MELVIN D. REED, Complainant

WURTH USA, INC., Respondent

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 in this matter. 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.

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

Dated and mailed September 25, 2001
reedmel . rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Complainant's asserted grounds for refusing to cooperate with discovery -- The complainant initially refused to cooperate with respondent's attempts to obtain discovery by way of written interrogatories, on the grounds that (1) respondent had not submitted proof that it had filed copies of the interrogatories with the Equal Rights Division, (2) the respondent had failed to give 10 days' notice to the Division of its intent to serve discovery requests on the complainant, (3) the Division had not granted approval for the respondent to have discovery from the complainant, and (4) discovery was not allowed because the case had not been, in complainant's words, "certified for a hearing date." None of these were valid grounds for the complainant to refuse to cooperate with the respondent's discovery efforts.

The Division's rules provide that a party should file copies of demands for discovery with the Division at the time they are served on the party from who discovery is sought, see, Wis. Admin. Code DWD 218.14(2). The respondent in fact did that, filing a copy of its interrogatories at the time that it served them on the complainant. Complainant's objection, that respondent did not also serve him with proof of such filing, is without merit. The Division's rule does not require that any sort of "proof of filing" be served on the party from whom discovery is sought.

The Division's rules provide that a party who wishes to have discovery of another party who is not represented by an attorney must file with the chief of the hearing section of the ERD a written statement of its intent to seek such discovery, not less than 10 days prior to conducting such discovery. See, Wis. Admin. Code DWD 218.14(2). The respondent in fact did that, filing such a statement on April 20, 2001, more than 10 days prior to the time that respondent served its interrogatories on the complainant. As the ALJ noted, while the respondent did not serve a copy of this statement on the complainant, and while it would have been the better practice for it to have done so, neither the particular rule nor any other provision of the Division's rules expressly required this. It is quite evident, that the principal purpose of the rule requiring a party to file a statement with the Division alerting it of an intent to have discovery of an unrepresented party, is to give the Division time to evaluate the need for providing information to the unrepresented party concerning the discovery process and the importance of his cooperation in it. The purpose of this rule is served when the statement is filed with the Division. For this reason, and because (as noted) there is no express requirement that a copy of the statement be served on the unrepresented opposing party, the failure of the respondent to serve the complainant with a copy of its statement of intent to have discovery did not give the complainant grounds to refuse to comply with the discovery.

Complainant's objection that the Division had not given its approval to the respondent's desire to commence discovery, appears to reflect a lack of awareness on the complainant's part of a change which took place in the Division's rules some years ago. Originally, the rules of the ERD did require that the Division affirmatively approve discovery of unrepresented parties. However, that rule was amended to its present form in 1995. Register, June 1995, No. 474, eff. July 1, 1995. Since that time, the applicable rule has required only that the party seeking discovery of an unrepresented party file a statement indicating their intent to do so. It does not require "approval". Therefore, the fact that the ERD had not "approved" the respondent's discovery did not give the complainant grounds to refuse to comply with it.

Complainant's initial objection that discovery was improper because the case had not been (in complainant's words) "certified to a hearing date," relies on what can only be either a misunderstanding or a misstatement of the applicable rule. The Division's rules provide that discovery may not be used prior to the time that a matter is "certified to hearing." Wis. Admin. Code DWD 218.14(1). A case involving an appeal from an initial determination of no probable cause is certified to hearing upon the filing of the appeal. See, Wis. Admin. Code DWD 218.08(3). Thus, this case was certified to hearing on April 10, 2001. A copy of the "Certification To Hearing" was sent to the parties at that time. This is an entirely different matter from the issuance of a "Notice of Hearing" when a specific hearing date has actually been set, see, Wis. Admin. Code DWD 218.11. Therefore, the Division's rule concerning the time at which discovery may be commenced did not give the complainant any basis for refusing to cooperate in discovery, because the discovery was commenced consistently with that rule, i.e., after the case had been certified to hearing.

Dismissal as sanction -- Dismissal of a complaint as a sanction for refusal to cooperate with discovery is obviously a drastic step, but it is warranted in certain cases. See, e.g., Castiglione v. Giesen & Berman (LIRC, June 25, 1997), Dobbs v. Super 8 Motel (LIRC, October 15, 1996), Taylor v. Franciscan Ministries (LIRC, April 30, 1998).

In this case, the complainant engaged in a course of conduct evidencing a lack of any serious intention to cooperate in the discovery process. He initially refused to respond to interrogatories for a number of reasons which were non-meritorious. He refused to participate in attempts by respondent to resolve the dispute. Even after the ALJ ordered him to comply, the complainant continued to refuse to cooperate. The commission considers that the complainant's lack of cooperation and his statements explaining his refusal to comply with respondent's efforts at discovery made it abundantly clear that he had no intention of responding to the interrogatories (or of paying the attorneys fees which had been ordered by the ALJ as part of his ruling on the respondent's Motion To Compel). In these circumstances, the commission believes that the ALJ properly exercised his discretion to dismiss the complaint as a sanction for the complainant's refusal to cooperate with respondent's efforts to obtain discovery and for the complainant's refusal to comply with the ALJ's order compelling discovery.

cc: Julie Badel, Attorney for Respondent

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uploaded 2001/09/26