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. (1)
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. Sears Roebuck & Co. (Sears) is a business that operates Sears Parts and Repair Stores in the United States. One of Sears' Parts and Repair Stores is located in Madison, Wisconsin. At the times material herein, the principal business engaged in at the Madison Sears Parts and Repair Store was providing repair service for Sears appliances and tools of various kinds, ranging from things like lawn mowers to television sets to larger appliances such as washers, dryers and freezers. In addition, the store sold a range of parts and supplies for such appliances. The store also sold used and reconditioned appliances themselves.
2. On or about June 6, 2003, Craig Rudolph Matousek (Matousek) came to the Sears Parts and Repair Store in Madison to apply for a job as a non-commissioned sales person. At that time, Matousek met with and was interviewed for that position by Jill Burkard, a Sears regional human resource manager.
3. During the June 6, 2003 interview, Burkard described the general duties of the position to Matousek. Following the interview, Burkard felt that Matousek had interviewed well.
4. The next step in the hiring process was for Matousek to have an interview with the sales manager of the Madison Sears Parts and Repair Store, Andrea M. Harvey. Matousek interviewed with Harvey on or about June 10, 2003. In this interview, Harvey discussed the job duties of the sales position with Matousek, and she had Matousek complete a written application for employment.
5. On his written application for employment, Matousek checked "yes" to a question asking whether he had been convicted of a crime within the last seven years, and he wrote "will discuss" in response to the application form's request for details of a "yes" answer. At this point in the interview, Matousek then closed the door and told Harvey some information about his conviction record. The extent of the detail which Matousek went into in informing Harvey about his conviction and the circumstances of the offense, was to tell her that he had been in a room with a minor child and was undressed, that he was accused of being a sex offender, that he had been convicted of molestation, and that he had served one year in jail and was on probation for eighteen or nineteen years.
6. During the June 10, 2003 interview, Harvey offered Matousek the sales person position. Harvey informed Matousek that Sears performed background checks on all prospective employees, and she had him complete a form authorizing a background check to be completed on him. Harvey told him that his employment could be terminated if anything came back on the background check. Matousek accepted the non-commissioned sales person position.
7. The information which Matousek had provided to Harvey related to Matousek's conviction on May 22, 2000 of one count of repeated sexual assault of the same child, in violation of Wis. Stat. § 948.025(1). The elements of the offense of repeated sexual assault of the same child involve the commission of three or more offenses under § 948.02(1), First degree sexual assault of a child, which applies to sexual contact or sexual intercourse with a person who has not attained the age of 13 years, or § 948.02(2), Second degree sexual assault of a child, which applies to sexual contact or sexual intercourse with a person who has not attained the age of 16 years, where the offenses are committed against the same child. In Matousek's case, the conviction was premised on his having committed three or more violations of Wis. Stat. § 948.02(1), First degree sexual assault of a child. Matousek's conviction was subject to the enhancement provided for in § 948.025(2m) for violations of § 948.025(1) in which the person committing the assault is responsible for the welfare of the child who is the victim of the assault. (2)
8. Matousek had been a friend of a woman who had three daughters. Matousek met this woman through a church they both attended. He had been a friend of this woman, and acquainted with her daughters, since approximately 1994. Starting at that time, Matousek began to become close to one of this woman's daughters, B., who had been born in December, 1992. Matousek would periodically visit with the woman and her daughters in her home. Beginning in 1999, when B. was 6 years old, Matousek began offering to take her out with him to engage in recreational activities. The woman thought that Matousek was being a sort of "big brother" to B., and she trusted him and allowed these interactions. Thereafter, on approximately nine occasions in 1999, Matousek would take B. out and spend time with her in such activities as going to movies, going swimming, and going to the health club. On every occasion on which Matousek took B. out to these activities, he would also take her back to his residence afterwards. On these occasions he would undress and have B. masturbate him with her hands. On some of these occasions, other kinds of sexual contact also occurred. These events came to light when, in January, 2000, B. told her sister and her sister told their mother. Matousek's arrest and conviction followed.
9. As a result of his conviction, at all times material herein Matousek was subject to conditions of parole which included the requirements that he register as a sex offender, that he not have contact with anyone under 18 years of age without his probation agent's prior approval, that he report "incidental" contact with persons under 18 to his probation agent on the next working day, that he not be in any places where children congregate, including but not limited to parks, playgrounds, beaches, fairs, malls, arcades, etc., unless with approval in advance or with a probation-agent-approved adult sober chaperone, that he not initiate or maintain any friendship or relationship with an adult who has minor children unless specifically approved by the probation agent, and that he not initiate or maintain any employment which brings him into contact with minors.
