Vega v. Labor & Indus. Review Comm'n

• Decision Date: 19 April 2022
• Docket Number: Appeal No. 2021AP24
• Parties: David VEGA, Petitioner-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, Preferred Sands of WI, LLC, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

402 Wis.2d 233

975 N.W.2d 249

2022 WI App 21

David VEGA, Petitioner-Respondent,^†

v.LABOR AND INDUSTRY REVIEW COMMISSION, Respondent,Preferred Sands of WI, LLC, Respondent-Appellant.

Appeal No. 2021AP24

Court of Appeals of Wisconsin.

Submitted on Briefs: June 30, 2021

Opinion Filed: April 19, 2022

On behalf of the respondent-appellant, the cause was submitted on the briefs of Dean F. Kelley of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Milwaukee.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Peter M. Reinhardt of Bakke Norman, S.C., Menomonie.

Before Stark, P.J., Hruz and Nashold, JJ.

HRUZ, J.

¶1 Preferred Sands of Wisconsin, LLC ("Preferred Sands"), terminated David Vega's employment after learning that Vega was a registered sex offender and after Vega admitted to Preferred Sands that he committed multiple felony-level sexual assaults. Preferred Sands appeals a circuit court order reversing a decision by the Labor and Industry Review Commission (LIRC). LIRC had determined that Preferred Sands wrongfully discriminated against Vega on the basis of his conviction record by terminating his employment due to his status as a registered sex offender, which violated the Wisconsin Fair Employment Act (WFEA), WIS. STAT. §§ 111.31 - 111.395 (2019-20).¹ LIRC also determined, however, that Preferred Sands lawfully relied on Vega's admissions to Preferred Sands regarding his prior sexual assaults for which he had not yet been convicted. In particular, LIRC found that Preferred Sands would have terminated Vega's employment based solely on its own investigation into Vega's felony-level sexual assaults, and LIRC therefore concluded that Vega was not entitled to reinstatement or back pay. The circuit court reversed LIRC's decision, and Preferred Sands appeals.

¶2 Vega argues that Preferred Sands could not independently investigate his felony sexual assault offenses or rely on his later admissions to Preferred Sands of having committed those offenses because he had entered into deferred prosecution agreements for those offenses, which he contends are part of his "conviction record" as defined under WIS. STAT. § 111.32(3). We disagree. We conclude that Vega's deferred prosecution agreements were not part of his "conviction record" but part of his "arrest record," as defined by § 111.32(1) ; therefore, Preferred Sands could independently investigate the fact of such offenses pursuant to Onalaska v. LIRC , 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984). We also conclude that substantial evidence supported LIRC's findings that Preferred Sands did not rely on Vega's arrest record when terminating his employment, and that Preferred Sands would have terminated Vega's employment based solely on his admissions to Preferred Sands that he had committed multiple felony-level sexual assaults. Accordingly, we reverse the circuit court's order and reinstate LIRC's ruling.

BACKGROUND

¶3 In September 2010, Vega began working as a lead quality control tech for Preferred Sands of Minnesota, LLC, which was a manufacturer and provider of frac sand. Shortly thereafter, Vega was charged in Buffalo County with one felony count of second-degree sexual assault of a child and two misdemeanor counts of fourth-degree sexual assault. All of those charges were based on the same probable cause statement alleging that Vega admitted to touching the victim's skin underneath her underwear near her vagina at least two or three times while "tickling" her.² The probable cause statement also alleged that the victim reported that Vega's hand had gone "inside of her privates."

¶4 In April 2011, Vega pled no contest to the misdemeanor counts, and he was subsequently placed on three years' probation. Vega's conditions of probation included serving ninety days in jail with work release and attending individual counseling and sex offender treatment. Vega also pled "guilty/no contest" to a felony count of third-degree sexual assault as part of a "Deferred Prosecution Agreement."³ That agreement provided that the felony count would be dismissed after seven years if Vega complied with the terms of the agreement. If Vega violated the agreement, however, the circuit court would immediately accept Vega's plea and enter a judgment of conviction. The agreement required Vega to follow all rules and conditions of the agreement and to complete the conditions of probation on the misdemeanor convictions. Some of the agreement's conditions included conditions that had already been imposed as conditions of Vega's probation, such as serving ninety days' jail time with work release and attending individual counseling and sex offender treatment.⁴

¶5 Vega was later charged in Pierce County with a felony count of sexual assault of a child under age thirteen and a misdemeanor count of fourth-degree sexual assault. The complaint alleged that the assaults occurred in 2002 and that Vega had admitted, among other things, to having the victim perform oral sex on him up to ten times and to having touched the victim's vagina. In December 2012, Vega pled guilty to the misdemeanor count, and he was placed on two years' probation—concurrent to the Buffalo County convictions—and was required to comply with lifetime sex offender registration. As part of this probation, Vega was also required to comply with the rules of probation set forth by Vega's misdemeanor judgments of conviction in Buffalo County.

