RICK JACKSON, Complainant
KLEMM TANK LINES, 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 February 19, 2010
jacksri6 . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Rick Jackson appeals from the ALJ's July 14, 2009 decision issued in this matter. The ALJ concluded that Jackson: 1) Failed to establish probable cause to believe the respondent refused to hire or employ him in May of 2002 because of his conviction record or because he filed a prior complaint under the Act; and 2) failed to establish probable cause to believe the respondent refused to hire or employ him in November of 2002 because of his conviction record or because he had filed a complaint under the Act. (1)
Jackson makes many assertions/arguments on appeal.
Jackson asserts that the ALJ found that "any trucking job is substantially related to Rick Jackson's conviction record." This assertion is incorrect. Jackson misstates what the ALJ states in his memorandum opinion. The ALJ states that "the convictions held by the Complainant are substantially related to the job of tanker truck driver." ALJ mem. opin., p. 7. (Emphasis added.)
With the above assertion as his premise, Jackson next states that he has on several occasions asked the commission if he should bother to file any failure to hire complaints regarding a truck driving job because the ALJ's will always find his conviction record to be substantially related. Jackson then goes on to note, however, that the commission's position was that each case must be considered separately. Specifically, the commission's position is that each case must be decided based on the circumstances of the particular job in question.
Next, Jackson asserts that the ALJ found that his complaint was frivolous and that he "should be subject to the frivolous action provisions" of the state statutes. While the ALJ does state in his memorandum opinion that Jackson's complaint claims against the respondent are frivolous, what the ALJ states about subjecting Jackson to the "frivolous actions provisions" of the state statutes is that Jackson's continued litigation regarding the job of tanker truck driver should result in application of the frivolous action provisions of the Wisconsin Statutes should the respondent timely raise that issue. This is what the ALJ stated about Jackson's claims:
In May of 2002 the Complainant asked Mr. Burns for an application for employment. Mr. Burns told the Complainant to contact the Respondent to get an application. The Complainant did not contact the Respondent to get an application. He never applied. He was not denied the opportunity to apply. There was no discriminatory conduct. The allegations of discrimination involving these events was frivolous.
[Referring to Jackson's November 2002 application for employment, the ALJ stated:] Based upon a review of the circumstances of the crime and the circumstances of the job, the Administrative Law Judge has concluded that the convictions held by the Complainant are substantially related to the job of tanker truck driver. It is abundantly clear that the conviction record is substantially related, as it has been found in numerous other cases, to this truck driving position. The continued litigation of this issue is frivolous, and should result in the application of the frivolous action provisions of the Wisconsin Statutes should the Respondent raise that issue in a timely manner in future litigation.
ALJ mem. op., p. 7. (Emphasis added.)
Jackson next notes that after issuance of the ALJ's decision in this matter that the respondent filed a motion for sanctions against him under Wis. Stat. § 227.483 for maintaining a frivolous action. However, this motion does not concern the matter now before the commission. A copy of this motion is contained in the case file and it shows that the respondent's motion pertains to ERD Case No. CR200900368, which is an entirely different complaint that Jackson filed against the respondent in 2009.
Next, citing as "newly discovered evidence" a document dated November 12, 2008, as evidence that Kenan Advantage Group, Inc. and Klemm Tank Lines are a "joint employer", Jackson argues that Kenan Advantage "prints and circulates a discriminatory policy" contrary to Wis. Stat. ? 111.322(2). (2) Jackson's argument fails. Even assuming for the sake of argument that Jackson's document constitutes newly discovered evidence, Jackson's assertion about a § 111.322(2) violation by Kenan Advantage is irrelevant because Jackson admitted at the July 24, 2008 hearing held in this matter that a merger took place between Klemm Tank Lines and Kenan Advantage after the year 2002. T. 25-26.
