REGINALD WATKINS, Complainant

ROUNDYS INC, Respondent

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.

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

Dated and mailed January 18, 2006
watkire . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Reginald Watkins alleges that the respondent, a food wholesaler and retailer, discriminated against him on the basis of race and arrest record or conviction record in violation of the WFEA when it refused to hire or employ him for a management position. Watkins is black. After the ALJ who conducted the hearing recused himself, the matter was assigned to another ALJ to review the hearing record and issue a decision on Watkins' claims of discrimination. The second ALJ determined that there was no probable cause to believe the respondent had violated the Act by refusing to hire or employ Watkins because of his race, or arrest record and conviction record, and therefore ordered the dismissal of Watkins' complaint.

Watkins requests a new hearing. He asserts that he didn't understand his rights at the probable cause hearing. The record does not support Watkins' request for a new hearing. The Equal Rights Division had provided Watkins with an Information Sheet more than two months prior to the date of the hearing that described his rights and responsibilities during the hearing process. This sheet further advised him to contact the ALJ assigned to the case if he had any questions. He also could have requested the ALJ to answer any questions he had at the hearing.

Watkins asserts that he believes that his race and arrest or conviction record was a big factor in the respondent's hiring decision. However, the evidence presented at the hearing failed to provide reason to believe that his race or arrest or conviction record was a factor in the respondent's decision not to hire him. The evidence at the hearing showed that the sole reason the respondent did not hire Watkins was because he had failed to disclose his September 1990 convictions for Disorderly Conduct-Use of a Dangerous Weapon and Carrying a Concealed Weapon.

Watkins next asserts that he "wasn't able to provide more evidence" regarding the respondent's testimony that included information regarding its diversity of minorities in management, that the respondent had hired someone with a criminal conviction as a management employee and the respondent's explanation for not hiring four other management employees who were not black. However, the record shows that to the extent Watkins was not able to provide such evidence that it was due to his lack of personal knowledge and/or failure to have documentary evidence at the hearing to support his position.

Next, Watkins asserts that the respondent admits that it "may have" hired other individuals as store directors that "may have made an omission" on their application. This assertion by Watkins is a reference to a statement contained in a letter to the Equal Rights Officer dated May 4, 2004, written by the respondent's counsel. Counsel's statement merely explained that the respondent may have hired individuals that had omitted DUI traffic convictions but that the employment application did not ask that applicants provide this information on the application. Furthermore, there was testimony by the respondent at the hearing that it had not knowingly hired anyone that had omitted or falsified information on the application form.

Watkins next argues that the ALJ failed to consider that under the Fair Credit Reporting Act (FCRA) any negative information can't be held against you after 7 years. At the hearing Watkins asserted that under the FCRA "in most cases a CRA (Consumer Reporting Agency) must not report negative information that is more than seven years old, ten years for bankruptcies." Watkins has not shown how or why the FCRA is relevant here. The respondent obtained the information regarding Watkins' criminal record from the Department of Justice's Criminal Information Bureau.

Watkins also argues that he deserves a new hearing because the ALJ who recused himself promised him a new hearing but that didn't happen. Watkins has not shown how the ALJ's recusal made it necessary that a new hearing be held. The record indicates that the reason for the original ALJ's recusal was that after the hearing was over he realized that an exhibit entered into evidence contained the name of an individual he knows and whose husband was his son's godfather. Since this potential conflict did not come to the attention of the ALJ until after the hearing it could not have caused any bias on the part of the ALJ during the hearing. Furthermore, Watkins had a fair opportunity to present his case at the hearing. Also, the respondent had not opposed the ALJ continuing as the ALJ in the matter because it believed he would issue a fair and impartial decision.

Finally, Watkins apparently asserts that the fact that the employment application asked if he had "ever" been convicted of any felony or misdemeanor is "a discriminatory tool in itself." Watkins has not elaborated on why this so. In any case, the evidence fails to provide reason to believe that the respondent unlawfully discriminated against Watkins on the basis of his race or arrest or conviction record.

cc: Attorney Laurie A. Petersen

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uploaded 2006/01/24