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


JENNIFER YOUNG, Complainant

WAL-MART DISTRIBUTION CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199705063


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 makes the following:

FINDINGS OF FACT

1. The respondent, Wal-Mart, has a distribution center in Menomonie, Wisconsin. This distribution center receives, processes and ships freight to approximately 120-130 Wal-Mart stores in the upper Midwest.

2. The complainant, Jennifer Young, began employment with Wal-Mart on May 31, 1994, at its distribution center in Menomonie, Wisconsin. The parties stipulated that at all times material herein that Young's work performance met or exceeded all of Wal-Mart's expectations.

3. Wal-Mart stresses the importance of honesty and integrity in its employees. Wal-Mart's employee handbook states that "Dishonesty in any form will result in immediate termination." Theft of merchandise is an issue for Wal-Mart. As a precautionary measure against theft of merchandise from its center, Wal-Mart has up to 3 or 4 loss-prevention associates (but at times only one) stationed at the front door. The associates may ask an individual carrying a bag or purse to open it, but do not frisk employees. Wal-Mart does not have any kind of electronic monitoring device.

4.  In October 1997, Young's job title was that of break pack order filler. In this position Young retrieved merchandise within the distribution center to fill store orders. Young performed these duties utilizing computer-generated, off-line and "P-8" order filling systems. When performing her duties under the computer-generated system, Young's productivity was established by computer. Under the other systems, she would be required to submit written paperwork showing her productivity. Depending on workload needs, employees could also be moved to other positions where they are responsible for keeping track of their productivity. However, employees are not paid based on their productivity, although employee productivity may be considered for purposes of determining employee requested transfers.

5. As an employee, Young also had time keeping responsibilities. Employees at the distribution center do not use a time clock to punch a time card when entering or leaving work, but instead run their badge under a bar code to show their time of entering or leaving work. However, there are occasions when they are required to fill out a time and attendance slip. For example, when working less than their scheduled hours an employee must complete a slip to indicate whether the time missed was excused or unexcused and if vacation time would be used to cover this time, and if an employee fails to swipe his or her badge upon entering or leaving work the employee must complete a slip verifying their start or stop time. An employee's failure to swipe his or her badge is of concern to Wal-Mart because employees taking long breaks is an issue for Wal-Mart. Wal-Mart does not have set times for employee breaks, nor does it monitor employee breaks.

6. On October 16, 1997, Young was convicted of two counts of uttering a forged document, a violation of Wis. Stat. 943.38(2). This statute section provides that "Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, is guilty of a Class C felony." (The writings and objects identified in sub. (1) are: a) a writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or b) a public record or a certified or authenticated copy thereof; or c) an official authentication or certification of a copy of a public record; or d) an official return or certificate entitled to be received as evidence of its contents.)

7. Young met with Wal-Mart management officials, including personnel manager, Brian Ockerman, on October 23, 1997, regarding her conviction record. Young explained that she was going through a breakup with her partner, that her partner's checkbook was found and that she and her girlfriend used the checkbook to write checks, apparently to buy food and pay rent. Apparently she expressed a belief that she did not see this as theft because of the existence of "some level of relationship" between her and the individual on whose account the checks were written. Young also explained to Wal-Mart that manipulation and abuse on the part of her partner had been a significant factor in her participation in this conduct. Ockerman understood at the time that Young's conduct was "probably a gesture of desperation."

8. Wal-Mart informed Young that her employment was terminated. After Young protested that her conviction was not work related Wal-Mart changed the termination to a suspension but reinstated the termination later that day.

9. Wal-Mart viewed Young's actions that resulted in her conviction as putting her honesty and integrity in question, thereby raising a question about the risk of her employment at Wal-Mart due to her access to merchandise at the distribution center.

Based upon the above FINDINGS OF FACT, the commission makes the following:

CONCLUSIONS OF LAW

1. Wal-Mart is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Jennifer Young was an employee of Wal-Mart within the meaning of the Act.

3. The circumstances of Young's conviction for uttering a false document was substantially related to the circumstances of her position as break pack order filler, within the meaning of Wis. Stat. 111.335(1)(c)1.

4. Wal-Mart did not discriminate against Young on the basis of conviction record in violation of Wis. Stat. 111.335(1)(c)1. when it terminated her employment.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed October 27, 2000
youngje.rrr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

REQUEST FOR DISMISSAL

After the parties submitted written arguments to the commission, counsel for Wal-Mart learned that the complainant in this matter died. Based on her death, counsel filed a request that this matter be dismissed.

However, the commission has long held that a cause of action under the Fair Employment Act survives the death of the complainant. Szamocki v. Gilbert Shoe Co. (LIRC, 07/31/78). In that case the commission noted that Wis. Stat. 895.01 provides, in part, as follows: "In addition to the causes of action which survive at common law the following shall also survive: Causes of actions for . damages done to real or personal estate ." Under the guidance of this statute, the commission denied a motion to dismiss a complaint of alleged age discrimination following the death of the complainant in that case stating, "The commission finds that the Complainant's charge of discrimination by Respondent because of age in regard to discharge from employment, if proven, resulted in damages to his personal estate, by reason of the unlawful discrimination." Also, see The Estate of Evelyn M. Kaluza by Joanne Hinz, Personal Representative v. Gross Common Carrier, Inc. (LIRC, 03/05/86).

