ERD Case No. 9000537, EEOC Case No. 26G900649

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on August 12, 1991. Complainant filed a timely petition for review.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed January 22, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


The Complainant, Monica Neuberger, states in her petition that she "disagrees" with the ALJ's decision, and "disputes" his findings of fact and conclusions of law. However, she has failed to specifically identify any error of fact or law. The Commission, after reviewing the case, has determined that the ALJ 's findings of fact and conclusions of law are supported by the record. Neuberger's sole contention on review, therefore, is as follows:

"I believe a full hearing should be held on the merits based on prejudice due to the fact my attorney misrepresented me in not submitting an exhibit list, witness list and did not amend my complaint to include wrongful termination under the statutory time period."

In the Commission's opinion, her contentions are without merit, for two reasons: (1) the record does not establish that her lawyer did anything improper; and (2) even if he did, her sole remedy is an action against the lawyer.

With respect to the issue of whether her lawyer did anything improper, although it is true that he failed to submit a list of witnesses and exhibits, the record does not establish that such failure prevented Neuberger from presenting any witnesses or exhibits. However, it is a moot point to dissect Neuberger's attorney's performance, since the Commission is not in a position to afford her relief if the mistake was her attorney's.

With respect to amending Neuberger's complaint, the 300-day period for filing a timely complaint concerning termination of employment expired an September 27, 1990. Attorney Brennan filed a notice of retainer in February 1991. The record does not disclose whether Attorney Brennan represented Neuberger prior to September 27, 1990.

Section Ind 88.04(2), Wis. Adm. Code, provides that:

"(S)ubject to the approval of the department, a complaint may be amended no later than ten days before hearing unless good cause is shown for the failure to amend the complaint prior to that time."

Administrative Law Judge Schacht properly refused to allow the complaint to be amended because Neuberger failed to show that she had "good cause" for failing to amend the complaint prior to hearing as required by sec. Ind 88.04(2), Wis. Adm. Code (she had an attorney, and it may be presumed that her attorney was familiar with the statutes and the administrative rules under which the department conducts hearings).

Assuming for purposes of argument that Attorney Brennan did fail to provide Neuberger with proper legal representation, that is not an adequate basis for setting aside the ALJ's decision and for granting a rehearing. In Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991), the Wisconsin Supreme Court stated:

"We have also stated our belief that the quality of legal representation is best maintained by refusing to overlook the effects of counsel's actions. Dugenske, 80 Wis. 2d at 70. Ultimately, when an attorney's egregious failure to obey court orders implicates the court's ability to administer judicial business, it is more equitable to allow the adverse consequences to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and the other litigants who await their day in court. In addition, the non-complying party has a possible remedy in a malpractice action, particularly when the dismissal is entirely attributable to his attorney's conduct. See, Link, 370 U.S. at 634, n. 10; Village of Big Bend v. Anderson, 103 Wis. 2d 403, 308 N.W.2d 887 (Ct. App. 1981)." (footnote omitted)

This principle applies in cases where lawyers fail to name witnesses and the client's case is dismissed because of such failure. See, Schneller v. St. Mary's Hospital, 162 Wis. 2d 296, 470 N.W.2d 873 (1991) ("If a litigant refuses to take a court's scheduling order seriously when it is apparent to all that the failure [to do so] will prove fatal to the litigant's case, it is reasonable for the circuit court to conclude that only a drastic sanction such as dismissal will effectively convey to the litigant and future litigants that scheduling deadlines must be obeyed. As we stated in Trispel v. Haefer, 89 Wis. 2d at 733, it is 'the 'duty' of trial courts . . . to discourage protraction of litigation and to 'refuse [the courts'] aid to those who negligently or abusively fail to prosecute the actions which they commence.' (quoting, Smith v. Carter, 141 Wis. 181, 184, 122 N.W. 1035 (1910) ")

For the reasons set forth above, the Commission concludes that Neuberger's arguments do not form a basis upon which to overturn the ALJ's decision in this case.



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