10. At the time the decision was made to hire Matousek, Sears' knowledge of the circumstances of Matousek's offense was limited to what Matousek had told Harvey during his interview with her on June 10, 2003. In this interview, Matousek had not told Harvey that his offense involved a 6-year-old child, that the child had touched his penis, or that there had been repeated sexual assault of the child; he also had not told her that he was under any restrictions against working with minors.
11. Matousek began working as a non-commissioned sales person at Sears Parts and Repair Store in Madison on June 12, 2003.
12. The non-commissioned sales person job for which Matousek was hired generally involved waiting on and assisting customers who needed parts for or repairs on Sears appliances or who were interested in purchasing used appliances available for sale at the store. The sales person's duties could include helping customers carry heavy items between the customer's car and the store, writing up service contracts, and assisting customers interested in buying televisions and other products that were on display in the store.
13. The Madison Sears Parts and Repair Store in which Matousek worked was located in a large single-story building, occupying a total of over 27,000 square feet in that building. It contained a number of separate rooms and areas. Matousek worked in the public sales area in the front.
14. The front public sales area in which Matousek worked consisted of a roughly rectangular room about 65 feet by 33 feet in size. The room was brightly lit. The room contained shelving around its outer perimeter, and it also contained service counters where orders were taken and rung up. In addition, the room also contained five shelving units, 56 inches in height, three of which were approximately 16 feet long and two of which were approximately 10 feet long, as well as areas where products were stacked in bulk. The arrangement and location of these shelves and product stacks was such that from any particular location in this room, they would partially block lines of sight to at least some other areas of the room at or below the approximate height of the shelves.
15. The front public sales area in which Matousek worked had a door in the middle of the front wall which opened on to the parking lot in the front. It also had a set of large swinging double doors in a side wall which opened on to a warehouse space, of approximately the same size. This warehouse space in turn had several openings on to the rear of the building. This rear area included 7 small offices, 2 supply closets, a coat closet, 2 bathrooms, a janitor's closet, a lunchroom, a training room, a computer room, several enclosed specialized warehouse areas, and a very large, open warehouse area. Although his normal working location was the front public sales area, Matousek would have had access to all of the areas in the rear of the building.
16. During Matousek's normal working hours, there would be approximately 9 employees on duty. This would include approximately 3 or 4 employees (including Matousek) working in the front sales area.
17. In the course of his work, Matousek would normally be working in any and all of the parts of the front sales room, engaged in such duties as stocking merchandise, picking out merchandise for customers, demonstrating items for customers, and retrieving parts from the back of the building. He might also at times go out to a customer's car to look at or get an appliance.
18. The store was open to and was routinely patronized by members of the general public. On a regular basis, customers patronizing the store would be accompanied by their children. While he was working at the Sears Parts and Repair Store, Matousek came into contact with children.
19. At all times material herein, there was an area of the front sales room in which a number of television sets were kept operating all the time. These televisions played cartoons or children's movies during the store's operating hours. Children who were present in the store with their parents would sometimes go over and sit on the floor and watch television in this area while their parents were engaged with store staff on the business which had brought them there. While he was working at the Sears Parts and Repair Store, Matousek observed children go over and watch these televisions at least once or twice a week. There would be times when a sales person would be working with a customer, and the customer's child would be left over in the television area.
20. On some occasions, children aged approximately 11 to 14 came in to the store to buy batteries and light bulbs. On occasions, teenagers aged 16 or 17 would come in to the store to pick up items for their parents while their parents waited outside in the car.
21. During the time that Matousek worked at the store as a non-commission salesperson, in June-July 2003, there was another non-commission salesperson employed by and working at the store whose date of birth was June 12, 1986 and who was thus 17 years old.
22. On June 24, 2003, an employee who worked for Burkard received a fax from U.S. Mutual, the company with which Sears contracted to perform background checks on employees and to make hire recommendations to Sears. The fax from U.S. Mutual showed that Matousek had been convicted on May 22, 2000 of a felony for repeated sexual assault of the same child. The report showed that Matousek was found guilty and was sentenced to one year in jail and 20 years of probation. The cover sheet of the fax from U.S. Mutual recommended that Matousek not be hired "per Sears guidelines."
23. At some point on or after June 24, 2003, Burkard reviewed the fax report about Matousek from U.S. Mutual. After reviewing the report, Burkard decided to terminate Matousek's employment.
