TORRENCE BORUM, Complainant

ALLSTATE INSURANCE 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 October 19, 2001
borumto . rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Exclusion of evidence -- The Complainant argues that the ALJ erred when she ruled that certain evidence would be excluded because the Complainant did not timely disclose potential witnesses and exhibits prior to hearing, as required by Wis. Admin. Code DWD 218.17.

It is evident from statements made on the record, that the ALJ found that the Complainant had mailed his witness and exhibit list to the Respondent on the tenth day prior to the hearing, but that the ALJ also concluded that the applicable rule required that the witness and exhibit list actually be received by the other party at least ten days prior to the hearing. (T. 17; see also T. 41-42).

The commission believes that the ALJ erred in construing DWD 218.17 as requiring that a witness and exhibit list must be received by the other party by the tenth day prior to the hearing. Although the commission has also concluded, for reasons discussed below (infra, at p. 4), that this error was not prejudicial and does not warrant setting aside the decision, it deems it appropriate to explain its views on this issue in order to avoid the possibility that erroneous exclusion of documents in future cases might necessitate such set-asides.

The ERD has had a rule requiring pre-hearing exchange of information about potential witnesses and exhibits, since 1986. As originally adopted, the rule provided that the parties had to "file with the division and serve upon the other party" a list of witnesses and copies of exhibits. (emphasis added). Wis. Admin. Code DWD 88.14(1), Cr. Register, June 1986, No. 366, eff. 7-1-86.

In the early 1990's, the commission expressly held that under this language, the service upon the opposing parties which was required by the rule was complete upon mailing, so that if a party put the witness list and exhibit copies in the mail to the other party by the tenth day prior to hearing, the rule should be deemed to have been complied with. Pohlen v. General Electric Co. (LIRC, 04/18/91); see also, Peace v. Milwaukee Plating Company (LIRC, August 21, 1992).

The ERD's rule was renumbered and rewritten in 1995, at which time it acquired its present wording. Register, June 1995, No. 474, eff. July 1, 1995. Thus, DWD 218.17, now provides:

Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the day of hearing, the parties shall file with the division and file upon (sic) all other parties a written list of names of witnesses and copies of exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing.

Among other things, the language of the rule was changed so that rather than requiring the witness and exhibit disclosure to be "file[d] with the division and serve[d] upon the other party," the witness and exhibit disclosure was required to be "file[d] with the division and file[d] upon all other parties."

It is difficult to know what to make of this change. The usage, "file upon," is ungrammatical, and inconsistent with conventional usage, in a way which makes its intended meaning particularly unclear. The preposition "upon" is never used with the verb "file." Documents are not filed "upon" others; they are filed "with" others (or sometimes "at" particular offices). One serves documents "upon" others. In addition, parties also do not "file" documents, either "with" or "upon," other parties to a contested case; "filing" is a term that is used to denote the delivery of a document to some sort of official entity or repository where it will then be kept "on file."

It may be that the change from "serve upon" to "file upon" was made in an attempt to respond to the commission's Pohlen decision. The ERD's rules contain a definition of the word "filing" which states that " 'filing' means the physical receipt of a document." Wis. Admin. Code DWD 218.02(6). Perhaps the thought was, that changing the language of the rule from "serve upon" to "file upon" would have the result of substantively changing the requirement so that it would be necessary for the other party to have actually received the witness list and exhibits by the 10th day prior to hearing.

However, this speculation that the ERD may have been trying to change the rule to require delivery to the other party by the tenth day prior to hearing, is just that: mere speculation. It is certainly not clearly provided for by the frustratingly ambiguous hybrid, "file upon," which sits on the fence between "file with" and "serve upon."

Furthermore, that speculation is more than outweighed by the provisions of the "Information Sheet" which the Division distributes along with notices of hearing, which (among other things) explains this rule. That information sheet states, that "[b]y no later than ten (10) days before the date of the hearing, each party must send the other party - and file with the division - a list of any witnesses and copies of any documents they may want to use at the hearing...". (1)   The use of the word "send" is significant. In Pohlen the commission explicitly relied on this very language in the "Information Sheet," holding that the use of the word "send" effectively communicated to the parties that they were authorized to use the mails to comply with this provision, and that the explanation thus indicated that the rule was complied with if the party put the disclosure into the mail to the other party by the tenth day prior to hearing.

