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. 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 record also indicates, however, that an additional claim of conviction record discrimination occurring in December 2001 not alleged in the complainant's complaint was raised during the initial investigation of this matter but the complainant was never advised to amend his complaint to include this additional claim. For this reason, the complainant should be permitted to amend his complaint. The department should then conduct an investigation and issue a determination as to whether or not there is probable cause to believe that an act of discrimination occurred as alleged in the amended complaint.

The decision of the administrative law judge (copy attached) is affirmed. This matter is remanded to the Equal Rights Division to permit the complainant to file an amended complaint and for an investigation and issuance of an initial determination regarding the amended complainant allegation of conviction record discrimination in December 2001.

Dated and mailed December 11, 2003
jacksri8 . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

Background

On December 13, 2001, Rick Jackson filed a complaint with the ERD alleging that on October 22, 2001, he completed an application for employment at the respondent in Cottage Grove, Wisconsin and that the respondent's manager, Rick Osborn, told him he could not be hired as a driver or for work on the company premises because of his conviction record. Osborn submitted an answer to Jackson's complaint by letter dated December 27, 2001. Osborn denied that Jackson had been told he could not be hired due to his past criminal record. Osborn asserted that Jackson was not hired because he had 3 moving violations since November 1999 and because he only had 21 months of tractor/trailer experience whereas company policy requires a minimum of 2 years. In addition, Osborn indicated Jackson had returned a second time wanting to update his application so that his unemployment would not be stopped. Osborn stated he gave Jackson a new application, that Jackson said he needed to get his glasses out of the car, walked out the door and never came back. Osborn further stated that before Jackson walked out the door he again told Jackson that it was his driving record that kept him from hiring Jackson. Osborn stated that this was said in the presence of the terminal manager and that the terminal manager agrees that at no time was Jackson's criminal record mentioned as reason for not hiring him.

In July 2002, Equal Rights Officer, Mary Bade, sent letters to Jackson and Osborn asking for responses to a number of questions. One question asked of both was about the second time Jackson returned to the respondent and what position he applied for at that time. In response, Jackson asserted that he returned a second time to seek employment on or about December 10 or 11, 2001, that he "again received an application (sic) mailed it back and (sic) told the same story as before. No felons could be hired. It was company policy." The respondent, who by this time had retained a law firm in Omaha, Nebraska, again related that Jackson came back asking to update his application so he could continue receiving unemployment benefits. The respondent stated that Jackson was given a new application and Jackson said that he needed to get something out of his car and would be right back, but neither returned nor submitted a second application. An additional request Bade made of the respondent was that it provide the name of the terminal manager who witnessed Jackson's second visit and a statement from him as to what he witnessed. In response, the respondent supplied a statement dated July 25, 2002, from Dan Crain who stated that he is the terminal manager at the Cottage Grove facility and that he was present when Jackson and Osborn were having a conversation. However, Crain stated that during the conversation between Jackson and Osborn he was working on the computer so he did not recall what was said.

On July 29, 2002, Bade issued an initial determination in which she decided there was no probable cause to believe the respondent violated the Act by refusing to hire or employ Jackson because of his conviction record. Bade's initial determination included a finding in paragraph "G" that referenced Jackson's second visit to the respondent. This finding states: "Approximately a month later, the Complainant returned to the Respondent's office, indicating he wanted to update his application. Osborn gave him a new blank application. Complainant took the application, left, and did not return."

In the section of the initial determination titled "INVESTIGATOR'S EXPLANATION" that explained why no probable cause was found, no mention is made of Jackson's second return to the respondent. What the investigator's explanation states is the following:

"There is no reason to believe the Respondent failed to hire the Complainant because of his conviction record. Respondent has provided legitimate non-discriminatory reasons for not hiring the Complainant as a truck driver, specifically the fact that he had only 21 months of tractor/trailer experience whereas they require at least 24 months of experience, and the fact that he had three moving traffic violations in a period of less than two years. Although the Complainant claimed that he also applied for other kinds of work, his job application did not reflect any experience in the areas he claimed to have applied for; in any case, the Respondent did not have job openings other than for truck drivers. No probable cause is found.

