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

LIZANDRA FELICIANO RODRIGUEZ, Complainant

MILWAUKEE CHRISTIAN CENTER, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200801395, EEOC Case No. 26G200801108C


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 August 26, 2009
felicli . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Lizandra Feliciano-Rodriguez petitions for commission review of the ALJ's decision which dismissed her complaint due to her failure to comply with the respondent's discovery requests. The commission agrees with the ALJ's decision to dismiss Rodriguez's complaint.

The Equal Rights Division certified Feliciano-Rodriguez's discrimination claim to hearing following Feliciano-Rodriguez's timely appeal of an ERD officer's Initial Determination of no probable cause to believe that the respondent violated the WFEA by terminating her employment on the basis of disability or because she opposed a discriminatory practice under the Act.

By letter dated March 25, 2009, counsel for the respondent notified the ERD that the respondent intended to conduct discovery in the matter by serving upon Feliciano-Rodriguez, who was not represented by legal counsel, interrogatories, requests for the production of documents and a notice of deposition.

On April 8, 2009, counsel served upon Feliciano-Rodriguez respondent's First Set of Interrogatories, First Set of Requests for Production of Documents and a Notice of Deposition that set forth May 21, 2009, to take her deposition. Counsel notified Feliciano-Rodriguez that the answers to the interrogatories and the production of the documents requested were due within 30 days from the date of service of the interrogatories and requests for the production of documents.

On April 13, 2009, the Equal Rights Division issued a Notice of Hearing informing the parties that a hearing was scheduled for July 13, 2009, on Feliciano-Rodriguez's discrimination complaint.

On May 5, 2009, counsel served upon Feliciano-Rodriguez an Amended Notice of Deposition which set forth June 4, 2009, as the date for the deposition.

By letter to Feliciano-Rodriguez dated May 8, 2009 (with a copy to counsel), the ALJ provided her with information regarding the discovery process. The ALJ informed Feliciano-Rodriguez that she should immediately contact respondent's counsel if she could not be available for the June 4 deposition. The ALJ further informed Feliciano-Rodriguez that a person must be willing to make reasonable accommodations to fulfill the discovery requests, that sanctions, including monetary and the dismissal of the complaint, may be imposed if a party unreasonably fails to comply with discovery requests, and that restrictions may be placed on a person's right to conduct discovery if the person against whom discovery is sought provides the ALJ with written specific reasons for imposing limitations on the discovery. The ALJ also provided notice that the Division's rules require that the parties make sincere attempts to resolve discovery disputes between them before filing a motion to compel discovery or for protection and that the ALJ would not consider a discovery motion if a party has not made sincere attempts to resolve the discovery dispute.

In a letter to Feliciano-Rodriguez dated May 15, 2009 (with a copy to the ALJ), counsel requested that she immediately provide her overdue written responses to its interrogatories and requests for production of documents. Counsel informed Feliciano-Rodriguez that her responses to the discovery requests were due on May 11 and that if the responses were not received by May 22, 2009, counsel would seek appropriate relief and sanctions from the ALJ. Counsel also noted that per an April 10, 2009 telephone request by Feliciano-Rodriguez, that the date, June 4, 2009, had become the agreed-upon date for her deposition.

In response to counsel's May 15, 2009 letter, the ALJ sent a letter to the parties dated May 22, in which the ALJ repeated the earlier information provided in the May 8 letter sent to the parties.

By letter to Feliciano-Rodriguez dated May 26, 2009 (on which the ALJ was copied), counsel advised her to consider this its final request that she respond to the discovery requests in advance of counsel filing a motion to seek appropriate relief and sanctions. Counsel indicated that its most recent sincere effort to obtain responses to the discovery requested included making telephone calls to the number Feliciano-Rodriguez listed with her contact information on her complaint, which were answered by an automatic voice stating that the number had been disconnected or was no longer in service. Counsel further noted that at no time since Feliciano-Rodriguez had filed her complaint, including her April 10, 2009 telephone call to one of respondent's attorneys, had she provided counsel's office with an alternative telephone number at which she could be reached. Counsel advised Feliciano-Rodriguez that counsel would proceed to seek appropriate relief and sanctions if written responses to its discovery requests were not received by 2:00 p.m., Friday, May 29, 2009.

By letter to Feliciano-Rodriguez dated June 1, 2009, counsel sent a copy of its motion for sanctions against her for failure to respond to the respondent's discovery requests. This motion was filed with the ERD that same day.

