Wis.LIRC ER Decision: Segedy, Chris - November 6, 1998 - Dismissal of complaint for failure to comply with discovery - non-receipt of notice of the discovery request due to move to a new address

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

CHRIS SEGEDY, Complainant

CONNIE E AUSTIN, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701508, EEOC Case No. 26G971038

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision dismissing the complainant's complaint for failure to comply with the respondent's discovery request. The complainant filed a timely petition for review by the commission.

Based upon its review of the matter, the Labor and Industry Review Commission concludes that dismissal of the complainant's complaint is not warranted and therefore issues the following:

ORDER

The administrative law judge's order of dismissal is set aside and this matter is remanded to the Equal Rights Division for further proceedings on the complainant's complaint of alleged sexual harassment, and alleged termination of employment based on sex, sexual orientation and because of opposition to a discriminatory practice under the Act.

Dated and mailed: November 6, 1998
segedch.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant appealed an initial determination which found no probable cause to believe that the respondent engaged in or permitted sexual harassment thereby discriminating against her in the terms or conditions of her employment, and no probable cause to believe the respondent had terminated the complainant's employment because of her sex and sexual orientation or that it had discharged the complainant because she opposed a discriminatory practice under the Act.

Notice was then issued on November 24, 1997, that the case was certified to hearing, and on November 26, 1997, pursuant to Wis. Admin. Code � ILHR 218.14 (2), the respondent filed notice with the Equal Rights Division's Hearing Section that it intended to take discovery of the complainant, who was not represented by legal counsel, by deposition.

Following issuance of the notice of hearing on December 9, 1997 (setting forth February 19, 1998 as the hearing date), the division received written notice from the respondent on December 12, 1997 (by letter dated December 11, 1997), that it would take the oral deposition of the complainant on December 30, 1997. The case file shows that on December 11, 1997, the respondent also mailed a Notice of Deposition to the complainant regarding the deposition scheduled for December 30, 1997. This notice was mailed to the complainant at the following address:

1523 South 70th Street
West Allis, Wisconsin 53214

In a letter dated December 17, 1997, counsel for the respondent advised the ALJ that she had a scheduling conflict with the date proposed for the hearing, and indicated a willingness to participate in a conference call with the complainant to discuss her scheduling conflict.

In a letter to respondent's counsel and the complainant dated December 19, 1997, the ALJ advised the respondent's counsel that he had no objection to postponing the matter, but that he had no hearing dates available until April 1998. The ALJ asked the parties to advise the division as to their availability in April 1998. The ALJ's letter was also addressed to the complainant at her West Allis address. In a letter to the ALJ dated December 29, 1997, respondent's counsel advised the ALJ of the dates she was available in April 1998.

On December 30, 1997, the complainant failed to appear for the deposition, and that same day the respondent filed a Motion for Dismissal and Award of Sanctions.

Subsequently, in a letter to the ALJ dated January 26, 1998, counsel for the respondent advised the ALJ that it had come to the attention of the respondent that the complainant may have moved, and that her new address was believed to be "2860 N. Bremen St., Milwaukee, Wisconsin, 53212." Counsel further advised the ALJ that "We do not know when this move took place or whether the complainant has placed a forwarding order with the post office." The respondent's January 26 letter was received by the division on January 27, 1998.

Apparently the ALJ had previously sent a letter to the complainant dated January 22, 1998. Except for what is revealed through the complainant's response to the January 22 letter (and the ALJ's dismissal decision referred to below), the exact contents of the ALJ's letter is not known since there is no copy in the case file. In any case, in her response letter, dated January 31, 1998, and received by the division on February 3, 1998, the complainant states, among other things, that: (1) She had just received the ALJ's January 22 letter that day, i.e., January 31, and therefore could not respond by January 29, 1998 (apparently as requested by the (ALJ); (2) that a copy of the Motion to Dismiss that the ALJ stated was enclosed in his letter was not included with the letter; and that the ALJ stated that this motion was filed for her "failing to comply with discovery," but she did not understand this statement and to date has responded to all correspondence. Further, the complainant requested that the ALJ send her "an explanation of what `discovery' is and how (the respondent's) attorney feels that I have not complied." The complainant stated that "This seems impossible as I do not know what it is and have not received any correspondence/documentation describing such and what it was that I was supposed to comply to."