MERITS

Wis. Stat. 111.335(1)(c)1. provides that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of an "offense the circumstances of which substantially relate to the circumstances of the particular job."

In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the court noted that in structuring the exception to the prohibition of conviction record discrimination the legislature was concerned with balancing two competing interests: The integral part that employment plays in rehabilitating one convicted of crime and the recidivism tendencies of criminals. Id. at 821. In defining the scope of the test pertaining to convictions the circumstances of which substantially relate to the circumstances of the particular job, the court in County of Milwaukee stated:

"Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test. What is important in this assessment is not the factual details related to such things as the hour of the day the offense was committed, the clothes worn during the crime, whether a knife or a gun was used, whether there was one victim or a dozen or whether the robber wanted money to buy drugs or to raise bail money for a friend. All of these could fit a broad interpretation of `circumstances.' However, they are entirely irrelevant to the proper `circumstances' inquiry required under the statute. 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."

Id. at 824.

Forgery requires a lie relating to the genuiness of a document. State v. Davis, 105 Wis. 2d 690, 694, 314 N.W.2d 907 (Ct. App. 1981). One convicted of forgery exhibits the character traits of dishonesty and deceitfulness.

The ALJ held that Wal-Mart discriminated against Young on the basis of conviction record, evidently concluding that Wal-Mart had given lack of consideration to the "circumstances surrounding her criminal behavior." I n finding of fact 8 the ALJ found that "Wal-Mart did not consider Young's explanation or any of the circumstances surrounding her criminal behavior.." In his memorandum opinion, the ALJ stated, in part, as follows:

"...In a relationship gone bad Young believed she was owed money for food and rent...

Wal-Mart has a policy against dishonesty and that is laudable. Wal-Mart, any employer for that matter, should be able to weed out dishonest employees. It is Wal-Mart's rigid adherence to policy that poses the problem here, however. Mr. Ockerman testified quite candidly about his conversation with Young. It was clear to Mr. Ockerman during that conversation that Young did not see this as a theft issue at all. Rather, because of the relationship Young thought she had some form of permission. Consequently, Young's conduct is not substantially related to her job duties."

While it is appropriate to make a limited inquiry into the circumstances surrounding the offense, the ALJ appears to have relied on Young's explanation given to Ockerman about not seeing her conduct as a theft issue and believing she had some form of permission in concluding that the circumstances of the offense were not substantially related to her job. In determining the substantial relatedness of the offense and Young's job duties the commission need not consider the factual circumstances of the offense as asserted by the convicted person since it would place the commission in the position of re-evaluating the question of criminal liability which has already been resolved by a conviction. Lillge v. Schneider National (LIRC, 6/10/98). As stated by the commission in Lillge, "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." Id.

As stated in County of Milwaukee, "Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test.. 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." 139 Wis. 2d at 824.

Although somewhat limited, employment at Wal-Mart's distribution center does present the opportunity for an employee to forge documents. The most significant opportunity for this to occur is presented in connection with an employee's time keeping responsibilities. Employees working less than their scheduled hours must complete a time and absence slip stating whether the time missed was excused or unexcused, and if an employee fails to swipe his or her badge upon entering or leaving work the employee must complete paperwork verifying their start or stop time. An employee's failure to swipe his or her badge is of concern to Wal-Mart because employees taking long breaks is an issue for Wal-Mart. Wal-Mart does not monitor employee breaks. Wal-Mart has caught employees extending their lunch/break periods by failing to swipe their badge, going out to lunch, and then returning to work and swiping their badge to indicate that they were punched out on break.

Wal-Mart's greater concern, however, is with theft of its merchandise. In 1995, Wal-Mart recovered merchandise totaling almost $11,000 that had been stolen through an employee theft ring operation at its distribution center. Wal-Mart argues that common sense dictates that forgery is just a variation of theft, and that Young exhibited the trait of dishonesty by taking someone else's property through forgery. This argument is difficult to refute. While the facts of this case make it difficult to assess whether Young's conviction for forgery would have made her likely to steal merchandise from Wal-Mart, it is not so difficult to recognize that forgery is just a variation of theft, and that based on the character trait of dishonesty exhibited by her forgery conviction, employment at Wal-Mart certainly offered Young temptations or opportunities for criminal activity similar to the crime of forgery.

Considering as a whole the fact that through her forgery conviction Young exhibited the character trait of dishonesty, a character trait particularly relevant at Wal-Mart's distribution center because such employment presented her with not only the opportunity for the falsification of documents (albeit limited), but also a significant opportunity to commit the similar crime of theft, the commission concludes that Wal-Mart's termination of Young's employment did not violate the Act because Young's forgery conviction was substantially related to the circumstances of her job.

NOTE: The commission's conclusion that Wal-Mart's termination of Young's employment did not violate the Wisconsin Fair Employment Act was not based on any assessment of the witnesses' credibility. The facts in this case are not in dispute.

cc: Harry R. Hertel
William J. Holloway


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