P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DARRYL WARD, Complainant

HOME DEPOT, Respondent

ERD Case No. CR200400832

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:

The second sentence of numbered paragraph 3. in the FINDINGS OF FACT AND CONCLUSIONS OF LAW section is deleted.

In the first numbered paragraph in the ORDER section, the words "arrest and" are deleted.

In the second numbered paragraph in the ORDER section, the word "his" is substituted for the word "her," and the word "he" is substituted for the word "she."

Numbered paragraph 4. in the ORDER section is deleted, and the following substituted:

Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision, including a description of all computations used to determine the amount of back pay. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.

The MEMORANDUM OPINION section is deleted, and the following substituted:

In the charge he filed on February 25, 2004, the complainant alleged that respondent withdrew its offer of employment based upon his 1999 conviction for felony second degree endangering safety (1).

On page 4 of its March 23, 2004, position statement, the respondent asserts the affirmative defense stated in Wis. Stat. § 111.335(1)(c)1., i.e., that a substantial relationship exists between the circumstances of the second degree endangering safety offense and the circumstances of the order puller job offered to the complainant. In his April 27, 2004, response to this position statement, the complainant argues that no such substantial relationship exists here.

In the notice of hearing dated November 18, 2004, ERD provided notice to the respondent that it "must file a written answer within twenty-one (21) days after the date of a notice of hearing on the merits of the complaint"; and that, "[a]ll affirmative defenses...should be filed in writing within that 21-day period or they may be considered waived."

The respondent did not file an answer or appear for the noticed hearing.

At hearing, the administrative law judge (ALJ) stated that "[a]ny affirmative defenses that the respondent may have had, including the substantial relationship defense, are waived by [its] failure to appear or to otherwise raise the defense." In the Memorandum Opinion section of his decision, the ALJ indicates that the respondent's failure to appear at the hearing prevented it from raising any affirmative defenses.

The commission disagrees with the ALJ's conclusion that the respondent waived its right to rely upon the substantial relationship affirmative defense in its petition to the commission.

Wisconsin Administrative Code § DWD 218.12 states as follows, as relevant here:

Answer. (1) WHEN REQUIRED. Within 21 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint upon which there is a finding of probable cause...

(2) CONTENT OF ANSWER. ...Any affirmative defense relied upon...shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

As the commission stated in Jackson v. Summit Logistics Services, Inc., ERD Case No. CR200200067 (LIRC Oct. 30, 2003), although the substantial relationship test articulated in Wis. Stat. § 111.335(1)(c)1. qualifies as an affirmative defense, failing to raise this defense in an answer does not constitute a waiver if this failure was not unfair or prejudicial to the complainant. See, Oehlke v. Moore-O-Matic, Inc., ERD Case No. 8401191 (LIRC July 26, 1988)(the purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party); Wilson v. Burnett County Sheriff's Dept., ERD Case No. 9202769 (LIRC Sept. 29, 1995)(no waiver of affirmative defense not raised in timely answer where there was adequate notice of defense prior to hearing, including in respondent's initial response to complaint). The commission found in Jackson, supra., that the file in the matter indicated that the complainant anticipated the substantial relationship defense and was preparing to meet it, and, as a result, was not prejudiced by the respondent's failure to raise the defense in an answer. The commission concluded that, as a result, the respondent's failure to raise the substantial relationship affirmative defense in an answer did not constitute a waiver of the defense.

As set forth above, the respondent raised the substantial relationship test in its position statement and the complainant argued in his response to this position statement that a substantial relationship does not exist here. As a result, the respondent did not waive the defense by failing to raise it in an answer or at hearing, and may properly assert it before the commission as a part of its petition for review.

The commission notes that the ALJ stated at the outset of the hearing that the substantial relationship affirmative defense had been waived by the respondent. The complainant, in reliance upon this statement, may have decided it was not necessary to offer certain evidence. In view of the decision on the merits reached here, however, this error is a harmless one.

The respondent admits that it did not hire the complainant because of his conviction record, but contends that this does not violate the WFEA's prohibition against conviction record discrimination because a substantial relationship exists between the circumstances of the offense of second degree recklessly endangering safety and the circumstances of the order puller position at issue here.

The respondent failed to sustain its burden to prove the existence of such a substantial relationship

There is no evidence in the record as to the specific duties and responsibilities of an order puller; the type of equipment used; the proximity and frequency of contact with other employees or with customers; the level of supervision; the degree of independence; or other factors relevant to determining the circumstances of the subject position. This is not the type of position for which such circumstances may be gleaned solely from the working title, which is in essence the only evidence relating to the position set forth in the hearing record other than its location in a retail home improvement establishment.

Moreover, it is not a necessary conclusion that the elements of the offense of second degree recklessly endangering safety, i.e., reckless disregard for the physical safety of others, bear a substantial relationship to any and all positions working with customer orders in a retail home improvement establishment. For example, a position which does not utilize potentially dangerous equipment or materials and which has closely supervised contact with others would probably not satisfy the substantial relationship test here.


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

Dated and mailed October 21, 2005
warddar . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Attorney Mary L. Hubacher
Doris J. Stephenson, EEO Specialist

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(1)( Back ) Whoever recklessly endangers another's safety is guilty of a Class G felony. Wis. Stat. 941.30(2).


uploaded 2005/10/31