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


DAWN PRIEGEL, Complainant

GARDEN WAY/BOLENS/ TROY BILT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9353040, EEOC Case No. 26G932094


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter on December 21, 1995, dismissing the complainant's complaint of alleged sex and handicap discrimination. The ALJ also denied a motion for sanctions against one of the respondent's attorneys. The complainant filed a timely petition for review. (1)

Based upon a review of the record in its entirety, and having considered the petition and the positions of the parties, the Labor and Industry Review Commission hereby issues the following:

FINDINGS OF FACT

1. The complainant, Dawn Priegel, filed a complaint in July 1993 against the respondent alleging sex and handicap (polyarteritis nodosa) discrimination with respect to her privileges of employment, terms or conditions of employment and layoff. Included in her complaint was the claim that all employes on layoff had been recalled except for her.

2. The respondent, represented by the Hartford, Connecticut law firm of Kainen, Starr, Garfield, Wright & Escalera, denied the allegations of discrimination in a response to the complaint dated August 30, 1993. Responding to the complainant's claim involving her layoff, Attorney Kainen stated that the reason for the complainant's layoff was a lack of available work within the scope of her medical restrictions. Kainen admitted that all employes on layoff except for the complainant had been recalled.

3. The Equal Rights investigating officer subsequently requested additional information from Kainen regarding, among other things, the full nature of the medical condition the complainant had which resulted in restrictions. In a letter dated November 17, 1993, Kainen responded stating that "While it is not clear that Ms. Priegel ever actually notified the Company that she has polyarthritis noduesa (sic) the Company certainly is aware that she has this condition. It is important to note, however, that the Complainant's work restrictions did not arise from her polyarthritis noduesa. Rather they arose from a 1990 (sic) work-related shoulder injury..." Kainen further noted that the complainant had received a 5% permanent disability award for her shoulder injury under worker's compensation in 1992, and that her June 1992 work restrictions were tightened on May 19, 1993, whereby she was to work with her arms at bench top level and not lift or push over 10 pounds for a period of 4 weeks. Kainen stated that after receiving the May 1993 restrictions, the company concluded there was no work available within the scope of these new restrictions and placed the complainant on layoff. Additionally, Kainen noted that since the layoff the company had received no change in the restrictions, and, in fact, that at the time of her layoff the complainant indicated that the restrictions had been made permanent. The respondent did not assert that the handicap discrimination claim was barred by the Worker's Compensation Act's exclusive remedy provision.

4. On April 7, 1994, the division issued an initial determination finding no probable cause to believe there had been discrimination on the basis of sex with respect to privileges of employment or discharge(layoff). Probable cause was found to believe Priegel had been discriminated against on the basis of sex with respect to terms or conditions of employment, and on the basis of handicap with respect to privileges of employment, terms or conditions of employment and discharge.

5. The no probable cause determination was not appealed. On August 24, 1994, a notice of hearing was issued on the claim of sex and handicap discrimination with respect to terms or conditions of employment, and handicap with respect to privileges of employment and discharge. November 4, 1994, was set forth as the date of hearing.

6. In its answer filed with the division on September 9, 1994, the respondent again denied discriminating against the complainant. As its affirmative defense, the respondent alleged that sections 111.32(8) and 111.34 of the Act (definition of handicap and handicap provision) were unconstitutionally vague, overbroad and unenforceable.

7. On October 21, 1994, Miguel Escalera, Jr., from the law firm retained by the respondent, subpoenaed the complainant to appear for a deposition to take place on October 31, 1994 (and continuing on November 1 if necessary), and to bring with her a broad range of documents, including her mental health records and social security disability records.` The subpoena directed the complainant to bring, among other things, all documents created or generated by medical doctors, psychiatrists, psychologists, or therapeutic counselors from January 1, 1990, to the present: (1) relating to the diagnosis or treatment of the complainant for conditions of or relating to depression, anxiety, emotional distress, or mental disorder of any kind; and (2) referring in any manner to voluntarily or involuntarily committing the complainant to any mental or psychiatric treatment facility, and all documents relating in any manner to the complainant's ability to work or function in a factory environment. The subpoena directed the complainant to bring all documents relating to the complainant's receipt of social security disability payments, including but not limited to all certifications or statements by the complainant regarding her disability and all records evidencing her applications or requests for social security payments. Apparently, Escalera had contacted the complainant's attorney, Sandra Graf, on October 17 or 18, 1994, about the scheduling of this deposition.

