Wis.LIRC ER Decision: Vandeveer - October 27, 2000 - Procedure -- dismissal of complaint for complainant's failure to appear at hearing; complainant's filing of 'complaint' with Legal Section chief objecting to appearing and asking for investigation of ALJ did not provide good cause for non-appearance, and neither did her claim that she had not received various pieces of faxed correspondence from the ALJ

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

TRACEY R VANDEVEER, Complainant

FORT JAMES CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199902300, EEOC Case No. 26G991408

BACKGROUND

The complainant, Tracey Vandeveer, filed a complaint with the Equal Rights Division on June 18, 1999, alleging retaliation. Vandeveer alleged in this complaint that the respondent had held up her long-term disability claim because she had a pending complaint against the respondent. The June 1999 complaint was designated as ERD case no. 199902300. Vandeveer amended her complaint in this case, after which the division issued an initial determination on December 23, 1999, finding no probable cause to believe that Vandeveer had been discriminated against. Vandeveer filed an appeal and this case was certified to hearing by letter dated January 6, 2000. The division issued a notice of hearing scheduling ERD Case no. 199902300 for a hearing on May 9, 2000, in Green Bay, Wisconsin.

Previously, in April 1999, Vandeveer had filed a complaint against the respondent alleging discrimination on the basis of sexual orientation, sex and retaliation in a complaint the division designated as ERD case no. 199901002. The division issued an initial determination of no probable cause in this case, which the complainant appealed, and on October 4, 1999, the division certified this case to hearing. Vandeveer subsequently filed a written request to amend her complaint in ERD Case no. 199901002 on or about November 16, 1999, to add a claim of disability discrimination. Vandeveer alleged the following: That her supervisor, Marilyn Peters, was aware that she had multiple sclerosis and that stress could exacerbate her condition, that the stress of having been subjected to discrimination by Peters caused a flare-up of her MS, leaving her totally disabled, that it was clear Peters' goal was to terminate her employment, and that "when Peters couldn't do it voluntarily or involuntarily, she managed to accomplish her obvious goal constructively."

By letter addressed to the ALJ dated November 29, 1999, regarding ERD Case no. 199901002, the respondent filed a motion to dismiss the amended complaint, or alternatively to remand the amended complaint for investigation. As reason for the motion to dismiss the amended complaint, the respondent argued that it failed to state a claim for relief under the Act because Vandeveer was merely alleging that discrimination on the basis of gender and sexual orientation caused the MS flare-up, and that there were no facts suggesting Vandeveer suffered any adverse employment action as a result of an alleged disability. Counsel characterized the request to amend the complaint as "meritless and is either a delay tactic or as an exercise of the infamous `throw everything on the wall and hope something sticks' strategy."

In a letter to the ALJ dated November 30, 1999, the complainant objected to the respondent's assertions about her claim. The complainant stated that her request to amend the complaint was done after conferring with an attorney, who told her that if her disability was used as a means of terminating her employment or the respondent did not reasonably accommodate her disability, that also constituted discrimination.

Counsel for the respondent advised the ALJ that the respondent stood by its motion to dismiss in a letter to the ALJ dated December 6, 1999.

The ALJ sent a letter to Vandeveer (and respondent's counsel) also dated December 6, 1999, wherein the ALJ stated that he did not understand what Vandeveer was alleging the respondent did in regard to her disability that was discriminatory, that as it stood now he did not view her allegations as sufficient to warrant amending the complaint, and that if the complaint were to be amended the department rules required that it be remanded for investigation. The ALJ asked Vandeveer to file any response within 10 days of his letter.

Apparently, the complainant responded to counsel's December 6 letter in a letter to the ALJ dated December 8, 1999. In this letter the complainant stated, in part, as follows:

"...Fort James had a `duty to accommodate' me because of my disability, which they knew was aggravated by stress. I told Ms. Peters on at least two occasions that stress - especially stress that I cannot control or walk away from - can have devastating consequences on my condition, which, indeed, it has.

