TIMOTHY MURPHY, Complainant

AUTOZONE INC, 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, except that it makes the following modifications:

1. In paragraph six of the administrative law judge's FINDINGS OF FACT the word "finance" is deleted and the word "fianc‚e" is substituted therefor.

2. The following paragraph is inserted after paragraph four of the administrative law judge's ORDER:

"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review."

3. Paragraph five of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"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 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. Stat. § § 111.395, 103.005(11) and (12)."

4. The administrative law judge's ORDER is renumbered accordingly.

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

Dated and mailed May 7, 2004
murphti . rsd : 164 : 9  

/s/ David B. Falstad, Chairman

/s/ Robert Glaser, Commissioner

Merits

In the petition for commission review the respondent argues that it based its actions on its own investigation, and not on the complainant's arrest and conviction record. The respondent maintains that it conducted its own investigation into the matter and, because it believed the complainant was lying and was guilty of the crime, it decided to remove him from his position by placing him on paid vacation leave and, when that leave expired, on unpaid personal leave. The respondent maintains that the reason the complainant was not discharged while the charges were pending was that it believed he should have an opportunity to assert his innocence and rely upon the justice system to determine the consequences.

The commission is unpersuaded by the respondent's arguments, and it agrees with the administrative law judge that the decision to suspend and ultimately discharge the complainant was based on his criminal record. The respondent learned of the complainant's arrest at the same time it learned of the underlying conduct and, to the extent that it could be said to have performed any investigation, this consisted of a brief conversation with the complainant's fiancée, after which it concluded that she was telling the truth, and a brief conversation with the complainant, after which it concluded he was not. The complainant was not suspended so that the respondent could conduct further investigation, and indeed no further investigation was conducted. To the contrary, the complainant testified without rebuttal that prior to being suspended he asked his supervisor, Ruben Martinez, how much he wanted to know, and was informed, "I'm not concerned about the details. I'm not here to decide whether you're guilty or not guilty. I'm here to determine what charges have been brought so that I can make a decision based on how it's going to impact our business." (TR, at 182.) The complainant indicated that he thought he could plead down to a misdemeanor, and Mr. Martinez told him to let him know if he did so, because if he was indicted and charged with the crime there was a good chance he would lose his job. (TR, at 133.)

It is clear from the record that the reason the complainant was placed on a leave of absence was not in order to give the respondent an opportunity to decide whether it believed the complainant had engaged in unsuitable conduct, or to separate him from the workplace because it was convinced he had, but in order to wait for the disposition of the criminal charges against him, which would determine his employment status. Indeed, when the complainant asked about the status of his job he was told, "Well, the status of your job is no different now than it was two days ago other than you have some legal issues that you need to clear up. . . . I don't want to lose you as an AutoZoner, but the fact remains if you're convicted of this felony, we're going to terminate you." (TR, at 186.) When asked at the hearing whether, if the complainant had pled guilty to a misdemeanor, he would not have been in jeopardy of losing his job, Mr. Martinez responded, "Correct." (TR, at 231.) This testimony, elicited by the respondent's own attorney, leaves no doubt that it was the fact of the conviction, and not the complainant's underlying conduct, that was at issue. Had the complainant pled guilty to a lesser charge based upon the same facts, he could have kept his job. Thus, it was not the complainant's actions in engaging in sexual contact with a minor that cost him his job, but the fact that he was convicted of a felony as a result, which the respondent believed would have a negative impact on its business.

In its petition the respondent also makes the alternative argument that, even if the employment action at issue was based upon the complainant's arrest and conviction record, the circumstances of the arrest and conviction are substantially related to the circumstances of his position with the respondent. Again, the commission disagrees. A determination as to 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. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987); Goerl v. Appleton Papers, Inc. (LIRC, October 5, 1992). As a general rule, the circumstances of the offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required. County of Milwaukee, at 823-824.

