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

MELVIN D. REED, Complainant

MILWAUKEE WI 53203-0031

HEISER FORD INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200504107, EEOC Case No. 26G200600149C


Based upon Melvin Reed's request to withdraw his complaint of race discrimination before the Equal Rights Division, on April 27, 2007, an administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order dismissing Reed's ERD complaint with prejudice, but without prejudice to any right he may have to pursue his claim in any other forum.

Both parties filed timely petitions for commission review of the matter.

Reed asserts the ALJ was biased and erred in not granting him a postponement of the hearing due to the murder of his brother less than two weeks before his scheduled April 26, 2007 hearing. He requests that the commission restore this matter for hearing before a new ALJ.

The respondent asserts the ALJ erred in deciding that she did not have jurisdiction to rule upon its Motion For Sanctions For Frivolous Claim Against Complainant submitted on April 25, 2007, and pending at the time she dismissed Reed's complaint

Having considered the petitions and the positions of the parties, based upon its review of this matter the commission concludes that: 1) the record fails to establish that the ALJ was biased or that she erred in denying the complainant's request for a postponement; 2) the ALJ did not lose jurisdiction to rule on the respondent's motion for sanctions pending at the time she dismissed Reed's complaint.

Accordingly, the Labor and Industry Review Commission therefore issues the following:

DECISION


The complainant's request for a new hearing before a different ALJ on the grounds of ALJ alleged bias and failure to grant his request for a postponement of the hearing is denied. This matter is remanded to the ALJ for further proceedings on the respondent's Motion For Sanctions For Frivolous Claim Against Complainant.

Dated and mailed December 7, 2007
reedme2 . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The Equal Rights Division scheduled a probable cause hearing for 9:00 a.m. on April 26, 2007, on Melvin Reed's discrimination complaint charge that the respondent violated the WFEA by refusing to hire or employ him because of his race. Reed, a black male, asserted, among other things, that he saw several respondent ads for sales persons during 2005, that twice he filled out applications, that twice he sent follow-up letters and that several times he spoke to Dale Zaroff at the respondent but that he was not hired.

On April 11, 2007, the respondent took a videotaped deposition of Reed.

In a letter to Reed dated two days before his deposition, the respondent asserted that he had a history and pattern of appearing at hearings with a completed withdrawal form in hand and requested that he advise both the Division and the respondent of his intentions with respect to going forward with the April 26, 2007 hearing. The respondent's letter advised Reed that if he did withdraw his claim at the hearing, the respondent would bring a motion for sanctions against him. In a letter to Reed after his deposition dated April 18, 2007, the respondent stated that pursuing his claim to hearing had no support in law or fact, and that it was placing him on notice that if he continues to hearing on April 26 the respondent would seek a finding from the ALJ that continuance of this claim was frivolous and without any reasonable basis in law or equity.

On April 24, 2007, at 3:58 p.m. Reed filed at the ERD a Motion to Postpone the April 26, 2007 Hearing, a Motion for the Court's Intervention and an "Objection for the Record". As reason for postponement of the hearing, Reed asserted that there were a multitude of unresolved issues between him and the respondent, which should be heard by the ALJ and the hearing continued. Reed asserted that "More germane, complainant and complainant's family are devastated by the recent murder of complainant's (half) brother. No matter the effort, complainant, who suffers from depression, cannot prepare properly for this case." Reed attached a copy of a newspaper article which told of Dimitry J. Reed being shot the night of Tuesday, April 10, 2007, and dying Wednesday morning. He also attached a copy of a newspaper article indicating that funeral services would be held on April 18 and 19.

In the motion for the ALJ's intervention, Reed stated that he was a pro se litigant and that he had received discovery responses from the respondent timely on April 23, 2007, but "since there are so many incomplete answers to complainant's interrogatories and request for the production of document requests and since due to the complainant's inability to go to the respondent to get respondent to comply because of the close proximity to the April 26, 2007 hearing date," he was motioning the ALJ to intervene to resolve this issue.

