RICK JACKSON, Complainant
QUALITY CARRIERS, Respondent
The complaint filed on February 25, 2005, in this case alleges that the respondent, in violation of the Wisconsin Fair Employment Act, discriminated against the complainant on the basis of conviction record with respect to failure to hire, discriminated against the complainant by "printing and circulating an application contrary to § 111.322(2)", retaliated against the complainant for making a complaint under the Act, and discriminated against the complainant for opposing a discriminatory practice under the Act and for testifying or assisting in a proceeding under the Act.
In a decision issued on December 5, 2008, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the matter finding no probable cause to believe the respondent discriminated against the complainant, in violation of the Act, by refusing to hire or employ the complainant because of conviction record, no probable cause to believe the respondent discriminated against the complainant, in violation of the Act, because he made a complaint under the Act, no probable cause to believe that the respondent, in violation of the Act, discriminated against the complainant because he opposed a discriminatory practice, and no probable cause to believe that the respondent, in violation of the Act, discriminated against the complainant because he testified or assisted in a proceeding under the Act.
Based upon its review of the matter, and for the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission concludes that the complainant's § 111.322(2) discrimination complaint claim must be remanded to the ERD for an investigation and issuance of an initial determination of probable cause or no probable, that there is probable cause to believe the respondent refused to hire or employ the complainant on the basis of his conviction record, in violation of the Act, and no probable cause to believe the respondent, in violation of the Act, retaliated against the complainant for making a complaint under the Act or because the complainant opposed a discriminatory practice under the Act or testified or assisted in a proceeding under the Act.
Accordingly, the commission therefore issues the following:
The complainant's discrimination claim under § 111.322(2) is remanded to the Equal Rights Division for an investigation and issuance of an initial determination of probable cause or no probable. The complainant's claim that the respondent discriminated against the complainant on the basis of conviction record with respect to failure to hire is remanded to the Division for a hearing on the merits. The ALJ's findings that there is no probable cause to believe that the respondent discriminated against the complainant, in violation of the Act, because he opposed a discriminatory practice and because he testified or assisted in a proceeding under the Act, are affirmed.
Dated and mailed December 23, 2009
jacksri . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On February 25, 2005, Rick Jackson filed a discrimination complaint against the respondent with the Equal Rights Division. In section 3 of the complaint Jackson checked the boxes to indicate he was alleging the respondent discriminated against him because of his conviction record, because he filed a complaint with ERD, because he testified or assisted with a complaint filed with ERD and because he opposed discrimination in the workplace.
In Jackson's statement of discrimination, contained in section 4 of the complaint, Jackson asserted that after sending a completed application for employment to the respondent (at Pleasant Prairie, WI) dated February 14, 2005, he called to check on the status of his application and spoke with the manager, "Gary Mueller", who told him the respondent was in a hiring mode and to wait while he checked, and then a voice came on the line and said no and hung up.
Jackson also asserted in his statement of discrimination that "the respondent was printing and circulating an application contrary to W.F.E.A. 111.322(2) which I am also alleging as previous (sic) complained." Subject to Wis. Stats. ss. 111.33 to 111.36, Wis. Stat. s. 111.322(2) makes it an act of employment discrimination:
To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.
Jackson had previously filed a discrimination complaint against the respondent on February 3, 2004. In that complaint Jackson alleged that the respondent had refused to hire or employ him based on his April 10, 2003 application for employment because of his conviction record. On February 9, 2005, a hearing was held on the merits of Jackson's February 3, 2004 complaint. On June 17, 2005, the ALJ dismissed Jackson's complaint. Jackson filed an appeal for commission review of the ALJ's decision. On appeal, Jackson included an assertion that his February 2004 complaint included a claim that the respondent's application was in violation of Wis. Stat. § 111.322(2). The commission affirmed the ALJ's dismissal of Jackson's complaint, and in a Memorandum Opinion attached to the decision concluded that Jackson had failed to raise the § 111.322(2) issue in his complaint or a timely amended complaint.
In the instant case, Jackson's "printing and circulating an application" violation claim was not addressed in the initial determination issued in connection with his February 25, 2005 complaint, and, despite Jackson's efforts to get this issue remanded for an investigation, it was never investigated.