Ms. Peters was obligated by law to remove or at the very least diminish the excessive and undue stress that she was applying by her hostility toward me because of my sexual orientation. However, not only did she not accommodate my disability by eliminating the undue and excessive stress, she added to the stress, thereby disabling me and preventing me from working. Therefore, by not accommodating my disability - which she knew was aggravated by stress, she is guilty of discrimination based on disability..."

On January 3, 2000, the respondent's counsel sent a fax to the ALJ regarding ERD Case no. 199901002, in which it was noted that there had been no decision yet on respondent's November motion to dismiss, or a subsequent December 21, 1999 motion to dismiss on the ground that Vandeveer failed to participate in her own litigation. (Counsel asserted that she was unable to complete discovery or depose Vandeveer due to Tracey Vandeveer's unwillingness to prosecute and/or participate in her claim.) The fax stated that per the ALJ's voice mail, since he would be out of the office from December 17, 1999, until January 4, 2000, there would be no decision on the motions to dismiss until sometime after January 5, and therefore a request was being made to postpone the January 12, 2000 scheduled hearing.

By letter sent to Vandeveer and counsel for the respondent dated January 6, 2000, the ALJ referenced his December 6, 1999 letter regarding ERD Case no. 199901002, stated that Vandeveer had been given 10 days to supply additional information regarding her request to amend her complaint, that Vandeveer had failed to supply any additional information relative to amending that complaint, and that the request to amend the complaint was therefore denied. (The ALJ's letter also addressed the respondent's motions to dismiss.)

There is nothing in the file that indicates that a notice pertaining to the complainant's right to appeal from the ALJ's denial of the complainant's request to amend her complaint was included with the ALJ's January 6 letter.

On February 29, 2000, Vandeveer was scheduled for a deposition in connection with ERD case no. 199901002. However, on that date, Vandeveer's representative, Peggy Vandeveer, sent a fax to the ALJ stating that Tracey Vandeveer appeared for the deposition but had what was considered to be an emotional breakdown upon realizing that Marilyn Peters would be present. Peggy Vandeveer requested that the complainant's complaint in this matter be dismissed as the complainant had decided to retain an attorney and pursue her rights in federal court. She stated that she was writing to the EEOC to request a right to sue letter.

On March 16, 2000, the ALJ issued an order dismissing ERD case no. 199901002 with prejudice based on the complainant's representative's request to withdraw the complaint. A notice regarding appeal rights would not normally be included in this type of order, and there is nothing in the case file that indicates anything to the contrary.

Apparently, on April 17, 2000, Peggy Vandeveer learned from someone at the EEOC that the complainant's disability discrimination claim in connection with case no. 199901002 was not a part of her case before the EEOC. Peggy Vandeveer also apparently faxed a letter to the ALJ on April 17, asserting that the complainant's complaint "was amended" in that case to include disability discrimination on November 14, 1999, that the respondent had objected and wanted the disability portion remanded for investigation, and that the ALJ had never made a ruling. Peggy Vandeveer requested that the ALJ either keep the disability portion of the case open before the ERD so that it could be heard, or that the entire matter be sent to the EEOC. Peggy Vandeveer argued that the ALJ could not simply dismiss the disability claim, leaving the complainant no state or federal remedy.

In a letter to the complainant dated April 18, 2000, the ALJ enclosed a copy of his December 6, 1999 letter regarding the complainant's request to amend her complaint in ERD Case no. 199901002, stated that he had not received a response to his request for additional information regarding the request to amend the complaint, and that as there had been no response, he considered that matter final.

