RICK JACKSON, Complainant

ECKLUND CARRIERS INC, Respondent

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.

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

Dated and mailed October 9, 2008
jacksri4 . rsd : 125 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

By decision dated October 21, 2005, the commission set aside and remanded for a new hearing and probable cause determination, an ALJ's decision which found no probable cause to believe that the respondent discriminated against Rick Jackson, in violation of the WFEA, based on conviction record, when the respondent failed to hire Jackson as an over-the-road truck driver.

Jackson's conviction record discrimination claim arose in connection with an application for employment that he submitted to the respondent on December 28, 2001.

The commission concluded as reason for remanding the matter that the ALJ who conducted the probable cause hearing had improperly denied Jackson's request to depose several of the respondent's witnesses and placed excessive limitations on the scope of Jackson's request for the production of documents, thereby unfairly restricting Jackson's ability to obtain possible persuasive evidence to support his discrimination claim.

On May 9, 2006, the Equal Rights Division issued a notice of hearing scheduling the remand hearing for July 26 & 27, 2006, before a different ALJ. Jackson retained an attorney to represent him shortly after the commission's October 2005 decision, but by letter dated May 23, 2006, the attorney advised the ERD that he was withdrawing as Jackson's counsel. Depositions that were scheduled for May 2006 were cancelled and never rescheduled.

The probable cause remand hearing, which had been scheduled for July 26 & 27, 2006, was held on the July 27, 2006 date, only. Jackson appeared pro se.

At the outset of the hearing the ALJ noted that the parties had stipulated that the transcript of the two days of testimony from the first hearing would become part of the record of the second hearing. The ALJ stated that all of the exhibits that had been received at the first hearing would also become part of the record. Further, the ALJ stated that Jackson would be able to present any additional evidence he wanted to provide at the hearing, provided it was relevant and not repetitive of what was already entered into the record.

In addition, the ALJ noted that while the whole purpose of the second hearing was to give Jackson an opportunity to take depositions and do the additional discovery he wished to do, that the depositions were never taken and that no written discovery had taken place.

In response to his not having conducted any discovery, Jackson asserted that he had not done so because: 1) Respondent's counsel had convinced his attorney that "per chance [I] did win, I wouldn't be able to collect anyway; that it was likely Ecklund would be closing their doors at any time", causing his attorney to withdraw from the case; 2) that he was involved with other matters, including other cases of his that were pending before the ERD, Department of Labor hearings, working and "going to the doctor"; and 3) that as an additional reason the ALJ had "kind of discouraged" him "because the respondent could have been out of business over night altogether."

Jackson fails to provide a valid reason for his failure to conduct discovery. Assuming for purposes of argument that Jackson's attorney withdrew as his counsel for the reason Jackson asserts, Jackson nevertheless continued to pursue this case as evidenced by his appearance at the hearing on July 27, 2006. Jackson had conducted discovery himself in other cases before the ERD. In December 2002, Jackson had conducted discovery (written "interrogatories") in connection with a December 2001 discrimination complaint filed against an employer. See, Jackson v. Transwood-1, ERD Case No. CR200104557 (LIRC, 12/11/03). In December 2004, Jackson had conducted discovery (requests to admit; production of documents) in connection with a February 2004 discrimination complaint filed against an employer. See, Jackson v. Quality Carriers, Inc. ERD Case No. CR200400448 (LIRC, 03/17/06). With respect to Jackson's other ERD cases and the DOL hearings as reason for not conducting discovery, the respondent's counsel noted, among other things, without dispute from Jackson, that Jackson had not contacted him to indicate that Jackson's pressing business with other cases was interfering with Jackson's ability to prepare for the instant case and that he needed a courtesy extension of any kind. Further, the fact that Jackson was working is not a valid excuse for not conducting discovery, nor is the assertion that he was "going to the doctor," especially since Jackson gave no indication as to why or how going to the doctor prevented him from conducting discovery. Moreover, the ALJ noted that she had never received any request from Jackson for a postponement of the hearing for health reasons, or for any other reason that Jackson cited for not conducting discovery. In addition, the ALJ vehemently denied in any way, shape or form of having discouraged Jackson from conducting discovery. The ALJ stated that the scheduled depositions had already been cancelled when she first spoke to Jackson; that Jackson inquired if she knew whether or not the respondent was out of business; that she then called the respondent's attorney primarily to find out if the respondent was filing for bankruptcy because that would be the only reason she could not proceed with the case; that she told Jackson that if the respondent did go into bankruptcy she would have to place the case in abeyance as federal law requires that; that the respondent's counsel told her that the respondent did not file for bankruptcy; and that she told Jackson that if that's the case, Jackson should go ahead with his case.

Following the discussion that occurred at the outset of the hearing, Jackson presented his case, which consisted of some additional testimony by him and the submission of some additional exhibits that were not received into evidence at the original hearing. After Jackson rested his case, the respondent waived the opportunity to cross-examine Jackson. Further, the respondent chose not to present any additional testimony or evidence in its behalf, instead relying on the testimony and evidence that it had presented at the original hearing.

