Wis.LIRC ER Decision: Castiglione - June 25, 1997 - Statute of limitations - no allegation of sexual harassment occurring within the 300 days prior to date on which complaint filed; Discovery - dismissal of complaint for failure to cooperate with deposition

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

ELAINE CASTIGLIONE, Complainant

GIESEN & BERMAN, S.C., Respondent A

and

CHARLES GIESEN, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199555021

In a complaint filed with the Equal Rights Division (ERD) of the Department of Industry, Labor and Human Relations (now Department of Workforce Development) on November 10, 1995, complainant Elaine Castiglione alleged that respondents Giesen & Berman, S.C. and Charles Giesen had subjected her to sexual harassment, and to discriminatory treatment and discharge because of her sex and in retaliation for her opposition to their alleged sexual harassment and discriminatory practices. (1 ) On May 10, 1996, an Equal Rights Officer of the ERD issued:

(1) a Preliminary Determination under Wis. Admin. Code � 218.05 dismissing the allegation of sexual harassment on the grounds that it was not brought within the applicable 300-day statute of limitations; and

(2) an Initial Determination under Wis. Admin. Code � 218.07 finding no probable cause to believe that the respondents had discriminated against or terminated Castiglione because of her sex or her opposition to discriminatory practices.

Castiglione timely appealed both of these determinations.

Pursuant to Wis. Admin. Code � 218.05(3), Castiglione's appeal of the Preliminary Determination dismissing certain allegations of her complaint as untimely was referred to an Administrative Law Judge for review. On August 13, 1996, Administrative Law Judge Deborah Little Cohn issued a decision which affirmed the Preliminary Determination of untimeliness as to the sexual harassment claim. Castiglione filed a timely petition for commission review of Administrative Law Judge Cohn's decision.

Castiglione's appeal of the Initial Determination finding no probable cause to credit the remaining allegations of her complaint was certified to hearing pursuant to Wis. Admin. Code � 218.08(3) on May 29, 1996. The parties engaged in efforts at discovery during much of the summer and fall. On December 16, 1996, respondents filed a Motion to Dismiss for Failure to Provide Discovery, and for Costs. Castiglione filed a Reply Memorandum in response to the Motion to Dismiss on January 6, 1997 and respondents filed a Brief in Support of Motion to Dismiss on January 28, 1997. On March 25, 1997, Administrative Law Judge Allen Lawent, before whom the matter had been pending since August 28, 1996, issued a decision granting the motion to dismiss but denying costs. Castiglione filed a timely petition for review of Administrative Law Judge Lawent's decision.

The commission has considered the complainant's petition and the positions of the parties, and it has reviewed the complaint, discovery papers, and all other materials in the file. Based on its review, and for the reasons described at more length in the Memorandum Opinion which is attached hereto, the commission agrees with the decisions petitioned from and adopts them as its own.

DECISION

The decision of Administrative Law Judge Cohn affirming the Preliminary Determination of untimeliness as to the sexual harassment claim (copy attached), is affirmed.

The decision of Administrative Law Judge Lawent granting the motion to dismiss (copy attached), is affirmed.

Dated and mailed: June 25, 1997
castige.rpr : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Introduction -- This matter arises out of Elaine Castiglione's allegations that respondents Giesen & Berman, S.C. and Charles Giesen engaged in various acts of unlawful discrimination against her when she was employed at Giesen & Berman as a legal secretary. Certain allegations were dismissed as having been untimely under the applicable 300-day statute of limitations. The remaining allegations were subsequently dismissed as a discovery sanction. Both issues have been presented to the commission by timely appeals, and they are discussed separately below.

Statute of limitations issue -- Castiglione's complaint was filed on November 10, 1995, so that given the 300-day statute of limitations contained in Wis. Stat. � 111.39, the complaint was only timely as to acts occurring on or after January 14, 1995. Castiglione's complaint specifically alleged, however, that "during the period of 9/19/94 to 12/15/94, Mr. Giesen repeatedly engaged in numerous instances of sexual harassment, personal degradation, insult and humiliation".(emphasis added) It also makes an allegation that "[o]n or around 12/23/94, after being subjected to several particularly degrading and humiliating sexist tirades by Mr. Giesen, including calling me a derogatory name for a woman", Castiglione "stood up to Giesen" and demanded that he stop his behavior.(emphasis added) The allegations of the complaint which follow all relate to alleged retaliation against Castiglione for her opposition to Giesen's alleged sexual harassment, discriminatory treatment of Castiglione respecting her health insurance coverage, and her eventual termination.

