RICK JACKSON, Complainant
KLEMM TANK LINES, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. CR200900368
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 makes the following:
The administrative law judge's decision (copy attached), is affirmed in part, and is set aside and remanded in part. The dismissal of the complainant's discrimination complaint is affirmed. However, the portion of the administrative law judge's decision finding that the complainant's failure to hire claim was frivolous is set aside, and the matter is remanded for a hearing and a new decision on that question. If, after hearing, the administrative law judge concludes that the claim was, in fact, frivolous, the administrative law judge shall make a determination as to the appropriate amount of sanctions to be awarded in conjunction with the frivolous claim.
Dated and mailed March 26, 2015
jacksri . rrr : 164 : 113.5, 119, 863
BY THE COMMISSION:
__________________________________________
/s/ Laurie R. McCallum, Chairperson
__________________________________________
/s/ C. William Jordahl, Commissioner
__________________________________________
/s/ David B. Falstad, Commissioner
Procedural history
In a complaint filed on January 26, 2009, the complainant alleged that he was denied hire by the respondent because of his criminal conviction record and, further, that the respondent printed or circulated a discriminatory policy.
On May 21, 2009, an investigator from the Equal Rights Division issued a finding of no probable cause on both issues. The complainant filed a timely appeal, and the matter was certified to hearing. However, on August 11, 2009, before any hearing could be held, the respondent submitted a "Notice Of Motion And Motion To Dismiss And For Sanctions Against Complainant For Maintaining A Frivolous Action." (1)
Prior to any ruling on the respondent's motion, the matter was placed into abeyance (at the complainant's request) pending the proceedings in a separate case involving the same parties, ERD Case No. CR200205060. Following a ruling in that case by the Wisconsin Court of Appeals on June 7, 2012, the matter was removed from abeyance, and the respondent was given an opportunity to refile and update its motion. The respondent did so on May 14, 2013.
In a "Ruling on Respondent's Motion," dated September 26, 2013, an administrative law judge from the Equal Rights Division indicated that the complainant would be given a 21-day "safe harbor" in which to withdraw his claims without fear of sanctions. The administrative law judge indicated that after the 21-day period, he would make a determination as to whether any claims that were not withdrawn should be set for hearing or if they should be dismissed as frivolous and/or should result in monetary sanctions.
The complainant did not withdraw either of his claims during the "safe harbor" period, and the respondent thereafter renewed its motion to dismiss and for sanctions.
On May 27, 2014, the Division issued a hearing notice notifying the parties that a hearing would be held on August 12, 2014 with regard to the complainant's appeal of the no probable cause initial determination. However, no hearing was held. Instead, on July 16, 2014, and again on August 12, 2014, the administrative law judge held telephone conferences with the parties, during which they were given an opportunity to state their respective positions regarding the potential dismissal of the complainant's complaints.
Thereafter, on November 28, 2014, the administrative law judge issued a "Second Ruling on Respondent's Motion" in which he dismissed both of the complainant's claims. The administrative law judge also found that the complainant's complaint that the respondent had denied him employment based upon his conviction record was frivolous. The administrative law judge deferred any ruling on the question of sanctions until such time as the decision becomes final.
The complainant filed a timely appeal of the administrative law judge's order of dismissal, and the matter is now before the commission for review.
Discussion
The first question to decide is whether the complainant's claims were appropriately dismissed prior to hearing. A second question presented is whether the administrative law judge's finding that the failure to hire claim was frivolous can be upheld.
A. Printing and circulating claim
In his complaint, which the complainant captioned "Klemm Tank Lines A.K.A. Kenan Advantage Group," the complainant maintained that the respondent printed a discriminatory job advertisement. In the body of the complaint the complainant elaborated that the advertisement was placed by Kenan Advantage Group "also known as Klemm Tank Lines." Along with his complaint the complainant provided a copy of an on-line printable application from Kenan Advantage Group (hereinafter "KAG") that indicates it is hiring tank truck drivers, but that conviction of felony theft, forgery or assault are "immediate disqualifications." The on-line application contains no indication as to where the jobs in question are located, although the website does contain an Ohio mailing address for KAG. The complainant also provided a copy of a business card from a Klemm Tank Lines (hereinafter "Klemm") driver recruiter, located in Green Bay, Wisconsin, which indicates that Klemm is "A KAG Highway Subsidiary."
In his "Second Ruling on Respondent's Motion," the administrative law judge essentially found that, notwithstanding any corporate relationship that may exist between KAG and Klemm, the matter was dismissed for lack of any reason to believe that statements on a website for KAG could be attributed to advertising for positions in Wisconsin for Klemm. The commission agrees that dismissal was appropriate.
Although the complainant asserted that the respondent in this case is "Klemm Tank Lines A.K.A. Kenan Advantage Group," there is no reason to believe that Klemm and KAG are the same entity. It is clear from the complaint that the complainant's argument is with KAG, not Klemm; there has been no contention made that Klemm published a discriminatory job advertisement, as the advertisement at issue was posted by KAG. While Klemm is a corporate subsidiary of KAG, there is no basis to conclude that actions taken by KAG can be imputed to Klemm such that Klemm bears legal responsibility for those actions. For these reasons, the commission agrees with the administrative law judge that the complainant's claims that Klemm violated the Act by printing or circulating an advertisement that expresses discrimination are properly dismissed. (2) That portion of the administrative law judge's decision is therefore affirmed.