In his Objection for the Record, Reed stated that during his deposition on April 11, 2007, the respondent's counsel had twice called the ALJ to compel him to answer questions with respect to his litigation history and that she had cordially granted the respondent's requests in both instances, but when he initiated a call regarding "the interpretation of the court's previous order," the court became "short" and "agitated" by this contact and ordered the parties not to call again. Reed indicated that he mentioned to the ALJ that her demeanor on his call was different than her conduct during the first two calls by the respondent and that the ALJ essentially responded that by this time she was exasperated by the parties. Further, Reed asserted that the ALJ had instructed him to answer "any and all" questions by the respondent and to note any objection for the record, which he believed constituted an abuse of discretion by the ALJ. Reed asserted that pretrial discovery extended to information reasonably calculated to lead to the discovery of admissible evidence and that based on the ALJ's order the respondent could have asked him questions ranging from his sexual history to his shoe size and that he would have been bound to answer. Reed then went on to assert that he did not believe this was "a misjudgment based on error, but bias distributed by the court against complainant." After citing case law stating that due process requires that a hearing examiner be fair and impartial, Reed stated:

...not only did the court during its reluctant participation [apparently a reference to the call he made to the ALJ during his deposition] make the ruling so noted, but the court also injected a reference to complainant's litigation history, saying that complainant's involvement in other discrimination cases in the past, makes complainant familiar with the procedure at a deposition, thus making complainant better able to understand what complainant's responsibilities are. This lecture from the court was totally inappropriate and clearly beyond the scope of the court's discretion....

...if the court cannot conduct these (sic) proceeding with fairness and impartiality, the court should recuse itself accordingly in the interest of justice....

The ALJ responded to Reed's April 24 motions by letter dated that same date. With respect to Reed's request for a postponement of the hearing due to his brother's death the ALJ stated the following:

...I note that the Complainant was deposed by the Respondent on the morning of April 11, 2007, and that according to the documents the Complainant provided, Mr. Dimitry J. Reed died on the morning of April 11, 2007. I have made a cursory review of the deposition transcript in this matter and have not found any references to the Complainant's brother being at the hospital and at the point of death on the morning of April 11, 2007. I spoke with the parties three times on April 11, 2007 and the Complainant never raised any issue about his half brother having died or being at the point of death on the morning of April 11, 2007.

On April 18, 2007, the Division received a set of documents from the Complainant through the mail. According to the postmark, the Complainant mailed these documents on April 16, 2007. The documents filed by the Complainant were the Complainant's exhibits and witness list, a motion to supplement the Complainant's exhibits and witness list, and a motion to apply the continuing violation principle. The Complainant's submission consisted of seven pages in his own handwriting. The Complainant's submission again does not mention the death of his half brother the previous week, the visitation and funeral services during the week or any need for a postponement due to the Complainant being so depressed that he was not able to prepare for or participate in the hearing scheduled on April 26, 2007.

The evidence in the record does not indicate that the Complainant is unable to proceed with the hearing in this matter. To the contrary, the Complainant has shown his clear headed (sic) thinking and understanding of the litigation process in this matter. I see no basis for postponing the hearing in this matter....

The ALJ then went on to note, however, that she would reconsider her decision to proceed with this matter if Reed provided her with a letter from a psychiatrist or psychologist stating that the professional had recently seen him for therapy, the dates seen and that in the professional's opinion Reed was unable to proceed with the hearing due to depression caused by the recent death of his brother, and the letter also indicated that Reed authorized the professional to speak with her to answer any questions she might have concerning Reed's incapacity to appear at the April 26 hearing.

With respect to Reed's motion for her to intervene to resolve the discovery dispute, the ALJ stated she had previously told the parties that the Division's rules require the parties to make efforts to resolve discovery disputes prior to filing a discovery motion, that she considered Reed's motion a motion to compel discovery and that his motion did not show he had attempted to resolve discovery issues with the respondent. Further, the ALJ stated that Reed's reason for not attempting to resolve the discovery issues indicates that he does not consider that he has enough time to consult with the respondent before the hearing, but this reason indicates that he conducted his discovery too late to adequately complete discovery before the hearing and therefore she would not address the discovery motion as he should have conducted his discovery in a timely manner so that all discovery and disputes about discovery could be resolved before the hearing.

