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

RICK JACKSON, Complainant

USF HOLLAND, Respondent

ERD Case No. CR200303120

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 November 17, 2006
jacksri2 . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Rick Jackson appeals from the ALJ's decision which concluded that he failed to establish probable cause to believe the respondent refused to hire him because he had previously made a complaint under the Act.

Jackson argues that the ALJ "did not apply the law", that the no probable cause finding is contrary to the record, and that she was biased against him and directed to dismiss his case by her superiors.

First of all, with respect to alleged bias by the ALJ, as correctly noted by the respondent, there is a presumption of honesty and integrity on the part of those persons performing administrative adjudicatory functions, and any challenger bears a heavy burden of overcoming this presumption. Gutherie v. WERC, 111 Wis. 2d 447, 455, 331 N.W.2d 331 (1983). Jackson has not identified any specific basis that would serve as reason for the commission to believe the ALJ was either biased against him or had been directed by her superiors to dismiss his case.

The commission has carefully reviewed the evidence presented in this case and finds that the ALJ's decision is amply supported by the record. The evidence indicates, as found by the ALJ, that in November 2002, when Jackson submitted an application for employment as a truck driver or dock worker, the respondent was laying off employees and was barred from hiring new employees pursuant to a collective bargaining unit applicable to truck drivers and dock workers. The evidence shows that the respondent did not hire any new employee until the beginning of September 2003, when it hired one new employee, because until that time it continued to have employees on layoff status. The evidence also shows that during the period from March 2004 to August 2004, the respondent hired 30 new employees. The evidence also shows, however, that Jackson would not have been considered for employment in either September 2003 or the period from March to August of 2004 because after six months an application goes into inactive status and the applicant would not be eligible for hire.  (1)   Jackson's application had been submitted 10 months before September 2003, when the respondent hired one new employee, and 16 months before March 2004, when it hired 30 new employees.

Jackson argues that in his earlier case against the respondent [which involved a claim that the respondent refused to hire or employ him because of conviction record (ERD Case No. CR200002723)] the respondent deliberately "concealed" a document to "weaken" that earlier case. Assuming for purposes of argument that what Jackson is claiming about the earlier case is true (although it certainly has not been shown to be true), Jackson has not established how what occurred in the earlier case is relevant to his instant case of alleged retaliation by the respondent.

Jackson argues that there is no evidence the respondent kept a copy of his November 15, 2002 application to even be considered if openings became available. The evidence indicates that upon learning Jackson had submitted an application for employment on November 15, Kail advised the respondent's HR department in Holland, Michigan, of Jackson's application and was instructed to send the application to the HR department. Kail sent Jackson's application to the HR department without making a copy for the Milwaukee office. However, the fact remains that Jackson would not have been considered for employment because the respondent did not have a position available until September 2003 and because the respondent only considers applications submitted within the previous six months when it does have available positions.

Jackson apparently argues that the ALJ committed error because an exhibit on his exhibit list -- a transcript of Kail's April 3, 2003 deposition from his earlier case -- was not allowed to be entered into the record. Jackson argues that he understood that anything on his exhibit list is automatically entered into the record. These arguments fail. The transcript of Kail's April 3, 2003 deposition testimony was not allowed to be entered in the record because Jackson did not attempt to enter it into the record until after the record was closed. T. 233-234. Further, presumably Jackson's reason for seeking admission of this deposition was to impeach testimony given by Kail at the hearing held in the instant matter on February 11, 2005. However, when cross-examining Kail on February 11, Jackson never questioned Kail about any deposition testimony he had given to enable Jackson to impeach any testimony given by Kail on February 11, 2005. Jackson's claim that he understood that anything on his exhibit list is automatically entered into the record simply is not credible. Jackson has appeared in numerous hearings before the ERD and for that reason alone had to have known that an exhibit listed on a party's exhibit list must be moved and received into evidence before it is entered into the record. Indeed, during the hearing in the instant matter various exhibits were entered into the record either by stipulation of the parties or by the respondent moving for its admission without objection by Jackson.

Finally, the ALJ found that Jackson did present some evidence suggesting that Kail may have harbored a retaliatory attitude against Jackson because of his previous complaint but concluded that that evidence by itself was insufficient to support a claim of retaliation because Jackson failed to show that Kail's attitude was a factor in the respondent's failure to hire him. As support for this conclusion the ALJ cited the commission's decisions in Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93) and Dominguez v. Dennis Lawrence d/b/a Sawdust Factory (LIRC, 01/30/91). In those cases the commission held that discriminatory attitudes are not unlawful unless they result in discriminatory treatment. The evidence the ALJ references as suggesting that Kail may have harbored a retaliatory attitude against Jackson concerns her finding that Kail told Vicki Bautch, an office worker, to tell Jackson "not to bother coming back," or words to that effect, when Bautch handed Jackson a copy of his application on November 15, 2002.

Jackson apparently argues that because he was told not to come back, rather than being told "come back six months later to be considered for hire", his situation is not identical to the Schiller and Dominguez cases. Jackson's argument fails. First of all, Jackson's argument merely illuminates why Kail may have harbored a retaliatory attitude against him. Second, if Jackson is suggesting that the effect of Kail's comment caused him not to reapply for employment with the respondent there is nothing in the record which suggests this was the case. In fact, the record suggests that Kail's comment had no effect on Jackson at all because the record indicates Jackson submitted another application for employment with the respondent in December 2004. T. 38-39.

The commission also notes, but declines to grant, Jackson's request that the commission "confer with ALJ [Rose Ann Wasserman] so the commission can supplement the record on precisely what her impressions were when she opined on the issue that Mark Kail would have discriminated against Rick Jackson if the occasion called for it." The ALJ did not opine that Kail would have discriminated against Jackson if the occasion called for it, and the commission otherwise sees no need to confer with the ALJ regarding this case.

cc: Attorney Michael N. Chesney

Appealed to Circuit Court. Affirmed April 25, 2007.

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(1)( Back ) Mark Kail, the Milwaukee terminal manager at the time relevant herein, testified that the respondent physically keeps applications on file for twelve months but only considers the applications of individuals submitted within the previous six months. T. 118, 134. Jackson argues that because Kail testified that applications are kept for one year at the hearing in his earlier case against the respondent (ERD Case No. CR200002723) but in the instant case testified that applications are not reviewed after six months, that Kail has given contradictory testimony. Jackson's argument fails. Kail's testimony is not inconsistent because at both hearings he testified that the respondent keeps applications for one year. Kail was not asked how long an application remains in active status at the hearing in Jackson's earlier case.


uploaded 2006/11/20