On April 23, 2000, Peggy Vandeveer sent a letter by fax and mail to the ALJ, objecting to his considering the matter regarding amendment of the complaint final. In that letter she stated that neither she nor the complainant ever received the ALJ's December 6, 1999 letter. Peggy Vandeveer's letter also stated that she was enclosing a copy of her December 8, 1999 letter response to the respondent's December 6, 1999 letter, which clarified why the respondent was liable (for disability discrimination). Peggy Vandeveer again asserted that the ALJ could not simply consider the matter final, as he never made a ruling on her request to amend the complaint. Further, included in her letter was the assertion that by never issuing an order the ALJ denied Tracey Vandeveer her right to appeal that decision. Peggy Vandeveer requested that the ALJ respond via registered or certified mail.

Peggy Vandeveer subsequently sent by fax and mail a letter to the ALJ dated April 25, 2000, in which she made a request pursuant to DWD 218.16 (Disqualification of the administrative law judge) that the ALJ withdraw as the ALJ in ERD case no. 199902300. As reasons therefore, Vandeveer complained about the ALJ's alleged inadequate knowledge of procedure in ERD Case no. 199901002, asserted that she believed the ALJ had mishandled that case, and she claimed that the ALJ was lacking in communication skills based on some correspondence received from the ALJ in ERD Case no. 199901002.

By letter dated April 25, the respondent moved for a dismissal of ERD case no. 199902300 on the ground that the complainant had failed to respond within 30 days to the respondent's First Set of Interrogatories to the complainant dated March 17, 2000.

By letter dated April 27 counsel for respondent opposed the complainant's request that the ALJ disqualify himself.

Apparently, on May 8, 2000, the ALJ notified the parties by fax that he had to postpone the scheduled May 9 hearing in case no. 199902300 because he had to attend to a matter involving his daughter. In response to a May 11, 2000, inquiry by the ALJ about a possible future hearing date, the parties responded with possible dates on May 15. On May 17, the division mailed a notice of hearing change to the parties noting that the previously scheduled May 9, 2000 hearing date had been changed to June 14, 2000. (The time for the hearing was also changed to start one-half hour later and the building in which the hearing was to be held was also changed, but the hearing remained in Green Bay.)

Peggy Vandeveer sent a letter by fax and mail dated May 26, 2000, to the ALJ, stating that she was enclosing a copy of the letter she had sent to him on April 23, 2000, regarding ERD case no. 199901002. Vandeveer's letter states that she had requested a ruling on the amended complaint in her April 23 letter, and that he had not yet done so. She requested that the division either remand the disability portion of ERD case no. 199901002 for investigation or that a probable cause hearing be conducted on that issue. Peggy Vandeveer advised the ALJ that should he have any questions, comments or require further information, that she could be reached by "phone/fax/address (by certified mail)" as shown on her correspondence.

In a letter faxed to the ALJ dated May 30, 2000, regarding ERD case no. 199902300, Peggy Vandeveer asserted, among other things, that the respondent's response to her request for the production of documents was withholding vital information and that although the complainant is prepared as much as is possible without the necessary and requested information for the hearing, the complainant requests a postponement of the hearing date until the respondent complies with the requested information. (Specifically, what the complainant was objecting to was that the respondent had not supplied long-term disability application forms for the individuals the respondent named as going on long-term disability leave. Apparently, the complainant believed that these application forms would help her establish that the respondent had retaliated against her by holding up her long-term disability application claim. The problem, however, was that the complainant had not made a request for production of the applications forms.) Peggy Vandeveer also complained about the respondent's objections to her request for production of "All documents, notes, e-mail, faxes, etc., relating to Tracey R. Vandeveer's long-term disability benefits." Among other reasons, the respondent objected to this request because it called for the production of documents protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. Peggy Vandeveer also requested that the ALJ issue a subpoena requiring a Ms. Jody Neta to appear for the hearing. Peggy Vandeveer's correspondence again indicated that she could be contacted by fax, phone or certified mail.

On May 31 Peggy Vandeveer sent another fax to the ALJ requesting subpoenas for 14 named individuals in ERD case no. 199902300. Also, she again requested a subpoena for Jody Neta, and stated that she would be filing additional documents/exhibits to be used at the hearing by the June 4, 2000 deadline. She again stated that she could be contacted by fax, phone or certified mail as shown on her correspondence.

