RICK JACKSON, Complainant

SUMMIT LOGISTICS SERVICES INC, 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 conclusions in that decision as its own, except that it makes the following modification:

The last sentence in paragraph 4 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"At the hearing in this matter, Jackson admitted that he had not listed all of his convictions on his employment application and that he had actually been convicted of nine felonies."

This modification was made to make this finding better reflect the evidence of record.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed October 30, 2003
jacksri2 . rmd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Rick Jackson alleges that the respondent, Summit Logistics Services, Inc., discriminated against him in violation of the Wisconsin Fair Employment Act by refusing to hire or employ him because of his conviction record. Jackson completed a driver application for employment at the respondent's Janesville facility on July 2, 2001. In response to a question on the application asking if he had ever been convicted of a felony, Jackson wrote "Robbery 1983 in Illinois." Jackson alleges that a few days after completing his application and again during December 2001, Viva Bergum, the account manager and dispatcher for the Janesville facility, told him he could not be hired because of his conviction record.

The respondent has 11 facilities located in a number of cities east of the Rocky Mountains, including the Janesville, Wisconsin facility. The Janesville facility provides regional transportation of Simmons' mattresses and box springs by truck and trailer to retail customers in an eight state area. The respondent's corporate office is located in Knoxville, Tennessee. Scott Batey is the company president. Batey works out of the Knoxville office.

An equal rights officer for the Equal Rights Division issued an initial determination finding probable cause to believe that the respondent may have violated the Act by refusing to hire or employ Jackson because of his conviction record. Subsequently, a hearing was held on the merits of Jackson's complaint on July 12, 2002. Following that hearing the ALJ issued a decision dismissing Jackson's complaint. The ALJ concluded that the respondent did not consider Jackson's July 2, 2001 application for employment for reasons other than his conviction record. Namely, that initially it was decided that business was too slow to hire drivers, and that later, when the respondent did decide to hire a driver in September 2001, Jackson was not considered because the respondent hired a former driver and because Bergum had reported to Batey that Jackson had behaved strangely in his calls and visits to the Janesville office after July 2, 2001. The ALJ concluded, though, that Jackson was not considered for a driver position in January 2002 in part because of his conviction record. However, the ALJ concluded the respondent established that there was a substantial relationship between the circumstances of Jackson's robbery conviction and the circumstances of the available driving job and therefore Jackson failed to show that the respondent had violated the Act with respect to the January 2002 hiring.

Jackson petitions for a review of this matter.

Regardless of whether the respondent refused to consider Jackson for employment because of his conviction record in both September 2001 and January 2002 as alleged by Jackson, or only in January 2002 as found by the ALJ, the ultimate issue presented is whether or not the respondent's refusal to consider Jackson for employment fell within the statutory exception to the prohibition against conviction record discrimination. The Wisconsin Fair Employment Act provides, in relevant part, that "it is not employment discrimination because of conviction record to refuse to employ...any individual who: 1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job..." Wis. Stat. § 111.335(1)(c)1.

As a preliminary matter, Jackson argues that the ALJ erred in allowing the respondent to present a substantially related defense on the grounds that this is an affirmative defense that was not raised timely by the respondent in an answer as required by DWD 218.12. Section DWD 218.12(1) states that within 21 days after the date of a notice of hearing on the merits, a respondent shall file an answer to the allegations of the complaint upon which there is a finding of probable cause. Further, section DWD 218.12(2) provides, in relevant part, as follows:

"Any affirmative defense relied upon, including without limitation the statute of limitations defense, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise the affirmative defense that a complaint is barred by the statute of limitations in an answer filed within the time permitted under sub. (1) may, in the absence of good cause, be held to constitute a waiver of such affirmative defense."

(Emphasis added.)

It would appear that a substantially related defense to a claim of conviction record discrimination does constitute an affirmative defense. As indicated by the ALJ, the substantially related defense does not depend on a denial of the claim of discrimination, but instead argues that new matter constitutes a defense even assuming the allegations of the complaint to be true. (1)    However, as further noted by the ALJ, while there is no specific mention of a possible waiver of a substantially related defense in § DWD 218.12(2), even with respect to the specifically enumerated statute of limitations affirmative defense identified in DWD 218.12(2), prior commission decisions have made it clear that the failure to raise the statute of limitations defense in a timely manner does not constitute a waiver of that defense if the failure to raise it was not unfair or prejudicial to the complainant. As stated by the commission in Mittelsteadt v. A.J. Air Express (LIRC, 01/16/98):

Wis. Admin. Code § ILHR (2)  218.12(2) provides only that the failure to timely raise the [statute of limitations] defense without good cause "may" be held to constitute a waiver of that defense. See William L. Wilson v. Burnett County Sheriff's Department (LIRC, September 29, 1995), aff'd. William L. Wilson v. LIRC, Burnett Cty. Cir. Ct., Case No. 95- CV-129, February 22, 1996.

