Wis. Supreme Court to decide if brothers’ school district firing was unlawful

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The Wisconsin Supreme Court will take up a case involving the 2016 termination of two Oconomowoc Area School District employees for stealing the proceeds from scrap metal recycling in 2012.

According to court records, brothers Gregory and Jeffrey Cota along with Garrett Loehrer all worked for the school district and had accounts at a Waukesha recycling facility where they turned in scrap metals. The men were supposed to give all funds to Gregory Cota to pass on to his district supervisor. After the brothers complained about Loehrer’s work performance in 2014, he reported that not all of the funds from the scrap metal recycling were turned over to the school district. Loehrer said Gregory Cota split proceeds in 2012 among the men, with Loehrer receiving $80.

A subsequent school district investigation found the scrap yard paid the men $10,613 over three years, but only $4,929 was turned over to the district. The men were temporarily suspended from their jobs.

The local police department then looked into the case, issuing citations. The Cotas were then fired. The brothers appealed the district’s decision to the Labor and Industry Review Committee (LIRC), claiming the decision violated the Fair Employment Act, which bars legal history as a basis for considering employment. In July 2021, the LIRC ruled Oconomowoc improperly terminated the men since it used their arrest records in its determination to fire them.

The LIRC ordered the men to be reinstated to their former positions or comparable ones, to receive back pay and full seniority rights and receive attorney’s fees and costs of over $83,000.

The school district appealed the decision to the circuit court in August 2021. In a June 2022 ruling, Waukesha County Circuit Court Judge Lloyd Carter upheld the LIRC ruling. The district then filed an appeal.

The Court of Appeals reversed the lower court’s decision because it concluded the Wisconsin Fair Employment Act doesn’t protect terminations based on information “related to civil, municipal charges.”

In making its decision, the Court of Appeals reviewed language used by the Legislature including the phrase “or other offense” and wrote that “to protect only with regard to criminal offense information, and thus, the district’s termination of the Cotas based on the noted civil, municipal offense information did not constitute unlawful employment discrimination.”

The Court of Appeals also looked at the word “arrest,” which it decided is usually associated with taking a person into custody on a criminal charge and not for a civil issue.

The LIRC and Cotas appealed the Court of Appeals decision to the Supreme Court, which decided this week to take on the case. The court will now decide if the school district did the right thing when they fired the brothers.