Peggy Vandeveer faxed and mailed a letter to the ALJ and respondent dated June 4, 2000, which contained complainant's potential witnesses and documents. In that letter she complained that the ALJ had not yet ruled on many issues in ERD case nos. 199902300 and 199901002, nor sent the subpoenas she had requested. Peggy Vandeveer indicated that she could be contacted at the telephone number shown on the correspondence.

On June 5, the ALJ faxed an order to the parties, which addressed a number of issues that had been raised. The ALJ denied the respondent's motion to dismiss the complainant's complaint in ERD case no. 199902300 (the April 27, 2000 motion to dismiss on the ground that the complainant failed to respond to the respondent's First Set of Interrogatories), and he denied the complainant's request that he disqualify himself as ALJ in ERD case no. 199902300.

The ALJ stated that with respect to ERD case no. 199901002 not being dismissed (apparently meaning formally, by order), that he had requested the complainant to supply additional information regarding her request to amend her complaint, as he did not view her allegation sufficient to warrant amending the complaint, and that he did not receive anything further from her relative to amending the complaint. Further, the ALJ stated that clearly by his letter to the parties dated January 6, 2000, the complainant had been informed that her request to amend her complaint was denied, that it was not until the complainant's fax dated May 26, 2000, that he became aware she had not received his December 6, 1999 letter, and that while he had received numerous pieces of correspondence from the parties he had been unable to locate any correspondence from the complainant dated December 8, 1999.

The ALJ's order denied the complainant's May 26, 2000 letter request for a remand or a probable cause hearing in ERD case no. 199901002. The ALJ indicated that that matter was withdrawn and dismissed based on the complainant's intent to obtain a right to sue letter from the EEOC, and that he had no authority to reopen that matter.

The ALJ's order stated that the fourteen subpoenas Peggy Vandeveer had requested were enclosed.

Finally, the ALJ's order stated that he would try and address any remaining issues prior to the hearing.

There is nothing in the case file that indicates that a notice was included regarding the complainant's right to appeal the ALJ's June 5, 2000 order.

In a letter faxed to the ALJ dated June 12, 2000, Peggy Vandeveer complained that she had not received a ruling on her request that he withdraw as the ALJ in ERD case no. 199902300, nor had she received the subpoenas requested, and that the complainant assumes unless she heard otherwise, that the June 14 hearing will have to be postponed until the requested subpoenas were sent.

On June 13, 2000, Peggy Vandeveer faxed a letter to Pamela Rasche, the Equal Rights Division's Hearing Section Chief. After accusing the ALJ of "gross dereliction of duty" and stating that because of communication problems in a prior case that the ALJ had been asked to "contact her by fax/phone or certified mail," Vandeveer stated in part, as follows:

"...Today, June 13th, Complainant received a telephone call from Judge Grandbery regarding an alleged order he claims to have faxed to Ms. Vandeveer on June 5th. Ms. Vandeveer never received the fax. Nor did she receive a copy of the order by certified mail..Complainant did not receive the alleged fax of June 5th - nor could Complainant have received that fax, because Complainant has recently acquired Privacy Manager on her phone service, and faxes from unidentified numbers (as I found out today) cannot come through to Complainant's home telephone without the caller first dialing Complainant's PIN. Judge Grandberry was not given this PIN, and that was an oversight on Complainant's part. However, the Judge not only didn't bother to then send the `order' of June 5th by certified mail, but he insists that the fax of June 5th went through to Complainant. Complainant, as already stated, did not/could not receive that fax."