On the same date that the complainant's response letter to the ALJ's January 22, 1998 letter was received by the division (February 3, 1998), the ALJ sent a letter to the complainant by certified mail. This letter was sent to the complainant at her West Allis address, despite the respondent's January 26, 1998 written notice to the ALJ that the complainant may have moved and was believed to be living at 2860 N. Bremen Street in Milwaukee, Wisconsin. In the February 3 certified letter, the ALJ states, among other things, that: (1) he is perplexed as to why she is just now receiving his letter of January 22, 1998; (2) that if his letter was not sent to her current address to please advise the department as to where she could be reached; (3) that he had enclosed a copy of the respondent's Motion to Dismiss and Motion for Costs and that she had ten days from the date of the certified letter to show cause why the motions should not be granted; and (4) that failure to appear can subject the party failing to appear to sanctions up to and including the dismissal of the complaint. Finally, the ALJ's certified letter stated that the complainant must take steps to correct this matter by contacting the respondent's attorney to reschedule this matter or make other arrangements acceptable to the respondent's attorney and that, "This you must do within ten days of the date of this letter. Failure to comply with discovery or show cause why you can not comply will lead to the dismissal of your complaint." (Underscoring in original)

By letter dated February 16, 1998, the respondent notified the ALJ that it had not received any telephone call or written correspondence from the complainant and therefore renewed its Motion for Dismissal and Award of Sanctions.

In a decision dated February 27, 1998, the ALJ issued a decision dismissing the complainant's complaint for failure to comply with discovery. After referencing the respondent's December 11, 1997 letter of intent to depose the complainant and her failure to appear for the deposition on December 30, 1997, the ALJ's decision states that he had advised the complainant to contact the respondent's attorney and make arrangements to comply with the request to take her deposition twice, on January 22, 1998 and again on February 3, 1998--the second time giving her ten days to comply with the request to take her deposition--and that as of "February 19, 1997" (sic), she had failed to contact the respondent's attorney and make arrangements for complying with the respondent's discovery request, and she had not responded to him with an explanation of why she could not comply.

The case file contains the February 3, 1998 certified letter that the ALJ had sent to the complainant with the post office stamp, "Return to Sender." Someone has crossed out the West Allis address and written "FWD TO: 2860 No. Bremen 53212" It is also stamped, "RECEIVED Mar-5 1998" at the division's Milwaukee office.

The complainant filed a timely petition for commission review of the matter. In her petition, the complainant disputes being served the December 11, 1997 letter regarding the taking of an oral deposition, or in any way being notified or contacted regarding said deposition. Further, the complainant states that she did receive a letter from the ALJ on January 31, 1998 (apparently referencing the aforementioned January 22, 1998 ALJ letter), but she asserts that this letter did not instruct her to contact the respondent's attorney, it only stated that he would dismiss the case unless he heard from her with additional information as to why he should not. The complainant states that she responded to the ALJ's letter on January 31, 1998, stating that she had not received his letter until that date, and asking the ALJ for an explanation of "discovery" and how it was that she had not complied since she had not received any correspondence in this regard. The complainant states in her petition that to date, she has not received a reply from the judge and had not received a copy of the Motion to dismiss that was to have been included in his letter.

The complainant further states that she never received the February 3, 1998 letter sent by the ALJ. The complainant asserts that she would be glad to comply with the respondent's discovery request if she knew what the discovery request was, how to comply, and, apparently, had she received correspondence in this regard.