(Emphasis added.)

Jackson filed a timely appeal of the no probable cause determination and the division subsequently issued a notice of hearing setting a hearing date of January 28, 2003. The issue noticed for hearing was whether there was probable cause to believe the respondent violated the Act by refusing to hire or employ the Complainant because of conviction record.

Jackson sent the respondent correspondence dated December 6, 2002, which Jackson titled "Interrogatories", but the first six of the nine numbered paragraphs requested that various documents be "sent to the administrative law judge."

On January 7, 2003, the respondent responded to Jackson's "Interrogatories." The respondent objected to the first six numbered paragraphs on the grounds that they were overly broad, vague, ambiguous and not likely to lead to the discovery of admissible evidence and/or because they were not a proper request for production of documents pursuant to Wis. Stat. § 804.09.

On January 7, 2003, the respondent also sent written notice to Jackson and the ALJ that it would be taking Jackson's deposition upon oral examination on January 27, 2003.

On January 10, 2003, the ALJ held a teleconference with the parties to address Jackson's oral motion to compel regarding the respondent's answers to his "Interrogatories." According to the ALJ's teleconference summary and order dated January 22, 2003, on January 10 each of the respondent's answers was addressed at which time the ALJ concluded that the respondent did not need to provide additional information regarding any of the interrogatories, with the exception of counsel's agreement to send to Jackson the fourth page of the employment applications for the 10 current drivers at the respondent's Madison facility.

This same teleconference summary and order also indicates that after receiving the above-mentioned documents Jackson requested another teleconference because the documents did not provide the dates of hire for the 10 drivers, that a second teleconference was held on January 17, 2003, and that the respondent's counsel was directed to provide the dates of hire/rehire for each of the 10 drivers' partial employment applications.

The respondent submitted its witness and exhibit list to the ALJ by fax on January 17, 2003. Jackson's exhibit and witness list was received by the division on January 21, 2003. Jackson's list of potential exhibits included, among other things, Dan Crain's July 25, 2002 statement, Bade's Investigator's Log, the tracking sheet for this case, references for Jackson from Gary Anderson Trucking, All American Transport, A&H, Inc. and a D.A.C. Services report on Jackson that was obtained by Wenger Truck Lines. A D.A.C. report provides various background information on individuals.

Respondent's counsel took Jackson's deposition on January 27, 2003.

At the hearing on January 28, 2003, respondent's counsel filed a motion in limine for an order to exclude any testimony or other evidence not made available to respondent at the time that respondent made the decision not to hire the complainant. (That is, October 22, 2001.) This included "any and all evidence pertinent to Complainant's traffic convictions, qualifications and driving performance including reference letters from Gary Anderson Trucking, Inc., All American Transport, Wenger Truck Lines, and A & H Inc. not in the possession of the Respondent at the time that Respondent representatives made the decision at issue."

Jackson asserted that the testimony of Dan Crain, whom the respondent had voluntarily produced at the hearing, was relevant because Osborn's December 27, 2002 letter to investigator Bade made reference to Crain's presence the second time Jackson applied. Jackson also indicated that Osborn's letter made reference to Crain agreeing that the second time Jackson was at the respondent Jackson's criminal record was not mentioned as a reason for not hiring him but Crain's statement (July 25, 2002) sent to the investigator said Crain was working on the computer and did not recall what was said between Jackson and Osborn. Jackson argued that Crain's statement should be considered relevant for impeachment of Osborn's claim about what was said during Jackson's second visit in December 2001.

However, finding that Jackson agreed Crain was not present on October 22, 2001, that Jackson's complaint did not reference his second visit to the respondent in December 2001 and that Bade's initial determination just made an observation that Jackson went back but drew no conclusion on his second visit, the ALJ ruled that Crain's testimony was not pertinent.

