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

RICK JACKSON, Complainant

USF HOLLAND, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200002723


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.

DECISION

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

Dated and mailed June 27, 2005
jacksri9 . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

On appeal from the dismissal of his complaint against the respondent, USF Holland, Rick Jackson requests that the commission's review of this matter include a review of the April 4, 2003, videotaped deposition (1)  of Mark Kail, the respondent's Milwaukee, Wisconsin terminal manager at the time relevant herein. However, there is no reason for the commission to do this. Kail testified in person at the hearing in this matter, and Jackson has been given the opportunity to present in writing any alleged inconsistencies between Kail's deposition testimony and the testimony Kail gave at the hearing. A review of the alleged inconsistencies in Kail's deposition and hearing testimony cited by Jackson fails to reveal any reason to question Kail's credibility. Jackson asserted that at his deposition Kail testified that "he was terminal manager for USF Holland for 22 years" while at the hearing Kail testified that "he was the terminal manager for 14 years." Jackson apparently asserted that the reason for Kail's "contradictory" testimony was that Kail did not want to explain the "precise era circa 1985" when William Rahn was hired and why there wasn't a separate piece of paper in the respondent's files with an explanation regarding William Rahn's felony conviction as requested on all applications where the applicant answers affirmatively to the question if the applicant has ever been convicted of a felony. Further, apparently again referencing the separate piece of paper with an explanation for felony convictions, Jackson cites Kail's deposition testimony that he did not recall interviewing any applicants where that separate piece of paper submission was called for, but that Kail also testified that the respondent had employed James Bartes, who was convicted of a felony, from 1998 through the year 2000, when he retired.

First of all, Kail's testimony about his employment as a terminal manager was not inconsistent. Kail had been asked specifically about his tenure as terminal manager in Milwaukee, when he responded that he had been the terminal manager for 14 years. T. 43. Kail consistently testified that he had been a terminal manager for USF Holland for 22 years. Deposition, p. 4; T. 43. Second, Kail did explain, to his knowledge, about Rahn's employment. Kail testified that Rahn was hired by the respondent prior to his arrival as the terminal manager at the Milwaukee facility, that Rahn was a highway driver, that Rahn, a Vietnam vet, was convicted while employed by the respondent for having beaten to death his infant stepdaughter 20 years earlier, and that Rahn was currently on the respondent's inactive seniority roster. T. 68-69, 72-73, 82. Third, since Rahn's conviction occurred after his hire, his application would not have included a separate piece of paper explaining his felony conviction. Fourth, Kail's inability to recall a separate piece of paper with Bartes' application explaining his felony conviction offers no support for Jackson's claim of conviction record discrimination. What is quite probative of Jackson's discrimination claim, however, is the fact that the respondent hired Bartes despite his felony conviction. The fact that the respondent hired Bartes despite his felony conviction directly refutes Jackson's claim that the respondent has a "no felony conviction policy."

Jackson next apparently asserted that an alleged inconsistency existed between Kail's deposition testimony that an employee at the respondent's Milwaukee terminal has been convicted of a felony, and his testimony that Rahn is currently on the inactive seniority roster. The assertion is without merit. Jackson's reference to Kail's deposition testimony that he "Possibly could have interviewed more than 2000 persons in the last 22 years" versus his hearing testimony that "Over the course of 22 years [he had interviewed] maybe 3000, 4000 people" is similarly without merit. Likewise, Jackson's apparent assertion that when asked "how many individuals with arrest and conviction records work at USF Holland in Milwaukee" (emphasis added), Kail's response, "None", is somehow revealing, also fails. Finally, Jackson asserted that when shown at his deposition an individual's application designated R0262, Kail testified that a standard USF application form consisted of 5 pages, but "With pages missing he testified to the contrary at the hearing." Jackson's assertion that Kail "testified to the contrary at the hearing" is apparently a reference to a blank application form, identified as Exhibit A at the hearing, that Kail testified consisted of 9 pages. This assertion also fails. The four additional pages included with Exhibit A simply consisted of a cover page, a drug and alcohol test consent form, a notice and certificate of compliance regarding possession of a commercial driver's license and a release authorizing the respondent to investigate the applicant's past employment and credit history.

