STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRYAN MORRISON, Complainant

ST CAMILLUS HEALTH CENTER INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200602082


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The complainant filed a petition for review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 27, 2008
morribr . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

On January 18, 2008, the Equal Rights Division mailed a letter to the parties in this case which stated that the case had now been closed because a timely petition for review had not been received by the Division.

After receiving the Division's letter Complainant Bryan Morrison notified the Division that he had yet to receive a copy of the ALJ's decision and was advised to submit a letter to the commission regarding this, which he did. The commission then sent a letter to Morrison requesting that he respond in writing to questions regarding his assertion about not having received a copy of the ALJ's decision. The complainant provided a response to the commission's inquiries and again maintained that he never received a copy of the ALJ's decision issued in this matter.

Wis. Stat. § 111.39(5)(b) provides that "If the commission is satisfied that a respondent or complainant has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department." Satisfied that the complainant has been prejudiced because of exceptional delay in the receipt of a copy of the ALJ's findings and order and since it was clear that the complainant was seeking commission review of the ALJ's decision, rather than further prolonging the matter by extending the time another 21 days to allow the complainant to file a petition for review with the department, the commission decided to simply accept Morrison's correspondence as a petition for review and to review the case. Prior to its review of the case, the commission provided the parties an opportunity to submit written arguments in their behalf.

This case involves Morrison's discrimination complaint allegation that the respondent terminated his employment because of his arrest record. The ALJ concluded after a hearing held on Morrison's complaint allegation that he had failed to prove that there is probable cause to believe that the respondent terminated his employment because of his arrest record.

The respondent is a retirement community for the elderly. Its retirement community includes independent living, assisted living, a nursing home and a health agency. The respondent employed Morrison in the position of floor care worker beginning in September 2004.

In July 2005, John Barwick, the respondent's chief of campus security, received a report from Laurie Tierney, the respondent's resident services manager, regarding a soda vending machine with a shortage of money. On July 16, Barwick interviewed the owner of the vending machine. Barwick then contacted the director of the assisted living facility and got permission to install surveillance equipment in the area. Barwick informed Pam Loveless, the respondent's director of human resources and information services that he was setting up a surveillance camera. On July 24, 2005, Barwick installed a hidden surveillance camera in the area of the vending machine that was connected to a time lapse VCR set to record for a period of 36 hours. Barwick reviewed the camera videotapes on a daily basis and on several days observed Morrison on the videotape removing multiple cans of soda from the vending machine without inserting any money. Barwick kept Loveless apprised of his investigation and findings.

On August 5, 2005, Barwick used equipment from the Wauwatosa Police Department to make still photos of the surveillance videotapes.

On August 6, 2005, Barwick informed the vending machine owner of the results of his investigation and requested keys to the vending machine to further assist in the investigation.

Early during the morning on August 16, 2005, Loveless and Tierney used the keys to the vending machine to unlock it and to remove all of the cash from the vending machine. Later that morning Tierney observed Morrison enter and then leave the area where the soda vending machine was located. Loveless and Tierney then returned and opened the vending machine and found no cash in the vending machine but did find an empty soda can which had not been present when they had first entered to remove the cash from the vending machine. Loveless and Tierney could not locate the VCR to review the surveillance videotape, so Loveless left a message for Barwick to review the videotape when he came in to work later that day.

On August 16, 2005, Barwick viewed the surveillance videotape from August 16, 2005. The only person Barwick observed at the vending machine between the time that Loveless and Tierney removed the money from the vending machine and came back to open the vending machine, was Morrison. Barwick observed Morrison removing a can of soda from the machine but did not observe him put any money into the machine.

On August 16 Barwick contacted a detective at the Wauwatosa Police Department to advise the detective of his investigation of the vending machine soda thefts.

Barwick reported what he observed on the surveillance videotape to Loveless. Barwick told Loveless that he had contacted the police, that the police requested that he provide them copies of the surveillance tapes and that the police wanted to arrest Morrison for suspected theft.

Barwick provided the surveillance videotapes to the police before Loveless had a chance to review them.

On August 22, 2005, Barwick filed a complaint with the Wauwatosa Police Department about floor equipment that was missing at the respondent. Barwick denies that he named Morrison as a suspect involved in the missing floor equipment.

