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

EARNESTINE WILKERSON, Complainant

GREYHOUND LINES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199554241, EEOC Case No. 26G960041

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.

DECISION

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

Dated and mailed: August 25, 1997
wilkeea.rsd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, a black female, filed a complaint against the respondent, a bus company, alleging that she was discriminated against when discharged as a driver due to her driving record history because there were males with driving records comparable or worse than hers who were not discharged.

The evidence shows that the respondent terminated the complainant's employment after an audit of her motor vehicle report revealed excessive safety violations and that she had failed to provide a complete report of her drivers license suspensions on her employment application. The employment application completed and signed by the complainant specifically advised her that "Discrepancies discovered after employment will be grounds for termination."

The complainant apparently asserts as a basis for her claim of discrimination that she was concerned about her driving record when applying for employment with the respondent, as she did not want to give up her existing job only to lose the job with the respondent because of her driving record, and either was told or led to believe by "a lady" at the respondent's Dallas, Texas office that her driving record was "fine." While the complainant is undoubtedly upset that she left other employment only to be discharged by the respondent because of her driving record, the evidence fails to show that her discharge occurred for any reason other than because of her driving record.

Specifically, the complainant's driving record report shows that in addition to two citations for speeding, two citations for obstructing traffic and two non-fatal accidents, which had been listed on her employment application, that the complainant's license had also been suspended on 5 occasions (June 1991, August 1991, February 1992, November 1992 and November 1994), while she had indicated only "Wisconsin, 1992" in response to a question about whether her license had ever been suspended.

The motor vehicle reports of two of the males that the complainant compares herself to, Dean Lingard and James Radford, did not have nearly as bad a driving record as she, nor were there any discrepancies revealed by their motor vehicle reports. With respect to the remaining individual, George Russell, the record shows that during its investigation of the complainant's charge the respondent discovered that there were discrepancies between his employment application and motor vehicle report, and therefore terminated his employment.

The complainant apparently also asserts that by virtue of a page that she had attached to her employment application she had fully explained her driving record, and that she had not knowingly failed to provide a complete account of her driving record. The complainant apparently seeks to prove this by pointing to two documents attached to her driving record abstract and marked as exhibit 1 at the hearing. The documents, attached as pages 1 and 2 of exhibit 1, show that she had been released from a suspension in February 1992 and had another lifted in November 1992. These assertions by the complainant fail to establish that she has been discriminated against, however. First of all, the record shows that the respondent was under the impression that there had been only one license suspension in 1992. The complainant herself concedes that she never informed the respondent about the documents relating to her two 1992 license suspensions. Secondly, the complainant's driving record report showed suspensions not only for 1992, but also suspensions for June 1991, August 1991 and November 1994 which were not reported on her employment application. As for the 1994 license suspension, the complainant asserted at the hearing that her license was suspended on that occasion because her payment for a ticket was received late. She also asserted that she did not become aware of this suspension until she saw her driving record abstract at work. Even assuming this to be the case, there is no evidence that the employer was ever offered any explanation for her failure to include the November 1994 license suspension on her application. Moreover, the complainant has failed to provide any explanation for not listing her June 1991 and August 1991 license suspensions.

The evidence simply fails to establish that the respondent discharged the complainant because of her sex. Even the complainant concedes that when hired there were 4 women in training with the "10 to 20" men, and that she "know(s) six women who are still working for the respondent."

NOTE: The commission notes that during the Equal Rights Division's investigation of the complaint in this matter the division acknowledged that the complainant was also raising the issue of alleged race discrimination, and that it made some findings regarding this issue in the initial determination, although no specific ruling was made on this issue nor was it ever noticed for the probable cause hearing. While the allegation of race discrimination should have been formally decided and noticed for hearing, the commission also notes that the complainant was represented by counsel and that there is no indication that the complainant has ever made any attempt to pursue this issue further.

cc: Peter M. Donohue
Dennis Marshall

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