Wisconsin Administrative Code � ILHR 218.14(4) provides that the ALJ has the same authority to impose sanctions as the court has under ch. 804, Wis. Stats. The ALJ thus has authority which includes the authority to dismiss a proceeding based upon a party's failure to attend their own deposition. Wis. Stat. � 804.12(4). Under this statute, however, a prerequisite to imposing dismissal of a proceeding as a sanction is that the party be served with a proper notice of the deposition. The complainant has asserted, and the case file seems to support, her contention that she never received notice that the respondent wished to depose her. It appears that the reason is that the complainant had moved to a new address. There is nothing in the case file which indicates exactly when the complainant moved, or whether she had ever provided the division with notice of her new address. Nonetheless, even assuming that the complainant had been remiss in not notifying the division of her new address, by letter dated January 26, 1998, from the respondent, which was before the ALJ's certified letter of February 3, 1998, the ALJ was put on notice that it was believed the complainant had moved to 2860 N. Bremen Street in Milwaukee. There is no evidence that any attempt was made by anyone to reach the complainant at the Bremen Street address to notify her about contacting the respondent to schedule a deposition, or face dismissal of her complaint, however. The respondent's argument that it is now immaterial whether or not the complainant received any of the correspondence from the ALJ or the respondent, because she failed to respond to a certified letter from the ALJ within 20 days, is incorrect. The respondent's letter of January 26, 1998, which the case file shows as being stamped received by the division on January 27, 1998, itself indicates that the complainant had a new address and that it was 2860 N. Bremen Street.

Moreover, the case file shows that by letter to the ALJ dated January 31, 1998, the complainant had expressed a lack of understanding as to what discovery was, and requested an explanation as to what it was. The case file does not indicate that the complainant was ever sent a response. It is not known whether or not the envelope in which the complainant mailed her January 31, 1998 letter provided a return address showing her new address, since it is not contained in the case file. (However, one must wonder how the complainant expected to ever receive a response unless she had provided some indication as to where she lived.)

The respondent has asserted that the complainant is not naive as to the division's administrative process because she had pursued a claim of sex discrimination and retaliation against a former employer. However, it is not known if discovery was involved in that case.

The respondent has also asserted that "...Ms. Segedy has mysteriously received enough of her mail so that she was able to file several appeals on the last available date..." It is not clear as to what these "several appeals" are. Insofar as this case is concerned, there were only two appeals filed by the complainant. One, involving an appeal of the initial determination, which was filed by the complainant on the last day. The second, which involved an appeal from the ALJ's dismissal decision issued on February 27, 1998, was filed with the division on March 19, 1998, the day prior to the last day to file an appeal. It could simply be that at the time the initial determination was issued, the complainant still resided at the West Allis address. Further, in view of the fact that the ALJ's certified letter, which was received back at the division on March 5, 1998, shows a forwarding address of 2860 N. Bremen Street for the complainant, it could simply mean that by that time the complainant's mail, including the ALJ's February 27, 1998 decision, was then being forwarded to the complainant's new address.

The circumstances presented in this case do not establish that dismissal of the complainant's complaint is warranted. Under ch. 804, Stats., the courts will sustain the sanction of dismissal "if there is a reasonable basis for the circuit court's determination that the noncomplying party's conduct was egregious and there was no `clear and justifiable excuse' for the party's noncompliance. Once these factors are established, it is within the circuit court's discretion to dismiss the action." Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 276-277, 470 N.W.2d 859 (1991). In this case, it is apparent that the respondent realized, and the ALJ should have also realized shortly after January 26, 1998, that the reason for the complainant's failure to comply with the respondent's discovery request was because she had not gotten notice of the discovery request due to her move to a new address. Moreover, when the complainant did get word on January 31, 1998, that the respondent was seeking to take discovery, she requested in a letter dated that same day to the ALJ advice as to what discovery was, but never received a response. Nor did she receive, as the case file shows, the ALJ's February 3, 1998 certified letter.

cc: ROBIN L VAN HARPEN

Appealed to Circuit Court. Affirmed April 22, 1999.

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