Wis.LIRC ER Decision: Burgess - February 13, 1995 - Discovery - dismissal of complaint for failure to comply with order to produce documents

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

ED BURGESS, Complainant

MILWAUKEE FORGE, Respondent A

FAIR EMPLOYMENT DECISION
ERD Case No. 9354658, EEOC Case No. 26G940311

In complaints filed with the Equal Rights Division on November 19, 1993 and March 2, 1994 complainant Ed Burgess ("Burgess") alleged that respondents Milwaukee Forge ("Milwaukee Forge") and United Steelworkers of America, AFL-CIO, Local 3205 ("Local 3205"), had discriminated against him because of race and perceived handicap. Following an Initial Determination which concluded that there was no probable cause to believe that the respondents had discriminated against Burgess as alleged, Burgess filed a request for a hearing on the issue of probable cause and the matter was certified to hearing.

On September 29, 1994 the Administrative Law Judge dismissed the complaint against Milwaukee Forge as a sanction for Burgess' failure to comply with discovery requests and orders. The complaint was also dismissed as against Local 3205 based on Burgess' withdrawal of his complaint against that respondent. Burgess then filed a timely request for commission review of the order dismissing his complaint against Milwaukee Forge.

Based on its review of the record, the commission now makes the following:

FINDINGS OF FACT

1. On May 20, 1994, counsel for Milwaukee Forge sought permission from the Equal Rights Division to engage in discovery from Burgess, in the form of document production requests. (1 )

2. On May 31, 1994 the Administrative Law Judge gave Milwaukee Forge written permission to conduct such discovery, and he also sent Burgess an explanatory letter.

3. On June 3, 1994 counsel for Milwaukee Forge filed and served a Request for Production of Documents directed to Burgess. Burgess received this Request for Production of Documents

4. Burgess did not timely comply with the Request for Production of Documents, and he did not file a Motion for a Protective Order or otherwise attempt to challenge the discovery request.

5. On July 15, 1994 counsel for Milwaukee Forge sent Burgess a letter reminding him that his response to the Request for Production of Documents had been due on July 2, 1994 and that Burgess had neither complied with his request nor contacted him, and he stated that if he did not hear from Burgess by July 19, 1994 he would assume that Burgess was not going to comply with the request and would request an Order from the Administrative Law Judge.

6. Burgess had still not complied with or objected to the Request for Production of Documents by July 19, 1994. On July 21, 1994 counsel for Milwaukee Forge filed a Motion To Compel.

7. On July 26, 1994 the Administrative Law Judge wrote to Burgess by certified mail informing him that counsel for Milwaukee Forge had filed a Motion To Compel and asking Burgess to contact him within 20 days to indicate whether he intended to continue to pursue his complaint and why he had not responded to the Request for Production of Documents. Burgess received this letter.

8. On August 1, 1994 Burgess responded in writing to the Administrative Law Judge, indicating that he was interested in pursuing his complaint and asserting that "his attorney," William McCarty, would be "in touch." The only statement in Burgess' letter concerning the Request for Production of Documents was an assertion that "[w]e are waiting on papers to present."

9. On August 8, 1994 the Administrative Law Judge ordered that Burgess comply with Milwaukee Forge's Request for Production of Documents. Based on Burgess' representation that he was represented by Attorney William McCarty, the Administrative Law Judge issued this Order in the form of a letter directed to Attorney McCarty.

10. On August 9, 1994, Milwaukee Forge served a Notice of Deposition indicating an intention to depose Burgess on August 26, 1994. Based on Burgess' representation that he was represented by Attorney William McCarty, the Notice of Deposition was served on Attorney McCarty.

11. Attorney McCarty had in fact not agreed to represent Burgess at that point, and was merely reviewing his case in order to make a decision on whether to represent him. Attorney McCarty decided not to accept representation of Burgess, and he informed Burgess of this by a letter of August 18, 1994, returning Burgess' file to him at this time. In this letter, Attorney McCarty advised Burgess that a Notice of Deposition had been served requiring him to appear to give a deposition on August 26, 1994. Attorney McCarty also advised Burgess that his case was complex, and he recommended that he retain other counsel.

12. When he received his file back from Attorney McCarty, Burgess saw the August 8, 1994 letter from the Administrative Law Judge ordering compliance with Milwaukee Forge's discovery requests.

