State of Wisconsin

Labor and Industry Review Commission

Pao Xiong	Fair Employment Decision[1]
Complainant
ABR Employment Services
Respondent	Dated and Mailed:
ERD Case No. CR201601794	October 24, 2017
EEOC Case No. 443201600931	xiongpa2_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Procedural History

The complainant filed a complaint alleging that the respondent discriminated against him based on his race, national origin, ancestry, disability, and military service, in violation of the Wisconsin Fair Employment Act.  An equal rights officer for the Equal Rights Division of the Department of Workforce Development issued a determination finding no probable cause to believe that discrimination occurred.  The complainant filed a timely appeal and the matter was certified for hearing. 

Prior to the hearing the administrative law judge conducted a prehearing conference with the parties, during which the discovery process was explained.  The administrative law judge thereafter issued a “Prehearing Conference Report and Scheduling Order” providing deadlines for discovery completion, along with a letter to the parties setting forth information about conducting and responding to discovery.  Shortly thereafter, the respondent notified the complainant that it intended to engage in pre-hearing discovery.  On April 12, 2017, the respondent served the complainant with its “First Set of Interrogatories” and “First Set of Requests for Production of Documents.”  The complainant’s responses were due on May 11, 2017.

The respondent received no discovery responses from the complainant by the May 11, 2017 deadline, nor did it receive any request from the complainant for an extension of time to reply to the discovery request.  On May 19, 2017, the respondent’s attorney sent the complainant a letter asking him to contact her immediately regarding the status of his responses.  On May 24, 2017, having received no response from the complainant, the respondent filed a “Motion to Compel or  Dismiss  Complaint.” 

On June 27, 2017, the administrative law judge issued an Order directing the complainant to respond to the respondent’s discovery request no later than July 5, 2017, and advising him that failure to do so would result in the dismissal of his case.  Subsequently, on June 29, 2017 the complainant sent an email to the administrative law judge stating that he did not have the time or money to hire an attorney and asking for legal assistance.  On July 5, 2017, the administrative law judge responded to the complainant with an email advising him that he must respond to the discovery request by the end of the day, pursuant to the June 27 discovery order, or his case would be dismissed.  The complainant did not respond to that email and submitted no discovery information. 

On July 11, 2017, the administrative law judge issued an “Order of Dismissal for Failure to Comply with Discovery.”  That same day the complainant sent an email to the administrative law judge stating that he was in “dire need for legal assistance” and asking for extra time to complete the discovery requests.  The complainant elaborated that his father had recently passed away and that he was under extreme personal and financial stress.  The administrative law judge sent the complainant an email stating that if he had contacted her earlier she would have considered postponing the deadline for responding, but that in the absence of any communication she had dismissed the complaint.

The complainant has filed a timely petition for commission review of the administrative law judge’s Order, and the matter is now before the commission.

Memorandum Opinion

In his petition for commission review the complainant argues that he has been undergoing serious personal and financial challenges that made it difficult for him to comply with the respondent’s discovery request.  The complainant explains that, notwithstanding these difficulties, he complied with the Order to Compel discovery “as much as [he] could during the July 4^th weekend” and sent as much information as he could “by July 3, 2017” by email.  The complainant states, however, that he was unable to spend sufficient time to fully complete all the answers for the respondent.  The complainant additionally states that he emailed and telephoned the administrative law judge asking for legal assistance and requesting more time to fully complete his responses, but received no assistance.

The commission has considered the complainant’s arguments, but finds them unpersuasive.  Per the procedural history outlined above, which is based upon a review of the documents in the case file including copies of the emails and letters sent between the parties and the administrative law judge, it appears that the complainant never submitted any material in response to the respondent’s discovery request.  The file contains no email from the complainant dated July 3, 2017, and there is nothing to suggest that the complainant attempted to comply with the respondent’s discovery requests then or at any other time.  Further, there is nothing to indicate that the complainant advised either the respondent or the administrative law judge that he was working on responding to the discovery requests or that he ever requested additional time in order to prepare or complete his discovery responses prior to the deadline imposed by the administrative law judge.

Dismissal of an action or proceeding, while permitted by statute,[2] 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.  See, Duncan v. International Union of Operating Engineers Local 139, ERD Case No. CR201002723 (LIRC Sept. 11, 2012), and cases cited therein.  In the context of review of an administrative law judge’s order imposing a sanction for non-compliance with a discovery order, the standard applied is whether the commission finds the administrative law judge’s decision on the issue to have been an abuse of discretion.  Kutschenreuter et ano. v. Roberts Trucking, ERD Case No. 200501465 (LIRC April 21, 2011).  Further, in deciding whether dismissal is an appropriate sanction to impose on an unrepresented party, the commission will take into account whether the administrative law judge made adequate efforts to assist the party in understanding and complying with the discovery process prior to dismissing.  See, Duncan.

In this case, the administrative law judge did make efforts to assist the complainant in understanding and complying with the discovery process prior to dismissing his complaint.  The administrative law judge held a pre-hearing conference with the parties, during which she presented a detailed explanation of how pre-hearing discovery operates, including an explanation of the consequences for failing to respond to discovery.  This was followed up with a letter to the parties in which the administrative law judge emphasized that both sides must cooperate with discovery and that failure to do so could result in sanctions, including the dismissal of the complaint.  Subsequently, the administrative law judge issued a letter notifying the complainant that she was granting the respondent’s “Motion to Compel Complainant’s Discovery Responses” and explaining that it was important for the complainant to respond to the discovery request and that failure to do so by the deadline specified would result in the dismissal of his complaint.  (That portion of the administrative law judge’s letter was bolded and underlined for emphasis.)  The administrative law judge also sent the complainant an email with a copy of her letter attached, which advised the complainant that he needed to take immediate action.  In her letter granting the Motion to Compel, the administrative law judge also advised the complainant that if he had procedural questions he could feel free to contact her.  The complainant did not take her up on this offer.  Although the complainant emailed the administrative law judge and told her that he needed time to seek legal counsel, he did not ask for any assistance in complying with the respondent’s discovery request or indicate that he was attempting to do so.  The complainant’s request for an extension was not made until July 11, 2017, a week after the final deadline for submitting the discovery information had already elapsed.

While the commission can sympathize with the complainant’s difficult personal and financial circumstances, those circumstances do not justify his failure to make any effort whatever to respond to the respondent’s discovery requests.  The complainant was aware of his obligations to respond to discovery and of the consequences for failing to do so, and the commission believes that the complainant’s conduct evinced an intent not to cooperate with the discovery process.  Further, the commission is satisfied that the administrative law judge made adequate efforts to assist the complainant with the discovery process and that her dismissal of the complaint, after such attempts proved unavailing, amounted to a reasonable exercise of her discretion.  Accordingly, the dismissal of the complaint is affirmed.

cc:	Attorney Sheila Conroy

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[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.

[2] See, Wis. Admin. Code ch. DWD § 218.14(3), Wis. Stat. § 814.12(2)(a)3.