ALLISON HOEWISCH, Complainant
ST NORBERT COLLEGE, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
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 makes the following:
1. The complainant, Allison K. Hoewisch ("Hoewisch" or "petitioner"), began working for St. Norbert College ("SNC" or "the college") on August 24, 2006 as an associate professor of teacher education.
2. When Hoewisch applied for the job at SNC, she had charges pending against her in the State of Missouri for felony child abuse of one of her foster daughters.
3. During the interview process, SNC did not ask Hoewisch if she had an arrest and/or conviction record, and Hoewisch did not volunteer that information. She did express agreement with the field work emphasis in the teacher education program at SNC, and noted her field work experience.
4. During her employment at the college, Hoewisch's duties as an associate professor of teacher education included instructing college students how to teach elementary, middle and high school students. As part of her duties, she was required to visit the schools where her students were teaching elementary and middle school students, and she made those visits alone or with her students.
5. On April 12, 2007, Hoewisch was convicted of felony child abuse in Missouri, i.e., knowingly inflicting cruel and inhuman punishment upon a child less than seventeen years old. She was sentenced to 120 days in prison, and was allowed to serve her sentence on the weekends and during school breaks, a schedule of incarceration that continued through April 27, 2008. As part of her probation, she was not permitted to have unsupervised contact with minors under the age of 12.
6. Hoewisch did not advise SNC of her conviction, incarceration requirements, or probationary terms.
7. In October, 2007, SNC received an anonymous call from someone who stated that Hoewisch had been convicted of child abuse. Per its policy regarding anonymous calls, SNC took no action.
8. On November 6, 2006, the same caller called SNC again, identified herself, and provided details of the child abuse allegations to Father Fostner, SNC's vice-president for mission and heritage. That same day, Father Fostner wrote a memorandum to Gary Umhoefer, the college's director of human resources, with a copy to Michael Marsden, the college dean, reporting the substance of the caller's allegations.
9. On November 7, 2007, Father Fostner interviewed Hoewisch about the allegations, and she admitted that she had been convicted of felony child abuse. Hoewisch described her actions as a "spanking," said that she would not have been arrested had the child been her biological daughter, and noted that, in the month or so prior to the incident, she had been very ill and placed on various drugs for serious allergies. Father Fostner reported the substance of their interview to Umhoefer and Marsden.
10. Upon learning that Hoewisch acknowledged that she had been convicted of child abuse and had struck her foster daughter, Marsden asked Hoewisch's supervisor to direct Hoewisch to discontinue her visits to elementary and middle schools, and determined that the matter required further investigation.
11. On November 13, 2007, Marsden met with Hoewisch, Mary Greenlaw (Hoewisch's supervisor), and the college's attorney to obtain a more complete picture of the child abuse incident. Marsden hoped for a reconciliation in which the college could work things out, and Hoewisch could continue her employment with the college. During that conversation, Marsden concluded that Hoewisch was not being forthright about what had occurred, and was blaming the medications she had been taking and her attorneys for misleading her into pleading guilty to the charge. He felt that she was trying to avoid responsibility for her conduct, and finding everyone at fault but herself.
12. By letter dated November 15, 2007, the college's attorney requested a certified copy of the entire court file in Hoewisch's criminal case, including photographs taken as part of the police report, the pre-sentence investigation report and psychological testing reports.
13. On November 16, 2007, due in part to concerns about the affect the conviction and probationary terms might have on Hoewisch's ability to continue to perform her duties and concerns about her suitability for her teaching position, Marsden suspended Hoewisch pending further investigation. He noted that this action was being taken "[a]fter careful consideration of the serious issues surrounding your felony conviction, of which we only recently learned."
14. In making his decision to suspend Hoewisch, Marsden consulted with Umhoefer, and also considered recommendations from Hoewisch's supervisor, who recommended immediate dismissal, and from the associate dean for social sciences, who recommended suspension with dismissal (or resignation) if further investigation confirmed they had obtained all of the relevant information. In addition to concerns about her ability to perform her duties given her probationary terms, concerns were also expressed about adverse publicity and the reputation of the college if Hoewisch was permitted to remain on the faculty, as well as her lack of candor about the incident both before and after the college learned about the conviction.
15. In explaining her failure to advise the college of the terms of her probation, Hoewisch stated that she believed that she was following the terms of her probation because she was never alone with an elementary or middle school student and her students functioned in the role of supervisors, even though they were not aware that they were to be supervising her contact with minors under the age of 12.
16. On November 20, 2007, Hoewisch emailed a memorandum to Umhoefer with a copy to her immediate supervisor, stating concerns about her employment and noting that she was aware that Wisconsin does not permit employers to terminate employees or take any adverse action against employees based on their criminal records. She stated that she hoped the matter could be resolved honorably.