B. Failure to hire claim
The complainant has alleged that the respondent refused to hire him based upon his conviction record. In his complaint the complainant described the job for which he was allegedly denied hire in the following manner: "I would have been delivering gasoline to stations mostly within a few hundred miles of Janesville, Wi. or Green Bay, Wi. No Canada." During a telephone conference held on July 16, 2014, the complainant clarified that the job at issue was that of tanker truck driver.
In a previous case involving the same employer, Klemm Tank Lines, the complainant alleged that he was denied hire as a truck driver based upon his conviction record. In that case, which is virtually identical in all important respects to the case at hand, the administrative law judge analyzed the facts and specifically found that the complainant's criminal record was substantially related to the job of truck driver for Klemm. Jackson v. Klemm Tank Lines, ERD Case No. CR200205060 (ALJ decision July 14, 2009, p. 6, ¶4.) In his memorandum opinion the administrative law judge noted:
"It is abundantly clear that the conviction record is substantially related, as it has been found in numerous other cases, to this truck driving position. . . ."
The commission affirmed the administrative law judge's decision, noting that the evidence presented at the hearing fully supported a conclusion that the complainant's conviction record was substantially related to the circumstances of the job at issue. Jackson v. Klemm Tank Lines, ERD Case No. CR200205060 (LIRC Feb. 19, 2010). The complainant appealed that finding to a Wisconsin circuit court, which affirmed the commission's decision. Jackson v. LIRC and Klemm Tank Lines, Case No. 10-CV-634 (Wis. Cir. Ct. Rock County, July 23, 2010). In his opinion, Judge Welker of the Rock County Circuit Court stated:
". . . I conclude that an over-the-road trucking company in the position of Klemm may refuse to hire [the complainant] based upon his criminal record because it is reasonably related to the nature of the employment."
The complainant then filed an appeal to the Wisconsin Court of Appeals, which again affirmed the decision. Jackson v. LIRC and Klemm Tank Lines, 2010 AP 2311 (Wis. Ct. App. June 7, 2012), pet. for rev. denied. That decision is now final.
Given the foregoing, it is clear that the issue of whether the complainant could have been discriminated against by the respondent based upon his conviction record with respect to the position of truck driver has already been fully litigated and finally decided. The complainant is therefore precluded from raising the same claim in this or any future litigation involving the respondent. The administrative law judge's dismissal of the failure to hire claim is therefore affirmed.
C. Frivolous claim issue
The administrative law judge found that the complainant's claim that the respondent denied him hire based upon his criminal record was frivolous, within the meaning of Wis. Stat. § 227.483, which provides:
(1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.
(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.
(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following:
(a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another.
(b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.
Wis. Stat. § 227.483 (emphasis added).
The commission reviews decisions regarding rulings on frivolous claim motions under the "abuse of discretion" standard. Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC May 31, 2013). Under that standard, the question is whether the finder of fact "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Reed, citing Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992).
As the italicized language indicates, the statute cited above requires the administrative law judge to make certain findings of fact. The ultimate finding in support of sanctions must be that a party commenced or continued a complaint "in bad faith, solely for purposes of harassing or maliciously injuring another" or that the party knew or should have known that the claim was "without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law."
Normally, an evidentiary hearing is required to make such a finding, unless there are no disputed facts or the parties have waived their right to such hearing. Reed v. Heiser Ford, Inc., ERD Case No. 200504107 (LIRC May 31, 2013).
In this case, there was no evidentiary hearing on the question of frivolousness, nor does it appear that the parties were offered a chance to participate in such hearing but waived the right to do so. The administrative law judge found that a portion of the complainant's complaint was frivolous without holding a hearing, and without making any factual finding regarding the complainant's intent, as required by the statute. Under the standard articulated in Reed, cited above, the commission is compelled to find that the administrative law judge's actions in this regard constituted an abuse of discretion. In addition, the commission notes that the administrative law judge's decision is incomplete in that it contains no finding as to the amount of sanctions to be awarded, but instead references the possibility of a future proceeding at which such amounts could be determined.
The commission does not have the authority to make its own findings under Wis. Stat. § 227.483; only the administrative law judge does. See, Henderson v. State of Wisconsin, Dept of Corrections, ERD Case No. 200304180 (LIRC March 19, 2009); Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC April 21, 2011). Therefore, the commission is unable to modify the administrative law judge's decision to include the factual findings that should have been made, but must remand this to the administrative law judge so that the appropriate findings may be made. It is contemplated that on remand the complainant will be given an opportunity for a hearing at which he may attempt to establish that the complaint should not be regarded as frivolous because he did not act in bad faith and/or because he had a reasonable expectation that he could prevail. Finally, the question of the appropriate amount of sanctions should be addressed, if warranted.
D. Complainant's arguments
The commission has considered the arguments raised by the complainant in his petition, including his assertion that he wishes to amend his complaint based on alleged misconduct by the respondent's attorneys, but finds them unpersuasive. Although the complainant would like to see the dismissal of his claims set aside and a probable cause decision issued, for the reasons set forth above, the commission agrees with the administrative law judge that dismissal of the complaint is warranted.
cc:
Attorney Robert W. Burns
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