JOHN M DUNCAN, Complainant
INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission issues the following:
The Decision and Order of the administrative law judge dated July 31, 2012, is set aside, and this matter is remanded to the Equal Rights Division for further proceedings in accordance with this decision.
Dated and mailed September 11, 2012
duncajo . rrr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
On January 27, 2010, the complainant filed a discrimination complaint, ERD Case No. CR201000448, in which he alleged that he was denied hire in retaliation for protected conduct. On October 4, 2010, the Equal Rights Division (hereinafter "ERD") issued an initial determination finding no probable cause to believe that discrimination occurred. The complainant filed a timely appeal of the adverse initial determination and the matter was certified for hearing.
On May 10, 2010, the complainant filed a second discrimination complaint, ERD Case No. CR201002723, in which he alleged that his union membership was terminated based upon his race, disability, and in retaliation for protected conduct. On October 20, 2010, an initial determination finding no probable cause was issued with respect to that matter. The complainant again filed a timely appeal of the determination, and that matter was also certified for hearing.
The complainant has been unrepresented by counsel throughout these proceedings. On October 22, 2010, the respondent filed a "Notice of Intent to Seek Discovery," pertaining to ERD Case No. CR201000448, with the complainant and the ERD. On or about December 16, 2010, the respondent served on the complainant a set of requests to admit, a set of interrogatories, and a set of requests to produce documents. A copy of the discovery requests was also sent to the ERD.
On November 4, 2010, the respondent filed a second "Notice of Intent to Seek Discovery," pertaining to ERD Case No. CR201002723, followed on or about December 21, 2010, by a set of requests to admit, interrogatories, and requests to produce documents. The discovery requests all notified the complainant that he was to provide the requested information within 28 days. However, the complainant did not submit any responses to the respondent's discovery requests within that time period.
On March 16, 2011, at which point the complainant had still not responded to the discovery requests, he contacted the respondent's attorney by telephone. A letter from the respondent's attorney dated March 29, 2011, indicates that during that telephone call the complainant expressed a lack of desire to continue to pursue his cases before the Equal Rights Division. The respondent's attorney advised the complainant that, if this was truly his intention, he should notify the Department of Workforce Development immediately.
On May 16, 2012, the parties received notice that both cases were to be heard by administrative law judge John Gelhard. A week later, on May 23, 2012, the respondent sent the complainant a letter reminding him about the discovery requests and asking him to contact it within seven days to discuss his failure to respond. The complainant did not do so.
On June 8, 2012, the respondent submitted a Motion to Dismiss or, in the alternative, a Motion to Compel Production. The motion to dismiss was premised on the fact that the complainant had not responded to the respondent's requests to admit. The respondent argued that, treating those matters as deemed admissions, the complainant could not state a claim upon which relief could be granted. In the alternative, the respondent requested an order compelling the complainant to comply with discovery. A copy of the respondent's motions were served on the complainant. However, the administrative law judge did not conduct a telephone conference with the parties regarding the motions, did not order a briefing schedule, and did not otherwise provide the complainant with an opportunity to respond to the motions.
On June 12, 2012, four days after the respondent filed its motions, the administrative law judge issued an order granting the motion to compel and notifying the complainant that he had until July 15, 2012, to comply with the respondent's discovery demands. The administrative law judge's order indicated that the motion to dismiss would be held in abeyance pending compliance with the order compelling discovery. The administrative law judge's order did not explain what the consequences would be if the complainant failed to comply.
The following day, June 16, 2012, the administrative law judge received a letter from the complainant requesting that he reject the respondent's motion to dismiss the complaint. The complainant made a variety of arguments, none of which pertained to discovery. The administrative law judge responded to the complainant by letter on the same day. The administrative law judge's letter addressed some of the complainant's arguments and reiterated that the motion to dismiss was being held in abeyance pending compliance with the discovery order.
On July 19, 2012, the respondent sent a letter to the administrative law judge, with a copy to the complainant, in which it stated that it had not received any response to its discovery request. The respondent also indicated that it received a letter from the complainant, dated June 22, 2012, which indicated that he intended to withdraw his complaint at the ERD and proceed in federal court and in which the complainant requested a withdrawal form. The respondent pointed out that it had not received any notice that the complainant had withdrawn his complaint. It therefore requested that the administrative law judge rule on its motion to dismiss.