After receiving counsel's motion, the ALJ sent a letter to the parties on June 3, 2009. In this letter, the ALJ informed Feliciano-Rodriguez that she should take immediate steps to respond to the respondent's discovery requests and take immediate steps to resolve any discovery disputes with respondent's attorney. The ALJ informed Feliciano-Rodriguez that in response to the respondent's motion, she should explain her failures to comply with the respondent's discovery requests and attempt to work out any discovery problems with the respondent's attorneys. The ALJ also instructed Feliciano-Rodriguez that she demonstrate that she has now complied with the respondent's requests for discovery and/or attempted to resolve any discovery disputes with counsel since counsel's filing of the motion. Further, the ALJ notified Feliciano-Rodriguez that if she fails to respond to the respondent's motion by June 15, 2009, the ALJ would dismiss her complaint because she failed to comply with discovery and because she failed to comply with the ALJ's order to respond to the respondent's discovery motion. The ALJ further noted that if Feliciano-Rodriguez filed a response to the respondent's discovery motion the ALJ would consider that response and make a decision on the respondent's motion.

In a faxed letter the ERD received from Feliciano-Rodriguez on June 15, 2009 (on which counsel was copied), Feliciano-Rodriguez asserted, among other things, that at the deposition scheduled for June 4, 2009,  (1)  counsel handed her a copy of respondent's June 1 motion "because (APPARENTLY)" counsel had not received her responses to respondent's discovery requests. (Emphasis in original.) Further, Feliciano-Rodriguez indicated that on June 15, 2009, she was using a fax at a local business to "produce and process [counsel's] requested information." Feliciano-Rodriguez attached a copy of the fax confirmation page as evidence that she had responded to counsel's discovery requests on June 15.

Later that same day, June 15, 2009, the ERD received a faxed letter from counsel for respondent stating that "at 1:37 this afternoon, Respondent received what purports to be" complainant's response to the respondent's discovery requests. In the letter, counsel stated that what Feliciano-Rodriguez basically provided was a copy of its own discovery requests with short cursory handwritten answers that fail to even arguably attempt to provide the information requested by respondent, and that Feliciano-Rodriguez failed to provide the respondent with any documents in response to its document request, instead, directing the respondent to ask itself for the documents requested. (As an example, counsel noted Feliciano-Rodriguez's response of "Ask MCC Admin" to requested discovery.) Further, counsel stated that Feliciano-Rodriguez neither provided explanation for her failure to comply with the respondent's discovery requests, nor explained her continuing failure to attempt to resolve any discovery problem she may have. Counsel stated that Feliciano-Rodriguez's continued failure and refusal to comply with respondent's discovery requests, in the face of the ALJ's June 3, 2009 order, can be construed as nothing short of the type of deliberate delay, obstruction and refusal to comply with discovery requests which justifies dismissal of her complaint.

On June 16, 2009, Feliciano-Rodriguez responded to counsel's June 15, 2009 correspondence by faxing a letter to the ALJ and counsel. In her correspondence, Feliciano-Rodriguez stated that she had mailed a response to counsel's discovery requests. Feliciano-Rodriguez asserted that "MCC's legal representation OBVIOUSLY is trying to put my credibility in jeopardy or redirect the attention to other area (sic). First, they said they didn't receive any response. Now, because I have proof that they received my responses, it is not enough information or that I am acting without good faith..." (Emphasis in original.) Further, Feliciano-Rodriguez asserted that it was impossible for her to provide something that was not in her possession, which is why she suggested that counsel should contact the MCC Finance director if documentation of her time off/absences were needed. Also, in response to respondent's request that she identify the witnesses she expected to call, Feliciano-Rodriguez asserted that this was very difficult for her to do when various employees of the respondent were being terminated or had resigned.

The ALJ addressed the matter in a letter sent to the parties dated June 24, 2009.

After reciting what had occurred up through June 16, 2009, with respect to respondent's attempt to conduct discovery the ALJ determined, among other things, the following: That Feliciano-Rodriguez was aware soon after May 22, 2009, that the respondent had not received any responses from her regarding its discovery requests, that she was late filing a response to the respondent's discovery requests and that she needed to make good faith efforts to resolve any discovery disputes with the respondent; that Feliciano-Rodriguez's June 15, 2009 letter fails to explain why she waited until the June 15 deadline to fax a copy of her responses to the respondent's discovery requests if she was aware as early as May 22, and certainly by June 4, that the respondent had not received her discovery responses; that with respect to Feliciano-Rodriguez's assertion that it was impossible to provide something that was not in her possession and suggestion that counsel "ask MCC admin", the ALJ noted that Feliciano-Rodriguez does not, for example, explain why the respondent would have documents concerning her doctor's opinion of her medical condition or her doctor's credentials, does not explain why the respondent would have copies of any personal notes, journals or similar documents written by her during the relevant period and does not explain why the respondent would have copies of any statements made by her or other possible witnesses concerning the allegations in her complaint. The ALJ stated that, generally, Feliciano-Rodriguez had failed to explain why she refused to provide the respondent with any documents in her possession that would be responsive to the respondent's requests.

