ANDRE T NABORS, Complainant
KELLEY IT RESOURCES, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A petition for review was filed.
For the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission hereby issues the following:
The decision of the administrative law judge dismissing the complainant's complaint is set aside and this matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed October 6, 2006
naboran . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
On June 21, 2006, the respondent served the complainant with its discovery requests, which included a Request to Admit, a Request for Production of Documents and a First Set of Interrogatories. Each discovery request stated that the complainant was to respond within 30 days.
In a letter to the parties dated August 22, 2006, the ALJ stated, in part, the following: that on July 31, 2006, the respondent had filed a motion to dismiss, or in the alternative a motion to compel the complainant to submit discovery responses immediately; that in a letter dated August 1, 2006, she told the complainant he was to immediately provide her and the respondent's attorney with his current telephone number, and that the complainant was told he had to respond to the respondent's discovery requests by August 18 and warned that if he failed to respond as of August 18 his complaint would be dismissed; and that on August 22 the respondent had filed a motion to dismiss the complainant's complaint based on his failure to comply with her order to respond to the respondent's discovery requests by August 18.
In the August 22, 2006 letter, the ALJ further stated that the complainant had continued to fail to respond "in any manner to the Respondent's discovery requests." The ALJ stated that she had decided to dismiss the complainant's complaint based on the complainant's failure to comply with her order to respond to the respondent's discovery requests by August 18, and also based on the fact that the complainant's failure to respond to the respondent's Request for Admissions has resulted in the complainant admitting that the respondent did not take any action against him that violated the WFEA.
The ALJ issued an Order of dismissal-Failure to Comply with Discovery the next day, August 23, 2006, stating that the complainant "failed to comply with the respondent's discovery requests without any good reason for failing to respond and the Complainant failed to comply with an order to respond to the Respondent's discovery requests after the Complainant was given a second opportunity to respond."
By letter sent to the ALJ via messenger on August 23, referencing the ALJ's August 22 letter, the respondent's counsel noted that although the ALJ stated the complainant failed to respond in any way to her discovery order, that the complainant did in fact respond to the respondent's Request for Documents and Interrogatories, but he did not and still had not responded to the respondent's Requests for Admission. The respondent asserted that the dismissal of the complaint should be upheld, however, because the complainant was in violation of the ALJ's order to respond to its discovery, as he did not respond to the Requests to Admit, and because the Requests to Admit were deemed admitted under the law as of July 24, 2006, and therefore the complainant could not sustain his claim of race discrimination.
By virtue of DWD 218.14, an ALJ has the same authority as provided under ch. 804, Stats. with respect to a party's failure to comply with an order to provide discovery. Under Wis. Stat. § 804.12(2)(a)3, if a party fails to comply with an order to provide discovery the court may make such orders in regard to the failure as are just, including an order "...dismissing the action or proceeding..."
In written correspondence addressed to the ERD, to the attention of the ALJ, and received by the ERD on September 1, 2006, the complainant asked that "consideration" be given as to whether or not he had timely responded by August 18 as requested by the ALJ.
The ALJ treated the complainant's letter as a "request for reconsideration" of the dismissal of the complainant's complaint, and issued a letter to the parties that same day, September 1. In this letter, the ALJ states, in part, as follows:
"On September 1, 2006, I received the Complainant's request for reconsideration of my decision of my decision (sic) to dismiss the Complainant's complaint in this matter. The Complainant's motion is almost impossible to follow. However, I believe, the Complainant is asserting that he did answer all of the Respondent's requests for the production of documents and the Respondent's requests for answers to interrogatories by the August 18, 2006 deadline. I think the Complainant admits that he did not respond to the requests for admissions....
I am not happy about the Respondent's motion to dismiss in this matter. The Respondent's omission of the fact that the Complainant had responded to the Respondent's requests for interrogatories and the Respondent's requests for the production of documents in the Respondent's motion [misled] me into believing that the Complainant had failed to respond in any manner to the Respondent's request for discovery....