Next, Jackson argues that the ALJ "allowed the respondent to not answer" his Requests for Admission, which he believes "should be [deemed] admitted by operation of law." Jackson's Requests for Admission were included in an "Additional Discovery Request" filed with the ERD on December 21, 2007. The ALJ ruled that the respondent did not need to respond to Jackson's discovery request because this discovery request was made less than 30 days prior to the hearing (at that time scheduled for January 4, 2008), and 26 months after Jackson had the right to begin discovery on October 25, 2005. The ALJ did not err in ruling that the respondent did not need to respond to Jackson's Requests for Admission and there was no admission by the respondent. (3)
In an earlier discovery request dated October 31, 2007, Jackson requested that the respondent produce, among other things, all applications of drivers hired and not hired since May 16, 2002, and all newspaper advertisements for jobs ran for the past 6 years at all Klemm Tank Lines' terminals. Further, Jackson asked if the respondent could "send any proof that it currently has any persons convicted of a felony on its payroll as drivers...[o]r any other era contrary to currently." The respondent objected to the discovery request for all driver applications since May 16, 2002, as not reasonably calculated to lead to admissible evidence and overly burdensome, and objected to the discovery requests for all newspaper ads for jobs ran for the past 6 years and proof that it currently had persons convicted on its payroll as drivers as not reasonably calculated to lead to admissible evidence.
The ALJ ruled that Jackson's discovery requests for the driver applications would cover the years 2003 to 2008 and that his discovery requests were too broad, overly burdensome, not relevant to the case and not reasonably calculated to lead to admissible evidence. The ALJ limited Jackson to obtaining applications for employment from May 16, 2002 through December 2, 2002. With respect to Jackson's request for the newspaper ads for the past 6 years, the ALJ ruled that this request was not reasonably calculated to lead to admissible evidence, was unduly burdensome and unrelated to the narrow time period involved in the case and therefore denied this request. The ALJ also denied Jackson's request for the respondent to prove that it has drivers on its payroll with felony convictions. The ALJ ruled that this request was not reasonably calculated to lead to admissible evidence; that this case was not a class action, that Jackson had not identified any expert necessary to prove a pattern and practice case, and that the request was overly broad and irrelevant as it sought to know currently about the payroll status of felons.
Jackson argues that his request for all applications since May 16, 2002, may have allowed him to establish that Kenan Advantage and Klemm Tank Lines were the same company prior to the hearing, for him to "have become aware of the 'printing and circulating' issue" and to establish that he would have "never been hired with his conviction record." However, the only time period relevant to Jackson's discrimination complaint was during the time period in 2002 when he claims to have been refused hire because of his conviction record. The respondent furnished Jackson with the applications of the drivers hired and the one driver applicant not hired during the period from May 16, 2002 to December 2, 2002. As noted above, the "printing and circulation issue" is irrelevant because Jackson admitted that Kenan Advantage and Klemm Tank Lines did not merge until after 2002.
Jackson further argues that his request for all applications since May 16, 2002, would have shown that the respondent hired more drivers in the Janesville area, that the respondent hires drivers with less than 250,000 miles tank driving experience in two years, or no tank driving experience and also that disparate impact/treatment could have been established. However, again, the only time period relevant in this matter was during the time period in 2002 when Jackson claims he was refused hire. The respondent furnished Jackson with the relevant information he needed to attempt to establish his claim of disparate treatment. Jackson's disparate impact theory of discrimination is not relevant to his discrimination complaint.
With respect to job advertisements the respondent ran for the past 6 years, Jackson argues that he needed to prove "available jobs before and after Nov. 2002." Again, Jackson had available to him information regarding the availability of jobs between May 16, 2002 and December 2, 2002, the relevant time period herein, because the respondent furnished him with all the applications for the drivers it hired between May 16, 2002 and December 2, 2002.
With respect to the respondent having drivers currently on its payroll with felony convictions (or any other era), Jackson argues that this would have established "a discriminatory animus toward convicted felons" and that an impermissible motivating factor was at least in part the reason for his non-hire. Even assuming the absence of a driver with a conviction record currently on the respondent's payroll, or during another era, this would not necessarily have established that the respondent had a discriminatory animus toward convicted felons. Again, the respondent furnished Jackson with the necessary relevant evidence to attempt to establish disparate treatment on the basis of conviction record by producing the applications of the drivers it hired between May 16, 2002 and December 2, 2002.
