JOHN MORENO, Complainant

COUNTY OF RACINE, 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 County of Racine is a body of Wisconsin state government created by state law.

2. John Moreno is an individual who was employed for approximately 10 years as a maintenance engineer for the County. He worked largely unsupervised in a variety of County buildings, responding to service requests. He worked 40 hours per week on first shift, Monday through Friday, and at the end of his employment his hourly wage was $23.09.

3.  In approximately May 2009, Mark Hoefs, assistant superintendent of building and facility management for the County, was informed by the County sheriff's office that Moreno was under investigation for possession of child pornography. The County made no changes to Moreno's job duties at this time.

4. In approximately February 2010 the County district attorney advised Hoefs that the investigation of Moreno was ongoing. The district attorney requested that Moreno not perform duties on the ninth floor of the courthouse, where the district attorney's office was located, in the juvenile court, and the juvenile detention facility.

5. Hoefs met with his supervisors and together they decided to restrict Moreno from working on the ninth floor of the courthouse, the juvenile court, and the juvenile detention center, as requested by the district attorney. Shortly thereafter Hoefs met with Moreno privately and informed him of these restrictions. Moreno stated that he would comply. Moreno indicated to Hoefs that he was aware that he was under investigation for possession of child pornography, and he admitted to Hoefs that he did have child pornography, but it was only a couple of pictures.

6. On Monday, November 15, 2010, a criminal complaint charging Moreno with 10 counts of possession of child pornography was approved for filing in the district attorney's office. The document shows an initial appearance scheduled for 1:30 p.m., November 18, 2010. An assistant district attorney met with Hoefs on November 15, 2010 and informed him that Moreno was going to be charged in court with multiple felony counts of possession of child pornography, and that the court would be requested to impose certain conditions of setting bond for Moreno, one of which was a requirement that Moreno have no contact with children. Hoefs was struck by the difference between the number of counts in the complaint and Moreno's earlier admission to him that he only had a couple of pictures.

7. Hoefs met with his supervisors on November 15, 2010. They decided that if the bond condition prohibiting contact with children were put in place, it would be difficult for Moreno to comply with it if he continued performing his job for the County, because there was no practical way to ensure that Moreno would not occasionally encounter children in the buildings where Moreno worked. Based on that assessment, and on the opinion that the charges were very serious, the County suspended Moreno without pay on November 15, 2010.

8. On November 18, 2010, Moreno made his initial appearance in court on the criminal complaint of possession of child pornography. The court set bond at $10,000, on a number of conditions, including the condition that he have no contact with children under 18 without supervision by another adult.

9. On November 23, 2010, the union representing Moreno filed a grievance over his unpaid suspension.

10. On January 10, 2011, Vic Long, the County's labor negotiator, denied the grievance, stating that the County was justified in suspending Moreno "due to the seriousness of these crimes."

11. In February 2011 the human resources director for the county met with other supervisors and decided to terminate Moreno's employment while he was still on unpaid suspension. When fully staffed, the County had six engineers. The suspension had left the County short-handed. As a result, engineers were working more overtime hours and were having difficulties scheduling time off. It was impractical to fill Moreno's position on a temporary basis because the job required considerable training cost and effort. The position could not be filled on a permanent basis so long as Moreno was still considered an employee holding that position. The County terminated Moreno's employment on February 16, 2011.

12. On February 22, 2011, on Moreno's request, the court hearing the criminal complaint modified the conditions of Moreno's bond, ruling that no condition of bond has been established prohibiting Moreno from entering County premises.

13. On August 23, 2011, Moreno pled guilty to two counts of possession of child pornography; the remaining eight counts were dismissed but read in for purposes of sentencing.

14. On January 20, 2012, Moreno was sentenced to two years in prison and six years of extended supervision.

Based on the above FINDINGS OF FACT the commission makes the following:

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act, and the complainant is an individual with an arrest record, entitled to the protections of the Wisconsin Fair Employment Act.

2. The complainant has failed to show by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Act by terminating the complainant's employment because of his arrest record.

3. The complainant has shown by a preponderance of the evidence that the respondent violated the Wisconsin Fair Employment Act by suspending the complainant's employment on November 15, 2010 because of his arrest record.

Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

1. The claim of termination of employment because of arrest record is dismissed.

2. The respondent shall not henceforth suspend the complainant's employment because of arrest record in violation of the Wisconsin Fair Employment Act.

3. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.

4. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final 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. Stat. §§ 111.395, 103.005(11) and (12).

5. Back pay. The respondent shall make the complainant whole for losses of pay and benefits that the complainant has suffered by reason of its unlawful discrimination by paying him the amount he would have earned as an employee of the respondent from the time of his suspension on November 15, 2010 to the time of the complainant's initial appearance in court on November 18, 2010, on criminal charges of possession of child pornography.

6. Attorney's fees. The respondent shall pay the complainant reasonable attorney's fees in the amount of $5,369.38 to the complainant by check made payable to the complainant and delivered to the trust account of Attorney Sandra Radtke. The parties have stipulated to the attorney's fees ordered in this paragraph.

7. Compliance Report. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:

Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708

or faxed to (608) 267-4409

or emailed to lirc@dwd.wisconsin.gov

The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.

Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.

Dated and mailed June 27, 2014

morenjo_rrr . doc : 107 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case involves two acts by the respondent: (1) the suspension of the complainant on November 15, 2010; and (2) the termination of the complainant on February 16, 2011, prior to any conviction on criminal charges against him.

The WFEA prohibits discrimination because of an arrest record or conviction record, but allows substantial relationship defenses for both. For arrest record discrimination, it is not a violation of the WFEA to suspend an employee "who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job..." Wis. Stat. § 111.335(1(b). For conviction record discrimination, it is not a violation to terminate an employee who "[h]as been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the job..." Wis. Stat. § 111.335(1)(c). These defenses are appropriately considered, though, only after causation has been determined. If the arrest or conviction record did not motivate the adverse action, there was no discrimination, and no need to consider substantial relationship. City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984); Williams v. Medical College of Wisconsin, ERD Case No. CR200800850 (LIRC Oct. 10, 2011); Schmid-Long v. Hartzell Manufacturing, ERD Case No. 199701693 (LIRC Mar. 26, 1999).

Suspension

Whether suspension was caused by arrest record

Under Wis. Stat. § 111.32(1):

"Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

The complainant's arrest record began many months before charges were filed, when the complainant was first interviewed by law enforcement. The respondent became aware that the complainant was being investigated for possession of child pornography, and thus aware of his "arrest record" as defined above, months before charges were filed, but it did not suspend the complainant at that time. The respondent argues that this is an indication that the complainant's arrest record was not the motivation for suspending the complainant. Instead, the respondent argues that the suspension was motivated by the information the respondent received on November 15, 2010 from the assistant district attorney, that charges were about to be filed and that the district attorney was going to ask the court for a number of bond restrictions, including no contact with children.

The respondent relies largely on Schmid-Long v. Hartzell Manufacturing, ERD Case No. 199701693 (LIRC Mar. 26, 1999) for this argument. In Schmid-Long, it was found that the employer's suspension of the employee was not based on any discriminatory animus or bias associated with the fact that the complainant had pending criminal charges, but instead on the fact that the court had issued an order, as a condition of the employee's bond, forbidding the employee from having contact with two of her fellow employees. The "no-contact" order provided a legitimate, non-discriminatory reason for the suspension. The key was that the employer "reasonably concluded that it was unable to employ the complainant while she was under court order to have no contact with two of her co-workers." Schmid-Long, supra, at 3. Similarly here, the respondent reasonably concluded that a requirement that the complainant have no contact with unsupervised children rendered the complainant unable to perform his job. There was no practical way to ensure against the complainant's having random encounters with unsupervised children.

There are two factors, however, that distinguish this case from Schmid-Long. First, and most importantly, the decision here was based not on the court's bond conditions, but on the district attorney's request for conditions. Unlike a court order, the district attorney's request is part of the complainant's arrest record. The definition of arrest record is open-ended, and, consistent with the purpose of the act, is meant to cover all information generated by the arresting authority. In Betters v. Kimberly Area Schools, ERD Case No. CR200300554 (LIRC July 30, 2004), the commission stated:

Things such as police reports from the arresting authority, the criminal complaint, and statements made by or other information provided by the arresting or prosecuting authority, are all part and parcel of the "arrest record" itself.