13. By August 22, 1994 Burgess had still neither complied with nor in any fashion objected to the Request for Production of Documents. On August 22, counsel for Milwaukee Forge wrote to the Administrative Law Judge stating that Milwaukee Forge could not take Burgess' deposition without having an opportunity to review the documents which had been sought in the Request for Production of Documents, and that the deposition was therefore being canceled. The letter also requested that Burgess complaint be dismissed as a sanction for his failure to comply with the discovery request, or in the alternative that other sanctions be imposed and that the hearing (scheduled for September 23, 1994) be postponed until such time as discovery could be completed.

14. By a letter dated September 1, 1994 the Administrative Law Judge renewed his Order that Burgess comply with Milwaukee Forge's discovery demands. He also indicated that while a hearing would be held as scheduled, no evidence would be taken on the merits of the case at that time, and the hearing would instead address the questions of whether Burgess had complied with the discovery requests and whether any sanctions were warranted. Burgess received this letter.

15. Also on September 1, Burgess filed with the Administrative Law Judge and served on counsel for Milwaukee Forge certain documents. This filing was apparently intended as compliance with the Equal Rights Division's administrative rule requiring exchange of copies of hearing exhibits no later than 10 days prior to hearing.

16. On or around September 16, 1994, Burgess filed and served some additional materials apparently intended as compliance with the Equal Rights Division's prehearing disclosure rule.

17. Prior to September 20, 1994, Milwaukee Forge served another Notice of Deposition on Burgess scheduling a deposition for September 20, 1994, and a deposition of Burgess was begun on that date. However, the deposition was not completed, in part because Burgess insisted on leaving before counsel for Milwaukee Forge had completed his questioning of him.

18. Hearing was held before the Administrative Law Judge on September 23, 1994. Burgess appeared in person, without counsel. Milwaukee Forge appeared by Attorney John Patzke. Local 3205 appeared by its President, Michael Kuhagen. At this hearing, Burgess was provided with a full and fair opportunity to be heard on the question of whether he had complied with Milwaukee Forge's discovery request.

19. At the conclusion of the September 23, 1994 hearing, the Administrative Law Judge found that Burgess had failed to substantially comply with his orders that Milwaukee Forge's discovery requests be responded to, and as a sanction for the violation of his orders he dismissed Burgess' complaint against Milwaukee Forge. Burgess then withdrew his complaint against Local 3205 and the Administrative Law Judge dismissed the complaint against Local 3205 on that basis.

Based on the Findings of Fact made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. Complainant Ed Burgess failed to substantially comply with the orders of the Administrative Law Judge that he respond to Respondent Milwaukee Forge's Request for Production Of Documents.

2. Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:

ORDER

The Administrative Law Judge's September 24, 1994 Order of Dismissal is affirmed. The complaint in this matter is dismissed with prejudice.

Dated and mailed: February 13, 1995
burgeedd.rrr : 110 : 9

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

This case arose out of an allegation of race and perceived handicap discrimination in termination. The respondent served a request for production of documents on the complainant. The complainant failed to either timely respond or to object, and the respondent eventually moved for an order to compel discovery. The Administrative Law Judge issued such an order and warned that sanctions could be imposed for its violation. After the complainant still failed to produce requested documents, the respondent sought dismissal of the complaint. The Administrative Law Judge responded by giving the complainant what was in effect a last chance, warning him on September 1, 1994 that he was ordered to produce the documents in question, and that the first order of business at the scheduled September 23, 1994 hearing would be determining whether or not the complainant had complied with the order to produce the documents.

At that hearing, the Administrative Law Judge provided the complainant a full opportunity to be heard on the question of his (non)compliance with the discovery requests and his excuses therefor. It was determined that he had still not produced all of the documents that had been requested and that he had been ordered to produce. Thereafter, after considering the complainant's excuses, the Administrative Law Judge dismissed the complaint. The question before the commission is whether the Order of Dismissal should be upheld.

The administrative rules of the Equal Rights Division provide that an Administrative Law Judge's authority with respect to imposition of sanctions for failure to comply with discovery orders is the same as that of a circuit court under Ch. 804, Stats. Wis. Admin. Code Ch. IND 88.14(2). Under Ch. 804, a circuit court possesses discretion to dismiss an action as a sanction for failure to comply with discovery orders. Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 276-77, 470 N.W.2d 859, 865 (1991). The authority to impose sanctions is essential to the court's ability to ensure prompt disposition of lawsuits. Id. at 274, 470 N.W.2d at 864.