Next, Jackson cites as "Additional New Evidence" two submitted documents "for Kenan Advantage Group/Klemm Tank Lines" dated September 8, 2009, as evidence showing "a continuing violation as well as a pattern and practice violation". As noted above, however, Kenan Advantage has no relevance to Jackson's instant case. Further, neither does Jackson's claim about documents showing a "continuing violation" and "pattern and practice" violation by Klemm Tank Lines. Jackson's complaint alleges that Klemm Tank Lines unlawfully failed to hire him in May and November 2002 on the basis of conviction record and in retaliation for filing a complaint of discrimination against Klemm Tank Lines. Jackson's complaint concerns only allegations of discrete discriminatory conduct by Klemm Tank Lines against him.
Jackson next asserts that he believes he has "established that conviction record was also a motivating factor as well as pretextual to mask the retaliation motive in this case." Jackson has not cited what evidence establishes that his conviction record was a motivating factor in the respondent's failure to hire him in May or November 2002. It is unclear what Jackson means by his "pretext to mask retaliation motive" assertion. Citing the case of Asmo v. Keane, Inc., 471 F.3d 588 (6th Cir. 2006), however, Jackson asserts that "on the issue of pretext" a plaintiff need only discredit some of an employer's articulated reasons to survive a summary motion. The ALJ did not decide Jackson's instant complaint on a summary judgment motion, nor would it have been appropriate to do so. Jacobs v. Glenmore Distilleries Company (LIRC, 11/25/92), citing Alvey v. Briggs & Stratton (LIRC, 11/27/91); Olson v. Lilly Research Laboratories (LIRC, 6/25/92).
In any case, Jackson has not cited what evidence discredits the respondent's articulated reasons for not hiring him in May or November 2002. Jackson's further apparent claim that he was discriminated against contrary to Title VII of the Civil Rights Act of 1964, Executive Order 11246 (4) , the American Recovery and Reinvestment Act (5) , Title IX (6) , and Federal Hate Crimes statutes (7) are not relevant to his instant complaint against the respondent. Further, nothing in the cases of Ricci v. Destefano, 557 U.S. ___, 129 S. Ct. 2658 (2009), Barnes v. Yellow Freight Systems, 778 F.2d 1096 (5th Cir. 1983), Costa v. Desert Palace, Inc. 299 F.3d 838 (9th Cir. 2002), or Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee, 555 U.S.___, 129 S. Ct. 846 (2009), cited by Jackson provide any reason for the commission to reach a different result than the ALJ did on Jackson's claims of conviction record discrimination and retaliation. In Ricci, the Court held that before an employer can engage in intentional discrimination for the purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability. In Barnes, the issue was whether the plaintiff had established a disparate treatment claim on the basis of race. In Desert Palace, the issue was whether the 1991 amendments to Title VII imposed a special or heightened evidentiary burden on the plaintiff in a case in which discriminatory animus may have constituted one of two or more reasons for the employer's alleged action. (8) In Crawford, the Court held that employees who raise concerns about discrimination or harassment in an internal investigation are protected from retaliation under Title VII's anti-retaliation clause.
Jackson has cited several reasons as to why he believes his conviction record is not substantially related to the circumstances of the job of tanker truck driver at the respondent. First, Jackson cites Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975), a case arising under Title VII. The Green case is not relevant to Jackson's instant claim of discrimination. Title VII has no specific prohibition against discrimination on the basis of conviction record. Green involved the disparate impact theory of discrimination under Title VII. Specifically, the question there was whether the Railroad's policy of refusing to consider for hire any person convicted of a criminal offense had a racially discriminatory effect, i.e., operated to exclude a disproportionate percentage of blacks compared to whites, and was justified by business necessity. The WFEA, however, unlike Title VII, specifically makes it a discriminatory act, subject to certain exceptions, for an employer to discriminate against an individual on the basis of conviction record. One exception to the prohibition against discrimination on the basis of conviction record under the WFEA provides that "it is not employment discrimination because of conviction record to refuse to employ ... any individual who: 1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job..." Wis. Stat. § 111.335(1)(c)1. A violation of the WFEA's prohibition against discrimination on the basis of conviction record is an act of disparate treatment. There is no need to consider a disparate impact theory of discrimination to establish a violation of the WFEA's prohibition against conviction record discrimination.
