BRAD C. BRADLEY, Complainant

EXEL INN OF AMERICA, INC., Respondent

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 18, 1994. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 2, 1995
164 / A 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The complainant has petitioned for commission review of the administrative law judge's decision which found that the complainant's conviction record was not a factor in the respondent's decision to terminate his employment. In his petition the complainant argues that the administrative law judge's decision should be reversed because the manager, Dennis Gress, admitted he probably would not have hired the complainant if he had known about his conviction record. The commission disagrees. Although Mr. Gress did make the statement that he probably would not have hired the complainant had he known of his conviction record, Mr. Gress continued to employ the complainant long after he learned of his conviction record and opted to retain the complainant even after other staff members complained that he was stealing from them. Further, the ultimate decision to discharge the complainant was not made by Mr. Gress, but by the respondent's regional manager, Patrick Flynn, who was completely unaware of the complainant's conviction record.

The complainant also argues that he finds it hard to believe Mr. Flynn did not know about his conviction record due to the fact that the housekeeping staff was always telling all the "goings on."  However, Mr. Flynn specifically denied having any knowledge of the complainant's conviction record and no evidence was presented to suggest that Mr. Flynn, who worked at the respondent's Madison location, spent any time gossiping with the housekeeping staff at the Glendale motel where the complainant was employed. Moreover, the evidence established that Mr. Flynn's decision to discharge the complainant was made only after the respondent conducted an independent investigation which led Mr. Flynn to believe that the complainant was responsible for stealing the housekeepers' tips. An employer's decision to discharge an employe is not because of an arrest or conviction record when it is motivated by the employer's belief that the employe has engaged in certain unacceptable conduct, and when that belief arises from sources other than the mere fact of the arrest or conviction. Delapast v. Northwoods Beach Home Caring Homes (LIRC, February 17, 1993). Here, the respondent's belief that the complainant was stealing tips was based upon sources other than his conviction record and the complainant has failed to demonstrate that his conviction record played any role in the respondent's decision to discharge him. Accordingly, the administrative law judge's decision is affirmed.

cc: John C. Widule

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