RICK JACKSON, Complainant
ECKLUND CARRIERS INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter dismissing the complainant's charge of unlawful discrimination. A timely petition for review was filed.
Based upon its review of this matter, and for reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission hereby issues the following:
The decision of the administrative law judge is set aside and this matter is remanded to the Equal Rights Division for a new hearing and probable cause determination by a different ALJ. (1)
Dated and mailed October 21, 2005
jacksri . rpr : 125 : 9
/s/ James T. Flynn, Chairman
David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Rick Jackson alleges that the respondent, an over-the-road trucking company, violated the WFEA by refusing to hire or employ him because of his conviction record.
Jackson testified that prior to submitting an application for employment with the respondent he asked Lorri Thill, an assistant to Robert Pfaffenroth, the respondent's Safety Director and Driver Recruiter, if he could be hired with a felony conviction. Jackson testified that Thill told him that would be fine providing that his application (otherwise) goes through. Jackson testified that he informed Thill he had about 20 months driving experience, that he previously had a hazardous material (hazmat) endorsement but could get it reinstated and that his driving record was clean except for "doing 72 in a 55 in my car". Jackson testified that Thill stated that 2 years experience or a little less was fine providing his safety record was good, that it would be fine if he got his hazmat endorsement right away and that doing "72 in a 55" was probably acceptable as long as it wasn't in a commercial vehicle. Jackson submitted an application for employment dated December 28, 2001. Jackson testified that about a week later he called Thill and she told him that he could not work for the respondent due to his felony conviction. Jackson asserts that Thill did not know any better when she told him that he could be hired with a felony conviction and that the respondent's management later told her that he could not be hired with his conviction record.
The ALJ found that Thill did not have a discussion with Jackson regarding his conviction record and that Thill first learned of Jackson's conviction record when the respondent received notice of his discrimination complaint. The ALJ found that Pfaffenroth decided not to hire Jackson because he had a poor and unstable work history, he lacked three years experience driving commercial vehicles and because he did not have a hazmat endorsement. The ALJ also found that Pfaffenroth first learned of Jackson's conviction record when he received notice of Jackson's discrimination complaint. In the memorandum opinion attached to his decision the ALJ further stated that the respondent established that it did not hire Jackson for legitimate reasons unrelated to his conviction record and that Jackson had failed to show that the respondent's reasons for not hiring him were a mere pretext for discrimination. The ALJ also concluded that "the facts and circumstances of the Complainant's convictions are substantially related to the job of an over-the-road truck driver position such that even if the Respondent relied on the Complainant's conviction record in deciding not to hire him, the Respondent would not have violated the Act."
Jackson raises many issues in his petition for review but a critical issue he raises on appeal relates to pre-hearing discovery. Jackson argues that the ALJ improperly denied his request to depose several of the respondent's witnesses, and that he was denied a fair and impartial hearing because of the excessive limitation the ALJ placed on the scope of his discovery.
DWD 218.14(3) provides that "The scope of discovery, the methods of discovery and the use of discovery at hearing shall be the same as set forth in ch. 804, Stats."
Wis. Stat. § 804.05(1) provides that "After commencement of the action, except as provided in s. 804.015, (2) any party may take the testimony of any person including a party by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in s. 805.07." Section 804.05(3) provides that "A subpoena issued for the taking of a deposition may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by s. 804.01(2), but in that event the subpoena will be subject to sub. (2) (3) and s. 804.01(3)." (4)
The purpose of discovery is to aid in a party's preparation for trial. During the hearing Jackson repeatedly made reference to being denied the opportunity to depose the respondent's witnesses and complained that the denial of his opportunity to depose the respondent's witnesses precluded him from preparing his case. T. 64-65, 79, 135, 358, 390, 426-427,446.
Jackson asserted as follows at pages 426-427 when he began his oral argument at the close of hearing:
"...I'd like to object because I was denied the opportunity to do a deposition. According to the DWD rules, I'm entitled to do a deposition. And I cannot effectively put together a case for any attorney or anybody without doing a deposition or taking discovery. And if I had - if I was in a position to do the deposition I could have been marking exhibits and I could have prepared for the respondents coming up with me - for respondents with their false testimony and false documents and everything else. But unfortunately, I was denied that opportunity. It was my right to do that. And it hurt my case here...."
