RICK JACKSON, Complainant
QUALITY 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. 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 17, 2006
jacksri . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
While the ALJ stated at the hearing that he was granting the respondent's motion to dismiss Rick Jackson's complaint of conviction record discrimination for "failure to prosecute" and "failure to proceed" when Jackson repeatedly refused to cooperate and answer the respondent's counsel's cross-examination questions relating to an alleged conversation Jackson had with Brian Rasch at the end of March 2003 or beginning of April 2003, the ALJ in his written decision issued in this matter made findings of facts, entered conclusions of law and included a memorandum opinion specifically addressing the merits of Jackson's conviction record discrimination claim.
On appeal, Jackson apparently argues that the ALJ erred in not granting him a continuance of the hearing. Jackson asserts that he "was getting more and more sick from a serious case of the flu and repeatedly requested that Judge Grandberry stop the hearing and continue it for another day." Jackson asserts that the respondent's attorney "demanded that I give multiple answers to what I previously testified to. I had nothing else to add to my testimony. I was very ill and I told Judge Grandberry to play back the tape that was not that long ago but Judge Grandberry refused. Judge Grandberry was going to allow the respondent's attorney to ask irrelevant questions such as what prisons I did time in, also specifics as to what I was accused of, either a jury trial or bench trial, if I was guilty, etc. going into particulars that would not be relevant if my convictions were substantially related or not." Jackson argues that the ALJ's dismissal of his case "for refusing to constantly repeat his answers in the record was a direct violation of due process."
Jackson's arguments fail. First of all, the ALJ, who had been able to observe Jackson throughout the hearing, saw no signs of Jackson being sick. Indeed, Jackson had called and examined two of the respondent's witnesses adversely and presented his direct testimony, and it was not until he was being cross-examined when Jackson all of sudden claimed to have the flu. Second, as part of the process of cross-examination, the respondent's attorney was entitled to revisit testimony that Jackson had given in his direct examination. Since this was cross-examination, the ALJ was not required to play back the tape recording of the hearing to obtain the testimony that Jackson had given on direct examination. Further, Jackson was not being asked to give "multiple answers" to his previous testimony. Third, contrary to the argument by Jackson, the point at which Jackson began requesting an adjournment of the hearing due to his claimed illness was when the respondent's counsel attempted to question him about an alleged conversation he had with Brian Rasch at the end of March 2003 or beginning of April 2003. (1) Finally, the ALJ did not dismiss Jackson's case "for refusing to constantly repeat his answers in the record". The ALJ stated that he was dismissing Jackson's case because he repeatedly refused to cooperate and answer the respondent's counsel's cross-examination questions relating to an alleged conversation Jackson had with Brian Rasch at the end of March 2003 or beginning of April 2003.
The other primary issue that Jackson raises on appeal concerns Wis. Stat. § 111.322(2). This statute section makes the following an act of employment discrimination:
To print or circulate or cause to be printed or circulated any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which implies or expresses any limitation, specification or discrimination with respect to an individual or any intent to make such limitation, specification or discrimination because of any basis enumerated in s. 111.321.
At the hearing, Jackson argued that his case included a "printing and circulating" claim. (2) However, the ALJ refused to entertain that issue, stating that an allegation relating to failure to hire was the only issue noticed for hearing. (The notice of hearing stated that the hearing would be held to determine whether the respondent violated the WFEA by "refusing to hire or employ the Complainant because of conviction record.") Jackson also moved for the ALJ to send this matter back to the investigator but the ALJ denied this motion, stating that Jackson had had plenty of time to amend his complaint prior to the date of the hearing. T. 30.
The focus of Jackson's "printing and circulating" claim at the hearing was on two sections of the application form (3) the respondent was using in the early part of 2003. The page that begins, "Dear Applicant", and contained the statement:
I understand that to be a driver for Quality Distribution, Inc., that I MUST:
...