On appeal, Jackson next apparently asserts that the ALJ failed to consider his post-hearing brief on the grounds that it was untimely. However, this was not the basis for the ALJ's refusal to consider Jackson's brief. The ALJ did not consider Jackson's brief because the parties had been given the option of making oral closing arguments or submitting written arguments (briefs) after the close of the hearing. Jackson preferred to give oral closing arguments as opposed to submitting written arguments. T. 164. Furthermore, it is discretionary with the ALJ as to whether to allow the parties to submit briefs after the close of the hearing. See DWD 218.20(1).

Next, Jackson argues that the ALJ erred in not allowing him to question Virgil Pope about a phone call inquiry from him regarding a job opening USF Logistics ran in the newspaper. Pope was previously the terminal manager for USF Logistics in Argyle, Wisconsin. Pope acknowledged an inquiry by Jackson about a job when USF Logistics ran the ad in the newspaper. Pope testified, when questioned by the ALJ, that USF Logistics had a policy against hiring felons. Jackson acknowledges that the commission has ruled that he cannot pursue a claim against USF Logistics on timeliness grounds, and he states that he "is obviously not pursuing a claim against USF Logistics." Jackson asserts, however, that Pope's testimony alone "formed a nexus between USF Holland, USF Logistics, and US Freightways (apparently now known as USF Corporation) and, apparently, that if he cannot work for USF Logistics "then all of the above companies would have the same policy in place..." Pope testified that US Freightways consisted of a number of subsidiaries, including USF Logistics and USF Holland. Pope testified that the subsidiary companies operated on a stand-alone basis with their own president, chief executive officer and boards, that that they all, in turn, answer to US Freightways' board of directors. Further, in conjunction with his written arguments to the commission, Jackson has sought to introduce (as "newly discovered evidence") evidence regarding company logos, e-mail addresses and board memberships as shown in various editions of Dun & Bradstreet's Million Dollar Directory, to support his claim that all of the companies in question would have the "no felony conviction policy."

Jackson's claim that there was error by the ALJ fails. First of all, Jackson conveniently ignores testimony by Pope that shows Pope had no knowledge regarding his claim that USF Holland had a "no felony conviction policy." Specifically, Pope's testimony that he could not answer whether or not US Freightways had any policy regarding the hiring of persons who had felony convictions, that he was not aware of any policy that USF Holland had in regard to the hiring of individuals who had felony convictions and Pope's testimony that he had never been employed by USF Holland. T. 33, 36. Secondly, Jackson completely ignores other evidence that more directly refutes his claim; that is, the fact that USF Holland currently has one individual on inactive status who has a felony conviction and that it previously employed for two years until his retire in the year 2000, another individual with a felony conviction.

Jackson's enclosure and reference to a December 16, 2004 letter from Joseph Manfredi (apparently the respondent's current Milwaukee terminal manager), which indicates that the respondent was returning a recent application of Jackson's to him in part because he had not supplied, on a separate sheet of paper, a full explanation on any convictions, guilty pleas, or no contest pleas, even if it could be considered as evidence by the commission, fails to support his claim against the respondent for the reason previously stated above in the second paragraph of this memorandum opinion. Jackson's further assertion that Manfredi's letter also shows the respondent made "incomplete responses to [his] discovery requests", is entirely unclear. It may be that Jackson is again making a reference to Bartes' hire in 1998 and Kail's inability to recall a separate piece of paper with Bartes' application explaining his felony conviction. However, if so, this is not evidence of an "incomplete response to his discovery requests" because the ALJ had ordered the respondent to provide Jackson with "copies of all applications for the period of August 9, 1998 through August 9, 2001 at its Milwaukee terminal" and because the evidence of record does not establish exactly when in 1998 that Bartes was hired. (2)

