P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

THERESA L ROEN, Complainant


ERD Case No. CR2006022025, EEOC Case No. 26G200601315C

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 August 19, 2008
roenthe . rsd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


On November 6, the ALJ scheduled a conference, to be conducted with the parties on November 12, for the purpose of rescheduling the November 16 hearing date, rescheduling the respondent's deposition of the complainant, and hearing argument as to the respondent's objections to the complainant's responses to its discovery request.

In her letter confirming the scheduling of the November 12 conference, the ALJ advised the complainant that, "An unreasonable failure to comply with discovery requests could lead to sanctions being imposed upon you including the dismissal of your claim."

During the November 12 conference, the ALJ discussed and ruled on each disputed discovery response. The ALJ issued a written ruling after the conference directing the complainant to sign and return the medical and employment records authorization forms immediately, detailing her rulings on each disputed discovery response, and ordering the complainant to provide the required responses on or before November 28, 2007. In her written ruling, the ALJ stated, "...if Ms. Roen does not respond to this Order as directed and within the time frame specified, she may be subject to sanctions up to and including the dismissal of her complaint."

Some time on or before December 3, 2007, the complainant served a discovery request on the respondent. Although the complainant specified that the respondent answer this request by December 10, pursuant to Wis. Stat. § 804.08(1)(b), the respondent had 30 days within which to do so.

On December 18, when it had not received any of the information ordered by the ALJ on November 12, the respondent filed a motion to dismiss.

The ALJ, by order issued December 21, 2007, directed the complainant to return the signed employment records authorization forms, without any restriction or limitation, no later than December 28; and to fully respond to the remaining discovery requests, as detailed in the November 12 order, no later than January 7, 2008. In this order, the ALJ stated, "If Ms. Roen does not respond to this Order as directed and within the time specified, she will be subject to the dismissal of her complaint."

The complainant left a phone message for the ALJ on January 8, 2008, in which she stated, among other things, that she was refusing to sign the employment records authorization forms, and did not intend to answer the discovery requests until the respondent filed its answer to her discovery request.

When, by January 11, 2008, the respondent had not received from the complainant any of the information included within the ambit of the November 12 order, it renewed its motion to dismiss.

In a decision issued on January 18, 2008, the ALJ granted the respondent's motion to dismiss.

Wisconsin Administrative Code § DWD 218.14(3) provides that the scope, methods, and use of discovery in WFEA actions "shall be the same as set forth in ch. 804, Stats."

Wisconsin Statutes § 804.12 states as follows, as relevant here:

804.12 Failure to make discovery; sanctions.

(1) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(a) Motion. If a ... party fails to answer an interrogatory submitted under s. 804.08...the discovering party may move for an order compelling an accordance with the request....

(b) Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.

(2) Failure to comply with order.

(a) If a party...fails to obey an order to provide or permit discovery, including an order made under sub. (1) or s. 804.10, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;

3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination....

Here, the ALJ attempted to carefully guide the complainant through the discovery process, specifying in detail what she was required to provide and giving her numerous opportunities to provide it, and explaining in explicit terms what the consequence would be for her failure to do so. Despite this, the complainant did not comply with the discovery orders issued by the ALJ on November 12 and December 21, 2007.

The sanction of dismissal of an action or proceeding will be sustained if there is a reasonable basis for a determination that the non-complying party's conduct was egregious and without clear and justifiable excuse. Sentry Insurance v. Davis, 2001 WI App 203, 247 Wis. 2d 501, 634 N.W.2d 553 (2001); Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991).

The complainant's numerous and repeated failures to comply with the ALJ's explicit discovery orders were deliberate and sufficiently egregious to justify dismissal of her charge. See, Moya v. Clarity Care, Inc, ERD Case No. 200603071 (LIRC July 25, 2008); Johnson v. Covenant Healthcare Systems, Inc., ERD Case No. 200500090 (LIRC July 27, 2007)(dismissal appropriate sanction where complainant's failure to comply with discovery orders evinced intention not to cooperate with discovery process).

The complainant asserts that she already "answered all the questions that the respondent sent to me three or four times." However, this assertion is belied by the fact that the ALJ reviewed each of the disputed discovery requests and determined which still required a response before issuing her November 12, 2007, order.

The complainant objects that some of the interrogatories "did not even pertain to the matter of my getting hurt on the job." This objection to the relevance of certain interrogatories was considered and ruled upon by the ALJ during the motion hearing on November 12. Once the ALJ ruled on her objections, it was the complainant's obligation to comply with the ruling. It was not the complainant's prerogative to decide what information she was required to provide during the discovery process.

Finally, the complainant argues that she did not think it fair that she was required to answer the respondent's discovery request before the respondent answered hers.

However, it is important to note that the complainant did not file her discovery request until some time on or around December 3, 2007. By the time the respondent would have been expected to file its response to this request, i.e., January 2, 2008, the complainant had failed to comply with the ALJ's November 12 order, had failed to comply with the December 28 date by which she had been ordered to provide the signed employment records authorization form, and had not yet complied with the January 7 deadline for submitting interrogatory responses ordered by the ALJ on December 21. Again, it was not the complainant's prerogative to determine when and under what circumstances to respond to discovery or to comply with the ALJ's orders, and the filing of a discovery response by the respondent a few days after the end of the 30-day period would certainly not justify the complainant's failures here. In addition, in view of the complainant's discovery history, the respondent was reasonably justified in waiting to file its response to her discovery request in view of the complainant's failure to meet the December 28 deadline, and in the event she did not meet the January 7 deadline, and the ALJ, as she had threatened, dismissed her charge.

cc: Attorney Jacquelynn A. Ruiz

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