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

RICK JACKSON, Complainant


ERD Case No. CR200104557

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The complainant filed a petition for review.

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 April 27, 2007
jacksri . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


Rick Jackson's complaint in this matter (ERD Case No. CR200104557) was consolidated with his discrimination complaints involving the same parties in ERD Case Nos. CR200303522 and CR200500732, for a probable cause hearing before the ALJ on February 16, 2007. At the hearing, Jackson moved for a continuance of the hearing, which the ALJ denied. The ALJ offered Jackson multiple chances to present his testimony and evidence after denying his request for a continuance of the hearing, but Jackson declined to do so. The respondent moved for a dismissal of the case and the ALJ orally granted the respondent's motion.

The ALJ issued a decision in ERD Case No. CR200104557 on February 22, 2007, dismissing Jackson's complaint. Jackson did not file a petition for review of the ALJ's decision with the Equal Rights Division until March 16, 2007, making it one day late. Jackson includes the following assertions in his petition:

I never received my copy in the mail and I spoke to Judge Brown on March 16, 2007 and also Tammy Stoll in Milwaukee to confirm they had my proper address.

I generally monitor all my cases due to waiting years and spending thousands of dollars to prosecute. Judge Brown was to get this decision out above in about 3 weeks from the hearing but instead sent the decision out through Milwaukee on March (sic) 22, 2007.

The commission is unsure what argument Jackson is making regarding the decision being sent out through Milwaukee, since all equal rights decisions are mailed from Milwaukee. In any case, the commission concludes that Jackson's complaint must be dismissed even had he filed a timely petition for review of the ALJ's dismissal of his complaint. First of all, because Jackson refused to proceed at the hearing due to his objections to the ALJ's rulings, and his complaint was dismissed as a result, Jackson is deemed to have waived his objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05), citing Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, (LIRC, 02/14/03). Since Jackson presented no testimony or evidence whatsoever on his complaint of alleged discrimination at the scheduled hearing, his complaint of discrimination must fail. Second, having opted to consider Jackson's objections to the ALJ's denial of his motion for a continuance, the commission finds that those objections fail.

Jackson's claim in ERD Case No. CR200104557, involved an allegation that the respondent had refused to hire him in December 2001 because of his conviction record. Jackson had raised the alleged December 2001 discriminatory refusal to hire claim when the Division was investigating his ERD Case No. CR200104557 claim that in October 2001 the respondent had discriminatorily refused to hire him, but had never been advised to amend his complaint to add the December 2001 alleged refusal to hire and thus no determination was made on that claim. After Jackson's appeal of the no probable cause initial determination regarding his October 2001 claim, the case proceeded to a probable cause hearing before ALJ Deborah Cohn, who found no probable cause to believe the respondent violated the Act by refusing to hire or employ Jackson because of his conviction record, and dismissed Jackson's complaint. Jackson petitioned for a review of ALJ Cohn's decision. While the commission affirmed ALJ Cohn's decision, the commission remanded Jackson's claim regarding the alleged December 2001 refusal to hire to the Division for investigation and issuance of a determination. Jackson v. Transwood, Inc. (LIRC, 12/11/03). The Division issued an Amended Initial Determination finding no probable cause to believe the respondent refused to hire Jackson in December 2001 because of his conviction record. Jackson again filed an appeal.

Jackson's alleged December 2001 discriminatory refusal to hire claim was to be heard on February 16, 2007. At the hearing, Jackson requested a continuance of the hearing, essentially asserting that the ALJ's earlier ruling on a motion in limine by the respondent was erroneous. (1)   The respondent's attorney, Chad Richter, had filed a motion in limine on January 11, 2007, for an order to exclude at the February 16 hearing on Jackson's claim that the respondent discriminatorily refused to hire him in December 2001, any testimony or other evidence relating to Jackson's claim that he was discriminatorily refused hire in October 2001. Although it is not clear why, Jackson stated he wanted to introduce evidence relating to his October 2001 discrimination allegation based on Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996). In Abbyland, the court upheld the commission's determination that acts of discrimination occurring outside of the statute of limitations were admissible to show the state of mind for acts of discrimination alleged to have occurred within the statute of limitations. Id., 206 Wis. 2d at 315.