With respect to the letters of reference from the trucking companies and the D.A.C. report on Jackson obtained by Wenger Truck Lines, the ALJ recognized the existence of a factual dispute as to whether or not those documents had been given to Osborn and thus agreed to allow Jackson to attempt to introduce those documents.

Next, the ALJ took up Jackson's objection to the deposition having been taken the day before the hearing. Jackson made the following assertions: "Reason number one, it doesn't give me any time to prepare for the answers to the deposition, the questions that were asked; and two, I have no opportunity whatsoever of getting a copy of the deposition; three, not having the opportunity to study it before the hearing." Jackson also stated it was possible that the transcriber could have made mistakes. Jackson asserted that he was already "outgunned" here with two attorneys experienced in labor law, and that being a layperson he was at a big enough disadvantage as it was and that use of the deposition transcript would be prejudicial to his case and "taking me by surprise."

Counsel for the respondent stated that Jackson was aware of the deposition ahead of time, he had ample time to prepare and made no motion to quash or objecting to the deposition in any form prior to the deposition. Second, counsel expressed a loss of understanding as to how Jackson would need to prepare between yesterday and today for his sworn testimony. Third, counsel stated that if at some point there's an issue regarding the accuracy of the deposition the same court reporter was at the hearing and the issue could be addressed as part of the hearing. Finally, counsel stated she didn't believe there was unfair surprise to the testimony that Jackson gave himself.

Jackson then asserted that "it was a definite ploy to gain a tactical advantage over me." In response, the ALJ stated she believed the reason the deposition occurred the day before the hearing was because there were two out-of-state attorneys and it was much more expedient for them to make just one trip. The ALJ then went on to state that if counsel used the deposition to impeach Jackson's testimony a break would be taken to give Jackson ample time to review that portion of the testimony and to see if he believed there were any errors in what was typed. The ALJ also suggested that since the deposition had just been the day before the questions asked and his responses were fresher in his mind. In response, Jackson noted everyone's awareness of all the other cases he's pursuing on his own and asserted it was quite stressful to him "due to the tremendous amount of pressure dealing with these attorneys and stonewalling and everything being done at the very last minute." The ALJ again noted that she would make sure Jackson had enough time to review the portion of the testimony, that she may be incorrect that he had a fresh recollection of yesterday, but she'd try to fix that by giving him some time to review the portion of the pertinent testimony.

The Factual Evidence

The respondent contracts with the Hydrite Chemical Corporation in Cottage Grove to make Hydrite's deliveries and customer pick-ups of flammable, corrosive, toxic and other specialty chemicals.

On October 22, 2001, Jackson noticed a newspaper advertisement the respondent ran for experienced drivers. The ad read in part "Must have tank and HAZMAT endorsements, minimum 24 yrs. old, insurance, excellent wages, full benefits." A "HAZMAT" or hazardous material endorsement is required because the products the respondent hauls are deemed hazardous materials.

Jackson called the telephone number listed on the ad and spoke to Osborn. Jackson states he told Osborn he recently had 21 months of over-the-road experience and 10 years prior experience as a city driver when he was a Teamster in Chicago. Jackson states that Osborn told him that if his driving record appears to be in order, then possibly he'd be considered for employment. Jackson obtained directions to the respondent's terminal and then drove there to apply for a driver position.

Osborn gave Jackson an employment application to complete when he arrived at the respondent. In response to a request for his employment record for the last 10 years Jackson listed seven previous employers going back to March 1999. After the space provided for the seventh previous employer Jackson wrote "Prior to 1998 in prison in IL. Worked for various labor services between April 1998 till 5-99." There is no inquiry on the application regarding the applicant's conviction record. However, attached to the application was an agreement the applicant was required to sign. A statement included as part of the agreement reads, "I further understand that as a result of making this application for employment, my criminal records may be examined by the Company or its Agents. I hereby Authorize the Company or their designated Agents to make any lawful examination of my criminal record."

