State of Wisconsin
Labor and Industry
Review Commission
|
|
|
|
Fair Employment Decision[1] |
|
|
Complainant |
|
|
|
|
|
|
|
|
Respondent |
Dated and Mailed: |
|
|
|
|
ERD
Case No. CR201500832 |
December
15, 2016 |
|
|
|
|
|
|
The decision of the administrative law judge (copy
attached) is affirmed. Accordingly, the complaint in this matter is
dismissed with prejudice. No attorney's
fees or costs are ordered.
|
By the Commission: |
|
|
|
|
|
|
Laurie R. McCallum, Chairperson |
|
|
|
|
|
|
|
|
C. William Jordahl, Commissioner |
|
|
|
|
|
|
|
|
David B. Falstad, Commissioner |
Procedural History
On March 19, 2015 the complainant filed a
complaint with the Equal Rights Division (hereinafter ERD
) alleging that the
respondent discriminated against her because it believed she was going to file
a wage and hour complaint. The complainant
filed her complaint pro se, but
later retained legal counsel.
On December 21, 2015 the ERD issued an initial
determination finding no probable cause.
The complainant filed an appeal and the case was certified for
hearing. In a pre-hearing conference held on
March 18, 2016, a hearing date was set for June 23, 2016, with pre-hearing discovery to be
completed by May 6, 2016.
The complainant served discovery requests on the
respondent on March 14, 2016. The
respondent's attorney subsequently contacted the complainant's attorney to
discuss narrowing the discovery materials requested. The complainant's attorney agreed to withdraw
several interrogatories and requests for production of documents, and also
agreed to grant the respondent an extension of time to respond.The respondent filed its discovery responses
with the complainant on April 27, 2016.
The respondent served its own discovery requests on the complainant on
April 5, 2016. The respondent also
notified the complainant's attorney that it intended to take the complainant's
deposition on May 6, 2016.
On April 28, 2016, the complainant's attorney
notified the respondent's attorney that, after reviewing the respondent's
discovery responses, he had decided to withdraw the complainant's ERD complaint
in order to pursue a wrongful discharge claim in circuit court. The complainant's attorney stated that the
complainant therefore would not be attending the scheduled deposition or
answering the respondent's discovery requests.
On May 2, 2016, the complainant filed a request
with the administrative law judge to withdraw her complaint so that she could
pursue a wrongful discharge claim in circuit court.Shortly thereafter, the administrative law
judge notified the complainant's attorney that he had made an error in the case
number and would need to submit a new request.
The complainant submitted another request to withdraw her complaint on May
11, 2016.
In the mean time, on May 6, 2016, the
respondent's attorney submitted a Motion to Compel Discovery Responses and/or
Condition Plaintiff's Dismissal to Prevent Prejudice to Respondent.
In its motion the respondent argued that: 1) the complainant
should be required to comply with discovery because the matter was still
pending; 2) dismissal of the complaint
should be conditioned on the complainant's payment of the respondent's
attorney's fees and costs;
and 3) any dismissal should be with prejudice to the complainant's rights to
refile her claim at the ERD. With respect
to the request for attorney's fees and costs, the respondent's attorney argued
that the complainant was merely using the ERD complaint as a way to obtain
discovery that could be used in conjunction with a federal complaint and that
sanctions were appropriate.
In a letter dated May 23, 2016, the administrative
law judge notified the parties that she was granting the respondent's request
that the matter be dismissed with prejudice, but rejecting the other aspects of
the respondent's motion. The
administrative law judge noted that no order compelling discovery was necessary
since the matter was being dismissed with prejudice, and denied the request for
attorney's fees, stating that she was not persuaded that the complaint was
intentionally undertaken in order to obtain discovery responses for purposes of
other litigation or that a punitive response was warranted. The administrative law judge noted that her
letter would be followed by an order. An
order dismissing the complaint with prejudice was issued on June 15, 2016.
The respondent has filed a petition for
commission review of the administrative law judge's order, asserting that the
order should have included an award of attorney's fees and costs.