17. The dean's investigation involved a review of Hoewisch's criminal records, her probation officer's criminal file records, written material from the prosecutor's office, and conversations with the prosecuting attorney. The information obtained established that Hoewisch had provided inaccurate employer contact information to her probation officer and had not been honest with Father Fostner about her conduct, including minimizing the seriousness of the spanking and failing to disclose that she had used a spatula that left significant bruises on her foster daughter.
18. By letter dated November 30, 2007, Marsden advised Hoewisch that the college's investigation "surrounding your failure to notify us of your felony conviction for child abuse" had concluded. He stated that the college had reached certain conclusions, including
Marsden stated that, as a result, the college was prepared to take certain actions related to Hoewisch's employment, but wanted to give her the opportunity to voluntarily resign.
19. On December 3, 2007, Hoewisch's attorney responded to the college on her behalf indicating that she would not resign, and asserting that if the college were to terminate her for the reasons stated in the dean's letter, that termination would violate the Wisconsin Fair Employment Act ("WFEA") because the factors relating to her conviction "do not substantially relate to her job."
20. By letter dated December 4, 2007, Marsden discharged Hoewisch based on the results of the investigation noted in his November 30th letter.
21. In deciding to suspend and subsequently discharge Hoewisch, SNC was motivated at least in part by reasonable concerns about Hoewisch's ability to perform her job duties given the terms of her probation, her suitability for the position of associate professor of teacher education, her poor judgment in handling the matter, and her lack of candor about the seriousness of her conduct.
22. In deciding to discharge Hoewisch, SNC was not motivated to retaliate against her because she had engaged in protected activity under the WFEA.
23. Hoewisch's conviction for felony child abuse is substantially related to the job of an associate professor of teacher education, who teaches college students how to teach children with an emphasis on field work in elementary and middle schools, including observing students in elementary and middle school classrooms.
1. St. Norbert's College is an employer within the meaning of the WFEA.
2. St. Norbert's College did not discriminate against Hoewisch because of arrest record in violation of the WFEA when it suspended her employment.
3. St. Norbert's College did not discriminate against Hoewisch because of arrest record in violation of the WFEA when it discharged her from employment.
4. St. Norbert's College did not discriminate against Hoewisch because of conviction record in violation of the WFEA when it suspended her employment.
5. St. Norbert's College did not discriminate against Hoewisch because of conviction record in violation of the WFEA when it discharged her from employment.
6. St. Norbert's College did not discriminate against Hoewisch because she opposed a discriminatory practice under the WFEA when it discharged her from employment.
The complaint in this matter is dismissed with prejudice.
Dated and mailed
August 14, 2012
hoewial : 120 : 9
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission has rewritten the ALJ's decision, retaining some of his findings of fact and affirming his conclusions of law, but deleting his memorandum opinion to reflect the proper legal analysis as more completely described below.
The commission agrees with the petitioner that the ALJ improperly relied on the analysis contained in City of Onalaska v. LIRC, 120 Wis. 2d 262, 354 N.W.2d 223 (Ct. App 1984). In that case, the court of appeals held that, in an arrest record case, if an employer discharges an employee because it concludes from its own independent investigation and questioning of the employee that the employee has committed an offense, that discharge is not "because of" an arrest record. However, as the commission stated in Ѕһеrіdan v. United Parcel Service, ERD Case No. CR200204955 (LIRC July 11, 2005) and Swanson v. Kelly Services, ERD Case No. CR200203683 (LIRC Oct. 13, 2004), the issue of a genuinely independent investigation regarding the circumstances surrounding an arrest is quite different in a case in which there has been a conviction. In Ѕһеrіdan, the commission noted that "it would require a tortured interpretation of the underlying rationale in City of Onalaska to extend it beyond arrest record cases to conviction record cases." Although Hoewisch has alleged discriminatory suspension and discharge based upon an arrest record, she had already been convicted when SNC first became aware of the matter. Therefore, the fact of her arrest would not have played any part in the suspension or termination decisions, and the City of Onalaska analysis is not applicable.
As part of her complaint, Hoewisch alleged that the respondent discharged her in violation of the WFEA because she opposed a discriminatory practice under the WFEA. Although she has not argued that claim in her petition to the commission, the commission nevertheless will address that issue. She alleges in her complaint that she was discharged in part in retaliation for the memorandum she wrote to Umhoefer on November 20, 2007 and for the letter her attorney wrote to the college on December 3, 2007. However, she had already been suspended and the investigation was in full swing at the time she wrote the memorandum on November 20th, and there is nothing in the record to suggest that her memorandum played any role in the decision to discharge her. As to her attorney's December 3rd letter, it is clear from the dean's letter to her on November 30, 2007 that the college had already made the decision to end her employment. The attorney's letter played no role in the college's decision to discharge her.