In response to the application question asking how many years of "tractor semitrailer experience he could prove" Jackson wrote 21 months.

In response to the question if he had a HAZMAT endorsement Jackson checked the space "No."

Under the section of the application asking for traffic convictions and forfeitures for the past 5 years other than parking violations, Jackson listed three: A third lane violation in November 1999, a speeding violation in June 2000 and a "minor vehicle" violation in April 2001.

After Jackson filled out the application Osborn briefly reviewed it with him. Osborn stated that he asked Jackson why he was in prison because he wanted to be sure the reason Jackson had been in prison had nothing to do with any kind of a motor vehicle. Osborn wrote "83-98 Armed Robbery" above Jackson's application comment about being in prison prior to 1998 because this was Jackson's response.

Jackson stated that on October 22, 2001, he gave Osborn letters of reference from Gary Anderson Trucking, All American Transport, A&H, Inc., and the D.A.C. report on him that had been obtained by Wenger Truck Lines. Osborn recalled having seen Jackson's three letters of reference in January 2003 when Jackson was at the respondent, but could not be sure if he had seen them on October 22, 2001. Osborn stated that he would not have necessarily formed a decision on whether to hire based on those three letters of reference, however. Osborn did not recall ever seeing the D.A.C. report on Jackson obtained by Wenger Truck Lines.

Osborn told Jackson to contact him a couple of days later.

Osborn stated that he took enough information from Jackson's application so that he could get a D.A.C. report and faxed a copy of their Fair Credit Reporting Act to the corporate safety office so they could proceed to get the D.A.C. report. Osborn stated that it was part of company procedure to do a background check on prospective applicants through D.A.C. Services. Osborn identified Respondent's Exhibit 15 as the report D.A.C. generated on October 22, 2001, on Jackson. The Exhibit 15 report contained only driver license and driving record information on Jackson. It showed traffic convictions for "License not on person" in December 1999, defective speedometer in June 2000 and improper equipment in April 2001.

Jackson asserted that when he contacted Osborn a couple of days later Osborn stated that he had "checked with the corporate office and no way can I be hired with my record, arrest record."

Osborn denied Jackson's assertion. Osborn asserted that his verbatim response to Jackson was "We could not hire him because of his lack of two years experience, his moving violations, three in less than two years, and also he did not have a haz-mat endorsement." T. 187. (The ALJ stated in a footnote in her decision that she found Osborn's testimony regarding the conversation between Jackson and Osborn to be more credible.)

Osborn identified Respondent's Exhibit 14, a document setting forth Department of Transportation Rules regarding driving hiring criteria, as part of the hiring criteria utilized to hire drivers at the Cottage Grove facility. Included in these rules is the requirement that the individual must have at least 2 years experience on semi (tractor-trailer) equipment within the last 4 years, and must have no more than three moving violations in five years. With respect to moving violations, Osborn stated that the company policy was that an applicant could have no more than three moving violations in three years.

Jackson asked Osborn why a D.A.C. report was run on him and Osborn responded that it was for the same purpose the company does with all employees and applicants, to verify driver's license and employment information.

Jackson asked Osborn why he went ahead and ran a background check when it was clear from his application that he didn't have the required 24 months of driving experience and Osborn responded that with respect to hiring practices that that was not sufficient by itself. Osborn stated that while Jackson's lack of two years driving experience within the last four years was not in Jackson's favor, because Jackson had stated that he had driving experience before he went into prison he wasn't going to rule Jackson out based on the driving experience requirement alone.

Osborn stated that the lack of driving experience and having three moving violations were the main criteria Jackson did not meet. Osborn testified that in addition, the D.A.C. report clarified that Jackson lacked a HAZMAT endorsement and that this contributed to his decision not to hire Jackson because Jackson would have been required to take and pass the HAZMAT test whereas there were applicants that already had that endorsement. Osborn also noted that there were minor discrepancies between Jackson's application and the D.A.C. report but indicated that this was not significant in his decision not to hire Jackson.

