State of Wisconsin

Labor and Industry Review Commission

Gregory Belizaire	Fair Employment Decision[1]
Complainant
Sweet Additions, LLC
Respondent	Dated and Mailed:
ERD Case No. CR201604037	May 30, 2018
EEOC Case No. 26G201700082C	belizgr_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/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural History

A prehearing conference was held in this matter on September 12, 2017, during which the administrative law judge explained the discovery process to the complainant, who is not represented by counsel and is proceeding pro se.  Following the prehearing conference, the administrative law judge sent a “Prehearing Conference Report and Scheduling Order” to both parties, which indicates, among other things, that the hearing in this matter was scheduled for January 11 and 12, 2018, and that all discovery was to be completed at least 45 days prior to the hearing.  The administrative law judge also sent the parties a follow-up letter explaining the discovery process, including the fact that failure to appear for a scheduled deposition or failure to respond to written discovery could result in the assessment of costs and sanctions, including dismissal of the complaint.

On September 26, 2017, the respondent sent the complainant a first set of interrogatories and requests for production of documents, directing him to provide responses within 30 days.[2]  When the complainant did not submit his discovery responses within 30 days, the respondent’s attorney attempted to contact him both by letter and by telephone.  On November 2, 2017, in response to the letter from the  respondent’s attorney, the complainant telephoned the respondent to request an extension of time to respond to the discovery requests.  It was agreed that the complainant was to submit his responses to the discovery request no later than November 8, 2017.

On November 8, 2017, the respondent sent the complainant written notice that it intended to take his deposition on November 20, 2017, at 10:00 a.m. in Eau Claire, Wisconsin.  The complainant was told that if he was unavailable on November 20, the deposition could be rescheduled to November 21.  The complainant did not ask that the deposition be rescheduled.

The complainant failed to respond to the respondent’s discovery requests by November 8, 2017, as agreed upon in the November 2 telephone conversation between the complainant and the respondent’s attorney.  The following day the respondent’s attorney telephoned the complainant to discuss the matter.  During that conversation the complainant provided no explanation for his failure to respond to the discovery requests, nor did he promise to do so, stating only that he would contact the respondent’s attorney later on.  The respondent’s attorney advised the complainant that if she did not receive complete responses or any legitimate explanation for the failure she would file a motion to dismiss his complaint.

On November 10, 2017, at which point the complainant had not contacted the respondent’s attorney or submitted his discovery responses, the respondent filed a motion to dismiss the complaint or, in the alternative, to compel discovery responses.  The respondent argued, among other things, that because the complainant had not responded to its discovery requests, it was unable to adequately prepare for either the November 20, 2017 deposition or the January 11, 2018 hearing.

On November 13, 2017, the administrative law judge issued an Order granting the respondent’s motion to compel discovery.  The administrative law judge specifically ordered the complainant to comply with the respondent’s discovery requests no later than Monday, November 20, 2017, and to attend the deposition scheduled for that day.  The Order notified the complainant, in bold letters, that failure to comply fully may result in sanctions including but not limited to dismissal of his complaint.  The administrative law judge also advised the complainant that he could feel free to contact her if he had any procedural questions.

On Friday, November 17, 2017, the complainant sent an e-mail[3] to the administrative law judge in which he stated, without further explanation, that he would not be able to attend the deposition on either November 20 or 21.  The respondent’s attorney was not included in the e-mail and was not sent a copy.  Further, the e-mail was not sent until 5:03 p.m., after state offices had closed for the day.  The complainant’s deposition was scheduled for 10:00 a.m. the following Monday, at which point the respondent had received no communication from the complainant with respect to his intention not to appear. 

The complainant did not appear at the deposition, although the respondent’s attorney and a court reporter were present and prepared to go forward with the proceedings.  The respondent waited an hour for the complainant to appear before dismissing the court reporter.  Approximately three hours after the deposition was to have commenced the complainant left a voicemail message for the respondent’s attorney indicating, with no further explanation, that he would not be appearing, and that he would not be available for a deposition until December.[4]  Later that day the respondent received responses to its written discovery requests from the complainant, which the respondent maintains were missing some of the requested documents.

On November 20, 2017, the respondent filed a motion to dismiss the complaint for failure to comply with the administrative law judge’s discovery order.  The respondent also requested that the administrative law judge order the complainant to pay its costs and fees related to his failure to attend the deposition.

