STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

SHELLY GEMMELL, Complainant

vs.

ABFM d/b/a ACCUTEC, Respondent A

STAFF RIGHTS, INC., Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9254122, EEOC Case No. 26G930310, 26G931084

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in the above-captioned matter on December 30, 1993. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The Order of Dismissal issued by the administrative law judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin, February 24, 1994.

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Shelly Gemmell's pregnancy discrimination complaint against Accutec and Staff Right was met with responses that put into issue the question of whether and when the respondents learned Gemmell was pregnant. Gemmell asserted that before her employment ended on May 12, 1992 she gave her supervisor at Accutec some type of written documentation confirming her pregnancy.

The administrative law judge granted respondents' request to allow discovery and on July 9, 1993 a Notice of Deposition was served on Gemmell, along with a request that she produce certain documents (all medical records for the year 1992, including the medical slip she claimed to have given her supervisor at Accutec) when she appeared at the deposition. Gemmell failed to appear at her deposition. She claimed in a telephone conversation that date that she failed to appear because she had retained an attorney, that she had given him all her papers, and that she did not know what time the deposition was, but in fact the attorney had not agreed to represent Gemmell, but had simply agreed to review her case. The ALJ declined to grant a Joint Motion To Dismiss filed at this point, but he did postpone the hearing and warned Gemmell that he would reconsider the motion if she failed to appear at a re-noticed deposition. Gemmell appeared for a re- noticed deposition, but she brought no documents. She claimed that she did not have a copy of the note she allegedly gave her Accutec supervisor and would obtain it and forward it, but what she eventually provided was a later note.

On October 5, respondents filed another Joint Motion To Dismiss premised on Gemmell's failure to produce any medical records when she appeared at her deposition and her failure to return medical authorizations she had been asked to provide at that deposition. As of early November, Gemmell had not provided either full medical records or the authorizations necessary to get them. After warning her on November 4, 1993 of the very serious consequences of failing to comply with a proper discovery request and giving her five days from that date to fully and completely comply with respondents' legitimate discovery requests and stating that if she did not he would have no choice but to grant the motion to dismiss, the ALJ issued an Order on or about November 10 in which he ordered Gemmell to provide three medical authorizations (two running to two providers she had identified, and one to any other medical providers she may have seen) by November 19, 1993, with failure to comply to result in dismissal of the complaint.

Gemmell eventually returned only two of the authorizations, omitting the one directed to other medical providers, and on one of those she did return, she put a date of 1992, which made the release expired on its face.

As of December 23, 1993, respondents had not yet received the authorization running to other medical providers which Gemmell had been ordered to provide. They renewed their Motion To Dismiss. The ALJ granted the Motion on December 28, 1993, reciting as grounds therefor Gemmell's failure to comply with his Order To Compel Discovery issued on November 10.

Gemmell clearly failed to comply with the ALJ's order, in that she failed to produce a medical authorization running to health care providers other than those two she had identified. In many other ways as well, she delayed compliance with discovery requested by respondents and ordered by the ALJ. The important question here is whether she was engaged in intentional resistance to discovery, or whether there were simply misunderstandings. The commission agrees with the inference which was evidently drawn by the ALJ, that a pattern such as the one seen here cannot be explained by an assumption that Gemmell did not understand what was required of her.

Gemmell's medical records were very important in this case, because of the nature of her claims and of the respondents' defenses. She claimed that she gave her Accutec supervisor some kind of medical slip relating to her pregnancy on or before May 12, 1992. If she could not produce this, and if her medical records showed that she did not receive any medical care or any confirmation of pregnancy by this time, her case would be weakened, perhaps fatally so. In fact, everything that occurred here tended to raise the suggestion that Gemmell was trying to prevent this from happening. When she failed to show up at the original July 29 deposition, she told one of respondents' attorneys who telephoned her that day that she had given all her papers to an attorney -- but she later claimed that she only gave the "pregnancy slip" to that other attorney after this conversation with one of respondents' attorneys. Then she said she could not locate this note, and then she said she would produce it, and then she instead produced a later note. Her subsequent actions in limiting her medical releases, inaccurately representing that complete records had been provided, and failing to fully comply with orders for execution of authorizations, all acquire greater significance when the significance of this "pregnancy slip" is recalled.

The commission does not believe that this is a case in which a layperson has been confused or burdened by unreasonable discovery requests. Respondents had a perfectly good reason for wanting evidence about medical treatment of Gemmell's pregnancy, as those records would bear on the question of when Gemmell learned she was pregnant, when she obtained any kind of documentation concerning her pregnancy, and when she could have informed her employer about it -- all highly material matters. Gemmell was given every opportunity to comply. All she had to do was to execute the medical authorizations, copies of which were sent to her on a number of occasions. None of Gemmell's responses or statements to the ERD or LIRC explain why she did not execute all of these authorizations; they simply fall back on assertions that the respondents' attorneys had received all of her records. However, these representations were shown not to have been reliable. In any event, the attorneys were entitled to the releases so that they could seek out the records themselves and satisfy themselves that they had found all of them.

Dismissal of a claim is a permissible sanction for refusal to comply with discovery. See, sec. 804.12(2)(a)3., Stats.; Smith v. Norris Adolescent Center (LIRC, April 21, 1989). For the reasons given above, the commission agrees with the ALJ that this is an appropriate case for the imposition of such a sanction.

110

cc:
Donald J. Cairns
Robert W. Weidenbaum

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