STEVEN D FINK, Complainant
SEARS ROEBUCK & CO, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
1. The respondent, Sears Roebuck & Company, (hereinafter "respondent") operates retail stores, including one in Sheboygan, WI, and one in Glendale, WI. Both of those stores have automotive centers.
2. The complainant, Steven D. Fink (hereinafter "complainant") is an individual who has been convicted of the offenses of first degree sexual assault of a child and bail jumping. (1) The sexual assault conviction stemmed from two incidents of sexual contact involving the complainant's six-year old daughter. In November of 2000, the complainant was sentenced to ten months in jail with work release privileges as a result of the sexual assault conviction.
3. In July of 2001, the complainant applied for work as an automotive technician at the respondent's Sheboygan store. The employment application he filled out contained a question, "Within the past seven years, have you been convicted of a crime involving dishonesty or violence? If Yes, explain." The complainant checked the "yes" box, but did not provide an explanation.
4. After the complainant submitted his employment application he was interviewed by Michael Stych, the automotive department manager. During the interview, the complainant and Stych discussed the fact that the complainant was currently on Huber work release from jail. The complainant told Stych that his criminal conviction was for first degree sexual assault. Stych did not ask the complainant to provide any further details about his conviction record, and the complainant did not do so.
5. After interviewing with Stych, the complainant took a written test and a drug test. The complainant also met with Yolanda Morgan, the respondent's human resource manager. The complainant indicated that Morgan looked familiar, and they talked about how they knew each other. Prior to working for the respondent, the complainant had been a janitor at North High School, where Morgan was the manager of contract cleaners. Morgan asked the complainant about his conviction record, and the complainant told Morgan that his criminal conviction stemmed from a relationship with a student at North High School. The respondent had not performed any criminal background check on the complainant at this point, and Morgan's inquiry about his conviction record was based upon the complainant's answer on his application.
6. After interviewing the complainant, Morgan talked to Kathi Warzynski, the general manager of the respondent's Sheboygan store. Warzynski asked Morgan if she had asked the complainant about his conviction, and was told by Morgan that the complainant said he was convicted of having a consensual sexual relationship with a student at the high school where he worked as a janitor.
7. Warzynski directed Morgan to contact the respondent's Associate Service Center (ASC) to see how to proceed. Morgan wrote a note explaining the circumstances of the complainant's criminal conviction as she understood them, which she faxed to the ASC. The ASC responded that the complainant could be hired. It is unknown whether the ASC considered the criminal background check or whether it based its decision on the information in Morgan's note.
8. Warzynski decided to hire the complainant, and he began working for the respondent as an automotive service technician. The complainant's job duties consisted primarily of changing tires and batteries in the "back shop." The complainant did not generally come into contact with children during the course of his employment. The complainant proved to be an extremely reliable worker with no performance problems. He was promoted from Service Technician 1 to Service Technician 2, and the automotive manager began to train him for a managerial position.
9. In May of 2004, the complainant applied for a promotion to the position of assistant auto center manager at the respondent's automotive center located in Bayshore Mall in Glendale, Wisconsin. The complainant was interviewed for the position by the automotive manager and store manager at the Bayshore store. During the interview there was no discussion of his criminal record. The complainant was offered the position and transferred from Sheboygan. He worked at the job for two months, during which time there were no performance issues.
10. The job of assistant auto center manager involved more customer contact than the service technician job, but entailed no direct contact with children. Any children coming into the automotive store would be accompanied by adults.
11. A few months after the complainant was promoted, the respondent performed a second criminal background check on him. Subsequent to the complainant's original hire in July of 2001, the respondent had centralized its hiring process, and the question of whom to hire was no longer left up to the individual store manager. Instead, all determinations on background checks were made at the corporate level.
12. Upon learning the results of the background check, Brian Eby, the manager of HR compliance, contacted John McKenna, the manager of the Bayshore store, and instructed him to talk to the complainant and to find out the facts surrounding the two convictions. McKenna investigated and reported back to Eby that Kathi Warzynski, the original hiring store manager, told him the complainant had indicated the criminal charge stemmed from a consensual sexual relationship with a girl in the high school where he worked as a janitor. Eby then contacted Warzynski, who explained that Yolanda Morgan had interviewed the complainant and had reported back to Warzynski that the complainant said he had a consensual sexual relationship with a high school girl. Warzynski told Eby that, after receiving this information, she and Morgan involved someone at a higher level, who gave them the okay to hire the complainant. Eby also talked to Morgan, who stated that she had interviewed the complainant prior to his original hiring, and that he told her his sexual assault conviction resulted from a relationship he had with a high school student.