8. On October 24, 1994, Graf faxed a Motion to Quash Discovery to the ALJ. Graf asserted three bases for the motion: (1) that the respondent's discovery request violates the Fair Employment Law as it came after the time-frame for disclosing witnesses and exhibits (2); (2) that a deposition 3 days before the hearing on the merits was unfair and did not give the complainant proper due process as it contained a very broad document request that would be extremely time-consuming and burdensome to put together at a time when the complainant should be preparing for her hearing; and (3) that the respondent itself had not complied with the complainant's request for her entire personnel and employment records/documents, including medical records.

9. On the same day that Graf faxed her motion to quash, Escalera wrote to the ALJ opposing the complainant's motion. Escalera asserted that on October 18, 1994, Graf had agreed to the deposition and that it be taken on October 31, 1994. He asserted that subsequently on October 24, Graf called and explained that "her client doesn't want to attend a deposition." Escalera asserted that the deposition was properly noticed and scheduled, and complied with the rules governing hearings. Apparently referencing the informational sheet that the division attached to the notice of hearing, Escalera asserted that "After a case has been certified to a hearing (which occurs before the notice of hearing is sent) the parties may engage in pre-hearing discovery..." Escalera asserted that the rules governing the hearing process contained no specified discovery cut-off date. Finally, Escalera asserted that Graf had been provided the complainant's entire personnel file, but insists on additional documents pursuant to the Freedom of Information Act and has been advised that the respondent requested archived medical records to respond to that request and that those documents will be provided to her.

10. Graf responded to Escalera's letter asserting that his response had completely mischaracterized the communications with her. Graf asserted that Escalera had indicated that he intended to take the complainant's deposition on October 31, asked if her calendar was clear on that date, and that she indicated that she would block out that date on her calendar but she never agreed to the deposition, and in fact indicated that she could not guarantee the presence of her client. Graf stated that blocking time out on her calendar was done in case a judge, in his discretion, interpreted the statute as allowing discovery so late in the proceedings. Further, Graf denied attempting to avoid the deposition on the grounds that the complainant simply did not wish to be deposed.

11. On October 25, 1994, the ALJ issued an order denying the Motion to Quash Discovery, stating, "I have not been made aware of any prior discovery disputes, and I therefore can make no ruling on them. As far as any evidentiary or other problems (sic) may arise as a result of the deposition, they will be dealt with as they occur."

12. The complainant and attorney Graf appeared for the deposition, which commenced at 8:55 a.m. on October 31, 1994, bringing the documents that were in their possession that had been requested. At the deposition, the complainant refused to sign a release which authorized the respondent to obtain her mental and psychiatric care records. Attorney Graf stated that disclosure of the complainant's mental health records was a matter "that would be more appropriately addressed in front of the judge." The complainant did sign a release for the respondent to obtain her social security records, however.

13. Although apparently unknown to Graf at the time, Escalera had already arranged to have a local attorney from Wisconsin (Jan Schroeder) subpoena the complainant's therapist, Mary Marisola, to testify at the November 4, 1994 hearing and to bring with her all of the complainant's mental health records, with the exception that Marisola would not have to attend the hearing if she delivered said records on or before November 2, 1994. Marisola had not been listed as a potential witness for the hearing.

14. In correspondence dated November 2, 1994, Attorney Escalera submitted a motion to compel based upon the complainant's failure to produce, among other things, her mental health records at the October 31 deposition.

15. As a preliminary matter at the scheduled November 4, 1994 hearing, Attorney Graf made a motion to have all the evidence and testimony from the deposition excluded on the grounds that it was untimely, irrelevant, and because the respondent itself had failed to comply with the complainant's discovery requests. Attorney Escalera moved to compel the complainant to produce her mental health records from 1990, her complete medical records and a taped cassette recording, or in the alternative, for dismissal of the complaint for failure to comply with the discovery request.