The complainant was charged with and ultimately convicted of second degree sexual assault of a child. Wis. Stat. § 948.02(2) provides, as follows, "Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 is guilty of a Class C felony." As the administrative law judge indicated in his decision, the use of force is not an element of this crime. Rather, the key element of the crime is sexual contact with a minor, and the character traits revealed by having engaged in the crime are essentially those described by the administrative law judge: 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. (1)   While these are certainly reprehensible traits, a question is presented as to whether or not they are substantially related to the complainant's ability to safely perform the job of district manager of an AutoZone. The commission concludes they are not.

As district manager, the complainant was responsible for overseeing eight of the respondent's stores in Northern Illinois. Although the complainant had supervisory responsibilities over female employees, none of these employees was under age sixteen, nor was it shown that any were minors. The complainant also had some customer contact but, again, this did not involve juveniles. While one might assume that children occasionally do come into the store, considering the nature of the business it is reasonable to presume that they would be accompanied by their parents or other adults. 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.

In arguing that a substantial relationship exists between the circumstances of the crime and the district manager job, the respondent focuses not on the manager's contact with children, but with adult females. The respondent states that it would not be unreasonable for its female employees or customers to fear that the complainant was capable of repeating the sexual assault on them. The respondent further argues that the complainant has not discredited these reasonable and rational fears by presenting any evidence that he is not likely to repeat this sex crime with others at the employer. However, "substantial relationship" is an affirmative defense to be proved by the employer, and the complainant is not required to demonstrate a lack of substantial relationship. While the respondent has alleged that a substantial relationship exists based upon the complainant's contacts with female employees and customers, it has failed to demonstrate this is the case. As stated above, an essential element of the crime in question is sexual contact with a child, and there is no reason to assume that the safety of adult females would be jeopardized by the continued employment of the complainant as district manager. The acts set forth in the criminal complaint are considered non- consensual, and therefore unlawful, solely because of the victim's age, not because they involved violence or force, and the same alleged acts would not have resulted in criminal charges had they been directed at a person 16 years or older. (2)   Although the respondent did present the testimony of a 26-year old female employee, who stated that, after learning about the complainant's arrest, she did not feel comfortable being alone with him, even though she understood the charge involved a minor and did not involve the use of force, such testimony does not affect the outcome of this case. While it is understandable that co-workers who were aware of his criminal arrest and conviction record might be uncomfortable working with the complainant, lacking any reason to believe that their safety was compromised, this does not provide the respondent with justification for discriminating against the complainant.

In its brief to the commission the respondent seeks to distinguish the instant case from a previous commission decision, Thorson v. Rockwell (LIRC, Aug. 13, 1998). The complainant in Thorson was convicted twice of the same crime that is at issue here, second degree sexual assault of a child, but the commission found there was no substantial relationship between the conviction and the circumstances of the complainant's job as a machine operator. The respondent argues that, in contrast to this case, the record in Thorson contained expert testimony from a sex therapist that pedophiles are inclined to abuse children and that because someone is a pedophile presents no indication that the person would assault an adult. The respondent also points out that, in the Thorson case, minors were not allowed in the plant, which was surrounded by a fence and guarded to monitor those exiting and entering and, finally, that the complainant in Thorson had an unblemished work history.