Regarding Reed's Objection for the Record, the ALJ stated that he was really making a motion for her to recuse herself from the hearing. Responding to Reed's assertion that it was an abuse of discretion for her to have ordered him to answer all of the respondent's questions and improper for her to have considered his history of litigation as a basis for determining that he understood the deposition procedures and his responsibilities at a deposition, the ALJ stated that Reed failed to note that she did caution respondent's attorney that she (ALJ) expected her to behave appropriately in view of the order that Reed had to answer all of her questions. Further, the ALJ stated that Reed had failed to point to any questions posed by respondent's counsel that were clearly abusive after she (ALJ) ordered him to note his objections and answer all questions. The ALJ concluded her response to Reed's Objection for the Record stating that she saw no basis for determining that she had not been fair and impartial, and therefore would not recuse herself as the ALJ in this matter.

By fax to the ERD dated April 25, 2007, the respondent submitted a Motion For Sanctions For Frivolous Claim Against Complainant Pursuant to 227.483.  (1) The respondent asserted, for the reasons that it had previously asserted in its April 18 letter, that sanctions were appropriate because Reed both commenced and continued this action in bad faith, solely for the purpose of harassing and injuring the respondent and without any reasonable basis in law or equity to bring or continue his claim.

At the April 26 scheduled hearing, the respondent raised the matter of its pending motion for sanctions. The ALJ stated that she was not going to address the motion at the hearing and that it was her position that after the case was completed, if she believed the motion for sanctions was something that should be considered she would consider it at that time.

After discussion of another pending motion and some other preliminary matters, Reed stated that he had filed a motion for a postponement of the hearing. The ALJ stated she had already sent a letter responding to that motion and that his request for a postponement was denied. However, Reed indicated that he had not received the ALJ's letter. Apparently, the ALJ made a copy of her April 24 letter for Reed, and, after ascertaining that the respondent had received a copy and responding to an inquiry by the respondent, asked if there was anything else before they began the hearing. The transcript shows the following discussion then occurred between Reed and the ALJ:

MR. REED: May I have the time to read this, your Honor?

THE HEARING OFFICER: Go ahead. Hurry up.

MR. REED: That is not how you address her.

THE HEARING OFFICER: I' m sorry. But we've got to get going.

MR. REED: Whenever she says something, you're always polite, courteous. I have never heard you once say to her "hurry up" or anything like that. That is always the way you address me continually.

THE HEARING OFFICER: Okay. I'm sorry, Mr. Reed. I don't believe I've even addressed you very often, and I think you're incorrect, but continue, please, with reading.

MR. REED: Let me just state for the record that I wasn't aware - - and I note that from your letter dated April 24th, I wasn't aware that my brother had been murdered until after the deposition that day. So your presumptions in here are incorrect just for the record.

THE HEARING OFFICER: All right.

MR. REED: All right. In accordance then, I now motion for us to - - for me to withdraw this complaint, and that will be the long and short of it.

T. 10-11.

The ALJ then went off the record to get the withdrawal form, and when back on the record she announced that Reed had signed the withdrawal document withdrawing his state claim but reserving his right to proceed with his federal claim.

The respondent's counsel objected, stating that she had written to Reed on two occasions advising him the respondent was aware of his history of withdrawing claims on the morning of the hearing because he wants to do that after having the respondent spend all of the attorneys' fees, time and resources of doing it, but then having no intention of going through with the hearing. Respondent's counsel asserted it was the respondent's belief that Reed never had any intention of going through with the hearing and that this was an absolute abuse of the system.

The respondent's counsel stated that after writing to Reed on April 9, 2007, they had a conversation where he advised her that he had no intention of advising of his intention in advance of the hearing and that, "as a complainant, he has the privilege of waking up that morning and deciding that morning if he wanted to withdraw, and that was his privilege."