16. With respect to timeliness of the discovery, Attorney Graf first noted that Ind 88.14 provides that the scope, method and use of discovery shall be the same as set forth in ch. 804, Stats., and argued that under sec. 804.09(2) the complainant must be given 30 days to respond to the discovery request. She stated that Escalera did not provide 30 days to respond. Secondly, Graf argued that Escalera had ample time to follow the proper procedure to obtain documents and that the deposition was simply a vehicle to obtain documents he had otherwise failed to get timely. Graf noted that under Ind 88.14(1) the ALJ may exclude witnesses and exhibits not identified in a timely fashion. Graf next argued that the respondent had waived its right to discovery by failing to comply with the complainant's discovery requests. Graf asserted that the respondent had not been cooperative, had ignored her letters inquiring about documents, and held on to documents until 4 days prior to the hearing and then only supplied part of the requested documents. Finally, Graf discussed her third basis for exclusion of the testimony and evidence, asserting that it was confidential and irrelevant. Graf argued that the documents pertaining to the complainant's mental health status constituted privileged confidential communications, and that the physician-patient privilege is to be strictly construed in Wisconsin. Further, Graf argued that the complainant's mental health records were irrelevant because the respondent had not pled anything regarding her mental health and did not bring this up until the deposition, and because this was not a claim involving compensation for emotional distress since she is not entitled to any damages for emotional distress under the Act.

17. Escalera's response to Graf's motion that deposition evidence be excluded was to suggest that the evidence was rebuttal evidence for which there was no requirement that notice be provided. (Sec. Ind 88.14 provided that witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing need not be filed with the division or other party by 10 days prior to the day of hearing.) With respect to the complainant's request for documents, Escalera asserted that Graf's law firm had represented the complainant in her worker's compensation claim and therefore already possessed her medical records. Further, he asserted that Graf was provided the complainant's medical records at the complainant's deposition. Additionally, Escalera asserted that the complainant's therapist had advised the company of mental restrictions that had prevented the complainant from working and this was also a factor the respondent considered when the complainant was laid off. Escalera asserted that the respondent did not possess copies of the complainant's psychiatric records and was unable to obtain them so a request for them was attached to the notice of deposition. When asked why he waited so long to do this, Escalera asserted that he understood that the complainant's psychiatric records could be used for cross-examination and impeachment. Responding to the complainant's claim of confidentiality, Escalera asserted that in a case where mental status was at issue, the complainant could not claim confidentiality and contend that these problems do not exist. Escalera also asserted that the complainant herself had listed her entire "medical file" as an intended exhibit at the hearing, but conceded that the term "medical file" did not mean "psychiatric file."

18. In response to Escalera's assertions, Graf stated, among other things, that she had never heard or known that the complainant's mental status played any part in why she was terminated, that this came as a complete shock.

19. In later discussion about why the respondent's answer did not mention that the complainant's mental health was a reason for her layoff, Escalera stated that the answer "may have been inartfully drafted."

20. Escalera subsequently argued that there was a contemporaneous memo at the time of the complainant's layoff by the respondent's director of human resources, Jack Seeger, who made the layoff decision, detailing his discussions with 3 of the complainant's therapists. Graf responded that this constituted blatant hearsay, and that none of the therapists had been listed as witnesses. Escalera then argued that surely Seeger should be allowed to testify as to why he did what he did. Graf responded that the time for Seeger to say what he did was during the investigation or in the respondent's answer, and that she had no knowledge of this reason for the complainant's termination.

21. After listening to the above arguments, the ALJ ruled that he was "granting the motion of the complainant in full." The ALJ stated that the deposition documents were untimely and therefore excluded as the respondent had ample time to pursue discovery. Further, he stated that the respondent's answer made no mention of the complainant's mental health as reason for her layoff and that the complainant was entitled to rely on the answer filed by the respondent. The ALJ also stated that the complainant's oral deposition testimony pertaining to her mental health was to be excluded too, as the complainant could be prejudiced by this as well. Finally, the ALJ stated that testimony pertaining to the complainant's mental health by Seeger would be precluded, as it was not in the respondent's answer. The ALJ did not expressly rule on the respondent's motion to compel or dismiss. It appears that the respondent's motion to compel was implicitly denied under the same rationale used for excluding the deposition testimony and evidence: the respondent had waited too late to obtain the complainant's mental health records and had made no mention of them in its answer to the complaint.

22. At the close of the November 4 hearing the ALJ recapped what had been decided, stating that no documents produced at the deposition pertaining to mental health would be allowed, that no deposition testimony relative to the complainant's mental health would be allowed, and that, "any documents obtained as a result of the deposition were also excluded."

23. Following the ALJ's rulings, the parties engaged in settlement negotiations for a period of time on November 4 before ultimately concluding that they would like additional time for negotiations. No testimony was taken on November 4, 1994.

