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

JOHN P FORD, Complainant


ERD Case Nos. CR201002734, CR201003616, 
EEOC Case Nos. 26G20100059C, 26G201001513

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 record which was before the ALJ. Based on its review, the commission makes the following:


The January 6, 2012 Decision of the ALJ is set aside, and this matter is remanded to the Equal Rights Division for hearing on the issue of probable cause.

Dated and mailed July 24, 2012
fordjohnp . rrr : 110 : 5 


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


Facts -- This case arises from two complaints, the first (ERD Case No. 201002734) alleging race, color, sex, and disability discrimination in regard to terms and conditions of employment, and the second (ERD Case No. 201003616) alleging race, color, sex, disability, and protected participation (specifically, the first complaint) discrimination, in regard to terms and conditions of employment, and discharge. The investigation resulted in initial determinations of no probable cause, which were both appealed.  (1)

Notices of hearing were issued on August 26, 2011, setting both matters for a hearing (on the issue of probable cause) on October 27, 2011.

On September 25, 2011, the respondent served the complainant with its First Set of Requests for Admission, Written Interrogatories and Document Requests. There were 39 Requests for Admission, 15 Interrogatories, and 8 Document Requests.

On October 7, 2011, the respondent filed with the ERD the response which the complainant had served to respondent's discovery requests. The response which the complainant had served to respondent's discovery requests, began with this:

I admit all requests. Furthermore I intend to elaborate on these issues during hearing. Based on manager(s) did not make any effort towards notating any of my responses on certain admissions.

The response then continued with over 12 pages of handwritten text specifically addressed to the respondent's interrogatories, over a signature page dated October 4, 2011; it also included 17 pages of various documents, presumably intended by the complainant to address the respondent's document requests.

On October 17, 2011, the respondent filed a motion to dismiss the complaint, on the grounds that because the complainant had admitted all of the respondent's Requests for Admission, the matters thus admitted were established, and given those matters, as a matter of law the complainant could not possibly prevail at hearing on any of his claims of discrimination or retaliation.

At some time prior to October 27, 2011, the ALJ contacted the parties by telephone and informed them that he was dismissing the complaint and was therefore cancelling the hearing. (2)

On January 6, 2012, the ALJ issued a Decision which dismissed the complaints in this matter. That decision began by reciting the procedural history of the case up to the point of the respondent's filing of the motion to dismiss based on the complainant's responses to the admissions; it then set out 39 Findings of Fact which corresponded to the 39 Requests for Admission which had been part of the discovery directed to the complainant; and it then closed with Conclusions of Law that there was no probable cause to believe that there had been any discrimination as alleged in the complaint. The ALJ's decision included a Memorandum Opinion adopting the rationale that had been argued in respondent's motion to dismiss.

The complainant filed a timely petition for commission review of the ALJ's decision. In it, he said this about his admission of the respondent's Requests for Admission:

When I had received the respondent's First Set of Requests for Admission, Written Interrogatories and Document Requests I had provided a copy (that had been provided by Waukesha Health & Human Services) that stated I had a disability - depression disorder. Which I had notified the respondent of prior to first day of employment.

All other requests that the respondent served me in regards to admission I did admit these had happened in due part because I received paperwork on them. However, the respondent failed to provide any record of my testimony on behalf of these. And if I did not admit to these it would be a lie or in a court of law "perjury."

With the above statement's I am appealing the Decision by Administrative Law Judge John A. Grandberry. This is in relation to discrimination based on my race, my color, my sex, and my disability and because of a prior complaint I had filed against the Respondent.

The respondent filed an Answer to this petition, and subsequently filed a brief. It argues, as it did in its motion, that in light of Ford's discovery responses he cannot prevail on his complaints. As noted above, the respondent also raises arguments concerning the validity of Ford's appeals of the initial determinations. 

Discussion - The respondent's argument assumes that the matters contained in the discovery admissions must be accepted as given facts. However, under Wis. Stat. § 804.11(2), withdrawal of admissions may be permitted, when the presentation of the merits or action will be subserved thereby and the party who obtained the admission fails to show that withdrawal or amendment will prejudice the party maintaining the action or defense on the merits. Mucek v. Nationwide Communications, Inc., 2002 WI App. 60, 252 Wis. 2d 426, 26, 643 N.W.2d 98.

While § 804.11(2) indicates that this may be done "on motion," it is not necessary in every case that a formal motion be brought. Schmid v. Olsen, 111 Wis. 2d 228, 235 fn. 3, 330 N.W.2d 547 (1983). It was clear in this case that Ford opposed dismissal of his complaint based on his response to the admissions. The commission believes it is appropriate in the circumstances here to consider such opposition to be effectively a request for withdrawal of those admissions. In any event, whether Ford's opposition to dismissal of the complaint was understood by the ALJ as a request to allow withdrawal of the admissions, it is so understood by the commission, and in the exercise of its comprehensive authority to decide issues presented in cases before it for review, it will address that issue.

The inquiry into whether presentation of the merits will be subserved by allowing withdrawal of admissions involves consideration of whether the admission is contrary to the record in the case. Mucek, 2002 WI 60 27 n4. See also, Schmid, 111 Wis. 2d at 238 (rejecting plaintiff's assertion that the withdrawal of the admission did not serve the presentation of merits of the case, since liability was a key issue in the case, and aside from the defendant's failure to respond to the requests for admission, there was no indication that it was not a disputed issue).

With respect to the question of prejudice, the prejudice contemplated by the statute is not simply that a party would be worse off without the admissions; rather, the party benefiting from the admission must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party was held to its admissions. Mucek, 2002 WI 60 30.

