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

MANUEL CASARES, Complainant

OMNI MED TRANSCRIPTION SERVICES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603681, EEOC Case No. 26G961987

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 October 22, 1999
casarma.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that he had a little over one month experience as a medical transcriptionist with another employer and had independently contracted doing medical transcription work. He maintains that his qualifications for the job were comparable to, if not better than, those of Ms. Hommen and Ms. Edwards, both of whom were offered employment by the respondent when he was not. The commission has considered this argument, but finds it unpersuasive. In the first place, the complainant's contention that he had a little over a month's experience as a medical transcriptionist for another employer is not supported by the record. To the contrary, the evidence indicates that the complainant's job duties for the employer in question were primarily those of a receptionist, not a transcriptionist. Moreover, although the complainant now asserts that he independently contracted doing medical transcription work, he did not include this employment experience on his job application and did not mention it to Ms. Sies during the job interview. Consequently, the respondent could not have been expected to take that experience into account when making its hiring decision. The commission additionally notes that, while the complainant may have run a medical transcription business, this does not mean he was personally engaged in the transcription of medical documents and, indeed, the evidence in the record does not indicate this was the case.

Turning now to the complainant's assertions that his qualifications were comparable to or better than those of Misses Hommen and Edwards, again the commission disagrees. The evidence indicates that Ms. Hommen scored four points higher on the transcription test than did the complainant, had completed a one-year course in medical transcription, and had worked as a certified nursing assistant in a hospital setting for many years, all of which rendered her more qualified for the job than the complainant. In addition, the fact that Ms. Hommen's sister worked for the respondent and had offered to assist Ms. Hommen if necessary made her an attractive candidate. Regarding Ms. Edwards, the information available to Ms. Sies indicated that she scored six points higher on the transcription test than the complainant did and had four and half years experience as a transcriptionist with a medical services company as well as extensive computer experience. While Ms. Sies ultimately came to the conclusion that Ms. Edwards' qualifications were not, in fact, much superior to the complainant's, it is clear from the record that she did not believe this to be the case at the time Ms. Edwards was selected for the job and that she reasonably considered Ms. Edwards to be a stronger candidate than the complainant.

In his petition the complainant also argues that, on the second day of hearing, the respondent attempted to embellish its reasons for not hiring him. Specifically, the complainant contends that Ms. Sies expanded her testimony to include additional reasons for her decision not to hire him, including his length of service for his most recent employer and the fact that his application indicated there was a "wrongful dismissal." The complainant maintains that these additional reasons are not credible and should not be considered and, further, that they clearly show the respondent's bias against him based upon his race. Again, this argument fails. Ms. Sies did mention the complainant's short work experience and his statement about being wrongfully dismissed on the first day of hearing, and stated that these factors were "red flags" for her, since they indicated that he had not been employed very long at his most recent employer before being dismissed. While Ms. Sies testified at that time that the deciding factors in not hiring the complainant were his poor test score and lack of transcription experience, this is not inconsistent with her subsequent testimony that she considered his short work history for his most recent employer and his statement that he was wrongfully dismissed. The fact that the complainant's only transcription experience culminated in a discharge after one month is clearly germane to an analysis of the nature and duration of his relevant work experience. Finally, even if the commission were to characterize the testimony in question as an effort to "embellish" her earlier statements, as the complainant contends is the case, it is unable to see how this would constitute evidence of racial bias on Ms. Sies' part. The rationale in question, whether mentioned at the beginning of her testimony or only at the end, constitutes a legitimate, nondiscriminatory reason for the respondent's decision to deny employment to the complainant, and the complainant has failed to demonstrate any reason to believe that it is a pretext for discrimination.

The commission has considered the remaining assertions raised by the complainant in his petition, but finds them similarly unpersuasive. Because the commission sees no reason to conclude that the complainant was discriminated against in the manner alleged, the dismissal of the complaint is affirmed.

cc:
Richard F. Rice
Fred Gants

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