24. The respondent subsequently submitted a "Notice of Exception to the Evidentiary Rulings made on November 4, 1994 and Request for Reconsideration" dated November 10 to the ALJ. The ALJ denied the respondent's request for reconsideration in a letter dated November 16, 1994. The complainant submitted a memorandum in opposition to the request for reconsideration, requesting that reconsideration be denied and that the complainant be awarded appropriate costs and the respondent sanctioned for its actions, but this memorandum was apparently not received by the ALJ until after he had denied the respondent's request for reconsideration. The following were included as relief requested by the complainant: disqualification and/or sanctions against the respondent; costs and fees connected with the respondent's discovery and motions; and immediate return of any and all copies of the complainant's records that had been obtained. Attached to the complainant's memorandum was a copy of the subpoena issued to Mary Marisola which showed that it had been served at 8:35 a.m. on October 31, 1994.

25. The attempt at settlement was unsuccessful. The hearing on the complainant's claim was continued on January 25, 1995. Shortly before the hearing, the law firm of Shindell & Shindell entered a notice of appearance on behalf of the respondent. Attorney Anne Shindell represented the respondent at the hearing. The complainant testified at the hearing, and she called several other witnesses to testify.

26. The complainant testified that she was employed by the respondent approximately five years. She began as a laborer and later worked as an assembler.

27. The complainant was diagnosed as suffering from polyarteritis nodosa in May 1989 while employed by the respondent. The complainant described this condition as a blood vessel disease which causes bead-like cysts in her veins and arteries. She stated that symptoms of the disease included fatigue, swelling and blood clots. She described the disease as very rare and very fatal, but stated that no medical restrictions were placed on her as a result of this condition. The complainant stated that she has been on chemotherapy as treatment for her condition for five years. She stated that treatment of the disease has resulted in massive swelling of her face and one leg. Apparently, the swelling of her leg has caused her to walk with a slight limp. The complainant continued to work while undergoing treatment.

28. In June 1991, the complainant sustained a work injury while lifting some boxes and heavy equipment, resulting in a 5% permanent partial disability to her shoulders. She returned to work around December 1, 1991, as a laborer on the paint line prehang station in the Fabrication Department. This job involved hanging of small parts and hooks on wire racks. Apparently prior to being placed on the prehang station job, a video tape was made of the job and viewed by one of the complainant's treating physicians, Dr. Rotter, and Jack Seeger, the respondent's director of human resources. The complainant had work restrictions which permitted her to perform frequent lifting of items weighing 10 lbs. at bench level and occasional lifting of items weighing 20 lbs. at bench level. The complainant apparently worked on the second shift when she returned to work.

29. The complainant continued to work at the prehang station until June 3, 1993, when she was laid off. Seeger told the complainant that there was no work available within her work restrictions. Based on her seniority, the complainant apparently had recall rights until June 1995, but had not been recalled as of the January 1995 hearing date.

30. The complainant asserts that she was treated differently than others as a result of the physical changes caused by her chemotherapy treatment for polyarteritis nodosa. She states that while on second shift she was harassed by Scott Blakeslee, a lead worker who supplied parts to Worker's on the paint line. In particular, the complainant asserts that after she would be sent to work in another part of the plant, Blakeslee would call her on the P. A. system requesting that she return to her work station, or send her to another area of the plant, causing her to walk a great distance. She states that Blakeslee would be laughing or just staring at her as she walked to the other parts of the plant. She states that Blakeslee would do this frequently. The complainant also asserted that Blakeslee called her names such as "cripple" and "witch."

31. The complainant asserts that sometime prior to March 1993, about the same time that she was being harassed by Blakeslee, she was also being harassed by Gary Brown, a lead worker in the paint department. She asserts that the things Brown did to her included "hanging moons," "whipping her the bird," shouting at her, telling her that "graffiti was okay" and asking her to curtsy.

32. It was not established that Blakeslee or Brown had supervisory status over the complainant, as it was not shown that either had authority to hire, transfer, discipline or discharge Worker's. Further, the complainant admitted that she never told management about Brown's conduct. However, at least insofar as the asserted conduct of Blakeslee, the complainant states that she complained to management, including Charlie Copp, the second shift foreman (and also Seeger, she believed), but that absolutely nothing was done. The complainant states that she complained to management in either January or February 1993.