The respondent suspended Morrison's employment on the suspicion of misconduct at the time of Morrison's arrest by the police on August 25, 2005.

Also on August 25, 2005, Loveless sent a confidential memorandum to the reception desk staff, security staff, human resources staff, and to the Health Center nursing supervisor and a few other individuals. The memorandum, which contained a picture of Morrison, states that Loveless was writing to notify them that Morrison should not be permitted access to any St. Camillus property until further notice. It further states that it is possible Morrison may call or visit the campus asking to pick up his personal belongings; if so, have him speak to a member of the HR staff and that he should be directed to visit HR only via the Court East entrance and not sent through any other buildings.

Citing the respondent's policy and procedure regarding discipline/corrective action for staff (Exhibit 8), Loveless testified that because the respondent considered theft or misappropriation of property such a severe offense and because what would result-discharge-if it were determined that Morrison had engaged in theft or misappropriation of property, Morrison's employment was suspended until the respondent had an opportunity to conduct a thorough investigation. The respondent's policy lists theft or misappropriation of property as a Class III offense, with immediate suspension pending investigation of the alleged incident. The policy states that if the allegations are not substantiated and no wrongdoing has been found, then the employee will usually be reinstated. If the allegations are substantiated, the employee is to be discharged.

On August 26, 2005, Loveless sent a letter to Morrison in response to his call that morning to a HR staff member about the Wauwatosa Police having mistaken him for someone else when he was arrested the previous day on suspicion of theft. The letter reads in part as follows:

As I'm sure you recall, Security Supervisor John Barwick informed you at the time of your arrest that your employment status is considered suspended at this time. We have not yet received any information from the Wauwatosa Police to indicate that they have cleared you as a suspect in their theft investigation....

If we determine that you have not engaged in theft or any misconduct, you will be reinstated to your position, with back pay for all shifts missed. If we determine that you engaged in theft, you will be subject to discharge for this offense....

We are still waiting for some additional information from the Police before we can conclude our own investigation in this matter. I will be out of the office the majority of next week, but I am asking our Security staff to follow with the Police in my absence. I hope we will be able to conclude this matter shortly after my return the week of September 5.

With respect to further investigation of the matter by the respondent, Loveless testified that Barwick had turned over the surveillance videotapes to the police before she had a chance to view them. Loveless testified that while she trusted Barwick's judgment, when the respondent was making a decision about whether or not someone's employment continues, she likes to have at least "two sets of eyes to look at things", so she wanted an opportunity to view the surveillance videos before reaching a conclusion in the matter.

Loveless testified that Barwick was able to obtain the videotapes back from the police either in late October or early November and that she had an opportunity to view them at that point. Loveless testified that in her judgment there was no question at all that it was Morrison that she observed on the videotapes. Loveless testified that she did not observe Morrison placing any money into the vending machine but did observe him removing product from the vending machine.

Loveless testified that the fact that Morrison was arrested did not have any bearing on her decision as to whether or not Morrison should be terminated. Loveless testified that she based her determination on Barwick's observations; her own observation of the surveillance videos, and to some extent, on the fact that there were no further thefts after Morrison was suspended. Loveless testified that the missing floor equipment was not a factor in her decision to terminate Morrison's employment, that her decision was based purely on the theft of the sodas from the vending machine.

By letter dated November 3, 2005, Loveless notified Morrison of his termination of employment. In the letter, Loveless notes that she had an opportunity to view the surveillance videotapes, that there was no mistaking Morrison's identity, that on several occasions he engaged in what appeared to be suspicious activity while obtaining products from the vending machine and that, interestingly, no further thefts of products had occurred from this vending machine since his suspension.

Morrison argues in his brief to the commission that the respondent had him arrested for suspected theft of floor cleaning equipment but since that theft could not be traced to him, he "[has] to take the blame for something as petty as stealing sodas."