The issues noticed for hearing on Jackson's February 25, 2005 complaint were whether there was probable cause to believe the respondent violated the WFEL "by refusing to hire or employ the Complainant because of conviction record, [and by] discriminating against the Complainant because the Complainant made a complaint under that Act, because the Complainant testified or assisted in a proceeding under that [Act] and because the Complainant opposed [a] discriminatory practice under that Act."
As noted above, the ALJ concluded in a decision dated December 5, 2008, that there was no probable cause to believe the respondent violated the Act because of any of the above issues noticed for hearing.
DISCUSSION
One key piece of evidence introduced at the hearing on Jackson's February 25, 2005 complaint that was potentially dispositive of much of Jackson's complaint is Complainant's Exhibit #3. However, it contains hearsay. Complainant's Exhibit #3 is a letter dated February 23, 2005, addressed to Jackson from Jeff Lloyd. The letter, which is on Quality Carriers stationery and contains a Pleasant Prairie, WI address, reads as follows:
Dear Rick
Your application for employment dated February 14, 2005, was received by mail at our Pleasant Prairie, Wisconsin terminal on February 21, 2005. Unfortunately, you used an old application form, which is no longer in use. If you want to be considered as an applicant to our company, you need to complete our current application form and return it to us. A copy of the current application form is attached.
Best regards,
Jeff Lloyd
Jackson admits receiving this document. Jackson testified that he could have received this letter two days after the date of the letter, but that he had not received it prior to filing the complaint in the instant case. Jackson also admits that he received a blank application with the letter dated February 23, 2005, and that the application he received is marked as Complainant's Exhibit #2, discussed below. Jackson did not complete and return the application he received with Lloyd's letter.
Lloyd's statements that Jackson's February 14, 2005 dated application was received on February 21, 2005, and that Jackson had used an old application form which was no longer in use are hearsay. Lloyd was listed as a "possible" witness on the respondent's witness list, but Lloyd was not present at the hearing to testify about the matters asserted in the February 23, 2005 letter.
The individual who did appear at the hearing on behalf of the respondent was William Mueller. When the ALJ asked Mueller to state his "full name", Mueller responded "William Mueller".
Jackson called Mueller to testify adversely. Mueller, who is currently the respondent's service center manager, testified that in February 2005 he was the facilities manager for the respondent. Mueller testified that he has been employed by the respondent since 1998 and that in 2005 his duties as facilities manager included processing applications. That is, he would receive applications and then send them down to the recruiting department at corporate headquarters in Tampa, Florida, to decide whether or not the applicant met the qualifications.
Jackson's February 14, 2005 application for employment was marked as Complainant's Exhibit 6. Among other things, that application states that the applicant understands that to be a driver for the respondent, the applicant "MUST"..."9. Have no convictions resulting from violent or sexual related crimes." (Emphasis in original.) Also, in a section of this application concerning authorization to conduct, among other things, a criminal history check, the application states that the applicant further understands that by completing and submitting this application the applicant "acknowledge[s] that felony convictions are a disqualifying factor and finding of such convictions, at any time, will result in disqualification or a rescinding of offer".
In the application dated February 14, 2005, Jackson responded "Yes" to the question, "Have you ever been convicted on any misdemeanor or felony?"
Complainant's Exhibit 2 is the blank Quality Carriers employment application that Jackson admitted receiving along with Lloyd's letter. This application does not contain the language cited above in the February 14, 2005 application completed by Jackson. This application states that the applicant "Must"...9. Have no disqualifying offenses per the TSA (1) which prohibit you from holding a hazardous materials endorsement or any felony convictions which are substantially related to driving a CMV with HM lading." (Emphasis in original.) Also, with respect to the section of the application regarding authorization for criminal and other checks, this application states that the applicant "acknowledge[s] that failure to report felony convictions may be a disqualifying factor and finding of such convictions, at any time, may result in disqualification or a rescinding of offer".
Marked as Complainant's Exhibit #1 is an application for employment at respondent dated January 26, 2005, by an individual named "Ramiro". This application asks the same questions as those shown on Complainant's Exhibit #6.
