sub nom. Luckman v. LIRC (Milwaukee Co. Cir. Ct., 09/04/90), this legal principle requires consideration of the actual reasons a respondent had for its decision. As the Findings of Fact made above reflect, by the time of the interview Snyder obviously knew full well what was (and was not) on Lillge's application form, and he also knew full well what Lillge had told him about the pending charges during the interview. However, Snyder conceded that he did not tell Lillge that he was automatically disqualified because he had falsified his employment application. On the contrary, Snyder still considered Lillge a viable candidate, as shown both by his testimony and by what he wrote on the interview form. In fact, no one connected with Schneider ever told Lillge that "falsification" of his employment application was a reason for any decision it made. It is clear that "falsification of the employment application" was not the actual reason Schneider had for its decision. That is transparently a theory developed well after the fact by persons other than those who actually made the challenged decisions.

The commission believes that the evidence in this case establishes beyond any question, that Schneider decided not to allow Lillge to finish the application process because he had charges pending against him, and later decided not to hire him because he had a conviction record. The question which is therefore presented, is whether the affirmative defenses in Wis. Stat. 111.335(1)(b) and (c), that the charges were "substantially related" to the employment involved, are available to Schneider.

Methodology for determining "substantial relationship" -- Based on the decisions by the Wisconsin supreme court in this area, Law Enforce. Stds. Bd. v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981), Gibson v. Transp. Comm., 106 Wis. 2d 22, 315 N.W.2d 346 (1983), and County of Milwaukee v. LIRC and Serebin, 139 Wis. 2d 805, 407 N.W.2d 908(1987), the commission believes that the appropriate method for evaluating the "substantially related" question is to look first and foremost at the statutory elements of the offense(s) involved.

The court has made it clear that it believes that only a "limited inquiry" into the circumstances of the offense is contemplated. Serebin, supra, 139 Wis. 2d at 82-26. Focusing on the elements of the offense, the court has indicated, helps to elucidate the circumstances of the offense. 139 Wis. 2d at 826.

The court has unequivocally rejected an interpretation of the "substantially related" test which would require, in all cases, a detailed inquiry into the facts of the offense and the job. 139 Wis. 2d at 823-24. While the court has acknowledged that there are some crimes that involve statutory elements of such generality that some degree of consideration of the facts would be necessary, the commission believes that the offenses involved here are specific enough that this is not necessary.

Another reason that an approach which focuses on the statutory elements of the offense is preferable, is that frequently the only person at the discrimination case hearing with any personal knowledge about the underlying factual circumstances of the offense is the person who was convicted -- and frequently that person describes a version of the underlying factual circumstances that is self-exculpatory and inconsistent (to a greater or lesser degree) with the fact that they were convicted. This case provides an example of this. The circumstances described by the complainant, if accepted at face value, tend to exculpate him to some extent, and to raise questions about the appropriateness of the charges. (1) Furthermore, as the complainant explains it, he was convicted because he failed to appear at the trial; this, too, tends to undermine the confidence that would normally flow from a criminal conviction, that all of the facts necessary to establish the offense were conclusively established. However, this is a completely unsatisfactory approach, because it places the commission in the position of re-evaluating the question of criminal liability which has already been resolved by a conviction. The commission must be able to rely on the fact of conviction as establishing, beyond dispute, that the convicted person engaged in the elements of the crime, and that there were no mitigating facts or circumstances which would have made a lesser charge (or no charge) more appropriate under the circumstances. Considering the factual circumstances of the offense as asserted by the convicted person is inconsistent with this.

Application of an "elements-based" "substantial relationship" analysis -- The "closing hours" offense with which Lillge was charged and of which he was convicted was brought as a municipal ordinance violation but cited Wis. Stat. 125.32 (3)(a). (2) This is the section that governs establishments with a Class "B" license, which allows the sale only of fermented malt beverages (i.e., beer only, no wine or liquor) for consumption on or off premises. The statute provides:

125.32 General restrictions and requirements.

(3) CLOSING HOURS. (a) No premises for which a Class "B" license or permit is issued may remain open between the hours of 2 a.m. and 6 a.m., except as provided in this paragraph and par. (c). On Saturday and Sunday, the closing hours shall be between 2:30 a.m. and 6 a.m. On January 1 premises operating under a Class "B" license or permit are not required to close.

No penalty is specifically provided for violation of this statute. Therefore, the general penalty provision in Wis. Stat. 125.11 would be applicable:

125.11 Penalties.

(1) GENERAL PENALTY. Any person who violates any provision of this chapter for which a specific penalty is not provided, shall be fined not more than $1,000 or imprisoned for not more than 90 days or both. Any license or permit issued to the person under this chapter may be revoked by the court.

(2) FELONY. If a person is convicted of a felony under this chapter, in addition to the penalties provided for the felony, the court shall revoke any license or permit issued to the person under this chapter.

This violation would be properly characterized as being a Class B misdemeanor (under Wis. Stat. 939.51, that is the class in which the maximum penalty provided is a fine of not more than $1,000 or imprisonment for not more than 90 days or both).

The obstruction charge was also charged as violation of a local ordinance, No. 11.100. The citation was blank in the section for indicating a state statute which this ordinance was adopting; however, judging from the description on the citation, "Obstruct Officer," it presumably was based on Wis. Stat. 946.41, which provides as follows:

946.41 Resisting or obstructing officer.

(1) Whoever knowingly resists or obstructs an officer while such officer is doing any act in an official capacity and with lawful authority, is guilty of a Class A misdemeanor.