Next, Jackson apparently argues that the respondent did not cite any case law to support its position that his conviction record is substantially related to the position of truck driver with the respondent. Contrary to argument by Jackson, however, the respondent did cite prior case law in support of its position, including prior cases in which Jackson had litigated the issue of whether his conviction record was substantially related to the job of a particular truck driver position. Moreover, the evidence presented at the hearing fully supports a conclusion that Jackson's conviction record is substantially related to the circumstances of the tanker driver position with the respondent.
Next, Jackson argues that he has been out of prison for 11 1/2 years. Using the date of the brief in which Jackson makes this argument -- September 15, 2009 -- Jackson was released from prison around March 15, 1998. However, in Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96), the commission noted the following: "First of all, there is nothing in the statutory language of the conviction record provision which indicates that the length of time between the conviction record and the alleged discrimination is a relevant consideration. Section 111.335(1)(c)l., Wis. Stats., simply identifies the relevant concern as to whether or not the individual "has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job..." Secondly, the court's interpretation of this provision in County of Milwaukee [v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987)], further indicates that the time elapsed since the offense occurred is not relevant. The court stated that the purpose of this language was the result of the legislature's assessment of how to balance the competing interests of "providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience." Id. at p. 823. The court stated that what is important in this assessment is "not the factual details related to such things as the hour of the day the offense was committed, the clothes worn during the crime, whether a knife or gun was used ... It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person." Id. at p. 824. Furthermore, in County of Milwaukee the court cited with approval at pages 814-815 its earlier decision in Law Enforcement Standards Board v. Village of Lyndon Station, 101 Wis. 2d 472, 305 N.W.2d 89 (1981), where the majority failed to consider, among other things, the time elapsed since William Jessen's conviction for falsification of uniform traffic citations and his employment as the chief of police by the village when considering whether the circumstances of his offense were substantially related to the duties of village chief of police. Lyndon Station, 101 Wis. 2d at 513-515."
In any case, regardless of the merits of whether or not some consideration should be given to the length of time that has transpired since an individual's conviction record, the evidence in this case indicates that Jackson had been out of prison only 4 years -- not 11 1/2 years -- before seeking employment with the respondent in 2002 (and only about one year before being released from parole following his release from prison).
Next, Jackson argues that he would have been hauling gasoline, not general freight. However, the risk of theft is not limited to general freight. Indeed, it was in part because of the respondent's need to deal with concerns including driver theft of petroleum, which is difficult to track, and drivers having access to customer sites 24 hours per day that the ALJ found Jackson's conviction record to be substantially related to the job of a tanker truck driver for the respondent.
Next, Jackson argues that there was an "alternate method for Klemm to not bear any financial risk" if that was the reason for his non-hire; that Klemm could have taken advantage of the Fidelity Bonding Program to shield itself from liability. Jackson's argument that Klemm could have engaged in risk management through the Fidelity Bonding Program to eliminate concerns regarding the substantial relatedness of criminal activity to the job fails. There is nothing in the language of the WFEA which states that employers must take affirmative steps to accommodate individuals convicted of felonies. Knight v. LIRC, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998).
Next, Jackson argues that the Office of Federal Contract Compliance Programs requires that all contractors/subcontractors receiving monies not discriminate against qualified individuals such as himself. Jackson's argument about the OFCCP is not relevant. Jackson's complaint involves claims of discrimination under the WFEA, not the OFCCP over which the ERD/LIRC has no authority.