The principal purpose of the rule concerning timely assertion of the limitations defense is to assure that the complainant against whom it is raised will have enough advance notice of the assertion of the defense to prepare to meet it at the hearing. (Citing) Rangel v. City of Elkhorn (LIRC, September 30, 1992).

Extending the standard the commission has applied to waiver of the statute of limitations defense to the respondent's failure to timely raise the substantially related defense herein, the ALJ thus concluded as follows:

"[T]he substantial relationship defense in this case would not be waived, because the Complainant was well aware of the defense generally due to the numerous ERD complaints and hearings he has had in which it became an issue, and because he was preparing for it particularly in this case even before the Respondent declared that it would be relying on it. Mr. Jackson raised the issue in one of the telephone conferences in late June, in connection with his interest in calling an expert witness on the topic of recidivism and introducing documents intended to rebut the substantial relationship defense. He was also preparing to meet the defense by taking photographs of the trucks and trailers on the company's lot, in order to show how difficult it would be to steal one. Because the Complainant anticipated the substantial relationship defense and was preparing to meet it, it was found that he was not prejudiced by the Respondent's failure to raise the defense in a timely manner."

(ALJ Memorandum, p. 5).

The commission agrees with the ALJ's determination that Jackson was not prejudiced by the respondent's failure to raise the substantially related defense in a timely manner. The ALJ did not err in allowing the respondent to present an affirmative defense to Jackson's claim of conviction record discrimination.

Jackson also contends the ALJ erred in denying his request for a continuance in view of the ALJ's decision to allow the respondent to present the substantially related defense. Apparently Jackson wanted more time to study the question of whether the substantially related defense was an affirmative defense that could be waived and more time to try and rebut a substantially related defense by the respondent. Jackson's contention fails. Again, as previously noted prior commission decisions have made it clear that even with respect to the specifically identified statute of limitations affirmative defense, a failure to raise that defense in a timely manner does not constitute a waiver of that defense where the failure to raise it was not unfair or prejudicial to the complainant. Further, the record shows that Jackson had anticipated presentation of the substantial relationship defense by the respondent and he, in fact, had made extensive preparation efforts to try and rebut that defense.

The question of whether an individual's conviction record is substantially related to a job he or she has been denied is to be determined after the fact by the reviewing tribunal based on the facts adduced at the hearing. Santos v. Whitehead Specialties (LIRC, 02/26/92), citing, Bernard Collins v Milwaukee Co. Civil Service Comm. (LIRC, 03/08/01). See also, Black v. Warner Cable Communications Co. of Milwaukee (LIRC, 07/10/89). The substantially related defense focuses on the opportunity for criminal behavior, the reaction to responsibility or the character traits of the person. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 824, 407 N.W.2d 908 (1987).

Jackson stated on the driver application for employment with the respondent that he had been convicted of robbery in 1983. The crime of robbery involves the taking of property, with intent to steal, from the person or presence of the owner by force or threat of force. Wis. Stat. § 943.32. Jackson admitted at the hearing, however, that actually he had been convicted of a total of nine felony offenses including convictions for home invasion, two counts of aggravated battery, two counts of residential burglary, and also a conviction for misdemeanor theft.

Drivers employed by the respondent haul loads of mattresses valued at approximately $35,000.00 per load. They drive alone and have access to the freight they are hauling. The drivers are not closely supervised. Drivers are responsible for reporting how many pieces they have delivered, how many they have picked up and how many they are bringing back to the terminal. The respondent does not audit these numbers. Drivers also have access to the company office where various office equipment including computers, printers and pagers are located. Batey testified that based on his experience in the trucking industry, theft is very widespread and always a "hot issue" in the trucking industry. Further, Batey testified that with respect to the Simmons' account, in his previous employment the company had a driver who was taking all the mattresses that were not on the bills when there were overages and selling them on the side. Batey testified that the company paid Simmons about $45,000.00 to settle that matter.

Based upon the above, the ALJ determined that truck drivers at the respondent have the opportunity to engage in the criminal conduct of taking wrongful possession of property with intent to steal. The ALJ therefore concluded that the respondent had shown the existence of a substantial relationship between the circumstances of Jackson's conviction of robbery and the circumstances of the job of a driver for the respondent. The commission agrees.

Jackson apparently attempts to undercut the existence of a substantial relationship between his conviction record and the job of a driver at the respondent. He asserts that per the contract between the respondent and Simmons, the respondent's liability is limited to $50,000.00, drivers must sign for all pieces received and they must call in at each stop. Further, he argues that with the respondent's Qual-Com System a truck's location can be verified within 200 feet. Jackson's arguments fail. Jackson's apparent assertion that because the respondent's liability for lost product is limited to $50,000.00 per claim this somehow eliminates application of the substantially related test is without merit. Moreover, as noted by the respondent, while there are certainly checks and established procedures in the respondent's delivery process, Jackson presented no evidence to dispute the respondent's testimony that its drivers are largely unsupervised, that Batey has experienced employee theft by over-the-road drivers and that the respondent does not audit their drivers' paperwork.