In its petition for commission review the
respondent argues that the complainant abused the Division's processes as a
means of gathering discovery for use against the respondent in a different
forum with no intention to proceed before the ERD and that the respondent
should be awarded attorney's fees and costs associated with its defense of the
matter. The commission rejects the
respondent's arguments as unsupported by law or fact: the commission has no
authority to grant such an award, nor would it consider it appropriate to do
so.
The ERD's rules include the following provision:
A complaint may be
withdrawn at any time. A request for withdrawal shall be in writing
and shall be signed by the complainant or by the complainant's duly authorized
representative. Upon filing of a request
for withdrawal, the department shall dismiss the complaint by written
order. Such dismissal shall be with
prejudice unless otherwise expressly stated in the order.
Wis. Admin. Code § 218.03(7).
As plainly set forth above, a complainant can
withdraw a complaint at any time, and there is no requirement that the request
to withdraw be made prior to the beginning of discovery. The complainant was not foreclosed from
requesting to withdraw her complaint when she did, even if it meant that the
respondent had already expended resources in defending against the
complaint. Moreover, the rule
requires that the department
dismiss the complaint upon request. It does
not authorize the department to award any sanctions or fees against a
complainant making such request. See, Wis. Admin. Code
§ 218.03.
In its brief to the commission the respondent
points to Wis. Stat. § 805.04(2), which governs the voluntary dismissal of
civil actions in court, and states that a trial court may grant a plaintiff's
motion for voluntary dismissal upon such terms and conditions as the court
deems proper. However, chapter 805
applies to actions in court and does not confer authority upon the administrative
law judge to award attorney's fees when a complainant seeks to voluntarily
withdraw a complaint at the ERD. Indeed,
the Fair Employment Act allows for sanctions against a complainant under only two
circumstances: where there has been a failure
to obey an order to provide or permit discovery, and where there has been a
finding that a hearing or claim was frivolous.
See, Wis. Admin. Code § 218.14(4) and Wis. Stat. § 227.483. Neither of those provisions apply in this case.
Finally, the commission notes that, even if it had
the authority to award fees to the respondent in conjunction with a request to
withdraw a complaint, it would decline to do so in this case. The complainant filed her ERD complaint pro se, and it can be assumed that
she intended to proceed before the ERD and not to pave the way for other
litigation. The complainant subsequently
retained legal counsel who engaged in discovery and, after receiving discovery
responses from the respondent, decided to go forward in a different forum. While the respondent argues that there was
nothing in its discovery responses that would have triggered this decision and,
further, that its discovery response was so voluminous it seems unlikely that
the complainant's attorney really reviewed it in the time period specified, it
is pure speculation to conclude that the complainant's attorney planned to move
the matter to circuit court all along and did not review the discovery
responses, or that there was nothing in the discovery materials that could have
motivated him to decide it was more efficacious to proceed in a different
forum. The commission agrees with the
administrative law judge that there is no evidence of bad faith on the part of
the complainant.
Further, it is not at all clear how this process
disadvantages the respondent. The
complainant is entitled to discovery in conjunction with her wrongful
termination claim, and the respondent has not demonstrated that it is harmed
because the complainant's began the discovery process in the context of an
administrative proceeding rather than at the circuit court. While in its brief to the commission the
respondent asserts that it will be required to incur discovery costs for a
second time in circuit court because the flavor of the case will have changed
entirely,
such argument is at odds with the basic premise of the respondent's
appeal, which is that the complainant only pursued the matter before the ERD in
order to obtain discovery she could use in other litigation. There is no reason to believe that discovery
materials obtained in the course of the administrative proceeding will have no
utility in a wrongful termination matter before the circuit court, and the
respondent's argument that the complainant proceeded in order to obtain useful
discovery suggests otherwise.
|
cc: |
Christopher M.
Kloth |
[1]
Appeal
Rights: See the green enclosure for the time limit
and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review
Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions
about appealing a fair employment decision to circuit court are also available
on the commission's website http://lirc.wisconsin.gov.