The commission also finds it particularly significant, that the "Information Sheet" which was sent to the parties in this case, bears an indication at the bottom that it was last revised in December 1995. That was six months after the effective date of the rule change which adopted the ambiguous "file upon" language. Thus, even after the ERD adopted the "file upon" language, when it next carried out a revision of its plain language explanation of procedural requirements, it continued to include instructions to parties that they had to "send" their witness list and exhibits to the other party no later than ten days prior to the hearing. As noted above, those instructions had previously been expressly held by the commission to indicate that the required disclosure could be made by, and was complete upon, mailing. The December 1995 version of the "Information Sheet" can be taken as evidence as to how the ERD intended meaning the rule and how it understands it. It thus supports a construction of the rule which gives meaning to the word "send" and which recognizes that the exchange may be made by, and is complete upon, mailing.

For the foregoing reasons, the commission construes the language of the current DWD 218.17 to mean that compliance with the requirement of disclosure of witness and exhibit information to the opposing party can be achieved by, and will be complete upon, mailing to the opposing party. The commission will continue to construe the rule in this manner unless and until it is amended to unambiguously evidence some alternative meaning.

The commission therefore concludes that the ALJ erred in excluding evidence on the grounds that Complainant's witness and exhibit disclosure, which she found had been mailed to Respondent on the tenth day prior to hearing, had not been received by the Respondent by the tenth day prior to hearing. However, as Respondent correctly points out, there were actually only two exhibits offered by the Complainant which were rejected on that basis. (2)   The commission concludes that the exclusion of these two documents was not prejudicial and does not warrant reversal, in that these exhibits (Complainant's resume, and a manual that Complainant had produced at another job) were both offered in order to prove Complainant's qualifications, and despite their exclusion the Complainant had the opportunity to provide testimony going to that point. (See, T. 47). Even considering the documents, the commission would still arrive at the same decision.

Discovery ruling and evidentiary ruling regarding test score evidence - The Complainant argues that the ALJ erred in accepting the Respondent's computer document purporting to reflect Complainant's score, and in denying Complainant's motion to compel production of documents (concerning the test and the score). Presumably, the "computer document" which the Complainant is referring to is Ex. 14, a document entitled "Agent Selection Process / Agent Candidate Rating," which refers to the "Agent Selection Questionnaire" test and shows a rating of "Low Potential." In the deposition of Jan Sandoval (received into the record in videotape form as Ex. 12; a transcript of the deposition is also contained in the file), she testified that the document was "a print off" of Complainant's test score. (Sandoval Deposition, p. 19).

As Respondent points out in its Brief, the Complainant raised no objection to the receipt of Ex. 14 at hearing (T. 108-109). He also raised no objection to the receipt of Sandoval's deposition (T. 109). During that deposition, the Complainant raised no formal objection to Sandoval's testimony that the document in question reflected his test score. While during cross-examination of Sandoval the Complainant attempted to challenge the basis for her testimony that the score was indeed his (Sandoval Deposition, pp. 54-56), Sandoval provided testimony that would warrant a reasonable person in believing that the test score document did indeed reflect the Complainant's score. (3)   Ibid.

The commission concludes that Complainant's argument based on the "Best Evidence Rule," Wis. Stat. 910.02, is faulty for a number of reasons.

First, the information at issue (i.e., the Complainant's score on the test) was data stored in a computer, and Wis. Stat. § 910.01(3) provides, in relevant part, that "[i]f data are stored on a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original'." The commission was persuaded by the testimony offered by Sandoval in her deposition concerning the score and the sheet, that the sheet reflected the data accurately.

Perhaps more important, though, the Rules of Evidence are not applicable in hearings before the Equal Rights Division. Wis. Stat. 227.45(1) ("...[A]n agency or hearing examiner shall not be bound by common law or statutory rules of evidence"). The "Best Evidence Rule," being a statutory rule of evidence, is thus not binding.

