CRAIG RUDOLPH MATOUSEK, Complainant

SEARS ROEBUCK & CO.
(SEARS PARTS & REPAIR), 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:

Paragraphs 2 through 4 of the ORDER of the ALJ are deleted and the following is substituted therefor:

2. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee from the date of discharge until June 24, 2004, the date as of which the complainant would have been terminated due to his inability to be available for work. The back pay shall be computed based on an hourly wage of $9 per hour and a 38 hour week. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings, including interim earnings from complainant's employment with Sittel Technical Services, during each calendar quarter. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

3. 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 Order. 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).

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

Dated and mailed February 17, 2006       [Note: Subsequent case history]
matoucr . rmd : 110 :

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Respondent Sears Roebuck & Company ("Sears") operates stores which provide parts, repairs and service for appliances, power tools and other items purchased from Sears. Sears hired Complainant Craig Rudolph Matousek ("Matousek") to work as a customer service person in its Madison Parts and Repair Center store in June, 2003. The job primarily involved waiting on customers at a counter in the front customer service area of the store.

Matousek had been convicted in May, 2000 of repeated sexual assault of the same child, a violation of Wis. Stat. § 948.025. The conduct for which Matousek was convicted occurred in 1999 and involved Matousek having his girlfriend's six year old daughter touch his penis, on several occasions. When he applied for the job, Matousek informed Sears that he had been convicted of a crime involving sexual contact with a minor. Approximately a month after hiring Matousek, however, Sears discharged him after receiving the results from a background check which provided specific confirmation of his conviction.

It is not disputed, that the respondent terminated the complainant from his employment because of his conviction. The respondent relies on the affirmative defense, that the circumstances of the offense for which the complainant was convicted were substantially related to the circumstances of his employment.

The respondent argues that the job presented Matousek with the opportunity for unsupervised access to young children who came into the store with their parents and went to the corner of the display area where a television set was playing children's programming. It also argues that the job would involve contact with minors because persons under the age of 18 were employed by Sears in the store. However, the ALJ found, and the commission agrees, that Matousek never had an opportunity to be alone with children who accompanied an adult to the store. The record showed that he primarily worked behind the counter, assisting adult customers. The respondent failed to offer any evidence which would establish that if the children of such customers went to the corner of the display area where the television set was playing, they would have been out of sight or supervision of their parents. In addition, it can be inferred that in such cases, the complainant would be involved at all times in assisting the adults who had come into the store as customers; this too would ensure that he would not have access to or opportunities to have contact with the children of those adults, without their presence.

Ultimately, the respondent's argument that Matousek would have had an opportunity for contact with children in the store, relies on making assumptions about such things as how large the store area was, where the counter area was in relation to the display area where the television was, whether there were clear lines of sight between those areas, and whether there would be other customer service employees on duty at the same time as the complainant waiting on customers and thus freeing the complainant to move around the store. However, "substantial relationship" between circumstances of an offense and circumstances of a job is an affirmative defense, on which the employer bears the burden of proof. For this reason, reliance on assumptions is inadequate. The record here is simply not adequate to prove that Matousek would have had unsupervised access to children.

The respondent also failed to establish that the complainant worked with minors. The commission consulted with the ALJ in order to obtain her impressions concerning the credibility of witnesses. The ALJ indicated that she did not credit the testimony by the employer's witness that a minor had been employed at the store during the time the complainant worked there, and she indicated that she believed the testimony of the complainant that he never worked with, and never met, the one person who the respondent asserted had been employed at the store while under age 18.

This case is similar to Murphy v. AutoZone (LIRC, May 7, 2004), in that it involves customer contact work in a retail setting where because of the nature of the products and services, "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." In Murphy, the commission noted, "[w]hile 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 re-offend in that context." Matousek's job was not one in which he "work[ed] closely and in a position of trust with minors," but was rather one in which, as in Murphy, he at most came into incidental contact with children at a store and had little opportunity to engage in the type of conduct for which he was convicted.

While it agrees with the ALJ's decision on the merits, the commission does not agree with the ALJ's decision to cut off the complainant's entitlement to back pay based on his termination from his subsequent employment at Sittel Technical Services. The ALJ's Memorandum Opinion states that the complainant's subsequent employment was terminated because of his misconduct. While his subsequent employment was terminated, the conclusion that this was because of "misconduct" is not substantiated by the record. The record only indicates that the complainant was terminated for disconnecting a telephone call between himself and a customer without getting a manager first. Just because an employee is discharged from a subsequent job does not necessarily establish that they failed to reasonably mitigate their damages arising from a previous act of discrimination. U. S. Paper Converters v. LIRC and Bodoh, 208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997) (complainant did not fail to exercise reasonable diligence in mitigating damages when fired from her subsequent employment for three absences which, under the circumstances, were understandable). There is not enough evidence in the record here about the rules and expectations the complainant was subject to in that job, to justify a finding that his actions were unreasonable or wrongful.

NOTE: The respondent argues that it should not be forced to employ the complainant. The fact is, that in this case, it has not been. Because of occurrences subsequent to the termination which are described in the ALJ's decision, the complainant would have become unavailable for employment in June, 2004. The ALJ properly concluded that because he would have been terminated at that time as a result of his inability to be available for employment, an order of reinstatement was not appropriate.

cc: Attorney Michael J. Ganzer

Appealed to Circuit Court.  Vacated and remanded, September 29, 2006.  [LIRC decision following remand hearing]

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