KENNETH P HALASE, Complainant

MANPOWER, 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 June 9, 2006
halaske . rsd : 164 : 9

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review and supporting briefs the complainant argues that since July 13, 2005, he has requested discovery material that was never given to him and has asked for sanctions which were not issued. The complainant maintains that the administrative law judge refused to hold the respondent accountable for its lack of timely compliance and, further, that the administrative law judge was duped by the respondent into believing there was only one type of document presented at the hearing. The complainant states that the initial determination found that 51 people were hired as lab technicians between September 1999 and March 2005 and contends that in order to prove his case he needs to establish that all of those individuals were evaluated based upon the same standards he was. The complainant maintains that he requires access to the original applications which were like the ones he submitted as exhibits at the hearing, not the documents that were brought to the hearing and submitted by the respondent. The complainant submits photographs of piles of applications, which are not in the hearing record, and which he contends show that the respondent's documents include "two very different documents or applications." The complainant requests access to the original discovery material outlined in the motion he submitted on July 13, 2005 and a new hearing after examination of these materials.

The commission has considered the complainant's arguments, but finds them unpersuasive. The complainant's discovery request filed on July 13, 2005, was overly broad, in that it encompassed not only the 51 applications in question, but all applications and examinations extending back over a five-year period. In a prehearing conference held in response to a motion to compel filed by the complainant, the administrative law judge limited the complainant's request to documents pertaining to the one year period prior to the date the complainant applied for the position. The respondent thereafter notified the complainant that the documents in question would be available for his review at its office. It appears that the complainant was given a reasonable opportunity to review the documents, and notwithstanding his insistence that the documents made available to him were not the discovery materials requested, the commission sees no reason to believe that the applications provided for his review differed from those contemplated by the administrative law judge's order.

The complainant also argues that he believes the respondent's counsel offered an excuse for a witness's failure to appear by stating that she was improperly served, and that this is totally inappropriate. Again, this argument is not persuasive. The record indicates that the complainant served a subpoena on an individual who failed to appear at the hearing. The witness's failure to comply with the subpoena is not attributable to any action on the part of the respondent. Moreover, because the individual in question was subpoenaed based on a mistaken representation by the respondent that she was one of the staff members who evaluated employment applications for lab tech positions at the time the complainant applied for the job when, in fact, this proved to be incorrect, the commission sees no reason to believe that her failure to comply with the subpoena had any adverse effect on the complainant's ability to present his case.

The complainant also argues that the respondent used the term "third party employer" as a pretext to discriminate, and that the respondent's employees are not sure of the definition themselves. This argument fails. The respondent's witnesses used the terms "third-party employer" and "verifiable work history" with reference to the respondent's requirement that an applicant demonstrate a recent record of employment for an outside employer who could be contacted for references. The complainant's application, which shows that in the eleven year period prior to applying for the job his only work was as a self-employed handyman, clearly does not meet this standard. Moreover, while the complainant had lab experience, as required by the respondent, that experience was obtained approximately 35 years earlier. Given these circumstances, the commission sees no reason to doubt the respondent's explanation that it did not consider the complainant's employment experience sufficient to meet its requirements.

The complainant had the burden of presenting evidence demonstrating probable cause to believe that his age and/or sex were factors in the respondent's decision not to consider him for the lab tech position. However, there is no evidence in the record which would warrant such a conclusion. The commission has considered the complainant's arguments and objections with regard to the discovery process, but sees no reason to believe that the complainant was denied an opportunity to conduct discovery and to present relevant, material evidence at the hearing. Accordingly, the dismissal of his complaint is affirmed.

cc: Attorney Peter A. Milianti

Appealed to Circuit Court.  Affirmed, March 21, 2007.

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