KURT A HUNGERFORD, Complainant
THE BOLDT COMPANY, 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
May 17, 2013
hungeku : 120 : 5 745
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ Robert Glaser, Commissioner
/s/ C. William Jordahl, Commissioner
In his petition for commission review, the complainant argues that the employer did receive calls; did not respond to the request for personal information and workers; and did hire workers in July and August 2009, citing log books and sign in at the AMC job site. He also argues that the employer's records would show that he was not laid off from the NACC job. (1)
The commission notes that the ALJ did find, at Finding of Fact 11, that the complainant had called Kevin Abitz, the employer's labor coordinator, at least once shortly after his layoff, and that Abitz had put the complainant on the looking-for-work list that Abitz kept of individuals not currently working for the employer, but who had contacted him looking for work. As to the complainant's allegations that he made numerous additional calls looking for work, there was no evidence presented of those calls other than the complainant's own assertions. Telephone records were provided at the hearing of calls made to Abitz's cell phone (the phone he customarily used) and to Jeff Johnson, the employer's human resources VP, during the period of time at issue, and these records did not show calls to either of these numbers from the complainant's home telephone (2). At his deposition, the complainant stated that all of the calls he made to the employer were made from his home telephone; during the hearing his testimony was inconsistent, saying at one point that he might have also called from his wife's cell phone, but at another point he testified that his deposition testimony was accurate. Nevertheless, if the complainant made the number of telephone calls that he asserts that he did, it is likely that at least some of these calls would appear on the phone records, and they do not. In any event, the commission must rely on the evidence contained in the record to perform its fact-finding responsibilities, and there is nothing in the record to corroborate the complainant's assertions of numerous calls made to Abitz in July and August, 2009.
The complainant's petition is not clear about what is meant by the employer's lack of response to a request for personal information and workers. It may be that he is referring to a written request that he made prior to the hearing for the employer to provide all field employee records from August 1, 2008 to December 31, 2009. The employer responded by letter that the request was unreasonable, overly broad and not reasonably calculated to lead to the discovery of admissible evidence, noting that the employer employed 3,776 craft employees in various unions during that time period. The employer also stated that, technically, its response was not required until the day after the hearing, but that it was providing a response so that the complainant would not think that the employer was ignoring his request. These two letters are in the case file, although neither was marked as an exhibit at the hearing. It is not clear from the file when the employer received the complainant's request, although a time stamp indicates receipt of the request by the Equal Rights Division on October 26, 2011. At that time, the hearing was scheduled for November 30, 2011. Wis. Stat. § 804.09 governs requests for the production of documents in proceedings under the Wisconsin Fair Employment Act (WFEA), and provides, at § 804.09(2)(b), that the party upon whom the request is served shall serve a written response within 30 days after the service of the request. The commission is without the necessary information to determine whether the complainant's request was served on the employer late, i.e., not giving the employer 30 days to respond before the scheduled hearing. However, there is no indication that the complainant renewed his request for this information after the employer responded, either before the hearing or at the hearing. Accordingly, by proceeding with the hearing without raising this issue, the complainant must be considered to have withdrawn his request for these records.
As to the complainant's argument that the employer hired workers in July and August, 2009, as would be shown by its log books and sign-in sheets for the AMC job, that may be true. If Mr. Abitz could not staff a job with the necessary number of carpenters from other jobs that the employer had going, he would call carpenters on his looking for work list to see if they were available. He may have done so for the AMC job, although there is no evidence in the record that any carpenters were hired by the employer during the period at issue (July 10 through the end of August, 2009). No log books or sign-in sheets were presented as exhibits during the hearing (and it is not clear that such documents would establish that carpenters were hired during this period), although the complainant could have requested those documents be provided by the employer through a timely discovery request or a subpoena for the custodian of those records to bring them to the hearing. In addition, the commission agrees with the ALJ that the credible evidence established that the complainant was no longer on the looking for work list because he did not maintain contact with Mr. Abitz. This reason for the employer's failure to recall the complainant is a legitimate and non-discriminatory reason. The complainant has not shown probable cause to believe that the employer violated the WFEA by failing to recall him to work because he had previously filed a discrimination complaint against the employer.
cc:
Attorney Philip Munroe
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