The ALJ issued an Order of Dismissal on June 26, 2009, dismissing Feliciano-Rodriguez's complaint for failure to comply with the respondent's discovery requests.

DISCUSSION

Sanctions may be imposed where the non-complying party's conduct is egregious or in bad faith and without a clear and justifiable excuse. Josellis v. Pace Industries (LIRC, 06/21/02). Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step, but is warranted in certain cases. Reed v. Wurth USA (LIRC, 09/25/01). The dismissal of a complaint may be imposed as a sanction where the non-complying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demands. Josellis, supra.

As discussed above, Feliciano-Rodriguez engaged in a course of conduct evidencing a lack of any serious intention to cooperate in the discovery process. She initially refused to provide any response to the respondent's discovery requests. Only after repeated demands by the respondent for Feliciano-Rodriguez's responses to its discovery requests and repeated instruction by the ALJ that she was required to respond to the respondent's discovery disputes did Feliciano-Rodriguez submit any responses, and the responses that she did eventually provide were wholly inadequate. Furthermore, Feliciano-Rodriguez's non-compliance with the respondent's discovery requests was without a clear and justifiable excuse.

In her petition for review, Feliciano-Rodriguez states that she does not agree with the ALJ's decision for a number of reasons. For instance, Feliciano-Rodriguez appears to argue that despite respondent's assertion that it did not receive her discovery responses, that she submitted her discovery responses on time as evidenced by a fax confirmation showing that the ERD received the responses on June 15, 2009 at 1:44 p.m. However, there is no indication of any claim by the respondent that it did not receive Feliciano-Rodriguez's responses sent on June 15. What is at issue is the fact that it took until June 15, 2009 for Feliciano-Rodriguez to provide any responses to the respondent's discovery requests, which had been due on May 11, 2009, and that the responses Feliciano-Rodriguez did provide on June 15 were wholly inadequate.

Feliciano-Rodriguez also complains that the ALJ failed to accept her responses as adequate even though she had already informed counsel she was unable to provide the information and suggested that counsel request the documentation from its client. However, the ALJ had every reason not to accept Feliciano-Rodriguez's responses as adequate. For instance, as stated above, the ALJ noted that Feliciano-Rodriguez does not, for example, explain why the respondent would have documents concerning her doctor's opinion of her medical condition or her doctor's credentials, does not explain why the respondent would have copies of any personal notes, journals or similar documents written by her during the relevant period and does not explain why the respondent would have copies of any statements made by her or other possible witnesses concerning the allegations in her complaint. Feliciano-Rodriguez's further apparent contention that the respondent's belief that she failed to make a good-faith effort to provide adequate responses had nothing to do with her not making a good-faith effort because it was impossible for her to provide documentation that she was not in possession of, fails for the same reason. If Feliciano-Rodriguez did not possess a document requested by the respondent, she could have simply stated that. Instead, Feliciano-Rodriguez responded by indicating that counsel should ask its client for each and every one of the nineteen numbered document requests asked for by the respondent, even though the respondent could not possibly have had the requested documents.

Feliciano-Rodriguez also apparently claims she could not have identified any person she might call as a witness at the hearing because they had been fired by the respondent or had resigned. However, assuming for purposes of argument that some of Feliciano-Rodriguez's potential witnesses had been fired by the respondent or had resigned, this did not prevent her from identifying those persons as individuals she might call as witnesses at the hearing.

Finally, Feliciano-Rodriguez argues that the "[r]espondent is playing with the discovery process, trying to put the attention on another matter." Feliciano-Rodriguez argues that she "already informed...the Respondent that she will need an INTERPRETER to do any process, because her primary language is Spanish." (Emphasis in original.) These arguments also fail. Feliciano-Rodriguez's first mention of a need for an interpreter appears in her correspondence received by the ERD on June 15, 2009, and then it was mentioned as a need in connection with her deposition that was scheduled for June 4, 2009. Moreover, at no time during counsel's or the ALJ's repeated attempts to get Feliciano-Rodriguez to comply with the respondent's interrogatory and production of document requests did she ever indicate a need for an interpreter to comply with the discovery requests.

cc: Attorney Joseph E. Gumina


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


Footnotes:

(1)( Back ) Rodriguez's deposition was not taken on June 4, 2009, because on June 1 the respondent had filed a motion for sanctions against Rodriguez with the ALJ and requested a continuance of the agreed-upon deposition date pending the ALJ's ruling on its motion. Rodriguez had apparently not received a copy of the motion before appearing for the deposition.

 


uploaded 2009/09/02