GORDAN BATES, Complainant
MEAD & HUNT 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 November 26, 2008
batesgo . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Gordan Bates petitions for commission review of the ALJ's decision, which found that Bates had not shown probable cause to believe the respondent, Mead & Hunt, had violated the WFEA by failing to hire or employ him because of his national origin.
Bates was born in the former Yugoslavia, now called Bosnia. He earned a degree in architecture from Sarajevo University's School of Architecture and Urban Planning. In 1994, Bates moved to the United States. During the year 2005, Bates submitted several applications for employment at Mead & Hunt but was not hired. Mead & Hunt is a consulting firm that provides engineering and architectural services, with offices in Madison and around the United States. On October 11, 2005, Bates filed a discrimination complaint against Mead & Hunt alleging that the company refused to hire or employ him because of his national origin.
At the probable cause hearing on his discrimination complaint Bates identified his resumes that he sent to the respondent in response to advertisements for the positions of Studio Leader-Justice Facilities Architecture, Studio Leader-Health Care Architect and Project Architect.
Wendy Culver, respondent's Human Resources Director, testified that the fact that Bates did not have an architectural license disqualified him for each of these jobs and that no individual was considered for any of these positions who were not licensed architects. Culver testified that prior to receiving Bates' discrimination complaint she had no knowledge of Bates' national origin. Culver testified that it was not unusual to receive applications from individuals with education from outside of the United States and that the president of Mead & Hunt since 1994, Rajan Sheth, is from India. Further, Culver testified that the respondent has had architects and engineers with degrees from foreign universities, even though they were not foreign citizens, and that currently about seven percent of the respondent's workforce (16-17 individuals) were of foreign national origin.
Bates admitted that the architect degree he earned in Yugoslavia was not accredited by the Examining Board of Architects in the United States or the Wisconsin Architectural Board. Bates was not licensed as an architect in any state in the U.S. Bates' resume that he sent along with his applications for the Studio Leader and Project Architect positions states, "If required, ready to acquire the professional license within one year."
In his decision issued on September 14, 2007, the ALJ found that the Studio Leader positions (Justice/Healthcare) required a bachelor's degree or higher in architect from an accredited school or college, licensure as an architect and at least 10 years of experience with Justice/Healthcare architecture, and that Project Architect position required a degree in architecture from an accredited school or college, licensure as an architect in Wisconsin and at least 5 years of relevant experience. The ALJ further found that Bates' resume stated that he was a U.S. citizen, that the respondent's scorer's of Bates' applications concluded that Bates' applications did not show that he had the required minimum qualifications for these positions, that Bates' national origin did not prevent him from obtaining an architectural license from the State of Wisconsin, that Culver did not know Bates' national origin at any time she was considering his applications for employment and that the respondent's decisions to reject Bates' applications for employment as an architect in 2005 were not based on his national origin.
In his written arguments on appeal from the ALJ's decision, Bates argues that the respondent did not cite any law which requires that candidates for employment with the respondent must be a graduate from an accredited school. However, even assuming the absence of the existence of any law requiring that candidates for employment with the respondent must be a graduate from an accredited school, this does not present any reason to believe that Bates was discriminated against on the basis of his national origin. Bates has not shown that the respondent requires applicants who obtain a degree from outside the United States to possess a degree from an accredited school or college but does not require that the degrees of applicants who obtain a degree in the United States be from an accredited school or college. Further, the evidence shows that the respondent employs individuals who have obtained degrees from foreign universities.
Bates also argues that he had applied for four positions and that the respondent "refused to provide [an] answer to interrogatory questions under oath and explain why Gordan Bates did not meet the minimum qualifications for the position Architectural AutoCAD Manager". Bates indicated at the hearing that he had applied for an AutoCAD Manager position and he identified a rejection letter dated June 27, 2005 (marked as Exhibit 10) as the letter he received from the respondent regarding this position. Bates further indicated that this was a lower-level position than the other positions he had applied for. Initially, when the ALJ asked if he had any present recollection of any statement of job qualifications for this position Bates responded, "No", but he later asserted that this position did not require a license. Further, Bates argues that he had served the respondent with his "First Set of Interrogatories" but the respondent had yet to answer the interrogatories and that the ALJ allowed the respondent to not provide answers to his interrogatories in violation of Wis. Stat. § § 804.08 and 804.09. Bates argues that he was prejudiced by this because relevant evidence was not made available.
The case file shows that the discovery request mentioned above by Bates was actually his "First Set of Interrogatories and Demand for Production of Documents" which requested the respondent to "1. Provide the full name, resume and portfolio of each candidate who filled any of the following positions: (a) Project Architect (b) Studio Leader (I & II) (c) Architectural AutoCAD Manager" and asked, "2. If 'external' means applicants not currently employed would you please explain what word 'external' means. (1) You can use any American dictionary of the English Language."
