Judicial Decisions. (Legal Reporter)

By Anderson, Teresa | Security Management, May 2002 | Go to article overview

Judicial Decisions. (Legal Reporter)


Anderson, Teresa, Security Management


Wrongful discharge. The Iowa Supreme Court has ruled that, in an employment case, a hospital may fire an employee for failure to submit to a voice print analysis.

In 1995, Bobbie Hartwig was working as a nurse at Covenant Medical Center in Waterloo, Iowa. On the evening of May 22, someone left an obscene message on her voice mail. Hartwig discovered the message when she arrived at work the next morning and notified Nancy Schuler, the head of the quality services department. Schuler advised Hartwig to do nothing unless she received more calls. Hartwig also called Steve Theisen, the hospital's security manager. He did not answer the phone, so she left a message about the incident. Theisen never returned Hartwig's call.

Though she told no one immediately, Hartwig recognized the voice on the message as Theisen's. Hartwig at first believed that the message must be a joke but was worried that it might be serious. Several days later, Hartwig played the message for Schuler without voicing her suspicions. Schuler also identified the voice as Theisen's.

Schuler and Ray Fusco, the hospital's vice president of employee resources, launched a sexual harassment investigation. As part of the investigation, the obscene message was submitted for voice print analysis along with a known sample of Theisen's voice. The analyst could not say that the voices matched because the obscene message was too brief. However, the analyst also concluded that Theisen could not be eliminated as a suspect and requested that he provide an exemplar of the obscene message to be tested against the voice mail copy.

About a month after the incident, Schuler and Fusco met with Theisen and told him of the message and that several people had identified the voice as his. After hearing the message, Theisen denied being the speaker. The supervisors then requested that Theisen submit to a voice print analysis. Theisen said he would have to consider the matter. He was suspended for two weeks to allow him to consider his decision. Theisen was allowed to collect his personal items before being escorted from the building by a security officer.

Theisen, after consulting with an attorney, refused to submit a voice print sample, claiming that an Iowa statute prohibiting polygraph testing also applied to voice analysis. The hospital fired him.

Theisen sought a review of termination under the hospital's employee policy. During several meetings, Theisen was asked to submit a voice sample. He repeatedly refused. Eventually, Theisen did give a sample to his own paid expert, who reported no similarities between the voice samples. Theisen submitted this report to an employee committee. After interviewing all the parties, the committee unanimously recommended that Theisen be reinstated.

The hospital's president reviewed the committee's findings but upheld the termination. According to the president, the firing was based on Theisen's refusal to comply with reasonable requests that could have helped determine the facts of the incident in question.

Theisen sued the hospital for wrongful termination, contending that voice print analysis was used in the same way as a polygraph test and was, therefore, illegal under Iowa law. The statute, argued his attorneys, defined a polygraph examination as "any procedure involving the use of instrumentation or mechanical device to assist the detection of deception." Voice print analysis, said the attorneys, falls under this definition.

The hospital requested summary judgment--a hearing based on the facts of a case without a trial. The hospital claimed that while both polygraph and voice print analysis are designed to determine whether someone has lied, this similarity did not mean that voice print analysis was prohibited by law. The Iowa District Court for Black Hawk County granted the summary judgment. Theisen appealed the decision. …

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