33. While the complainant asserts that absolutely nothing was done after her complaint about Blakeslee, there is evidence that following her complaint she was transferred, with agreement by her union, to the first shift in early March 1993. The complainant has asserted that Seeger told her that her shift changed because she had refused to disclose medical information following an "incident" on March 1, 1993. However, a letter dated March 8, 1993, from one of the complainant's doctors (Dr. Scott) addressed to Jack Seeger, that was admitted into evidence, reads in part as follows: "After lengthy discussions with Dawn, her counselor and yourself, it appears that a majority of her difficulties at work may involve personality conflicts while working second shift. After further discussion with you, it is my recommendation that Dawn be voluntarily transferred to the day shift in an attempt to avoid potentially volatile situations. Note however, that Dawn needs to agree to this decision before action can be taken."

34. The complainant evidently does not agree that her difficulties with Blakeslee were the result of a personality conflict as she asserts that the respondent never informed her that Blakeslee had been disciplined for any of the conduct she had complained about. She also asserts that while she accepted the transfer, she did not really want to do this as it resulted in a great deal of changes in her lifestyle.

35. A coworker of the complainant's, Vernon Remich, testified that he heard Worker's calling the complainant names and that he heard Blakeslee call the complainant a "cripple" and "witch." Remich also testified that the complainant was paged more frequently than others, and that at times he observed Blakeslee laughing after paging the complainant. However, Remich also testified that Blakeslee would page for the complainant to assist him (Remich) when he needed help, that Blakeslee called the complainant on the P.A. system "When they're mad at each other," and that the complainant and Blakeslee engaged in "mutual disagreements," with the complainant sometimes calling Blakeslee names.

36. Randi Berth, who served as a union representative, was also called to testify by the complainant. Berth testified that she was aware that the complainant was having problems with Blakeslee. Berth further testified, however, that although not directly involved at the time, it seemed like nobody really knew what was happening, and the union and others suggested that the two be separated to eliminate any problem they were having.

37. While the evidence is conflicting, it was the complainant's burden to present sufficient evidence to establish that the respondent in fact knew that her difficulties with Blakeslee resulted from harassment because of her sex or medical condition and failed to take appropriate action. In view of all of the evidence, and in particular, Dr. Scott's March 8 letter, which was admitted into evidence without objection, and the testimony by Berth, the record indicates that the complainant fell short of meeting this burden.

38. When transferred to the first shift, Brian Abendschein became the complainant's supervisor. The complainant asserts that Abendschein would follow her around, that he assigned her to do sweeping, which caused her shoulders to hurt, that he threw little pieces of popcorn on the floor where she had already swept, told her to quit on several occasions, insisted that she report to his office each day before and after work, and that on one occasion he grabbed her wrists and held them down when she was sorting parts. The complainant never inquired as to why Abendschein followed her around or why he had suggested that she quit. She also never complained to management that Abendschein followed her around, never complained that he threw popcorn on the floor after she swept and never complained that Abendschein had told her to quit. The complainant states that she never complained because she was afraid and because Abendschein was part of management and she believed that it would be futile. However, the complainant had complained about being assigned to sweeping by Abendschein and she was immediately told that she did not have to sweep. Seeger was involved in this decision. In addition, as discussed further below, she had also complained to management about posters of women that were either nude or in swimsuits and management responded by having them all taken down within 24 hours. Moreover, Randi Berth testified that she spoke to Abenschein about having the complainant report to him before and after work. Berth testified that she was told this was done because the complainant's hours of work were changing, because the complainant had a lot of doctor's appointments and because the complainant would perform work in other areas when there was difficulty finding prehang work and Abendschein wanted to make sure he knew where she was. Berth also testified that she had observed the incident where Abendschein held the complainant's wrists. Berth described the incident as neither friendly nor violent, and stated that Abendschein was trying to get the complainant's attention. The complainant herself stated that Abendschein was screaming at her to not look at the parts, only hang them, which indicates that Abendschein's actions were caused by the complainant's method of performing the work.

39. The complainant also claims sexual harassment (hostile environment) discrimination because there were posters of naked women or women in swim suits hung in the plant. These posters had apparently been in the plant during the complainant's entire period of employment. The evidence shows that the complainant, and apparently some other females, complained to management about these posters, and that after these complaints the respondent took all of the posters down within 24 hours of the complaint. The respondent took this action without questioning her complaint about the posters. The actions taken by the respondent were appropriate and done within a reasonable time. The complainant has also asserted that after she complained about the posters, an "eyeball poster" was hung up across from her work station and that male coWorker's gave her the "silent treatment." The complainant admits that she did not complain to management about the eyeball poster and silent treatment.