However, the respondent's attempts to distinguish Thorson are unavailing. Notwithstanding the respondent's suggestion to the contrary, the complainant need not demonstrate that he is a pedophile who is only inclined to abuse children, where the elements of the crime itself and the character traits revealed do not suggest that he poses a danger to adults. Indeed, as was noted by the administrative law judge in the Thorson case, the sexual assault of a minor is a separate criminal act that involves its own special circumstances and conduct, and is not related to the ability to work with female co-workers. Regarding the lack of a guarded fence to keep juveniles off the premises, it is undisputed that unaccompanied juveniles do not frequent the respondent's premises, even without a guarded fence. The respondent does not employ minors, and it concedes that juveniles are not generally present in the store and, to the extent they are on the premises at all, are accompanied by their parents or other adults. Moreover, the crime at issue in this case does not involve child enticement or indecent exposure to children, and there is no reason to presume that the mere proximity of children is a circumstance likely to foster criminal behavior for the complainant. The complainant's crime was perpetrated in a home setting and involved a victim with whom he had a close personal relationship. While a conviction for sexual assault of a minor would clearly be related to the types of jobs in which one would work closely and in a position of trust with minors, a sales manager coming into incidental contact with children at a store has little opportunity to engage in the type of conduct for which the complainant was arrested and convicted and is unlikely to reoffend in that context. Finally, regarding the respondent's third basis for distinguishing this case from Thorson, it should be noted that the complainant here also had an unblemished work history, having worked for the respondent for seven years without incident, and the commission sees no reason to believe that he poses a danger to female employees or customers in the work place. Indeed, the fact that the respondent would not have discharged the complainant for the same acts had he been charged with a misdemeanor rather than a felony is further evidence of the lack of any substantial relationship between the circumstances of the crime and those of the job.

Damages

In its brief the respondent argues that the complainant did not make a reasonable effort to mitigate his damages and that his backpay award should be reduced. In support of this assertion, the respondent argues that the complainant admitted he had two or three job offers during the time he was on leave from the respondent and did not accept them due to the lower salary offered. The respondent contends that the complainant had a duty to accept those jobs, since they were of like quality to his position with the respondent, and that the complainant could have earned a salary in the "high twenties," thereby substantially reducing his backpay award. The commission does not find these arguments persuasive, for the reasons set forth below.

The respondent has the burden of establishing that the complainant failed to mitigate his damages. The respondent can do so by demonstrating that the complainant failed to make a diligent effort to seek new employment and that there was a reasonable likelihood that the complainant might have found comparable work by exercising reasonable diligence or that he unreasonably rejected proffered employment that was comparable to the job he had with the respondent. See, Mueller v. Schedulesoft (LIRC, Oct. 27, 2000); Ramos v. Stoughton Trailers (LIRC, Aug. 16, 2001). Regarding the former, the complainant testified that he submitted approximately eighteen to twenty resumes and applications during his six-month leave of absence to home improvement stores, dealership and parts departments, and establishments of that nature. The complainant's efforts in this regard do not appear unreasonable on their face, and the respondent failed to present anything suggesting that with greater efforts the complainant could have found comparable work sooner than he did.

Although the complainant initially indicated that there were two or three job offers, he corrected and clarified this testimony and explained that he had one job offer at an auto dealership in Wisconsin, which paid in the "high twenties" based on performance of the parts department. The complainant indicated that he refused the job because of the salary. The complainant's job with the respondent paid $41,500 a year with a potential bonus of seventeen and a half percent. The complainant also received other benefits from the respondent, such as stock options and the use of a company vehicle. The job which the complainant rejected was not shown to be a comparable position, in that the salary was substantially lower than that which the complainant had earned when working for the respondent. Moreover, while the complainant's position with the respondent was as district manager responsible for eight store locations, no evidence was introduced to establish what type of job the complainant would have had in the parts department of the auto dealership in question, and there is no support for a factual finding that it was or was not comparable to his most recent employment. Under the circumstances, the evidence did not establish that the complainant's decision to refuse the job offer was an unreasonable one. The commission additionally notes that, shortly after being discharged by the respondent, the complainant began working as a service advisor at an automobile dealership, at a salary rate of approximately $35,000 a year, with an opportunity for bonuses. Thus, it is clear that the complainant was willing to accept work in mitigation of his damages when an appropriate opportunity became available.

JAMES T. FLYNN, Commissioner, (dissenting):

I dissent from the majority's decision affirming the findings and conclusions of the administrative law judge (ALJ) in this matter. I do agree that the respondent, AutoZone, Inc. (AutoZone) suspended and ultimately discharged the complainant, Timothy Murphy, (Murphy) from his employment because he was arrested and convicted of the crime of sexual assault of a person under the age of 16 years. However, I cannot support the conclusion that in doing so AutoZone engaged in unlawful discrimination against this complainant.