Whether a circuit court erred in denying discovery is a question of whether the court erroneously exercised its discretion. First Interstate Bank v. Heritage Bank & Trust, 166 Wis. 2d 948, 952, 480 N.W.2d 555 (Ct. App. 1992). See also, Vincent & Vincent, Inc. v. Spacek, 102 Wis. 2d 266, 270, 306 N.W.2d 85 (Ct. App. 1981) and Shibilski v. St. Joseph's Hospital of Marshfield, Inc., 83 Wis. 2d 459, 470-471, 266 N.W.2d 264 (1978)(The standard of review of trial court discovery decisions is whether the trial court abused its discretion in ordering or prohibiting discovery).
The court properly exercises its discretion when it examines the relevant facts, applies a proper standard of law, and reaches a reasonable conclusion using a demonstrated rational process. Magyar v. Wisconsin Health Care Liab. Ins. Plan, 211 Wis. 2d 296, 302, 564 N.W.2d 766 (1997). The exercise of discretion is not the equivalent of unfettered decision making. Hartung v. Hartung, 102 Wis. 2d 58, 66, 306 N.W.2d 16 (1981).
With respect to the exercise of discretion there should be evidence in the record that discretion was in fact exercised and the basis of that exercise of discretion should be set forth. Christensen v. Economy Fire & Casualty Co., 77 Wis. 2d 50, 56, 252 N.W.2d 81 (1977); State v. Hutnik, 39 Wis. 2d 754, 764, 159 N.W.2d 733 (1968). Further, where the trial judge has failed to undertake a reasonable inquiry and examination of the facts as the basis of his decision, such a decision on its face shows an abuse of discretion for failure to exercise discretion. McCleary v. State, 49 Wis. 2d 263, 277-278, 182 N.W.2d 512 (1971).
In this case there is absolutely nothing in the hearing transcript or any of the many documents associated with this case file that sheds any light on why the ALJ did not allow Jackson to depose the respondent's witnesses. The commission is left without a clue as to why the ALJ denied Jackson an opportunity to depose the respondent's witnesses. The Division's rules permit Jackson's use of discovery as set forth in ch. 804, Wis. Stats., and he complains that the denial of his opportunity to depose the respondent's witnesses precluded him from preparing his case.
Further, the record shows that on March 29, 2003, Jackson had made a request of the respondent for, among other things, "copies of all applications of persons hired for driver position on or after December 28, 2001." The respondent objected to producing copies of the applications of those whom it had hired on or after December 28, 2001, however, asserting that Jackson was seeking material neither relevant nor reasonably calculated to lead to the discovery of admissible evidence and that who was hired on or after December 28, 2001, was irrelevant to the question of whether Jackson himself was not hired due to his conviction record. During a telephone conference on May 5, 2003, and subsequently in writing on May 12, 2003, to the extent Jackson requested copies of all applications after December 28, 2001, the ALJ sustained the respondent's objection on the grounds that this information was irrelevant.
While it may not have been appropriate that Jackson receive a copy of every application of individuals the respondent hired from December 28, 2001, all the way up until his March 29, 2003 production of document request, the commission believes Jackson was entitled to copies of the applications of those hired for a reasonable time period after December 28, 2001. Jackson's production of document request for copies of the applications of persons hired for driver positions on or after December 28 was relevant and reasonably calculated to lead to the discovery of admissible evidence. First of all, as indicated in Respondent's Exhibit #7 (Jackson's written response to the equal rights investigator's questions received by the ERD on December 23, 2002), it was Jackson's assertion that at the time he applied in late December of 2001, Thill had told him that there were openings to be filled "in the very near future". Further, while attempting to introduce documents at the hearing showing that the respondent had run numerous newspaper and radio advertisements seeking drivers, Pfaffenroth admitted that the respondent advertises continuously for over-the-road drivers. In other words, this is not a case in which an employer had only one job opening with an application cut-off date.