Respondent also is correct when it observes in its Brief, that there is nothing in the record which raises any reason to doubt the evidence that the score is Complainant's, except for the Complainant's unsupported speculation to the contrary.

Complainant's argument that the ALJ erred in her rulings on Complainant's efforts to obtain discovery regarding the test and the test score, relates to two sets of interrogatories. The commission is unable to find in the file anything which would appear to correspond with the first set of interrogatories Complainant asserts he filed. However, based on its review of the argument and rulings on the record concerning these interrogatories, the commission is satisfied that the ALJ acted within her discretion in declining to grant the motion in that respect. See, T. 8-12. With respect to the second set of interrogatories, the Complainant asserts in his Brief that he "requested the information" in these interrogatories on September 5, 2000. However, while the file contains a copy of interrogatories from Complainant labeled "Second Set of Interrogatories," they are undated, and therefore they do not support Complainant's implicit claim that he served them on September 5, 2000. More important, Complainant himself stated at the hearing that the uncompleted phrase "On or before, September 9 2000 On or before, September 9, 2000" in his Motion To Compel reflected the date on which he served his second set of interrogatories. See, T. 13. The second set of interrogatories was thus served on September 9, not on September 5. Since the hearing was scheduled for October 5, 2000, the ALJ was correct in refusing to grant the Motion To Compel because it had been less than 30 days since the discovery request had been served.

Findings regarding reasons for decision not to hire Complainant -- The Complainant advances a number of arguments which are all in the nature of attacks on the credibility, persuasiveness, and reliability of the evidence that he received a "low" score on the rating test, that there was a hiring freeze in place, and that these things were factors in the decision not to hire him. He also argues that different standards were used to assess his qualifications than were used to assess the qualifications of others, that a decision not to hire him was made before there was a complete assessment of his qualifications, that his qualifications were actually superior to those of others, and that all of the evidence establishes that the reason he was not hired, was his conviction record.

The commission has carefully considered the Complainant's arguments, but it is unpersuaded by them. As the ALJ noted, issues of credibility were involved in this case. The ALJ stated that she found the evidence concerning the Complainant's "low" rating on the test and his employment history and how that impacted on the decision, to be credible. The commission finds no reason in the record to disagree with this assessment. The commission, based on its review of all of the evidence, is persuaded that the Complainant did indeed receive a "low" rating on the test, and that there was indeed a hiring freeze in effect with respect to agency manager trainee positions, and that these things, as well as an employment history reasonably judged by Respondent to not demonstrate a pattern of successful employment, were the reasons for the Respondent's decision not to hire him.

"Substantially related" defense -- Complainant has also raised a number of issues relating to the potential applicability of the "substantially related" defense, Wis. Stat. § 111.335(1)(c). Thus, Complainant argues that the fact that he was issued a license to sell insurance by the Wisconsin Commissioner of Insurance establishes that the Commissioner of Insurance made a determination that his convictions were not substantially related to the occupation at issue here, and that determination should be given great weight. He also argues that Respondent should not be heard to rely on the "substantially related" affirmative defense because it had (or so Complainant asserts) a policy which evidenced an intent to violate the prohibition on discrimination because of conviction record.

The commission is not persuaded by the Complainant's arguments concerning the significance of actions and decisions by the Commissioner of Insurance or the provisions of the Violent Crime Control Enforcement Act of 1994, 18 U.S.C. § § 1033-1034. There is nothing in the Wisconsin Fair Employment Act which provides, or even implies, that the authority of the Equal Rights Division and the commission to interpret and apply the provisions of the Act is in any respect subordinated to the authority of any other administrative agency, or that a decision by any other administrative agency must be given weight in the interpretation and application of the provisions of the Act. On the contrary, as the Respondent points out in its Brief, the WFEA provides that "[e]xcept as provided under subsection (2) [relating to state employees and the personnel commission], this subchapter shall be administered by the department." Wis. Stat. § 111.375(1).

