HENRY JACKSON, Complainant
MILWAUKEE AREA TECHNICAL COLLEGE, Respondent A
AMERICAN FEDERATION OF TEACHERS, Respondent B
MILWAUKEE AREA TECHNICAL COLLEGE, Respondent A
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 conclusions in that decision as its own, except that it makes the following modification:
The following is added as paragraph 6 under the CONCLUSIONS OF LAW:
"The Complainant's June 10, 2002 amended complaint filed against Respondents A and B was filed beyond the 300-day statute of limitations period for filing employment discrimination complaints under the WFEA."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 16, 2003
jackshe . rmd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
After originally unsuccessfully attempting to file complaints of discrimination against Respondent A, MATC, and Respondent B, Union Local 212, in early September, 2001, Henry Jackson successfully filed a complaint of discrimination (designated as ERD Case #200103304) against these respondents on September 18, 2001. Jackson, a black male, alleged that MATC discriminated against him on the basis of race and sex with respect to termination of employment and failure to hire. Jackson alleged that the Union failed to properly represent him because of his race and sex.
Jackson filed a second complaint of discrimination (ERD Case #200103957) against MATC alleging a refusal to hire based on race and sex discrimination on November 9, 2001.
On June 10, 2002, Jackson filed an amended complaint against Respondents A and B, alleging discrimination on the basis of arrest and conviction record.
The ALJ dismissed Jackson's race and sex discrimination complaints (ERD Case #200103304 and ERD Case #200103957) against Respondent A based on Jackson's continued failure to comply with Respondent A's discovery requests to answer interrogatories and admission requests and to produce documents.
The discovery requests, which required Jackson to respond within 30 days, were sent to Jackson on April 22, 2002. In a letter to the parties dated April 24, 2002, among other things, the ALJ informed Jackson that the purpose of discovery was to allow the parties to prepare for the hearing and she identified the various forms of discovery. In this letter the ALJ also advised Jackson that sanctions, including dismissal of a party's claim or a default judgment, could be imposed on a party for failure to reasonably comply with discovery. Further the ALJ advised Jackson that if he had any questions to please contact her at the Equal Rights Division.
On May 28, 2002, after the 30-day period for responding to the discovery requests expired, the respondent contacted Jackson and extended the time for him to tender his discovery responses until the following day when he was scheduled for oral deposition. Jackson did not turn over any discovery requests at his deposition, however, and he failed to offer a credible explanation for not complying with the discovery requests. For example, when initially asked about his discovery responses Jackson stated that he had brought along everything that he could think MATC's counsel may want to look at. Upon further questioning, Jackson then claimed to not know what document production requests, requests to admit and interrogatories were. Later, Jackson asserted that he interpreted the discovery requests to mean that he would be answering questions verbally. However, he admitted that counsel had asked him if he was going to bring the discovery requests to the deposition and that he had stated he would. When asked why he did not bring written answers to the written questions Jackson stated that maybe he did not receive them. However, Jackson admitted to having in his possession envelopes from MATC's counsel and a number of documents. Jackson claimed that the material in the envelopes was not from respondent's counsel and that the documents in his possession were for a different case. Jackson refused to allow counsel to look at the documents in his possession, however.
Subsequently, by letter dated June 28, 2002, the ALJ advised Jackson, among other things, that she was giving him one more chance to comply with MATC's discovery requests. Jackson was given until July 5, 2002 to reply to the discovery requests. Jackson still failed to comply with MATC's discovery requests.
Jackson provided no explanation for his failure to comply with the July 5, 2002 deadline for providing responses to MATC's discovery requests, and he has presented no explanation for such failure in his petition for review of the ALJ's decision dismissing ERD Case #s 200103304 and 200103957 against MATC.
Sanctions, including the dismissal of the complaint, may be imposed for failing to comply with discovery requests where the non-complying party's conduct is egregious or in bad faith and without a clear and justifiable excuse. Josellis v. Pace Industries (LIRC, 06/21/02); Reed v. Wurth USA (LIRC, 09/25/01). The ALJ's dismissal of ERD Case #s 200103304 and 200103957 against MATC was warranted as Jackson's failure to comply with MATC's discovery requests was egregious and without a clear and justifiable excuse.
