JANE A. ANDERSON, Complainant

COLUMBIA-ST MARY'S HOSPITAL, 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 record which was before 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 April 16, 2013
anderja_rsd : 110 :

BY THE COMMISSION:

Robert Glaser, Chairperson

Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

The complaint alleged that the employee, a 59-year-old LPN, was terminated because of her age. After investigating, the Equal Rights Division concluded that there was no probable cause to believe that such discrimination occurred. The complainant filed an appeal, and the matter was certified to hearing.

On September 25, 2012, the respondent filed and served notice that it intended to engage in discovery from the complainant. Then on October 15, the respondent served the complainant with its First Set of Requests for Admissions, Interrogatories and Requests to Produce Documents. The deadline for the complainant to respond to respondent's discovery requests was November 19.

A few days before that deadline, the complainant telephoned respondent's attorney and told her that she was represented by an attorney. That turned out to be untrue.

The complainant then did not respond to the discovery requests by the deadline. The respondent's attorney thereafter wrote the complainant on November 20 to tell her that because she had not received any discovery responses and they were overdue, the respondent would be treating the Requests for Admissions as having been admitted. She also told the complainant, though, that she would consider granting a short extension to allow the complainant to provide responses to the respondent's Interrogatories and Document Production Requests, but that she wanted a written request for such an extension.

The complainant did not respond to that letter, and she did not provide any discovery responses. The respondent's attorney wrote to her again, on December 5, stating that it appeared that the complainant did not intend to respond to her but that if that was not the case, she should contact her to discuss provision of the discovery responses.

The complainant did not respond to that letter. The respondent's attorney made yet another attempt to contact the complainant on January 7, 2013, this time by e-mail. She noted that she had attempted to reach her by phone but the number appeared to be disconnected. She noted further that the complainant had not contacted her since November 15. She stated that the respondent would be filing a motion to dismiss.

On January 9, the respondent's attorney filed a motion to dismiss or alternatively for an order to compel discovery.

By January 18, the complainant had not responded to the motion to dismiss, and the ALJ to whom the case had been assigned issued a letter addressing the motion which had been filed by the respondent.

The ALJ's January 18 letter stated, in relevant part:

Ms. Hall's affidavit, combined with your lack of any communication to the Division, warrants granting Ms. Hall's Motion.

You have until February 11, 2013 to completely comply with Ms. Hall's discovery requests. Failure to do so could result in the dismissal of your case. If you have any questions about what you are required to do, you may call me...

(emphasis in original). The complainant did not comply by February 11; instead, she telephoned the ALJ on that day requesting an extension based on claimed health problems. She stated that she could respond within a week. The ALJ gave her until February 25 to respond and work with the respondent's counsel to ensure her discovery responses were complete.

On February 16 the complainant filed and served a letter to the ALJ, a copy of a letter she had previously sent to the ERD investigator, a letter from another nurse at Columbia, a written statement by the complainant setting out her view of her case, and around 120 pages of assorted attachments from various sources. While the complainant's letter to the ALJ asserted that the complainant was "doing [her] best" to meet the request for discovery, this February 16 submission made no attempt to specifically respond to either the Interrogatories or the Requests for Document Production which were pending.

On February 19, the respondent sent the complainant a letter objecting that the materials submitted were not a response to the respondent's discovery requests, and that the complainant had failed entirely to respond to the discovery requests and had not complied with the ALJ's January 18 order.

By March 1, the complainant had served nothing further. On that date, the ALJ issued an Order of Dismissal. The ALJ explained his rationale this way:

Ms. Anderson did not comply with the Order to Compel, despite being given more time to do so. Ms. Anderson provided no written response to Ms. Hall at all. The response received by the Division is completely without response to the Interrogatories and Requests for Admission. Ms. Anderson failed to follow up her responses after consultation with Ms. Hall regarding deficiencies in her response. Ms. Anderson's calls indicated that she received the Order the (sic) January 18, 2013 letter. Ms. Anderson was able to contact the undersigned about an extension, so if she was planning on doing anything further she was would (sic) have done so again. Under these circumstances, the conclusion that Ms. Anderson does not intend to comply with the Order to Compel is necessary.