40. By June 1993, the amount of prehang work had fallen off. At this time the complainant still had work restrictions which limited her to performing frequent lifting of items weighing 10 lbs. at bench level and occasional lifting of items weighing 20 lbs. at bench level. On June 3, 1993, the complainant was laid off due to a lack of work available within her restrictions resulting from her June 1991 work injury.

41. The complainant asserts that she has never been recalled to work, that she has not been notified of existing openings within the plant and that she has not been allowed access into the plant to go and check the postings. She states that she knows there are jobs that have become available which she could perform within her restrictions, that she has acquired knowledge of open positions through her sister and brother who are employed by the respondent, and that she has bid on a few positions that were open but that nothing has become of her bids. While the complainant complains that she has not been recalled to work, she admits that she has never advised the respondent of any change in her work restrictions which would allow her to perform jobs that she could not when laid off in June 1993, and, in fact, she admits that her work restrictions have not changed since June 1993. While she has asserted that she was denied access to the plant to check job postings, she concedes that the only time that she had been denied access to the plant was when she sought entry into the plant in July 1993 to go to her locker for personal items, not to check for job postings. The complainant's sister, Colette, asserted that since the complainant's layoff there have been postings of available jobs which the complainant could have performed, but it was not established that she was qualified to know whether or not the available jobs were within the complainant's work restrictions. Apparently beginning with the 1994 fall semester, the complainant has not applied for any jobs at the respondent because she is going to college.

42. The notice of hearing identified handicap discrimination with respect to privileges of employment as a further hearing issue. This apparently relates to the complainant's claim that she was not allowed to attend an algebra class as all other employes. However, the complainant presented no testimony at the hearing regarding this claim.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant failed to establish that the respondent discriminated against her based on her sex with respect to her terms or conditions of employment.

3. The complainant failed to establish that the respondent discriminated against her based on her handicaps with respect to her privileges of employment.

4. The complainant failed to establish that the respondent discriminated against her based on her handicaps with respect to her terms or conditions of employment.

5. The complainant failed to establish that the respondent discriminated against her based on her handicaps with respect to layoff and failure to recall her to work.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:

DECISION

The complainant's complaint filed in this matter is dismissed.

Dated and mailed: April 18, 1997
dawnpri.rrr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

On appeal, the complainant, who is now proceeding pro se, apparently argues that the ALJ committed error by allowing the respondent to use her social security disability records at the hearing to establish why it decided to lay her off work. The respondent did not use the disability records to show why the complainant was laid off, however. What the respondent did do was use an "Activities Questionnaire" that the complainant's sister, Colette Priegel, had signed as completing in connection with the complainant's social security claim, to impeach Colette's testimony that the complainant was physically qualified to perform various available jobs at the respondent after her layoff. Use of the social security records for this purpose was not improper.

The complainant also apparently argues that the ALJ erroneously granted a postponement of the November 4, 1994 hearing at the request of the respondent so that the respondent could make a settlement offer. The complainant asserts that she did not agree to this postponement. The record shows, however, that both parties were interested in pursuing settlement negotiations, and that they entered into a stipulation to postpone the November 4 hearing for that reason.

Further, the complainant also argues that the ALJ's decision contains findings that are contradictory and that are in error. Those findings have been reviewed against the evidence presented, and there are a number of inaccuracies in the decision as written. Nevertheless, the evidence fails to show that the commission should reach a different result than that arrived at by the ALJ. The complainant also complains because the ALJ frequently would not allow testimony by her witnesses based on objections of lack of foundation by the respondent. She has not shown that the ALJ committed error in sustaining the respondent's objections, however.

Finally, on the subject of her mental health records (which the respondent had sought discovery of and the ALJ granted the complainant's motion to exclude at the November 4 hearing), the complainant apparently complains about the ALJ's memorandum opinion comment that her psychological records were "relevant to and contained information about her availability to perform her job, and the availability of accommodations..." The complainant asserts that she was not notified that the ALJ had changed his decision in this regard, and that she should be allowed a re-hearing to have her witnesses testify on this matter. While this did constitute a change in position on the part of the ALJ, there actually had been no testimony or documents on the subject of the complainant's mental health introduced at the hearing. The ALJ's comment about the psychological records pertained to the reason he was denying a motion for sanctions against Mr. Escalera for seeking to obtain them.