Next, Jackson argues that his case was primarily a retaliation case that the respondent "managed to convince a friendly ALJ to dismiss ... in part as substantially related." Whether or not Jackson's case was primarily a retaliation case, the ALJ dismissed Jackson's case both because his failure to get hired had nothing to do with retaliation and because of the substantial relatedness between Jackson's conviction record and the circumstances of the tanker driver job. Specifically, the ALJ found that the respondent did not consider Jackson for employment in May 2002 because he never applied for employment at that time, and that the respondent did not hire Jackson in November 2002 because it found Jackson to be very belligerent, rude and threatening during a telephone call, because Jackson did not meet the respondent's required minimum 250,000 driving mile requirement and had no significant tanker experience, and because of a concern about Jackson's "job hopping" history. As for the substantial relationship between Jackson's conviction record and the circumstances of the tanker driver job, the ALJ found that the respondent has to deal with concerns regarding driver theft of petroleum, which is difficult to track, and a driver having access to customer sites 24 hours per day and often making deliveries when there is a single gas station attendant present at the location. Further, the record contains no reason believe that the ALJ was "friendly" toward the respondent.
Next, Jackson argues that "the substantial relationship test was never meant to sweep so broadly as to include retaliation, race, age, sex, or any other disability." As discussed in the paragraph immediately above, the ALJ found Jackson's case to fail on his claims of retaliation and conviction record discrimination independently. The ALJ made no findings concerning race, age, sex or disability.
Next, Jackson appears to argue that because the respondent raised the substantial relationship defense the respondent's other non-discriminatory reasons must fail because in his original case against the respondent the respondent repeatedly denied having a "no conviction record policy." This argument is without merit. First, the respondent's raising of an affirmative defense does not provide any reason to question the respondent's articulated legitimate, non-discriminatory reasons for its actions. A respondent is entitled to raise an affirmative defense to a claim against it, notwithstanding any other legitimate, non-discrimination reasons for its actions. Further, the denial of having a "no conviction record policy" is not inconsistent with the respondent's articulated reasons for its refusal to hire Jackson.
Next, Jackson apparently argues that counsel for the respondent needed the affirmative defense as a back-up plan because Human Resource Manager Debbie Zahn "was caught in too many lies". This argument is also without merit for the reasons already stated above, and because Jackson has not identified any instance where Zahn was "caught in a lie".
Next, Jackson requests that the commission require the respondent to provide to the commission the unredacted (i.e., not completely redacted) applications mistakenly furnished to him during discovery "in order to establish that Klemm did violate [the] W.F.E.A. at least in retaliation." However, there is no reason for the commission to do this. The respondent had provided these applications to Jackson prior to the hearing, Jackson had been able to discern certain information from these "unredacted" applications using a flashlight and he was allowed to use any evidence uncovered from these same applications during the course of the hearing. Jackson thus had ample opportunity to "establish that Klemm did violate [the] W.F.E.A. at least in retaliation", but has failed to do so.
Next, Jackson asserts that "evidence outside the 300 day statute [of limitations period] can be used in a timely filed complaint" and then references his post-hearing briefs submitted to the ALJ. Reviewing Jackson's post-hearing briefs, based upon his citing of the Abbyland v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996), Amtrak v. Morgan, 536 U.S. 101 (2002) and Bowen v. LIRC, 2007 WI App, 299 Wis. 2d 800, 734 N.W.2d 164 (Ct. App. 2007) cases, Jackson is asserting that alleged acts antedating the start of the limitations period (i.e., past acts of alleged discrimination) may be considered as evidence of the respondent's state of mind/background evidence to support an alleged act of discriminatory conduct occurring within the limitations period. While this much is true, Jackson admits that the two pieces of evidence cited in his post-hearing reply brief for this purpose -- a cassette recording of an alleged conversation that Jackson apparently had "with persons" in the respondent's Rockford, Illinois terminal and a copy of the hearing transcript from his case against the respondent in the year 2000 -- is not part of the hearing record in the instant case. Moreover, a review of the record fails to show that Jackson ever attempted to use either of these pieces of evidence at the July 24, 2008 hearing. Indeed, with respect to the cassette recording, Jackson admits in his post-hearing brief that the reason he has mentioned this was for "additional evidence at a hearing on the merits if necessary." Further, with respect to the transcript from Jackson's case in 2000 against the respondent, based on Jackson's assertions in his post-hearing brief to the ALJ his actual reason for referencing this transcript is to show some alleged inconsistency between Zahn's testimony in 2000 and what the respondent has articulated in the instant case as reasons for why he was not hired in 2002. While the transcript from a prior proceeding may have been used for purposes of attempting to impeach the testimony given in the instant case, Jackson never submitted any part of the transcript from his 2000 case in the instant case in an effort to impeach Zahn's testimony. Furthermore, a review of Zahn's testimony given in the instant case does not provide any reason to question her credibility.
