WILLIAM MILES BETTS, Complainant

BAY AREA MEDICAL CENTER, Respondent

An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development issued an order on July 23, 2008, dismissing this matter. A timely petition for review was filed.

The commission has reviewed the petition, the positions of the parties, and the file in this matter.

The complainant (Betts) was employed by the Respondent (BAMC) as a respiratory therapist from May 21, 2001, through December 28, 2006, the date of his discharge.

On April 30, 2007, Betts filed a charge with ERD alleging that he was suspended on March 14, 2006, and discharged on December 27, 2006, in retaliation for engaging in reporting activities protected by the Health Care Worker Protection Act (HCWPA).

On September 20, 2007, an ERD investigator issued an initial determination concluding that there was no probable cause to believe that Betts had been disciplined for engaging in an activity protected by the HCWPA, or to believe that BAMC had failed to post the required HCWPA notice.

Betts filed a timely appeal of the no probable cause initial determination, and ERD certified this matter for hearing on September 26, 2007.

On May 6, 2008, ERD issued notice that hearing would be conducted on September 11, 2008.

In correspondence dated February 1, 2008, and received by ERD on February 4, 2008, counsel for BAMC, as required by Wis. Adm. Code § DWD 218.14(2), provided notice that it intended to serve discovery interrogatories, requests for production of documents, and requests for admission upon Betts, and provided copies of these interrogatories and requests.

These discovery requests consisted of 20 written interrogatories, 3 requests for production of documents, and 42 requests for admission.

On February 19, 2008, counsel for BAMC served these interrogatories and requests on Betts by sending them through certified mail to his address of record.

This mailing was returned to counsel for BAMC by the postal service with an indication that Betts had been provided notice of the mailing on February 21 and 27 but had not claimed it.

On March 11, 2008, counsel for BAMC, noting in his cover letter that the prior certified mail had gone unclaimed, again mailed the requests to Betts, this time by first class mail with return receipt requested.

In a one-page letter received by counsel for BAMC on March 18, 2008, Betts stated generally that he would present at his "arbitration" three letters of recommendation attesting to his competence as a respiratory therapist; a letter from the CEO of BAMC relating to the conduct of a daughter of a certain patient; and respiratory, medication, and medical documentation standards.

In response, counsel for BAMC, on May 14, 2008, filed a motion to compel discovery.

By letter dated May 16, 2006, the assigned ALJ, noting that Betts' response to BAMC's discovery requests was certainly not acceptable, stated, as relevant here:

I will give Mr. Betts until June 2, 2008, to make reasonable efforts to either complete requested discovery or to come to an agreement with Mr. Dennehy [counsel for BAMC] regarding what discovery would be acceptable, and when it would be provided. If this issue is not resolved by June 2, 2008, I will order the completion of reasonable discovery.

In this letter, the ALJ reminded Betts of his obligation to participate in the discovery process, and informed him that failure to reasonably comply with discovery requirements could result in the imposition of sanctions, including dismissal of his charge.

On June 3, 2008, Betts provided responses to the 20 written interrogatories, and supplied certain documents, but did not respond to the requests for admission.

On June 9, 2008, counsel for BAMC filed a motion to compel discovery, indicating that Betts' answers to interrogatories 2, 3, 5, 6, 14, 15, and 16 were incomplete or unresponsive; and Betts had failed to respond to the requests for admission which would, as a result, be deemed admitted. This motion did not reference the requests for production of documents.

By letter to Betts dated June 10, 2008, the ALJ stated as follows:

I set [sic] you a letter dated May 16, 2008 giving you until June 2, 2008 to work out discovery issues with Mr. Dennehy. I received nothing from you in response.

I now have received a Motion to Compel from Mr. Dennehy. Your lack of a response gives me no choice but to grant that motion, and to order you to complete discovery to Mr. Dennehy's satisfaction by July 1, 2008.

If you fail to complete discovery by July 1, 2008, I will dismiss your complaint, unless there is a compelling reason not to. If you complete discovery, I will give the parties an opportunity to argue the issue of whether attorneys' fees and costs should be ordered.

On July 3, 2008, counsel for BAMC received additional interrogatory responses from Betts.

