MICHAEL W IONETZ, Complainant

CARMAX WAUKESHA, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The last three sentences in paragraph 7 of the administrative law judge's FINDINGS OF FACT are deleted and the following substituted therefor:

"Lakatos asked Johnson and Flak about whether Ionetz had answered questions in a professional manner during the in-person interview. Johnson and Flak reported that Ionetz started out well, but reverted to casual conversation and slang. Based on this information, Lakatos recommended that they pass on Ionetz."

2. Paragraph 14 of the administrative law judge's FINDINGS OF FACT is deleted and the remainder of the decision is renumbered accordingly.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 16, 2014
ionetmi_rmd . doc : 164 :  745

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

In his petition for commission review and supporting briefs the complainant raises numerous arguments regarding both the process with which his case was handled and the substance of the decision. The commission will attempt to address the most significant of those arguments below.

Transcript -- The complainant argues that there are errors in the transcript, and suggests that these alleged errors may have been deliberate on the part of the respondent. The complainant contends that he clearly stated he possessed "legal" files, although the transcript twice refers to "illegal files." He also contends that a portion of his testimony appears "discombobulated" and that he knows he did not speak that way. The complainant states that he believes the respondent may have manipulated the transcript, knowing that his attorney did not intend to file a brief and therefore would not be reviewing it. This argument fails. The commission can see absolutely no reason to suspect that the respondent manipulated the transcript, as alleged by the complainant. The transcript was prepared by an independent reporting service, which certified that it was accurate. It was subsequently independently reviewed by the administrative law judge who presided over the hearing. The complainant has not contended that he listened to the recording of the hearing, and his allegation that his testimony did not match the transcribed testimony appears to be based solely upon his memory. Given these circumstances, the commission can see no reason to doubt the accuracy of transcript. Further, even assuming the errors identified by the complainant were made, the complainant has not explained how they would affect the outcome of his case, and the commission can see no reason to believe that they would have had any bearing on the decision.

Discovery motion -- The complainant states that the respondent withheld evidence and submitted false evidence, but that the administrative law judge rejected his attorney's motion for a discovery continuance. Again, this argument fails. The administrative law judge rejected the complainant's motion to compel discovery, along with his motion for a continuance of the hearing, because these motions were not filed until just over a week prior to the scheduled hearing. Although this matter was certified for hearing on October 18, 2012, at which point the complainant was represented by counsel and could have begun the discovery process, he did not serve his discovery requests on the respondent until February 25, 2013. The decision to begin discovery so close to the April 18 hearing date virtually ensured that there would be no time to resolve any discovery disputes prior to the hearing and, indeed, the complainant did not file his motion to compel until April 9. Given the circumstances, the commission agrees that the administrative law judge's denial of the complainant's discovery motions was appropriate and a proper exercise of her discretion.

Equal Rights Division (ERD) complaint -- The complainant argues that the ERD made him shorten his complaint or face dismissal, even though the complaint form clearly states to "use additional sheets of paper if necessary." The complainant maintains that he received an unfair investigation, and that this resulted in an unfair hearing, since the administrative law judge used the revised complaint form which, due to space limitations, had caused him to leave off a person who engaged in blatant discrimination against him. There is no merit to this argument. The complainant was not prevented from introducing evidence at the hearing that went beyond the specific facts referenced on his complaint form, and there is no reason to believe that the manner in which his complaint was drafted had any bearing on the outcome of his case.

Credibility of respondent's witnesses -- The complainant maintains that the respondent's witnesses contradicted themselves and that their version of events is inherently incredible. He contends, for example, that since no reasonable person would have said the things he is alleged to have said to Mr. Lakatos during the telephone interview, he must not have said them. He also states that Mr. Lakatos used grammatical shortcuts and "lackadaisical phrases," that Mr. Johnson failed to portray any type of business acumen, and that much of the respondent's testimony about its hiring practices was not reasonable and did not make any sense. The complainant concludes by advising the commission that it should reject all testimony from the respondent's witnesses and focus on the preponderance of the evidence that was submitted. These arguments fail. The respondent's witnesses' testimony does in fact constitute evidence upon which a decision can rest, and the administrative law judge found it to be credible. Although the complainant may question the respondent's business judgment and find reason to be critical of the respondent's hiring procedures, he has not shown that the respondent's witnesses' explanations for their actions were untruthful or that they were pretexts for discrimination based upon his conviction record.

Background check -- The complainant has insisted throughout these proceedings that the respondent performed a background check on him and that, it was only after performing this background check, that it sent him a letter of rejection. In support of this assertion, the complainant maintains that the online interview summary that the respondent provided to him in response to a discovery request showed that a background screen was pending on March 30, 2012, the same day on which the respondent sent him a rejection letter. The complainant maintains that this proves the respondent also received the results of the background check on March 30. This argument fails. The fact that the online interview form indicated that a pre-hire screen was "pending" signifies only that it had not yet been done. The respondent's general manager testified that it was the respondent's practice not to do a background screen until such time as the respondent was prepared to extend a job offer, and that no background screen was performed in this case. The fact that the complainant never signed the background information release authorization form lends further support to this assertion.

Substantial relationship -- The complainant argues that the administrative law judge abused her discretion by finding that the character traits revealed by his misdemeanor offense were substantially related to the job. The commission considers it unnecessary to address the complainant's arguments on this point. Having concluded that the complainant failed to show probable cause to believe that the respondent's decision not to hire him was based upon his conviction record, the question of whether the conviction record was substantially related to the job became moot. The commission has, therefore, deleted that portion of the administrative law judge's decision.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed in his burden of demonstrating probable cause to believe discrimination occurred, the dismissal of his complaint is affirmed.

cc: Attorney David A. Rappaport

Aff'd.  Ionetz v. LIRC (Jefferson County Cir. Ct., 05/21/15).

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2014/11/18