RICK JACKSON, Complainant
TRANSWOOD INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. The complainant filed a petition for review.
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 April 27, 2007
jacksri2 . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
Rick Jackson's complaint in this matter (ERD Case No. CR200303522) was consolidated with his discrimination complaints involving the same parties in ERD Case Nos. CR200104557 and CR200500732, for a probable cause hearing before the ALJ on February 16, 2007. At the hearing, Jackson moved for a continuance of the hearing, which the ALJ denied. The ALJ offered Jackson multiple chances to present his testimony and evidence after denying his request for a continuance of the hearing, but Jackson declined to do so. The respondent moved for a dismissal of the case and the ALJ orally granted the respondent's motion.
The ALJ issued a decision in ERD Case No. CR200303522 on February 22, 2007, dismissing Jackson's complaint. Jackson did not file a petition for review of the ALJ's decision with the Equal Rights Division until March 16, 2007, making it one day late. Jackson includes the following assertions in his petition:
I never received my copy in the mail and I spoke to Judge Brown on March 16, 2007 and also Tammy Stoll in Milwaukee to confirm they had my proper address.
I generally monitor all my cases due to waiting years and spending thousands of dollars to prosecute. Judge Brown was to get this decision out above in about 3 weeks from the hearing but instead sent the decision out through Milwaukee on March (sic) 22, 2007.
The commission is unsure what argument Jackson is making regarding the decision being sent out through Milwaukee, since all equal rights decisions are mailed from Milwaukee. In any case, the commission concludes that Jackson's complaint must be dismissed even had he filed a timely petition for review of the ALJ's dismissal of his complaint. First of all, because Jackson refused to proceed at the hearing due to his objections to the ALJ's rulings, and his complaint was dismissed as a result, Jackson is deemed to have waived his objections to these rulings. Casetta v. Zales Jewelers (LIRC, 06/14/05), citing Clemons et al. v. Opportunities Industrialization Center of Greater Milwaukee, (LIRC, 02/14/03). Since Jackson presented no testimony or evidence whatsoever on his complaint of alleged discrimination at the scheduled hearing, his complaint of discrimination must fail. Second, having opted to consider Jackson's objections to the ALJ's denial of his motion for a continuance, the commission finds that those objections fail.
Jackson's claim in ERD Case No. CR200303522 involved an allegation that the respondent had refused to hire or employ him in January 2003, in retaliation for having filed a prior complaint against the respondent.
At the February 16 hearing, Jackson requested a continuance of the hearing in Case No. CR200104557. He did so primarily on the basis of his assertion that the ALJ had made an erroneous ruling on a motion in limine by the respondent which caused him to be unable to rebut testimony given by the respondent's witnesses at the February 16, 2007 hearing. (1)
An additional basis for Jackson's motion for a continuance was that the ALJ had erred in not allowing Attorney Scott Schroeder (2) to depose an individual named Jim Gilbertson.
Jackson had made known during a January 19, 2007 telephone conference the ALJ held with the parties that Attorney Schroeder intended to take Gilbertson's deposition. The ALJ suggested that Attorney Schroeder contact the respondent's counsel, Attorney Chad Richter, to discuss this. When contacted by Attorney Schroeder about deposing Gilbertson, Attorney Richter objected. At the request of the parties, on January 26 the ALJ held a telephone conference with the parties on the question of deposing Gilbertson.
The ALJ summarized the telephone conference discussion on the question of deposing Gilbertson in a letter to the parties dated January 26, 2007. The ALJ's letter shows that Attorney Richter objected to the deposition, arguing that it would be an undue burden or expense for the respondent to defend a deposition of Gilbertson because such a deposition was not reasonably calculated to lead to the discovery of admissible evidence in any of the three cases consolidated for hearing. Specifically, Attorney Richter noted that Gilbertson was not a Transwood employee and did not have any involvement in hiring for Transwood, and that Jackson's alleged contact with Gilbertson happened in January 2004, which was not a time that related to any of the three employment applications at issue. Treating the respondent's objection to the deposition as a motion for a protective order under Wis. Stat. § 804.01(3), the ALJ granted the motion based on the timing and the substance of the alleged contact between Jackson and Gilbertson. In granting the motion, the ALJ noted that Attorney Schroeder acknowledged that January 2004 was the month that Jackson had two conversations with Gilbertson by phone. Further, the ALJ noted that the clearest statement he had about the alleged substance of Jackson's conversations with Gilbertson was a letter Jackson sent to the ERD investigator dated January 13, 2004, regarding ERD Case No. CR200303522, which dealt with Jackson's January 2003 application. The ALJ quoted the following from Jackson's letter:
On January 13, 2004 at 10:03 a.m. I called Rick Osborn on his mobile phone 608-239-4122 and confronted him about a driving position that was open which he first denied and I informed him that I spoke to Dan Crain yesterday and he told me there was a position open at the Eau Claire, Wi. facility. He told me to call 800-471-6885 and speak to Jim Gilbertson which I did on Jan. 12, 2004 and Jim Gilbertson confirmed what Dan Crain said about having an opening for a driver at this time. Jim Gilbertson also told me a few weeks ago another driver was also hired on 1-12-04. Mr. Gilbertson also told me that prior to that it was about Oct. 2002 it last hired a driver at Eau Claire, Wi.
I did not get Jim Gilbertson's job title but was told he would be able to assist me. Jim told me that he works for a company called W.R.R. Environmental Services and that Transwood, Inc. was the company I would be working for per contract. I was also told that I would be traveling only a 4/5 state region and home about every other night usually. I told Jim Gilbertson that I would be living in the Eau Claire, Wi. Area if I was hired.
About 9:58 (a.m.) on Jan. 13, 2004 I called Jim Gilbertson back to ask him if I would be allowed to work around his facility after I did 14 years and 9 months in the penitentiary and he told me I would have to ask Rick Osborn in Cottage Grove, Wi. and that he was not the employer.
The ALJ then went on to note in the January 26, 2007 letter that if the complaint in ERD Case No. CR200303522 had included an allegation that Jackson had applied for a position in January 2004 and was not hired because of retaliation, the alleged conversations Jackson had with Gilbertson would be relevant. The ALJ noted that the complaint itself, however, preceded January 2004, having been filed in September 2003, and referred only to an application in January 2003.
Furthermore, in his January 26 letter the ALJ had allowed for the potential lifting of the protective order stating, "because Mr. Gilbertson was not a Transwood employee, the Complainant or Complainant's attorney is free to contact him at any time to see what relevant information he might have, and based on that contact, could again attempt to depose him or subpoena him to the hearing."
The ALJ did not err in his January 26, 2007 ruling on what in effect was a motion by the respondent for a protective order against allowing Jackson to depose Jim Gilbertson. (3)
For all of the above-stated reasons, the commission has affirmed the administrative law judge's dismissal of Jackson's complaint in ERD Case No. CR200303522.
cc: Attorney Jennifer M. Thiel
Appealed to Circuit Court. Appeal dismissed as untimely, August 3, 2007. Appealed to the Court of Appeals. Dismissal of appeal affirmed, April 17, 2008.
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