KELLY WELKE, Complainant
LUTHER HOSPITAL
MAYO HEALTH SYSTEM, 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 makes the following:
1. On February 23, 2012, the complainant, Kelly Welke (Welke), through her attorney, Carol S. Dittmar, filed a complaint of discrimination against the respondent, Luther Hospital Mayo Health System (Luther), with the Equal Rights Division (ERD).
2. The complaint alleged that Luther had discriminated against Welke by terminating her employment and refusing to hire or employ her because of disability, and by refusing to accommodate a disability.
3. On July 9, 2013 an investigator for the ERD issued an Initial Determination finding no probable cause to believe that Luther had violated the Wisconsin Fair Employment Act (WFEA).
4. Welke filed a timely appeal and the case was certified on July 23, 2013 for a hearing on the issue of probable cause.
5. On or about September 4, 2013, Luther, through its attorney Leslie Sammon, served discovery requests on Welke's attorney. The discovery included interrogatories, requests for production of documents, and a request that Welke authorize the release of medical records to Luther.
6. Responses to these discovery requests were not made within the time required by Wis. Stat. § 804.08 and Wis. Admin. Code DWD § 218.14. For approximately six weeks after discovery responses were due, Luther's attorney made several unsuccessful attempts to contact Welke's attorney to follow up on the failure to serve responses. Then on November 20, 2013 Luther's attorney successfully made telephone contact with Welke's attorney, and Welke's attorney promised responses by the end of the week.
7. On November 22, 2013 Luther's attorney received discovery responses from Welke's attorney. The responses were not signed by Welke or the attorney, and did not include the authorization for release of medical records. In addition, Luther's attorney considered a number of the responses to interrogatories to be incomplete. On December 24, 2013, Luther's attorney sent a letter to Welke's attorney summarizing the deficiencies she found in the responses, and asking for complete responses addressing the deficiencies within 10 calendar days of the date of the letter, or Luther would bring a motion to dismiss the complaint, or, alternatively, to compel responses.
8. On or about January 13, 2014, Welke's attorney sent an e-mail to Luther's attorney stating that she would be available the following week to discuss the parties' discovery differences.
9. On January 15, 2014 Luther filed a Motion to Dismiss or in the Alternative to Compel Discovery, along with a Memorandum and an Affidavit from Luther's attorney. Between the time Welke's responses to discovery were served on Luther, and the time the motion to compel was filed, the parties had no oral communications to try to resolve their discovery differences. In none of the documents filed by Luther on January 15, 2014 was there a statement to the effect that the parties were unable to reach an agreement, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences over discovery.
10. On January 24, 2014 the ALJ assigned to the case sent a letter to the attorneys acknowledging receipt of the motion, and ordering the complainant to reply to the motion by February 5, 2014.
11. On February 5, 2014 Welke's attorney filed a reply to the motion. In that reply, Welke's attorney recounted having had a telephone conversation that day with Luther's attorney, in which the parties' discovery differences were discussed, without any resolution being reached. Welke's attorney provided a signed authorization for release of medical records to Luther's attorney at this time, and briefly argued that the answers to interrogatories were complete.
12. On February 20, 2014, the ALJ issued an order granting Luther's motion to compel, except with respect to interrogatory no. 4. The order required responses from Welke no later than February 28, 2014, and advised that failure to comply may result in sanctions, including the possibility of dismissal.
13. The complainant had not served any additional discovery responses on the respondent by February 28, 2014. Instead, on February 28, 2014 Welke's attorney filed by e-mail a request to be heard on Luther's motion to compel.
14. On March 3, 2014 Luther's attorney filed a request by email requesting that "its motion to dismiss, with prejudice, be granted..." The only motion Luther had filed, up to that time, was its motion filed January 15, 2014 requesting an order to compel or, alternatively, an order of dismissal.
15. That same day, March 3, 2014, the ALJ issued a letter to the parties declaring that she was going to dismiss the complaint for failure of the complainant to comply with her order to compel discovery. An order of dismissal with prejudice was issued on March 5, 2014.
16. There was no indication that the complainant herself was at fault in the failure to comply with discovery obligations, and no indication that the ALJ's order of dismissal was supported by a determination that the complainant was at fault.
Based on the above FINDINGS OF FACT, the Commission makes the following:
The ALJ erroneously exercised her discretion when she dismissed the complaint in this matter with prejudice.
The Order of the ALJ is set aside and this matter is remanded for further proceedings consistent with this decision.
Dated and mailed
May 30, 2014
welkeke_rrr . doc : 107 : 5 761
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Administrative rules of the Equal Rights Division incorporate the scope, methods and use of discovery as set out in Wis. Stat. ch. 804, and give the administrative law judge the authority to compel discovery, issue protective orders, and impose sanctions in the manner provided under ch. 804. Wis. Admin. Code § DWD 218.14. In review of an ALJ's rulings on discovery motions, the commission applies a deferential standard, under which it asks whether the ruling was a reasonable exercise of discretion or an abuse of discretion. See Wells v. Roadway Express, ERD Case Nos. 199700518 & 199801274 (LIRC May 13, 2002); Anderson v. Columbia-St. Mary's Hospital, ERD case No. 201201503 (LIRC April 16, 2013).