It has been held that the outright dismissal of a complaint for noncompliance with pretrial orders is appropriate only in cases of egregious conduct. Prahl v. Brosamle, 142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987). While the Administrative Law Judge did not make an express finding here that the complainant's failure to comply with his discovery order was "egregious," this is not necessarily significant, since the law does not require a tribunal to make an explicit finding of bad faith or egregious conduct before imposing a sanction. Monson v. Madison Family Inst., 162 Wis.2d 212, 215 & n.3, 470 N.W.2d 853, 854 (1991). ("[A] trial court's failure to utter . . . precise "magic words" [does not] result in any reversible infirmity," Englewood Community Apartments Ltd. Partnership v. Alexander Grant & Co., 119 Wis.2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App. 1984)). The trial court's findings may be equivalent to a finding of bad faith or egregious conduct. It is sufficient if the record contains a reasonable basis for a determination that the sanctioned conduct was egregious and that there was no clear and justifiable excuse. Monson at 215, 470 N.W.2d at 854. Further, the party challenging the dismissal must demonstrate a clear and justifiable excuse for the delay or failure to comply with procedural statutes. See, Englewood, 119 Wis.2d at 40, 349 N.W.2d at 719.

Applying these standards, the commission is satisfied that imposition of the sanction of dismissal was appropriate here. It is implicit in the Administrative Law Judge's findings (2 ) , that the complainant's failure to comply with his Order was egregious and without any clear or justifiable excuse. Furthermore, the commission agrees with this implicit finding of the Administrative Law Judge.

The complainant agreed that he had received the discovery requests as well as the correspondence from the Administrative Law Judge which warned him of possible sanctions and which ordered him to comply. Therefore, lack of notice is not an issue. The complainant also did not raise any objections to the scope of the discovery requests, and in any event the commission is satisfied that the Request for Production was entirely reasonable in scope, so that is not an issue. Finally, the complainant did not dispute that he had possession and control of a number of documents which were within the scope of the production request, which he did not in fact provide.

The complainant's principal argument seemed to be in the nature of excusable neglect: that he was a layman, that he had been trying to comply with the requests, and that certain events had made it difficult for him to do so. The Administrative Law Judge quite evidently did not accept the complainant's excuses as justified or significant. The commission agrees. The complainant's failure to ever contact counsel for Milwaukee Forge or the ALJ to claim that he did not understand what was expected of him justifies doubt of the seriousness of his claim that he did not understand the request. Complainant's attempt to justify his failure to produce a copy of a letter which had been mailed to him by Milwaukee Forge, indisputably within the scope of one of the production requests (No. 7), gives additional reason to question whether he was making a serious effort to comply. Complainant claimed not to have "personally" received the letter because when it came in the mail to his home he was not living there and it was his wife who "received" it. (T. 23). However, he conceded that he did in fact eventually receive it from her. (T. 24). This kind of hypertechnical interpretation of the production request makes the commission less inclined to see this as a case in which a lay litigant failed to comply with a discovery request only because of genuine bewilderment about what it meant. Finally, the commission also gives some weight to the ability of the Administrative Law Judge to assess the complainant's credibility by observation of his demeanor at hearing when he offered his explanations for his failure to comply with the discovery order.

Considering these factors, and also based on its experience in applying the standards contained in Ch. 804 to questions of whether to sustain sanctions imposed by Administrative Law Judges for non-compliance with discovery orders, see, Smith v. Norris Adolescent Center (LIRC, 4/21/89), Gemmell v. ABFM (LIRC, 2/24/94), Bie v. WLUK-TV (LIRC, 02/29/88), the commission therefore affirms the Order of the Administrative Law Judge.

cc: JOHN C. PATZKE

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) Permission of the Equal Rights Division was necessary pursuant to its administrative rules, Wis. Admin. Code Ch. Ind 88.14(2), because Burgess was not represented by counsel.

(2)( Back ) Even though the Administrative Law Judge did not denominate his Findings of Fact as such, it is clear that the recitation of facts contained in his Order Of Dismissal are his findings of fact about the case, based on the record before him which included the September 23, 1994 hearing. The commission has set forth its own Findings of Fact in this decision only to set forth more fully the basis for its decision to affirm the Administrative Law Judge's Order of Dismissal. These Findings of Fact are substantially in accord with the findings of the Administrative Law Judge.