24. On Wednesday, July 9, 2003, Burkard came to Sears Parts and Repair Store in Madison. Burkard told Matousek that he was being terminated because of his conviction record. Burkard told Matousek that he would be paid for the last two days of the work week but Matousek had to leave the store immediately. In accordance with Burkard's directions, Matousek left the Sears Parts and Repair Store on July 9, 2003 and did not return.
25. Sears terminated Matousek's employment because of his conviction record.
Based upon the FINDINGS OF FACT made above, the commission makes the following:
2. Craig Rudolph Matousek was an employee of Sears within the meaning of the Act.
3. The circumstances of Matousek's conviction for repeated sexual assault of the same child was substantially related to the circumstances of his position as a non-commissioned sales person at the Sears Parts and Repair Stores in Madison, Wisconsin, within the meaning of Wis. Stat. § 111.335(1)(c)1.
4. Sears did not discriminate against Matousek on the basis of conviction record in violation of Wis. Stat. § 111.335(1)(c)1. when it terminated his employment.
Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:
The complaint in this matter is dismissed.
Dated and mailed February 28, 2007
matoucr . rrr : 110 :
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
There is no dispute that Sears discharged Matousek because of his conviction record. The case turns on the question of whether the offense for which Matousek was convicted was "substantially related" to the job in question.
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 and Serebin, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987)
Matousek was charged with and ultimately convicted of one count of repeated sexual assault of the same child, in violation of Wis. Stat. § 948.025(1). This involved, in Matousek's case, commission of at least three offenses of sexual assault of the same child. (3) The conviction also fell under § 948.025(2m), for cases in which the person committing the assault was responsible for the welfare of the child who was the victim of the assault. The commission has noted that the character traits revealed by the offense 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. Murphy v. AutoZone (LIRC, May 7, 2004). The job involved in this case was a direct customer service position in a retail establishment patronized by members of the general public.
When this case was originally before the commission, it concluded that the record did not establish a substantial relationship between the circumstances of the conviction and the circumstances of Matousek's employment. This decision was vacated on judicial review and the matter was remanded for further proceedings consistent with the court's decision. The commission ordered further hearing, to address what the court considered to be deficiencies in the factual record necessary to a reasoned analysis of the relationship between the offense and the circumstances of the employment.
The commission has now reached a different result because, considering the additional evidence received into the record at the remand hearing, the commission concludes that the particular circumstances of this job presented too great a risk that Matousek's tendencies and inclinations to behave in a certain way would be likely to reappear if he were employed in those circumstances.
County of Milwaukee v. LIRC and Serebin teaches that the focus is on assessing the risk that the circumstances of the employment may lead to another offense:
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.
139 Wis. 2d at 821. It might be argued, that it would be unlikely that Matousek would repeat his exact offense with a young child right there in the Sears store. Yet the fact remains, that Matousek's commission of this offense evidences traits and inclinations creating a risk that he would commit sexual offenses against children when an opportunity presented itself. There is clearly some risk of Matousek reoffending if and when he had an opportunity for contact with children, and he would have such opportunities here. Based on the evidence as to the physical layout of the store, it is clear that there were a number of locations in the store where a child, and an adult bending over or kneeling down beside them, would be out of the line of sight of others in the store. It would be entirely possible that Matousek could expose himself to a child, or have improper physical contact with a child, in such a shielded location. That a parent or other employee might be nearby would not necessarily provide any assurance that this kind of offense would not take place, since such an incident could occur in no more than a few moments. Similarly, Matousek could engage in such contact out of the sight of others if he was able to induce a child to come with him through the doors to the warehouse space adjacent to the sales floor. Again, this could occur in no more than a brief period of time. County of Milwaukee v. LIRC and Serebin does not state that the test is whether it is "likely" that the convicted person will reoffend, but rather whether there is an "unreasonable risk" of this occurring. The specific and comprehensive nature of the probation restrictions imposed on Matousek show how the criminal justice system assessed that risk. Whether that risk was an "unreasonable" one is ultimately a matter of judgment. The commission believes that, considering all of the circumstances here, it was.
The commission also believes that the risk that Matousek would molest a child in the Sears store is not the only grounds for concern about Matousek working in this job. The commission reads County of Milwaukee v. LIRC and Serebin, as not being limited exclusively to concerns that the individual will commit another similar crime on the physical premises of the employer. The Court's description of the relevant concern describes risk presented to "individuals" generally, and to "the community at large". The impact of a further offense on the individuals victimized, and on the community at large, will be equally severe regardless of when or where any further crime takes place. This reading of County of Milwaukee v. LIRC and Serebin, is also supported by that decision's description of the purpose of the "substantial relationship" test:
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, is the purpose of the test.