The ALJ found that Osborn did not hire Jackson for the reasons that Osborn stated, and thus concluded that there was no probable cause to believe the respondent had violated the Act by refusing to hire or employ Jackson because of his conviction record.

Jackson makes numerous arguments on appeal.

First, Jackson argues that the ALJ erroneously excluded testimony from Dan Crain. Jackson argues that Crain's testimony was relevant because Crain had submitted a statement to the Equal Rights investigator regarding an alleged conversation between him (Jackson) and Osborn. Further, Jackson asserts that Crain's statement was at least in part reason for the investigator's no probable cause determination. The record does not support Jackson's argument that the ALJ erroneously excluded testimony from Crain. The testimony by Crain that Jackson viewed as relevant pertained to Jackson's second visit to the respondent in December 2001. (T. 11-14.) Jackson's complaint, however, only alleged discrimination with respect to his non-hire on October 22, 2001. The investigator's determination did make a passing reference to Jackson's December visit. However, the investigator's determination does not indicate that Crain's statement was partly responsible for the no probable cause finding. Further, the investigator drew no conclusion with respect to whether there was probable cause to believe that Jackson had been discriminated against on the basis of conviction record as a result of his second visit in December.

As discussed above, the investigator's explanation as to why she found no probable cause to believe that Jackson was discriminated against indicates that it relates to the respondent's refusal to hire him on October 22, 2001. What the investigator concluded was that the respondent provided legitimate non-discriminatory reasons for not hiring Jackson as a truck driver, "specifically the fact that he had only 21 months of tractor/trailer experience, and the fact that he had three moving traffic violations in a period of less than two years."  This conclusion cannot be held to have addressed Jackson's claim with respect to his second visit to the respondent in December 2001, for two reasons: 1) there was no specific finding in the determination as to whether or not Jackson had applied for employment again in December 2001; and 2) a conclusion that Jackson was not hired in December 2001 because he never applied for employment required a different explanation than he was not hired because he lacked the requisite driving experience and had three traffic moving violations.

The record thus does not support Jackson's argument that testimony from Crain regarding his second visit to the respondent in December 2001 was erroneously excluded at the probable cause hearing. However, Jackson should be permitted to file an amended complaint alleging conviction record discrimination with respect to his December 2001 visit to the respondent. DWD 218.06(2) provides that "If, during an investigation, it appears that the respondent has engaged in discrimination against the complainant which is not alleged in the complaint, the department may advise the complainant that the complaint should be amended." Jackson's complaint alleged that he was discriminatorily refused hire on October 22, 2001. During the investigation of Jackson's complaint Jackson claimed that the respondent also refused to hire him on the basis of conviction record in December 2001. Further, it is in connection with the alleged December 2001 discriminatory refusal to hire that Jackson finds Crain's July 25, 2002 statement relevant. As discussed above, Jackson points out that Osborn's December 27, 2001 letter indicates that Crain agreed that at no time was Jackson's criminal record mentioned as reason for not hiring him during his (Jackson's) December 2001 visit, whereas Crain states that he did not recall what was said in the conversation between Osborn and Jackson.

Jackson next apparently argues that there is no DWD rule to support the ALJ's ruling that it was expedient for the respondent to schedule his deposition the day before the hearing and that the timing of his deposition was prejudicial to him. Jackson's arguments fail. The deposition was properly noticed by the respondent and allowed Jackson ample time both to prepare for the deposition and to make a motion to the ALJ that the deposition not be held on the day prior to the hearing. Jackson made no motion that the deposition not be held the day prior to the hearing. Further, Jackson has not established that the taking of his deposition on the day before the hearing was prejudicial to him. While Jackson apparently felt a need to "study" his deposition before the hearing, the testimony that he had provided at his deposition had taken place less than 24 hours prior to the hearing. Moreover, it was agreed at the hearing that a break would be taken and Jackson would be allowed enough time to review any portion of his deposition testimony if respondent's counsel used the deposition to impeach his hearing testimony.