In addition, during the initial investigation of Jackson's discrimination complaint, the respondent asserted that the reason Jackson was not hired was because he did not meet the respondent's minimum driver standards. Specifically, because he had an excessive speeding violation of over 17 mph over the speed limit in June 2000, he did not have the hazmat endorsement on his license, he did not have at least 3 years of operation of a trailer/tractor and that his work history was abysmal, or poor at best. Under the analytical framework set forth in McDonnell Douglas v. Green, 411 U.S. 792 (1973), but at the lower probable cause standard, Jackson was required to show that the reason offered by the respondent for refusing to hire or employ him were not its true reasons but a pretext for conviction record discrimination. A complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer, or indirectly by showing that the employer's proffered explanation is unworthy of credence. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985). One method of showing pretext is to present evidence showing that the proffered reason for a complainant's nonhire applied to other applicants with equal or greater force and the company made a different decision with respect to them. See e.g., Chavis v. Whitehall Laboratories, Inc., 664 F. Supp. 413 (D.C. Ind. 1986). By examining the applications of other persons the respondent hired as drivers after December 28, 2001, Jackson could have discovered if the respondent had hired other individuals that did not meet the respondent's minimum driver standards. The ALJ's denial of Jackson's motion to compel the respondent to produce copies of applications of persons hired for driver positions after December 28, 2001, precluded him from uncovering possible evidence of the pretextualness of the reasons for his nonhire.
Moreover, in contrast to the ALJ's ruling that Jackson's production request for copies of all applications after December 28, 2001, was irrelevant, the respondent was allowed to enter as evidence at the hearing copies of at least two and possibly three employment applications of individuals who were denied employment in the year 2002 (one appears to be dated January 12, 2002, another is dated February 15, 2002 and a third is dated March 1, 2002), to corroborate its assertion that it denied employment to individuals due to having a poor work history.
The denial of an opportunity for Jackson to depose the respondent's witnesses hampered his ability to prepare his case, and the limitation placed on the scope of his production of document request unfairly restricted his ability to obtain possible persuasive evidence to support his discrimination claim.
The ALJ states in his memorandum opinion that even if the respondent had relied on Jackson's conviction record in deciding not to hire him that the respondent would not have violated the Act because the circumstances of Jackson's conviction record were substantially related to the circumstances of the job of an over-the-road driver for the respondent. A question thus arises as to whether or not the denial of Jackson's request to depose the respondent's witnesses and the placing of an excessive limitation on the scope of his production of document request, constituted harmless error.
Jackson has convictions for theft, armed robbery, residential burglary armed violence, aggravated battery, unlawful restraint and home invasion.
The WFEA provides that notwithstanding s. 111.322, 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.
In County of Milwaukee v. LIRC, 139 Wis. 2d 805, 407 N.W.2d 908 (1987), the court stated that it is evident that the legislature's reason for including this exception was to balance two interests: society's interest in rehabilitating one who has been convicted of a crime and an interest in protecting its citizens. With respect to the latter interest the court stated:
"There is a concern that individuals, and the community at large, not bear an unreasonable risk that a convicted person, being placed in an employment situation offering temptations or opportunities for criminal activity similar to those present in the crimes for which he had been previously convicted, will commit another similar crime."
Id. at 821.
The court stated that in balancing these competing interests, and structuring the exception, the legislature had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear and that the test is when the circumstances, of the offense and the particular job, are substantially related. Id. at 823. Further, the court stated:
"Assessing whether the tendencies and inclinations to behave a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed, is the purpose of the test....It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person."
Id. at 824.
The respondent has focused on Jackson's past inclination to take or steal the property owned by someone else, a trait revealed by his convictions for theft, robbery and burglary, to show that the circumstances of Jackson's convictions are substantially related to the circumstances of the job of truck driver. In its brief to the ALJ, the respondent argued:
"Drivers are entrusted with expensive truck cabs, trailers, and cargo without supervision. They are given special, unsupervised access privileges to customer facilities. The respondent has previously had a truck cab, trailer, and cargo stolen while in the possession of drivers. All of these facts were established in the evidentiary record. Employment of the complainant in this case would have given him access to high value cargo and equipment belonging to the respondent and the respondent's customers."
The ALJ accepted this argument by the respondent as reason for concluding that the circumstances of Jackson's convictions were substantially related to the circumstances of an over-the-road driver position with the respondent.
