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Wisconsin Supreme Court to hear case of brothers who say they were improperly fired after stealing from school district

Oconomowoc Area School District fired men after they paid restitution for stealing scrap metal

Stairs lead up to the Wisconsin Supreme Court inside the state capitol building.
The Wisconsin Supreme Court on Wednesday, June 9, 2021, at the Wisconsin State Capitol in Madison, Wis. Angela Major/WPR

Two brothers found guilty of stealing scrap metal from the Oconomowoc Area School District have been fighting for eight years to keep their jobs with the district. 

Their case is now headed to the Wisconsin Supreme Court. 

Gregory and Jeff Cota were part of the school district’s grounds crew. An investigation in 2014 found the brothers, a supervisor and co-worker kept more than $5,000 that was supposed to be turned over to the district after they recycled scrap metal, according to the lawsuit.

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Police investigated the case. The Cotas were issued citations for municipal theft. 

The Cotas agreed to pay $500 restitution to the school district, and they were ultimately fired for theft in 2016. 

In 2021, the state’s Labor and Industry Review Commission found the Oconomowoc School District violated the Wisconsin Fair Employment Act’s prohibition against arrest record discrimination. A Waukesha County Circuit Court judge upheld the decision in 2022.

The school district appealed. In January, the Wisconsin Court of Appeals reversed the lower court ruling, finding the brothers were not protected by the Fair Employment Act. 

The Appeals Court found that the Legislature’s intent behind that law was to protect employees against discrimination for having criminal arrest records.

“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 found.

Oyvind Wistrom, an attorney for the Oconomowoc Area School District, said he does not comment on pending litigation. 

The Cotas’ attorney, Alan C. Olson, did not return requests for comment. 

Wisconsin is one of less than a dozen states that prohibit discrimination against employees and applicants on the basis of arrest and conviction records, said Brian Radloff, a labor and employment attorney with Milwaukee employment law firm Ogletree Deakins. 

Radloff, who has been following the Cota case, said it will be important for employment law.

Until this case, no appellate court in Wisconsin had interpreted the Wisconsin Fair Employment Act provision that prohibits discrimination this way, Radloff said.

Radloff said this case does not follow a typical ideological split of the Supreme Court, so it is unclear how the justices could vote.