DIANE SQUIRES, Complainant

MONTEX 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 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.

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

Dated and mailed March 15, 2002
squirdi . rsd : 164 : 9  

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

On August 28, 2001, the respondent's counsel served the complainant's attorney with a discovery request. That request included a demand that the complainant respond to written interrogatories by September 27. On October 29, at which point the complainant had neither replied to the interrogatories nor responded to telephone inquiries from the respondent's attorney, the respondent filed a motion to compel discovery. On November 2, the administrative law judge issued a scheduling order which gave the complainant until November 16 to respond to the motion to compel. The complainant filed no response, and based upon the undisputed assertions contained in the respondent's affidavit in support of the motion, the administrative law judge issued an order compelling discovery. The administrative law judge's order, which was issued on November 21, required the complainant to submit responses to the interrogatories by December 14. The complainant's attorney made no contact with the administrative law judge thereafter and, on January 4, 2002, the respondent's attorney advised the administrative law judge that she had not received anything from the complainant subsequent to the issuance of his order. On January 8 the administrative law judge dismissed the entire complaint based upon the complainant's failure to comply with the order compelling discovery.

In a subsequent letter of reconsideration sent to the administrative law judge, the complainant's attorney indicated that responses to the respondent's interrogatories were submitted on November 14 and December 11, respectively. However, the request for reconsideration did not include copies of the interrogatory responses that were purportedly supplied to the respondent. Moreover, the complainant never raised any objection or response to the motion to compel or to the administrative law judge's order compelling discovery, in spite of the fact that this order was issued subsequent to the date on which the complainant's attorney allegedly provided the information in question. Given these circumstances, the commission is satisfied that the complainant did, in fact, fail to cooperate with the respondent's legitimate discovery request, even after being ordered to do so by the administrative law judge, and that dismissal of the complaint is an appropriate sanction for this failure. See, Wis. Stat. § 804.12(2)(a)3.

In her petition for review the complainant argues that her attorney assured her he had taken care of everything and that she is disappointed with his representation of her in this matter. While it is certainly unfortunate if the complainant received inadequate legal reprsentation, that is not a basis for setting aside the administrative law judge's decision. See, Patek v. Waukesha Engine Div., Dresser Indus. (LIRC, August 31, 1995). The Wisconsin Supreme Court has held that it is more equitable to allow adverse consequences of poor legal representation to fall upon the shoulders of the party who has chosen the attorney, rather than on the adversary and other litigants who await their day in court. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991). In the Allis Chalmers decision the Court further noted that the non-complying party has a possible remedy in a malpractice action, particularly when the dismissal is entirely attributable to her attorney's conduct. Thus, while the complainant may have reason to question the competence of her attorney's representation of her in these proceedings, her remedy lies elsewhere. The dismissal of the complaint is affirmed.

cc: 
Attorney Clay F. Teasdale
Attorney Jennifer L. DeCaster

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uploaded 2002/03/18