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

MICHAEL YOUNG, Complainant

COPPS FOOD CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199803326

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, except that it makes the following modifications:

1. In the second line of paragraph 3 of the FINDINGS OF PROBABLE FACT, the word "employment" which follows the word "part-time" is deleted and the words "grocery bagger" are substituted therefor.

2. In the fourth line of paragraph 6 of the FINDINGS OF PROBABLE FACT, the word "than" is deleted and the word "then" is substituted therefor.

DECISION

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

Dated and mailed December 29, 1999
youngmi.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Michael Young, an adult, alleges that he was denied employment as a grocery bagger by Copps on the basis of race and conviction record. Young, who states that he is "half black and half white," asserts that when Corene Mahlock, the assistant customer service manager, gave him an employment application she commented that he had a criminal record. Young asserts that he does not believe that a white person would have been approached in that manner. Young asserts that he told Mahlock that he "had not been convicted by a legitimate court," that he did not consider the "white people's court to be legitimate." Young apparently claims that because of his race, Copps conducted an investigation of him at the police station and court house. Young claims that he was discriminated against on the basis of conviction record, asserting that when he returned to inquire about his employment application he was told that he was not being hired because he had a criminal record. Young asserts that there was nothing mentioned about him having falsified his application at any time. Young apparently claims that he had quite clearly informed Mahlock that he did not have a record of conviction by a "legitimate court," and therefore he had not falsified his employment application.

The record fails to support Young's claims. The administrative law judge did not find Young to be a credible witness. Mahlock denies giving an employment application to Young or having had any conversation with him about a conviction record. Testimony on behalf of Copps showed that it was standard procedure to conduct criminal background checks on all adult applicants. John Richards, prevention loss manager, testified that he conducted a criminal background investigation on Young, along with the other individuals who had submitted applications. Richards testified that he reported to Mahlock having found convictions for Young. Evidence of those convictions were entered as evidence at the hearing. Young answered "No" to the question on the application asking if he had ever been convicted of any violations of law other than minor traffic violations. Young's answer made no mention about not having a record of conviction by a "legitimate court." Copps policy is that applicants who falsify their application are not eligible for employment either before or after they are hired. Mahlock testified that she rejected Young's application for employment and the reason was Young's falsification of his application.

On appeal, Young asserts that the administrative law judge was "very rude, nasty, bias(ed) and unfit at the hearing, he would not allow me to speak on issues important about this case." Young further asserts that the administrative law judge talked with the respondents after he left the hearing room, advising them he was going to dismiss the case. Young has not identified the important issues that the administrative law judge would not allow him to speak on, nor has he specified how, by word or conduct, the administrative law judge had been rude, nasty, biased or unfit at the hearing. The record shows that the only issue that Young was not allowed to raise was a claim of invasion of privacy by William Thauer, the respondent's director of human resources, based on his involvement in obtaining Young's criminal record. Claims of invasion of privacy are not governed by the Fair Employment Act. The only indication of any inappropriate behavior on the part of anyone at the hearing, is that of Young. The record shows that for a period of time Young refused, without any apparent justification, to take the oath. When he eventually did, he refused to raise his hand while being sworn in. The commission is not inclined to place any credence in Young's claim that after he left the hearing the administrative law judge advised the respondents that he was going to dismiss the case. In addition to the fact that this claim by Young is not supported by affidavit, his refusal to be sworn in at the hearing has raised a general question about his trustworthiness, and the sincerity with which this claim has been made.

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