Wis.LIRC ER Decision: Acosta - November 3, 2000 - Race discrimination, National Origin discrimination - employee fired after driving employer's truck in violation of his commercial driving license - not comparable to actions of white employees who were not fired

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

BENITO ACOSTA, Complainant

WASTE MANAGEMENT OF MADISON, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803258, EEOC Case No. 26G982037

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 November 3, 2000
acostbe.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Benito Acosta, who is Mexican American, appeals from the ALJ's decision which held that he failed to show probable cause to believe that the respondent discriminated against him because of his race, color or national origin with respect to his termination of employment.

In 1998, Acosta was employed by the respondent as a utility worker, a position that included the duty to occasionally run errands in a company pickup truck. The respondent terminated Acosta's employment after he drove a company truck in violation of the restrictions on his occupational driver's license. One period of time that Acosta was prohibited from driving was from 5 p.m. to 7 p.m. Acosta claims that he was discriminated against because some of the mechanics employed by the respondent, who were white, at times moved trucks requiring a commercial driver's license (CDL) from the company parking lot onto a stretch of public road to get to the company garage for maintenance, despite not having a CDL but were not discharged.

The complainant has failed to establish that his situation was sufficiently similar to that of the white mechanics. The mechanics would drive just a short distance on the public road in order to get to the maintenance garage because employee's parked vehicles blocked the respondent's private driveway between the parking lot and the garage. In contrast, the respondent determined that Acosta had driven a company truck during his restricted hours from the company business on West Badger Road in Madison to Highway 30 and U.S. 51 in Madison during the above restricted hours, despite having been given specific instruction not to drive during the hours prohibited under his occupational driver's license.

Accordingly, the commission concludes that Acosta failed to show probable cause to believe that the respondent discriminated against him because of his race, color or national origin with respect to his termination of employment.

cc: Attorney Kristen L. Kroger

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