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

JOHN D. McADOO, Complainant

WM. BEAUDOIN & SONS, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199901719, EEOC Case No. 26G991182

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 evidence submitted to 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, except that it makes the following modifications:

Paragraph 4 of the ORDER is deleted and the following is substituted therefor:

"4. That within 30 days of the expiration of time within which an appeal may be taken herein, the Complainant shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which a person fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the person shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., § § 111.395, 103.005(11) and (12)".

DECISION

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

Dated and mailed April 19, 2000
mcadojo.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Facts -- As is indicated above, the commission agrees with and adopts the decision of the Administrative Law Judge ("ALJ") as its own. It adds the following more detailed description of the history of this case in order to better frame the discussion which follows it.

This case had its origins in a complaint filed on May 19, 1999 alleging discharge in retaliation for the filing of an earlier discrimination complaint. An Initial Determination was issued on July 1, 1999 finding probable cause to believe that there had been discrimination as alleged. The matter was noticed for hearing, and the employer (represented by Krukowski and Costello) filed an Answer.

On October 21, 1999, the employer's attorneys filed a letter with the ALJ providing notice that they intended to conduct discovery of Mr. McAdoo. This notification was necessary in view of the ERD's administrative rule, Wis. Admin. Code. Ch. DWD 218.14 (2). On November 10, 1999, the employer's attorneys served Mr. McAdoo with a Notice of Deposition scheduling a deposition for 9:00 A.M. on November 23, 1999 at the offices of Krukowski and Costello.

Up to this point, McAdoo had been unrepresented. However, on or shortly before November 16, 1999, Attorney Karma Rogers contacted the Equal Rights Division and left a message that she was representing Mr. McAdoo. Because of an indication in this message that she would be unavailable at the time of a pre- hearing conference which had previously been scheduled in the matter for November 19, 1999, the ALJ rescheduled this pre-hearing conference to December 1.

In his letter of November 16, 1999, a copy of which was sent to Attorney Rogers, the ALJ advised that Attorney Rogers should file a Letter of Appearance if she had not done so already. In fact, she had not done so at that time, and she also had not done so by November 23, the date on which the deposition of McAdoo was scheduled. As of that date, the employer's attorney had not heard from Rogers, but on his own initiative he re-noticed the deposition of McAdoo to December 7.

The pre-trial conference which the ALJ had moved to December 1 was not held, because on the morning of that day, a few hours before the conference was scheduled to begin, Attorney Marcus Johnson (another attorney in Attorney Rogers' firm, who was going to be handling the pre-hearing conference) telephoned the ERD and indicated that he was involved in a felony trial and would not be able to participate in the conference on that day.

On December 2, 1999, the employer's attorney wrote to the ALJ, with copies to Attorneys Rogers and Johnson, indicating (among other things) that they would continue with their noticed deposition of Mr. McAdoo on December 7.

Attorney Johnson appeared at the scheduled December 7 deposition; however, Mr. McAdoo did not.

Thereafter, on December 14, 1999, the employer filed a Motion To Compel Discovery, seeking an order that McAdoo be compelled to appear for a deposition and that he be ordered to pay costs and attorneys fees incurred by the employer in connection with the matter. The ALJ subsequently notified both Attorneys Rogers and Johnson, and McAdoo himself, by letter, that they should respond to that Motion by December 29, 1999. There was no response from any of them.

Consequently, on January 6, 2000, the ALJ issued an Order granting the Motion To Compel, directing McAdoo to appear and give a deposition at a time and place to be selected by the employer, and providing that the employer would be entitled to recover attorneys fees and costs incurred in connection with McAdoo's failure to appear at the deposition and with the discovery motion, with its petition for such fees to be filed by January 13, 2000.

Subsequently, the employer's attorneys sent McAdoo and his attorneys copies of a notice setting a deposition for January 13, 2000.

Neither McAdoo or either of his attorneys (Rogers, Johnson) appeared at the deposition. About half an hour after the deposition was scheduled to begin, the employer's attorney telephoned the offices of McAdoo's attorneys but they were not in. The employer's attorney then contacted the ALJ, who also tried to contact McAdoo's attorneys and who was told upon reaching their office that they were unavailable.

The employer then filed a Motion To Dismiss. The ALJ notified McAdoo's attorneys that they would have until January 19, 2000 to file a response to the motion. They filed no response.

On January 31, 2000, the ALJ issued a Decision and Order granting the Motion To Dismiss and awarding costs and fees incurred in connection with it; this Decision and Order was issued unsigned, in non-final form, with directions that the employer submit by February 7 a statement of the fees and costs sought in connection with the Motion To Dismiss and that the complainant file a response by February 18. The employer's attorneys filed their supplementary fee petition on the same day.

On February 4, 2000, McAdoo attempted to contact the ALJ by telephone and ended up leaving a message on his voice mail. In it, he asserted that he had been out of town for a month due to family illness and that he thought that his attorneys would be handling the matter for him. He raised questions about whether he had been adequately represented. The ALJ responded on that date by a letter to all parties, explaining that he did not consider the letter to provide a basis for him to reconsider any of the decisions he had issued to that date. Thereafter, he issued his final Decision and Order on March 3, 2000.

Discussion - It should initially be noted that while the Order in this case was in part directed expressly against McAdoo's attorneys, in that it made the award of $770.70 in costs and fees connected with the Motion To Dismiss a joint liability of McAdoo and his attorneys, neither of those attorneys (Karma Rogers and Marcus Johnson) have filed a petition for commission review.