Under this "abuse of discretion" standard, the commission asks whether the ALJ "examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach." Loy v. Bunderson, 107 Wis.2d 400, 415, 320 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992) (cited by LIRC in Kutschenreuter and Schoenleber v. Roberts Trucking, Inc., ERD Case Nos. 200501465 & 200501422 (LIRC April 21, 2011). A conclusion that the decision-maker abused his or her discretion does not necessarily mean that the decision-maker had some ulterior motive, engaged in arbitrary conduct or willfully disregarded the rights of a litigant; abuse of discretion can exist where prejudice results from a failure to apply principles of law applicable to a situation. Endeavor-Oxford Union Free High School District v. Walters, 270 Wis. 561, 569, 72 N.W.2d 535 (1955).
The Legal Standard for Dismissal as a Discovery Sanction
Under Wis. Stat. § 804.12(1), if a party has failed to answer an interrogatory, or has given an incomplete or evasive answer to an interrogatory, the party seeking discovery may ask for an order compelling discovery. If the court issues an order compelling discovery, and the party against whom the order was issued fails to comply with the order, the court "may make such orders in regard to the failure as are just," which may include dismissal of the complaint. Wis. Stat. § 804.12(2). (1)
The Wisconsin Supreme Court has established limits on judicial discretion to dismiss an action for discovery violations, noting that dismissal is the most serious step that can be taken as a sanction, because it terminates the litigation without regard to the merits of the claim. It is "a drastic penalty that should be imposed only where such harsh measures are necessary..." Trispel v. Haefer, 89 Wis.2d 725,732, 279 N.W.2d 242, 245 (1979). Dismissal is improper unless bad faith or egregious conduct is shown on the part of the noncomplying party. Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 274-75, 470 N.W.2d 859 (1991). To dismiss a complaint for bad faith, it must be found that the noncomplying party intentionally delayed, obstructed or refused the requesting party's discovery demand. Hudson Diesel, Inc., v. Nenall, 194 Wis.2d 531, 543, 535 N.W.2d 65 (Ct. App. 1995). To dismiss for egregious conduct, it must be found that the noncomplying party's conduct, though unintentional, was "so extreme, substantial and persistent that it can properly be characterized as egregious...." Id., citing Johnson, supra, at 273.
Recently, the Wisconsin Supreme Court further restricted judicial discretion to dismiss a matter by holding that ordering dismissal with prejudice based on the conduct of a party's attorney would be an abuse of discretion by a judge if the attorney's client is blameless in the discovery failing. Industrial Roofing Services, Inc., v. Marquardt, 2007 WI 19, ¶ 61, 299 Wis.2d 81, 103-04, 726 N.W.2d 898. Through this holding, the Court explicitly reversed Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859 (1991), to the extent it held that a client's conduct is irrelevant, or that dismissal with prejudice is warranted even when the client is blameless. Industrial Roofing Services, Inc., supra, at ¶ 61, p. 104. (2) At least in this situation, then, the Court turned away from the rationale in Johnson that it was more equitable to allow the adverse consequences of poor legal representation fall on the shoulders of the party who chose the attorney, rather than on the adversary.
The commission had applied the rationale of Johnson in the past with respect to an attorney's failure to comply with an order compelling discovery (Squires v. Montex Inc., ERD Case No. CR200100708 (LIRC Mar. 15, 2002), and also has applied that rationale in a variety of other situations in which an attorney's conduct adversely impacted a client. See, e.g., Patek v. Waukesha Engine Division, Dresser Industries, Inc., ERD Case No. 9433716 (LIRC Aug. 31, 1995) (attorney's failure to obtain expert medical evidence); Neuberger v. Twin City Storm Sash Company, ERD Case No. 9000537 (LIRC Jan. 22, 1992) (attorney's failure to amend complaint prior to hearing); Hamilton v. Northwestern Elevator Co., Inc., ERD Case No. CFR200003827 (LIRC Dec. 10, 2002) (attorney's erroneous advice to client that a hearing had been adjourned). Since the holding of Industrial Roofing addresses only the issue of dismissal as a discovery sanction under Wis. Stat. ch. 804, the commission intends to adhere to Johnson as in the past, except in cases involving discovery sanctions. There, because ALJs have been given by administrative rule the very powers set out in Wis. Stat. ch. 804, it is appropriate that ALJs' powers be limited consistent with controlling case-law interpretations of ch. 804. Otherwise, ALJs would be less restrained than courts in granting dismissals for discovery failures. The commission holds, therefore, consistent with Industrial Roofing, that when the party failing to make discovery is represented by legal counsel: 1) an ALJ must determine whether the party is blameless in the discovery failure when considering an appropriate sanction under Wis. Stat. ch. 804; and 2) it is an abuse of discretion to order dismissal of a complaint without having made a determination that the party, as opposed to the attorney, was at least partially to blame.