Respondent's Independent Investigation

The respondent argues that it decided to suspend and discharge Murphy because he violated AutoZone's employee conduct policy and that its decision was based upon their independent investigation into the sexual assault allegations against Murphy and not upon either Murphy's arrest or conviction records. Indeed, it is uncontroverted that AutoZone did discuss Murphy's conduct with the complainant himself as well as the victim's mother. Standing alone, the information obtained by AutoZone from these inquiries could have formed a sufficient basis to discharge Murphy for the violation of the company's employee conduct policy. Surprisingly, however, the unambiguous testimony of AutoZone Regional Manager, Ruben Martinez, clearly established that the only reason Murphy was suspended and discharged was because he was arrested for and subsequently convicted of a felony sexual assault. Mr. Martinez testified that if Murphy had been convicted of a misdemeanor he would have retained his job. (TR, at 185-186, 231).

Statutory Affirmative Defenses

Despite the weakness of the factual basis in support of its independent investigation argument, AutoZone stands on much firmer ground in asserting it did not unlawfully discriminate against Murphy. Under terms of the Wisconsin Fair Employment Act (the Act) conduct that would otherwise constitute unlawful employment discrimination based on criminal arrest or conviction records is excluded from the Act's definition of discrimination, if there is a "substantial relationship" between the "circumstances of the crime" and the "circumstances of the job". These affirmative defenses are set forth in Wisconsin Statute § § 111.335(1)(b) and (c) which provide in pertinent part as follows:

"(b) Notwithstanding sec. 111.322, 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.

(c) Notwithstanding sec. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:

(1) 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;" (emphasis added)

The legislative purpose behind these statutory affirmative defenses was analyzed in the case of County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), where the Wisconsin Supreme Court recognized the goal of achieving rehabilitation while avoiding the real danger of criminal recidivism. The court reasoned that,

"It is evident that the legislature sought to balance at least two interests. On the one hand, society has an interest in rehabilitating one who has been convicted of crime and protecting him or her from being discriminated against in the area of employment. Employment is an integral part of the rehabilitation process. On the other hand society has an interest in protecting its citizens. There is a concern that individuals, and the community at large, not bear an unreasonable risk that a convicted person, being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he had been previously convicted, will commit another similar crime." Id. at 821. (emphasis added) (footnote omitted)

The Court went on to conclude that,

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience." Id. at 823. (emphasis added)

It should be noted that the statute does not make the availability of these affirmative defenses rest upon the good faith of the employer in making employment decisions covered by the Act. Rather, they are solely dependent upon the relationship that the criminal conduct bears to the circumstances of the job. Otherwise, society's interest in its own protection against the danger of criminal recidivism would become secondary to considerations about the motivation of the individual employer. Thus, even if AutoZone suspended or discharged Murphy out of pure animus for his despicable conduct or for the more practical fear of damage to its corporate image, the respondent may still assert the benefit of the affirmative defenses embodied in the Act.

Elements of the Crime vs. Circumstances of the Crime

In the instant case the ALJ and the commission majority determined that the circumstances of Murphy's crime are not substantially related to the circumstances of his job at AutoZone. Their analysis may be summarized as follows:

1. A "key element" of the crime of sexual assault of a person under 16 years is the age of the victim.
2. Persons under the age of 16 years are not frequent visitors to the respondent's premises.
3. Therefore, no substantial relationship exists between the circumstances of the crime and the circumstances of Murphy's job.