13. Eby looked at the complainant's records and noticed he was on the lifetime sex offender registry. Eby also checked the statute and learned that the victim had to be under age 13. Eby then called McKenna back and asked what the complainant had said to him. McKenna told Eby that he talked to the complainant and that the complainant had described a different set of circumstances than what Eby was told by Warzynski. Eby contacted Warzynski again, and she confirmed that her recollection was accurate. Eby then called the complainant and told him he wanted to confirm his understanding of what the complainant had told John McKenna. Eby asked what the complainant told the respondent at the time he was hired. The complainant responded that he could not remember, because it was three years ago, but he guessed it would have been the truth. Eby then shared what the respondent's recollection was. The complainant responded, "Well, they said that's what I said, then I guess that's what I said."
14. Eby determined that the complainant lied about the circumstances of his criminal conviction during the initial hiring process.
15. On August 5, 2004, the respondent notified the complainant by letter that he was being discharged from his employment at Sears for "integrity reasons because of false statements and/or misrepresentations" that he provided during the hiring process.
16. Eby made the decision to terminate the complainant's employment after his investigation revealed that the complainant had lied during the application process.
17. Eby's decision to discharge the complainant was also based upon his criminal conviction record.
Based upon the above FINDINGS OF FACT, the commission makes the following:
2. That the respondent discriminated against the complainant based on his conviction record, within the meaning of the Wisconsin Fair Employment Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
1. That the respondent shall cease and desist from discriminating against the complainant on the basis of conviction record.
2. That the respondent shall pay the complainant's reasonable attorney fees and costs incurred in pursuing this matter.
3. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).
Dated and mailed March 1, 2007
finkst . rrr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
In his petition for commission review the complainant argues that he was not dishonest about the details of his conviction and that the reason the respondent discharged him was because Brian Eby, the manager of HR compliance, did not want a registered sex offender working at Sears. The complainant argues that when he applied for the job he truthfully reported that he had a criminal conviction and was aware the respondent would perform a background check which would reveal that he was convicted of first degree sexual assault of a child, an offense which only applies to crimes against an individual under age thirteen. The complainant argues that he would have no reason to lie when he knew that information was available to the respondent. The complainant insists that, not only did he not tell Morgan about his conviction record, he never even interviewed with her. He points out that the respondent presented no notes from the interview, and that the only internal Sears document addressing interviews indicates that the interviewer was Michael Stych. The complainant further notes that, although Morgan contended that she prepared a handwritten note regarding the complainant's conviction which she faxed to the human resource department, the respondent could not produce the note or the fax.
The commission has considered the complainant's arguments, but does not find them persuasive. The respondent's version of events is supported by the sworn testimony of three separate witnesses. Morgan testified that the complainant told her his conviction stemmed from a consensual relationship with a high school student, and Warzynski testified that, although she had no direct conversation with the complainant, Morgan conveyed this information to her and she believed it to be the case. Eby testified that Morgan and Warzynski told him the complainant was hired based upon an understanding that his criminal conviction record was related to a relationship with a high school student, and that he believed the complainant had deliberately lied. The administrative law judge found these witnesses to be credible, and the commission sees no compelling reason to disagree. The fact that the respondent was unable to produce documentation establishing that the complainant interviewed with Morgan or discussed his criminal conviction record with her is a weakness in the respondent's case, but does not compel a different result. Michael Stych acknowledged that it was possible the complainant had also interviewed with Morgan, and testified that he did not think someone would be hired without meeting Human Resources prior to the start date.
While in his petition the complainant speculates that Morgan and Warzynski "sensed" that Eby did not want someone on the sex offender registry and invented a way to make their decision more palatable, this theory is unsupported by any evidence in the record. Moreover, even if it could be found that Morgan and Warzynski concocted a story to please Eby, there is no violation of the law so long as Eby believed in good faith that what Morgan and Warzynski were telling him was true. The complainant cannot prevail if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial, or even baseless. Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997), citing McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992).
However, while the commission is satisfied that there is enough in the record to support a finding that the complainant provided misleading information about the circumstances surrounding his conviction, or that the respondent believed in good faith he had done so, and that he was discharged for that reason, the commission is also persuaded that, even in the absence of misleading information from the complainant, the complainant's employment would nonetheless have ended when the respondent learned about his conviction. Brian Eby began his investigation of the complainant based solely on the knowledge of his conviction record, before he was aware of any issue involving the complainant's honesty. Thus, it is clear that the fact of the conviction record alone was of concern to Eby. When asked whether the complainant was discharged solely for falsification of the events resulting in his conviction record, Eby stated that integrity was "primarily" the reason for the termination, but that the complainant's criminal conviction record played a part in the decision to terminate. Eby further testified that Warzynski told him that, had she known the truth about the complainant's conviction record, she would not have hired him in the first place. In fact, the respondent concedes in its brief that, had the complainant been truthful about the details of his conviction, he would not have been hired for a position that included customer service duties.