The question that arises in this case is whether the evidence presented sufficiently establishes that the circumstances of Jackson's conviction(s) and the truck driver job in question here are substantially related. There was testimony that the respondent hauled just about every variety of freight imaginable, including freight for Miller Brewing, American TV and Menards, that drivers are alone when hauling loads to customer's facilities and that drivers sometimes unload trucks alone. T. 94, 251, 255. Further, there was testimony that drivers are sometimes given special access to customer's facilities, i.e., access to the lots "where the trailers are dropped and the paperwork stored", and that drivers can pretty much hook up to any trailer the driver wants to and take it at any time. T. 255-256.
However, Pfaffenroth indicated that when Jackson applied for employment the respondent was hiring drivers to haul freight for a company called QuadGraphics. T. 102. Pfaffenroth testified that QuadGraphics was the respondent's largest account, (5) that QuadGraphics was a printing company and that it was mostly advertising inserts that were being hauled for that company. T. 92-93. Pfaffenroth further testified that the majority of the freight that the respondent hauled was paper. T. 94. Apparently, the other items that the respondent hauled for QuadGraphics were paints, chemicals, inks and batteries from other sources that QuadGraphics needed as printing supplies, which occurred on back hauls to QuadGraphics. (6) T. 94, 103.
Furthermore, the record does not indicate whether a driver hired to haul freight for QuadGraphics would ever be required to haul freight for other companies like Miller Brewing, American TV or Menards, companies whose freight would be considered "high value cargo" and have a "street value", or whether a driver hauling freight for QuadGraphics would otherwise have access to the facility lots of companies like American TV or Menards. Absent any evidence in the record on these matters, the commission is not satisfied that the record sufficiently establishes that the circumstances of Jackson's convictions and the job in question here are substantially related.
Jackson argues that there is no substantial relationship between the circumstances of his conviction record and the circumstances of the job because delivering newspaper advertisements by the truck load and returning with loads consisting of ink and some occasional paint that was listed as hazardous material had absolutely no value to a possible thief. Furthermore, Jackson cites Pfaffenroth's explanation that most of QuadGraphic's advertising inserts is "high dollar value" because it goes to post offices and bulk mail centers and if the respondent "miss[es] that load and don't get it there on Saturday, its junk, because it's supposed to go in the newspaper on Sunday" (T. 95-96), as evidence of the pretextualness of the respondent's stated reasons for not hiring him.
Also, while Kirk Ecklund, the manager for the respondent, testified that the respondent has had a truck cab, trailer and cargo stolen while "in the possession of drivers" to support a substantially related defense, there was not one incident in which Kirk Ecklund could actually state that the theft was by the driver. The most Ecklund could offer involved testimony regarding a stolen truck cab but Ecklund had no proof of driver involvement in that incident. Ecklund testified, "It was stolen, we believe it was from the truck stop. We didn't get a clear answer from the driver. The people that did steal it, I don't know their names, I don't know who it was. I know that they were arrested in Mexico...We had a strong suspicion [regarding the driver stealing the truck], we don't have any evidence, that the driver did steal the truck, but the driver didn't work for us after that period, no." T. 271-272.
The respondent also argued to the ALJ that Jackson "falsified his employment application, and would have been terminated even if he was hired." In support of this position the respondent argued:
"[Jackson] stated that he had experience driving tractors-trailers from 1973 to 2001, but he was incarcerated from 1983 to 1998 and was not driving tractors-trailers during that time. He also stated that he left Stoughton Trucking because of a lack of flat bed experience, but he in fact was fired for insubordination and log violations. He further stated that he left All American Transport because it went out of business, but he in fact was fired for blowing the whistle. Lastly, he stated he received a traffic citation in Crown Point, Indiana for failing to produce a license when he in fact received the citation for operating a commercial motor vehicle on a prohibited stretch of highway."
Mr. Ecklund and Mr. Pfaffenroth testified at the hearing that it is company policy to terminate employees who provide false or misleading information on an employment application...."