Also in an effort to undercut the substantial relationship test, Jackson has requested that the commission consider his submission of several photographs of the respondent's tractors and Simmons' trailers that he considers "new evidence...that could not have been obtained previously." The record shows that following a report by the respondent's counsel on June 27, 2002, that Jackson had allegedly confronted one of the respondent's drivers and then followed the driver in his car for some 70 to 80 miles, the ALJ advised Jackson to respect the property rights of the respondent and its lessor, Simmons, and to follow any instructions given by officials of either company regarding his rights to be on the premises, or to talk to any drivers while they are on duty. Apparently Jackson then asked the ALJ for permission to enter the premises of the respondent for the purpose of taking photographs of trailers. The ALJ denied this request by Jackson and advised him that he could take photographs off the company's premises. For this reason, Jackson contends these photos constitute newly discovered evidence.

Jackson's request that the commission consider these photos must be denied. His contention fails for two reasons. First, as stated by the respondent, while Jackson apparently requests the admission of these photos to show that security measures are incorporated into the design of the trailers, there is no evidence regarding the effect of these security measures or that the respondent's drivers are unable to operate these devices or are otherwise prevented from opening the trailers. Second, while the ALJ did deny Jackson's request to enter the respondent's premises to take photographs, the ALJ advised him that he was free to take photographs from off the company's premises. Jackson has argued that taking pictures off the company's premises would not accurately depict the kingpin trailer locks underneath the trailers or the padlocks on the rear doors of the trailers. This argument also fails. Jackson could have used more powerful camera equipment while off the company premises to obtain pictures of what he thought was relevant. Furthermore, he could have taken photographs of the trailers at the gate of the respondent's premises as the drivers passed by.

Further, Jackson contends that the ALJ erred in excluding his evidence regarding a report on recidivism of released prisoners and a June 2002 letter of certification showing that he was eligible for a fidelity bond through the Federal Bonding Program.

The ALJ excluded Jackson's proffered evidence regarding the recidivism rates of released prisoners as irrelevant under the substantial relationship test but allowed him to make an offer of proof as to its alleged relevance. The report, titled Recidivism of Prisoners Released in 1994, was prepared by Bureau of Justice statisticians Patrick A. Langan, Ph. D. and David J. Levin, Ph. D. of the U.S. Department of Justice in June 2002. Jackson argued that this evidence should have been admitted to show that due to his race, work history, years out of prison and other factors, he had a low risk of committing another crime.

The study by Langan and Levin tracked nearly 300,000 prisoners released from prisons in 15 states for 3 years after their release in 1994. The general conclusion of this study was that the data showed that the longer a released inmate remains crime free, the less likely the prisoner was to be rearrested for a new crime. The commission finds no reason to believe that the ALJ erred in failing to admit this evidence. As noted by the respondent, Jackson has cited no authority to support his position that the recidivism rates of former prisoners with particular characteristics are relevant to the substantial relationship test. The commission has taken the position that the length of time that has passed since an offense is not relevant in deciding the substantial relationship test. See for example, Villereal v. S.C. Johnson and Son, Inc. (LIRC, 12/30/02), citing, Borum v. Allstate Ins. Co. (LIRC, 10/19/01) (The length of time that has elapsed since an offense is not relevant to deciding whether a conviction is substantially related to the job); Nelson v. The Prudential Ins. Co. (LIRC, 05/17/96) (There is nothing in the statutory language of the conviction record provision which indicates that the length of time between a conviction record and the alleged discrimination is a relevant consideration).

Furthermore, as noted by the respondent:

[I]ncorporating a detailed analysis of a particular applicant's risk for recidivism into the substantial relationship test would be inconsistent with the recognition that the test must be practical for employers. In County of Milwaukee, 139 Wis. 2d at 826, the Wisconsin Supreme Court addressed the scope of the substantial relationship test, stating that the test must serve "not only the judicial system's purposes but the employer's... as well... [T]here must be a semblance of practicality about what the test requires. A full-blown factual hearing is not only unnecessary, it is impractical. Employers...should be able to proceed in their employment decision in a confident, timely and informed way.