He ordered the complaint dismissed based on the complainant's failure to comply with the Order to Compel.  
  

Discussion - The administrative rules of the Equal Rights Division incorporate all of the discovery procedures set out in Wis. Stat. Ch. 804, into the hearing process under the Wisconsin Fair Employment Act. Wis. Adm. Code § DWD 218.14. Those rules expressly provide that ALJs may compel discovery, issue protective orders, and impose sanctions in the manner provided under Ch. 804. See, Wis. Adm. Code § DWD 218.14(4).

Dismissal of a complaint may be an appropriate sanction for a complainant's failure to comply with a respondent's discovery requests. See, e.g., Smith v. Norris Adolescent Center, ERD Case No. 8652337 (LIRC, Apr. 21, 1989), Gemmell v. ABFM, ERD Case No. 9254122 (LIRC, Feb. 24, 1994), Burgess v. Milwaukee Forge, ERD Case No. 9354658 (LIRC, Jun. 13, 1995). The relevant inquiry is whether the noncomplying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand, or whether the noncomplying party's conduct, even though unintentional, is so extreme, substantial and persistent that it can properly be characterized as egregious. See, Perez v. Synico Staffing Inc., ERD Case No. 200902139 (LIRC, Dec. 9, 2010).

In the context of review of an ALJ's order imposing a sanction for non-compliance with a discovery order, the standard applied is whether LIRC finds the ALJ's decision on the issue to have been an abuse of discretion. Kutschenreuter et ano. v. Roberts Trucking, ERD Case Nos. 200501465, 2005014 (LIRC, Apr. 21, 2011). The question here is whether the ALJ reasonably exercised his discretion, by examining the relevant facts, applying a proper standard of law using a rational process, and reaching a reasonable conclusion.

Even taking into account that the dismissal of a complaint is the most serious step that can be taken as a sanction, the commission believes that the ALJ's exercise of discretion here was reasonable. His decision shows that he considered the whole history of the discovery process, and his description of what occurred is accurate. The standard he applied focused on the question of whether the complainant intended to comply with the order he had issued (by his letter of January 18, 2013) directing her to comply with the respondent's discovery requests. That comported with the standards the commission looked to in Perez, supra, that:

it is readily understood that bad faith by its nature cannot be unintentional... it is apparent that to dismiss a complaint for bad faith, the trial court must find that the noncomplying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand...

(emphasis added).

It is reasonable to find that the complainant's non-compliance with her discovery obligations and with the order of the ALJ was intentional, because of its persistence in the face of the repeated and clear warnings to the complainant by both the respondent's counsel and the ALJ. The respondent's counsel exercised restraint in her November 20, 2012, response to the first non-compliance by the complainant, when she initially failed to serve timely responses. Respondent's counsel essentially coached the complainant on how she ought to proceed if she wanted an extension of the due date for the discovery responses, and she even assured her of her willingness to grant a short extension. Even after the complainant then failed to follow up with either compliance or a request for an extension as she had suggested, when respondent's counsel wrote the complainant again on December 5, she still effectively gave her an extension of 5 days, by telling her that she would seek dismissal if the complainant did not contact her by the 10th. Respondent's counsel then exercised further restraint by not actually taking the step of filing a motion to dismiss until January 9, 2013. The ALJ similarly exercised restraint, and gave the complainant an opportunity to avoid the consequences of her failure to cooperate, when he responded to the motion to dismiss on January 18. He explained the rights and responsibilities involved in the discovery process, he prominently warned the complainant of the consequences of non-compliance, and he gave the complainant until February 11 - an effective extension of over 3 weeks - to comply. When she then failed to comply by that date, the ALJ gave her another extension, to February 25, 2013. Given all of this, it is all the more significant that the complainant's February 18, 2013 purported discovery response did not show any attempt to respond specifically to the interrogatories and document production requests. By this point, it was a reasonable inference, if not a compelling one, that the complainant did not actually intend to comply with the obligations imposed on her by the discovery requests and the ALJ's order.

For all the foregoing reasons, the commission agrees with and affirms the decision of the ALJ.

cc: Jill Pedigo Hall, Attorney for Respondent

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uploaded 2013/05/16