Next, citing page 28 of the hearing transcript Jackson argues that the ALJ was "coaching" the respondent's witness, Rick Osborn, and that this was prejudicial to him. This argument is without merit. Prior to the start of testimony, what the ALJ did was advise Osborn that he needed to speak up because the court reporter would be recording his testimony, that Jackson would be asking him questions first, that if his answer to a question was yes or no to state it out loud so the reporter could get it recorded, to let it be known if he did not understand a question, that if he heard an objection to just stop until the ALJ determined whether or not he needed to answer the question and to let the ALJ know if he needed a break. These are preliminary matters that ALJ's customarily advise witnesses prior to the beginning of the witnesses' testimony. This was not prejudicial to Jackson.

Next, Jackson argues that the ALJ's ruling not to allow him to subpoena the investigator prejudiced his case. Jackson wanted to call the investigator to:

"have her testify on record to other facts she may be aware of not mentioned in her prior reports. Such as explicit statements in reference to a response letter from Rick Osborn to her and also her recollection as to what dates Dan Crain was referring to in question on his affidavit he sent on 7-25-02."

Further, Jackson apparently argues that based on his having had the opportunity to but failure to subpoena Bade, the respondent could have moved to have excluded from consideration the investigator's log, tracking sheet, notes and correspondence on the grounds of hearsay.

The ALJ in a letter dated February 13, 2003, to Jackson reiterated that her reason for not allowing him to call Bade as a witness at the hearing was that there was no relevant testimony she could offer. Specifically, the ALJ stated that there was no allegation that the respondent had made any kind of an admission of liability to Bade. Further, the ALJ stated that in her opinion Bade's investigative log was not a relevant document and thus there was no need for Bade to authenticate her handwriting. Jackson has not pointed to anything that indicates the ALJ's ruling was in error. Again, Jackson has not alleged that the respondent made an admission of liability to Bade. Further, the record, as made clear by Jackson himself at the hearing, shows that Crain's July 25, 2002 statement was in reference to Jackson's December 2001 visit to the respondent. Finally, the scenario that Jackson speculates could have happened could not have happened in view of the ALJ's determination that Bade had nothing relevant to offer at the hearing.

Next Jackson apparently argues that the ALJ improperly restricted his request that the respondent provide copies of the applications of all applicants, whether hired or not, in the last two years. Jackson asserts that this restriction was improper because:

"It was my responsibility to prove other felons did in fact applied (sic) if possible in order to show that respondents (sic) proffered reason of a non-discriminatory reason to not hire was nothing more than pretextual."

The ALJ's teleconference summary and order dated January 22, 2003, does not state the ALJ's reason(s) for not requiring the respondent to produce the applications of all the respondent's applicants during the last two years. Nevertheless, there is no basis to conclude that the ALJ erred in not requiring the respondent to produce these documents. Jackson had sought this information because if he could establish that convicted felons had applied for employment with the respondent but were not hired, this would assist him to show that the respondent's articulated reasons for not hiring him were pretextual. However, even had the respondent been required to produce the documents Jackson requested those documents would not have allowed him to establish that convicted felons had applied for employment but were not hired. The reason is, and the record is quite clear on this, that for several years prior to Jackson's request the respondent's employment application has not made any inquiry regarding an applicant's conviction record. In short, the applications requested would not have shown that the applicant had a conviction record.

Jackson next apparently takes issue with the ALJ's determination that the reason the respondent did not hire him was because he did not have a HAZMAT endorsement or two years experience within the last four years and because he had had three moving violations in less than two years. First, with respect to possession of the driving experience required by the respondent, Jackson argues that Osborn gave contradictory testimony. Jackson argues that Osborn testified that it was his intention to honor his experience prior to his incarceration, but later contradicted himself by claiming that he (Jackson) was rejected for not having two years of experience within the last four years. Jackson mischaracterizes Osborn's testimony. Osborn testified that while Jackson's lack of two years driving experience within the last four years was not in Jackson's favor, because Jackson stated that he had had driving experience before he went into prison, he wasn't going to rule Jackson out due to the driving experience requirement alone. Furthermore, Osborn's reason for not hiring Jackson was not limited to Jackson's failure to meet the respondent's driving experience requirement. Osborn testified that his reason for not hiring Jackson included the fact that he had three traffic moving violations in less than two years and that Jackson also did not have a HAZMAT endorsement when there were other applicants that already had a HAZMAT endorsement.

