WALTER REDMON, Complainant
DEPARTMENT OF CITY DEVELOPMENT
CITY OF MILWAUKEE, Respondent
On May 24, 1989, an Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that there was no probable cause to believe Respondent had unlawfully suspended or discharged the Complainant based upon his arrest or conviction record.
The Complainant subsequently filed a timely petition for Commission review of the matter. Both parties submitted written argument to the Commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:
That the decision of the Administrative Law Judge (copy attached) is modified as follows:
"1. Paragraphs 2, 3 and 4 of the CONCLUSIONS OF LAW are deleted and the following paragraph substituted therefor:
"2. The Complainant has failed to establish probable cause to believe that the Respondent suspended or terminated his employment based on his arrest or conviction record, within the meaning of the Wisconsin Fair Employment Act."
As modified, the ALJ's decision is affirmed and shall stand as the FINAL ORDER herein.
Dated and mailed February 22, 1990
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
The facts in this case are relatively undisputed. The Complainant was first employed by the Respondent in 1979 and ultimately became a regular employe in 1981, working as a building and grounds laborer for the Housing Authority of the City of Milwaukee. Complainant's employment mostly involved cleaning apartments, including at times when people were in the apartments. At his place of employment Complainant had access to sulfuric acid used to unplug drains.
On July 13, 1986, the Complainant was charged with aggravated battery for throwing a vial of sulfuric acid in the face of Ms. Debra Lovelace McGee. Complainant, McGee and another woman had been together most of the day drinking and later went to a couple of bars before the incident with the vial of sulfuric acid occurred.
On Monday, July 14, Patricia Paskel, Respondent's housing manager, received a call from Ms. McGee's brother inquiring about the type of acid Complainant had so Ms. McGee could be properly treated. Ms. McGee's brother explained to Paskel that the Complainant had told his sister that the acid was obtained from Complainant's place of work. Paskel was also able to speak to Ms. McGee. Paskel was informed by her that: (1) Complainant had thrown the acid in her face; (2) that during the day on July 12 Complainant had made reference to the acid when Complainant's girlfriend (McGee's sister) talked about fighting another woman; and (3) that Complainant had been carrying the acid around for some time.
Prior to her conversation with Ms. McGee and her brother, Ms. Paskel had been informed by city personnel that Complainant was in jail, and she had also spoken with the Complainant who only stated that he "was in the city jail for a little problem," when Paskel inquired about what had happened.
The incident for which Complainant was arrested did not occur during working hours nor on property of the City of Milwaukee.
On July 16, 1986, the Complainant was notified by Respondent that he was suspended "until further notice pending a Departmental investigation regarding the alleged events which occurred on or about Sunday, July 13, 1986." On December 1, 1986, the Respondent notified Complainant that he was discharged due to "conduct unbecoming an employe of the Department of City Development involving the events which occurred on Sunday, July 13, 1986."
Subsequently, on December 15, 1986, Complainant entered a plea of no contest to the charge of aggravated battery and was thereupon convicted of such offense.
At the hearing the Complainant denied any recollection of having a vial of acid in his possession or having thrown the contents of said vial at Ms. McGee.
Section 111.321, Stats., provides in part as follows:
Subject to ss. 111.33 to 111.36, no employer, labor organization, employment agency, licensing 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 . . . arrest record or conviction record.
Section 111.322 provides in part as follows:
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, employ, admit or license any individual, to bar or terminate from employment . . . any individual . . . because of any basis enumerated in s. 111.321.
Section 111.335 provides in part as follows:
(1)(b) 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.
(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; . . . (emphasis added)
On appeal, the Complainant's counsel (1) summarily argues that this case "concerns acknowledged discrimination . . . as it is not in dispute that Redmon was first suspended and then terminated based upon the arrest for the incident at issue." (emphasis added)
However, there is indeed a dispute as to the alleged discrimination because the Respondent categorically denies that Complainant's suspension and termination were based upon his arrest or conviction record. The record herein reveals that the Respondent: did not suspend or terminate the Complainant's employment based upon Complainant's arrest or conviction record. Several factors lead to this inescapable conclusion.
Clearly, the Respondent did not suspend or discharge the Complainant based upon his conviction record since both the suspension and discharge occurred before the Complainant's conviction.
With respect to Complainant's charge of arrest record discrimination the record reveals first that on the day after the Complainant's arrest (July 14, 1986), the Respondent learned from Ms. McGee -- the individual who had the sulfuric acid thrown in her face -- and her brother that: (1) Complainant had thrown acid in Ms. McGee's face; and (2) that Complainant had obtained the acid from his place of employment. Ms. Paskel, who was a supervisor over the Complainant, had previously spoken to the Complainant and inquired about what had happened but he evaded her questions.