At the February 16 hearing Jackson asserted the ALJ had ruled that no evidence relating to his claim of discrimination in October 2001 could be considered regarding his claim that the respondent discriminatorily refused to hire him in December 2001. Jackson asserted that as a result, he would not be able to rebut testimony given by the respondent's witnesses and therefore "didn't stand a prayer" in getting a favorable decision. Contrary to Jackson's assertion, the ALJ had not ruled that no evidence relating to an October 2001 claim could be presented on his claim that the respondent discriminatorily refused to hire in December 2001. The record shows, as indicated in the ALJ's January 22, 2007 correspondence to the parties summarizing their January 19 telephone conference on the motion in limine, that the ALJ's ruling was simply that anything offered into evidence for the purpose of changing LIRC's findings on Jackson's claim that he was discriminated against in October 2001, would be excluded because those findings were binding on the ALJ. In the January 22 correspondence the ALJ stated he was granting the respondent's motion in limine as follows:

"[A]ll evidence offered for the purpose of changing in any way the evidentiary findings adopted by LIRC in case number CR200104557 will be excluded. Considering that this case was remanded for consideration about whether there was an application made in December 2001 and if so, what action the Respondent took with respect to it, evidence will be relevant only insofar as it relates to those questions."

Since the ALJ's ruling never excluded any specific piece of evidence relating to his October 2001 claim, Jackson had the opportunity to present any evidence that he believed was relevant to his alleged December 2001 application attempt. It was incumbent on him to have been prepared to put that evidence on.

The ALJ informed Jackson at the February 16 hearing that he was ready to take his evidence, including any evidence from his memory, and prepared to ask Jackson questions to get his evidence about what happened with respect to his December 2001 application on the record.

Apparently again referencing potential evidence to be used from ERD Case No. CR200104557, Jackson also complained that even at the depositions his attorney had taken of two of the respondent's witnesses, the respondent's counsel had objected to his attorney asking any questions to lay a foundation about his October 2001 allegation. However, as noted by the ALJ at the February 16 hearing, if any questions weren't answered, Jackson's attorney could have filed a motion to compel answers, and the ALJ could have decided whether or not the witnesses were required to answer, but the ALJ never got any motion to compel any answers to any deposition questions.

After the ALJ orally granted the respondent's motion to dismiss his case, Jackson then complained that "on Attorney Richter's motion, Attorney Richter and the ALJ had decided to consolidate the three cases without 'confronting' him and that he should have had something to say about that."

The record fails to show that Jackson was prejudiced by a consolidation of his claims of discrimination for hearing. First of all, Jackson had ample time to object to the consolidation of his cases, but failed to do so until after the dismissal of his case. The record shows that by letter dated October 12, 2004, ALJ Cohn, who was originally assigned to hear Jackson's appeal from the Amended Initial Determination issued in Case No. CR200104557, had written to the parties to confirm, based on their telephone conference that afternoon, the consolidation for hearing of ERD Case Nos. CR200104557 and CR200303522 before ALJ Brown. The record shows that on September 29, 2005, the Division certified ERD Case No. CR200500732 for hearing, and that thereafter, on October 5, 2005, the respondent's counsel requested, in the interest of time and efficiency, that Case No. CR200500732 be consolidated with Case Nos. CR200104557 and CR200303522, which were awaiting a hearing date. On September 29, 2006, the ERD mailed a notice of hearing to the parties stating that ERD Case No. CR200500732 was scheduled for hearing on November 28, 2006. The ERD had previously mailed notices to the parties on July 19, 2006, stating that ERD Case Nos. CR200104557 and CR200303522 were scheduled for hearing on November 28, 2006. Subsequently, in a letter by ALJ Brown to the parties dated November 20, 2006, he confirmed that the consolidated hearing involving Jackson's three cases, which had been scheduled for November 28, 2006, were cancelled and tentatively scheduled for February 16, 2007. By letter dated November 30, 2006, ALJ Brown notified the parties that the consolidated hearing involving Jackson's three cases was now scheduled for hearing on February 16.

Second, Jackson had ample time to prepare for the three cases. The Division had certified ERD Case No. CR200500732 to hearing on September 29, 2005. The Division had certified ERD Case No. CR200303522 to hearing on July 28, 2004. Although the Division's letter notice certifying ERD Case No. CR200104557 to hearing is apparently missing from the case file, based on the correspondence ALJ Cohn sent to the parties in 2004 (referenced above), this case had been certified to hearing sometime in 2004.

Accordingly, the commission has affirmed the administrative law judge's dismissal of Jackson's complaint in ERD Case No. CR200104557.

cc: Attorney Jennifer M. Thiel

Appealed to Circuit Court.  Appeal dismissed as untimely, August 3, 2007.  Appealed to the Court of Appeals.  Dismissal of appeal affirmed, April 17, 2008.

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(1)( Back ) A further basis for the continuance requested by Jackson concerns the ALJ's January 26, 2007 ruling on what was in effect a motion by the respondent for a protective order. This matter is discussed in the commission's decision issued in ERD Case No. CR200303522 because it is most closely related to that case.


uploaded 2007/04/30