Peggy Vandeveer requested that Rasche "investigate the alleged fax sent by Judge Grandberry on June 5th to Complainant," and requested that she remove Grandberry from the case, asserting that he was "unable to conduct a fair hearing." Peggy Vandeveer also stated that "Complainant is hereby informing the Division that she will not be attending tomorrow's scheduled hearing." She also stated that she had complained in ERD case no. 199901002 about the "lack of cooperation from Judge Grandberry to Judge Grandberry, but to no avail." (1 )

In a letter faxed to the ALJ also dated June 13, 2000, and responding to Peggy Vandeveer's June 12 faxed letter to the ALJ regarding her assumption that the June 14 hearing would be postponed, counsel for the respondent objected to a postponement of the hearing. Counsel noted, among other things, that the respondent was in receipt of the ALJ's order dated June 5, which resolved several issues, including the complainant's request for the ALJ's withdrawal from the case and enclosing the complainant's requested subpoenas, and that the parties should have been prepared for the hearing by May 9, 2000, when the matter was originally scheduled.

On June 22, 2000, the ALJ issued an order in ERD case no. 199902300, stating that the complainant failed to appear at the time and place scheduled for hearing, and dismissing the complainant's complaint in this matter based on her failure to appear for the hearing. The ALJ's order also notes that in response to a postponement request by the complainant's representative, he left a telephone message advising the complainant to appear at the hearing "and that we would attempt to resolve all of the outstanding discovery problems." A notice of appeal rights was attached to this decision.

In an appeal letter dated June 23, 2000 (but not received by the division until June 30, 2000), Peggy Vandeveer raised several arguments on behalf of the complainant regarding the ALJ's order dismissing the complaint in ERD case no. 199902300. They are as follows: 1) The ALJ stated that there would be a "pre-hearing conference" on June 14, 2000, not a hearing in his telephone message and therefore the complainant "did not fail to appear for the hearing; she failed to appear at a `pre-hearing conference.' "; 2) the complainant has still not received the subpoenas or orders/rulings the ALJ claims to have faxed to her on June 5, and that it is impossible for her to receive a fair hearing if she does not receive the ALJ's orders/rulings and the requested subpoenas; 3) the complainant notified the division on June 13 that she would not attend "the meeting of June 14th, pending the outcome of an investigation by Judge Grandberry's supervisor, Pamela Rasche"; 4) the ALJ claims to have faxed orders/subpoenas to the complainant on June 5, but this was impossible as was stated in her June 13 letter to Rasche, and that it makes no sense that the ALJ can dismiss the complaint for failure to appear when he was notified through her letter to Rasche that she would not be in attendance at the pre-hearing conference; and 5) even if the complainant did fail to appear, the ALJ was informed on June 13 that she would not appear, and that it was for good cause because she had not received necessary subpoenas, rulings and orders related to the case.

The commission, having considered the complainant's arguments regarding her failure to appear for the scheduled hearing in ERD Case no. 199902300, agrees with the administrative law judge's dismissal of her complaint in this case.

Accordingly, the commission issues the following:

ORDER

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

Dated and mailed October 27, 2000
vandetr.rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission agrees with ALJ's dismissal of the complainant's complaint in ERD Case no. 199902300, largely for reasons the respondent has asserted in support of affirmance of the ALJ's dismissal of this case. Those reasons are namely as follows: That on June 13, 2000, the ALJ had left the complainant a telephone message informing her that he intended on appearing in Green Bay as scheduled, and whether the ALJ stated that the purpose for his appearance was to conduct a pre-hearing conference and/or a hearing was irrelevant, the complainant simply ignored the ALJ's message; that the complainant's filing of a complaint with Rasche on June 13 stating that she would not attend the hearing pending the outcome of an investigation of the ALJ by Rasche did not provide the complainant good cause for not attending the hearing because she waited until the day before the hearing to contact Rasche and unilaterally postponed the hearing; that the complainant did not have good cause not to appear at the hearing based upon her claim that she had not received various pieces of faxed correspondences from the ALJ because the complainant admitted in her June 13 correspondence to Rasche that it was due to her failure to notify the ALJ of the installation of Privacy Manager on her phone service that caused her not to receive the faxed correspondences from the ALJ, that the ALJ had done exactly what the complainant asked him to do by sending correspondence via fax or certified mail; and moreover, that the parties should have been ready to go forth with the hearing by May 9, the original scheduled hearing date, since the ALJ had postponed the May 9 hearing unexpectedly late in the day on May 8.