Secondly, a statement given to the Unemployment Compensation Division (admitted as Complainant's Exh. #2) by Mary Altendorf of Respondent's personnel department also indicates that Respondent's actions were not taken based upon a prohibited basis. The statement reads in part as follows:
As soon as we found out about this on 7-14-86 we did in fact suspend Walter, pending further investigation of the alleged events. The reason is because of the nature of the assault, and secondly he admitted that the acid had been obtained from the work site. Because of this we felt it was not in our best interests as an (sic) department to have him at work, particularly because he works in an elderly low-income housing residence. We were concerned about the safety of the elderly and our own employes. (emphasis added)
Thirdly, both the suspension and termination notices issued Complainant reference the events of July 13, 1986, not Complainant's arrest as the basis for Respondent's actions. The suspension notice stated that Complainant was suspended "until further notice pending a Departmental investigation regarding the alleged events which occurred on or about Sunday, July 13, 1986." The termination notice stated that Complainant was discharged due to "conduct unbecoming an employe of the Department of City Development involving the events which occurred on Sunday, July 13, 1986." (emphasis added)
The Complainant takes exception to the statement in Exhibit #2 that he "admitted that the acid had been obtained from the work site," arguing that this exhibit was inadmissible for multiple reasons. Complainant's counsel first argues that this was "not 'Complainant's' exhibit nor offered into evidence by the Complainant." Complainant's counsel is wrong on both counts. The Complainant had listed "my unemployment compensation records" as part of the exhibits that he intended to use at the hearing prior to the hearing, and the record reveals at page 14 of the transcript that Complainant did in fact offer these exhibits, including the exhibit in question, into evidence. Complainant may not have been represented at the hearing as argued now by his counsel; however, it was still his decision to have the unemployment compensation material entered into evidence as he obviously felt this material was beneficial to his case.
Secondly, in this regard the Complainant also takes exception to the statement in Complainant's Exhibit #2 about where the acid had been obtained, claiming it was "multiple hearsay" not admissible under any statutory exception and was prejudicial to him, particularly because at the hearing he denied having knowledge of where the acid came from. (2) Further, Complainant argues that Ms. Altendorf had only a vague recollection about the exhibit at the hearing. However, the simple fact is that the Complainant waived any hearsay objection because it was the Complainant himself who submitted the document for admission into evidence. Moreover, Respondent's Exhibit #3 that was admitted into evidence recounts Ms. Paskel's July 14 conversations with Ms. McGee and her brother, and documents the fact that Respondent in fact believed Complainant had thrown acid in the face of Ms. McGee using sulfuric acid obtained from the work site. Further, the Complainant has admitted at the hearing that the acid was accessible to him at his place of work and that he could get it if he wanted it.
Complainant's counsel also argues that to allow the employer to articulate that Complainant was suspended and subsequently discharged not because of his arrest or conviction record, but because of the events of July 13, 1986, would permit this aspect of the Act to be "totally vitiated;" that "employers are protected by the statutory exception language but should not be able to sidestep the statutory and analytical process by such gamesmanship." This argument by Complainant's counsel also fails. "Arrest record" is defined in section 111.32(1) as ". . . information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." (emphasis added) As stated in City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984), where the issue was whether the employer had acted based on information indicating that a person had been questioned by the police, the court held:
. . . If, as here, the employer discharges an employe because the employer concludes from its own investigation and questioning of the employe that he or she has committed an offense, the employer does not rely on information indicating that the employe has been questioned, and therefore does not rely on an arrest record . . . Id. at 367.
The evidence shows that the Respondent herein did not rely on any information indicating that the Complainant had an arrest record. Instead, through its own investigation of the employe, the victim of the assault and her brother, the employer learned that the Complainant had committed an offense and concluded, based upon the nature of the offense and the fact that the offense had been committed with materials from Respondent's work site, that Complainant should not remain in its employ.
Since the Commission finds that the employer did not suspend or discharge the Complainant based upon his arrest or conviction record, the Commission does not reach the question of whether the circumstances of the charge or offense substantially relate to the circumstances of the Complainant's particular job. The Commission has modified the decision of the ALJ to reflect this.
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(1)( Back ) Complainant was unrepresented at the hearing and did not retain counsel until a later date.
(2)( Back ) Curiously, however, at first the Complainant had asserted in written argument to the Commission that it was undisputed that he had committed the battery by using sulfuric acid obtained previously at his place of employment. (Complainant's initial brief to the Commission, pp. 2 & 3.)