On July 23, 2012, the administrative law judge, who had not received a copy of the complainant's June 22 correspondence requesting a withdrawal form, mailed the complainant a withdrawal form. On July 30, 2012, the administrative law judge received a signed withdrawal form from the complainant for ERD Case No. CR201000448. The form did not reference ERD Case No. CR201002723. The complainant wrote on the withdrawal form:
"I being under duress and not given the due process requested do sign so I can purse [sic] at Federal Forum. I only asked for Justice and this is what I receive. . . ."
That day, July 30, 2012, the administrative law judge sent the parties a letter
stating that, because it appeared the withdrawal form was not executed freely,
knowingly and voluntarily, it could not be accepted, and that a decision on the
respondent's motion to dismiss would be issued "forthwith." The next day, July
31, 2012, the administrative law judge issued a decision granting the
respondent's motion to dismiss (1) and dismissing the above-captioned cases with prejudice.
Wisconsin Administrative Code § DWD 218.14(3) provides that the scope, methods, and use of discovery in actions under the Wisconsin Fair Employment Act "shall be the same as set forth in ch. 804, Stats."
Wis. Stat. § 804.12 states, in relevant part:
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 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. . . . (emphasis added)
Dismissal of an action or proceeding, while permitted by statute, is a harsh sanction for a discovery failure, appropriate only if the non-complying party's conduct was egregious and evinced an intent not to cooperate with the discovery process. Betts v. Bay Area Medical Center, ERD Case No. CR200701640 (LIRC Sept. 19, 2008), citing Sentry Insurance v. Davis, 2001 WI App 203, 247 Wis. 2d 501, 634 N.W.2d 553 (2001) and Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991); Reed v. Wurth USA, ERD Case No. CR200004147 (LIRC Sept. 25, 2001).
In deciding whether dismissal is an appropriate sanction to impose on an unrepresented party, the commission has taken into account whether the administrative law judge made adequate efforts to assist the party in understanding and complying with the discovery process prior to dismissing. For example, in Roen v. Allen Bradley Rockwell Automation Inc., ERD Case No. CR2006022025 (LIRC Aug. 19, 2008), the commission affirmed the dismissal of a complaint based upon the complainant's failure to comply with discovery, noting that the administrative law judge only dismissed after attempting 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. By contrast, the commission was unwilling to affirm a dismissal of a complaint for failure to comply with discovery where the administrative law judge did not make a reasonable effort to guide an unrepresented complainant through the discovery process, and where it did not appear that the administrative law judge had provided the complainant with an opportunity to respond to the motions to compel and the motion to dismiss. See, Betts v. Bay Area Medical Center, ERD Case No. CR200701640 (LIRC Sept. 19, 2008).
In the instant case, the complainant was unrepresented by counsel, but received no assistance or guidance in complying with discovery. The case file indicates that no administrative law judge was assigned to the case for well over a year after the respondent filed its Notice of Intent to Conduct Discovery, followed by its discovery requests, and the complainant was left to figure out how to navigate these requests on his own. Once an administrative law judge was assigned to the case, at which point the respondent filed its motion to compel discovery, the administrative law judge summarily granted the motion without providing the complainant any opportunity to respond. There is nothing in the file to indicate why the complainant was not complying with discovery, whether he had objections to any of the specific items requested by the respondent, or whether he understood what was expected of him in the discovery process. Moreover, when the administrative law judge issued his order compelling discovery, he failed to notify the complainant about the consequences of failing to comply with that order, and the complainant had no reason to believe that his case would be dismissed if he did not act.
In addition to the failures discussed above, the commission considers it troubling that, after the complainant submitted a written request to withdraw one of his complaints, which the administrative law judge declined to accept on the ground that it did not appear to have been executed voluntarily, the administrative law judge immediately dismissed the entire proceedings based on discovery failures, without giving the complainant a further opportunity to submit a voluntary withdrawal request or, in the alternative, to cooperate with the respondent's discovery requests.
Based on all the circumstances, the commission is unpersuaded that the complainant's failure to comply with discovery was so egregious and intentional as to warrant dismissal of his complaint. The complainant, who was not represented by counsel, received no guidance from the administrative law judge with respect to the demands of the discovery process, and was given no opportunity to explain why he was not cooperating with discovery or whether he intended to do so. The commission therefore considers it appropriate to set aside the dismissal of the complaint and to give the complainant a further opportunity to participate in the discovery process.
cc: Attorney Brian Hlavin
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(1)( Back ) The respondent's motion to dismiss was premised on a theory that the complainant had failed to state a claim upon which relief could be granted, and was not a motion to dismiss for failure to comply with discovery. The administrative law judge did not address the substance of the respondent's motion, and his order purporting to grant the motion to dismiss was technically incorrect.