RICK JACKSON, Complainant

KLEMM TANK LINES, 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 March 28, 2002
jacksri5 . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The complainant, Rick Jackson, was convicted of several felonies in 1983 for which he was incarcerated for 14 years and 9 months. In a discrimination complaint that the Equal Rights Division received on September 8, 2000, Jackson alleged that on several occasions, beginning in November 1999, he had inquired about obtaining employment at the respondent but was repeatedly advised that due to company policy he could not be hired because of his conviction record.

At the hearing on his complaint of discrimination Jackson asserted that he was denied employment four times, the last of which occurred during latter July 2000. Jackson asserted that each time he had spoken with a male recruiter, whom he believed to be Mark Revall, the respondent's safety and environmental manager. Jackson alleges that Revall told him that the respondent did not hire anyone with a felony conviction, regardless of the nature of the felony. In addition to Revall, Debra Zahn, the human resources manager, handled employee recruiting for the respondent.

While Jackson alleges that he had been told that the respondent did not hire anyone with a felony conviction, at the hearing Jackson presented two envelopes and some of the application materials contained therein that he had received from the respondent. The envelopes had postmark dates of September 6, 2000 and October 12, 2000. Revall recognized the mailer label with Jackson's name and address written on the September 6 postmarked envelope as his handwriting, and Zahn recognized the writing on the mailer label on the other envelope as her handwriting.

Jackson testified that he had given his name during his contacts with the respondent prior to July 2000, but during his July 2000 contact for the first time he gave both his name and address to the recruiter. Jackson stated that he did not know how it happened that he was sent the two applications from the respondent. Jackson asserted that he believed that either he was sent an application by mistake, or due to the fact that he had filed a complaint with the ERD against the respondent.

Revall testified that "as of late" he did recall that Jackson had called asking for an application and one was sent out to him. Revall stated that he could not recall the date this occurred. Revall stated, however, that given the September 6 postmarked envelope and the fact that typically he would send out application materials within minutes or a day of a phone call in which a request is made for an application, he probably had spoken to Jackson on September 5 or 6, 2000. Revall stated that he could not recall speaking to Jackson other than on one occasion. Revall testified that he did not recall discussing Jackson's conviction record with him, only that he had called for an application. Revall testified that he thinks it would have stuck out in his mind if Jackson had volunteered felony conviction information.

The ALJ concluded that there was no probable cause to believe the respondent refused to hire Jackson because of his conviction record. The ALJ found that Jackson did not contact the respondent prior to September 2000, but that as a result of a contact with the respondent on September 5 or 6, 2000, Revall sent Jackson application materials on September 6. Further, the ALJ found that the respondent never received an application from Jackson and therefore never considered him for employment.

The ALJ included the following comment in a Memorandum Opinion attached to her decision:

"After considering both the Complainant's and Revall's testimony about the Complainant's request for application materials from the Respondent, the Administrative Law Judge credits Revall's testimony. It is simply not credible that Revall allegedly refused for months to send the Complainant application materials and then sent them to the Complainant approximately two months after Revall's last telephone conversation with the Complainant. Revall's testimony that he spoke with the Complainant and sent him application materials the same day or the next day in September of 2000 is credible. Therefore, the Administrative Law Judge has adopted Revall's account of what happened."

Jackson did not claim that the respondent had refused for months to send application materials to him. Jackson simply claimed that a male recruiter told him that the respondent did not hire anyone with a felony conviction. There was also no claim that Jackson received application materials approximately two months after the last telephone call with Revall. Jackson asserted that he last spoke with Revall in the latter part of July and then received application materials with a postmark date of September 6, 2000. Based on the evidence presented, the ALJ apparently intended to say that it was not credible that for months Revall had refused to consider Jackson for employment and then sent him application materials in early September following an alleged last telephone conversation in latter July.

