CEDRIC ALBERT HOLZE, Complainant
SECURITY LINK, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed September 23, 2005
holzece . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant, "Cedric Albert Holze" (hereinafter, Holze), began work as a service technician in February 1991 for a company called Central Control Alarm Corporation, which the respondent, Security Link, acquired in May 1998. The business of Security Link was sales and service of security and fire systems. Security Link's corporate office was located in Oakbrook, Illinois, and it had a Milwaukee-area office. As a service technician in the Milwaukee area Holze's duties primarily involved repairing security systems, i.e., burglar alarms, card access systems, surveillance equipment etc., but sometimes included making additional installations to existing security systems. Employees must undergo a federal background check and receive a clearance in order to work in federal government facilities. In the course of his work Holze went into businesses, government facilities, schools, daycare centers and private residences. The performance of his duties included working alone.
Dennis Snider, Security Link's service operations manager, was Holze's supervisor. Snider apparently became Holze's supervisor sometime during the year 1999 or early 2000. Snider's immediate supervisor was Elaine McCarty, Security Link's general manager.
Holze identifies himself as a Biblical Fundamentalist. He states that he is a follower of Jesus Christ, which requires him to apply that which he understands to be the truth regardless of the consequences. James Halper, a former co-worker of Holze's at Security Link, testified that he did not know what Holze's religion was but that he had had discussions with Holze about his religious beliefs and that Holze had once stated at a meeting that he was unable to sign some type of statement employees were required to sign because of his religious beliefs. Orville Segerson, who had been Holze's supervisor at Security Link before Snider, also testified that he had had discussions with Holze about his religious beliefs and that at a meeting Holze had opposed signing a company document on religious grounds.
In February 2000, a search warrant was executed at Holze's residence and a SWAT team raided his home and seized his computer and a few hundred floppy disks. At some point the respondent's human resources department informed McCarty that Holze was under criminal investigation and the respondent restricted him to the premises of the office for a period of two to three weeks. On April 24, 2001, Holze was convicted under Wis. Stat. § 948.12 on one count of possession of child pornography, a felony.
Wis. Stat. § 948.12 provided as follows at the time in question:
"Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony:
(1) The person knows that he or she possesses the material.
(2) The person knows the character and content of the sexually explicit conduct shown in the material.
(3) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years."
On April 25, 2001, Holze informed McCarty of his felony conviction for possession of child pornography. Apparently when he informed McCarty about his conviction Holze also made assertions about his conviction having resulted from a conspiracy by government officials and that he was "set up." McCarty promptly informed Security Link's human resources department in Oakbrook, Illinois of Holze's conviction in order to get direction on what she should do and, pursuant to instructions McCarty terminated Holze's employment on or about April 26 because of his felony conviction for possession of child pornography.
At Holze's sentencing hearing on July 24, 2001, the court imposed a sentence of 5 months at the House of Correction with Huber privileges. Other conditions of the sentence imposed by the court included that "He's not to be in possession of any pornography material or have any unsupervised contact with a computer", "He's to provide for the D.N.A." and that "He's to maintain employment."
The ALJ determined that there was no probable cause to believe Security Link discriminated against the complainant on the basis of creed with respect to failure to accommodate his religious beliefs or with respect to the termination of his employment, and that there was no probable cause to believe the respondent discriminated against the complainant on the basis of his conviction record with respect to termination of his employment because his conviction for possession of child pornography was substantially related to the circumstances of his job as a service technician.
The underlying focus of much of Holze's argument on appeal relates to his assertion that he was wrongly convicted of possession of child pornography. For instance, Holze argues that the ALJ should not have excluded from the record Exhibit 20, a copy of the search warrant executed at his residence because that search warrant was issued by a court commissioner who had no authority to issue search warrants and therefore was not a valid search warrant. He requests that this search warrant be carefully reviewed by the commission. Holze also argues that the ALJ's quashing of his subpoenas for the court commissioner who issued the search warrant and the detective who conducted the search on his home denied him due process of law because it prevented him from "discovery of the truth/fact" that his conviction for the possession of child pornography was the result of his being set up. He requests that the commission remand this matter for their testimony, should the commission be unable to decide on the record before it that the respondent unlawfully discriminated against him. Further, Holze contests the sufficiency of the evidence presented by the state during his jury trial on the charge of possession of child pornography and he asserts that the jury was misled. However, Holze's arguments and requests are not relevant with respect to his claims of employment discrimination against the respondent. The ALJ properly excluded Exhibit 20 as evidence and properly quashed the subpoenas for the court commissioner and the detective. A complainant's conviction for an offense estops him from subsequently trying to call into question his culpability in any of the material elements of the offense. Thayer v. Home Health United (LIRC, 04/08/93), aff'd., Dane Co. Cir. Ct., Case No. 93-CV-1868, April 19, 1994. Any alleged problems surrounding his criminal conviction must be addressed by way of an appeal from that conviction.