However, Jackson testified that about a week after he submitted his application for employment the reason Thill gave him for his not being able to work for the respondent was due to his felony conviction. Furthermore, if Jackson had been permitted to depose the respondent's witnesses so that he could have been, as he asserts, "prepared for the respondents coming up with me - for respondents with their false testimony and false documents and everything else", he may have been able to establish that the respondent's assertion that he would have been terminated for falsification of his application as nothing more than an after-the-fact rationalization for its refusal to hire decision that really had nothing at all to do with the respondent's motivation for refusing to hire him.
For example, with respect to the respondent's argument that Jackson falsified his driving experience the commission notes below Pfaffenroth's response to Jackson's question about the falsification of his application:
Q: Is there anything on that application [that] would show that Rick Jackson falsified that application?
A: That you falsified?
Q: Yes.
A: I don't know. And the reason is, is you put down 19 months of experience on this page, but on this page you put down from 1973 to 2001. And I could not verify that because there was no companies given or anything like that. I had no idea. So is that a falsification? I don't know. It wasn't the basis for my not hiring you. The basis was one month, one month, one month, one day, two weeks. That was the reason. [Pfaffenroth was indicating that the reason he could not verify if Jackson had experience from 1973 to 2001 was because the employment application only had space to list 7 past employers. Pfaffenroth's reference to "one month, one month", etc., was a reference to the length of Jackson's employment with past employers.]
T. 129-130.
Another possibility is that Jackson may have been able to establish that the respondent's refusal to hire him was based in part on a prohibited basis (i.e., a conviction record the circumstances of which were not substantially related to the job), even though legitimate reasons may have also contributed to the respondent's refusal to hire him. However, a violation of the Act is established when a complainant demonstrates that a prohibited characteristic was a motivating factor, even though other factors motivated the decision. Hoell v. LIRC, 186 Wis. 2d 603, 608-611, 522 N.W.2d 234 (Ct app. 1994). An employer cannot escape liability if a complainant has been discriminated against "in part" on a prohibited basis, but evidence that legitimate reasons also contributed to the employer's decision can be considered in fashioning an appropriate remedy. Larson v. Tomah Police Dept. (LIRC, 07/20/94). However, even if the respondent refused to hire Jackson in part because of an impermissible factor and in part because of other motivating factors, and the refusal to hire would have taken place in the absence of the impermissible motivating factor, Jackson may be awarded a cease and desist order (and attorney's fees had he had an attorney). Hoell, 186 at 610.
Another possibility is that assuming for purposes of argument that Jackson would have been terminated for falsification of his application even if hired, that this would have been the result of "after-acquired" evidence. With respect to Jackson listing "lack of flatbed experience" as reason for leaving Stoughton Trucking and "out of business" as the reason for leaving All American Transport, the record shows that the respondent's assertions that these statements are false was based upon deposition testimony given by Jackson in a discrimination case he had against a company called Transport America. However, the respondent did not obtain Jackson's Transport America deposition until September 2, 2003 (T. 342), some twenty-one months after the respondent's refusal to hire him. In McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 115 S. Ct. 879 (1995), the U. S. Supreme Court determined that after-acquired evidence of a legitimate basis for an employee's termination could not shield the employer from liability for its discriminatory conduct, but could be used in fashioning the remedy. The Court noted that it would not accord with the dual objectives of anti-discrimination statutes -- to deter discriminatory employment practices by employers and to compensate employees for injuries caused by the prohibited discrimination -- to bar employees from all relief under these statutes. On the other hand, the Court also noted that once an employer learns about employee wrongdoing that would lead to a legitimate discharge, it could not require the employer to ignore this information. The Court concluded that as a general rule in these types of cases that neither reinstatement nor front pay is an appropriate remedy, as it would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds. The Court stated that the beginning point in the formulation of a remedy should be calculation of back pay from the date of the unlawful discharge to the date the new information was discovered. The Court stated, however, that where an employer seeks to rely upon after-acquired evidence of wrongdoing, it must first establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.
In short, Jackson may be able to establish a basis for showing probable cause for employer liability, and ultimately, should he prove a basis for employer liability by a preponderance of the evidence, entitled to an appropriate remedy.
For all of the above-stated reasons, the commission has remanded this case to the Division for a new hearing and probable cause determination on the complainant's complaint of alleged conviction record discrimination.
cc: Attorney Peter J. Culp
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