Based on its review of the materials in the file in this matter, including the complaint and other assertions by Castiglione as to what she contends the facts are, the commission concludes that the ALJ was correct in affirming the Preliminary Determination that the allegations of sexual harassment were untimely. The complaint clearly does not make any allegation of sexual harassment occurring within the 300 days prior to the date on which the complaint was filed. Furthermore, in her subsequent appeal and arguments, Castiglione has not made any assertions or allegations of any specific incident occurring on or after January 14, 1995 that would constitute sexual harassment. Although she has vociferously argued that there was a "hostile work environment" which persisted after that date, it is clear that what she is referring to is her allegations of other forms of discrimination (such as retaliation regarding insurance benefits, wages, and termination). None of these fit within the definition of "sexual harassment". (2 )

For these reasons, the commission agreed with and has adopted the ALJ's decision affirming the Preliminary Determination.

Castiglione characterized ALJ Cohn's dismissal of these allegations of her complaint as action on an improper "Motion For Summary Judgment". She is incorrect. This is a specific procedure, authorized by an administrative rule of the ERD, Wis. Admin. Code � ILHR 218.05, which provides for review of every complaint filed to determine, among other things, whether the complaint was filed within the time period set forth in the act, if that issue is raised in writing by the respondent (3 ). The rule further provides that the department shall issue a preliminary determination dismissing any complaint which fails to meet that requirement. A complainant may appeal from such an order, and if a timely appeal is filed, the matter is referred to the hearing section of the division for review by an administrative law judge, who can either affirm, reverse, modify or set aside the preliminary determination. If the decision affirms the preliminary determination, the matter may be appealed to LIRC. These issues are decided without hearing, based on analysis of the allegations made. This is a procedure in which the Equal Rights Division acts on its own authority to determine whether complaints are legally sufficient. The cases Castiglione has cited concerning Motions For Summary Judgment are therefore not relevant.

Castiglione asserted that originally, both the Preliminary Determination dismissing certain allegations on statute of limitations grounds, and the Initial Determination finding no probable cause to believe the other allegations of the complaint, were scheduled for hearing (to occur on August 30, 1996). She claims that thereafter, ALJ Cohn "removed" the Preliminary Determination from "the appeal agenda", and that this was improper. Castiglione argues that under Wis. Admin. Code � 218.10, she should have been provided a hearing on that issue.

Castiglione is mistaken. No hearing was ever scheduled on Castiglione's appeal of the Preliminary Determination dismissing certain allegations of her complaint on statute of limitations grounds. The Notice of Hearing issued on June 5, 1996, scheduling an August 30, 1996 hearing, clearly stated that it related to a hearing to be held in response to Castiglione's appeal of conclusions of no probable cause in the Initial Determination. It stated that the issues for hearing were whether there was probable cause to believe that respondents discriminated against Castiglione in terms and conditions of employment and terminating her because of her sex and because of her opposition to discriminatory practices. These were the issues identified and resolved in the "Initial Determination - No Probable Cause". Administrative Law Judge Cohn's June 26, 1996 and July 12, 1996 letters, copies of which were sent to Castiglione, made it clear that there was a distinction between the probable cause issues, which were going to hearing, and the statute of limitations issue addressed in the Preliminary Determination, which was going to be decided by Cohn after she considered written argument from the parties, without hearing. No hearing was required by Wis. Admin. Code � 218.10, and as the commission has discussed above, no hearing was necessary to determine that the allegations in Castiglione's complaint about sexual harassment by Charles Giesen were barred by the statute of limitations.

In any event, the commission considers that the dismissal of Castiglione's complaint as a sanction for her refusal to allow herself to be deposed effectively moots the question of the dismissal of certain allegations of that complaint on statute of limitations grounds. The sanction imposed by Administrative Law Judge Lawent, was dismissal outright, with prejudice, of Castiglione's complaint.