The respondent's counsel stated that now Reed has alleged that he is withdrawing his claim because the ALJ rejected his motion to postpone "on the grounds that his half brother was murdered and suggesting that he has been effectively paralyzed with depression." Respondent's counsel stated she found this "interesting", as Reed "did a five-page objection for the record and many other motions including settlement documents...spending a significant amount of time preparing. He comes apparently prepared today."

Reed responded that respondent's counsel was "assuming a fact not in evidence" because she had no idea whether or not he was prepared to pursue this case. Reed asserted that he was withdrawing this case for two reasons. One was because of "the obvious bias that is shown by the court." Reed referenced, as alleged evidence of this, the April 11 deposition hearing and now the ALJ's April 24 letter wherein she assumed that he knew when he went to the deposition that his half brother had been murdered, which, in fact, he did not know about until after he arrived home later that evening.

Reed stated that "[a]nother point is that the complainant is not obligated to reveal to the respondent whatever his intentions will be, whether it would be to withdraw his complaint at the last minute because of an honest assessment that the complaint cannot be won or the complaint cannot be proven."

Reed next referenced the respondent's responses to his discovery requests, which the respondent sent on April 20th and he received on April 23rd, stating that he had attempted to resolve some issues by phone with the respondent's counsel who hung up on him when he was trying to settle some issues.

Reed then stated, "Lastly, it isn't just the murder of my half brother which has affected me so - - which has affected me so, as it is to take care of my 82-year-old father, the same father of this 20-year-old man who was murdered."

Reed concluded, stating that the postponement was for a legitimate medical reason and because of the bias he felt the ALJ continually exhibits in this case.

After listening to the parties' arguments the ALJ indicated that she was not aware of any case law that allowed her to retain jurisdiction to determine the respondent's frivolous claim motion once Reed withdrew his complaint.
 

THE DENIAL OF REED'S REQUEST FOR A POSTPONEMENT OF THE HEARING AND THE ALJ'S ALLEGED BIAS

Reed argues on appeal that the ALJ was biased and abused her discretion in denying his request for a postponement of the hearing. Reed apparently asserts that the most revealing evidence of this is shown by the ALJ's April 24 letter statement that she spoke with the parties three times during the April 11 deposition and he never raised any issue about his brother having died or being at the point of death on the morning of April 11. Reed asserts the reason he did not raise it is because he didn't know about his brother's murder until after he came home from the (deposition) hearing.

Further, Reed asserts that the ALJ's insistence that he find a mental health provider between the dates of his brother's funeral and the date of the hearing "smacks of insensitivity."

Reed asserts that he suspects the real reason for the ALJ's "unfair treatment" of him is because he has filed other cases with the ERD and because she has no respect for pro se litigants. He asserts that "apparently the ALJ still held a grudge" because in a prior case (which he hadn't found yet), he had accused the ALJ of bias and made a formal request for her recusal. Reed asserts that it was clear the ALJ did not hold the same respect for him that he does for her because at the April 26 hearing when it was established that the respondent had read the ALJ's April 24 letter but he had not, he asked for a copy and time to read it and the ALJ responded, "Hurry up".

In addition, Reed apparently asserts that nowhere in the ALJ's April 24 letter or at the hearing "did even a perfunctory issue of a condolence come from the court, after learning of the tragic and violent death of Complainant's brother."

Citing Mottl v. The Sales Force Companies (LIRC, 06/26/96), where the commission ruled that a complainant who was scheduled to undergo chemotherapy was improperly denied a request for postponement of the hearing, Reed asserts, "Surely, the murder and subsequent funeral, 1 week before a hearing, is grounds for postponement of this hearing." Reed asserts that the ALJ's "handling of this matter is an abysmal disgrace. The court (sic) contempt toward Complainant is obvious. Asking an indigent Complainant who is suffering from depression, without health insurance to jump through hoops to secure a copious doctor's excuse from a mental health professional, 1 week after burying Complainant's brother, is preposterous beyond comment. The ERD is suppose to guarantee that all parties are treated equally-even ones who are unrepresented-and that each party can be heard." (Underlining emphasis in original.) Reed concluded, asserting that the ALJ "simply put, did exactly the opposite. As such, her decision should be overturned, a new hearing should be scheduled and a fair and impartial ALJ should be assigned to hear the case."

