RICK JACKSON, Complainant

USF HOLLAND, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order in this matter on May 31, 2002, dismissing "the complaint" of the complainant, Rick Jackson. A timely petition for review was filed.

Based upon a review of the record, the Labor and Industry Review Commission has determined, for the reasons stated in the attached memorandum opinion, that the ALJ's order must be set aside and that this matter be remanded to the Division for a probable cause hearing on the complainant's August 9, 2000 complaint against USF Holland while the complainant's December 3, 2001 complaint against USF Logistics be dismissed as untimely. Accordingly, the commission hereby issues the following:

The May 31, 2001 order of the administrative law judge is set aside. This matter is remanded to the Equal Rights Division for a probable cause hearing on Rick Jackson's August 9, 2000 complaint against USF Holland. Rick Jackson's December 3, 2001 complaint against USF Logistics is untimely and therefore dismissed.

Dated and mailed October 29, 2002
jacksri . rpr : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

Rick Jackson alleged in a complaint filed with the Equal Rights Division on August 9, 2000, that USF Holland refused to hire him on the basis of conviction record because of a "no felony conviction policy." Jackson alleged that this occurred on "1/14/00." USF Holland responded to Jackson's complaint, asserting that it had no record of Jackson ever applying at any of its locations and denying that it had a no felony conviction policy.

On February 14, 2001, an initial determination was issued finding no probable cause to believe that the respondent had violated the Act. Jackson filed a timely appeal and the matter was certified to hearing for a probable cause hearing on July 26, 2001.

USF Holland deposed Jackson prior to the scheduled hearing. At the July 16, 2001 deposition, Jackson identified his August 9, 2000 complaint. Jackson apparently mistakenly read the date "1/14/00" his complaint showed the alleged discriminatory action to have occurred, to read "11/14/00." Jackson stated that the 11/14/00 date was in error and should have been 11/14/99. (See August 9, 2000 complaint and Jackson's deposition testimony at p. 16.) Jackson then testified that he first applied for a job around Thanksgiving of 1999 and then later again in about April of 2000. (Jackson dep. at 17.) Jackson testified that when he applied for a job in April 2000, "USF Holland or USF Holland Logistics" (1)   had run a job advertisement. Jackson testified that in April 2000 he called the phone number listed in the April 2000 advertisement and spoke to a Virgil Pope who was working out of the USF Logistics' terminal in Argyle, Wisconsin. Jackson testified that Pope told him that he could not be hired due to his felony conviction. With respect to when he had first sought employment (i.e., the "November 1999" alleged date), Jackson testified that he did not remember whom he had spoken to, but he believed that his call had been made to the Milwaukee or Rockford terminal. (Jackson Dep. at 21.)

Jackson testified that he did not know whether Pope worked for USF Holland or USF Logistics, and that he just assumed that USF Holland and USF Logistics were the same company. While not specifying whether he was referring to his complaint filed against USF Holland or the allegations he was making with respect to USF Logistics at his deposition, Jackson expressed an interest in not "wasting everybody's time" if liability could be avoided based on a company's name.

Apparently, after the conclusion of Jackson's deposition the parties contacted ALJ Grandberry to inquire whether or not Jackson's complaint could be dismissed and the July 26, 2001 hearing date cancelled or stayed. The ALJ requested that the parties brief the matter, and agreed to a stay of the July 26 hearing.

Subsequently, on July 20, 2001, USF Holland filed a motion to dismiss Jackson's complaint for failure to state a claim on which relief can be granted. USF Holland asserted that Jackson had failed to state a claim for which relief could be granted because he "never applied" for employment with USF Holland. USF Holland argued that Jackson admitted at his deposition that he failed to name the proper respondent and instead believed that he had applied for employment at USF Logistics. (While Jackson did express a lack of knowledge as to whether USF Logistics and USF Holland were the same company, nowhere in the transcript of Jackson's deposition does it show Jackson admitting that he failed to name the proper respondent. Furthermore, nowhere in the deposition transcript does it show Jackson admitting that he believed he had applied for employment at USF Logistics instead of USF Holland. Throughout his testimony, Jackson always maintained that he was first refused employment on the basis of conviction record by USF Holland.) Along with its motion to dismiss, USF Holland included an affidavit from Jeanne Read, USF Holland's EEO coordinator. Among other things, Read's affidavit states that USF Holland has a terminal located in Milwaukee, Wisconsin, but not Argyle, Wisconsin, that USF Holland has no record of Jackson applying for a position at the Milwaukee terminal or at any of its terminals, that there is no record of Virgil Pope ever being employed by USF Holland, and that USF Holland and USF Logistics are completely separate corporate entities and have no relationship to each other with respect to management, personnel, equipment, employment policies or practices, or locations.

Jackson opposed the dismissal of his complaint. Jackson asserted that in "mid- November" he had phoned approximately 40 companies, one of which was USF Holland, seeking either a local or an over-the-road truck driving job or dock work, and that he was denied employment. (2)   Jackson asserted that he had filed a timely complaint against the proper company, but that subsequently he had also contacted USF Logistics and had a phone conversation with Virgil Pope. Jackson asserted that he in fact had contacted both companies but failed to include both legal names in his complaint. Jackson requested to be allowed to proceed against both companies.

