Wis.LIRC ER Decision: Ponto, Rick - August 22, 1996 - Arrest record discrimination -- 'substantially related' -- second-degree sexual assault, exposing child to harmful materials / resort and spa fitness director - suspension of employment because of arrest not unlawful

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

RICK PONTO, Complainant

GRAND GENEVA RESORT & SPA AND MARCUS CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9453100

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.

DECISION

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

Dated and mailed: August 22, 1996
pontori.rsd : 125 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The Wisconsin Fair Employment Act, section 111.32(1), Stats., states that "`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 Act further provides that notwithstanding the prohibition against arrest record discrimination, "...it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity." Sec. 111.335(1)(b), Stats. The purpose of the prohibition against arrest record discrimination is to prevent arbitrary employment decisions based solely on an individual's criminal record which bears no substantial relationship to the employment. Miller Brewing Co. v. ILHR Department, 103 Wis. 2d 496, 504, 308 N.W.2d 922 (Ct. App. 1981). All of the listed examples of types of contact that an individual might have with law enforcement or military authority which are contained in the definition of arrest record present the potential for unwarranted assumptions about an individual's guilt regarding some unlawful activity. Based on the Act's prohibition against arrest record discrimination, it is thus evident that the legislature was concerned about employers making employment decisions merely on the basis of an individual's contact with law enforcement or military authorities. It is also evident that the legislature carved out an exception to this concern for instances where the arrest record involved a pending criminal charge which bore a substantial relationship between the individual's arrest record and the individual's job since the law would otherwise force an employer to hire or keep an individual actively employed who in fact may be guilty and therefore injurious to the employer's interests.

Section 111.32(3) of the Act provides in part relevant herein that "`Conviction record' includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense...pursuant to any law enforcement or military authority. The Act likewise provides as an exception to the general prohibition against discrimination because of conviction record in instances where the individual "Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity..." Sec. 111.335(1)(c)1, Stats.

The complainant, a male, was employed by the respondent, Marcus Corporation, at its Grand Geneva Resort and Spa as the Fitness Center Director. He had worked at this facility since 1981 under a succession of owners until the Marcus Corporation purchased it in July 1993. The facility is a hotel and resort complex. The complainant lived on the hotel property.

As director of the fitness center the complainant was responsible for its operation, including management of a staff of six employes, one of which was apparently under age 18. Additionally, the complainant would occasionally have contact with members of the fitness center, which included some individuals who were under the age of 16. When the hotel was open for the summer season, the complainant was also responsible for supervising the deck staff for the swimming pool, and was responsible for bike rentals and paddle boats. Children of hotel guests used the pool and rented bikes and paddle boats. Hotel guests were also allowed to use the fitness center.

In a letter dated February 8, 1994, the complainant was notified that his employment was suspended effective immediately. No reason was stated for the action in the letter. The letter advised the complainant that he could temporarily remain in his residence, however, he was not to visit any portion of the property other than what was necessary to go to and from his living quarters.

William Otto, Senior Vice President of Operations for Marcus Corporation made the decision to take this action after the respondent became aware of a newspaper article that had identified the complainant as having been charged with second- degree sexual assault of a child and exposing a child to harmful materials. This article reported that the complainant was a manager at the Grand Geneva Inn, that he had been arrested over the weekend after authorities had searched his apartment at the hotel and that the warrant for his arrest had been signed based on information given by a 13-year-old boy and his mother. Otto testified that he suspended the complainant's employment because the information regarding the complainant's arrest involved sexual contact with minors, because the complainant's job brought him in contact with minors and because there was concern that he might have sexual contact with minors on the respondent's property. Otto had not questioned the complainant about the charges, nor had he directed anyone else to do so before the suspension notice was issued.

William Otto subsequently made the decision to terminate the complainant's employment after a second newspaper article appeared about the complainant. This article, which noted that the complainant was involved in the "Big Brother" program, related that the complainant had been formally charged with sexually assaulting his "little brother" in the program. After noting that the complainant was charged with two counts of first- degree sexual assault of a child and one count of exposing a child to pornographic material, the article read as follows:

"Ponto was arrested Feb. 5 after he allegedly admitted to police that he had sexual contact with the 12-year-old boy on approximately 25 separate occasions.