With respect to traffic violations Jackson apparently argues that he really only had one, a speeding violation, and that his other traffic violations should not have been considered because they were just "minor offenses." Regardless of Jackson's assessment of his traffic violations, they were nevertheless traffic violations and therefore a proper consideration in the respondent's hiring decision. Jackson also asserts that the D.A.C. Motor Vehicle Report does not support a showing that he gave false information, that his June 2000 speeding ticket somehow got listed as a defective speedometer. Osborn indicated, however, that the differences between what the D.A.C. report showed as traffic offenses and what Jackson reported was not a significant factor in his decision not to hire Jackson.

Regarding his lack of a HAZMAT endorsement Jackson argues that to obtain a HAZMAT endorsement involved a "simple process" of taking a test and paying a fee. However, it was because Jackson would have been required to go through the process of obtaining a HAZMAT endorsement that Osborn viewed Jackson as a less desirable applicant. Osborn testified that Jackson's lack of a HAZMAT endorsement contributed to his decision not to hire because Jackson would have been required to take and pass the HAZMAT test whereas there were other applicants who already had HAZMAT endorsements.

Next, Jackson asks the commission to review his closing arguments in the hearing transcript. One argument made by Jackson was that Osborn had given contradictory testimony. The respondent's employment application includes a space for the applicant to indicate whether a past accident the applicant had been involved in was "D.O.T. reportable." Apparently Jackson concluded Osborn had given contradictory testimony because Osborn stated that a prior accident listed on the employment application of a driver it hired was not "D.O.T. reportable" when the respondent's job description for truck drivers contained in the company manual required that its drivers report all accidents involving driver or company equipment. What Jackson fails to realize, however, is that the respondent's requirement that its drivers report all accidents involving the driver or company equipment and whether or not an accident is "D.O.T. reportable, are two entirely different matters. D.O.T. reportable accidents are governed by standards set by the Department of Transportation. As the phrase "D.O.T. reportable" suggests, not all accidents need be reported to the Department of Transportation. The respondent, however, requires that drivers employed by it report all accidents involving the driver or company equipment whether or not it is D.O.T. reportable.

As a second argument, Jackson asked why Osborn ran a background check on him if he wasn't qualified and a HAZMAT endorsement was all that important or complicated. However, Osborn indicated that it was standard procedure to run a background check on an applicant. Jackson has argued that running a background check on all applicants as standard procedure would be illogical because this would be too costly and time consuming. This is nothing more than speculation on the part of Jackson, however, since he neither presented evidence regarding the respondent's costs associated with having D.A.C Services run background checks on applicants or the amount of time required to obtain a background check. Moreover, as the respondent points out, the fact that Osborn followed the standard procedure and ran a background check on Jackson suggests there was no intent to discriminate against Jackson based on his conviction record. Osborn already knew about Jackson's criminal record because Jackson included it in his employment application. If Osborn had any intent to discriminate against Jackson based on his conviction record he never would have needed to go to the next step of running a background check.

Jackson also argued that based on the documentation and testimony the issue of the number of moving violations that would cause a refusal to hire varied between three and five, which shows the employer exercised some flexibility with respect to moving violations. The evidence does show that a current driver the respondent hired in 1998 had had three moving violations prior to his hire. However, those three moving violations occurred over a period of three years and four months. This is not inconsistent with Osborn's testimony that an applicant could have no more than three moving violations in three years. This driver also had five and one-half years of tractor semi-trailer experience and a HAZMAT endorsement when he was hired. Jackson, however, had incurred three moving violations in less than two years. Furthermore, Jackson did not have two years of semi-trailer driving experience within the last four years when he applied in October 2001, nor did he have a HAZMAT endorsement.

