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

ANTHONY B TAYLOR, Complainant

FRANCISCAN MINISTRIES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199701025, EEOC Case No. 26G971041

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the record of the proceedings before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: April 30, 1998
taylor.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The Complainant failed to appear at a deposition which had been properly noticed for 10:00 A.M. on March 12, 1998. Thereafter, he failed to respond to the Administrative Law Judge's request that he submit an explanation for his failure to appear. For these reasons, and as more particularly described therein, the Administrative Law Judge issued an Order of Dismissal on March 26, 1998.

On March 27, 1998, the Complainant telephoned the ERD and asserted (in a voice mail message left for the Administrative Law Judge) that he had been incarcerated from March 10, 1998 through March 26, 1998, and that that was why he had not appeared at his deposition or responded thereafter to the Administrative Law Judge.

On March 30, 1998, the Administrative Law Judge wrote back to the Complainant informing him that because she had already issued an Order of Dismissal in the matter, he would have to file a Petition for Review by the commission. She also told him that he should explain to the Commission "exactly what the circumstances were" surrounding his incarceration and why he, or someone he knew, did not contact either the Respondent's attorney or the Division to inform it that he had missed his deposition due to being incarcerated. Finally, she told him that he should provide proof to show that he was actually in jail, and that if he could not immediately get documents to show that he was in jail, he should file his appeal letter and then produce the documents to prove that he had been incarcerated "at a later date to be set by the commission."

On April 1, 1998, the ERD received a letter from the Complainant in which he repeated his assertion about having been incarcerated. This letter was treated as a Petition for Review.

The Petition for Review did not explain what the circumstances were surrounding the Complainant's incarceration. It added no information about the supposed incarceration that was not provided in the original voice mail message.

In view of the indication which had been given by the Administrative Law Judge in her March 30, 1998 letter to Mr. Taylor, the commission wrote to the Complainant on April 14, 1998 and informed him that he was being allowed 14 days from the date of that letter to file with the commission evidence relative to his claim that he was incarcerated from March 10, 1998 through March 26, 1998. The Complainant was specifically informed that the information had to be received by the commission within 14 days from the date of the letter, that is, on or before Tuesday, April 28, 1998.

As of the close of business on Tuesday, April 28, 1998, the commission had received nothing from the Complainant in response to its April 14, 1998 letter.

Because of the Complainant's continued failure to provide any sort of support for his assertion that he failed to appear at the deposition because he was incarcerated, the commission now views that assertion as less than credible.

Depending on the circumstances, dismissal of a complaint may be an appropriate sanction for a refusal to cooperate with discovery. See, Castiglione v. Giesen & Berman (LIRC, 06/25/97), Dobbs v. Super 8 Motel (LIRC, 10/15/96). The commission believes that the circumstances here warranted that sanction. The Complainant's failure to appear at his deposition not been credibly explained. The Complainant's assertion of an excuse for which supporting information was solicited by the Administrative Law Judge and the commission, but then not provided, leads to the inference that there was no valid excuse for the failure to appear.

cc: Mitchell W. Quick, Attorney for Respondent

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