Cree, Inc. v. Labor & Indus. Review Comm'n

• Decision Date: 10 March 2022
• Docket Number: 2019AP1671
• Citation: 970 N.W.2d 837,400 Wis.2d 827,2022 WI 15
• Parties: CREE, INC., Petitioner-Respondent-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Co-Appellant, Derrick Palmer, Respondent-Appellant.
• Court: Wisconsin Supreme Court

400 Wis.2d 827

970 N.W.2d 837

2022 WI 15

CREE, INC., Petitioner-Respondent-Petitioner,

v.LABOR AND INDUSTRY REVIEW COMMISSION, Respondent-Co-Appellant,Derrick Palmer, Respondent-Appellant.

No. 2019AP1671

Supreme Court of Wisconsin.

Oral Argument: October 15, 2021

Opinion Filed: March 10, 2022

For the petitioner-respondent-petitioner, there were briefs filed by Lindsey W. Davis, Robert H. Duffy, and Quarles & Brady LLP, Milwaukee. There was an oral argument by Robert H. Duffy.

For the respondent-co-appellant, there was a brief filed by Steven C. Kilpatrick and Anthony D. Russomanno, assistant attorneys general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Anthony D. Russomanno.

For the respondent-appellant there was a brief filed by Alan C. Olson and Alan C. Olson & Associates, S.C., New Berlin. There was oral argument by Alan C. Olson.

An amicus curiae brief was filed on behalf of Legal Action of Wisconsin, Inc. by Jessie Long, Sheila Sullivan, Susan Lund, and Megan Sprecher, Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin Manufacturers and Commerce by Corydon J. Fish, Madison.

KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ROGGENSACK, and REBECCA GRASSL BRADLEY, JJ., joined. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and HAGEDORN, JJ., joined.

JILL J. KAROFSKY, J.

¶1 We address whether Cree, Inc. (Cree) rescinding its job offer to Derrick Palmer based on his conviction record constituted unlawful employment discrimination or instead was lawful because the circumstances of Palmer's convictions "substantially relate" to the circumstances of the job, per Wis. Stat. § 111.335(3)(a)1.¹ We hold that Cree sufficiently established that the circumstances surrounding Palmer's 2013 convictions for domestic violence substantially relate to the circumstances of the offered position as an Applications Specialist. Accordingly, Cree did not unlawfully discriminate against Palmer by rescinding its job offer.

I. BACKGROUND

A. Palmer's Convictions

¶2 In 2013, Palmer was convicted for committing eight crimes of domestic violence against his live-in girlfriend, L.R. According to the criminal complaint, the incident began on the morning of October 24, 2012, when Palmer and L.R. were arguing amidst a break-up and Palmer initially refused to leave their residence. When Palmer eventually left for work, he called L.R. multiple times but she did not answer. Approximately 30 minutes after leaving, Palmer returned to the residence and began yelling at L.R. She tried to get away from Palmer by going into the bedroom but Palmer followed her. Palmer then broke L.R.'s cellphone by throwing it against a window. L.R. tried to escape from the room but Palmer pushed her onto the bed with such force that she bounced off and hit her head on the floor. When L.R. started screaming in hopes that someone would hear her and call the police, Palmer grabbed her mouth and squeezed it "real hard." Then Palmer allowed L.R. to get up, but as she tried to reach the door handle to escape, Palmer threw her on the bed, straddled her, and placed his hand over her mouth and nose, stopping her from breathing for about 30 seconds. Then Palmer started to cry, told L.R. that he loved her, and let her up from the bed. L.R. went into the bathroom to get ready for work and Palmer followed her and put his hand down the front of her pants. L.R. told Palmer to stop, but Palmer pulled L.R. to the bed and sexually assaulted her by engaging in sexual intercourse without her consent. Palmer again left the residence and L.R. contacted the police. L.R. additionally reported that Palmer had engaged in other acts of violence, including forced sexual intercourse, during their four-month relationship.