Dismissal as a discovery sanction -- The Equal Rights Division's rules allow for pre-hearing discovery and provide, at Wis. Admin. Code � ILHR 218.14 that the scope of discovery, methods of discovery and use of discovery at hearing shall be the same as set forth in Wis. Stat. ch. 804, and that the administrative law judge has the same authority to compel discovery, to issue protective orders and to impose sanctions as the court has under ch. 804. Under Wis. Stat. � 804.12(4), the sanction of dismissal of a complaint may be imposed on a party as a sanction for their failure to appear at their own deposition. On a number of occasions, the commission has upheld orders dismissing complaints because of complainants' refusals to allow or cooperate in discovery, see, Dobbs v. Super 8 Motel (LIRC, 10/15/96)(complaint appropriately dismissed where the complainant failed to appear at a scheduled deposition on two separate occasions); Burgess v. Milwaukee Forge (LIRC, 06/13/95) (complaint appropriately dismissed as a sanction for the complainant's failure to comply with discovery requests and orders); Smith v. Norris Adolescent Center (LIRC, 04/21/89) (complaint properly dismissed as a sanction for the complainant's failure to comply with the Respondent's discovery requests). Thus, if the facts warranted it, dismissal of Castiglione's complaint was appropriate under Wis. Stat. � 804.12(4).

Based on its review of the file, the commission concludes that ALJ Lawent's decision accurately summarizes the course of (attempted) discovery occurring prior to December 6, 1996. While these events did not in themselves form the basis for the decision to dismiss the complaint, they provide an important context. They include repeated efforts by the respondents to depose Ms. Castiglione, all of which were frustrated by such things as: Castiglione's non-appearance at a (August 20) deposition for which she was properly noticed, following which the ALJ directly advised her (on September 4) of her obligation to appear at scheduled depositions; Castiglione indicating that she would not appear at a subsequent deposition, resulting in the respondents releasing the court reporter, and Castiglione then appearing after all when the court reporter was no longer available so that the deposition could not be conducted (October 22-23, 1996); and, Castiglione appearing for a subsequent deposition but refusing to cooperate in being deposed because of her objection to a condition of the deposition, which was the respondent's unwillingness to agree to the presence with Castiglione of a third party (her boyfriend, Hossein Dahi) who was not her legal counsel (October 29, 1996).

The decision to dismiss the complaint was directly premised on events occurring on and after December 6, 1996.

While there has been no evidentiary hearing addressing the question of what exactly occurred on and after December 6, 1996, the commission does not believe that this was necessary. Administrative Law Judges have the authority to dismiss complaints without hearing, where that action would be legally justified even if the facts were as asserted by the complainant. Schaefer v. New Berlin Realty (LIRC, 06/10/93), Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92), Valeri v. Delco Electronics--General Motors (LIRC, 07/17/92). In this case, Castiglione submitted 2 detailed written statements (her December 17, 1996 letter and her January 6 Reply Memorandum) reflecting her assertions as to what occurred on December 6 and her disagreements with Respondents' assertions as to what had occurred. Particularly significant, is the fact that in her January 6 Reply Memorandum, Castiglione specifically addressed each paragraph of Respondents' December 16 Motion to Dismiss with an indication of what she disagreed with. Her failure in the course of doing this to dispute certain other allegations, may be taken as a concession of their substantial accuracy. ALJ Lawent was entitled to consider Castiglione's statements, as well as statements of the Respondents (through counsel and in the form of affidavits) which Castiglione had an opportunity to dispute and did not, as establishing the factual framework against which respondents' Motion to Dismiss was to be evaluated.

