CHARLES GRIFFIN, Complainant
MANOR CARE HEALTH SERVICE, Respondent
Procedural History
On February 23, 2007, the complainant filed a complaint alleging, as follows:
"I Charles Griffin believe that I was discriminated by "Manor Care." I applied for a "CNA" position on 2-20-07, and I was told by the director of nurses who told me that it was company policy that they could not hire someone with a drug charge on their record. I believe I was discriminated against because I was a black male and they didn't want black men working there. While I was there, I only seen white employees. All the staff there were white. They are using the arrest for a reason not to hire me."
In a written response to the complaint, the respondent explained that the complainant applied for a job with it on March 17, 2006, and was interviewed the same day. Following the interview, the respondent conducted a background check. The complainant had completed a disclosure form, and had answered "no" to the question, "Do you have criminal charges pending against you, or were you ever convicted of any crime anywhere, including federal, state, local or tribal courts?" The respondent learned, as a result of its background check, that on February 14, 2006, the complainant was arrested for possession of cocaine, and that the charges against him had not yet been resolved. The respondent contacted the complainant to find out why he had not disclosed this pending arrest. The complainant stated that he was in the wrong place at the wrong time and should never have been charged. He further indicated that he was going to find out more about the status of the charge and get back to the respondent. However, the complainant did not do so. The respondent concluded that the complainant falsified his application, and as a consequence, he was no longer considered for employment.
The respondent explained that the complainant applied again on February 20, 2007. On his application he indicated that he had previously worked for the respondent, a fact he did not disclose on his March 17, 2006, application. The respondent ran a check on the complainant's employment and found that he had worked for it from October 3 through October 29, 2005, but had walked off the job and was considered ineligible for rehire. His application was therefore not considered.
In a response to the respondent's statement, the complainant provided his version of events regarding the separation in 2005, disputing that he walked off the job. The complainant also contended that he was told by the director of nursing that he was not being hired because of a drug charge.
On December 13, 2007, an Equal Rights Officer (hereinafter "ERO") for the Equal Rights Division issued an initial determination finding no probable cause on the race and color complaints, (1) but finding probable cause on the arrest record complaint.
The ERO found that, in March of 2006, the complainant said "no" to the question about pending charges because he believed he had no pending charges. He found that DOJ documents showed that the complainant was arrested for possession of cocaine on February 14, 2006, and that the complainant explained to the respondent that he did not believe the arrest would show on his record and that he would find out more about the situation and get back to it, but did not. The ERO made a finding that the respondent believed the complainant had falsified his application and, further, that he failed to provide additional information about his arrest as requested, and that it therefore decided not to consider the complainant for employment. As part of his investigation, the ERO contacted the Green Bay Police Department to request information about the complainant's arrest, but the police department was unable to release copies of the complainant's records. The ERO also contacted the Brown County DA's office, which had no record that the case had been referred for prosecution.
The ERO provided the following explanation for his decision to find probable cause based on the findings discussed above:
"The Respondent did consider the Complainant's arrest record when making its decision whether to employ the Complainant as a CNA. The Act in part states that ". . . it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job or licensed activity." In the Complainant's situation, the Green Bay Police Department arrested the Complainant for a misdemeanor possession of cocaine. The Brown County DA's office has yet to charge the complainant related to his arrest and there is no information whether the Brown County's DA's office will ever file charges against the Complainant related to his arrest. Therefore, the question is whether the Complainant is an individual "subject to a pending criminal charge" as defined by the Act. Such questions of legal interpretation need to be addressed at the Administrative Hearing where an Administrative Law Judge can review and make a decision regarding such issues."
On January 16, 2008, the case was certified for hearing on the issue of discrimination based upon arrest record. On April 30, 2008, a hearing notice was issued for an August 6, 2008, hearing and, on June 11, 2008, the respondent submitted its answer to the complaint, in which it raised several affirmative defenses, including that the complaint was barred by the statute of limitations. On June 16, 2008, the respondent filed a motion to dismiss. The respondent contended that the initial determination finding probable cause was based on the March 17, 2006, job application, which events occurred more than 300 days before the complaint was filed, and that there was no finding that the respondent considered the complainant's arrest when it decided not to hire him in February of 2007.
The administrative law judge sent the complainant a letter, giving him until July 11, 2008 to respond to the motion to dismiss. The complainant did not file a response.
In the mean time, the respondent sought to conduct pre-hearing discovery. On June 13, 2008, the respondent sent a letter to the Division, with a copy to the complainant, indicating that it intended to seek discovery. On June 17, 2008, the respondent sent the complainant notice that it intended to take his deposition on July 17, 2008. The notice was sent to the complainant at P.O. Box 446, Green Bay, WI 54305, which was his address of record at that time. (2) On July 9, 2008, the respondent sent the complainant a letter reminding him that it would be taking his deposition on July 17, 2008. However, the complainant did not appear at the deposition.