(emphasis added). In other words, the test is not limited to asking simply whether certain criminal behaviors will or will not recur in a workplace in which someone may find employment. Rather, it asks whether having that individual in that workplace will likely result in reappearance of the tendencies and inclinations to behave in a certain way. The cause for concern is that if such tendencies and inclinations do arise, another crime may be committed. It is that possibility that another crime may be committed, rather than the matter of exactly where and when it may be committed, that is significant.
A real reason for concern here, is that the circumstances of this job would place Matousek in a position where he could meet and interact with young children. An argument that the kinds of interactions which could take place in the store would be harmless, may have the appearance of persuasiveness, but this is only because it ignores the question of what such interactions could lead to. Even in a relatively brief period in which a parent is occupied with another salesperson, Matousek would have an opportunity to strike up conversations with children, learn their names, chat with them about their interests, and acquire information about them. Given the evidence in the record as to the physical environment of the store (including large shelf units which would block lines of sight to a small child and an adult kneeling near them) and as to the interactions which might take place there (adult customers going out to their cars with other salespersons to retrieve appliances, other salespersons going into the back area to retrieve parts), it would be reasonable to anticipate that such opportunities might not be that brief, and that such opportunities would arise with some regularity. Considering as well the evidence that the nature of the store's business was such that in a fair number of cases customers (and thus, potentially, their children) would be visiting the store twice over a period of time, once to drop off an appliance and again some days later to pick it up, the possibility is presented of repeated encounters of this kind with the same children. It is this potential for the development of contact and even familiarity between Matousek and young children that is reason for concern, because it could provoke in Matousek "the tendencies and inclinations to behave in a certain way."
It is not a persuasive objection, to point out that this kind of analysis involves some degree of speculation. It is the very nature of the substantial relationship test, that it involves speculation. Any assessment of risk necessarily does so. The commission believes that in this case the speculation is reasonable.
The commission notes that this case bears some general factual similarity to Murphy v. AutoZone (LIRC, May 7, 2004), a case in which an opposite result was reached. Murphy also involved an offense of sexual assault of a minor and a job involving some contact with the public in a retail setting. In Murphy the commission concluded that there was no substantial relation between the circumstances of the offense and the circumstances of the job. The commission reaches a different conclusion here because the facts, particularly those concerning the circumstances of the job, are materially different.
In Murphy, the offense involved Murphy having sexual contact with a 13-year-old female. With respect to the circumstances of the employment, Murphy was not employed directly in retail customer service, as was Matousek, but was instead a district manager, responsible for overseeing eight of the respondent's stores. While he could end up having contact with customers, his involvement in direct customer contact was not constant as was Matousek's, but was occasional, occurring only when needed because a store he was visiting that day was particularly busy. The findings of fact in that case included the finding that Murphy "did not normally have contact with juveniles" and "did not have contact with females under the age of 16 in the course of his employment."
Importantly, in Murphy the employer did not contend that there was any particular risk presented by virtue of some opportunity Murphy had to come into contact with and commit offenses with children coming into stores with their parents, and this issue was neither considered nor decided. Rather, the employer argued that a substantial relationship existed based upon Murphy's contacts with adult female employees and customers, and the commission's decision was issued in this context. The commission stated that there was no reason to assume that the safety of adult females would be jeopardized by the continued employment of the complainant as district manager.
In this case, unlike Murphy, the question is precisely whether the employee's offense of repeated sexual assault of a small child is substantially related to a job in which small children are routinely present in the employee's workplace, a workplace in which the complainant would have opportunities to interact with those young children out of the view of others. A distinct set of concerns are implicated by this question. To address them, it is necessary to carefully consider the specific facts about the workplace. Having done so, the commission concludes that the circumstances of this job presented far too great a basis for concern about possible further offenses by the employee against other young children.
NOTE: When it reverses the decision of an administrative law judge and credibility of witnesses is a material factor, the commission must have the benefit of that administrative law judge's personal impressions as to the credibility of material witnesses, and it must provide an explanation for its disagreement with that judge's decision. Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980).
The commission has consulted with the administrative law judge who presided over the original hearing in this matter and issued the decision under review.(4)
The commission's disagreement with the administrative law judge on the question of whether unlawful discrimination occurred is not a result of any disagreement with her findings of fact on issues as to which there was a credibility dispute between witnesses who testified before her. Rather, it was a result of a different view on the question of how the applicable legal standard should be applied to the facts. Recognizing, however, that there are some differences between the findings here being made by the commission and those made by the administrative law judge, the commission provides the following explanatory comments.