Bates' discovery requests were sent to the respondent in violation of ERD's discovery rules because they were sent prior to the time that discovery was allowed to begin. Wisconsin Admin. Code § DWD 218.14(1) states that "Discovery may not be used prior to the time that a matter is certified to hearing..." This matter was not certified to hearing until May 23, 2006. Bates served his discovery requests on the respondent on December 21, 2005, which was before the ERD had even assigned his discrimination complaint to an equal rights officer for investigation. On November 16, 2006, when the ERD sent the notice of hearing for this matter to the parties, the ERD also sent along an Information Sheet which briefly discussed pre-hearing discovery, stated that the Division had rules that detail most of the procedures before, at and after the hearing and enclosed a copy of those rules with the information sheet. (The rules enclosed were the Chapter DWD 218 rules.) Bates never served his discovery requests in conformity with § DWD 218.14(1). Apparently, he never read the rules.
Evidently it was not until Bates' March 19, 2007 motion to adjourn the hearing originally scheduled for March 21, 2007, that the ALJ became aware of Bates' attempt to seek discovery. Bates' March 19 motion to adjourn the scheduled March 21, 2007 hearing included the following as reasons: First, that he had not received the respondent's answers to his "First Set of Interrogatories"; and second, that his father was in the hospital in very serious condition, probably dying, and he could not prepare himself, either emotionally or physically, for the currently scheduled hearing.
On March 20, 2007, the ALJ held a telephone conference with the parties and granted Bates' request to postpone the hearing based on Bates' statements about the health condition of his father. The ALJ noted this in a letter to the parties dated March 22, 2007, along with the fact that Bates had provided a letter from a physician stating that Bates' father was in the hospital in critical condition and that such crisis would last at least for the next two weeks. The ALJ stated that with that in mind, he was rescheduling the hearing for April 9, 2007, the latest of the three days discussed for a hearing date during the conference.
The re-scheduled hearing date of April 9, 2007, left about three weeks for Bates to conduct discovery. Wis. Stat. § 804.08(1)(a) allows a party 30 days to respond to written interrogatories. However, the court may allow a shorter period of time for a response. 804.08(1)(b).
The question that arises is whether the ALJ should have had Bates resend his discovery request to the respondent and required the respondent to respond at a date before the April 9, 2007 rescheduled hearing date. As previously noted above, Bates' December 21, 2007, "First Set of Interrogatories and Demand for Production of Documents" requested the respondent to "1. Provide the full name, resume and portfolio of each candidate who filled any of the following positions: (a) Project Architect (b) Studio Leader (I & II) (c) Architectural AutoCAD Manager" and asked, "2. If 'external' means applicants are currently employed would you please explain what word 'external' means. You can use any American dictionary of the English Language."
The difficulty that presents itself at this point, however, is that there is no way of knowing how long it would have taken the respondent to obtain the documents Bates wanted. Aside from that, there is also the fact that long ago the Division had provided Bates with a copy of the rules regarding discovery but he apparently never bothered to read the rules.
However, even had the respondent answered Bates' "First Set of Interrogatories", it is not apparent how a response to a request for the names and resumes of the individual(s) who filled the Architectural AutoCAD position, or the respondent's definition of what "external" meant, would establish what the required minimum qualifications for this position were or explain why he did not meet the minimum qualifications for the Architectural AutoCAD Manager position. The only document (marked as Exhibit 10) Bates had regarding the Architectural AutoCAD position at the hearing-a letter of rejection for this position that he received from the respondent-was not admitted into the record because Bates had not disclosed prior to the hearing that he intended to use this document at the hearing. The record shows that this is a document that the respondent had requested Bates to bring with him to his deposition but which Bates had failed to bring to the deposition. Bates has indicated that he had failed to do so in part because the room that his papers were in was "a big mess" and because he was spending time in the hospital with his father who was dying. However, the record also shows that subsequent to the deposition counsel for the respondent sent a letter to Bates in which counsel noted Bates' promise to provide counsel with all the documents he had regarding any applications submitted to the respondent, stated that those documents had not yet been received and asked that they be provided immediately. Bates never provided any documents to counsel. Counsel objected to the admission of Exhibit 10 on the grounds that it was not disclosed pursuant to the rules, that he had not seen it before and that he had not had a chance to discuss it with his client. The ALJ sustained the respondent's objection to admission of Exhibit 10.
Finally, Bates appears to argue that Culver was not truthful when she testified to having no knowledge of his national origin because she was present during an interview he had for employment with the respondent some years prior to 2005. Bates apparently claims that Culver did know his national origin because of a previous interview that he had with the respondent. However, Bates failed to present any testimony at the hearing to establish how this alleged prior interview caused Culver to know his national origin. Furthermore, at the hearing the only question that Bates asked of Culver during cross-examination was whether or not she possessed a degree in architecture.
cc: Attorney Michael Westcott
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