To support his claim that the respondent had him arrested for theft of the respondent's floor cleaning equipment, Morrison cites what the summary of proceedings (i.e., the synopsis) shows as testimony by Barwick, and he has included with his brief a notarized statement by his sister, a copy of the Wauwatosa Police Department Incident Report regarding Barwick's August 22, 2005 complaint about the suspected stolen floor care equipment (designated as number 05-020787), with attachments that include documents from the Wisconsin Department of Justices' Crime Information Bureau with the serial numbers of the stolen floor equipment, a Wauwatosa Police Department Consent to Search form, plus a copy of a "To whom it concerns" letter from the Wauwatosa Municipal Court Clerk stating that the charge of "theft" against Morrison was dismissed on February 22, 2006, that shows a copy of the Wauwatosa Municipal Citation & Complaint for "theft" against Morrison on the bottom portion of the letter. (1)   Apparently, the theft Citation & Complaint is for theft of soda.

Morrison argues that Barwick testified that he did not report floor equipment missing to the Wauwatosa Police Department and that Barwick further claims he did not name him as a suspect for this theft. Citing the police Incident Report as evidence, Morrison asserts that this documents that Barwick reported the missing floor equipment machines to the Wauwatosa Police Department and that Barwick had named him as a suspect in the theft of the three machines missing from the respondent.

Further, responding to Loveless' testimony about there being no more thefts from the vending machine after his suspension, Morrison argues that the respondent had his picture posted all over, that everyone knew that he was accused and arrested, so "Naturally, the guilty party would stop stealing now that someone else has been apprehended for the crime." Morrison also argues that the respondent has a larger problem than theft of sodas and asks if the respondent has the person responsible, or if he is a suspect for that, too. Morrison asserts that he knows there have been other thefts since his departure because they have been reported in the newspaper.

In response to Morrison's brief, the respondent essentially makes two arguments: One, that much of Morrison's submission is based upon information which is not part of the record, and therefore cannot be used by the commission to base its review; and two, that in an attempt to discredit the testimony of Barwick, Morrison is combining two unrelated issues (theft of soda and theft of cleaning equipment), while the record is clear that Morrison was terminated for theft of soda from the vending machine, not for theft of the cleaning equipment. The respondent also notes that the videotapes show that between July 24, 2005 and August 5, 2005, Morrison had visited the vending area in question 21 times and removed 37 cans of soda during those visits without ever appearing to put money into the vending machine. The respondent argues that this evidence was corroborated on August 16, 2005, when all money was removed from the vending machine and the surveillance tape showed Morrison thereafter visiting the vending machine and removing a can of soda without inserting money into the vending machine.

In reply, Morrison raises questions about the respondent's proof that he took sodas without putting money into the machine, asserts that a lack of awareness of the procedures caused his failure to call the police as witnesses, states that his sister was not called as a witness because she was not yet involved in the case, and states that the citation for theft of sodas was dismissed due to lack of evidence, so at this point not only is he not guilty of theft of the soda but he is also not guilty for theft of the carpet cleaning machines. With respect to the respondent's proof that he took soda without paying, Morrison asks if it is possible the time lapse VCR didn't record him putting money into the machine because of the "time lapse between images"; why it took so long for the respondent to act if he had been observed taking sodas between July 26, 2005 and August 18 (sic), 2005; how it's possible that he would have been observed removing 37 cans of soda in 21 visits without being stopped or at least questioned; and "What were they waiting for?"

Morrison's arguments fail to establish reason to believe that the respondent terminated his employment on the basis of arrest record. The record does not support Morrison's claim that the respondent had him arrested for theft of the respondent's floor cleaning equipment. The evidence shows that Barwick informed the police about his investigation of the soda machine thefts on August 16, 2005 and that the police wanted to arrest Morrison for that reason. The complaint about the stolen floor machines was not made until August 22, 2005, and further, the audio recording of the hearing makes clear that Barwick testified that at that time he did report the missing floor equipment to the police, not that he did not report the floor equipment missing as mistakenly shown in the Summary of Proceedings. Further, Barwick denied naming Morrison as a suspect involved in the stolen floor equipment, and the police Incident Report is not competent evidence to prove that Barwick had named Morrison as a suspect in the floor equipment thefts because this document constitutes hearsay. Moreover, Loveless testified that the missing floor equipment was not a factor in her decision to terminate Morrison's employment; that her decision was based purely on the theft of the sodas from the vending machine.

