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

FELICIANO YNOCENCIO JR, Complainant

CHRYSLER CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801383

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, except that it makes the following modifications:

In paragraphs 4 and 14 of the FINDINGS OF FACT, the dates "May 5, 1997" are deleted and the dates "May 5, 1992" are substituted therefor.

DECISION

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

Dated and mailed August 11, 2000
ynocefe.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On appeal the complainant argues that the reason found for the termination of his employment - failure to respond to a recall to work letter that had been mailed to him on or about May 5, 1992 - is unfounded, baseless and discriminatory because he was in prison on that date and could not "respond" to the recall letter. However, pursuant to the collective bargaining agreement, failure to report for work within five days of the date notified to report for work results in a loss of seniority. The recall to work letter notified the complainant to report for work on May 11, 1992. He failed to do so because he was incarcerated, serving a six and one-half year sentence for conspiracy to sell heroin. It was not until sometime in May 1997 that the complainant contacted the respondent about returning to work. He was subsequently notified that he would not be reinstated. At the hearing the complainant asserted that he never received the recall notice. However, there was no evidence presented to show that the respondent failed to follow the procedures required when notifying individuals of a recall to work.

The complainant argues that the respondent terminated his employment because of his conviction record. The complainant makes this argument even though conceding that he knows that the respondent has reinstated other employes after serving sentences for conviction for selling drugs, including heroin. But the very fact that the respondent rehires employes convicted of drug offenses defeats his claim of alleged conviction record discrimination.

cc: Lawrence J. Murphy

Appealed to Circuit Court. Affirmed January 18, 2001.

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