NOTE: The complainant's failure to appear for the scheduled June 14, 2000 hearing is the only matter properly before the commission. The only "order" that the ALJ ever issued referencing the complainant's request to amend her complaint in ERD Case no. 199901002 was issued on June 5, 2000, which would have therefore required that the complainant file an appeal with the division by June 26, 2000. No such appeal was filed with the division by that date. Furthermore, while the complainant has asserted that she never received the ALJ's June 5th order, the complainant has also admitted that the reason for her failure to receive this "order" was due to her failure to notify the ALJ of the installation of Privacy Manager on her phone service.

However, the Equal Rights Division may want to give further consideration to the complainant's request to amend her complaint in ERD Case no. 199901002. In correspondence to the ALJ and the commission dated July 10, 2000, regarding ERD case no. 199901002, the complainant's representative continues to complain that the complainant still had not yet received a ruling from the ALJ regarding her request to amend her complaint in that case. In the July 10 correspondence the complainant argues that the ALJ never issued a ruling or order on the amendment of her complaint per DWD 218.03(6) and DWD 218.05(1). (The first provision provides, in part, that an amended complaint shall be dismissed if it does not meet the requirements of DWD 218.05(1); the second provision concerns the department's obligation to review complaints to determine whether the complainant is protected under the Act, whether the respondent is subject to the Act, whether the complaint states a claim for relief under the Act and whether the complaint was timely filed.)

The commission notes that DWD 218.10, which allows an ALJ to dismiss a complaint based upon the conditions set forth in DWD 218.05(1) "or for any other procedural basis after the case is certified to hearing under s. DWD 218.07(2) or 218.08(3)" (i.e., the issuance of an initial determination of probable cause or a timely appeal from a no probable cause determination, respectively), states that "If the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order and a notice of appeal rights shall be sent by first class mail to the last known address of each party.") Based on her claim that the ALJ never issued a ruling or order, the complainant argues that "the amended portion must either remain with the ERD and be remanded for investigation and/or hearing - or it must be sent along to the EEOC so that Complainant is able to pursue this matter in Federal Court."

Further, the commission notes that the complainant has asserted that she clarified the basis for her request to amend her complaint in a December 8, 1999 letter to the ALJ. The commission also notes, as well, however, that arguably the amendment of the complaint sought by the complainant fails to state a claim under the Fair Employment Act, and that none of the complainant's correspondence answers the question of whether or not she received the ALJ's January 6, 2000 letter denying the complainant's request to amend her complaint.

Nevertheless, it also appears that the complainant was never apprised of the fact that she could appeal the ALJ's denial of her request to amend her complaint.

Thus, there are two possible reasons why the division may want to give further consideration to the complainant's request to amend her complaint in ERD Case no. 199901002: 1) It appears that the complainant was never apprised of the fact that she could appeal the ALJ's denial of her request to amend her complaint; and 2) DWD 218.10, which allows an ALJ to dismiss a complaint based upon the conditions set forth in DWD 218.05(1) "or for any other procedural basis after the case is certified to hearing," states that "If the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order and a notice of appeal rights shall be sent by first class mail to the last known address of each party." (Underlining emphasis added). (Whether the ALJ's denial of Vandeveer's request to amend her complaint is viewed as occurring by the issuance of his January 6 letter or the June 5 order, both amounted to a dismissal of the amended complaint request under DWD 218.10.)

cc: Peggy Vandeveer
Amy Katarincic

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Footnotes:

(1)( Back ) Apparently Rasche did not respond to Peggy Vandeveer's June 13 fax before the scheduled June 14, 2000 hearing.