It does the respondent no good, then, to appeal to the district attorney's request as the motivation for the suspension decision-that amounts to a declaration that the arrest record did motivate the decision.

Second, unlike Schmid-Long, it appeared that the substance of the charges filed in this case also formed a partial motivation for the suspension. The supervisor acknowledged that he had underestimated what the complainant was being investigated for until his meeting with the assistant district attorney on November 15th. The respondent's willingness to keep the complainant working for months prior to the charges being prepared was not inconsistent with the conclusion that the disclosure on November 15th of ten felony counts, which the supervisor considered "a very serious matter," motivated the suspension. Also, a memo issued in response to the complainant's union grievance cited "the seriousness of these crimes" as justification for the suspension. This evidence indicates that animus or bias associated with the charges also motivated the respondent.

The commission concludes that the decision to suspend the complainant was based on the complainant's arrest record, and that therefore the respondent had to establish the affirmative defense of a substantial relationship to avoid liability.

Whether circumstances of the pending(1) charge were substantially related to job

The ALJ concluded that the circumstances of the complainant's arrest record were substantially related to the circumstances of his job. This conclusion appears to be based on the fact that the complainant might encounter an unsupervised child in the course of his work-day.

The commission does not agree with this conclusion. The appropriate method of evaluating whether a substantial relationship exists is to look first and foremost at the elements of the offense involved to determine the character traits revealed. Zeiler v. State of WI, Dept of Corrections, ERD Case No. 200302940 (LIRC Sep. 16, 2004). The question is whether the character traits and tendencies revealed are likely to reappear in the context of the employee's job:

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.

County of Milwaukee v. LIRC, 139 Wis.2d 895, 824, 407 N.W.2d 908 (1987). The circumstances of the complainant's employment must provide a greater than usual opportunity, or a particular or significant opportunity, for engaging in such behavior. Robertson v. Family Dollar Stores, ERD Case No. CR200300021 (LIRC Oct. 14, 2005).(2)

The complainant was charged with possession of child pornography, under Wis. Stat. § 948.12, which states:

(1m) Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):

(a) The person knows that he or she possesses or has accessed the material.

(b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.

(c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

The elements of this offense reveal a willingness to act on a desire to see minors engaged in sexually explicit conduct, to the extent of going to the effort to obtain depictions of that conduct, but they do not involve any person-to-person interaction. The circumstances of the charge indicated that the complainant used his home computer, through which he sent and received child pornography.

The elements and circumstances of this offense do not reveal a willingness to interact personally with a minor for sexual gratification. The crime involves access to depictions and access to the means to obtain depictions. The complainant had no computer at work by which he could access the internet or otherwise obtain child pornography. The respondent's argument that the complainant could have asked an employee on the premises where he was assigned if he could use his or her computer, then use it for the purpose of accessing child pornography, is highly speculative.

In Murphy v. Autozone, ERD Case No. 200003059 (LIRC May 7, 2004), aff'd sub nom. Autozone v. LIRC and Murphy, No. 04-CV-1710 (Wis. Cir. Ct. Dane Cnty. Jan. 18, 2005), the employee's crime was the actual sexual assault of a child, but the commission found that the employee's job, district manager of an auto parts store, did not have a substantial relationship to the crime. Even though the employee might have had incidental contact with children, the commission thought it reasonable to assume that the children would be accompanied by adults, and therefore such contact would not offer an opportunity for criminal behavior. The commission reasoned:

Given that contact with children is the key element of the crime for which the complainant was convicted, it is hard to see how any job not involving contact with minors would lend itself to the opportunity for repetition of the criminal behavior in question.

Similarly, in Fink v. Sears Roebuck & Co., ERD Case No. 200404227 (LIRC Mar. 1, 2007), aff'd sub nom. Fink v. LIRC, No. 07-CV-287 (Wis. Cir. Ct. Sheboygan Cnty. Feb. 29, 2008), the complainant had been convicted of sexual assault of a minor, and the commission held that in his position as assistant store manager the complainant did not have more than sporadic or incidental contact with children in the workplace, and therefore did not have an opportunity to reoffend.