One respect in which the commission's findings differ to some extent from those made by the administrative law judge is that the commission has made more specific findings of fact about what Matousek told (and did not tell) Harvey about the circumstances of the offense for which he was convicted. However, while they differ in degree of detail, these findings are consistent with the findings made by the administrative law judge. In her findings concerning Harvey's interview of Matousek on Jun 10, 2003, the administrative law judge's description of what Matousek told Harvey with respect to his conviction was that he had been in a room with a minor child and was undressed, that he was accused of being a sex offender, that he had served one year in jail and was on probation for eighteen or nineteen years, and that his probation agent would have to agree that Matousek could work there. The administrative law judge omitted any finding that Matousek told Harvey that his offense involved a 6-year-old child, that the child had touched his penis, that there had been repeated sexual assault of the child, or that he was under any restrictions against working with minors. The commission infers from this that the administrative law judge did not find Matousek credible when he testified that he had told Harvey these things, and that she credited Harvey's testimony that Matousek did not tell her these things. The commission agrees with this credibility assessment. Its findings differ from those of the administrative law judge only in that it has made express findings that Matousek did not tell Harvey these things.
Another respect in which the commission's findings differ to some extent from those of the administrative law judge in regards to factual (as opposed to legal) issues, has to do with the question of whether any minors were employed in the store at the time Matousek worked there. The administrative law judge made a finding that during Matousek's employment at the store, "[he] never met or worked with any employee who was under the age of 18." Based on its review, the commission has found that there was an employee aged 17 years who worked in the store when Matousek did. The commission has arrived at this finding based on the evidence offered and received at the remand hearing in this matter, evidence which establishes more clearly and persuasively than the evidence introduced at the original hearing, that there was indeed a 17-year-old employee working in the store at the time Matousek was employed there. That said, the commission would note that it has found a substantial relationship between Matousek's offense and this job primarily because of the extent to which the job would create an opportunity for Matousek to have contact with young children who were present in the store because they had been brought there by their parents.
ROBERT GLASER, Commissioner, (dissenting):
I disagree with the majority decision and respectfully dissent. This case was remanded by the circuit court in order to give the respondent a second chance to present additional evidence of a substantial relationship between the complainant's conviction record and his job at Sears Parts and Service Store. I believe the respondent failed to present sufficient new evidence on remand to warrant a different decision. I do not agree that new evidence regarding the physical layout of the store supports the majority's findings regarding Matousek's opportunities to re-offend. More troubling is the majority's arriving at a different decision based partially on a new legal theory. The majority now finds that a substantial relationship can be premised on the possibility that the complainant could reoffend, not in the course of his employment with Sears, but outside of his employment based upon the opportunity to strike up brief conversations with children he might encounter during his employment. In doing so, the majority relies on a variety of assumptions about the types of criminal conduct in which the complainant is likely to engage, which are not supported by the record. That the complainant assaulted a child in his own home is clearly reprehensible, but it is a stretch to presume that he is inclined to engage in the type of predatory conduct envisioned in the majority decision.
Even more troubling, however, is the majority's expansion of the law to deny employment opportunities to individuals with conviction records based upon a theory that they might reoffend outside of the scope of their employment. In Milwaukee County v. LIRC and Serebin, cited in the majority decision, the court observed that the legislature had expressed as a goal the rehabilitation and reintegration of convicted criminals into the workforce, but noted that the legislature has chosen not to force attempts at rehabilitation "in employment settings where experience has demonstrated the likelihood of repetitive criminal behavior." 139 Wis. 2d at 832 (emphasis added). The court's reference to protecting "the community at large" from unreasonable risks of recidivism does not compel the majority's broader reading of the law. If the mere fact that a sex offender could have even incidental contact with a potential victim at work precludes him from holding that job, then the universe of possible employment is severely restricted. How can that individual ever find gainful employment? The legislature's intention in drafting the law was to strike a balance between society's interest in fostering the rehabilitation and reintegration of convicted criminals into the workforce and its interest in protecting its citizens. My concern is that the majority's interpretation of the law disregards the former and tips the scales too far in favor of the latter.
___________________________________________
/s/ Robert Glaser, Commissioner
cc:
Attorney Michael J. Ganzer
Arnstein & Lehr LLP
Appealed to Circuit Court. Appeal dismissed June 4, 2007.
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