RICK JACKSON, Complainant

TRANSPORT AMERICA, 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 6, 2002
jacksri6 . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for review Rick Jackson argues that the ALJ erred in accepting the respondent's testimony that it had no regional driving positions that did not require Canadian entry and no positions that involved working exclusively on the company premises. Jackson has not established that the ALJ erred. However, even assuming for purposes of argument that this were true, Jackson has failed to establish that the respondent discriminatorily refused to hire or employ him on the basis of conviction record because his conviction record was substantially related to the job of a regional truck driver or a non-driving job at the respondent's service center.

Jackson also claims error, apparently arguing that the ALJ "called it upon himself" to find that his conviction record was substantially related to the job of a truck driver and to other work at the respondent's service center. Apparently Jackson is referencing a comment in the ALJ's memorandum opinion at page 5 where the ALJ states that the "substantial relationship test is a legal test applied by the Administrative Law Judge based upon the facts introduced at the hearing." Jackson's argument fails. The ALJ's statement is nothing more than recognition of the oft stated principle that the question of whether an individual's conviction record is substantially related to a job that the individual has been denied, and thus whether or not there had been a violation of the Act, is to be determined after the fact by the reviewing tribunal based upon the facts introduced at the hearing. See, for example, Black v. Warner Cable Communications Co. Of Milw. (LIRC, 07/10/89), Santos v. Whitehead Specialties (LIRC, 02/26/92), Collins v. Milw. Co. Civil Service Comm. (LIRC, 12/15/92) and Lillge v. Schneider Nat'l. (LIRC, 06/10/98). The evidence presented by the respondent at the hearing in this case clearly established a substantial relationship between Jackson's conviction record and the job of a truck driver, whether over the road or local, and to work in a non-driving position at the respondent's service center. Employment of Jackson would give him access to high value cargo and equipment belonging to the respondent. Jackson has convictions for theft, armed robbery, unlawful restraint, aggravated battery, residential burglary, armed violence and home invasion.

Jackson further argues that at the conclusion of the hearing the ALJ started to become "hostile, omnipotent [and] showed deliberate indifference toward [him] as well as [his] witnesses." Jackson argues that he did not receive a fair trial. Jackson's arguments are wholly without merit. A review of the hearing tapes in this matter utterly fails to support Jackson's claim. The hearing tapes reveal that throughout the hearing not only was the ALJ courteous to everyone at the hearing, he also specifically took the time to explain evidentiary and procedural matters for Jackson's benefit and he tried to ensure that Jackson fully presented his case. Jackson received a fair trial.

Also, Jackson has requested an opportunity to orally argue his case before the commission. This request is denied. The commission may grant a written request for oral argument if it determines that an issue would be more clearly presented by oral argument. Wis. Admin. Code DWD § LIRC 1.06. However, the commission normally does not consider oral argument to be necessary because review is on the basis of the record, the parties have the right to file briefs, and oral argument delays disposition of the petition. See Note to § LIRC 1.06. This case does not present a need for oral argument. The issue in this case has been made clear from the existing record and Jackson's written arguments on appeal.

Finally, Jackson apparently objects to the fact that the commission has staff attorneys that assist in reviewing the record of cases appealed to the commission. This argument also fails. Section 103.04, Wis. Stat., specifically authorizes the commission to employ professional and other persons to assist in the execution of its duties.

cc: Attorney Jessica L. Roe

Appealed to Circuit Court. Affirmed January 7, 2003. Appealed to the Court of Appeals. Affirmed per curiam July 1, 2004.

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uploaded 2002/05/16