ABEL MOYA, Complainant

CLARITY CARE INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development 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 July 25, 2008
moyaab . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

This case concerns the ALJ's dismissal of Abel Moya's complaint due to his failure to provide or permit discovery.

BACKGROUND

Moya filed a discrimination complaint alleging that the respondent violated the Wisconsin Fair Employment Act by discriminating against him in his terms or conditions of employment because of his race, by terminating his employment because of his race, and by discharging him because he filed, or the respondent believed he had or would file, a complaint under Wisconsin's Labor Standards Act.

Apparently, the respondent is a private, nonprofit agency that provides care and services for individuals with acute, chronic or long-term conditions, including individuals with special needs. Further, apparently Moya's son is a spastic quadriplegic, that Moya's son requested the respondent's services in coordination with Moya's application for employment with the respondent, that Moya's son wanted Moya to be hired as his care provider and that Moya eventually chose to provide care for his son as a Home Health Aid (HHA).

The Equal Rights Division found no probable cause to believe the respondent had violated the Act as alleged by Moya. Moya filed an appeal and the Division certified the matter to hearing. On April 24, 2007, the respondent's counsel filed written notice with the Division (and sent a copy to Moya) that the respondent intended to take discovery from Moya, who was unrepresented. Moya responded by sending a letter dated May 1, 2007, to the ERD stating, "I received notice of intent to take discovery. Please, let me know when and where at what time."

By certified and regular mail dated June 6, 2007, the respondent sent to Moya its first set of discovery requests (Requests for Production of Documents, Requests to Admit and Written Interrogatories), along with a notice of deposition. Moya's responses to the discovery requests were due within 30 days. The deposition was scheduled for July 9, 2007, at 10:00 a.m. at the respondent's corporate office, located at 424 Washington Avenue in Oshkosh, Wisconsin.

By letter dated June 14, 2007, Moya advised respondent's counsel that the deposition date of July 9, 2007, at 10:00 a.m. was agreeable to him, but that "Because of my son's physical limitations and schedule, I have secured a neutral location, [o]n the same date at the same time, at 121 west park place, the public library, it is ideal. There is plenty of room for your party and mine." In that same letter, Moya responded to the respondent's Requests to Admit and Requests for Production of Documents stating, "Respondent's request[s] to admit are denied. Respondent's request for production of document[s] is denied. I work around the clock and have no time. All documents that will be used by me at the hearing are readily available from your client, the unemployment hearing office, 'investigator' Charles Schiltz, the equal rights office, and your own office." Further, Moya stated "Please, do not send me any more requests. I am not a lawyer I do not understand any of all (sic) stuff. I did try to hire various attorneys, they said it was a waste of time and money and would only take cases where they could manipulate the client in favor of the state." Moya closed the letter with the statement, "If the location for the deposition is agreeable, send me a post card."

By certified and regular mail sent to Moya dated July 2, 2007, counsel for the respondent wrote to follow up on their telephone correspondence on that date. After noting that on two instances Moya hung up on counsel and refused to discuss issues about Moya's case against the respondent, counsel's letter goes on to confirm the Monday, July 9, 2007 deposition at 10:00 a.m. at the respondent's Oshkosh facility at 424 Washington Avenue and emphasizes that he is not agreeable to changing the location to the public library in Oshkosh. Counsel's letter states that Moya indicated during their telephone conversation that we "will see" if he shows up at the deposition and that counsel advised Moya that his failure to appear may affect his ability to proceed with his case against the respondent.

Addressing Moya's single statement that respondent's Requests to Admit are denied, counsel's letter states he advised Moya that Wis. Stat. § 804.11 requires that he respond to each request separately, that it is not sufficient to simply deny the requests in total. Counsel's letter states he advised Moya that if he fails to adequately respond to the Requests to Admit, each request may be deemed admitted for purposes of the litigation, which could adversely affect his ability to proceed with his case. Counsel's letter states he advised Moya that he expected Moya to bring sufficient written response to the respondent's Requests to Admit to his deposition on July 9. Counsel also noted that Moya had not responded to the respondent's Interrogatories and requested that he bring a complete written response to the Interrogatories to the July 9 deposition. Finally, counsel's letter advised Moya to contact him if he had any questions.