8. Have no convictions resulting from violent crimes, sexual related crimes or use of illegal substances.
(Emphasis in original.)
The Fair Credit Reporting Act Authorization and Release page, which included the following language:
I further understand that by completing and submitting this application, I:
...
- acknowledge that felony convictions are a disqualifying factor and finding of such convictions, at any time, will result in disqualification or a rescinding of offer:
(Emphasis in original.)
Jackson has nine felony convictions, including two counts of armed robbery, two counts of aggravated battery, two counts of unlawful restraint and one count each of home invasion, armed violence and residential burglary.
On appeal Jackson argues, "On the issue of printing and circulating a discriminatory policy contrary to W.F.E.A. Jackson did in fact raise the issue with a reasonable degree of specificity even though he may not have explicitly used the term of 111.322(1) & (2)." Also, at the hearing Jackson had argued that he shouldn't be required to use "magic words" because he's a lay person.
Jackson's discrimination complaint shows the following. In section 4 of the complaint regarding the basis for the respondent's alleged discrimination, Jackson checked the box, "Conviction Record", and in section 5 of the complaint he checked the box, "Failure to hire", as the discriminatory action against him by the respondent. In section 6 Jackson stated that the date, "about 4-10-03" was the date of the first alleged act of discrimination and in response to the question, "What action was taken against you on that date?" he responded, "refused to hire due to conviction record". (4) (Emphasis added.) In section 7 of the complaint where the complainant is asked to list each action or incident believed to be discriminatory, Jackson wrote:
Respondent Quality Carriers, Inc. (Lloyd Transportation) refused to hire me due to my conviction record.
Be advised that the respondent listed on the application packet several times that no felonies could be hired especially with my record Home Invasion armed robbery, aggravated assault, residential burglary, armed violence, etc. I was told this by Brian Roosh (sic) a supervisor at the above respondent. Probable cause has been established.
(Emphasis added.)
The commission concludes that the § 111.322(2) issue was not fairly raised by Jackson's complaint. The reason is that the specific discriminatory action that Jackson alleges the respondent took against him was a refusal to hire him due to his conviction record. After twice alleging that the respondent had refused to hire him due to his conviction record Jackson does indicate that the respondent's application packet states that "no felonies could be hired", however, his complaint provides no basis or reason to suggest anything other than that this statement was offered as support for his claim that he was not hired due to his conviction record.
On appeal Jackson asserts that he "conferred" with the investigator on the "printing and circulating" issue before and after the investigator issued the initial determination "and she expressed some concern that I did not know what I was talking about and that she was confused." Also, during the hearing Jackson asserted a number of times that the "printing and circulating" issue was discussed with the investigator but he did not disclose on the hearing record any details of his "discussion" with the investigator.
The investigator's initial determination issued in this matter does not address any issue arising under 111.322(2), however. Indeed, Jackson himself states, "The investigator makes no mention whatsoever to printing and circulating with only a broad determination of probable cause." In addition, the notice of hearing in this matter issued on November 10, 2004, specifically listed the only issue for hearing as, "whether the respondent had refused to hire or employ the Complainant because of conviction record".
The commission concludes that the ALJ properly denied Jackson's request to send the "printing and circulating" issue back for investigation. Jackson knew or should have known that he was required to specifically raise the § 111.322(2) alleged violation in his complaint or an amended complaint. Jackson is no stranger to the procedural requirements under the WFEA. Jackson has filed numerous complaints of conviction record discrimination with the ERD. Moreover, at least two of Jackson's previous cases involved an alleged § 111.322(2) violation. In Jackson v. Klemm Tank Lines (LIRC, 04/29/05), Jackson had specifically alleged in his December 3, 2002 complaint that Klemm Tank Lines had published a statement evincing an intent to discriminate because of conviction record, then told the investigator to disregard that issue but then later as the case was proceeding to a hearing attempted to obtain a stipulation from opposing counsel that his complaint be amended to include the § 111.322(2) issue. Also, in an earlier case, Jackson v. Transport America (LIRC, 05/06/02, ERD Case no. 200002290), the ALJ in that case had specifically noted in his decision that the respondent had a written policy and also published an employment brochure that clearly violated the WFEA, but that the issue presented in the case was not whether or not the respondent publishes an illegal policy, the issue presented was whether Jackson was discriminated against by the respondent refusing to hire or employ him. The commission thus concludes that the ALJ did not err in denying Jackson's request to remand the "printing and circulating" issue for investigation. Jackson knew or should have known that he was required to specifically raise the § 111.322(2) alleged violation in his complaint or a timely amended complaint.