McAdoo's petition for review repeats the assertions that he made in his telephone message to the ALJ. Basically, he asserts that the problem was poor representation by his attorneys.

With respect to the first deposition, which was attended by Attorney Johnson but not by McAdoo himself, McAdoo asserts that Johnson only told him about the deposition on the day it was scheduled and that he (McAdoo) was "not able to attend." However, the factual assertions made about this matter in McAdoo's petition are clearly incorrect. His petition shows this as having been an event on November 13, 1999; in fact, the first deposition was originally scheduled for November 23, 1999 and was then re-scheduled to December 7, 1999, which is the date on which it was actually held and attended by Attorney Johnson but not McAdoo himself.

In addition, McAdoo himself was sent a copy of the first Notice of Deposition scheduling the deposition for November 23, 1999. It is undisputed, that he did not show up for a deposition on that date (which had in fact been cancelled and re-noticed for December 7). From the fact that McAdoo did not show up for the deposition on November 23, it can be inferred that he knew it was cancelled. (1) He must have acquired this information from his attorney(s), because the cancellation and re- noticing of the deposition had been communicated to them rather than to McAdoo himself. It is then reasonable to infer that when his attorneys communicated to him that the deposition set for November 23 had been cancelled, they also communicated the information about it having been rescheduled to December 7, since the cancellation and re-scheduling occurred together. This persuades the commission, that McAdoo would have known that a deposition was scheduled for December 7.

For these reasons, the commission concludes that McAdoo's explanation for missing the first deposition, on December 7, 1999, is not worthy of credence.

With respect to the second deposition which was scheduled for January 13, 2000, at which neither McAdoo or his attorney(s) appeared, McAdoo asserts that he had notified his attorneys on December 29, 1999 that his mother in Arkansas was gravely ill and that he would be going there and would be out of town indefinitely; he asserts that he thus believed that his attorneys would take care of things in connection with the case until he returned. However, McAdoo should, by this point, have been more cautious with respect to how the case was being handled. Although correspondence relating to the case (and the discovery problems) had been going to McAdoo's attorneys rather than to McAdoo since the point at which Attorneys Rogers and Johnson had indicated that they were representing him, when the employer filed its Motion To Compel discovery in December and the ALJ wrote a letter on December 14, 1999 directing that a response be filed to the Motion by December 29, 1999, he sent a copy of his letter directly to McAdoo as well as to his counsel. McAdoo would have received this letter within a few days after December 14, 1999. This letter would have put a reasonable person on notice that something was going on with the case which they should become more informed about, and such a reasonable person would have contacted their attorney(s) to find out what the "Motion To Compel Discovery" was about.

Insofar as the failure of McAdoo's attorneys to appear at the deposition is the issue, there is no basis whatsoever for questioning the ALJ's decision, because there is no explanation whatsoever from those attorneys for their failure to appear.

Appropriateness of sanctions imposed -- The administrative rules of the Equal Rights Division incorporate the provisions of the Rules of Civil Procedure relating to discovery, including the provisions for enforcement of discovery and the imposition of sanctions for failure to comply with discovery requests or with orders relating to discovery. Wis. Admin. Code Ch. DWD 218.14(3). Those provisions allow for the imposition of sanctions up to and including dismissal of a complaint, and they also allow for orders directing that either a non-compliant party, or their attorney, or both, pay costs, including actual attorney fees, incurred by opposing parties in connection with efforts to enforce discovery. Wis. Stat. § 804.12.

The steps taken by the ALJ in this case were well within the authority defined by that section. Under Wis. Stat. § 804.12(4), the court shall require a party who fails to appear at their deposition, or the attorney for the party, or both, to pay fees and costs, unless the court finds that the failure was "substantially justified." McAdoo's petition for review fails to persuasively, or even credibly, establish such "substantial justification" for his failure to appear at the first scheduled deposition. The award of the costs and fees sought by the employer in connection with that failure, which were reasonable in amount, was clearly justified. The assessment of this order against McAdoo alone was appropriate in view of the fact that his attorney appeared at the deposition.

The sanction of dismissal imposed for McAdoo's failure to appear at his deposition on its rescheduled date was undoubtedly a severe one, but in the circumstances here it was justified. The failure of a party to attend at their own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint the first time it happens, even absent a "warning" (such as an Order to Compel). See, Wis. Stat. § 804.12 (4). Here, the complainant failed twice to attend at his own deposition, the second time after such a warning had been issued. The commission has previously affirmed the dismissal of a complaint where the complainant failed to appear at a scheduled deposition on two separate occasions, the second such failure representing either intentional refusal to cooperate or bad faith or a callous disregard for the obligation to submit to discovery. Dobbs v. Super 8 Motel (LIRC, 10/15/96). See also, Castiglione v. Giesen & Berman (LIRC, 06/25/97) (complaint dismissed for complainant's failure to submit to deposition). Here too, the imposition of an order for payment of fees and costs incurred was authorized by the applicable discovery provisions and was reasonable. The assessment of this order against both McAdoo and his counsel was unquestionably appropriate in view of the fact that the attorney as well as McAdoo failed to appear.

cc:
Karma Rogers, Attorney for Complainant
Marcus Johnson, Attorney for Complainant
Mark A. Johnson, Attorney for Respondent

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Footnotes:

(1)( Back ) If this inference is incorrect, the only remaining viable inference is that McAdoo still believed that the deposition was still scheduled for that day, yet failed to appear for it despite that belief.