Next, Jackson asserts he believes "the evidence is overwhelming and the Commission can find liability on the merits merely on the actual after-the-fact 'printing and circulating' § 111.322(2) consideration as well as the respondent's own testimony and prior testimony." As noted above, Jackson's argument about a § 111.322(2) violation is irrelevant. Contrary to argument by Jackson the testimony by the respondent does not support a violation of the WFEA. Jackson submitted no "prior testimony" by the respondent at the July 24, 2008 hearing to support his claim of discrimination.
Next, Jackson apparently contends that a whistle blower law which requires that "prospective recipients" must be notified of their right to file complaints and Executive Order 13496 which requires federal contractors/subcontractors to post a notice informing employees of their rights under federal labor laws is relevant to his case under the WFEA. However, they are not. Similarly, also not relevant is Jackson's assertion that if the respondent received any grant or stimulus money or had a government contract that it would be subject to the various federal laws that he has mentioned in his brief. Also not relevant is Jackson's discussion about his recent request that the EEOC commissioners file a charge against the respondent.
Next, Jackson characterizes the respondent's August 11, 2009 Motion to Dismiss and for Sanctions against him for Maintaining a Frivolous Action as a "false intimidation complaint". As noted above, this matter is not before the commission.
Next, Jackson mentions the "printing and circulating" cases he has pending before the ERD and the average time taken to get those scheduled for hearing. Further, Jackson asserts that in the instant case the respondent herein has had "three friendly ALJ's" and that "all ALJ's have a hate for Rick Jackson". Jackson's pending cases before the ERD are not germane to his current petition for review. Neither is the ERD's scheduling of hearings. There has been no evidence of ALJ bias against Jackson in the cases reviewed by the commission. If Jackson believes the ALJ scheduled to conduct the hearing on a pending complaint of his before the ERD is biased, Jackson's proper recourse is set forth under Wis. Adm. Code § DWD 218.16 and Wis. Stat. § 227.47(6).
Next, Jackson indicates dissatisfaction that the commission has "never made any significant decisions in his favor" and with the nature of the cases where the commission ordered a respondent to pay back pay, asserts that the commission has not "expressed any concern for any obvious evidentiary and procedural defects approved by various ALJ's" and indicates that this case was seven years old in December 2009. The commission reviews each case before it based on the evidence presented in the case and in accordance with the applicable law. Jackson, or any other party, if dissatisfied with the commission's decision may file a petition for judicial review of the commission's decision. While the length of time this case has been pending is unfortunate, it is not something that would be entirely unexpected given that in April 2005 the commission remanded part of the case for further investigation of Jackson's complaint, after the further investigation and issuance of an Initial Determination by an ERO Jackson filed an appeal for a hearing, there was a need to postpone the hearing originally scheduled for January 2008 to July 2008, which was then followed by post-hearing briefing to the ALJ, which was completed in November 2008, followed by issuance of the ALJ's decision in July 2009, followed by Jackson's petition for review and further briefing by the parties before the commission, which was completed in mid-November 2009.