The commission has found, on a number of occasions, that discovery admissions should be considered withdrawn under the law and principles described above. See, Swanson v. Kelly Services, ERD Case No. CR200203683 (LIRC, Oct. 13 2004), Jackson v. Quality Carriers, ERD Case No. CR200400448 (LIRC, Mar. 17, 2006), Nabors v. Kelley IT Resources, ERD Case No. 200500651 (LIRC, Oct 6, 2006), Shawn Johnson v. Roma Pizza II, ERD Case No. 200603187 (LIRC, Feb.25, 2009). It so finds here.

The commission is satisfied that in this case, presentation of the merits of the action will be subserved by permitting withdrawal of the admissions. This is so, the commission believes, because it is clear that the significant issues in this case -- whether the subjective motives of the respondent's agents in the actions taken and decisions made concerning Ford were affected by discriminatory bias - are, in fact, in dispute. In his complaints, in his submissions to the investigator, and most significantly in his responses to the respondent's interrogatories, Ford has made it clear that he believes, and contends, that the respondent did act with such motives. The admissions requested are plainly contrary to the record of the positions Ford has taken in this case. See, Mucek, 2002 WI 60 27 n4.

Furthermore, the commission is satisfied that allowing withdrawal of the admissions will not prejudice the respondent in maintaining its defense against the action, in the manner and to the extent contemplated by the statute. As noted above, the prejudice contemplated by the statute is prejudice in addition to the inherent consequence of having to prove something that would have been established under the admissions. There is no basis to find here that Ford's response to the admissions requests induced the respondent to forego any further discovery it would otherwise have sought to engage in; in any event, even if that were the case, the problem is remediable by allowing any such further discovery now. Apart from that, there is no basis to find any other prejudice. Respondent will simply be in the position it was in before the admissions.

The commission believes that dismissal outright, based on discovery admissions, is simply not appropriate in this particular case. It is simply too clear, that the complainant's "admission" of the matters in question was not a real admission that there was no discrimination, but was instead an artifact of his understanding about the process. The complainant appears to have been simply attempting to acknowledge undeniable factual details about what occurred, but with an understanding that he would get his day in court to explain why he believed (as he clearly does) that the reasons those things occurred, and the motives of the agents of the respondent who were involved, involved discriminatory bias. Rationalizing dismissal without a chance for hearing here, on the theory that the complainant actually admitted that he was not discriminated against, when he clearly believes and contends he was, would involve relying on a wilful fiction. The commission is unwilling to do that on the record before it here.


NOTE: In its brief to LIRC, the respondent raised two other arguments.

One argument was, that the complainant never actually filed an appeal of the no probable cause determination in ERD Case No.CR201003616 (EEOC Case No. 26G201100059C).

The commission does not agree. As the respondent's brief notes, on January 7, 2011, the ERD investigator issued written no probable cause determinations in regard to both of the complainant's complaints, ERD Case No. 201002734 (EEOC Case No. 26G201001513C) and ERD Case No. CR201003616 (EEOC Case No. 26G201100059C). Within the applicable deadline, the complainant filed an appeal which stated he was appealing the decision "in regard to all cases against my former employer Briggs & Stratton" and that "[t]he cases include ERD Case CR201002734 + EEOC Case 26G201001513C" (emphasis added). The information contained in this appeal was sufficient to allow the ERD to identify the cases to which it was directed. In the context in which the filing of this appeal occurred, it was obvious from the language of the appeal ("all cases against my former employer Briggs & Stratton," which "include" one specified case), that it was intended as an appeal of both of them. The complainant's reference to the case number for one of the cases clearly did not negate the obvious intent to appeal both cases.

The respondent's other argument was, that the complainant's appeal must be dismissed because it did not "state specifically the grounds upon which the appeal is based."

The commission also does not agree with this argument. It is true, that the rules of the ERD express a requirement that a request for a hearing on the issue of probable cause "shall state specifically the grounds upon which the appeal is based." See, Wis. Adm. Code § DWD 218.08(1). The question, however, is whether an otherwise sufficient and timely request for hearing must be dismissed if it does not do so. The commission concludes, that dismissal of the complaint is not required in these circumstances.

While the ERD's rule does state that a request for a hearing "shall" state the grounds upon which it is based, it does not state that the complaint must be dismissed if the requirement is not met. The commission interprets the use of the word "shall" in Wis. Adm. Code Ch. DWD § 218.08(1) as directory rather than mandatory, and as not necessarily requiring dismissal of the complaint if the direction is not complied with.

Another factor the commission takes into account, is that the ERD responded to the filing of Ford's appeal by issuing a formal Certification to Hearing, which is the step mandated by its rules when a timely appeal is filed. See, Wis. Adm. Code Ch DWD § 218.08(3). Considering that the ERD thus effectively accepted the appeal as an appeal, it would be anomalous to dismiss it on the theory that it did not meet the ERD's requirements for an appeal.

Certainly, the rule would provide a basis for an ALJ to order a complainant to provide a statement of such grounds, if a respondent were to claim prejudice in responding to such an appeal. But that did not happen here. After Ford filed his appeal of the no probable cause determinations in February, 2011, the respondent filed no objection that the appeal did not state grounds. It did not raise an objection to the appeal until September, 2011, and even at that point its objection contained no claim that it was prejudiced to any extent by the absence of a statement of grounds in the appeal.

cc: Attorney Brian J. Waterman,  Buelow Vetter Buikema Olson & Vliet LLC

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(1)( Back ) The respondent raises separate arguments as to the sufficiency of the appeals of the initial determinations. These arguments are addressed in the NOTE infra at p. 5.

(2)( Back ) This fact is not directly disclosed by anything in the ERD's file. However, it is asserted as a part of the procedural history of the matter in respondent's brief to the commission.


uploaded 2012/07/27