Here, contact with children is not an element of the crime, making it even more unlikely that the complainant's incidental contact with children would provide an opportunity for him to repeat any criminal behavior revealed by the elements of the crime with which he was charged.

The commission therefore concludes that the respondent's decision to suspend the complainant was based on his arrest record, and that the respondent failed to show that the circumstances of the arrest record were substantially related to the circumstances of the complainant's job.

Termination

The ALJ recognized that, without exception, the WFEA forbids an employer from terminating an employee because of an arrest record. Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC Mar. 14, 2008); Shipley v. Town & Country Restaurant, ERD Case No. 8502472 (LIRC July 14, 1987); Maline v. Wisconsin Bell, ERD Case No. 8751378 (LIRC Oct. 30, 1989). Borrowing from the logic of Schmid-Long, however, the ALJ concluded that the bond condition prohibiting the complainant from having contact with unsupervised children, coupled with the respondent's personnel needs, provided an independent, non-discriminatory reason for termination.

The complainant argues that once an employee has been arrested, "a termination is only permissible when there is a conviction for a crime that is substantially related to the job." (Complainant's reply brief, p. 5). This is too broad. Certainly after an employee's arrest, events can happen that create the grounds for a non-discriminatory decision to terminate the employee. A simple layoff of the employee for business reasons, for example, could occur while the employee is on suspension due to an arrest. See Schmid-Long, supra.(3)

The complainant also argues that because the decision to suspend was tainted by being based on his arrest record, the respondent should not be able to use the continued suspension in February 2011 as a non-discriminatory justification for termination. The fact is, however, that although the respondent "jumped the gun" when it suspended the complainant on November 15th, by November 18th the respondent did have a non-discriminatory basis to keep the complainant on suspension-namely, the court order prohibiting contact with minors. The complainant conceded as much ("Under Schmid-Long, the Employer in this case likely could have suspended Mr. Moreno without pay after the bond actually was in place, but the Employer did not exercise restraint, and did not wait for the Court to impose the requested bond." Complainant's reply brief, p. 5). The question is whether the respondent's reliance in February 2011 on the continued suspension due to the court's no-contact order, and the personnel difficulties that that presented, were a pretext for terminating the complainant because of his arrest record. The complainant did not show that the respondent's asserted motivation for termination was insincere, or otherwise present evidence that the complainant's arrest record motivated the termination decision. The commission therefore affirms the ALJ's decision that the termination did not violate the WFEA.

Remedy

The back pay remedy for the decision to suspend is limited to approximately three days of back pay, from November 15th through the time of the initial appearance on November 18th, because as of November 18th, the respondent could have legally suspended the employee without pay, based on the bond conditions. Fashioning a remedy based on what the evidence shows the respondent could have done is not inconsistent with the department's discretion to order such a remedy as will "effectuate the purpose" of the WFEA (Wis. Stat. § 111.39(4)(c)), and is not unprecedented. In Maline, supra, the commission found that the employer violated the WFEA by terminating an employee because of his arrest record, but awarded no back pay because it also found that since the circumstances of the criminal charge were substantially related to circumstances of the job, the employer could have suspended the employee without pay. Similarly here, the respondent could have suspended the complainant on November 18th for a non-discriminatory reason, so as of that date the complainant should not be entitled to back pay.

cc: Attorney Sandra Graf Radtke
Attorney Mary E. Nelson

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(1)( Back ) It is debatable whether the charges were "pending" as of November 15th, when the suspension occurred. They were apparently drafted on November 15th but not filed in court until November 18th. The term "pending" is not defined in the law. For the sake of the substantial relationship argument the commission accepts the charges as "pending" once they were drafted and signed on November 15th.

(2)( Back ) There is no basis for the commission to accept the court's no-contact order as establishing a substantial relationship under the WFEA. The court was not applying the WFEA.

(3)( Back ) "...the evidence indicates that the respondent would have been willing to return the complainant to work after the "no contact" order was modified, had it not been involved in a lay-off situation at that time." Schmid-Long, supra, p. 2.

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