Hoewisch also argues that her suspension and discharge were clearly related to her arrest and conviction records, to information obtained from her criminal records, and to the respondent's concerns about adverse publicity, and therefore were at least "in part" because of discriminatory animus and motive. She also asserts that the WFEA places no duty on an employee to volunteer information about a criminal record to an employer, and if such a requirement were to be read into the Act, this would violate the purpose of the Act, which is to protect convicted individuals from employer stigma. Finally, she argues that there is no substantial relationship between her conviction for child abuse in a domestic setting and her job as a professor, since nearly all of her duties involved working with adults on a college campus populated by adults.
It is not necessary for the commission to decide whether the complainant's suspension and discharge were in part because of discriminatory animus and motive related to her conviction records, nor is it necessary for the commission to decide whether a job applicant has a duty to volunteer information to a prospective employer about a criminal record, because the commission concludes that Hoewisch's conviction for felony child abuse is substantially related to her job as an associate professor of teacher education, a position in which she instructed college students in the best methods for teaching reading to elementary and middle school students, as well as supervising her college students in elementary/middle school settings filled with children under 12 years of age.
Wisconsin Stat. § 111.335(1)(c)1. provides that it is not employment discrimination because of conviction record to terminate from employment any individual who has been convicted of a "felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job." In defining the scope of this "substantial relationship" test, the Wisconsin Supreme Court in County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987) stated as follows, in relevant part:
Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test. . . It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person.
As to what is meant by "circumstances," the Court noted that focusing on the elements of the offense helps to "elucidate" the circumstances of the offense.
In two earlier cases decided by the Court, it stated that the elements or contexts of the criminal offense and the job need not be identical, and a common sense approach is to be taken when determining whether the substantial relationship test has been satisfied. Gibson v. Transportation Commission, 106 Wis. 2d 22, 315 N.W.2d 346 (1982); Law Enforcement Standards Board v. Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981).
In this case, Hoewisch was convicted of knowingly inflicting cruel and inhuman punishment on a child under 17 years of age. Character traits associated with this offense would include an inability to control anger, frustration, or other emotions toward children; disregard and failure to accept responsibility for the health and safety of children; poor self-control; lack of good judgment; lack of trustworthiness with children; and the use of violence to achieve control over children or to resolve conflicts with them.
The complainant concedes that the substantial relationship test involves examination of the elements of the child abuse offense for which she was convicted, but asserts that there is no substantial relationship between her employment as an associate professor at a college and her conviction for child abuse. She argues that her job duties do not require that she perform school visits. The record does not support that argument. The syllabus for a class she taught each semester - "Reading Improvement in the Elementary/Middle School Classroom" - provided that students would be supervised in their clinical experience as they tutored children for two hours each week. In that syllabus, she also noted that she was not available in her office at times due to fieldwork that she must supervise. In addition, during her interview for the position, she expressed agreement with the college's emphasis on field work, indicating that she and her students had been quite active in field work, and that field work was very important for teacher education. The commission concludes from the evidence that the classroom visits were an integral part of at least one course that the complainant taught each semester, and that field work was an important part of the teacher education program at SNC. (1)
The complainant also argues that most of her work was on a college campus outside the presence of children, and when she was in the presence of children, one or more adults were always present. She asserts that there was not a single time when she directly interacted with a child while doing her job for the college. She also asserts that she might also be in the presence of children while at the supermarket or going about her daily activities, and that this does not violate the terms of her probation. However, that is not the point. Unless the sentencing judge was to place her in home confinement, she would be expected to go about her daily activities, and she might have incidental contact with children at the supermarket or walking down the street as would any person. In contrast, in her job, she made regular visits to elementary schools, where the majority of the people she encountered throughout the school would be children under the age of 12, not always accompanied by a teacher or administrator. Especially in this kind of setting, she would not be able to guarantee that she would not find herself alone with a child under 12 years of age.
In addition, after the complainant pled guilty to child abuse, the sentencing judge imposed several conditions of probation, including that she have no unsupervised contact with children under 12 years of age. In so doing, the judge expressed the court's concern should the complainant be in contact with children under the age of 12 without supervision.
The complainant relies on three cases, Robertson v. Family Dollar Stores, ERD Case No. CR200400021 (LIRC Oct. 14, 2005); Rowser v. Upper Lakes Foods, ERD Case No. 200300509 (LIRC Oct. 29, 2004); and Moore v. Milwaukee Board of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999), in which the commission found no substantial relationship between the circumstances of a job and the circumstances of the crime for which the individual had been convicted. She argues that, as in these cases, her work duties do not provide a greater than usual opportunity for criminal behavior or a particular or significant opportunity for such criminal behavior, and that mere speculation that she might be capable of committing a crime while performing her job duties, without more, does not create a substantial relationship. In addition, all three cases involved criminal conduct that took place in a domestic setting.