In reaching its determination that the respondent did not terminate Morrison's employment because of his arrest record the commission has included consideration of the comment in Loveless' termination letter which appears to indicate that Morrison's employment was suspended when the Wauwatosa Police Department informed the respondent that the police believed Morrison might have been involved in the vending machine theft. However, assuming this is an accurate reading of the letter, the commission is not persuaded that what the police may have believed had any influence whatsoever in the respondent's decision to terminate Morrison's employment. There are several reasons. First, Loveless' August 26, 2005 letter sent to Morrison the day after his suspension makes clear that the respondent would be making its determination about whether Morrison would be reinstated or discharged based on the respondent's own investigation in the matter. Second, the August 26 letter states that the respondent was waiting for some additional information from the police before the respondent could conclude its investigation and the record also makes clear that the information the respondent was waiting for was the surveillance videotapes that Barwick had turned over to the police before Loveless had had an opportunity to review them and come to her own conclusion in the matter. Barwick was able to obtain the videotapes back from the police in late October or early November 2005 and Loveless was able to review them at that point. There was no question in Loveless' mind that it was Morrison on the videotapes. Loveless did not observe Morrison placing any money into the vending machine but she did observe him removing product from the machine. Third, given the fact that it was the respondent who had set up the hidden surveillance camera, who had removed all of the money from the vending machine to determine if money was being placed in the machine when product was removed from the machine and who had determined that it was Morrison who was observed on the videotapes removing product without placing any money in the vending machine, it is clear that the respondent terminated Morrison's employment as a result of the respondent's own independent investigation that he was stealing soda from the vending machine.

Morrison's apparent assertion that he is not guilty of stealing sodas because he knows the respondent has had thefts other than soda since his departure fails to discredit Barwick and Loveless' testimony about their review of the surveillance videotapes showing Morrison removing soda from the vending machine without putting any money into the machine.

Finally, Morrison's assertions about the respondent's proof that he took sodas without paying for them and about his lack of witnesses also fail. First of all, Morrison's query about whether it was possible that the time lapse VCR didn't record him putting money into the machine because of the "time lapse between images" is without merit. The VCR was set to record for a period of 36 hours. Second, assuming Morrison was found not guilty of theft of sodas, this has no bearing on the question of whether there was unlawful arrest record discrimination. Paxton v. Aurora Health Care, Inc. (LIRC, 10/21/93). The critical question is whether the respondent came to a good faith belief based on its investigation that Morrison was taking sodas from the vending machine without paying for them. The evidence regarding the respondent's installation of a surveillance camera in the area of the soda vending machine and Barwick and Loveless' testimony about their review of the surveillance videotape showing Morrison removing soda from the machine without putting any money into the machine, provides ample support that the respondent came to a good faith belief based on its investigation that Morrison was stealing sodas from the vending machine. Third, the evidence shows that there were two reasons that Morrison's employment was not terminated until November 3, 2005: first, because it was not until August 16, 2005, when the respondent removed all of the money from the soda vending machine, that Barwick obtained additional persuasive evidence to conclude that Morrison was stealing soda from the vending machine; and second, because after Barwick's review of the surveillance tape for August 16, Barwick turned the surveillance tapes over to the police, which the respondent did not receive back until late October/early November 2005 at which time Loveless could then review the videotapes and reach her own conclusion in the matter. Fourth, by letter to Morrison more than two months before the hearing, the ALJ advised him that: the parties were required to present their cases through witnesses with first hand knowledge of the events; that she would generally not rely on the testimony of a witness who is attempting to tell her information that someone else told them, unless the testimony falls within an exception to the hearsay rules; that the parties may not present the testimony of witnesses through letters or affidavits; and that the witness must be present at the hearing to testify concerning the events in the matter and to identify exhibits. Fifth, Morrison's sister had no relevant evidence to present in this matter since it is evident that she only became involved after the hearing on Morrison's discrimination claim.

cc: Attorney Lynn M. Stathas



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Footnotes:

(1)( Back ) Morrison attempted to admit the Wauwatosa Police Department Incident Report designated as number 05-020787 at the hearing in this matter on November 26, 2007, but apparently without all of the attachments mentioned above. The respondent objected to admission on several grounds including relevance, hearsay, lack of foundation and because it had not been provided to the respondent as a potential exhibit prior to the hearing. Over the respondent's objection, the ALJ did admit the Incident Report (Exhibit 3) but noted that she had serious questions as to what, if any part, she would consider in making her decision in the case, specifically noting that the document was hearsay because the person who wrote the document was not present to testify and the document may not be accurate.

 


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