Holze also points out that McCarty admitted she had no idea whether if before the decision was made to terminate his employment Security Link had conducted any investigation into the "circumstances of his situation." Whether Holze is questioning if Security Link had taken time to evaluate whether the circumstances of his offense were substantially related to his job, or if Security Link had given any consideration to his claims of having been set up, his argument fails. First, the substantial relationship defense does not require the employer to demonstrate that it concluded at the time of the employment decision that the circumstances of the offense were substantially related to the circumstances of the job. To the contrary, the substantial relationship test is an objective legal test which is meant to be applied after the fact by a reviewing tribunal. Schroeder v. Cottage Grove Coop. (LIRC, 06/27/01), aff'd., sub nom. Schroeder v. LIRC, Dane Co. Cir. Ct., 01/31/02. See also, Zeiler v. State of Wisconsin-Dept. of Corrections (LIRC, 09/16/04). Second, as previously noted above, a complainant's conviction for an offense estops him from subsequently trying to call into question his culpability in any of the material elements of the offense. Thayer, supra.
It is not employment discrimination because of conviction record for an employer to terminate from employment any individual who has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the individual's job. Wis. Stat. § 111.335(1)(c)1.
The appropriate method for evaluating the "substantially related" test is to look first and foremost to the statutory elements of the statutory offense involved to determine the character traits revealed by violation of that criminal statute. Zeiler, supra. As noted by counsel for the respondents, Holze was convicted of a crime that amounted to the gross objectification of children. Holze's conviction for possession of child pornography is substantially related to the job of service technician because his job required him to service the alarm systems in homes, daycare centers and schools; all places where children were, and will be, present.
Holze apparently argues that his conviction is not substantially related to his job because his conviction was the result of his "research work" based upon his religious beliefs and going after "corrupt government, trying to correct the system." Further, Holze argues that his conviction was not substantially related to his job because there had been no client complaints of harassment by him, no record of any threats to any child by him or any history of violence by him. In addition, Holze argues that there was nothing with respect to his sentencing by the court that restricts him from going into daycare centers, that he goes into a daycare center every day and takes his grandson during the week, and that the court ordered him to maintain employment and gave him Huber work privileges during his time of incarceration.
Holze's arguments fail to establish probable cause to believe that Security Link discriminated against him on the basis of conviction record. First of all, as indicated in Exhibit 11, the court's May 12, 2003 denial of Holze's motion for postconviction relief, at his jury trial Holze had testified in his defense that he was researching the extent to which certain material was available to children over the Internet, but the state attacked the credibility of Holze's "research project" defense and the jury returned a verdict of guilty. Second, whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. 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. Goerl v. Appleton Papers (LIRC, 10/05/92). The character trait most revealed by Holze's conviction for possession of child pornography is the gross objectification of children, and the circumstances of his job placed him directly in the presence of children. Case law on child pornography has noted that the evidence suggests that pedophiles use child pornography to seduce other children into sexual activity. In Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691 (1990), the Court noted the following:
The Attorney General's Commission on Pornography, for example, states that "Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage in sexual activity with an adult or to pose for sexually explicit photos can sometimes be convinced by viewing other children having 'fun' participating in the activity." 1 Attorney General's Commission on Pornography, Final Report 649 (1986) (footnotes omitted). See also, D. Campagna and D. Poffenberger, Sexual Trafficking in Children 118 (1988); S. O'Brien, Child Pornography 89 (1983).
495 U.S. at 111, n7.
A substantial relationship exists in the employment of an individual convicted of possession of child pornography in a position where the performance of his duties occurred in the presence of children.