Moya failed to appear for his scheduled July 9, 2007 deposition.

By certified and regular mail sent to Moya dated July 10, 2007, counsel noted Moya's failure to appear for the deposition, counsel's attempts during the scheduled deposition to contact Moya by phone and the messages left for Moya to call counsel, which Moya had not returned, and Moya's apparent refusal to accept counsel's prior written correspondence sent to Moya by certified and regular mail. Counsel advised Moya that if he continued with this behavior he was at substantial risk of having his case dismissed, being ordered to pay sanctions and/or possibly being found in contempt of court. Counsel asked Moya to please provide him with dates of availability so that his deposition could be rescheduled as soon as possible, and stated that Moya still needed to provide a more detailed response to the respondent's Requests to Admit as well as answers to the respondent's Interrogatories. Finally, counsel advised Moya that although an ALJ had yet to be assigned to the case, Moya had left him no option but to file a motion to dismiss and to seek sanctions against him as soon as a judge was assigned.

On October 15, 2007, the Division mailed a notice of hearing on Moya's complaint to the parties. The notice included the name of the administrative law judge assigned to the case. On October 19, 2007, the respondent filed a Motion to Dismiss and Motion for Sanctions based upon Moya's failure to appear for his scheduled deposition, failure to comply with the respondent's discovery requests, repeated refusal to accept correspondence from the respondent regarding these issues and his failure in any way, shape or form to continue to prosecute his claim against the respondent. Among other things, counsel argued that Moya's retort of "we'll see if I show up" (at the deposition) gave a good indication of his intentional disregard of his obligations and that Moya's discovery responses were now more than three months overdue. Counsel argued that because of Moya's failure to respond in good faith to the Requests to Admit, each requested matter must be deemed admitted and therefore, Moya has effectively admitted, among other things, that the respondent did not discriminate against him because of his race or because it believed he would file a complaint under Wisconsin's Labor Standards Act. Further, the respondent argued that pursuant to Wis. Admin. Code § DWD 218.14(3), the ERD had authority under Wis. Stat. § 804.12 to dismiss a claim for failure to cooperate in discovery, including failing to appear for a deposition. [Citing Reed v. Wurth USA, (LIRC, 09/25/01)(Complainant's complaint dismissed where complainant failed to respond to discovery requests); B & B Investments v. Mirror Corp., 147 Wis. 2d 675, 434 N.W.2d 104 (Ct. App. 1988), rev. denied, 439 N.W.2d 140 (1989)]

The respondent argued that the sanction of dismissal was especially warranted here because of the egregious nature of Moya's conduct; that this was not a case where a pro se complainant simply does not understand what is requested or required of him, but a complainant who has consciously decided not to meet his obligations in prosecuting his claim by refusing to show up for his deposition, refusing to provide discovery responses, and refusing to even accept any communication from the respondent or its counsel. Further, the respondent argued that unless the Division finds that Moya's failure to attend his own deposition was substantially justified or that other circumstances make an award of expenses unjust, that under Wis. Stat. § 804.12(4), an award of reasonable expenses, including attorney's fees, is mandatory, not discretionary.

By letter to the ALJ dated January 30, 2008, counsel for the respondent requested that the ALJ rule on the respondent's Motion to Dismiss and Motion for Sanctions as soon as possible because a probable cause hearing was scheduled in the matter for February 22, 2008.

On January 30, 2008, the ALJ sent a letter to Moya requesting that he file a response to the respondent's Motion to Dismiss and Motion for Sanctions within seven days.