Despite the Respondent's omission, I have decided to maintain my original decision to dismiss the complaint in this matter. The Complainant was given two opportunities to answer the Respondent's discovery requests in this matter, despite that fact the Complainant did not provide a very credible reason for his failure to respond to the Respondent's discovery requests initially. (1) The Complainant was told in my August 1, 2006 letter that he would be given "one more chance" to respond to the Respondent's discovery requests. The August 1, 2006 letter also clearly told the Complainant that if he failed to respond [to] the Respondent's discovery request by August 18, 2006, then his complaint would be dismissed. While the Complainant apparently responded to the Respondent's interrogatories and the production requests, the Complainant failed to respond to the Respondent's requests to admit. Given the clear warning that the Complainant was given that his complaint would be dismissed if he failed to respond to the Respondent's discovery requests the second time, the Complainant should have taken greater care to ensure that he responded to all of the Respondent's discovery requests. The Respondent should not be required to engage in endless motions to obtain the Complainant's answers to its discovery requests.
I note that the Respondent was still unable to contact the Complainant in this matter to resolve the discovery issue because the Complainant has failed to provide his current telephone number despite [the] fact that I ordered him to immediately provide the information in letters dated July 28, 2006 and August 1, 2006. Despite being reminded again of the need for the Complainant to provide his current telephone number in my August 22, 2006 (sic) letter, the Complainant has continued to fail to provide this information in his request for a reconsideration of my decision.
It is my decision that the Complainant was given more than a sufficient opportunity to comply with discovery in this matter, but the Complainant has failed to do so. Therefore, I will not set aside my decision to dismiss the Complainant's complaint in this matter.
If the Complainant would like to appeal my August 23, 2006 decision to dismiss the Complainant's complaint in this matter, the Complainant must ensure that the Division receives an appeal of the decision within 21 days of August 23, 2006. If the Division does not receive an appeal of the August 23, 2006 dismissal within 21 days of August 23, 2006, the Complainant will lose the right to appeal.
(Emphasis in original.)
Subsequently, on September 15, 2006, the ERD received correspondence from the complainant dated "September 6th, 2006" and addressed to the attention of the ALJ at the Equal Rights Division, which was treated as a petition for commission review.
The ERD's receipt of the complainant's correspondence on September 15 made his petition two days late. September 15 seems like an inordinate amount of time to receive a letter dated September 6. It is not known whether or not the complainant actually mailed his correspondence on or around September 6, however. In addition, the envelope containing the complainant's correspondence does not show a postmark date by the Post Office.
In any case, a question arises with respect to the ALJ's authority to treat the complainant's September 1 correspondence as a "request for reconsideration", rather than a petition for commission review. First, there is nothing in the WFEA or the Division's rules, which speak to an ALJ being able to "reconsider" or take any action with respect to an earlier decision issued by the ALJ. And the only other potential source to look for such authority, Wis. Stat. § 227.49, is not applicable as it pertains to "Petitions for rehearing". That statute deals with requests for and the granting of another hearing. With respect to the concepts of petitions for rehearing and reconsideration, in the case of Heinritz v. Lawrence University (LIRC, 09/30/03), where a late petition had occurred as a result of information from the ERD that after the administrative law judge dismissed the complaint for failure to state a claim under the Wisconsin Fair Employment Act the parties should be notified that they could petition for rehearing and that any petition for review would be to circuit court, the commission stated:
There was no right to "rehearing" under sec. 227.49, Stats., because there had been no hearing. The concept of "rehearing" was simply not applicable. If anything could have been sought under these circumstances, it would have been reconsideration. However, neither Chapter 227, the Wisconsin Fair Employment Act nor the rules of the Equal Rights Division recognize any right to petition for reconsideration which would have any effect on the running of the deadline for appeal.
Second, as further reason to believe that an ERD ALJ lacks authority to entertain requests for reconsideration, unlike the noticeable absence for such authority in the ER statute/rules, Wis. Stat. § 108.09(4)(f) of the unemployment insurance law contains a specific provision regarding an ALJ's authority to take further action after issuing a decision. That provision states:
(f) Postdecision changes. 1. Except as provided in par. (e) 3., within 21 days after its decision was mailed to the parties the appeal tribunal may on its own motion amend or set aside its decision and may thereafter make new findings and issue a decision on the basis of evidence previously submitted in such case, or the same or another appeal tribunal may make new findings and issue a decision after taking additional testimony.
2. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may set aside or amend an appeal tribunal decision, or portion thereof, at any time if the appeal tribunal finds that:
a. A technical or clerical mistake has occurred; or
b. The benefits paid or payable to a claimant have been affected by wages earned by the claimant which have not been paid, and the appeal tribunal is provided with notice from the appropriate state or federal court or agency that a wage claim for those wages will not be paid in whole or in part.
3. Unless a party has filed a timely petition for review of the appeal tribunal decision by the commission, the appeal tribunal may, within 2 years after the date of the decision, reopen its decision if it has reason to believe that a party offered false evidence or a witness gave false testimony on an issue material to its decision. Thereafter, and after receiving additional evidence or taking additional testimony, the same or another appeal tribunal may set aside its original decision, make new findings and issue a decision.
Absent any authority to entertain a request for reconsideration, there is no reason that the complainant's correspondence received by the ERD on September 1, 2006, should not be found to constitute a timely petition for review of the ALJ's August 23, 2006 decision. There is nothing in Wis. Stat. § 111.39(5), DWD 218.21 or Wis. Admin. Code § LIRC 1.025, which requires that a petition contain any special language. Furthermore, if an ALJ (or the ERD) is allowed to decide what constitutes a petition for commission review this would be problematic as the ERD and ALJ's should not be dictating whether or not a party is entitled to commission review of an ALJ's decision. In fact, in many instances, when there has been correspondence from a party that is received at the ERD after the issuance of an ALJ's decision, the ERD will simply ship the case off to the commission for review.
While ERD ALJ's should perhaps have the ability to reconsider and/or take further action on a decision they have issued within 21 days of the mailing of that decision where no petition for review has been filed, no statutory or administrative authority currently exists which provides them with that authority.
Accordingly, the commission finds that the complainant filed a timely petition for commission review in this matter.
The ALJ dismissed the complainant's complaint on the grounds that he failed to comply with an order to respond to the respondent's Requests to Admit by August 18, 2006, and because his failure to respond to the requests to admit resulted in his admission that the respondent did not take any action against him that violated the WFEA. The ALJ also included as reason for dismissing the complaint that the complainant had failed to provide his current telephone number despite being ordered to do so.
As noted above, under Wis. Stat. § 804.12(2)(a)3, if a party fails to comply with an order to provide discovery the court may make such orders in regard to the failure as are just, including an order "...dismissing the action or proceeding..." The record does not support a showing that the dismissal of the complainant's complaint was just under the circumstances presented in this case. First of all, the complainant, who was proceeding pro se, included in his September 1 correspondence to the ERD a printed copy of an email message dated August 17, 2006, that he had sent to the respondent's counsel in response to the respondent's discovery requests. This email reads as follows:
I hope that you have all information in order to conduct your finding(s).
I have emailed the following:
*Mailed Tuesday -Hardcopy of Document(s) requested:
Enclosed were W2 form, UC-form, Kelly IT paystub (sic) of 2002 place of employment, KELLY IT Position applied for by date's original posting.
If I have missed anything I will do my best to have it re-sent.
As shown by this email, and argued by the complainant in his other written correspondence received by the ERD on September 1, not only was he attempting to comply with the respondent's discovery requests, he offered to send in anything that he might have missed in response to the discovery requests. Further, the complainant's September 1 correspondence indicates that previously on August 3 he had sent an email to the respondent stating, "I will do my best to respond [to the discovery requests] as soon as I can", that on August 13 he had emailed his response to respondent's First Set of Interrogatories and, as shown above, on Tuesday (apparently August 15), he had mailed his response to the respondent's Request for Production of Documents. This is not evidence indicative of a party failing to cooperate with discovery. Second, while the complainant apparently did not provide the respondent with his current telephone number, by virtue of the emails sent to the respondent's counsel, the respondent did have a means of contacting the complainant regarding any discovery issues. Third, even in the absence of a separate document response specifically designated as a response to the respondent's Request to Admit, it is apparent from assertions the complainant included in his response to the First Set of Interrogatories and the Request for Production of Documents that he disagreed with the request to admit assertions that the respondent had not based any decision in this case on his race and had not violated the WFEA. For instance, the complainant, whose complaint assertion is that "I believe Mr. [Garly] has refused to refer me to positions for which I am qualified due to my race, African-American", asserted in part as follows in his response to the respondent's First Set of Interrogatories:
"My complaint involves a one on one phone conversation with Matt Garly. Because I did not plan on attacking, I had no reason to tape the call, as I was a regular worker simply calling for assistance on positions I saw available in the KELLY IT database.