Several reasons support the ALJ's conclusion that Jackson has not shown probable cause to believe that the respondent refused to hire or employ him because of his felony conviction. First, while Jackson maintains that he was repeatedly advised by Revall that due to company policy he could not be hired because of felony conviction record, Revall could only recall one conversation with Jackson and the evidence shows that Revall sent application materials to Jackson on September 6, 2000. Contrary to Jackson's assertion, these application materials could not have been sent to him because he filed a complaint against the respondent with the ERD because the application materials have a postmark date of September 6, 2000, whereas Jackson's discrimination complaint was not received at the ERD until September 8, 2000. Second, it is quite possible that Jackson was simply mistaken about his alleged contacts with the respondent. Jackson admitted to having 25 complaints of discrimination pending at the ERD. Furthermore his testimony in this matter was given without the aid of notes or other means to assist him remember the details of his complaint against the respondent. (1)    Third, while Jackson asserts that he was told the respondent would not hire anyone with a felony conviction, Revall testified that he would never tell applicants that they would automatically not be considered because they have a conviction record. Zahn testified that the respondent does not have a policy, either written or unwritten, with regard to felony convictions being a bar to employment.

In his petition for review Jackson argues that the ALJ should not have ruled in the respondent's favor. As reason Jackson asserts that Zahn and Revall deliberately lied to the ERD's investigator when they denied any recollection of having spoken to him because at the hearing they identified their handwriting on application packages sent to him. However, the inability to recall speaking to a particular applicant is not particularly significant given the fact that the respondent continually receives employment inquiries from driver applicants. Revall testified that the respondent could receive as many as a dozen phone calls in the week following an advertisement for drivers, and that even during weeks when the respondent is not actively recruiting drivers it may receive as many as a half dozen calls. Furthermore, since Jackson claims that his telephone contacts were with a male recruiter it is understandable why Debra Zahn would have no recollection of any conversation with Jackson. (2)

Jackson next apparently argues that there is reason to believe that discrimination occurred because the respondent maintains that it does not have a blanket policy of not hiring convicted felons but it failed to produce any evidence that it has ever employed any convicted felons. While the employment of a convicted felon would support a showing that the respondent does not have a policy against hiring convicted felons, the absence of employment of a convicted felon alone does not give reason to believe that the respondent in fact has a policy against hiring convicted felons. Indeed, Jackson's argument assumes that convicted felons have applied for employment with the respondent in the past thereby presenting the respondent with the opportunity to hire or not hire convicted felons. There was no showing that convicted felons had applied for employment with the respondent in the past.

Jackson also argues that several of the respondent's drivers told him that the respondent does not hire felons but they refused to testify despite his telling them they could be subpoenaed. Jackson refers to these drivers as "hostile witnesses" and apparently argues that he could not call these individuals to testify due to their company loyalty. These arguments fail. Jackson could have compelled the attendance of witnesses at the hearing by requesting to have them subpoenaed. Wis. Admin. Code DWD § 218.15 (1)("The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness.") Moreover, Jackson could have examined the drivers as adverse witnesses if they were indeed shown to be hostile witnesses.

Further, Jackson has requested an opportunity to present oral arguments in this case. 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 § LIRC 1.06. Jackson requests oral argument in order to "clarify a number of inconsistencies in the record and his copy of the hearing tapes." Additionally, he apparently requests that the entire hearing tapes be heard by the commission during his presence. Jackson's requests are denied. The commission has examined the record for "inconsistencies" and it has considered Jackson's written arguments on appeal. Based upon its review of the matter, the commission is satisfied that the issues presented in the case have already been made sufficiently clear by the parties. Moreover, in conducting its review of this matter, the commission obtained the original hearing tapes of this case. Jackson has not specified why he believes there are "inconsistencies" in his copy of the hearing tapes. However, a review of the tapes shows that they contain a complete record of the hearing, and they were otherwise found to be completely satisfactory. It was not necessary that Jackson be present during this review of the hearing tapes.

cc: Attorney Robert W. Burns

Appealed to Circuit Court.  Affirmed January 9, 2003.  Appealed to the Court of Appeals.  Affirmed in unpublished summary disposition, July 22, 2003.

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(1)( Back ) Jackson asserts that he recalls what transpired at the respondent because it was the company that paid the best and which had the easiest work.

(2)( Back ) The record provides no indication as to why Jackson received application materials postmarked October 12, 2000, which were addressed to him in Zahn's handwriting. 

uploaded 2003/08/20