Mueller could not identify Complainant's Exhibit 2 as the application being used by the respondent in February 2005. Under questioning by Jackson, Mueller testified that he had seen several changes in applications over the last 4 or 5 years, but that he could not be more specific as to the dates the respondent changed its applications. Further, Mueller testified that he could "only guess" that Complainant's Exhibit 2 "was similar to an application that would be sent to an applicant in February 2005", that he "can't answer" if it was used in 2005 and that because there's no date on Complainant's Exhibit 2 he can't say if it was in use on or about February 23, 2005, at the respondent.
Mueller also testified under questioning by Jackson that he "does not recall" receiving Jackson's February 2005 application, and that he "does not recall" receiving a call from Jackson prior to February 23, 2005, but that he (Mueller) did on occasion accept calls from individuals regarding the status of their applications.
Counsel for the respondent did not ask Mueller any questions.
With respect to the phone call to check on his application, Jackson testified that when he called the respondent he thought he was referred to Gary Mueller, but if there is no Gary Mueller, he did speak to an individual by the name of Mueller.
Jackson testified that the phone call he made to the respondent to check on his application was made before he received Lloyd's letter. Jackson testified that he called the respondent from Janesville, that he was told "Just a minute, I'll check your application" and then a voice came back on the phone, "No."
Jackson testified that he believed the respondent refused to hire him because of his conviction record because of "what the respondent prints on its application." Jackson testified that because of what is written on the respondent's application there was a violation of Wis. Stat. § 111.322(2).
Jackson further indicated that he believed the respondent refused to hire him in retaliation for filing a prior complaint of discrimination against the respondent. As proof, Jackson testified that he had submitted, by certified mail, a completed application for employment to the respondent dated February 14, 2005, and that he was not hired.
Jackson also indicated that the respondent discriminated against him by refusing to hire him because he had testified at the February 9, 2005 hearing regarding the February 3, 2004 complaint that he filed against the respondent.
Finally, Jackson indicated that the respondent discriminated against him by refusing to hire him for opposing a discriminatory practice under the Act because on a page included in the employment application it stated that a new hire who terminated employment within six months shall reimburse the respondent for training and other monies associated with these costs, and, that if at the time of an employee's resignation or termination it was determined that a lesser amount of equipment is returned than had been originally issued that charge backs will be deducted accordingly, and he had written on the application that "the above are unauthorized deductions even with a signed release per Wi. Labor Standards."
Jackson's February 25, 2005 complaint clearly raises an issue under s. 111.322(2) Wis. Stats., with respect to the February 14, 2005 dated application that he submitted to the respondent. The initial determination issued on Jackson's February 25 complaint did not address Jackson's s. 111.322(2) claim nor was this issue noticed for hearing. Lloyd's February 23, 2005 letter assertion that Jackson had used an old application form which is no longer in use is hearsay. Further, Mueller, who appeared as the respondent's representative at the hearing, could not state whether or not the blank application (Complainant's Exhibit #2) sent along with the February 23 letter was the application form being used by the respondent in February 2005.
The respondent has argued that Jackson offered no evidence to support his claim that the respondent's application violated § 111.322(2) of the Act. Jackson has argued that his 111.322(2) claim should be remanded for a hearing on the merits. However, absent an initial investigation and determination on the § 111.322(2) claim and this issue being properly noticed for hearing, the commission can neither rule that Jackson has failed to offer support for his claim that the application violated the Act, or remand the matter for a hearing on the merits.
However, based upon the evidence that exists in the record, the commission finds probable cause to believe the respondent refused to hire or employ Jackson due to his conviction record. The following evidence supports a showing of probable cause: Jackson indicated on his February 14, 2005 application that he had been convicted of a misdemeanor or felony; the February 14 application indicates that applicants must have no convictions resulting from "violent or sexual related crimes" and that "felony convictions are a disqualifying factor and finding of such convictions, at any time, will result in disqualification or a rescinding of offer"; no competent evidence was introduced to show that the February 14 employment application submitted by Jackson was no longer in use by the respondent; Jackson testified that he made a phone call to the respondent to check on his application before he received the letter from Lloyd dated February 23, 2005, and that he spoke to an individual by the name of Mueller, who told him "Just a minute, I'll check your application" and then a voice came back on the phone, said "No" and hung up; and finally, Mueller simply testified that he "does not recall" receiving a call from Jackson prior to February 23, 2005, but admitted that he does on occasion accept calls from individuals regarding the status of their applications.
