EDWARD HUNTER, Complainant

WEL COMPANIES INC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

1. The respondent, WEL Companies, Inc. (hereinafter "respondent"), is a commercial trucking company located in De Pere, Wisconsin.

2. The complainant, Edward Hunter (hereinafter "complainant"), began working for the respondent as a commercial truck driver on October 19, 2009.

3. The respondent has an "immediate termination policy" which contains a list of fifteen acts that will result in immediate termination. One of the enumerated acts is "unsatisfactory safety performance." The immediate termination policy was explained to the complainant during his orientation. During his employment the complainant also attended periodic safety trainings, including a winter driving course at which the issue of following too closely behind another vehicle was specifically discussed.

4. During at least part of the complainant's employment the respondent's insurance company was called HNI. HNI's underwriting guidelines specify that drivers must have no disqualifying traffic violations within the last three years. The guidelines contain a specific list of disqualifying traffic violations, which include "following the vehicle ahead too closely." At some point the respondent began using a new insurance company, whose guidelines also require that drivers have no "serious" violations in the past three years, specifically including "following too close."

5. On the night of January 17, 2012, the complainant was driving the respondent's truck on the Mackinac Bridge in Mackinac, Michigan. The Mackinac Bridge is very narrow, with only two lanes, and commercial vehicles are required to leave 500 feet of space between them. The road conditions on the day in question were icy and snowy. A truck ahead of the complainant had its blinkers on, and the complainant, who believed the truck was stalled, started to pull into the left lane in order to pass it. However, the complainant soon realized that the truck was not stalled, but was simply moving slowly. The complainant then pulled his truck back into the lane behind the truck with the blinkers on. However, the complainant was now at a distance closer than what was allowed by law and had to slow down in order to create a safe distance between himself and the other truck.

6. A Michigan State Police officer going in the opposite direction did a U-turn and followed the complainant to the end of the bridge, before signaling him to pull over. The police officer questioned the complainant as to why he was following the truck ahead of him so closely. The police officer issued the complainant a warning for "following too close." The complainant was not charged with or convicted of a crime or other offense, nor was he subject to a fine or any other penalty.

7. On January 19, 2012, the complainant returned to the respondent's terminal in DePere, Wisconsin, and reported the warning to the respondent. The respondent immediately convened a committee meeting, which included the respondent's safety director and its driver retention manager, to discuss the complainant's violation and to consider whether under its insurance company's guidelines the matter would be deemed a "serious" violation that might affect the complainant's insurability.

8. The United States Department of Transportation maintains a database called the "Compliance, Safety and Accountability" (CSA) system, which tracks the driving and safety records of commercial truck drivers and of the trucking companies that employ them. As a result of the warning for following too closely the complainant received 15 points on his CSA score. At the time of the complainant's discharge the respondent was aware that a safety violation would result in points on the complainant's CSA score, and it understood that its insurance rates and ability to obtain coverage was affected by its CSA score and that of its drivers.

9. That day, January 19, 2012, the respondent's safety director notified the complainant that he was being discharged for unsatisfactory safety performance.

10. The respondent did not discharge the complainant because he was stopped and questioned by police. The respondent decided it could no longer employ the complainant because he had been warned about following too closely, which was an offense that warranted immediate termination under its policies and which placed the complainant outside of its insurance company's underwriting guidelines.

Based on the above FINDINGS OF FACT the commission makes the following:

1. That the complainant is an individual with an arrest record, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").

2. That the complainant is not an individual with a conviction record, within the meaning of the Act.

3. That the complainant has failed to establish probable cause to believe that the respondent discriminated against him based upon arrest or conviction record, in violation of the Act.

Based on the foregoing FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:

1. That the complaint in this matter is hereby dismissed.

Dated and mailed May 21, 2015

hunteed_rrr . doc : 164 : 122.12

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The term "arrest record," as used in the Wisconsin Fair Employment Act ("Act") is defined as follows:

"Arrest record" includes, but is not limited to, information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.

Wis. Stat. § 111.32(1).

In this case, the complainant was stopped by police and questioned about his driving. Although the complainant only received a warning, the questioning could have resulted in a citation. These factors are sufficient to warrant a conclusion that the complainant had an arrest record and was therefore in a protected category for purposes of the Act.

However, the record contains no evidence to suggest that the complainant's discharge was related to his arrest record. The complainant was not discharged because the respondent learned that the police had stopped him and questioned him about his driving. He was discharged because the respondent believed he had driven unsafely, based upon his warning for following too closely, which was a terminable offense under the respondent's own standards and, further, was an offense it believed would affect its ability to secure insurance.

In his petition for commission review the complainant argues that the respondent's guidelines for immediate termination do not specify that "following too close" is an offense warranting termination, and that the respondent failed to demonstrate he was aware of this policy. The record indicates, however, that the complainant was aware that unsafe driving would result in his discharge and, further, that he had attended a safety training at which following too closely was specifically discussed. Further, and more importantly, the Act is concerned with the motives of the employer, not the employee; whether or not the complainant understood the consequences of his actions has no bearing on the outcome of this case. Absent any reason to doubt the respondent's explanation that it discharged the complainant for what it regarded as unsafe driving, or any reason to believe that the respondent was concerned by the fact the complainant had been pulled over and questioned by police, there is no probable cause to conclude that the complainant was discharged because of his arrest record.

Conviction record

The statutory definition of "conviction record" is as follows:

"Conviction record" includes, but is not limited to, information indicating that an individual has been convicted of any felony, misdemeanor or other offense, has been adjudicated delinquent, has been less than honorably discharged, or has been placed on probation, fined, imprisoned, placed on extended supervision or paroled pursuant to any law enforcement or military authority.

Wis. Stat. § 111.322(3).

The administrative law judge found that:

"When the Michigan State Police Officer issued Hunter a warning ticket for following too close to another vehicle and Hunter was given 15 points for unsafe driving on his CSA score with no ability for Hunter to appeal, Hunter was in effect charged and convicted of an offense at the same time." (Para. 10).

The commission disagrees with this analysis. The complainant was not convicted of any offense, nor was he adjudicated to be delinquent, assessed a fine, or subject to any of the other statutory penalties that might constitute a "conviction record." A warning is not a conviction, and the fact that the complainant's traffic warning ultimately resulted in points on the Department of Transportation's CSA system does not suggest otherwise. There is no reason to conclude that CSA points are tantamount to a conviction, notwithstanding the fact that those points could have consequences for the complainant's insurability.

In his petition for commission review the complainant argues that he has a conviction record, within the meaning of the Act, because he has been "adjudicated delinquent" and has been "less than honorably discharged." However, the complainant has not elaborated upon this argument, and the commission sees no basis to conclude that the complainant has either been adjudicated delinquent or less than honorably discharged, so as to be deemed an individual with a conviction record for purposes of the Act.

The commission has rewritten the administrative law judge's decision to reflect its conclusion that the complainant did not have a conviction record within the meaning of the statute. Consequently, the complainant could not have been discharged due to conviction record, and no question of substantial relationship is presented.

cc: Attorney Tom F. Galloway

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