STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARY A ROBINSON, Complainant

ACLU, Respondent

PUBLIC ACCOMMODATION DECISION
ERD Case No. CR200801421


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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed June 26, 2009
robinma . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Mary Robinson petitions for commission review of the ALJ's decision, which dismissed Robinson's complaint because of her refusal to appear for a scheduled deposition and her subsequent refusal to comply with the ALJ's order that she cooperate with the respondent's attempt to reschedule her deposition.

The record shows that immediately after receiving notice of the respondent's intent to seek discovery in this case, that the ALJ sent a letter to Robinson on March 20, 2009, which provided Robinson information about discovery. For example, the ALJ's letter notified Robinson that a person must be willing to make reasonable accommodations to fulfill discovery requests. The letter also advised Robinson that restrictions may be placed on a person's right to conduct discovery, if the person against whom discovery is sought writes to the ALJ and states specific reasons for believing limitations should be imposed. Further, the letter notified Robinson that if a person unreasonably fails to comply with discovery, sanctions, including monetary or the dismissal of the party's claim, may be imposed for the party's failure to reasonably comply with discovery.

By letter notice dated April 1, 2009, counsel for the respondent served on Robinson a notice of deposition to be held at 11 a.m. on April 9, 2009, at the office of counsel's law firm. However, Robinson failed to appear for the scheduled deposition. Counsel notified the ALJ of Robinson's failure to appear and that counsel was willing to reschedule the deposition.

By letter to the parties dated April 10, the ALJ reiterated that a party must be willing to make reasonable accommodations to fulfill discovery requests. The ALJ stated that in the case of a deposition, a complainant must make efforts to appear at a noticed deposition. The ALJ stated that if the complainant had a problem with the date or location of the deposition, the complainant should have contacted respondent's counsel to resolve any dispute. Further, after noting that it was her understanding that counsel would be contacting the complainant to reschedule the deposition, the ALJ stated that the complainant was expected to make reasonable efforts to reschedule the deposition, and that if the complainant failed to make reasonable efforts to cooperate with the respondent's efforts to conduct a deposition the complainant's complaint may be dismissed or the complainant could be ordered to pay the reasonable attorney's fees and costs incurred by the respondent because of the complainant's failure to appear for the deposition.

In a letter to Robinson dated April 21, 2009, with a copy to the ALJ, counsel stated that she had been unable to reach Robinson at the telephone number listed on Robinson's complaint because it had been disconnected, and requested that Robinson call counsel to arrange for Robinson's deposition.

In a letter to the parties dated April 22, 2009, the ALJ emphasized that she expected Robinson to immediately contact counsel to schedule a deposition on a date before the hearing on April 30, 2009, and again reiterated the possibility of the dismissal of Robinson's complaint or payment of the reasonable attorney's fees and costs incurred by counsel because of the complainant's failure to appear at the scheduled deposition.

At the April 30, 2009 scheduled hearing on Robinson's discrimination complaint, counsel for the respondent moved for a dismissal of Robinson's complaint because of Robinson's failure to appear for her scheduled deposition and because Robinson had ignored the ALJ's letters informing Robinson that she must cooperate with counsel's efforts to depose her. The ALJ granted the respondent's motion and issued a written decision on May 1, 2009, dismissing Robinson's complaint with prejudice.

Dismissal of a complaint as a sanction for refusal to cooperate with discovery is obviously a drastic step, but it is warranted in certain cases. Reed v. Wurth USA (LIRC, 09/25/01). The ALJ's decision to dismiss Robinson's complaint was warranted in this case. Robinson failed to appear for a scheduled deposition, failed to heed the ALJ's repeated admonitions that she must make reasonable accommodations to fulfill the respondent's discovery requests, and she failed to comply with the ALJ's April 22, 2009 directive that she immediately schedule a deposition with respondent's counsel prior to the scheduled hearing on her complaint. Further, Robinson did so despite the ALJ's repeated notice to Robinson of the possible consequence of sanctions, including the dismissal of her complaint or payment of the reasonable attorney's fees and costs incurred because of her failure to comply with discovery, if she unreasonably failed to comply with the discovery requests or to make reasonable efforts to cooperate with the respondent's efforts to conduct a deposition.

As reason for her failure to permit discovery Robinson maintained at the hearing that "it was illegal for the respondent to ask her to provide any information". On appeal from the ALJ's decision, Robinson asserts that "I don't have to surrender my right[s] to anyone else['s] attorney for discovery..."

Robinson's contentions are wholly without merit. It was not "illegal" for the respondent to seek discovery from Robinson, nor would such discovery cause her to "surrender her rights". The Equal Rights Division's rules, Wisconsin Administrative Code § DWD 218.14(3), provide 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." Wisconsin Statute Section 804.01(1) provides that "Parties may obtain discovery by one or more of the following methods: depositions upon oral examination..." Further, section 804.01(2)(a), Stats., provides that "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter."

In addition, as the person from whom discovery was sought, Robinson was not without recourse to protection if there was any infringement of her "rights". For example, section 804.01(3), Stats., provides that "Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including but not limited to one or more of the following: 1. That the discovery not be had; 2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place; 3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; 4. That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters..." The ALJ had previously informed Robinson that restrictions could be placed on the respondent's right to conduct discovery if Robinson wrote to the ALJ with specific reasons for believing limitations should be imposed. Robinson never provided the ALJ with any valid reason for restricting the discovery sought by the respondent.

 

cc: Attorney Lynn M. Novotnak



[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/06/29