Thereafter, on November 20, 2001, the ALJ issued an order denying USF Holland's motion to dismiss and requiring Jackson to file within 30 days "an amended complaint naming the proper Respondent or Respondents." The ALJ's order stated that he would decide whether or not to remand the matter for a new initial determination after examining the amended complaint.

On December 3, 2001, Jackson filed a second complaint with the ERD (3) in which he named USF Logistics in Argyle, Wisconsin, as the respondent. In this complaint Jackson alleged that "Telephonically, Virgil Pope Logistics Manager refused to allow me to fill out an application for employment due to USF Logistics blanket policy of not hiring convicted felons." Jackson's complaint states that "This is an addendum to an order to amend by ALJ John A. Grandberry." Under the section of the complaint asking for the date the alleged discriminatory action first happened, Jackson referenced his original complaint (which had the date "1/14/00").

Evidently, on March 22, 2002, the ALJ directed that Jackson submit within 20 days any evidence he had that established the nature of the relationship between USF Holland and USF Logistics. The ALJ stated that Jackson's response should specifically address the statements contained in the affidavit of Jeanne Read from USF Holland.

Jackson's response was filed with the ERD on March 27, 2002. His response included the following assertions:

"I contacted by (sic) USF Holland and USF Logistics. It was April 2000 when I contacted USF Logistics where I made just one call to Virgil Pope. November 1999 and (sic) again I called the Milwaukee office of USF Holland that told me no felons are to be hired at any capacity after I ask (sic) for dock work or driving."

Jackson also asserted that a "major problem here" was that USF Logistics and USF Holland used the same logos and identical trucks, but used different company names "to escape liability and for other tax write-offs."

On May 31, 2002, the ALJ issued an order stating that "the complaint" in this matter is dismissed. The ALJ stated that Jackson's response did not provide a basis for establishing a legal relationship between USF Holland and USF Logistics.

Apparently, the ALJ's basis for dismissal of "the complaint" was: 1) Jackson was actually only claiming that one company -- USF Logistics -- had discriminated against him in early 2000; and 2) because Jackson had originally filed his complaint on August 9, 2000, an amended complaint which properly identified the respondent would be considered timely provided a showing was made that the relationship between USF Logistics and USF Holland was so close or intertwined that they were functionally equivalent. As noted in the ALJ's May 31, 2002 decision, however, Jackson failed to supply any evidence regarding the nature of the relationship between USF Logistics and USF Holland. Thus, the ALJ must have concluded that the complaint (i.e., the December 3, 2001 amended complaint) against the intended respondent-USF Logistics-was untimely as it was filed more than 300 days after the early 2000 alleged discrimination.

In his petition for review Jackson argues, among other things, that "I called USF Holland 1-14-2000 & it was USF Logistics in April 2000. I did file timely in both cases."

The commission concludes that the ALJ's decision must be set aside and that an order be issued: 1) Remanding the matter to the division for a probable cause hearing on Jackson's August 9, 2000 complaint against USF Holland; and 2) dismissing Jackson's December 3, 2001 complaint against USF Logistics.

The August 9, 2000 complaint

Jackson's August 9, 2000 complaint filed against USF Holland was timely. In response to a question on the complaint asking when the alleged discriminatory action first happened, Jackson stated "1/14/00." August 9, 2000, is less than 300 days after the alleged discrimination occurred. Further, contrary to argument by USF Holland, Jackson's complaint does state a claim for which relief can be granted. Jackson's August 2000 complaint names USF Holland as the respondent and lists a Milwaukee, Wisconsin address for USF Holland. Jackson's August 2000 complaint alleges that USF Holland refused to hire him on the basis of conviction record because of a "no felony conviction policy."

The December 3, 2001 complaint

Jackson's December 3, 2001 complaint is a discrimination complaint against USF Logistics. In this complaint Jackson alleges that USF Logistics' manager, Virgil Pope, refused to hire him on the basis of conviction record because of USF Logistics' blanket policy of not hiring convicted felons. Jackson's complaint appears to suggest that this first happened on January 14, 2000, but he stated at his deposition that this had occurred in April 2000 during a call to Pope in Argyle, Wisconsin. In any case, the affidavit of Jeanne Read submitted by USF Holland includes the statement that "USF Holland and USF Logistics are completely separate corporate entities, and have no relationship to each other with respect to management, personnel, equipment, employment policies or practices, or locations." Although given an opportunity to present evidence showing the existence of a relationship between USF Logistics and USF Holland, Jackson provided no evidence whatsoever to show that there was a relationship between these two companies. It is thus uncontroverted that USF Logistics and USF Holland are completely separate corporate entities. Jackson's December 3, 2001 complaint against USF Logistics therefore constituted a new discrimination complaint. The complaint against USF Logistics was filed more than 300 days after the alleged discrimination occurred and therefore must be dismissed as untimely.

cc: Attorney Margaret Parnell Hogan

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(1)( Back ) The company Jackson refers to as "USF Holland Logistics" is actually USF Logistics.

(2)( Back ) Whether it was "1/14/00" or "11/14/99" that Jackson had allegedly been refused employment by USF Holland, his August 9, 2000 complaint against USF Holland was timely as it was filed less than 300 days from either date.

(3)( Back ) Jackson's December 3, 2001 complaint was apparently forwarded to ALJ Grandberry.

uploaded 2002/11/08