4. This approach focuses too narrowly upon the age of the victim in defining the circumstances of Murphy's crime. No doubt the commission majority and the ALJ rely upon Gibson v. Transportation Commission, 106 Wis. 2d 22, 315 N.W.2d 346 (1983). In Gibson, the court "suggested" that one need look no further than the "elements" of the crime, as set forth in the criminal code, in determining "the circumstances of the crime" component of the affirmative defense analysis contemplated by the Act. However, the difficulty with an "elements only" definition of the "circumstances of the crime" (as some suggest Gibson requires) is that it ignores the plain language of the Gibson decision where at page 349 of its opinion the court held that:

"Our decision in this case does not mean that the particular factual circumstances of the crime upon which a felony conviction was based may never be relevant to a school bus driver licensure decision. If this were the case, the "circumstances of which" language in sec. 111.32(5)(h)2b, Stats., would be superfluous and it is clear from the legislative history of the statute that the legislature specifically intended to include such language in the statute." Id. at 349. (footnote omitted)

In County of Milwaukee, 139 Wis. 2d 805, 826, the court addressed the "elements only" approach suggested by Gibson and explained that focusing on the elements of the crime simply helped to elucidate the circumstances of the offense. The purpose of examining the elements of the crime is to avoid a fact-dominated definition of "circumstance of the crime" that would detract from the goal of determining whether the circumstances of the job may foster a repeat of a "similar" crime on the part of the individual, not necessarily an identical one based upon a fact for fact comparison. The important question is the opportunity for re-offending at the proposed place of employment. The court also determined that "there must be a semblance of practicality" about how an employer goes about determining whether the circumstances of the crime substantially relate to the circumstances of the job. Id. Thus "the inquiry does not turn on superficial matters," Id., but rather "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." Id. at 824. Such factual details as the hour or the date the offense was committed or the clothes worn or the type of weapon used or whether there was one victim or a dozen are not the proper focus. Rather, "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." Id. at 824. In making such an assessment the court reasoned that,

"the full assessment of what may be termed the 'fostering' circumstances may, at times, require some factual exposition. For example, in 'disorderly conduct' cases the type of offensive circumstances is not as explicit as it is in sexual assault, armed robbery, theft or embezzlement conviction for example. However, such factual inquiry would have as its purpose ascertaining relevant, general, character-related circumstances of the offense or job." Id. at 82. (emphasis added)

In summary, in some cases an examination of the elements of the crime alone may be sufficient to make this determination, but in others an examination of general underlying facts in addition to the crime elements may be required. Regardless of the methodology used the result must be an ascertainment of the "fostering circumstances" as it relates to the opportunity for criminal behavior, the reaction to responsibility or the character traits of the person.

The Victim's Age Must Not Control the Outcome

In the instant case, the ALJ and the commission majority have equated the elements of the crime with the "circumstances of the crime" as being determinative of both the character-related circumstances of the offense and job. In doing so the ALJ and the majority have focused almost exclusively upon the age of Murphy's sexual assault victim.

Indeed, there are only two elements of the crime of Second-Degree Sexual Assault of a child under Wis. Stat. § 948.02(2).

(1) sexual contact or intercourse,
(2) with a person who has not attained the age of 16 years.

If these statutory elements of the crime were all that an employer could look to for guidance in determining the "circumstances of the crime," then the employer would be trapped by the age distinction of the statute as was the ALJ and commission majority in this case. However, if employers are to apply a "practical test," as envisioned by the court in County of Milwaukee, they will not presume that an employee arrested or convicted of sexual assault of a minor would necessarily limit his next choice of victims to minors simply because his last victim was a minor. To focus upon the age of Murphy's victim in this way is to do exactly what the court in County of Milwaukee cautioned against, that is, equating a fact, in this case the age of the victim (albeit also an element of the crime) with the character traits of the individual, his reaction to responsibility and his opportunity for "similar" criminal activity. Instead the legitimate concern of the employer and society as a whole is whether this individual will be afforded the opportunity to commit a similar crime, not necessarily the same crime. Therefore, a responsible employer must look beyond the elements of the crime where an examination of those elements do not fully describe the character traits of the individual, his reaction to responsibility and his opportunity to commit a similar crime.

Surely the sparse elements of second degree sexual assault of a child are of the type of crime circumstances envisioned by both the Gibson and County of Milwaukee courts as requiring at least some broader evaluation. The reasons for this position are to be found in the very analyses of the ALJ and the commission majority in this case.