The respondent asserts that the ALJ's decision not to continue the hearing, as demonstrated by her April 24 letter, was well considered; that she noted that Reed had mailed documents on April 16, 2007, five days after his brother's death; she noted that these documents included: (1) Reed's exhibits and witness list; (2) a motion to supplement his witness and exhibit list; and (3) a motion to apply the continuing violation principle; and that based upon Reed's actions, which demonstrated clear-headed thinking, and his lack of medical evidence, the evidence in the record did not indicate he was unable to proceed with the hearing.

The respondent asserts that the Mottl case, upon which Reed relies, has no application here because in that case the complainant requested a postponement because he was scheduled to undergo chemotherapy that very week, while here, the event that prompted the request for continuance occurred two weeks prior to the hearing.

Further, the respondent notes that Reed delayed nearly two weeks and made his request just three days before the hearing, and therefore, was untimely and not truly indicative of an emergency circumstance.

With respect to Reed's request for the ALJ's recusal, the respondent asserts there is absolutely no indication that she has acted in anything but a fair and impartial manner; that a denial of a request for postponement is not uncommon as Reed himself has had another request for a postponement denied and the commission upheld that decision, citing, Reed v. Choice One Communications (LIRC, 02/27/03). Further, the respondent notes that in Choice One Communications, Reed requested a continuance in part on the grounds of depression, however, he had failed to provide medical evidence of his depression.

Reed's reply brief repeats the assertions he made in his initial brief, with the exception that in his reply brief he asserts that it was an abuse of discretion for the ALJ to order him to answer any and all questions asked at the deposition because she "could have, and should have, received a list of questions not answered by Complainant after the deposition from the Respondent and then on a question by question (sic) basis, after hearing from BOTH parties, determined which questions were to be answered and which were not." Also, with respect to the ALJ's April 24 letter comment about him having "shown his clear headed (sic) thinking and understanding of the litigation process" (because of his April 16 submissions), Reed asserts this gives further credence to his position. Reed asks how does the ALJ "know how 'clear headed' the Complainant was", and asserts that if he had not filed those necessary papers, the respondent and the ALJ's argument would be that his present motion would be moot "because of Complainant's inability to preserve Complainant's rights." Reed asserts the commission "should not be a 'rubber stamp' for unchecked ALJ's", that the commission should overturn the ALJ's ruling to deny him a postponement, and the matter should be remanded back to a different ALJ.

With respect to hearings, Wisconsin Administrative Code § 218.18(2) provides as follows:

(2) POSTPONEMENTS AND CONTINUANCES. All requests for postponements shall be filed with the administrative law judge within 10 days after the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

Also, persons who serve as decision-makers in state administrative proceedings enjoy a presumption of honesty and integrity. Guthrie v. WERC, 111 Wis. 2d 447, 455, 331 N.W.2d 331 (1983); State ex rel. DeLuca v. Common Council, 72 Wis. 2d 672, 687, 242 N.W.2d 689 (1976); Eastman v. City of Madison, 117 Wis. 2d 106, 114, 342 N.W.2d 764 (Ct. App. 1983). A party seeking to prove either actual bias or an impermissibly high risk of bias bears a heavy burden to overcome this presumption. DeLuca, 72 Wis. 2d at 684; Eastman, 117 Wis. 2d at 114.

The commission concludes that the ALJ did not err in denying Reed's request for a postponement of the hearing. Further, the commission concludes Reed failed to meet his burden of proving that the ALJ was biased against him.