Finally, with respect to Holze's sentencing, as noted above, on July 24, 2001, the court also imposed a sentence of 5 months at the House of Correction with Huber privileges, including the conditions that "He's not to be in possession of any pornography material or have any unsupervised contact with a computer", "He's to provide for the D.N.A." (i.e., deoxyribonucleic acid analysis) (1) and that "He's to maintain employment." There is nothing in the sentencing imposed by the court, however, that suggests the lack of a substantial relationship between Holze's conviction for possession of child pornography and his job servicing security systems. A requirement that Holze maintain employment and the granting of Huber privileges to do so does not address what type of employment would be suitable employment for the complainant. Holze, however, apparently finds significance in the court's omission of a restriction that he not go into daycare centers. However, in Thayer, a case involving an employee whose duties as a home health aide included assisting patients with the self-administration of medication who was convicted of maintaining a dwelling used for keeping controlled substances, on appeal from the commission's decision finding a substantial relatedness in her conviction and her job, the court noted there was evidence during sentencing that after being informed the individual's job involved working with prescription drugs that the sentencing court specifically stated that her employment would not be affected, but held that this was not relevant nor binding on the court. Thayer, supra. p.4, fn 10.
Holze has also argued that if his conviction posed a specific problem with a specific job, a simple accommodation the employer could make would be to send a different technician to that job and to send him to a different job. However, there is no requirement under the Act that an employer take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).
With respect to his claim that the respondent discriminated against him on the basis of creed Holze apparently argues that the fact that he discussed his religious beliefs with a co-worker and a supervisor and had voiced an objection to signing a required document during a meeting supports the view that Security Link terminated his employment on the basis of creed. However, Holze provided no evidence that the human resource official(s) who made the decision to terminate his employment (or McCarty or Snider for that matter), had any knowledge of his religious beliefs, much less that his religious beliefs played any part in the reason for his termination. Further, McCarty testified that when she contacted the Human Resources Department there was no discussion about Holze's religious beliefs; that the reason she was given for the termination of his employment was because he had a felony conviction for possession of child pornography and that because of the nature of his job it would be unacceptable to have him out in the field.
Holze's further claim that the respondent violated the Act by failing to reasonably accommodate his religious beliefs appears to be that it was his religious beliefs that had caused him to be convicted of possession of child pornography and that Security Link should have reasonably accommodated those religious beliefs by allowing him to continue in its employ while he pursued an appeal from that conviction. However, even assuming for purposes of argument that the official(s) that made the decision to terminate Holze's employment had known of his claim that his conviction was the result of his religious beliefs, the respondent was not obligated to continue his employment when he in fact had been convicted for possession of child pornography and that conviction was substantially related to the circumstances of his job.
Holze also suggests the existence of an actual or appearance of a conflict of interest on the part of the ALJ because he denied the admittance of Exhibit 20 and quashed his subpoenas for the court commissioner and the detective. Holze asserts this conflict arises because the ALJ is a member of the state "BAR" of Wisconsin, the term "BAR" which he states is the acronym for British Accredited Registry and "a private Crown derived lobbying organization."
In addition, after learning that commissioners James Flynn and David Falstad are attorneys, Holze submitted correspondence dated July 27, 2005, in which, among other things, he also stated that "An appearance of conflict was noted" because these commissioners are understood to be "members in this private State British Accredited Registry (BAR in acronym form) private association." Further, Holze has requested that these commissioners "consider the process of 'recusation' ", stating that:
"As sworn officers of this private BAR derived judicial process, their presence creates what is clearly understood to be a conflict of interest issue. The presence of James T. Flynn and David B. Falstad creates and maintains what is clearly understood to be a separation of powers violation or conflict of interest where alleged lawful state judicial process (sworn officers of the court) representatives can infringe upon the independence of the executive/administrative branch of state government. It is these dual roles at the same time (judicial and administrative/executive) of each of these individuals that leads me to conclude I will not be able to receive a full, fair, impartial hearing and decision with the presence of these two "attorney" private BAR member on this commission."
For reasons already noted above, the ALJ properly excluded Exhibit 20 and properly quashed the two subpoenas in question.
In addition, the commission has already written to Holze explaining that the terms and requirements for members of the commission are set forth by statute at Wis. Stat. § § 15.06(1) and (3), and the commission's authority to review Holze's discrimination claims is set forth by statute at Wis. Stat. § 111.39(5).
Further, persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91), citing Guthrie v. WERC, 111 Wis. 2d 447, 331 N.W.2d 331 (1983); State ex rel. DeLuca, 72 Wis. 2d 672, 242 N.W.2d 689 (1976); and Eastman v. City of Madison, 117 Wis. 2d 106, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114. Holze has not met that burden. Holze's request that commissioners Flynn and Falstad consider recusing themselves is denied.
cc:
Attorney Timothy G. Costello
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