(2) In this section:

(a) "Obstructs" includes without limitation knowingly giving false information to the officer or knowingly placing physical evidence with intent to mislead the officer in the performance of his or her duty including the service of any summons or civil process.

(b) "Officer" means a peace officer or other public officer or public employe having the authority by virtue of the officer's or employe's office or employment to take another into custody.

(2m) Whoever violates sub. (1) under all of the following circumstances is guilty of a Class D felony:

(a) The violator gives false information or places physical evidence with intent to mislead an officer.

(b) At a criminal trial, the trier of fact considers the false information or physical evidence.

(c) The trial results in the conviction of an innocent person.

(3) Whoever by violating this section hinders, delays or prevents an officer from properly serving or executing any summons or civil process, is civilly liable to the person injured for any actual loss caused thereby and to the officer or the officer's superior for any damages adjudged against either of them by reason thereof.

Looking at the elements of the offenses involved, the commission concludes that both were substantially related to the work as a truck driver which Lillge was seeking.

Both operation of a tavern and operation of a truck in interstate commerce are very heavily regulated occupations in which significant elements of the job are directly controlled by criminal statutes and similar regulations which are designed for protection of public health and safety. Lillge's "hours of operation" offense demonstrates an inclination (or at least a willingness) to disregard applicable safety-related regulations. In addition, Lillge's actions in obstructing a police officer bears a very distinct relationship to situations he would likely confront as a truck driver. Much more so than many other kinds of employes, a truck driver will be encountering regulatory authority frequently in the process of complying with weighing requirements, and he or she is also significantly more likely to encounter police authority on the job than most employes are because the activity of driving is routinely patrolled by police. Obstruction of a police officer is indicative of an inclination which, in the context of truck driving, might find expression in "dodging" scales or in disregarding police instructions, or even efforts to pull him over.

The commission has previously noted a connection between bartending and driving offenses and obstruction offenses. In Gulbrandson v. City of Franklin (LIRC, 07/02/81), the commission held that a licensing committee's denial of a bartender's license based on convictions for operating a motor vehicle while intoxicated, for resisting and obstructing an officer, and for vandalism and disorderly conduct, did not violate the Fair Employment Act, because the charges were substantially related to the circumstances of bartending and to the statutory requirement of good moral character.

For all of the reasons given above, the commission concludes that while Schneider decided not to allow Lillge to finish the application process because he had charges pending against him, and later decided not to hire him because he had been convicted, its decisions were not arrest or conviction record discrimination within the meaning of the Fair Employment Act because the charges involved were "substantially related" to the employment involved.

NOTE: The commission does not intend its decision in this matter to be taken as approving, to any extent, Schneider's apparent policy of not interviewing persons for positions as drivers if they have any criminal charges against them and of not hiring persons as drivers if they have any criminal convictions against them within the preceding 5 years.

Such a general policy precluding consideration of all applicants with criminal records, without regard to the nature of the conviction or its relation to the job, is clearly contrary to the spirit of the Fair Employment Act's prohibition of discrimination because of arrest or conviction record.

However, any one case involving an allegation of discrimination because of arrest or conviction record will, necessarily, always involve a particular offense and a particular job. If that offense and that job turn out to be substantially related, there will be no basis for finding a violation of the law, because the substantial relationship test is an objective legal test applied after the fact by a reviewing tribunal, not a test of the subjective intent of the decision maker at the time it made the decision. Santos v. Whitehead Specialties (LIRC, 02/26/92).

Thus, Schneider has prevailed here only because of the fortuitous (for it) circumstance, that its overly broad policy happened in this case to have had a result which was defensible under the applicable law.

cc: William G. Weiland, Attorney for Complainant
Ronald T. Pfeifer, Attorney for the Respondent


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Footnotes:

(1)( Back ) The "hours of operation" law does not per se prohibit the consumption of alcohol after hours in a bar, but rather regulates the hours during which the establishment may be "open." However, at least according to Lillge, though, the establishment was not open to the public; the only persons there were Lillge (an employe who had been working there that night until closing time at 2 A.M.), and two of his "bosses," at least one of whom was actually an owner of the establishment. To sustain a conviction under this statute, the jury must find the premises open contrary to statute. State v. Beaudry, 123 Wis. 2d 40, 46, 365 N.W.2d 593 (1985). While "patrons or customers must leave the premises by [the] statutorily set ... closing hour," persons working for the business may be present after those hours. State v. Wachsmuth, 73 Wis. 2d 318, 332, 243 N.W.2d 410 (1976). The question of whether employes and owners may be present and drinking during off hours does not appear to be directly addressed under this statute, or to have been directly addressed by any published decisions. Thus, there appears to at least be a question as to the appropriateness of the charge. According to Lillge, the "obstruction" charge arose when he was ordered by his boss to refuse to open a door and admit a police officer to the premises, and he followed that order. Apart from the Fourth Amendment issues presented in a situation in which the alleged "obstruction" is the refusal to admit a police officer to premises, it has been observed that "not every barrier placed in the path of an officer gives rise to a violation of sec. 946.41(1)." State v. Hamilton, 120 Wis. 2d 532, 535, 356 N.W.2d 169 (1984). In addition, a defendant's conduct must in fact have the ultimate effect of obstructing an officer, 120 Wis. 2d at 541, and here the officer ultimately had no trouble getting the information he needed to resolve his investigation once Lillge left the premises. Again, the facts as described by Lillge at the very least raise a question as to the appropriateness of the charge.

(2)( Back ) Lillge was actually charged with violation of the local ordinance, No. 9.01(10)(d), which adopted this statute.