In an e-mail sent to the administrative law judge at 10:21 p.m. on November 20, 2017, the complainant stated that he did not abandon the deposition, but that he does not have a vehicle or driver’s license and would have to prepare for a ride to get to Eau Claire.  The complainant also stated that he left an e-mail and a voicemail for the respondent’s attorney, but did not explain when this occurred.  The complainant sent a separate e-mail to both the administrative law judge and the respondent’s attorney at 10:54 p.m., in which he attached copies of his two prior e-mails to the administrative law judge (the one sent on November 17, and the one sent at 10:21 that night).

On December 13, 2017, the administrative law judge issued an Order dismissing the complaint based upon the complainant’s failure to comply with discovery.[5]  The complainant filed a timely petition for commission review of the administrative law judge’s Order dismissing his complaint. 

The commission has considered the petition and the positions of the parties, and it has reviewed the information that was before the administrative law judge.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own.

Memorandum Opinion

In his petition for commission review the complainant argues that he tried his best to reach both the administrative law judge and the respondent’s attorney to notify them he would not be able to attend the deposition.  The complainant states that he e-mailed the respondent’s attorney and copied the administrative law judge.  He indicates that he then called the respondent’s attorney and left a voicemail message.  The complainant’s argument fails.  The complainant contacted the administrative law judge by e-mail to indicate that he would not be appearing at the deposition.  However, he did not include the respondent’s attorney on that e-mail, which was not sent until after the close of business on the Friday preceding his Monday morning deposition.  The respondent was not afforded any notice prior to the deposition that the complainant would not be appearing.  Moreover, even if the complainant had provided notice to the respondent, the fact remains that the administrative law judge had issued an Order compelling him to appear at the deposition and had notified him of the consequences for failing to do so.  The complainant was aware that failure to appear at the deposition could result in the dismissal of his complaint, yet he apparently made no effort to arrange transportation to Eau Claire prior to the date of the deposition and took no other steps to ensure compliance with the discovery process.

Dismissal of an action or proceeding, while permitted by statute,[6] 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.  Xiong v. Logistics Health, Inc., ERD Case No. CR201601970 (LIRC Oct. 24, 2017).  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.  Xiong, citing 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.  Duncan v. International Union of Operating Engineers Local 139, ERD Case No. CR201002723 (LIRC Sept. 11, 2012).

The administrative law judge assigned to this case made adequate efforts to assist the complainant in understanding and complying with the discovery process prior to dismissing his complaint in this case.  The administrative law judge held a prehearing conference with the parties, during which she explained how the prehearing discovery process works.  This was followed up by a letter to the parties in which the administrative law judge again explained the discovery process, including the fact that failure to appear for a scheduled deposition or to respond to written discovery could result in the assessment of costs and sanctions, including dismissal of the complaint.  After the respondent filed a motion to compel discovery, the administrative law judge issued a letter notifying the complainant that she was granting the respondent’s motion and specifically ordering the complainant to attend his scheduled deposition.  The administrative law judge’s letter advised the complainant in bold type that failure to fully comply may result in sanctions including but not limited to dismissal of his complaint.  The administrative law judge also advised the complainant that if he had procedural questions he could feel free to contact her.  In spite of this information, the complainant did not appear at the deposition and did not notify the administrative law judge until after the deposition was to have begun that he had transportation difficulties preventing him from appearing.

While the commission can appreciate that the complainant’s lack of a vehicle and driver’s license might have made it difficult for him to get to a deposition in Eau Claire, there is nothing to suggest that the complainant made any effort to resolve this problem prior to the deposition, and nothing to indicate that he informed either the respondent or the administrative law judge of the situation or that he requested the deposition be rescheduled to a more convenient date or location.  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 in this matter was egregious and 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 to comply 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 Holly E. Courtney

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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] Pursuant to Wis. Admin. Code § DWD 218.14(2), the Equal Rights Division’s rule pertaining to discovery directed to an unrepresented party, the respondent notified the administrative law judge and the complainant by letter 10 days prior to that request that it intended to conduct discovery, which may include interrogatories, requests to admit, document requests, and depositions.

[3] The commission notes that the “from” line on this and other e-mails sent by the complainant to the administrative law judge and/or the respondent’s attorney indicates that it came “From: Sean Stevens.”  However, it is clear from the e-mail address used, which matches the address provided by the complainant on his complaint form, as well as from the contents of the e-mails, in which the complainant is identified, that they were sent by the complainant.

[4] Pursuant to the administrative law judge’s scheduling order, all discovery was to have been completed no later than November 27, 2017, 45 days prior to the hearing.

[5] The administrative law judge did not address the respondent’s request for fees and costs associated with the complainant’s failure to comply with discovery.  However, the respondent has not filed a petition for review of the administrative law judge’s decision.

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