The ALJ also dismissed Jackson's June 10, 2002 amended complaint against both Respondents A and B. Jackson's amended complaint alleges that the arrest and conviction law was violated. In the section of the complaint titled "BASIS" Jackson wrote, "This only adds to my original discrimination complaint." In the section titled "STATEMENT: What did the Respondent do?" and which asked for a listing of each action the complainant believed was discriminatory, Jackson stated that he was "Terminated/dismissed and not hired." Jackson referenced his May 29, 2002 deposition as evidence of the alleged arrest and conviction record discrimination. Jackson's complaint indicated that these actions last happened in the year 2000.
With respect to Jackson's amended complaint claim the ALJ stated at page 8 of her decision as follows:
"On July 9, 2002, the Administrative Law Judge also informed the parties that the Administrative Law Judge would be dismissing the Complainant's amended complaint filed on June 10, 2002 against Respondents A & B. The Administrative Law Judge determined that the Complainant's complaint failed to state a claim on its face because the Complainant had admitted in his deposition that he had not informed Respondent A of his conviction record prior to the deposition. Therefore, the Complainant's claim that Respondent A had discriminated against him in 2000 could not have been based on Respondent A's knowledge that the Complainant had a conviction record. The Administrative Law Judge found that the Complainant's amended complaint made no reference to any information that Respondent B might have regarding any conviction record of the Complainant, or any action of Respondent B made with respect to the Complainant's employment because of the knowledge of such conviction record. The Administrative Law Judge determined that the Complainant had failed to state a claim against either Respondents A or B given the facts stated in the complaint. The Administrative Law also notes that the complaint filed by the Complainant on June 10, 2002 was filed more than 300 days after the year 2000. Therefore, the Complainant's complaint was filed beyond the statute of limitations period."
The commission concludes that Jackson's amended complaint should not have been dismissed on the ground that it failed to state a claim for relief. Jackson's amended complaint indicates that he was discriminated against by Respondent A on the basis of his arrest and conviction record with respect to his termination of employment and a refusal to hire. These allegations, if true, would constitute a violation of the Act. Jackson's admission at his May 29, 2002 deposition that he had not informed Respondent A of his conviction record prior to his deposition does not mean that MATC was therefore unaware of his arrest and conviction record. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Jackson's amended complaint against Respondent B presents a somewhat closer question because the amended complaint itself does not contain any alleged action by Respondent B which, if true, would constitute a violation of the Act. However, Jackson's amended complaint of alleged arrest and conviction record discrimination does contain the assertion that "This only adds to my original discrimination complaint." Jackson's original discrimination complaint against Union Local 212 makes clear that his claim was that Union Local 212 failed to properly represent him with respect to his termination of employment and the refusal to hire him. Read together with his original complaint, Jackson's amended complaint does state a claim for relief against Respondent B.
Dismissal of Jackson's June 10, 2002 amended complaint was nevertheless appropriate, however, for the alternative reason that such complaint was not filed timely. Both respondents objected to Jackson's amended complaint on the grounds that it was not timely filed. Jackson's amended complaint against the respondents states that "2000" was the last date on which alleged discriminatory arrest and conviction record action happened. However, a complaint charging discrimination under the WFEA must be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). Accordingly, the ALJ's conclusions of law have been modified by adding a paragraph 6 to state that Jackson's amended complaint filed against Respondents A and B was filed beyond the 300-day statute of limitations period for filing employment discrimination complaints under the WFEA.
The ALJ denied a motion by Respondent B to dismiss Jackson's original complaint of race and sex discrimination (ERD Case # 200103304) against it for failure to state a claim for relief, concluding that the complaint could be construed as stating a claim against Respondent B. Following the hearing held with respect to this complaint, the ALJ issued a decision which found that there was no reason to believe that Union Local 212 had failed to properly represent Jackson because of his race and sex, and that Jackson's complaint had been filed beyond the 300-day statute of limitations period for filing employment discrimination complaints under the Act.