On July 21, 2008, the respondent submitted a second motion to dismiss, this time based upon the complainant's failure to comply with discovery. In support of its request, the respondent supplied a transcript of the deposition, prepared by a court reporter, which indicated that the complainant had not appeared at the scheduled deposition. In the transcript the respondent's attorney provided the procedural history underlying its discovery efforts, and added that he would have tried to contact the complainant by telephone to find out where he was, but that the complainant had not provided any telephone number. The respondent requested a dismissal of the complaint or, in the alternative, a postponement of the hearing date.
On July 22, 2008, the complainant telephoned the administrative law judge to request a continuance of the hearing because he wanted more time to find an attorney to take his case. The complainant indicated that he had not yet received the respondent's motion to dismiss. The administrative law judge told the complainant that he could file a response to the motion and that the administrative law judge would consider it. The complainant promptly faxed the administrative law judge a note stating that he objected to the dismissal of his case but would not object to a postponement.
On July 23, 2008, the administrative law judge sent the complainant a letter at his most recent address, P.O. Box 446 in Green Bay, WI, notifying the complainant that he was giving him until August 15, 2008 to find an attorney, but that if no attorney had contacted the administrative law judge by that time he would rule on the motions to dismiss. The administrative law judge went on to state:
"If you have not hired a lawyer by that date then you must file a proper response to the motions. Your response must be postmarked by Friday, August 22, 2008. A proper response is one that contains an organized argument explaining why I should not grant the motions to dismiss. If you decide not to file a response I will decide the motions without benefit of your input. . ." (emphasis omitted).
The administrative law judge did not receive any notification that the complainant had hired an attorney. The complainant also did not file a response to the motions to dismiss.
On March 19, 2009, the administrative law judge issued a decision dismissing the complaint as untimely. The administrative law judge reasoned that the initial determination which found probable cause was premised on the March 17, 2006, employment application, but that the complainant did not file his complaint until 343 days after having filed the March 17 application. The administrative law judge found that the complainant was aware as of March 17, 2006, that the respondent was not going to hire him for reasons related to his arrest record, and had 300 days to file a complaint. The administrative law judge noted, "Submitting a second application just prior to filing a complaint is a not so subtle attempt to make repeated refusal to hire a continuing violation."
The administrative law judge did not make any ruling with respect to the motion to dismiss based upon the complainant's failure to appear at his deposition, finding it unnecessary to do so, as he had dismissed on a separate basis. The complainant has filed a petition for review of the administrative law judge's dismissal.
Discussion
The decision to dismiss the complaint based on timeliness was in error. In his complaint the complainant did not raise any allegations of discrimination with respect to the March 17, 2006, failure to hire. His only allegation was that he was denied a job in February of 2007. That the ERO chose to focus on the March 2006 application, and found probable cause on that basis, does not change the fact that the complaint is about the February 20, 2007 application. A complaint filed on February 23, 2007, alleging a discriminatory hiring decision made three days earlier, must certainly be considered timely.
However, while the commission considers that it was error to grant the respondent's motion to dismiss based upon the statute of limitations, it believes that dismissal of the complaint is nonetheless appropriate based upon the complainant's failure to appear at his deposition.
Wisconsin Statute § 804.12(4) provides, in relevant part, as follows:
FAILURE OF PARTY TO ATTEND AT OWN DEPOSITION OR SERVE ANSWERS TO INTERROGATORIES OR RESPOND TO REQUEST FOR INSPECTION OR SUPPLEMENT RESPONSES. 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. . . 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) 1., 2. and 3. . . .
Wis. Stat. § 804.12(2)(a)(3) provides for, among other sanctions, dismissal of the action.
Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step, but one which is warranted in certain cases. Reed v. Wurth USA (LIRC, Sept. 25, 2001). The failure of a party to attend his own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint the first time it happens, even absent a "warning," such as an Order to Compel. McAdoo v. Wm. Beaudoin & Sons, Inc. (LIRC, April 19, 2000). 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).
Here, the notice of deposition was sent to the complainant at his most recent address of record, followed by a reminder notice. The mailing of a letter creates a rebuttable presumption that the letter was delivered and received, which shifts to the challenging party the burden of presenting credible evidence of non-receipt. Deering v. Beverly Enterprises-Wisconsin Inc. (LIRC, June 20, 2008), citing State ex rel. Flores v. State, 183 Wis. 2d 587, 612-613, 516 N.W.2d 362 (1994). In this case, the complainant has made no argument that he did not receive notice of the deposition and has presented nothing to rebut the presumption of receipt. It is, therefore, presumed that the complainant received the deposition notice.
The complainant never informed the respondent that he would be unable to appear at the scheduled deposition, and made no request to change the date or location of the deposition. The complainant has provided no excuse for his failure to appear, although given a specific opportunity to do so by the administrative law judge, leading to the inference that there was, in fact, no valid excuse for the failure to appear. Under all the circumstances, dismissal of the complaint is an appropriate sanction for the complainant's failure to appear at his deposition.
The administrative law judge's decision is modified and, as modified, is affirmed. The complaint in this matter is hereby dismissed with prejudice.
Dated and mailed March 23, 2010
griffch . rmd : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
cc:
Attorney George R. Wood
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