Moya filed a response on February 4. Moya asserted that his complaint should not be dismissed, that respondent's counsel had the opportunity for a deposition and documents on July 9, 2007, that counsel's "lack of due diligence, and failure to show up at the predetermined location is his own fault." Further, with regard to sanctions, Moya asserted that the respondent is the one that should be sanctioned, that the respondent violated "section 146.997" (the Healthcare Workers Protection Law), the Fair Employment Law's section 111.322 and the section 2 of the Wisconsin Constitution (Slavery prohibited). Moya also asserted that because of his loss of income, he had lost his home.

In a short reply brief in support of its Motion to Dismiss and Motion for Sanctions, the respondent argued that Moya's only responsive allegation, that its counsel failed to show up for the scheduled deposition, is patently false.

By letter to Moya dated February 18, 2007, the ALJ advised Moya that his responses to the respondent's motions were not satisfactory, that he must respond to each of the respondent's Requests to Admit, to each Interrogatory, that he must produce all documents requested or state a legitimate reason as to why he cannot or should not be required to produce them, and that he must show cause as to why his complaint should not be dismissed based on his failure to appear at his deposition and to respond to the respondent's discovery requests.

Moya filed a response on February 22. After complaining that the ALJ had not corresponded with him using stationery with the State of Wisconsin logo and the Governor's name on it, questioning why he had to respond within seven days, complaining that the ALJ had waited until three days before the hearing to let him know the hearing had been cancelled and asserting that he had lost his house because the respondent pocketed the Medicaid funds meant to pay the people that provided care to the disabled, Moya asserted that there was no way that he could fit what he had in his three bedroom house in a small apartment, and thus had "boxes of papers and junk all over the place, friends, relatives..." Further, Moya asserted "I already responded to the Motion to Dismiss. It must have been satisfactory, I didn't get any complaint within seven days."

Moya enclosed a "Motion for Summary Judgment" with his February 22 response. Moya included the following assertions in the Motion for Summary Judgment: That he has been as cooperative as possible in this matter with the respondent; that the documents respondent's law firm seeks, they already have; that all the documents he will be using are from the respondent, respondent's law firm, and, that counsel can get the documents produced at the unemployment hearing and the investigator, Charles Schlitz, himself; that the rest are minimum wage statutes, ch. HFS 133, the Fair Employment Act, etc.

Further, Moya asserted that while he was agreeable to a July 9, 2007 deposition, he was not agreeable to the location; that the respondent was not agreeable to his neutral location. In addition, Moya asserted that if the respondent is to believed, it wanted him to do his in-service at home for his convenience, "then why not my location (for the deposition), the Berlin Library? I have a disabled son...that has to be tube fed, he has to be changed when he's soiled, he gets tired and has to lay down. That would [have] been convenient for me and my son." Moya also asked what good a deposition of him would do. He asserted that because of his limited education, he wouldn't be answering very many questions; that if he does not understand a question he is not going to answer.

Finally, Moya indicated that if he did not receive a hearing in seven days, that he would include DWD in a complaint and take this matter into circuit court.

On March 3, 2008, the respondent filed a reply brief in support of its Motion to Dismiss and Motion for Sanctions, a response to Moya's Motion for Summary Judgment and an affidavit of one of its attorneys in support of its Motion to Dismiss. The respondent argued that by failing to respond to its Requests to Admit, even after a specific instruction by the Division to respond to the Requests to Admit, the respondent's Requests to Admit are deemed admitted under Wis. Stat. § 804.11(b). Namely, that the respondent did not discriminate against him because of his race or because it believed he would file a complaint under Wisconsin's Labor Standards Act, that the respondent terminated him for insubordination and that his termination was for legitimate, non-discriminatory reasons.

Further, the respondent argued that the Division had authority under § 804.12 to dismiss a claim for failure to cooperate in discovery, including failing to appear for a deposition; that Moya's refusal to respond to discovery and to comply with the Division's order, combined with his failure to appear at his deposition, are more than sufficient grounds for dismissal. In addition, the respondent argued that Moya's complaint should be dismissed for failure to comply with the Division's order because after being ordered by the Division to respond to its motion, Moya submitted a cursory and non-responsive letter, that the Division found this response to be unsatisfactory and that subsequently when the Division ordered him to show cause as to why his complaint should not be dismissed, Moya then sent another cursory and insubordinate response, stating that his first response to respondent's motion "must have been satisfactory."

