FREDERICK YOUNG, Complainant

COUNTY OF MILWAUKEE, Respondent

An administrative law judge 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 administrative law judge.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1.         In the second sentence of the third paragraph of the administrative law judge's decision the date “August 20, 2014” is deleted and the date “August 20, 2010” is substituted therefor.

2.            In paragraphs 1, 2, 4 and 5 of the administrative law judge's FINDINGS OF FACT the acronym “DHSS” is deleted and the acronym “DHHS” is substituted therefor.

3.            Wherever the term “Human Resource Worker” appears in the decision it is deleted and the term “Human Service Worker” is substituted therefor.

DECISION

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

Dated and mailed March 19, 2015

751

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In his petition for commission review the complainant makes a variety of arguments in support of reversal.  First, the complainant argues that the hearing was not fair and impartial, and that administrative law judge created an intimidating atmosphere.  The complainant maintains that at one point the administrative law judge directed him not to look at his documents and that it appeared to be an effort to prevent him from entering documents into evidence.  The complainant also contends that the administrative law judge engaged in ex parte communications with the respondent prior to the hearing.  He states that the attorney for the respondent sent a letter to the administrative law judge on February 7, 2014, but that he never received a copy.  The complainant further maintains that the administrative law judge “held court” with people on the respondent's witness list, and that the complainant was not part of the discussion.  These arguments fail.  The commission's review of the synopsis of the hearing, exhibits, and administrative law judge's decision reveals no reason to question the impartiality of the administrative law judge and no basis to conclude that the complainant received anything other than a full and fair opportunity to present his case on the merits.  While the complainant contends that the administrative law judge attempted to prevent him from entering documents, not one of the documents introduced by the complainant at the hearing was rejected.  Nor do the complainant's contentions about ex parte contacts between the respondent and the administrative law judge bear out.  The complainant was “cc'd” on the February 7, 2014 correspondence from the respondent's attorney, which constituted the respondent's witness and exhibit list, and gave no indication at the hearing that he never received it.  Finally, the mere fact that the administrative law judge may have engaged in a conversation with some of the respondent's witnesses--assuming that this actually occurred--is not evidence of improper ex parte communications.

Second, the complainant argues that the hearing violated his rights under the ADA because the administrative law judge failed to provide reasonable accommodations for a condition for which he receives social security benefits.  The complainant maintains that he requested a postponement because he was dealing with an episode of gout and did not have time to prepare for the hearing.  He states that he did not have health insurance and therefore could not provide medical documentation.  Again, this argument fails.  The complainant did not request an accommodation for a disability at the hearing, and his attempt to frame the issue in terms of a denial of a reasonable accommodation is unavailing.  The complainant requested a postponement of the hearing date on the ground that he was medically unable to prepare for the hearing due to a bout of gout that he stated began two months earlier, but did not make that request until the day of the hearing.  The complainant provided no information that would have warranted a conclusion that his condition was too debilitating to allow him to prepare for the hearing and, when asked why he did not request a postponement earlier, the complainant contended that he did not know how to reach the hearing office.  The commission agrees with the administrative law judge that this explanation was not credible and it believes her decision to deny the complainant's last-minute postponement request was appropriate.

Third, the complainant disputes the finding that the jobs for which he applied would have required him to make in-home visits.  The complainant contends that the respondent procured no documents to indicate that in-home visits were required of human service workers and states that the job description is silent on that issue.  There is no merit to this argument.  The respondent's witness testified that both of the positions in question involved home intake assessments, and the job descriptions do, indeed, reflect that fact.  The job description for the position of “Human Service Worker (Aging)” references “travel to client homes throughout Milwaukee County,” while the job description for “Human Services Worker” specifies that it includes “conducting home visits.”  Consequently, there is no reason to question the finding that home visits would have been required.

Fourth, the complainant argues that the respondent produced no evidence of disciplinary actions taken against him and provided no documentation of progressive discipline to support its allegations that he had been disciplined on several occasions.   The complainant contends that the administrative law judge arrived at that conclusion based solely on a one-page summary submitted by the respondent that was not supported by the personnel file.  However, the administrative law judge's finding that the complainant was disciplined on several occasions and for a variety of reasons is well-supported by the record.  The fact that the complainant received the prior discipline in question is reflected in the findings of the Milwaukee County Personnel Review Board, Exhibit 4 in the record, and the complainant testified, consistent with those findings, that prior to his discharge he had received four written reprimands and a three-day suspension.

Finally, the commission notes that the complainant expends much of his petition attempting to relitigate his 2007 discharge.  However, this proceeding deals only with the 2011 failure to hire, and the administrative law judge did not find that the complainant did or did not engage in any specific conduct in 2007.  Rather, the administrative law judge's decision indicates that the Milwaukee County Personnel Review Board made findings that the complainant had engaged in certain conduct--a matter which is not in dispute--and concluded that the respondent decided not to rehire the complainant based upon those findings.  What is relevant in this case is that the respondent has a policy of not rehiring individuals who have been terminated for good cause, and that the individual responsible for the hiring decision, the human resources coordinator with the county's Department of Aging, discovered that the complainant had been discharged for good cause and, further, concluded that the issues that resulted in the discharge were relevant to the job the complainant was currently seeking, which involved similar responsibilities.  The human resource director's good faith belief, based upon the information available to her, that the complainant would not be a good candidate for the position of Human Service Worker, constitutes a legitimate, nondiscriminatory reason for the respondent's decision not to rehire the complainant.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive.  Because the evidence adduced at the hearing failed to establish probable cause to believe that the complainant was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.

cc: Frederick Young
     Attorney Colleen A Foley

uploaded 2017/01/23