Based on its consideration of these same sources in the file records, the commission is satisfied that the relevant events occurring on and after December 6, 1996 are accurately summarized in ALJ Lawent's decision. Without intending to indicate any disagreement with ALJ Lawent's summary, the commission also includes the following description of what it believes to be essentially undisputed facts concerning this matter, the better to explain its rationale in affirming the decision of the ALJ:

On the morning of December 6, Castiglione arrived at the offices of Respondent for her 9:00 A.M. deposition, at 8:55 A.M. She arrived in a car with Hossein Dahi. When she arrived, she pulled into the mouth of the driveway to Respondents' parking lot. She observed that the entrance to the Respondents' parking lot was blocked by a vehicle. While Dahi waited in the car, she went inside and requested that the vehicle be moved so that she could park in the lot while she attended the deposition. A receptionist told her that Respondent Charles Giesen had instructed that Castiglione not be allowed to park in the lot and that she would have to park on the street.

Castiglione then walked out, stating that she was leaving and that she would be contacting the ALJ. Based on the affidavits of both the court reporter and Respondents' receptionist, as well as Castiglione's December 7 letter and her January 6 Reply Memorandum, the commission finds that when Castiglione left she said only that she was leaving and would be contacting the ALJ, and that she did not say to anyone that she was leaving to look for parking.

After Castiglione left Respondents' offices, she and Dahi sat in their car for a few minutes and then drove away. Castiglione has asserted that they looked for parking but could not find parking "in the near vicinity" of Respondent's offices. What Castiglione means by "the near vicinity" is not clear. The commission finds (based on the written statement of Carolyn Haag of the ERD, which Castiglione was sent a copy of but did not dispute in her Reply Memorandum filed on January 6) that Castiglione and Dahi saw an open parking space near the City-County building, a 10 to 12 minute walk from Respondent's offices, but decided not to park there.

Castiglione (and Dahi) eventually drove to Union South, on the University of Wisconsin Campus. At approximately 9:40 A.M., forty minutes after leaving respondent's offices with no indication that she planned to return, Castiglione placed a telephone call to the Equal Rights Division and spoke to Carolyn Haag. At about 10:00 A.M., Haag placed a three-way call between herself, Castiglione, and respondent Charles Giesen.

At that point, the court reporter had left respondents' offices. The commission accepts as accurate the affidavit of the court reporter (submitted by respondents with their Brief in Support of Motion to Dismiss) stating that she stayed until at least 9:35 A.M. and that when it seemed clear that Castiglione was not coming back she packed up her equipment and left. As Castiglione has no personal knowledge of these events, the commission is not obliged to credit her theory that Charles Giesen sent the court reporter away as soon as Castiglione had left. However, the commission would also note that it believes the question of when the respondents may have told the court reporter she could go has little if any relevance to the question of the reasonableness of Castiglione's conduct in walking out of the deposition without any indication that she would return and failing to contact the respondents for almost an hour afterwards.

(The description of events subsequent to this point which is included in ALJ Lawent's decision requires no further elaboration).

The significant facts concerning Castiglione's conduct, are that she walked out of her deposition without saying if or when she would be back and that she then did not contact the Respondents for approximately an hour, by which time (as could reasonably have been anticipated) the court reporter was no longer available. The result of her conduct was to prevent the occurrence of the deposition that day. Subsequently, she was served (in legal contemplation) with notice of a continuation of the deposition on the following Monday morning. She stated that she would not appear, and she did not.

The commission agrees with ALJ Lawent, that Castiglione's actions were not justifiable, and were so unreasonable that it was appropriate to dismiss her complaint as a sanction.

Castiglione's refusal to cooperate with her scheduled December 6 deposition ostensibly arose over whether she was entitled to be provided a parking space by the Respondents. However, there is no basis for concluding that a party who has properly noticed an adverse party for a deposition to be held at an office in an urban area has any obligation to provide them with a free parking space, any more than they might be obliged to provide them with the actual transportation to and from the place, or meals while they are there, or any other amenity. There are any number of inconveniences and expenses which are attendant to being made to go somewhere and give a deposition, but they do not give the deponent a right to object and refuse to cooperate. For example, a complainant's unwillingness to take time off from work does not constitute a valid objection to the taking of her deposition, Woods v. Medalcraft Mint, Inc. (LIRC, 06/10/94), and a complainant can be required to appear for a deposition, even if that means missing work and not being paid for the time involved. Holubowicz v. DOC (Wis. Personnel Comm., 08/22/90). It is a fact of city life that parking is limited, is frequently difficult to find, and must frequently be paid for. Most people who are obliged to go to the downtown of a city take this into account in making their plans, including their plans on how much time they allow themselves to get to where they are going. Castiglione should have done so here.