A criminal complaint indicates that Ponto admitted the contact with the boy after the child told a Human Services worker hat (sic) Ponto showed him pornographic movies, exposed himself to the boy, masturbated in front of him, touched the boy's penis and had the boy touch his."

The newspaper article went on to note that the complainant was scheduled to appear in court again on March 15.

In a letter dated March 16, 1994, Otto advised the complainant that his employment was terminated effective immediately. Otto testified that based on the second newspaper article, he believed that the complainant had admitted to engaging in the conduct to the police. Otto testified that he discharged the complainant because his behavior violated the respondent's work rule against indecent and immoral conduct, and because of the respondent's responsibility for its resort and hotel customers and guests.

On July 21, 1994, the complainant was convicted of first-degree sexual assault, 948.10 Stats., exposing genital or pubic area, s.948.10, Stats., and exposing a child to harmful material, s.948.11(2)(a), Stats. He was sentenced on September 8, 1994, and served time at the Fox Lake Correctional Institution.

The ALJ concluded that there was not probable cause to believe that the respondent had unlawfully discriminated against the complainant with respect to his terms or conditions of employment or termination of employment because of his arrest record, or because of a conviction record or perceived conviction record. The ALJ's decision is supported by the facts and the law.

As noted above, an exception to the prohibition against discrimination on the basis of arrest record allows an employer to suspend the employment of an employe in instances where the arrest record involves a pending criminal charge which bears a substantial relationship to the individual's job. There can be no question but that the complainant's arrest record was substantially related to his job as the respondent's fitness center director. Consequently, probable cause does not exist to believe that the complainant was discriminated against in his terms or conditions of employment because of arrest record when the respondent suspended his employment.

Secondly, with respect to the complainant's termination of employment, the ALJ found Otto to be credible when he testified that he believed that the complainant had admitted to having sexual contact with a minor. As noted by the ALJ, "The Respondent did not terminate Ponto when it learned of the charges. The termination came when Otto came to believe, through the newspaper, that Ponto had confessed to sexual contact with a minor on the premises of this hotel." (ALJ decision at p. 6). "The Complainant offered no proof to even suggest that this assertion was false or incredible, and the Administrative Law Judge finds Otto to have credibly testified on this issue." Id. The record thus supports the conclusion that Otto's decision to discharge the complainant had not been made merely on the basis of the complainant's contact with law enforcement authority, but because Otto believed the complainant had admitted his guilt involving sexual contact with a minor. Consequently, there is no reason to believe that the complainant's employment was terminated because of his arrest record.

Finally, as noted in the ALJ's decision, the complainant had not been convicted of any offense at the time of his suspension or termination of employment and therefore did not have a conviction record within the meaning of the Act. Further, there was no evidence to establish that the respondent had perceived the complainant to have a conviction record at the time these decisions were made. Consequently, the respondent could not have acted on the basis of conviction record.

On appeal from the ALJ's decision, the complainant makes assertions indicating dissatisfaction with his counsel's presentation of his case, denies having admitted to the charges against him as reported in the newspaper, asserts that at the time of his suspension the hotel was closed and without guests and that in his position as the director of Fitness Center he was not assigned to work with patrons but merely performed administrative duties, and, apparently, that the respondent had more likely acted out of "self preservation of image" rather than for a "legitimate" reason since the respondent never met to discuss the matter with him. These arguments fail. The complainant's dissatisfaction with his attorney's handling of the case does not provide a basis for reversing the decision of the ALJ. The complainant's assertions about what he stated to the police (versus what was reported in the media) does not appear in the record, and are irrelevant insofar as Otto's belief that he had admitted to sexual contact with a minor. The complainant's assertions concerning his interaction with the members of the fitness center is contradicted by the evidence presented at the hearing. Finally, since the complainant's arrest record was clearly substantially related to his job, the respondent did not act in violation of the Act when it suspended him on the basis of such arrest record, nor could his termination have been in violation of the Act when the credible evidence establishes that his termination did not occur until the respondent had come to believe that the complainant had admitted to the conduct with which he was charged. The respondent had an obligation to provide for the safety of the members and guests utilizing its facility.

cc: John M. Loomis

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