¶3 As a result of the incident, Palmer pleaded no contest to two counts of felony strangulation and suffocation, four counts of misdemeanor battery, one count of fourth degree sexual assault, and one count of criminal damage to property.² The circuit court also dismissed and read in two counts of false imprisonment and one count of threats to injure or accuse of a crime.³ The circuit court sentenced Palmer to 30 months in prison, 30 months of extended supervision, four years of probation, and ordered him to register as a sex offender. Palmer also has a 2001 battery conviction related to domestic violence.⁴

B. Palmer's Job Opportunity with Cree

¶4 While incarcerated, Palmer earned his mechanical design certification through the Wisconsin Department of Corrections education program. He earned high marks and took advantage of opportunities to work as a tutor after he graduated from the program. With these new qualifications, in June of 2015 Palmer applied to work at Cree's Racine, Wisconsin facility as an Applications Specialist. At that time, Cree manufactured and marketed lighting components.⁵ It employed approximately 1,100 people at its Racine facility. The facility itself spanned 600,000 square feet, including manufacturing space, storage areas, offices, cubical farms, break rooms, and the like. Although security cameras monitored some portions of the facility, there were also many "nooks and crannies" throughout that experienced little foot traffic, no security camera coverage, and noise loud enough to drown out a person's voice.

¶5 As for the particular job, the Applications Specialist's primary responsibilities included designing and recommending lighting systems to customers, sometimes on location at customers' facilities. Cree expected the Applications Specialist to operate largely independently and without close supervision. It also expected occasional travel to trade shows, which would require unsupervised overnight hotel stays. Applications Specialists had access to most of Cree's Racine facility.

¶6 In July 2015 Cree offered Palmer the Applications Specialist job subject to a standard background check. The background check revealed Palmer's 2013 convictions.⁶ Cree referred the matter to its general counsel who reviewed Palmer's conviction record using a matrix that categorized each of Palmer's convictions as a "fail." Cree then rescinded its offer of employment to Palmer.

C. Palmer's Discrimination Complaint

¶7 Palmer filed a complaint with the Wisconsin Department of Workforce Development's Equal Rights Division (ERD) alleging that Cree discriminated against him on the basis of his conviction record in violation of the Wisconsin Fair Employment Act.⁷ The ERD found probable cause to hold a hearing on the merits before an administrative law judge (ALJ). The ALJ heard testimony from Palmer, Melissa Garrett (Cree's general counsel), and Lee Motley (a recruiter at Cree).

¶8 The ALJ also considered the testimony of Dr. Darald Hanusa, Cree's expert on domestic violence and domestic violence perpetrators. Dr. Hanusa testified as to the relationship between domestic violence, generalized violence and workplace violence, noting that there is "a direct relationship" between "a willingness to use violence in your intimate relationship" and "your willingness to use violence in other settings." Additionally, Dr. Hanusa spoke about the "power principle"—the concept that people who struggle with power and control issues tend to overuse their power when they do not get what they want. He testified that "the underpinning, underlying issues for men who are violent is their struggle with power and control. And it doesn't just end when they leave their house, it enters the workplace as well." Dr. Hanusa noted that "the best predictor of future violence is what's happened historically." He also emphasized that a charge of strangulation/suffocation is especially concerning given that in "the research on femicide, that is the homicide of women, suffocation ranks up as very high on every indice ... for homicide." Based on all the testimony, the ALJ determined that Palmer's convictions did substantially relate to the Applications Specialist position and thus, under Wis. Stat. § 111.335(3)(a)1.,⁸ Cree did not discriminate against Palmer when it rescinded its job offer. Palmer appealed the ALJ's findings to the Labor and Industry Review Commission (LIRC).

¶9 LIRC reversed. LIRC reviewed the ALJ hearing record and conferred with the ALJ regarding his impressions of the testifying witnesses, but the ALJ did not impart any specific impressions regarding demeanor. Palmer v. Cree, Inc., ERD Case No. CR201502651, at 19 (LIRC, Dec. 3, 2018). Regardless, LIRC deemed Dr. Hanusa's testimony on the connection between domestic violence and workplace violence "unhelpful" and proffered its own, opposite conclusion regarding crimes of domestic violence: "where assault or battery convictions stem from personal relationships and the crimes are committed at home, it cannot necessarily be assumed that the individual is likely to engage in the same conduct with co-workers or customers at the work place." Id. at 13 & n.6. Based on that view of the domestic crimes at issue, LIRC concluded that they did not substantially relate to the Applications Specialist job because of:

• The "high degree of speculation and conjecture" necessary to envision a scenario in which Palmer would become involved in a personal relationship with a female employee "that might end badly";

• The fact that the ability to meet female employees and form personal relationships with them is not unique to the job at issue;

• The lack of evidence that Palmer would have "significant personal interactions" with female employees;

• The lack of evidence that Palmer would have the opportunity to develop personal relationships with clients; and • The lack of evidence to suggest that Palmer would act violently with coworkers or members of the public.

Id. at 11-13. With this view of the record, LIRC determined that the finding of a substantial relationship "would require a conclusion that unsupervised contact with other people is in and of itself a...