No one but he and I were there to witness his horrid display of bias towards me.
Much of what I submit as evidence is the very rebuttal of Mat. (sic) Garly. The respondent has not only responded to my five sentence complaint with five pages, but made claims themselves, many of which were not even relevant to the case. Because of this I ask that when their claims prove candidly false, I hope to implore the judge to consider why would the KELLY IT HEAD recruiter, along with the CEO, along with Attorney's knowingly submit erroneous claims of jobs the claimant never worked as an attempt to show a generosity that absolutely never existed. All just to say, there was no discriminatory practices against the claimant.
Similarly, in his response to the respondent's Request for Production of Documents, the complainant asserted in part as follows:
Many additional claims have been made by the Respondent without having to provide any source of proof.
Since the law holds the claimant responsible and or accountable for submitting erroneous information, the claimant asks if the same is held accountable when/if the Respondent willfully submits erroneous facts and or claims to deny the accusation of discriminatory practice backed by the CEO, as well as their complete team of attorneys.
The claimant seeks damages for initial attorney fee(s), a written statement by the CEO of how they intend to treat Discriminating Managers within their corporation....
Additionally, even assuming for purposes of argument that the absence of a separate document response from the complainant specifically designated as a response to the respondent's Request to Admit could be considered as an admission to the Request to Admit, under Wis. Stat. § 804.11(2), "The court may permit withdrawal or amendment [of the admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits."
The moving party [for withdrawal or amendment of the admission(s)] must show that the presentation of the merits will be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment will prejudice the party in maintaining the action on the merits. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 633, 334 N.W.2d 230 (1983). It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. Schmid v. Olsen, 111 Wis. 2d 228, 235 fn. 3, 330 N.W.2d 547 (1983).
Since the language in s. 804.11(2) was adopted from and is nearly identical to its counterpart provision in Rule 36(b) of the Federal Rules of Civil Procedure, we may look to federal case law for guidance. Mucek v. Nationwide Communications, Inc., 2002 WI 60, 252 Wis. 2d 426, ¶29. Federal courts have held that the party making the admission must show that presentation of the merits will be subserved by withdrawal and that this inquiry involves consideration of whether the admission is contrary to the record in the case. Mucek, 2002 WI 60, ¶27 n4, citing Siemien v. Chem. Waste Mgmt., Inc., Supp. 2d 939, 941-42 (W.D. La. 1998). See also, Schmid, 111 Wis. 2d at 238 (rejecting plaintiff's assertion that the withdrawal of the admission did not serve the presentation of merits of the case, since liability was a key issue in the case, and aside from the defendant's failure to respond to the requests for admission, there was no indication that it was not a disputed issue). In the instant case, presentation of the merits of the action will be subserved by permitting withdrawal of the admissions. Here, liability is also the key issue. Moreover, aside from the absence of a separate document response from the complainant specifically designated as a response to the respondent's Request to Admit, there is no indication that liability was not a disputed issue. Indeed, these admissions are contrary to the record as shown by the complainant's responses to the respondent's First Set of Interrogatories and Request for Production of Documents.
Finally, the respondent cannot fairly argue that withdrawal of the admissions will prejudice the respondent in maintaining its defense against the action. The record indicates that the complainant had, prior to the date ordered by the ALJ, i.e., August 18, 2006, supplied the respondent with his responses to the respondent's First Set of Interrogatories and Request for Production of Documents, and that within such documents the complainant had specifically challenged the respondent's claim that it had not acted against him on the basis of race and in violation of the Wisconsin Fair Employment Act. Moreover, federal case law explains that the prejudice contemplated by Federal Rule 36(b) is not simply that a party would be worse off without the admissions. Rather, the party benefiting from the admission must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party was held to its admissions. Mucek, 2002 WI 60 ¶30.
Attorney Eric H. Rumbaugh
Attorney Lucinda J. Schettler
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) The ALJ is apparently referencing the complainant's July 31 assertion that the ERD's Information sheet stated that by no later than ten days before the hearing the parties must send a list of any witnesses and copies of any documents.