FRED L PERRY, Complainant

REGENCY JANITORIAL SERVICE, 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 September 18, 2007
perryfr . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In his petition for commission review the complainant argues that the respondent hired inexperienced Hispanics and assisted them in completing the application. The complainant also argues that the job was advertised in the Milwaukee Journal Sentinel, which many black Americans do not access due to poverty levels. He points out that the respondent stated it would place ads in the Hispanic free community journals, but not in any black community journal, and that this led to recruiting and hiring mostly Hispanics. These arguments fail. The mere fact that the respondent advertised in a free Hispanic journal is not proof of a preference for Hispanic applicants over black applicants, and the commission sees no reason to believe that the respondent's recruitment practices were intentionally aimed at hiring more Hispanics than blacks. Further, to the extent the complainant may be attempting to make a disparate impact argument, the record contains no evidence to establish that the respondent's recruitment strategy had a disparate impact on blacks. The complainant presented no statistical evidence establishing that blacks are unlikely to read the Milwaukee Journal Sentinel, and his personal opinion that this is the case is insufficient to meet his burden of proof. While the respondent acknowledged that it had many more Hispanic applicants than black applicants, this could be explained by factors unrelated to the respondent's recruitment strategy, and it cannot be presumed to result from the respondent's choice of newspapers in which to advertise.

With respect to the numbers of Hispanic versus black applicants hired, the record contains no evidence demonstrating the percentage of applicants from each group that was offered employment, nor is there any evidence of the qualifications of the respective applicants. Consequently, there is no basis to draw comparisons between the individual applicants. The person who made the hiring decision, Jeanette Johnson, is herself black, and the evidence reveals that during the relevant time period Ms. Johnson hired many black applicants. Further, Ms. Johnson did not assert that the complainant was denied hire because of a lack of experience, but stated that he was not offered employment because he had been offered employment by the respondent twice in the past and had twice failed to report for work. The complainant presented no evidence to suggest that a Hispanic applicant would have been offered work under similar circumstances, and the commission sees no reason to believe this would have been the case.

Next, the complainant denies that the respondent ever offered him employment in the past, and maintains that this is a pretext. In support of this argument, the complainant contends that the letter stating he never showed up for work in April of 2002 was fabricated, because it is clearly dated, whereas another letter from the respondent is not dated. The complainant points out that the undated letter, which he received in 2003, stated that his skills were impressive and did not indicate that the respondent would not consider him for employment. The complainant also maintains that the existence of an ID badge in his personnel file does not mean he was hired, since the respondent stated it takes a photo ID of an applicant before he is hired. Again, these arguments fail. Ms. Johnson testified that the 2002 letter was sent after the complainant failed to report for work and after she had made several unsuccessful attempts to contact him for work, and the commission sees no reason to doubt the credibility of that testimony. The 2003 letter, which is undated and addressed to "Dear applicant," is a generic form letter that was not written for the complainant specifically and does not address his particular circumstances. With respect to the photo ID, Ms. Johnson did state that applicants are photographed prior to hire, but then clarified that the photographs are taken and the ID badge created after training is complete. The commission does not question the respondent's assertion that it created an ID badge for the complainant only after it hired him, since it stands to reason that the respondent would not create ID badges for individuals whom it had not decided to hire.

Finally, the complainant disagrees with the administrative law judge's denial of his request to amend his complaint to include hiring decisions going back to 1999. He contends that the administrative law judge erred because acts antedating the start of the limitations period are admissible to show intent or state of mind of the party allegedly violating the law, as long as they were not unduly remote. The complainant requests permission to amend his complaint at this juncture to include those allegations. This request is denied. The administrative law judge ruled, appropriately, that the complainant could not amend his complaint to include discrete hiring decisions that occurred well outside the limitations period. However, the administrative law judge indicated that she would permit the complainant to present evidence with regard to those hiring decisions, to the extent that they were relevant to his claim, and the record does not indicate that the complainant was denied an opportunity to present such evidence at the hearing.

The complainant had the burden of establishing by a preponderance of the evidence that the respondent's decision not to hire him in 2005 was because of his race. Connor v. Heckel's, Inc. (LIRC, Sept. 27, 1999). Where the respondent presented credible evidence of a legitimate, nondiscriminatory reason for its hiring decision, and where the complainant failed to offer any competent evidence to rebut that evidence, the complainant has not met his burden of proof. Accordingly, the dismissal of the complaint is affirmed.

cc: Attorney Ronald S. Stadler

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uploaded 2007/09/27