Sexual Assault of a 13 Year Old is Not a Consensual Crime

By focusing exclusively upon the bare elements of the crime, the ALJ and the commission majority have determined that Murphy's crime was a "consensual sexual act." The ALJ and the commission majority specifically found that,

"The crime involves consensual sexual acts with a person under the age of 16. There is no evidence required or element of the crime that requires the use of force, coercion, or status to accomplish the crime." (ALJ Decision, p. 2, par. 5) (emphasis added)

The majority in conducting a similar analysis has also reasoned that,

"The acts set forth in the criminal complaint are considered non-consensual, and therefore unlawful, solely because of the victim's age, not because they involved violence or force, and the same alleged acts would not have resulted in a criminal charge had they been directed at a person 16 years or older." (Majority Decision, p. 5)

". the charge involved a minor and did not involve the use of force." (Majority Decision, p. 5)

Looking at Murphy's criminal acts as consensual ones leads the ALJ and the majority to conclude that there would be no danger of similar criminal conduct by Murphy at AutoZone because, "Should the Complainant have a consensual sexual relationship with an adult female employee, it would not be a violation of the criminal law." (ALJ Decision, p. 9) (emphasis added)

Such reasoning is flawed because it assumes:

1. that Murphy's victim consented to his sexual actions, and
2. that Murphy will only engage in sexual activities when the other person consents.

We should not presume that because Wis. Stat. § 948.02(2) does not require proof of lack of consent that Murphy's victim must have consented or that force, coercion or control was not used against her. Indeed it may be conversely argued that Wis. Stat. § 948.02(2) does not require proof of lack of consent because by operation of law Murphy's victim could not give meaningful consent. Therefore Murphy's acts were without the consent of the victim, as a matter of law. (3)   Not only was Murphy's victim incapable of giving consent, as a matter of law, there is NO evidence that she did consent as inferred by the ALJ but there is some evidence that allows us to infer the opposite.

Murphy's victim did not testify in this matter. However, the Amended Criminal Complaint (Ex. 10) is replete with factual allegations about Murphy's sexual assault of his fianc‚e's daughter when she was both 12 and 13 years of age. The factual basis set forth in support of the Criminal Complaint contains at least one admission by Murphy that he ".stood in front of the bed and had her suck on his penis." The use of the word "had" suggests control, direction, or possibly coercion or force.

Character Trait Analysis

Murphy's character traits were assessed by the majority of the commission and the ALJ as relating primarily to his interaction with children. Because Murphy's criminal act involved a young girl as his victim, they reason that the character traits revealed by Murphy's crime are that he is untrustworthy with children, lacks the ability to accept responsibility over children, and places his own selfish desires ahead of the welfare of children. (Majority Decision, p. 4; ALJ Decision, p. 9) The majority and the ALJ go on to reason that because Murphy's position at AutoZone does not normally involve contact with children it cannot be said that the circumstances of his job substantially relate to the circumstances of the crime and therefore AutoZone failed to prove the affirmative defense.

Again the opportunity for Murphy to commit a similar crime is being restricted to an unnecessarily narrow view of Murphy's character traits as viewed through an "elements only" look at his criminal act -- i.e., the age of the victim. An equally, or even more compelling, argument can be made for the broader assessment of the character traits revealed by Murphy's criminal actions, actions defined not only by the elements of the crime but also by a cursory review of the criminal complaint that served as the basis for his conviction. Such an examination need not focus upon a detailed inquiry into the facts of the criminal case as was rejected by the court in County of Milwaukee but rather upon a limited factual inquiry for the purpose of ascertaining relevant character-related circumstances of the crime or job. Id. at 824-825. Thus an examination of the crime elements and the simple factual basis as set forth in the Amended Criminal Complaint (Ex. 10) suggest that Murphy possesses the following character traits:

1. Murphy is a person driven by his own sexual gratification.
2. Murphy has no hesitancy to humiliate others (exposing himself and masturbating in front of or on others).
3. Murphy will selfishly place his own sexual gratification over the obligations he has to others, especially those who are in a subservient position to him.
4. Murphy may use force in seeking such gratification. (This was not a consensual crime.)
5. Murphy is untrustworthy with people over whom he has authority and control.