Next, Jackson cites various provisions of the Code of Federal Regulations (i.e., 41 CFR 60-3.3 et seq.) pertaining to the Office of Federal Contract Compliance Programs, as being applicable to his case. Further, he asserts that the U.S. Supreme Court's decision in CBOC West, Inc. v. Humpries, 128 S.Ct. 1951 (2008)(Section 1981 of the CRA of 1866 encompasses retaliation claims as well as claims of race discrimination) has significance to his case. Neither the Code of Federal Regulations relating to the OFCCP nor the Humpries case has any relevance to Jackson's case.
Next, Jackson expresses his dissatisfaction with the Wisconsin Supreme Court's decision in Milwaukee County v. LIRC, supra. Further, Jackson apparently contends that the court's decision in Milwaukee County is contrary to the Eighth Circuit's decision in Green, supra. While Jackson may be dissatisfied with the supreme court's decision in Milwaukee County, the commission is bound by the court's decision in that case. The court's decision in Milwaukee County is not contrary to the Green case. As explained above, Title VII has no specific prohibition against discrimination on the basis of conviction record. Green involved the disparate impact theory of discrimination under Title VII. The WFEA, unlike Title VII, specifically makes it a discriminatory act, subject to certain exceptions, for an employer to discriminate against an individual on the basis of conviction record. A violation of the WFEA's prohibition against discrimination on the basis of conviction record is an act of disparate treatment. Stated another way, it is not necessary to show that an employer's "conviction record hiring policy" has a racially discriminatory effect on any group under the WFEA because the WFEA makes it unlawful, with certain exceptions, to discriminate against any individual.
Finally, Jackson requests that the commission consider: 1) a document with statistical data regarding the incarceration rate of blacks, whites and Hispanics submitted to the ALJ along with his post-hearing brief as evidence of the "huge 'disparate impact' " against blacks in Wisconsin (emphasis in original); 2) a statistical listing of the arrest and conviction record cases petitioned to the commission and their disposition; and 3) a response from an individual from Legal Action of Wisconsin, Inc., date March 27, 2007, regarding Assembly Bill 30 relating to: Permitting an Educational Agency to Refuse to Employ or to Terminate From Employment an Unpardoned Felon. There is no basis or reason for the commission to consider any of the above items. In addition to these materials not having been presented as evidence at the hearing, they are irrelevant to Jackson's case.
Attorney Robert W. Burns
Appealed to Circuit Court. Affirmed, July 23, 2010. Appealed to the Court of Appeals. Affirmed, unpublished summary disposition, June 7, 2012.
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(1)( Back ) Jackson has a conviction record which includes two counts of armed robbery, two counts of aggravated battery, home invasion, residential burglary, two counts of unlawful restraint and one count of armed violence.
(2)( Back ) Subject to ? 111.33 to 111.36, Wis. Stat. ? 111.322(2) makes it an act of employment discrimination "To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321."
(3)( Back ) Jackson also alleges that he was prejudiced with respect to discovery because he could not afford a lawyer and waited too late to conduct discovery, hoping to retain a lawyer. Further, Jackson alleges that the respondent should be penalized "for obvious non-compliance during discovery." Jackson's arguments fail. Jackson had conducted discovery himself prior to the first hearing in this matter, and has done so in other cases in which he has filed complaints of discrimination. There was no "obvious non-compliance during discovery" by the respondent.
(4)( Back ) This law makes it illegal for federal contractors and certain subcontractors to discriminate on the basis of race, color, religion, sex or national origin.
(5)( Back ) The American Recovery and Reinvestment Act of 2009 is the economic stimulus package enacted by the 111th Congress.
(6)( Back ) Title IX prohibits, on the basis of sex, exclusion from participation in, denial of benefits or being subjected to discrimination under any education program or activity receiving federal financial assistance.
(7)( Back ) Generally speaking, "Hate Crime" statutes involve criminal behavior by a person against a victim because of the victim's race, color, religion, ethnicity, nationality, gender, sexual orientation, gender identity and disability.
(8)( Back ) The U.S. Supreme Court granted certiorari. The Court affirmed the Ninth Circuit, holding that a plaintiff does not need to present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII. 539 U.S. 90 (2003).