Finally, with respect to Moya's Motion for Summary Judgment, the respondent argued, among other things, that this motion should be denied because the Division does not have authority to grant such a motion, and because Moya fails to establish any reason that judgment should be entered in his favor.

Moya responded by letter dated March 7, 2008, again asserting that the respondent failed to show up for his deposition and that he was as cooperative as he possibly could be. He asserted that the case "should not be dismissed nor sanctioned." Further, he noted that he had previously stated that if he had not received a hearing in seven days, he was taking his case elsewhere and that Monday, March 3rd was the deadline.

By letter to the ALJ dated March 12, the respondent requested that the ALJ issue a decision on its Motion to Dismiss, and in the alternative, a Motion for Sanctions.

On May 29, 2008, the ALJ issued an order dismissing Moya's complaint "Based upon the Complainant's failure to respond to the Respondent's discovery requests in the form of Interrogatories, Requests to Admit, and Requests for Production of Documents, and/or to the Motion to Dismiss the complaint, and to the Administrative Law Judge's Order."

On June 2 Moya filed an appeal to what he characterized as "the deliberate, and erroneous dismissal of my complaint" by the ALJ. Also on June 2, the commission received a letter from Moya which stated "This is my appeal, to the half-truths dismissal of my complaint" by the ALJ. 
 

DISCUSSION

With respect to a party's failure to comply with discovery requests, the administrative rules of the Equal Rights Division provide that "The administrative law judge may...impose sanctions in the manner provided under ch. 804, Stats." Wis. Admin. Code § DWD 218.14(4). Under chapter 804 of the Wisconsin Statutes, section 804.12(2)(a) provides that "If a party...fails to obey an order to provide or permit discovery...the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following: ...3. An order...dismissing the action or proceeding..." In addition, Wis. Stat. § 804.12(4) provides that "If a party...fails (a) to appear before the officer who is to take the party's deposition, after being served with a proper notice, or (b) to serve answers or objections to interrogatories submitted under s. 804.08, after proper service of the interrogatories, or (c) to serve a written response to a request for inspection submitted under s. 804.09, after proper service of the request...the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others, it may take any action authorized under sub. (2)(a)...3. In short, these failures also permit the dismissal of an action or proceeding.

The sanction of dismissal of an action or proceeding will be sustained if there is a reasonable basis for the court's determination that the non-complying party's conduct was egregious and without clear and justifiable excuse. Sentry Insurance v. Davis, 2001 WI App 203, 247 Wis. 2d 501, 634 N.W.2d 553 (2001); Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 470 N.W.2d 859 (1991).

Moya's failure to respond to the respondent's properly noticed June 6, 2007 discovery requests was egregious. Moya's response to the respondent's Requests for Production of Documents was to state that the "request for production of document[s] is denied." Moya provided a single response to the respondent's Requests to Admit, stating that "Respondent's request[s] to admit are denied." Thereafter, respondent's counsel advised Moya that Wis. Stat. § 804.11 required that he respond to each Request to Admit separately and repeatedly requested that he do so, to no avail. Moya did not comply with the respondent's Requests for Production of Documents. He also did not comply with the respondent's repeated requests that he respond to the respondent's Written Interrogatories. Further, Moya failed to appear for his scheduled deposition and he failed to respond to counsel's subsequent request that he provide dates of availability, so that the deposition could be rescheduled.