¶6 Vega also pled guilty to the felony count pursuant to another "Deferred Prosecution Agreement." Similar to the earlier agreement in the Buffalo County case, the felony count would be dismissed after six years if Vega complied with the agreement, but Vega would be immediately convicted of the felony count if he violated the agreement. Vega agreed, among other things, that the agreement's conditions would include the conditions of his probation on the misdemeanor count and that he would comply with those conditions.

¶7 Throughout all of these criminal proceedings, Vega continued working for Preferred Sands of Minnesota. Before Vega began serving the conditional jail time associated with his Buffalo County convictions, Vega told his supervisor about the sexual assault convictions and requested adjustments to his work schedule to accommodate his work release while in jail and his sex offender treatment. Vega's supervisor agreed to provide him with the necessary accommodations. As Vega's supervisors changed over the next several years, Vega continued to inform those supervisors of his convictions and that he was a registered sex offender. Those supervisors also accommodated Vega's need to attend sex offender treatment during the workweek.

¶8 In July 2015, Vega's employment was transferred to Preferred Sands of Wisconsin—the respondent in this appeal and a sister company of Preferred Sands of Minnesota—due to a shut-down of sand mining operations in Minnesota. Both companies were held by Preferred Proppants, LLC.

¶9 On July 22, 2015, Jesse Johnson, a human resource manager for Preferred Sands, contacted Amanda Bauer, a Preferred Sands' office manager, about having several employees, including Vega, complete a background check to provide necessary motor vehicle records to Preferred Sands' insurance carrier. Around the same time, another Preferred Sands' employee informed Bauer that Vega was a registered sex offender, and Bauer provided that information to Johnson. When Vega was asked to sign paperwork consenting to the background check, he became concerned about who would have access to the information obtained. Vega contacted Johnson and asked who would have access to information about his background and told Johnson that he was a registered sex offender. Johnson replied that he (Johnson) would be the only one to see the information, but he also said that he would notify Lauren Boegner, the vice president of human resources for Preferred Proppants, about their conversation.

¶10 Johnson later spoke with Boegner about Vega's status as a registered sex offender, and Boegner instructed Johnson to obtain a criminal background check on Vega. Johnson followed Boegner's directions and obtained a report on Vega's criminal history, which showed that Vega had misdemeanor convictions for fourth-degree sexual assault and that he had two deferred prosecution agreements with a pending felony sexual assault charge under each agreement. After receiving the report, Preferred Sands obtained certified copies of the criminal complaints against Vega in Buffalo and Pierce Counties, his judgments of conviction on the misdemeanor counts, and the deferred prosecution agreements related to the felony counts.

¶11 Boegner consulted with legal counsel and then instructed Johnson to interview Vega. Boegner gave Johnson a list of prepared questions to ask Vega, including a script for the beginning of the meeting, which read:

This meeting is part of our internal review to gather the facts and give you an opportunity to talk with us.

We want to hear what happened in your own words as all we have is written documents.

For the purpose of this meeting, we are going to avoid any focus on your prior 4th degree sexual assault convictions. Instead, we want to talk with you and get a complete understanding of your two open deferred prosecution matters ....

¶12 On August 18, 2015, Johnson met with Vega to discuss Preferred Sands' investigation into Vega's criminal history. A human resources manager for Preferred Proppants also participated in the meeting by telephone and took notes of the meeting, which the human resources manager later provided to Boegner. Johnson brought several documents to the meeting, including the criminal complaints and the deferred prosecution agreements from Buffalo and Pierce Counties.

¶13 Consistent with the provided script, Johnson told Vega that Preferred Sands was not worried about the misdemeanor convictions, but it was concerned about the unresolved allegations of the felony sexual...