P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RONALD S. GREENE, Complainant

d/b/a UNITED EXPRESS, Respondent

ERD Case No. 9203002

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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.


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

Dated and mailed February 2, 1995
greenro. rsd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The commission agrees with the finding of the Administrative Law Judge that:

"Marsh terminated Greene because he concluded, after his investigation, that Greene had violated two work rules. Marsh concluded that Greene violated the No Drinking Rule by consuming alcohol less than 10 hours prior to a reserve assignment. Marsh also concluded that Greene had violated the drug policy by being in possession of marijuana." (Finding of Fact 10)

The commission also agrees with the ultimate conclusion of the Administrative Law Judge, that:

In this particular case, Complainant has not carried [his) burden and has not established that his arrest record was even a factor, much less a determining factor, in the decision to discharge him from his employment". (Memorandum Opinion)

The commission believes that this case falls within the legal principles first enunciated in City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984), which was a case in which an employer, after learning of an employe's arrest, discharged him for allegedly engaging in the conduct that he had been arrested for. The court held that the discharge was not because of arrest record where the employer was motivated not by the fact of the arrest but by its belief that the employe had engaged in the conduct for which he was arrested -- and that belief arose from the employer's own investigation into the matter rather than merely from the arrest.

The commission has no doubt, that the employer believed that Greene was guilty of possession of marijuana. The question under Onalaska, is how this belief arose. In Delapast v. Northwoods Beach Home Caring Homes, Inc. (LIRC, 2/17/93), the commission stated:

While it is unlawful to discharge an employe because of the fact of that employe's arrest, an employer's decision is not because of the arrest when it is motivated by the employer's belief that the employe has in fact engaged in certain unacceptable conduct and when that belief arises from some source other than the mere fact of the arrest. City of Onalaska v. LIRC, 120 Wis.2d 363, 354 N.W.2d 223 (Ct. App. 1984). That source may be an admission by the employe, see, e.g., Levanduski v. Visiting Nurses Association (LIRC, February 10, 1988), or statements to the employer by others who witness the conduct, Redmon v. Milwaukee (LIRC, February 22, 1990), or direct observations made by the employer while joining in a police search, Seever v. Catholic Charities Bureau (LIRC, September 20, 1990), or an investigation by the employer that made use of information obtained from a contemporaneous police investigation, Williams v. Northwest Wis. Tech. College (LIRC, July 9, 1991). It is when the fact of the arrest is the "one source and only source" for the Respondent's belief in the employe's guilt, that Onalaska does not apply. Maline v. Wisconsin Bell (LIRC, October 30, 1989).

With these principles in mind, the commission has concluded that the employer's belief as to Greene's guilt was adequately "independent" of the mere fact of the arrest to pass muster under Onalaska.

Most significantly, the employer here conducted an investigation in which it directly interviewed Greene, and in which he directly admitted that there was marijuana in the car he was driving. T. 92, 130. While Greene offered the employer an explanation that he did not know it was there, this explanation was not believed by the employer. T. 131. Additionally, when he was arrested Greene had initially called the employer and said that he was unable to be in on time due to "car problems", T.100-101. Of course, the subsequent disclosure that he had in fact been unable to get in on time because he was incarcerated would have made it clear to the employer that his earlier explanation had been untrue. Both of these contacts -- the initial proffering of an explanation for his lateness which the employer subsequently learned was inaccurate, and the concession to the employer during its investigation that there was marijuana in the car -- were "independent" of the arrest and of the arresting authorities, in that they were communications directly from the employe to the employer.

Greene has argued that he has newly discovered evidence which is sufficiently strong to reverse or modify the decision. One piece of this "new evidence" is a notation made by a UC investigator during a telephone call with the employer shortly after the termination when Greene's eligibility for unemployment compensation benefits was being investigated. The other is evidence that a pilot who the employer had said was discharged in July 1991 for drinking within 10 hours of his shift, was reinstated in March 1994 under a "last chance" agreement between the employer and the pilot's union.

Assuming arguendo that this evidence was indeed newly discovered and could not have been discovered earlier with the exercise of due diligence (1),  the commission does not believe that it is strong enough to warrant a different result.

The UC investigator's note may be read as attributing to the employer's Director of Human Resources a statement that the reason for the termination was that Greene was convicted for driving under the influence and "also he was charged (not convicted) of possession of marijuana". However, it must be borne in mind that this is not actually a statement by a representative of the employer: it is hearsay, a written statement from an unnamed UC investigator containing what are presumably notes from a telephone call. It also does not purport to be a verbatim recitation of what the other party to the call said. Thus, the employer's representative may well have conveyed the information that Greene had been charged with possession of marijuana, and also conveyed the information that the employer believed that he had been in possession of marijuana, and the UC investigator may then have summarized that information in the fashion shown on the note. As noted, the commission believes that when the employer terminated Greene it had knowledge of the charge but that it terminated Greene because it had a belief that the conduct had in fact occurred, a belief arising independently of the arrest, based on information acquired in the employer's investigation. The notation does not cause the commission to doubt that.

The commission also does not believe that the other piece of "newly discovered" evidence, that another pilot discharged in 1991 for drinking within 10 hours of his shift was reinstated in 1994 as part of a "last chance" agreement with the pilot's union, has any significant probative value when it comes to the critical question herein, of whether the employer's belief that Greene was guilty of possession of marijuana was a belief based on more than merely Greene's arrest.

cc: Atty. Paula A. Hilburn

Appealed to Circuit Court.  Affirmed August 25, 1995.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) Greene claims that prior to his UC hearing he requested to see a copy of everything in his UC file and that this notation was not in what he was given at the time, and he claims that he only discovered it when "two years and 3 months after the Unemployment hearing" he again asked to see his UC file.


uploaded 2004/07/15