The respondent argues that it was Jackson who hung up on Mueller when Jackson called on February 22, 2005. However, no such testimony appears in the record of this matter. Further, the respondent, who asserts that it is a nation-wide carrier of hazardous material, argues that the parties stipulated at the hearing that Jackson was convicted of "violent crimes" and, thus, even if Jackson "had submitted the proper application, his conviction substantially related to the truck driving job for which he applied." However, not only was there no specific identification of Jackson's "violent crimes" in the record, there is also absolutely no testimony in the record which establishes that any crime(s) for which Jackson had been convicted was substantially related to the truck driving job for which Jackson had applied.
Jackson argues that because there was no testimony by Mueller on the substantial relatedness of his conviction record to hazardous material tank driving and because the respondent cites no case law where the commission has found that his conviction record substantially related to hazardous material truck driving, "he should be made whole as a matter of law" and that a hearing on the merits is not necessary. However, Wis. Stat. § 111.39(4)(b) provides that if probable cause is found to believe that any discrimination has been committed, if that practice of discrimination is not eliminated by conference, conciliation or persuasion, a written notice of hearing shall be issued and served specifying the nature of the discrimination that appears to have been committed and requiring the person named as the respondent to answer the complaint before an examiner. See also § DWD 218.20(2)(After a hearing on the issue of probable cause, a decision shall be issued which dismisses the allegations of the complaint or which orders that the case be certified for a hearing on the merits of the complaint, depending upon the findings and conclusions on the issue of probable cause).
Jackson also makes a variety of arguments and has submitted statistical and documentary evidence in support of his position on the substantial relationship issue. However, Jackson's arguments and documentary evidence do not supplant the need for a hearing on the merits of his claim.
Jackson also requests that the commission rule that "any and all obvious 'printing and circulating' violations must be automatically sent to the hearing section as a matter of law". The commission has no such authority.
Jackson has not established probable cause to believe the respondent refused to hire him in retaliation for filing a prior complaint of discrimination against the respondent. Jackson filed his prior complaint of discrimination against the respondent on February 3, 2004. Jackson's assertions that he had submitted, by certified mail, a completed application for employment to the respondent dated February 14, 2005, and that he was not hired, without more, is insufficient to find that probable cause exists to believe the respondent discriminated against him for making a complaint under the Act.
Jackson also has not shown probable cause to believe that the respondent discriminated against him because he had testified at the February 9, 2005, hearing. Jackson presented no evidence to support this claim.
Finally, Jackson's claim of discrimination because he opposed a discriminatory practice under the Act also fails. Wis. Stat. § 103.455 does, under certain circumstances prohibit an employer from making any deduction from the wages due or earned by "any employee...for defective or faulty workmanship, lost or stolen property or damage to property..." Wis. Stat. § 111.322(2m)(a) makes it an act of employment discrimination to, among other things, discriminate against any individual because the individual "files a complaint or attempts to enforce any right under s...103.455..."
Jackson is not an employee of the respondent. Furthermore, Jackson's February 25, 2005 complaint does not allege a violation of § 111.322(2m). Moreover, the protections afforded under § 111.322(2m) refer solely to formal attempts to enforce a right by resort to the governmental agency charged with enforcement of that right. Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, 03/07/94). Thus, even assuming for purposes of argument that for some reason § 111.322(2m) could apply in this case, by simply writing on his application "unauthorized deductions" in response to the application statement that charge backs will be deducted if it is determined that a lesser amount of equipment is returned than had been originally issued, Jackson had not engaged in an activity protected under § 111.322(2m), and, thus, could not have been discriminated against for "opposing a discriminatory practice under the Act".
Finally, it is not known on what basis Jackson contends that his opposition to the application statement that a new hire who terminated employment within six months shall reimburse the respondent for training and other monies associated with these costs, was a protected activity under the Act.
cc:
Attorney Joshua N. Dalley
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