Even assuming for purposes of argument that consideration should be given to the Langan and Levin study on the recidivism rates of released prisoners, however, this report provides no benefit for Jackson. First, this study shows that 67.5 % of the released prisoners were rearrested within 3 years. (The report notes that a study of 1983 releases estimated 62.5 % were rearrested.) The commission is aware based on previous cases involving Jackson that he was in prison during the period from 1983 until March 22, 1998. (See for example, Jackson v. Klemm Tank Lines (LIRC, 03/28/02, aff'g ERD Case # 200003179.) Thus, when Jackson first applied for a job with the respondent on July 2, 2001, he had been released from prison only slightly over 3 years. Second, according to the Langan and Levin study, the recidivism rates were even higher for those including robbers (70.2 %), burglars (74.0 %) and those in prison for possessing or selling stolen property (77.4 %).

As for the letter certifying that Jackson was eligible for a fidelity bond, the ALJ excluded this evidence as irrelevant in part for reasons including the fact that it was a June 2002 letter regarding his eligibility for a fidelity bond almost a year after his first application and six months after his complaint was filed. Further, the ALJ excluded this evidence because even if it had been contemporaneous, whether or not a person might be eligible for a bond does not cancel out whether or not the individual's criminal record is substantially related to the job. The ALJ again allowed Jackson to make an offer of proof as to the alleged relevance of the Fidelity Bonding Program. The commission finds no reason to believe that the ALJ erred in failing to admit Jackson's evidence regarding the bonding program.

A fidelity bond is a form of business insurance that indemnifies employers for the loss of money or property sustained through the dishonest acts of employees.

Jackson argues that the bonding program is a state program to encourage employers to employ individuals like himself, that the respondent is "absolutely at no financial risk of any significance" and that the process for employers to obtain such bonds is very simple and not time consuming. Further, he asserts that "It is not a special accommodation which would be costly either."

The respondent again correctly notes that Jackson has cited no authority for the proposition that an employer's ability to engage in risk management by way of a bond or insurance is a relevant consideration in the substantial relationship defense. Moreover, by proposing that the respondent engage in risk management by way of a bond or insurance, Jackson is in essence asserting that the respondent could have taken steps to accommodate his felony conviction(s). In Knight v. LIRC and The Prudential Ins. Co. of America, 220 Wis. 2d 137, 582 N.W.2d 448 (Ct. App. 1998), a similar argument was raised by the complainant in that case. In that case the complainant, who was disqualified for hire as a district agent because his felony conviction disqualified him from registration with the National Association of Securities Dealers (NASD), asserted that the employer could have submitted an MC-400 application form on his behalf that would have allowed him to become registered with NASD. In fact, the complainant in Knight argued that the WFEA imposes a duty upon employers to take affirmative steps to accommodate individuals with felony convictions. The court rejected that argument stating:

There is nothing in the language of WFEA which states that employers must take affirmative steps to accommodate individuals convicted of felonies. See § 111.335, Stats. As a result, LIRC correctly found that no such accommodation is required, regardless of whether Knight believes that such an accommodation would further the purpose and spirit of WFEA. See American Motors [Corp. v. DILHR], 101 Wis. 2d [337, 305 N.W.2d 62 (1981)] at 369, 305 N.W.2d at 77.

220 Wis. 2d at 154.

Thus, the respondent was not obligated to engage in risk management by seeking a fidelity bond as a form of insurance against any monetary or property losses it may have incurred through the employment of Jackson.

Finally, again citing the contract between the respondent and Simmons with respect to the respondent's purported obligation for washing of the trailers owned by Simmons and the spotting and docking of trailers, Jackson has also asserted that in December 2001 he was also told that he could not be employed to perform work on the company premises because of his conviction record. This argument also fails. While the contract contains language about the respondent's responsibility for spotting and docking of trailers, the evidence shows that only in rare instances was an employee of the respondent ever required to perform this service. As for washing Simmons' trailers, the evidence shows that except for two drivers that assisted in the performance of this duty, the respondent had contracted with an outside service to perform the washing of Simmons' trailers. As found by the ALJ, the evidence shows that there were no non-driving jobs available at the Janesville location during this time period.

For all of the above-stated reasons, the commission has affirmed the ALJ's dismissal of Jackson's complaint in this matter.

cc: Attorney Jennifer S. Mirus

Appealed to Circuit Court. Affirmed March 2, 2004.  Appealed to the Court of Appeals. Affirmed, summary unpublished decision, July 14, 2004.

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(1)( Back ) See also, 61A Am. Jur. 2d Pleading § 350: "A defense is affirmative where it does not tend to controvert an element of the plaintiff's prima facie case, where it tends to annul the plaintiff's cause of action and not merely prove a different legal standard, and where failure to plead the defense would tend to surprise the plaintiff. Thus, affirmative defenses generally admit the matters asserted in the complaint but assert other facts that would defeat recovery."

(2)( Back ) Chapter ILHR 218 was renumbered chapter DWD 218 under s. 13.93(2m)(b)1., and corrections made under s. 13.93(2m)(b) 6. and 7., Stats., Register, November 1997, No. 503.

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