MARY T JOHNSON, Complainant
COVENANT HEALTHCARE SYSTEMS INC, Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
In the first introductory paragraph to the administrative law judge's decision, the date "February 21, 2006" is deleted, and the date "April 11, 2006" is substituted therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 27, 2007
johnsma . rmd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In her petition for commission review the complainant requests a hearing on the merits of her complaint. The complainant offers a variety of arguments pertaining to her failure to cooperate with discovery attempts which she believes will support her request for a hearing. First, the complainant argues that there was no hearing on February 21, 2006, as stated in the administrative law judge's decision, and that she first learned of the respondent's motion to dismiss in a meeting on April 11, 2006. (1) The complainant has identified an error in the administrative law judge's decision. No hearing was held on February 21, 2006. Rather, a prehearing conference was held on April 11, 2006. The commission has modified the administrative law judge's decision to correct this error.
With respect to the complainant's comment that she did not learn of the motion to dismiss until April 11, 2006, it does indeed appear that the respondent failed to provide the complainant with a copy of its motion prior to the pre-hearing conference. However, the respondent did send the complainant a copy of a letter dated March 24, 2006, confirming that the April 11 hearing date would be used for a pre-hearing conference at which motions and discovery disputes could be addressed. The complainant, therefore, should have been aware that her failure to comply with the respondent's discovery requests would be discussed at that time. The complainant has not identified anything she would have done differently had she received prior notice of the motion, and the commission can sees no reason to believe that the lack of notice resulted in any actual prejudice to her. It, therefore, concludes that, while the respondent was remiss in its failure to send a copy of its motion to the complainant, in this instance that failure does not warrant a new hearing.
Next, the complainant asserts that the delays mentioned in the decision were authorized by the administrative law judge because she was moving and could not retrieve necessary documents that were in a storage unit. She maintains that a letter from the respondent's attorney acknowledged that she was given more time by the administrative law judge, that the attorney was also granting the complainant more time, and that the complainant was to wait for further instructions from her. These arguments are without merit. There is nothing in the file or in the record to suggest that the administrative law judge ever authorized delays in the complainant's discovery responses, nor does the respondent's attorney's letter indicate this was the case. The letter from the respondent in response to the complainant's request for an additional month or two to respond to discovery indicates that the respondent would provide the complainant an additional ten days to submit her responses to interrogatories and requests for production of documents and that it would contact her about rescheduling her deposition. The complainant was aware that the respondent expected her discovery responses no later than February 3, 2006, and has offered no justifiable excuse for her failure to submit the requested information or make any additional contact with the respondent.
The complainant also contends that she received the discovery requests on December 27, 2005, and asserts that she sent the confirmation of receipt to the respondent's attorney and the administrative law judge to prove the date on which she received them. She maintains that this is where the confusion arose as to when the response was due. Again, this argument fails. The complainant has asserted throughout these proceedings that the 30-day period to reply to discovery began on the date she received the discovery requests. However, the statute provides that "[s]ervice by mail is complete upon mailing," although "if the notice or paper is served by mail, 3 days shall be added to the prescribed period." Wis. Stat. § 801.14(2); Wis. Stat. § 801.15(5)(a). Consequently, where the respondent's discovery requests were mailed to the complainant on December 21, 2005, the complainant had until January 23, 2006, to serve her response. Moreover, even crediting that the complainant believed she had 30 days from her receipt of the discovery requests to submit her reply and that she did not receive the discovery requests until December 27, a week after they were mailed, the fact remains that her response was not submitted 30 days later. Rather, the complainant did not respond at all.
To summarize, the case file and hearing record reveals that the complainant was uncooperative with the respondent's repeated attempts to take her deposition and that she failed to respond to discovery requests or to timely request an extension. Although the respondent granted a ten-day extension for the complainant to respond to interrogatories and requests for production of documents, in response to a request which was not made until after the original deadline to do so had already elapsed, the complainant submitted no responses thereafter and made no effort to request another extension. The complainant's explanations for her actions, that her documents were in an inaccessible storage unit (2) and that she had no attorney -- having apparently failed to make any attempt to obtain one prior to January of 2006 -- are not compelling. Further, while the complainant has argued that the timeline for responding should begin to run when she received the discovery requests, not when they were mailed, and that there was ambiguity as to when the respondent expected responses, these arguments defy logic and reason. As stated above, the complainant's purported belief that she had several extra days to submit her information does not explain her failure to submit it at all and, further, the respondent's January 24 letter to the complainant clearly set forth a date by which the discovery requests were due. Based on all the information before it, the commission believes that the complainant's actions evinced an intention not to cooperate with discovery, and it concludes that dismissal of her complaint as a sanction for failure to comply with discovery, and based upon deemed admissions, was appropriate. Accordingly, the administrative law judge's decision is affirmed.
cc: Attorney Lucinda J. Schettler
Appealed to Circuit Court. Appeal dismissed December 11, 2007. Appealed to the Court of Appeals. Affirmed, in unpublished per curiam decision, December 9, 2008.
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