The complainant's former counsel, Sandra Graf, has submitted a memo to the commission to supplement the complainant's petition for review on the limited issue of the ALJ's denial of her motion for sanctions against Attorney Escalera. Graf argues that the ALJ's decision on her motion must be reversed.

The parties were granted an opportunity to brief Graf's motion for sanctions at the close of the January 25, 1995 hearing. The respondent made several arguments in opposition to imposition of sanctions. First, the respondent argued that the complainant had waived any privilege to the report of her mental health counselor because she had executed a written consent for release of her social security records and those records contained the report of her mental health counselor. Second, the respondent argued that the mental health documents acquired by the respondent were discoverable because the complainant had not objected to them as privileged documents and because the ALJ ruled they were to be provided to the respondent. Third, the respondent argued that the complainant's mental health records were not privileged because they were relevant to her claim that she was able to perform the job and available for work. The complainant's counsel then submitted a reply arguing that she had preserved her right to claim privilege, that she had objected to the discovery of her mental health records and the ALJ ruled she did not have to provide them, and that the respondent's argument that the documents are not privileged fails because the complainant did not rely on her mental health as an element of her claim.

The commission has fully considered the arguments of the parties on this matter. While the commission is concerned by Attorney Escalera's conduct in subpoenaing the complainant's mental health records from her therapist, Mary Marisola, the commission concludes that the ALJ reached the right result in denying the complainant's motion for sanctions, albeit for the wrong reason. The matter of sanctions is governed by provisions under ch. 804, Stats. Under this statute, the only basis upon which the complainant might have been entitled to the imposition of any sanction against Escalera is if the complainant had moved for a protective order under sec. 804.01(3), Stats., and been granted that motion by the ALJ. Section 804.01(3) states that upon motion by a party the court may make any order which justice requires to protect a party from annoyance, embarrassment etc., including an order that the discovery not be had or that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters. Sections 804.01(3)(a)1. and 2. Section 804.01(3)(b) states that section 804.12(1)(c) applies to the award of expenses incurred in relation to motions for protective orders. Section 804.12(1)(c) in turn states that if the motion is granted, the court can require the party whose conduct necessitated the motion to pay the moving party the reasonable expenses incurred in obtaining the order, including reasonable attorney's fees unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. All the other bases for imposing sanction upon a party listed under 804.12 involve situations not applicable to this case.

As indicated above, the complainant never made a motion for a protective order that her mental health records not be discovered, and the ALJ never granted one. Although knowledgeable that Escalera had subpoenaed her mental health records on October 21, 1994, the complainant filed a motion to have the subpoena quashed on the grounds that it came too late, would be too time- consuming and burdensome to prepare, and because the respondent had not complied with her discovery requests. At the November 4, 1994 hearing, the complainant made a motion to have certain evidence and testimony regarding her mental health excluded, for reasons which included that this was privileged information, but again no motion was made for a protective order that her mental health records not be discovered. The ALJ granted the motion to exclude such evidence and testimony on the grounds of untimeliness and because the respondent's answer to the complaint had made no mention of the complainant's mental health as a reason for the complainant's layoff.

NOTE: In addition to a need to set forth the background involved in the sanctions denial dispute, the commission has issued its own decision in this matter because there were a fair number of factual errors, several findings were not supported by the evidence, and because there were misspelled words and names and incorrect dates cited in the ALJ's decision.


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Footnotes:

(1)( Back ) The commission received the file in January 1996, after which the parties considered but decided against ordering a transcript resulting in a need for the ALJ to prepare a summary of proceedings. The ALJ subsequently prepared a summary of proceedings but it was found necessary that a transcript of the second day of hearing be obtained from the court reporter and this was received by the commission in March 1997.

(2)( Back ) At this time administrative rule sec. Ind 88.14(1) was in effect and provided as follows: "(1) EXCHANGE OF NAMES OF WITNESSES AND COPIES OF EXHIBITS. By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing." The chapter Ind 88 administrative rules were repealed and recreated effective July 1, 1995, as ILHR 218. Minor modifications have been made to sec. Ind 88.14(1) and it has been renumbered as ILHR 218.17