However, there are significant differences between those three cases and the instant case. Not one of those cases involved a child abuse conviction, in which the individual intentionally inflicted cruel and inhuman punishment against a child under 12 years of age. Nor did any of the cases involve a job in which the individual regularly visited elementary schools and classrooms in a position of responsibility related to teaching the children attending the school, all of whom were under the age of 12. Finally, in none of the cases had the individual's sentencing judge prohibited the individual from unsupervised contact with children under the age of 12.
Robertson involved a stocker in a retail store with security guards and security cameras, and previous convictions for possession with intent to deliver marijuana and second degree sexual assault involving his girlfriend. There was no evidence of use of force in the sexual assault conviction, and the circumstances of the job of stocker did not provide a greater than usual opportunity for him to reoffend. Importantly, the commission found that denying the complainant an opportunity to work in that position and setting based on substantial relationship would likely result in a denial of any job to him, a result not intended by the Act. That is not the case here. The complainant is not foreclosed from employment in other college settings not involving responsibilities toward children under the age of 12, and it cannot be ignored that her conviction involved intentional force against a child.
Similarly, Moore involved a job as boiler room attendant at a public school, janitorial in nature, and a conviction of reckless injury by conduct regardless of life (in which the individual argued with a girlfriend, and threw a nearby pan of hot grease at her which hit her 20-month old child, causing severe burns). The offense did not show a propensity to intentionally inflict harm on others, and although the crime incidentally involved harm to a child, it was not specifically targeted at a child, and did not involve circumstances that would pose a particular threat to children. In contrast, the matter at issue here involved a crime using intentional force directed against a child, and the complainant's job as associate professor of teacher education involved duties and responsibilities in elementary school classrooms filled with children under the age of 12.
In Rowser, the complainant had been convicted of misdemeanor disorderly conduct/domestic abuse and the job involved was a driver. The commission, noting that the elements of the offense did not involve violence toward individuals with whom the complainant had no personal relationship, found no substantial relationship, specifically that the employer had failed to show how engaging in a violent act during a domestic dispute would bear any relationship to the duties and responsibilities of the driver position.
However, in this case, the complainant's job specifically involved overseeing her college students teaching children the same age as her foster daughter, and this oversight included disciplinary or behavioral matters that might arise in the classroom just as they do at home. In fact, there appears to be a fair correlation between the state entrusting the health and safety of the foster children to her care, and that trust that parents have when they send their children off to school, to be taught in a safe and secure setting. This is a very different situation than in
Rowser, where it is difficult to see the correlation between a domestic dispute and the activities of driving for a business.
Furthermore, although the complainant's crime took place in a domestic setting, that does not mean that the character traits associated with that crime disappear outside of the domestic context. The question is whether the tendencies and inclinations of the complainant to behave a certain way (as she did with her foster child) are likely to reappear later in a related context, such as a school classroom filled with children the age of her foster child. In fact, the character traits associated with child abuse - an inability to control anger, frustration, or other emotions toward children and the use of violence to achieve control over children or to resolve conflicts with them - are clearly pertinent to her supervisory role in the elementary school classroom, as is her lack of good judgment and poor self-control. Children can act inappropriately in school just as they may do at home, and their teachers are responsible for proper discipline when that happens.
Another factor that the commission has considered is that a college professor may serve as a role model for her students. In Blunt v. Wisconsin Department of Corrections, ERD Case No. CR200302691 (LIRC Feb. 4, 2005), the commission found that a conviction for possession of marijuana was substantially related to the job of a youth counselor for youthful offenders. The commission noted that youth counselors were expected to set model behavior for youthful offenders, and that Blunt's criminal behavior "was not conducive to that of serving as a role model or instructing and providing counseling to youth that had been adjudicated as juvenile offenders by the court system." In this case, as the respondent asserts, the complainant placed herself in the position of teaching her students to "do as I say, not as I do," an inappropriate message from a college professor as it relates to conduct toward children her students are learning to teach.
Therefore, the commission is persuaded that there is a substantial relationship between the complainant's job, educating college students in proper methods of instructing children at the elementary and middle school level, including field work in the children's schools, and her conviction of physically abusing a child. Her required regular presence in the elementary schools provided her with a greater than usual opportunity to reoffend, and the character traits associated with her offense are antithetical to the safe and proper performance of teaching college students how to teach children in elementary/middle schools.
Attorney Michael F. Brown
Attorney Ross W. Townsend
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(1)( Back ) In this regard, the college was not obligated to find replacements for Hoewisch for her field work in elementary/middle schools. There is no requirement under the WFEA to take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).