Application of the Standard to the Case
The entire argument of the respondent in support of dismissal is directed at the conduct of the complainant's attorney. There is no allegation that the complainant herself was to blame for the failure to make discovery, and no determination by the ALJ that the complainant was to blame. For that reason alone, the order dismissing the complaint with prejudice must be set aside for not applying the proper standard of law, as required by Industrial Roofing.
The commission also finds that the ALJ did not properly evaluate certain facts leading up to the respondent's motion to compel. In explaining her order of dismissal, the ALJ stated:
In the Respondent's January 13, 2014 discovery motion, Respondent's attorney, Leslie Sammon, indicated that the Respondent had made numerous attempts to contact the Complainant's attorney, Carol Dittmar, by telephone, letter and email to resolve the discovery issues with the complainant before filing the discovery motion. However, despite the Respondent's attempts, Complainant failed to provide signed, sworn responses to Respondent's discovery requests as required by statute. According to the Respondent's motion, other than emailing unsigned responses on November 22, 2013, the Complainant's attorney also failed to contact the Respondent in any manner to discuss the Respondent's discovery requests or the Complainant's failure to provide timely answers to the requests prior to the Respondent filing its discovery motion.
The above paragraph suggests that the respondent's attorney repeatedly tried to engage the complainant's attorney in a discussion of the perceived deficiencies in the complainant's discovery responses of November 22, 2013, but that the complainant's attorney failed to cooperate. Actually, the respondent's motion to compel indicates that once the complainant served its discovery responses, the respondent's only contact, prior to filing its motion to compel, was to send a letter demanding that the complainant make complete responses within 10 days. The other contacts by the respondent's attorney preceded the complainant's service of discovery responses, and so could not have been attempts to resolve their perceived deficiencies. On the other hand, the complainant's attorney avers that she did contact the respondent's attorney by e-mail on January 13, 2014, before the filing of the motion to compel, in order to set up a time to discuss discovery, but was rebuffed by respondent's attorney.
It is incumbent on the party making the motion to compel, not on the opposing party, to make sure it has consulted the opposing party to attempt to resolve differences before involving the ALJ through a motion to compel. Under Wis. Admin. Code § DWD 218.14(4):
All motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement.
Once the complainant's attorney had served responses to discovery in November 2013, the respondent's attorney did not have, or attempt to have, a conversation with the complainant's attorney to resolve issues with the responses provided, prior to filing the motion on January 15, 2013, and did not include a statement concerning consultations in the motion. This might have been grounds for denying the motion to compel. Powell v. Columbia St. Mary's Hospital, ERD Case No. 200503639 (LIRC Aug. 19, 2008). The ALJ, however, faulted only the complainant's attorney for not having a discussion prior to the filing of the motion.
Finally, given the harshness of the sanction of dismissal, and the necessity that it be based on findings of bad faith or egregiousness, the commission recommends that if the party against whom a sanction is being considered asks to be heard, the request should be granted before the issuance of a sanction. Even though the complainant's attorney was requesting to be heard on the motion to compel, and that motion had already been decided, there was a reasonable probability that the issues on which the complainant's attorney asked to be heard bore on questions of bad faith or egregious conduct, and thus may have served to ameliorate the noncompliance. Hudson Diesel, Inc. v. Kenall, 194 Wis.2d 531, 545, 535 N.W.2d 65 (Ct. App. 1995) ("...when the conduct that is the basis for dismissal is not intentional or in bad faith, the trial court must determine whether less severe sanctions are available to remedy the noncomplying party's discovery violation before dismissal may be ordered.").
Upon remand of this matter to the hearing section, it shall be re-scheduled for a hearing on the issue of probable cause. No sanctions are ordered with respect to the complainant's compliance with discovery obligations, but if the issue of the complainant's compliance with discovery remains unresolved, the respondent may file a new motion to compel discovery. If respondent does so, it must first consult with the complainant as required by Wis. Admin. Code § DWD 218.14(4).
cc:
Attorney Carol Dittmar
Attorney Leslie Sammon
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(1)( Back ) Certain kinds of discovery failures, such as failure to appear for a deposition and failure to serve any answers or objections to interrogatories, may justify dismissal without the preliminary step of seeking an order compelling discovery. Wis. Stat. § 804.12(4). Because discovery responses were served here, this is not such a case. The respondent's dual motion, then, for an order compelling discovery or an order to dismiss, was inappropriate. Grounds for a motion to dismiss in this case would arise only after there was non-compliance with an order to compel discovery.
Accordingly, we determine that it is an erroneous exercise of discretion for a circuit court to enter a sanction of dismissal with prejudice, imputing the attorney's conduct to the client, where the client is blameless. To the extent that Johnson can be interpreted as concluding that the client's conduct is irrelevant or that a dismissal with prejudice is warranted even when the client is blameless, then that part of Johnson is overruled. Industrial Roofing Services, Inc., supra, at ¶ 61, p. 104 (footnote omitted).
uploaded 2014/06/05