As noted above, Jackson's conviction record discrimination claim arises in connection with an application for employment that he had submitted to the respondent on December 28, 2001. As of December 2001, Jackson had a criminal record which included convictions for several felonies.

In her written decision issued in the matter on October 9, 2007, the ALJ concluded that Jackson failed to present sufficient credible evidence to establish probable cause to believe that the respondent discriminated against him on the basis of conviction record in violation of the WFEA. Briefly summarizing the ALJ's decision, the ALJ found as follows:

During the period of time relevant to this case the respondent operated trucks throughout the continental United States and Canada, and employed over-the-road (OTR) truck drivers. Robert Pfaffenroth, the respondent's director of recruiting, was in charge of hiring to fill truck driver positions and his assistant, Lorrie Thill, helped process job applications. During the relevant time period herein, in order to qualify for OTR truck driving positions at a minimum an applicant needed to have a valid Commercial Driver's License with a "HazMat" (Hazardous Material) endorsement. Pfaffenroth preferred to hire applicants with a stable work history, at least three years of truck driving experience and a good driving record, but viewed the stability of an applicant's work history to be the single most important factor and often the deciding factor as to whether or not to hire an applicant. During the relevant time period the respondent did not have any policy that prohibited or limited the hiring of applicants with a criminal conviction record, nor did the respondent's application form ask applicants to disclose whether they had had a conviction record, nor did the respondent's background checks involve any criminal background checks. In the Employment History section of his December 28, 2001 application for employment Jackson indicated that he only had 19-20 months of driving experience, and the CDL that Jackson included with his application did not have a "HazMat" endorsement. When Thill conducted a background investigation of Jackson, she did not know he had a conviction record and did not take any steps to determine whether he did and did not learn of his conviction record until the ERD notified the respondent of his discrimination complaint on the basis of conviction record. Pfaffenroth's decision not to hire Jackson for a truck driving position was primarily based on the Employment History section of Jackson's application, which in Pfaffenroth's opinion showed that Jackson was a "job hopper" when Pfaffenroth strongly preferred applicants with more stable work histories. As with Thill, Pfaffenroth did not even know that Jackson had a conviction record at the time he made the decision not to hire Jackson.

The ALJ's findings of fact and conclusions of law made in this matter are fully supported by the record. On appeal, Jackson has not challenged any specific finding of fact as being unsupported by the record, nor has he specifically asserted whether and why any conclusions of law are claimed to be in error.

In his brief on appeal, what Jackson does argue is that he "never agreed to allow the respondent's attorney [to] use the prior transcripts...to allow the respondents (sic) an opportunity to just simply not show up to testify under oath and be cross-examined by" him. This argument fails. The respondent was not obligated to present any witnesses in its behalf at the remand hearing. It was Jackson's burden to present sufficient evidence to establish probable cause to believe the respondent discriminated against him on the basis of conviction record and if he felt it was necessary that certain witnesses testify at the second hearing in order for him to meet that burden, it was his obligation to ensure that those witnesses appeared at the second hearing.

Jackson also argues that it was the commission's intent that a "full-blown hearing" was to be conducted, including the opportunity for him to depose various respondent employees, but when his retained attorney "found out that Ecklund Carriers was almost bankrupt" he decided to cancel the depositions and resigned from the case, which explains why the depositions never materialized.

These arguments also fail. Prior to the scheduled remand hearing in this matter, Jackson stipulated that the transcript of the two days of testimony from the first hearing would become part of the record of the second hearing, thus eliminating the need to start entirely over with testimony "from scratch". The intent of the commission's remand did include the purpose of allowing Jackson to have the opportunity to depose witnesses. However, regardless of the reason Jackson's retained attorney had for resigning from the case, this did not prevent Jackson from obtaining the depositions of any witnesses that he wished to depose. Jackson had at least two months to obtain the deposition of witnesses before the hearing took place on July 27, 2006. Jackson never contacted the respondent's counsel to ask for an extension of any kind, nor did he ever ask the ALJ for a postponement of the hearing because he needed more time to depose witnesses.

Jackson further argues that he requested the ALJ to order respondent's counsel to divulge the purported new buyer of Ecklund Carriers and she refused to do so. Jackson asserts that he believes he has the right to know who to sue in this case. Jackson asks if the commission will order respondent's counsel to "divulge the new owner of Ecklund Carriers for procedural purposes".

Jackson has cited no authority for the ALJ or commission to require the respondent's counsel to divulge the name of the buyer of Ecklund Carriers. In any case, since Jackson has not shown probable cause to believe that Ecklund Carriers discriminated against him on the basis of conviction record, the name of the buyer of Ecklund Carriers is not relevant.

cc: Attorney Peter J. Culp

Appealed to Circuit Court.

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