On October 19, 2007, more than three months after Moya's responses to the discovery requests were due, the respondent filed a Motion to Dismiss and Motion for Sanctions. In response to the ALJ's January 30, 2008 request that he provide a response to the respondent's motions, Moya asserted that his complaint should not be dismissed, that it was the respondent's counsel who had "fail[ed] to show up at the predetermined location". By letter dated February 18, 2007, the ALJ advised Moya that his response to the respondent's motions were not satisfactory, that he must respond to each of the respondent's Requests to Admit, to each Interrogatory, that he must produce all documents requested or state a legitimate reason as to why he cannot or should not be required to produce them, and that he must show cause as to why his complaint should not be dismissed based on his failure to appear at his deposition and to respond to the respondent's discovery requests. Moya's only relevant responses to the ALJ's order included assertions about having "boxes of papers all over the place" and having "already responded to the Motion to Dismiss." In a letter dated March 7, 2008, he again asserted that it was the respondent that had failed to show up for his deposition.

Moya appears to assert a number of reasons for his failure to respond to the respondent's Requests to Admit, Request for Production of Documents and Interrogatories. They include the following: He works around the clock and has no time; the respondent already has, or may obtain from others, the documents it seeks from him; he does not understand the respondent's discovery requests and that the documents the respondent seeks are in boxes "all over the place" including with friends and relatives. Moya's assertions fail.

While Moya apparently asserts that he "works around the clock and ha[s] no time" to respond to the respondent's discovery requests", in his initial response to the respondent's notice of intent to take discovery from him Moya did not indicate that he would be unavailable to provide discovery because he works around the clock and has no time; he stated, "Please, let me know when and where at what time." Further, while Moya may have the responsibility of caring for his disabled son, Moya's assertion that he had "no time" to respond to the discovery requests is simply not believable. Moreover, as a party that has brought an action against another party, Moya had responsibilities and obligations that he must attend to in the pursuit of that action, which included responding to properly served discovery requests by the opposing party.

Contrary to Moya's assertion, the respondent did not already possess all of the documents that it sought from him. The respondent's production of document request included documents concerning his pay, wages and benefits if he had obtained employment since leaving the respondent, and any documents concerning any current or past grievance, charge, lawsuit or legal action in which he was a named party. Furthermore, the respondent was entitled to require that Moya produce these requested documents.

In addition, with respect to his apparent alleged lack of understanding of the respondent's discovery requests, the respondent's counsel's July 2, 2007 letter sent to Moya asked Moya to contact him if he had any questions. Furthermore, an information sheet that the Division enclosed with the October 15, 2007 notice of hearing issued to the parties briefly discussed the topic of pre-hearing discovery and advised the parties to contact the administrative law judge assigned to the case if they had any questions.

It is not known when Moya had to place boxes containing various documents with friends and relatives as a result of losing his home and moving into a small apartment. However, regardless of when Moya moved, he had ample time to look for any documents requested by the respondent since the respondent's discovery requests were first made on June 6, 2007, and his complaint not dismissed for failure to respond to the respondent's discovery requests until May 29, 2008.

Finally, with respect to his failure to attend his own deposition, Moya asserts that it was the respondent's counsel's "failure to show up at the predetermined location". Apparently, Moya claims this was at the public library. Moya's assertions fail. Contrary to Moya's assertion, the record shows that the only location scheduled for Moya's deposition was the respondent's corporate office at 424 Washington Avenue in Oshkosh, Wisconsin. Further, counsel for the respondent has filed an affidavit indicating that he appeared at the respondent's facility for Moya's deposition. Moya has asserted that the public library was more convenient for him because his disabled son has to be tube fed, changed when he's soiled and has to lie down when he gets tired. Moya apparently also views the library as a neutral location. However, it is not apparent how a public library would have made it more convenient to feed his son, change him when he was soiled and allow him to lie down when he was tired. Furthermore, the respondent's scheduling of the deposition at its corporate office was reasonable. Moya has also asserted that his appearing for a deposition would have been useless because he would not be able to answer many questions due to his limited education. However, it was not for Moya to decide whether or not it would have been useless for him to appear at the deposition.

cc: Attorney Scott C. Beightol

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