RODNEY COLEMAN, Complainant

QTI PROFESSIONAL STAFFING INC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, 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 February 27, 2006
colemro . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review and supporting briefs the complainant argues that he was denied light duty work on January 15, 2005, while a co-worker who is white was given light duty. The complainant further asserts that the respondent handled his accident differently than it did that of the white employee, because it did not fill out an accident report and denied that his injury was work-related. This argument fails. The record contains no evidence to suggest that the respondent accorded more favorable treatment to a similarly situated white employee, and there is no reason to believe that the complainant would have been offered a light duty assignment on January 15, 2005, but for his race. The credible evidence in the record indicates that the complainant was not offered a light duty assignment on January 15 because he failed to provide the respondent with any medical documentation indicating that he was able to perform light duty work. To the contrary, a doctor's note dated January 14 specifically indicated that the complainant was not to perform any work until being seen by the doctor again in one to two weeks time. Under the circumstances, it is apparent that the respondent's failure to offer the complainant light duty work on January 15, 2005, was for a legitimate reason having nothing to do with race.

Next, the complainant argues that he did keep PCI informed of his absences, but the respondent will not admit to this fact. The complainant indicates that he could get his telephone records from the hospital to prove he made the calls. Again, this argument fails. The evidence established that, on his last day of work at PCI, the complainant was warned about his attendance and was told his assignment would end if he missed another day of work. The complainant then missed an additional four days of work. Even if the complainant could establish that he contacted PCI to report his absences--and the time to present evidence on this point was at the hearing, not subsequent to filing the petition for review--this would in no way compel a conclusion that his assignment was terminated because of his race.

In his petition the complainant takes issue with some of the rulings made by the administrative law judge. The complainant contends that the administrative law judge should have never accepted the respondent's transcript and, further, that she could have allowed his witness to testify or let him enter his evidence, even if he did not have it in on time. These arguments are without merit. The complainant has not raised any specific objection with regard to the transcript, which was prepared by a court reporter, and the commission sees no reason to believe that the complainant was prejudiced by the administrative law judge's decision to accept the transcript. Regarding the evidentiary rulings, the complainant's witness was appropriately precluded from testifying where the complainant failed to file a witness list prior to the hearing, as required by law. Further, when given an opportunity to raise an objection to the respondent's motion to exclude the witness on that basis, the complainant stated that it was "no problem" and indicated that he was willing to forego testimony by the witness. It is difficult to argue that the administrative law judge erred in excluding witness testimony, given the complainant's own waiver of his request to submit such testimony. With respect to the argument that he should have been permitted to submit late evidence, which appears to be in reference to Exhibit 15, a document the complainant referenced in his brief but which the administrative law judge did not consider because it was not submitted at the hearing, the administrative law judge and commission are required by law to base their decisions upon the evidence that is presented at the hearing and cannot go outside the record to find support for a decision.

The commission has considered the remaining arguments raised by the complainant in his petition and supporting briefs, but finds them similarly unpersuasive. Because the complainant failed to demonstrate probable cause to believe that the respondent denied him light duty work or discriminated against him in terms or conditions of employment because of his race, the dismissal of the complaint is affirmed.

NOTE: The respondent has asked the commission to strike the complainant's reply brief, on the ground that it was not filed until January 25, 2005, approximately one week after the due date provided in the commission's briefing schedule. While there are circumstances in which the commission will disregard an untimely brief, see Nickell v. County of Washburn (LIRC, July 29, 2005), the commission sees no reason to do so in this case, given that the delay was minor and resulted in no prejudice to the respondent. The commission has, therefore, considered the arguments raised in the complainant's reply brief in the course of its review.

cc: Attorney Michael Gotzler

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