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

CARLTON A JACKSON, Complainant

MANPOWER, INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200900085, EEOC Case No. 26G-2009-00538C


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 conclusions in that decision as its own, except that it makes the following modification:

The 4th finding of fact is deleted.

DECISION

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

Dated and mailed April 30, 2012
jacksca : 120 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

In his petition for commission review, the complainant simply requests a review of the ALJ's decision.  He has not provided any reason for his request, nor has he specified any aspects of the hearing that he considers inadequate or any factual findings with which he disagrees.  Nevertheless, the commission has reviewed the hearing record to determine whether the ALJ's findings of fact and conclusions of law are supported.  With the exception of the modification explained below, the commission agrees with the factual findings made by the ALJ and with his legal conclusion that the complainant failed to demonstrate probable cause that the respondent discriminated against him or discharged him because he had filed an earlier complaint against the respondent.

The commission has modified the findings of fact to delete one finding, the factual basis for which is not in the record of the hearing, although there are documents relating to that finding in the case file.  However, those documents were not marked as exhibits in the record, nor was there testimony during the hearing about those documents or about the complainant's work performance.

The commission notes that at the beginning of the hearing the complainant expressed concerns that the respondent had not responded to his discovery request.  However, as the ALJ explained, the complainant's discovery request was not timely.  The complainant filed his appeal to the investigator's no probable cause decision on April 1, 2009, and the equal rights division (ERD) certified the case for a hearing on probable cause on April 14, 2009.  The complainant, in a letter received by the ERD on July 20, 2009, notified the respondent that he intended to seek discovery, pre-hearing conference, deposition and request for mediation.  The parties were notified by notice of hearing dated February 3, 2010 that the hearing in this matter would take place on April 8, 2010.  However, the complainant did not file his discovery request (a request for the respondent to produce various documents) until March 24, 2010, approximately two weeks before the scheduled hearing.  On that same day, he also filed a list of documents and potential witnesses he intended to use at the hearing.

With regard to discovery requests to the other party relating to the production of documents, Wis. Stat. § 804.09(2)(b) provides that the party upon whom the request is served "shall serve a written response within 30 days after the service of the request . . ."   The ALJ pointed out to the complainant that the respondent still had two weeks within which to respond to this discovery request, and that, therefore, the request was untimely.  As to the complainant's list of documents and potential witnesses for the hearing, that filing (which requires no response by the other party) was timely under Wis. Admin. Code DWD 218.17, which provides that such filing must be made by no later than the tenth day prior to the hearing.

 

cc: Attorney Lucas Thomas


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uploaded 2012/06/15