Castiglione objects that she had previously been allowed to park in respondents' parking lot. Even assuming for the sake of discussion that this made it reasonable for her to assume without even checking in advance that parking would be available there on December 6, and for her to thus leave herself no time to find a parking space, her actions when she arrived that morning were still unreasonable. When she learned that she would not be granted a parking space, the reasonable thing for her to have done was to have parked in the nearest available location of any kind (limited-time or otherwise) and walked to the offices, or in the alternative to have gone in to her deposition while the person she drove with looked for a longer-term parking space. Her actions, including her decision to forego a parking space only a 10 to 12 minute walk away, support the inference that she actually had no genuine interest in making herself available to be deposed, but was simply seizing on the parking issue as a way of frustrating respondents' attempts to depose her.

Castiglione's efforts to avoid being served with notice of the continuation of the deposition on the following Monday, and her failure to appear at that continued deposition, reinforce the commission's decision that Castiglione unreasonably refused to cooperate in being deposed. Castiglione had no reasonable basis to believe, that the ALJ had ordered that the deposition could take place only on December 6. The fact alone that she had by her own conduct made it impossible to conduct the deposition on that day, would have made such a belief untenable. The commission is convinced, that Castiglione was simply looking for every opportunity to frustrate respondents' attempts to depose her, and that she was not doing so based on good faith beliefs about what she was or was not entitled to do, but rather on the basis of her assessments of what she could get away with without having her case dismissed. The fact that she eventually misjudged the tolerance of the Administrative Law Judge is not grounds to relieve her from the effects of his ruling.

Castiglione has argued or at least suggested that there was some impropriety connected with the respondents' attempts to have discovery of her, because she was not represented by counsel. Wis. Admin. Code � ILHR 218.14(2) provides that discovery directed to a party who is not represented by legal counsel must be authorized by the Administrative Law Judge. While it appears possible that the initiation of discovery may have preceded an affirmative grant of permission by an Administrative Law Judge, it is quite clear that the Administrative Law Judge became involved in the process early on and that the efforts to depose Castiglione, including the final effort which she frustrated on December 6, were authorized by him. Furthermore, the circumstances of Castiglione's experience in legal practice make this a case in which the problem which 218.14(2) was intended to address, of potential prejudice to naive and uneducated laypersons who may not understand the necessity of responding to discovery requests, was not presented. Therefore, the commission concluded that any non-compliance with that rule was harmless.

In summary, the commission believes that Castiglione's actions were appropriately found by the ALJ to have been an unjustifiable refusal to cooperate in being deposed. Her conduct in this case was comparable to that in the previous cases in which the commission has affirmed dismissals of complaints for refusals to cooperate in discovery. See, Dobbs v. Super 8 Motel, Burgess v. Milwaukee Forge, Smith v. Norris Adolescent Center, supra. For these reasons, it affirms the dismissal of Castiglione's complaint.

NOTE: The commission's failure to discuss issues other than those set out above should not be taken as an indication that they were ignored. The commission has read and considered all of the arguments, claims, and assertions raised by Castiglione, as well as the serious charges she has made against many of the persons involved in the handling of this matter. The commission has not addressed Castiglione's other arguments, claims, assertions and charges, because it concludes that they lack any colorable basis in law or fact.

cc: Scott E. Mickelson, Attorney for Respondent A

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Footnotes:

(1)( Back ) Castiglione filed a "Motion To Amend Complaint" on November 22, 1996, seeking to include Morris Berman as a separately named Respondent, to add Scott Mickelson as a "Third Party Respondent", and to add allegations of further acts of retaliation occurring after the investigation of this complaint had been completed. There is no indication in the file that this Motion was ever granted or that the Amendment was ever allowed. In any event, the commission concludes that the disposition arrived at herein effectively moots the issue, and for that reason it does not address it further.

(2)( Back ) Wis. Stat. � 111.32(13) provides that "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment.

(3)( Back ) Respondents raised the issue of the 300-day statute of limitations in their first written response to the complaint on January 22, 1996.