On July 18, 2008, counsel for BAMC filed a Motion to Dismiss for failure to make discovery, or, in the alternative, a Motion for Sanctions. In this motion, counsel for BAMC contends that Betts' responses to interrogatories 2, 5, and 6 remained incomplete, and that Betts had failed to properly respond to requests for production of documents 1 and 2.

On July 21, 2008, counsel for BAMC received the following communication from Betts (emphasis in original):

You received in a prior mailing the documentation from another hospital's charting showing why therapies were missed. Also in that mailing you received written statements from two physicians, and a Registered Respiratory Therapist who hired me after my employment with Bay Area Medical Center.

As a member of a Collective Bargaining Group I am entitled to arbitration hearing.

Please do not try to intimidate me nor harass me any further.

I look forward to having my case heard on 11 Sept 2008.

In a decision dated and mailed on July 23, 2008, the ALJ granted BAMC's motion to dismiss. In this decision, the ALJ erroneously states that Betts "made no response to [ALJ Schacht's] May 16, 2008 letter;" and "Mr. Betts gave no response to the [June 10, 2008] order requiring him to complete discovery." In fact, as set forth above, Betts responded to the May 16, 2008, letter on June 3, 2008; and to the June 10, 2008, order on July 3, 2008. Even though Betts apparently did not send copies of these responses to the ALJ, counsel for BAMC enclosed copies of these responses with the motions he filed with the ALJ on June 9 and July 18.

Betts filed a timely petition for review of the ALJ's decision.

Wisconsin Administrative Code § DWD 218.14(3) provides that the scope, methods, and use of discovery in WFEA actions "shall be the same as set forth in ch. 804, Stats."

Wisconsin Statutes § 804.12 states as follows, as relevant here:

804.12 Failure to make discovery; sanctions.

(1) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(a) Motion. If a ... party fails to answer an interrogatory submitted under s. 804.08...the discovering party may move for an order compelling an answer...in accordance with the request....

(b) Evasive or incomplete answer. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer.

(c) Award of expenses of motion....

804.12(1)(c)1.

(2) Failure to comply with order.

(a) If a party...fails to obey an order to provide or permit discovery, including an order made under sub. (1) or s. 804.10, 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:

1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence;

3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical, mental or vocational examination....

Wisconsin Statutes § 804.09(2) provides that a party who has made a request for the production of documents "may move under s. 804.12(1) with respect to any objection to or other failure to respond to the request."

Pursuant to Wis. Stat. § 804.11(1)(b), subject to certain exceptions, if a party fails to respond to a request for admission within 30 days after services of the request, or such other time as the forum may prescribe, the subject of the request is deemed admitted.

Here, unlike the circumstance in the commission's recent decision in Roen v. Allen Bradley Rockwell Automation, Inc., ERD Case No. CR2006022025 (LIRC Aug. 19, 2008), the ALJ did not make a reasonable effort to guide the unrepresented complainant through the discovery process. In fact, in his June 10 order and his July 23 decision, he seemed unaware that Betts had actually provided two sets of responses to BAMC's interrogatories, and that BAMC had objections to only a few of these responses. Moreover, it does not appear from the file that the ALJ provided Betts an opportunity to respond to the motions to compel and the motion to dismiss.

Despite this lack of guidance and opportunity for input, Betts managed to achieve substantial compliance in his responses to the written interrogatories. Moreover, there would have been no reason for Betts, in view of the fact that counsel for BAMC did not reference the request for production of documents in its June 9 motion to compel discovery, to believe that the documents he had produced to date were not sufficiently responsive.

Dismissal of an action or proceeding is a harsh sanction for a discovery failure, appropriate only if the non-complying party's conduct was egregious and evinced an intent not to cooperate with the discovery process. 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). Johnson v. Covenant Healthcare Systems, Inc., ERD Case No. 200500090 (LIRC July 27, 2007).

Betts' conduct here was not sufficiently egregious to warrant dismissal, and, particularly after the communications from the ALJ, did not evince an intent not to cooperate with the discovery process. As a result, the ALJ's dismissal is reversed and this matter remanded to ERD for further proceedings consistent with this decision.

The ALJ's order is reversed, and this matter remanded to ERD for action in accordance with this decision.

Dated and mailed September 19, 2008
bettswi . rrr : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Daniel T. Dennehy

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