P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ROBERT DOBBS, Complainant

SUPER 8 MOTEL, Respondent A

MARK ADRIAN, Respondent B


ERD Case No. 199501075, EEOC Case No. 26G951854

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. 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


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

Dated and mailed October 15, 1996
dobbsro . rsd : 110 : 

complainants cannot be ordered to pay attorneys fees incurred for the defense of a discrimination claim by respondents who have prevailed on the merits

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


This case arose out of a complaint alleging sex discrimination in hire. Specifically, it was alleged that the Respondents (1)  refused to hire Complainant because he is a male. The complaint was dismissed by the Administrative Law Judge after the Complainant twice failed to appear at a scheduled deposition. In addition, the ALJ ordered the Complainant to pay Respondent the sum of $595 for expenses of Respondent's attorney in appearing at the depositions which Complainant failed to appear at.

Complainant has petitioned for review. By its terms, the petition only seeks review of that part of the order requiring payment of attorneys' fees.

The commission finds that the Administrative Law Judge's Decision and Order accurately described the facts here. As the Administrative Law Judge noted, Complainant actually failed to appear at a deposition twice. After his first failure, there was a telephone conference involving the ALJ, Respondent's Attorney, Complainant's Attorney, and Complainant, in which the ALJ (among other things) ordered that Complainant should submit to having his deposition taken as soon as practicable, and in which the date and time of the second attempt at a deposition were agreed upon. However, the Complainant again failed to appear. He subsequently submitted an affidavit asserting that he had failed to appear on time because of a mistake as to the time of the hearing, but the ALJ decided, and the commission agrees, that this excuse was not credible. The Administrative Law Judge concluded, and the commission also agrees, that this second failure was either intentional and in bad faith, or reflected a callous disregard for his obligation to submit to discovery.

It has been consistently held that complainants cannot be ordered to pay attorneys fees incurred for the defense of a discrimination claim by respondents who have prevailed on the merits, see, Kasonda v. Aldridge, Inc. (LIRC, 11/30/93) ; Cameo Convalescent Center v. LIRC (Milwaukee Co. Cir. Ct., 09/02/86); Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86); Rick v. Fore Way Express (LIRC, 07/25/85); Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85). While the purpose for allowing such orders would be the hope that they would deter persons from making frivolous complaints of discrimination,. the stronger countervailing policy (which underlies the decisions cited above) is that such orders could also deter persons from bringing valid complaints which might be hard to prove and therefore should not be issued. However, ordering a party who has wrongfully refused to cooperate in discovery to pay attorneys fees incurred by a respondent in connection with the complainant's refusal, has different purposes than ordering payment of all of a respondent's fees based on the fact that the respondent prevailed in the proceeding. Such a limited attorneys fee award does not risk the effect of deterring complainants from bringing complaints; it deters only unreasonable refusal to cooperate in discovery. The commission has previously affirmed such an award, Smith v. Norris Adolescent Center (LIRC, 04/21/89), and it continues to believe that it can be appropriate to order complainants to pay attorneys fees incurred by respondents in connection with a complainant's refusal to cooperate in discovery.

In this case, the commission agrees with the Administrative Law Judge's assessment, that Complainant's excuse for his second failure to appear was not credible.(2)  It does not appear that what was going on here was simply a matter of honest mistakes being made about time. The lack of credibility in complainant's explanation leads inescapably to the conclusion that complainant was intentionally and repeatedly evading his responsibilities to cooperate in discovery. For these reasons, the commission affirms the Administrative Law Judge's Order.

cc: Steven J. Schaefer, Attorney for Respondent

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(1)( Back ) "Super 8 Motel" is simply a name under which Respondent R.C. Hospitality, LLC does business. Respondent Mark Adrian is a "Managing Member" of R.C. Hospitality, LLC.

(2)( Back ) The record in this case gave some reason to wonder if the Complainant's wife, rather than the Complainant, was the person most actively involved in prosecuting this matter. For this reason, the commission considered whether there was any basis to conclude, that Complainant's failure to appear at the depositions was attributable to his not having been accurately appraised by his wife of the time and date. However, the record did not allow any definitive finding that this was the case. On the other hand, the record did amply support the assessment made by the Administrative Law Judge, that the Complainant's own version of his failure to appear, contained in his affidavit, was simply not credible.

uploaded 2005/06/17