In Hoell v. LIRC, 186 Wis. 2d 603, 609-610, 522 N.W.2d 234 (Ct. App. 1994), the Court of Appeals endorsed the use of an "in part" test for situations such as these, where a discharge was based in part on a legitimate motive and in part on a discriminatory one:
"If an employee is terminated solely because of an impermissible motivating factor, the employee normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney's fees . . . If an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Commission has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employee is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney's fees. (emphasis added)
The commission has adopted and applied the Hoell analysis in numerous instances. For example, in Miles v. Regency Janitorial Service, (LIRC, Sept. 26, 2002), the commission concluded that the respondent's belief the complainant was not bondable was, in part, the reason for his discharge, but that the respondent still would have terminated the complainant's employment for falsifying his application about his conviction record. The complainant, therefore, was found to be entitled to a cease and desist order and attorney's fees. The commission also applied the Hoell test in Holman v. Empire Bucket & Mfg Inc. (LIRC, Aug. 15, 2003), in which it held that the complainant's filing of an equal rights complaint was a motivating factor in his layoff and that, although the complainant would have been selected for layoff even if he had not engaged in protected activity, he was nonetheless entitled to a cease and desist order and attorney's fees. For further applications of the Hoell "in part" test, see, also, Geen v. Stoughton Trailers, Inc. (Sept. 11, 2003); Goldsmith v. Sears Roebuck and Co (LIRC, June 29, 2006); Jackson v. Ecklund Carriers Inc. (LIRC, Oct. 21, 2005); Odya v. Captain Install Inc. (LIRC, May 19, 2000); and Blunt v. State of WI Department of Corrections (LIRC, Feb. 4, 2005).
A remaining question to resolve before liability is assessed is whether the respondent established the affirmative defense that the complainant's conviction record is substantially related to the job. The statute provides that it is not employment discrimination because of conviction record to terminate from employment an 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 or licensed activity. Wis. Stat. § 111.335(1)(c)1. Therefore, if the respondent demonstrates that the complainant's conviction was substantially related to the position of assistant automotive manager, it may terminate his employment without liability. The respondent has the burden of proof on this point. Robertson v. Family Dollar Stores (LIRC, Oct. 14, 2005); Ward v. Home Depot (LIRC, Oct. 21, 2005).
The respondent has not raised the affirmative defense of substantial relationship, and the evidence in the record does not support a conclusion that such a relationship exists. The complainant began his employment as a service technician, a job in which he would not generally be expected to come into contact with children. He was then promoted to assistant manager. As an assistant manager the complainant would not have direct contact with children, although it was possible that children would come into the store accompanied by their parents. The complainant's former supervisor, Michael Stych, testified that there was no reason to believe unaccompanied children would be in the store and that the complainant was very unlikely to have contact with children. Mr. Stych allowed that children could be left in a waiting area, but was not asked and did not elaborate on how often this might occur, or where the waiting area was located in relation to the complainant's work place and in relation to the children's parents or other customers. There is no evidence to establish that children would actually be left unattended in a waiting area to which the complainant might have access.
In a case involving similar facts, Murphy v. Autozone (LIRC, May 7, 2004), aff'd. sub nom. Autozone v. LIRC and Murphy, No. 04-CV-1710 (Wis. Cir. Ct. Dane County Jan. 18, 2005), the commission held that the character traits revealed by having committed the crime of sexual assault of a child include untrustworthiness with children, lack of judgment and inability to accept responsibility over children, and placing of one's own selfish desires ahead of the welfare of children. The commission noted that the complainant's crime was perpetrated in a domestic setting and involved a victim with whom he had a close personal relationship, and that there was no reason to presume the mere proximity of children was a circumstance likely to foster repeat criminal behavior. As in Murphy, the complainant's crime was one of opportunity, and there is nothing in this record to suggest that the mere sporadic or incidental presence of children in the workplace is a circumstance that would cause him to reoffend. Further, even if the commission were to conclude that the complainant poses a threat to random children with whom he has only the most tenuous contact, there is nothing in this record to establish that children come into the store unaccompanied by their parents or other adults or that children are ever left unattended where the complainant might have an opportunity to approach them away from the view or hearing range of others.
Because the respondent failed to demonstrate that the circumstances of the complainant's conviction record were substantially related to the circumstances of the job, its decision to discharge him based, in part, on his conviction record, entitles him to the partial remedy of a cease and desist order, and reasonable attorney fees associated with this matter.
NOTE: The commission conferred with the administrative law judge who held the hearing in order to obtain the benefit of his impressions of witness credibility and demeanor. The administrative law judge indicated that he found the complainant to be somewhat "cagey," but was unable to impart any other demeanor impressions that assisted him with his decision.
The complainant's brief contains argument with regard to a discovery issue. Given the commission's ruling in the complainant's favor, it considers it unnecessary to address that argument in this decision.
cc:
Attorney Anthony J. Resimius
Attorney Michael J. Ganzer
Appealed to Circuit Court. Affirmed February 29, 2008.
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