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Milwaukee Board of School Directors v. Labor and Industry Review Commission6/12/2001
As amended June 22, 2001
APPEAL and CROSS-APPEAL from an order of the circuit court for Milwaukee County: JOHN A. FRANKE, Judge. Affirmed in part; reversed in part.
. The Milwaukee Board of School Directors (the board) appeals from an order affirming the findings of the Labor and Industry Review Commission (the commission), which concluded that the board, in violation of the Wisconsin Fair Employment Act (WFEA), unlawfully discriminated against Mark Moore by refusing to re-hire Moore as a Boiler Attendant Trainee based on his criminal record. The board offers two arguments on appeal: (1) that the commission's decision is not entitled to great weight deference by this court; and (2) that the commission erred in concluding that the circumstances of Moore's felony conviction for "injury by conduct regardless of life" did not "substantially relate" to the job of Boiler Attendant Trainee under Wis. Stat. § 111.335(1)(c). We conclude that the commission's decision is entitled to great weight deference; and we conclude that the commission correctly determined that the board's refusal to rehire Moore violated the WFEA; therefore, we affirm.
. The commission cross-appeals from that part of the circuit court's order which set aside the commission's directive that the board hire Moore to fill the next available Boiler Attendant Trainee position and pay Moore back wages with interest. The commission argues that the circuit court erred in setting aside its remedial order for several reasons, including that the circuit court substituted its judgment for that of the commission's. Because we conclude the circuit court erred by improperly substituting its judgment for the commission's and setting aside the commission's remedial order, we reverse the circuit court's order on that issue.
I. Background.
. This case arose under an exception to the WFEA's general rule prohibiting discrimination against job applicants on the basis of their criminal records. Under the exception, an employer may refuse to hire an otherwise qualified applicant who was convicted of a felony when the circumstances of the conviction are substantially related to the performance of the job. The facts are as follows. In 1988, Mark Moore was convicted of "injury by conduct regardless of life," contrary to Wis. Stat. § 940.23 (1987-88). The conviction concerned an argument with his girlfriend. Moore threw a pan of hot grease at her, which missed her, but hit her twenty-month-old daughter who was standing between them. The hot grease severely burned the young girl, requiring extensive surgery, skin grafting and hospitalization. Following his conviction, Moore was hired as a Boiler Attendant Trainee in the Milwaukee Public Schools (MPS) system. However, upon learning of his conviction, MPS terminated Moore for intentionally falsifying his employment application because he failed to disclose his conviction as required on the application.
. In 1996, Moore re-applied for the position of Boiler Attendant Trainee with MPS. Moore scored well on a preliminary examination and was placed on an eligibility list. At the time, MPS required extensive pre-employment criminal background checks on all applicants. This time Moore disclosed his felony conviction on his application, and an MPS official conducting his background check obtained a copy of the criminal complaint. After reviewing the facts contained in the complaint in conjunction with the job requirements of the Boiler Attendant Trainee position, Moore's application for re-hire was denied. Moore received a letter explaining:
We have completed our review of your application for employment as a Boiler Attendant Trainee with Milwa
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