Jackson also apparently complains that the respondent's responses to his discovery requests (Requests to Admit and Production of Documents) were late. The record indicates that Jackson's discovery requests were made by letters dated December 17, 2004. (5) By letter dated January 25, 2005, addressed to the ALJ, Jackson moved for a motion to compel and thereafter spoke by phone with the ALJ and requested that the matters in his request to admit be considered admitted, to which the ALJ's response was to indicate that this would be taken up at a teleconference on Jackson's motion to compel. Apparently, prior to a teleconference on the motion to compel, which must have taken place on either Friday, January 28 or Monday, January 31, 2005, the respondent provided Jackson with responses to his discovery requests (denying the requests to admit and producing various requested documents) by correspondence dated January 28, 2005. Further, at the teleconference Jackson apparently stated that he had received everything he needed from the respondent with the exception of one item (which the respondent agreed to provide) and did not ask that the matters in his requests for admissions be considered admitted. The hearing was not scheduled to take place until February 9, 2005.
Although no formal ruling was ever made, the ALJ effectively permitted the respondent to withdraw its admissions based upon the discussion at the teleconference. A court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party maintaining the action on the merits. Wis. Stat. § 804.11(2). A court may permit withdrawal of admissions if both statutory conditions under sub. (2) are met, but it is not required to do so. Mucek v. Nationwide Communications, Inc., 2002 WI App 60, ? 34, 252 Wis. 2d 426, 448, 643 N.W.2d 98. The purpose of the admissions process "is to expedite trial by establishing certain material facts as true...thus narrowing the range of issues for trial." Id. at ? 31, 443. Whether the presentation of the merits will be subserved by withdrawal involves consideration of whether the admission is contrary to the record in the case. Mucek, 2002 WI 60 27 n4, citing Siemien v. Chem. Waste Mgmt., Inc., Supp. 2d 939, 941-42 (W.D. La. 1998). In the instant matter, the admissions are contrary to the record in this case. In response to the Division's notice of the complaint filed by Jackson, the respondent had replied that it had no evidence that Jackson had ever applied, that it had no application on file for him, that it was the respondent's policy to keep all applications filed, that Brian Rasch had no independent recollection of any conversation about employment with Jackson, and that "If there had been a conversation with Jackson, which there was not, he would not be the decision-maker on who would be hired as a driver." Further, there has been no showing that the withdrawal of the admissions in any way prejudiced Jackson's claim against the respondent. Nor has there been any showing by Jackson that he was prejudiced by the respondent's late submission of the various documents that he had requested.
Finally, another argument Jackson makes is that "Even if the complainant did not send a completed application it could be shown that it would have been futile for him to apply and still prevail on the merits." It is not exactly clear what argument Jackson is trying to make here. Assuming for purposes of argument that Jackson is asserting that it would have been futile for him to apply based upon statements in the respondent's application packet, this again presents an issue under § 111.322(2), an issue that was neither raised in Jackson's complaint nor noticed for hearing.
For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.
cc: Attorney Jeffrey K. Ross
Appealed to Circuit Court. Affirmed July 18, 2006. Appealed to the Court of Appeals. Affirmed, unpublished summary affirmance, March 13, 2007.
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