Jackson further argued that he was supposed to have had a bad driving record but the respondent hired people with worse driving records. Jackson argued that the applications of the respondent's current drivers show that the respondent hired some that had had serious accidents, that contrary to its written policy the respondent had hired drivers with suspended licenses and that it was questionable whether some of those hired were actually safe drivers because they had too many speeding tickets. Two of the individuals the respondent hired had two speeding violations. The speeding violations of those two individuals had occurred three and five years, respectively, prior to the date of their hire. Also both of these drivers had at least five years of tractor-trailer driving experience and a HAZMAT endorsement when hired. With respect to suspended licenses Osborn testified that the respondent's policy was that it could not hire an applicant whose license was suspended when applying, not that an applicant whose license had been suspended in the past could never be hired. Apparently the respondent's current driver that Jackson viewed as having had a serious accident is a reference to the applicant who stated on his application that he was previously involved in a rear- end accident. There were no details on this individual's application to suggest this had been a "serious accident," however. What this individual's application does indicate, however, is that it was a "non-chargeable" accident for the applicant.

Finally, Jackson also included assertions about the alleged conduct of respondent's counsel as part of his "closing argument." For example, Jackson alleged that the respondent's counsel and its witness, Osborn, had a "signal system" during the hearing. The ALJ confirmed at the hearing, however, that she had not observed any such signal system on the part of counsel and Osborn. Jackson also complained that throughout the hearing counsel for the respondent had consistently objected on the least little thing in order to throw him off guard, interrupt his train of thought and to cause him to forget certain facts. The record shows, as the ALJ stated at the hearing, that the respondent's counsel had proper reasons for objecting.

Next, Jackson takes issue with the ALJ's credibility determination. Jackson testified that Osborn told him "that he checked with the corporate office and in no way could I be hired with my record, arrest record." Osborn denied having made this statement. Osborn testified that his verbatim response to Jackson was "We could not hire him because of his lack of two years experience, his moving violations, three in less than two years, and also he did not have a haz-mat endorsement." The ALJ stated in her decision that she found Osborn's testimony regarding this conversation to be more credible. Jackson argues that the ALJ's credibility determination was not supported by any logical relevant evidence as to why he was not believable. Contrary to Jackson's argument, however, Jackson's hearing admission that "it's difficult for him to keep the facts of each case straight because he has filed so many charges" of discrimination alone provides sufficient reason to question his testimony.

Finally, Jackson has directed the commission to review his April 28, 2003, "Post Conviction Brief" addressed to the ALJ. Most of Jackson's arguments included in this brief to the ALJ have already been addressed above. One argument not specifically addressed above is the following argument by Jackson: That Osborn closely inspected his application and immediately determined that he was a viable candidate for hire, and that Osborn sent his application to the corporate office but the corporate office "overruled Osborn's decision on Jackson's qualifications and directed (sic) Jackson not be hired based on his felony conviction." This argument by Jackson fails, however, as there is absolutely nothing in the record that supports any aspect of this argument.

The second and final remaining argument not specifically addressed above is another argument by Jackson relating to Osborn's testimony that an accident of a driver the respondent hired was not D.O.T reportable. The argument that Jackson apparently attempts to make is that Osborn denied having seen the Wenger Truck Lines D.A.C. Services report on him because that D.A.C report contained a definition of accident which impeaches Osborn's testimony that "not all accidents are reportable." This argument is without merit. There is nothing in the record that supports Jackson's claim about why Osborn did not recall having seen the Wenger Truck Lines D.A.C. report. Furthermore, the simple fact is that the definition of "accident" utilized by D.A.C. Services in connection with the background report that it prepares on individuals and whether an accident is D.O.T. reportable are two entirely different matters.

cc: Attorney Pamela J. Bourne

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