Finally, Jackson argues, based on two 2004 applications submitted to the respondent that have Kail's signature or initials, that Kail's denial of having seen what was marked as Exhibit 11 recently, is incredible. Exhibit 11 is a Disclosure And Authorization For Release of Information form with the name USF Holland in the top left corner. The form states that Robert Arden and Associates, a credit reporting agency, may be asked to include in a consumer investigative report a check of applicable criminal police or court records. (3)   Even if these two applications could be considered by the commission, they fail to call into question Kail's testimony. Jackson apparently contends that because Exhibit 11 and the 2004 applications both cite Robert Arden & Associates as preparing investigative reports, this somehow discredits Kail's denial of having seen Exhibit 11 recently. It does not. Indeed, Kail's actual testimony was that "I've seen it [Exhibit 11] in the past. Have not seen it recently as our applications has changed from time to time." (Emphasis added.)

In his closing arguments at the hearing, Jackson apparently argued that because Exhibit 11 showed the respondent investigated an applicant's applicable criminal police or court records, this refuted Kail's denial that the respondent had a "no felony policy." However, the fact that an employer may want to obtain information regarding an applicant's criminal background is not proof that it has a "no felony policy."

Another argument Jackson made in his closing arguments was that the ALJ should have allowed him to subpoena Jeff Kirkpatrick as a witness. Kirkpatrick was apparently a driver for the respondent working out of the respondent's Rockford, Illinois terminal. Jackson asserted that Kirkpatrick told him that USF Holland's policy was that "if you have any kind of arrest record, you can't work there doing anything, dock or driving, city and (unintelligible). T. 112. The respondent filed a motion to quash the subpoena of Kirkpatrick on the grounds that Kirkpatrick never worked at the respondent's Milwaukee terminal and that his only contact with Jackson was on or about March 8, 2003, and thus could not possess any knowledge relevant to Jackson's alleged discriminatory action in August 2000 at the respondent's Milwaukee terminal. At a telephone conference held on April 1, 2003, the ALJ granted the respondent's motion to quash the subpoena of Kirkpatrick on the grounds that Kirkpatrick's testimony appeared to be cumulative of what Jackson intended other witnesses to testify about and thus unduly repetitious. While Jackson evidently was unable to get a hold of these other intended witnesses, there is no reason to find any error in the ALJ's decision to grant the respondent's motion to quash the subpoena for Kirkpatrick. Moreover, the evidence presented with respect to the respondent's employment of individuals with conviction records directly refutes Jackson's claim that the respondent had a "no felony policy."

cc: Attorney Allan C. Cave, Jr.



Appealed to Circuit Court.  Appeal dismissed July 21, 2005.  Appealed to the Court of Appeals.  Circuit Court decision reversed, sub nom. Rick Jackson v. LIRC and USF Holland, 2006 WI App 97, 715 N.W.2d 654 .  On remand to the Circuit Court, LIRC's decision affirmed, December 12, 2006Appealed to the Court of Appeals.  Affirmed in unpublished decision, June 13, 2008. Petition for Supreme Court review denied.

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Footnotes:

(1)( Back ) A typewritten transcript of Kail's deposition was also prepared.

(2)( Back ) Since Jackson was interested in working for the respondent in 1999 and 2000, the ALJ's order for the respondent to provide Jackson with copies of all applications for the period of August 9, 1998 through August 9, 2001, was entirely reasonable.

(3)( Back ) Jackson asserted that what was marked as Exhibit 11 was included amongst the applications received from the respondent (i.e., Exhibit 10) in connection with the ALJ's February 3, 2001 order that the respondent provide him with copies of applications submitted at the respondent's Milwaukee terminal from August 9, 1998 through August 9, 2001. The ALJ refused to admit this document into evidence, however, because unlike all of the pages in the documents in Exhibit 10, which were Bates-stamped, Exhibit 11 was not, and Exhibit 11 had not otherwise been identified as an exhibit prior to the hearing. T. 119-121.

 


uploaded 2005/07/01