The commission is satisfied that the circumstances of the offenses for which the Complainant was convicted (4)  are substantially related to the circumstances of the employment involved in this case, within the meaning of Wis. Stat. § 111.335(1)(c). In particular, the evidence relating to the offense for which the Complainant was convicted in 1986 leaves little room to conclude otherwise. The allegations in that matter, in which the Complainant was eventually convicted of (felony) theft in violation of Wis. Stat. § 943.20, involved a calculated course of alteration and misuse of records and documents through which money was stolen by fraud. In Nelson v. Prudential (LIRC, May 17, 1996), the commission found a substantial relationship between the occupation of selling insurance and investment products for an insurance company, and the offenses of forgery and burglary. The considerations which supported the commission's ruling in that case, are present here.

The commission also agrees with the ALJ's discussion of the Complainant's argument concerning the length of time that has passed since the offenses were committed. Past decisions have indicated that the length of the period of time that has elapsed since an offense is not relevant to deciding on application of the "substantial relation" standard. The commission would further note that, assuming for the sake of discussion there would be good reasons to consider the passage of time as a factor, those reasons would be significantly less compelling in a case such as this. Here, the Complainant committed a serious offense, a significant amount of time (six years) then passed, and the Complainant then committed another serious offense. This circumstance suggests that the passage of time may not necessarily be a reliable indicator that the propensities that gave rise to earlier offenses are no longer present. In addition, the most recent crime which the Complainant committed is the one which is most distinctly related to the position at issue, involving as it does the opportunity and risk for fraudulent misappropriation by the manipulation of documents and instruments.

For the foregoing reasons, the commission agrees with the ALJ's analysis and application of the "substantially related" standard to this situation.

Ruling on back pay entitlement -- The ALJ ruled that if the Complainant prevailed on the question of liability, he would not be awarded any back pay, because he had engaged in a persistent and deliberate refusal to cooperate in discovery efforts to have him produce his tax returns, which were potentially relevant to the question of interim earnings and thus to the amount of back pay he might be entitled to. The Complainant argues that this ruling was erroneous. The issue of whether this ruling was correct was rendered moot by the decision that there was no violation of the Act and thus no entitlement to a remedy. There being no purpose to be served by addressing the issue in such circumstances, the commission will not do so.

cc: Eileen E. Baker, Attorney for Respondent

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(1)( Back ) The commission notes that, in addition to the fact that a copy of this "Information Sheet" was sent to the parties in this case along with the Notice of Hearing, the ALJ herself sent the Complainant a letter, on September 18, 2000, in which she stated, inter alia, "[y]ou should be aware that each party is required to send a list of witnesses and copies of all exhibits that a party might use to each other and to the Division at least ten days before the hearing" (emphasis added).

(2)( Back ) These were Exhibits 1 and 7. As the Respondent correctly notes in its brief, Exhibits 3, 4, 5, 8 and 9 were rejected by the ALJ because they were hearsay (see, T. 57, 59, 66). The rejection of Exhibit 22 was based on lack of authentication. (T. 243).

(3)( Back ) A: All I know is that the applicant takes the application and the test. It's uploaded by whoever administered the test and then a score comes back. I don't - I don't know the whole detail of how that happens. 
                Q: Okay. So you don't know whether or not that individual's test score is someone else's test score, would you 
               MS. BAKER: Objection to the form. 
                A: No. I'm confident it's the test score. It's based on a social security number and there are passwords and so, yes, that is the person's test score.

(4)( Back ) The Complainant testified that he had been convicted of the offense of "party to a crime in a strong-armed robbery in 1979, '80" and "party to a crime in a theft in 1986". (T. 36, 77). This testimony does not comport with what is shown in the official records of the Circuit Court for Milwaukee County, as reflected in the on-line Wisconsin Circuit Court Access service ( http://wcca.wicourts.gov/index.xsl) which provides internet access to information in the database of the Circuit Court Automation Program. According to these records, the Complainant was charged in 1980 with two counts of (Felony) Robbery in violation of Wis. Stat. § 943.32 and two counts of Party To A Crime in violation of Wis. Stat. § 939.05, and he was convicted, on pleas of guilty, on the two Robbery counts. Also according to these records, the Complainant was charged in 1986 with one count of (Felony) Theft in violation of Wis. Stat. § 943.20 and one count of Party To A Crime in violation of Wis. Stat. § 939.05, and he was convicted, on a guilty plea, on the Theft count.

uploaded 2001/10/22