Wisconsin Supreme Court Finds Brothers Who Stole From School District Were Wrongfully Fired
Justice Janet Protasiewicz: The law leads to a 'strange result.'
Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.
The Wisconsin Supreme Court has ruled in favor of two brothers who say they were wrongfully terminated after stealing scrap metal from the Oconomowoc Area School District.
In a 5-2 ruling Thursday, the Supreme Court reversed an earlier appeals court decision.
Brothers Gregory and Jeff Cota argued that their firing nearly a decade ago violated the Wisconsin Fair Employment Act’s prohibition against arrest record discrimination. The court sided with a 2021 finding of the Labor & Industry Review Commission.
Justices Rebecca Dallet, Ann Walsh Bradley, Brian Hagedorn, Jill Karofsky and Janet Protasiewicz delivered the majority opinion. Justices Rebecca Bradley and Annette Ziegler dissented.
Wisconsin is one of a minority of states that prohibit discrimination against employees and applicants on the basis of arrest and conviction records.
In her concurring opinion, Protasiewicz wrote that in following the law where it leads, the justices arrived at a “strange result.”
“As a result of today’s decision, the [Oconomowoc Area School] District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense,” Protasiewicz wrote.
The high court found that because the district went to police instead of immediately firing the Cota brothers when they were suspected of stealing, they created an “arrest record.”
That then limited the district’s ability to fire the employees under Wisconsin Fair Employment Act, the court found.
“Our statutes should not hamstring employers who are victims that way,” Protasiewicz wrote. “An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement.”
Oyvind Wistrom, an attorney for the district, referred questions to Superintendent Michael Sereno, who did not respond to requests for comment.
Gregory and Jeff Cota were part of the school district’s grounds crew.
An investigation in 2014 found the brothers, a supervisor and coworker kept more than $5,000 that was supposed to be turned over to the district after they recycled scrap metal, according to the original lawsuit.
The Town of Oconomowoc Police Department investigated the case for 11 months and cited the brothers for municipal theft.
About one year after the Cotas were cited for theft, the assistant city attorney informed the district that he believed he could obtain convictions, but the case could be settled.
The assistant city attorney proposed dismissing the citations against the Cotas in exchange for a $500 payment, which he characterized as “restitution.”
The Cotas did not agree to the deal and were fired the next day.
They later sued for wrongful termination under the state’s Fair Employment Act.
Ziegler wrote the dissenting opinion, saying the decision in favor of the brothers sends a message to employers across the state saying employees should no longer be given the benefit of the doubt.
“If the employer believes one of its employees may have committed a crime — say, stealing from that employer — based upon its own internal investigation, it should quickly fire the employee rather than have its suspicions confirmed by a full investigation by law enforcement,” Ziegler wrote. “Maybe this case is an example of the ‘old adage’ that ‘bad facts make bad law.’”
Wisconsin Supreme Court finds brothers who stole from school district were wrongly fired was originally published by Wisconsin Public Radio.
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This is such a weird case and ruling. I don’t know what to make of it.