Jackson's claims of race and sex discrimination against Union Local 212 was that: (1) The Union did not continue to pursue a March 17, 2000 grievance he filed against MATC (The Union pursued Jackson's grievance through step 3. Step 4, the next step, was arbitration. Jackson's grievance against MATC was that Dean Mayes had made his full-time LTE Educational Assistant position permanent but in December 1999 he was told that his position was still a LTE position, that it ended, that it had to be re-posted, and the position was given to another individual); and (2) Kathy Miles, a female, who had been working in a LTE position that Dean Mayes made a permanent position, had lost her job just as he had, but the Union got her job back for her.
There is no reason to believe that Union Local 212 violated the Act by failing to properly represent Jackson on the basis of his race or sex. First of all, Miles' race is also black. Second, Miles and Jackson were not similarly situated. Jackson was employed in an educational assistant position as a LTE. When Dean Mayes notified Jackson that his LTE position was permanent, she was effectively filling a position in a bargaining unit position represented by the Union. This was in violation of the labor agreement because the position had not been posted and made available to other employees. Dean Mayes thus had no authority to do this.
In contrast to Jackson, Miles was employed in a program assistant position as an LTE. Miles' LTE position was a nonrepresented position. Dean Mayes therefore had authority to make Ms. Miles' position permanent. After Miles' position was made permanent, however, sometime during 1999 the union was able to convince MATC that Miles' program assistant position should be a represented position. Subsequently, when Miles' employment was terminated she filed a grievance with the Union. Miles, with the assistance of the Union, was able to get her position back. Miles was able to get her position back because: (1) her assignment to a permanent position had not been in violation of the labor agreement; and (2) she had accrued seniority in the permanent position.
Moreover, a second basis exists for the dismissal of this charge of discrimination. As previously noted, a complaint of discrimination under the WFEA must be filed no more than 300 days after the alleged discrimination occurred. Although the Union advised Jackson by letter dated September 13, 2000, that it would not pursue his grievance to arbitration, and although Jackson learned that Miles was again working for MATC by August or September 2000, Jackson did not file his complaint of discrimination against the Union until September 2001. Thus, Jackson failed to file a complaint of discrimination against Union Local 212 within 300 days after the alleged race and sex discrimination occurred.
On appeal Jackson asserts that during the hearing on his complaint against Union Local 212, the behavior of MATC and the Union's counsel was "illegal, and unethical, and unfair, and discriminatory." Jackson alleges that the attorneys "kept a continuous whispering dialogue going", that "these attorneys were laughing and giggling not only with each other but also with Frank Shansky, of the [Union], during the hearing. . Why was [MATC's attorney] even there in the first place? I complained about their actions, but alas, to no avail."
A review of the transcript of the hearing reveals only one instance of any whispering that occurred between the Union and MATC's counsel. That occurred prior to the beginning of the taking of any testimony during a discussion concerning various documents that the Union's counsel had issued a subpoena for Jackson to bring to the hearing. Further, at that time the ALJ admonished MATC's counsel not to participate because he was not an official participant in the matter, and MATC's counsel agreed that he would not participate in the hearing. The transcript shows at page 63, a complaint that Jackson makes to the ALJ stating "He's laughing over there again. This is what I'm saying. He's laughing (inaudible) with the witness." The "he" Jackson was referring to was MATC's counsel when Jackson was questioning Shansky. MATC's counsel denied laughing. The ALJ did not know whether or not what Jackson said was true, but she attempted to obtain the cooperation from all concerned. The alleged laughing, if it did occur, certainly was a distraction and was inappropriate. The record does not reveal, however, that Jackson was unable to fully present the merits of his claim.
Jackson also alleges that Shansky lied under oath when he stated that he did not know what the term "roll over" meant as used at MATC. Apparently, it is Jackson's contention that this was a very common occurrence at MATC and this is what occurred when Dean Mayes made his LTE position a permanent position. It is not clearly established by the record that Shansky lied about his knowledge of the term "roll over." However, whether or not Shansky lied, the record is clear that when Dean Mayes made Jackson's LTE position permanent this was done in violation of the labor agreement because this was a represented position and the labor agreement required that such positions be posted and made available to other union employees.
cc:
Attorney Timothy Hawks
Attorney Eric Rumbaugh
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uploaded 2003/07/21