Opportunity to Commit Similar Crimes

Thus, even the adults employed by Auto Zone, over whom Murphy exercises authority and control in his position as district manager, and with whom he occasionally spent time alone may have a legitimate concern that Murphy may attempt to have sexual contact with them without their consent, or may simply expose himself to them while he masturbates in front of them.

While the fears of Murphy's subordinates at AutoZone may be reasonable, the Respondent need not offer any evidence of their fears because whether the circumstances of the crime substantially relate to the circumstances of the job does not depend upon the subjective feelings of others in the workplace, but rather whether Murphy's continued employment will afford him the opportunity to commit similar (though not identical) crimes in the future given the character traits and acceptance of responsibility evidenced by the criminal act he committed.

However, regardless of whether other employees actually have these concerns, society does or should because to put Murphy back into such a position of authority and control may offer him, a person of such limited self control, the opportunity to commit a similar crime. What other similar criminal activity might be a legitimate concern to society and this employer based upon Murphy's character and the circumstances of the job? The employer would be justly concerned about Murphy committing acts of sexual assault against its employees of any age, or committing acts of indecent exposure, as just two examples. Testimony in the record has established that Murphy has authority over other female employees and he has periods of time where they are alone with him and under his control. Murphy has already shown that he is willing to force himself upon those over whom he has control for his own sexual gratification.

Conviction is Not a Bar to All Employment

The ALJ correctly asserts the obvious -- that being that a criminal conviction should not be a bar to all employment. It should be equally obvious that Murphy's conviction will not bar him from employment in the future. However, at least in the near future it may justifiably bar him from employment situations where he has authority and control over female employees and customers at times when he may be alone with them. To be sure there are many other jobs available to Murphy.

__________________________________________
/s/ James T. Flynn, Commissioner

cc: 
Attorney John C. Carlson, Jr.
Attorney Walter W. Christy

Appealed to Circuit Court.  Affirmed January 18, 2005.

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(1)( Back ) While the dissenting commissioner suggests that the character traits revealed do include the possible use of force in seeking sexual gratification, the use of force is not an element of the crime of which the complainant was convicted. Moreover, even if the commission were to abandon the "elements only" approach and refer to the criminal complaint in an attempt to obtain additional facts about the specific incident, as the dissent has done, it would still not arrive at the conclusion that force was used. The statement that the complainant "had" the victim perform a sexual act is simply too vague to warrant a conclusion that he "had" her do so by use of physical force or coercion, and nothing else in the complaint suggests this was the case.

(2)( Back ) The dissent indicates that the commission should not limit its analysis to the crime the complainant committed, but should consider similar crimes which the complainant might potentially commit, including crimes against adult victims. However, the majority believes that the dissent is losing sight of the fact that the crime for which the complainant was convicted involved an act that was criminal only because a juvenile was involved. Moreover, while it may be appropriate to go beyond the very particular circumstances of the specific crime committed in order to ascertain whether the circumstances of the employment would foster other types of criminal activity by the complainant, it is inappropriate to deny the complainant employment opportunities based upon mere speculation that he might be capable of engaging in a broad range of crimes whose only relationship to that for which he was convicted is that they involve sex. In determining whether a complainant's criminal conviction is substantially related to a particular job, the question is not whether there is any remote possibility that he may engage in additional criminal conduct, but rather, whether in the particular job "the risk of recidivism is too great to ask the citizenry to bear." See County of Milwaukee, 139 Wis. 2d 805, 823.

(3)( Back ) It is generally held that the victim of a statutory rape is incapable of giving consent. 65 Am. Jur. 2d RAPE § 13 (2003). See also State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992), where at page 498 of its opinion the supreme court held that a minor victim of sexual assault is conclusively presumed to be unable to give informed consent to sexual activity and this presumption may not be rebutted by other evidence.

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