The circumstances presented in this case do not support a showing that the death (murder) of Reed's half brother presented emergency circumstances which warranted a postponement of the April 26, 2007 hearing. Reed himself admits he was aware that his half brother had been murdered when he arrived home during the evening on April 11. However, during the next week, instead of notifying the ALJ about the death of his half brother and requesting a postponement of the hearing, on April 16, 2007, Reed mailed to the ALJ documents which included a "Motion to Supplement Complainant's Exhibit and Witness List After the 10 Day Deadline", a "Motion to Apply the Continuation Violation Principle" and his exhibit and witness list for the scheduled April 26 hearing. It was not until April 24, thirteen days after the death of his half brother and five days after the funeral that Reed filed "Complainant's Motion to Postpone the April 26, 2007 Hearing", in which he asserted that the murder of his brother and because he suffers from depression prevented him from properly preparing for his case. Even then, however, Reed did not rely on his brother's death alone as the basis for requesting a postponement but also apparently felt the need to bolster support for the postponement request by asserting that there were a multitude of unresolved issues between the parties that should first be heard by the ALJ. This assertion is revealing because included with this reason for Reed's hearing postponement request was a 1 page handwritten document titled, "Complainant's Motion for the Court's Intervention", in which he asserted that there were many incomplete answers by the respondent to his interrogatories and request for the production of documents, and a handwritten document titled "Complainant's Objection for the Record", consisting of 31/2 pages, in which he asserted that the ALJ's demeanor when he called her during his deposition was different than that during the respondent's two calls and discussed the scope of discovery and the requirement that a hearing examiner be fair and impartial, complete with citation to case law.

As noted by the ALJ in her April 24, 2007 letter response to Reed regarding his motion for her intervention to resolve the discovery disputes, Reed had failed to conduct his discovery in a timely manner so that any disputes about discovery could have been resolved before the hearing. Further, with respect to Reed's hearing postponement request because of his half brother's murder and because he (Reed) suffers from depression, as the ALJ also concludes, the record does not indicate that Reed was unable to proceed with the hearing but instead does show his clear-headed thinking and understanding of the litigation process. This is clearly evident by the extent and nature of the various motions and objections that Reed submitted to the ALJ after learning of his half brother's murder.

Contrary to argument by Reed, the ALJ's April 24 letter statement that she had spoken with the parties three times during Reed's deposition on April 11 and that Reed had never raised any issue about his half brother having died or being at the point of death is not "revealing evidence" that the ALJ had abused her discretion in denying his request for a postponement or that she was biased against him. The record indicates that the ALJ's statement simply reflected what was known to her at the time.

While Reed asserts that the ALJ's insistence that he find a mental provider between the dates of his brother's funeral and the date of the hearing "smacks of insensitivity", he has not submitted any medical documentation to support his claim that he suffers from depression and that because of his depression he was prevented from preparing for the April 26 scheduled hearing. Further, assuming for purposes of argument that Reed does not have health insurance, there is no reason to believe that this was known by the ALJ.

Contrary to assertion by Reed, the record does not show that the ALJ treated him unfairly, nor is there reason to believe that the ALJ has no respect for pro se litigants or that the ALJ "held a grudge" against him because in a prior case he had accused her of bias and made a formal request for her recusal. The record fully supports the ALJ's reasoning for denying Reed's request for postponement of the hearing and for denying his request for intervention to resolve the dispute he had regarding the respondent's responses to his discovery requests. Also, it was not an abuse of discretion for the ALJ to instruct Reed to answer "any and all" questions asked of him at his deposition (and to note any objection for the record) given the repeated calls the ALJ had received on April 11 to rule on issues that arose during the deposition. And while Reed has asserted that based on the ALJ's order the respondent "could have asked him questions ranging from his sexual history to his shoe size", Reed has failed to identify any question asked by the respondent after the ALJ's order which was inappropriate or not reasonably calculated to lead to the discovery of admissible evidence.

Finally, the record indicates that the reason the ALJ asked Reed to hurry up when reading her April 24 letter denying his request for a postponement of the hearing was because the ALJ felt a need to get the hearing underway, not because of any bias against him. The record shows that when Reed objected the ALJ twice apologized to Reed and allowed him time to read the April 24 letter. 
 

THE ALJ'S DECISION NOT TO RULE ON THE RESPONDENT'S MOTION FOR SANCTIONS

The respondent asserts that Reed's statement at the hearing that he wished to withdraw his case rather than go forward with the hearing was precisely the action the respondent made efforts to avoid; that he cannot be allowed to engage in a tactic of "bringing claims that he has admitted in sworn testimony to be factually baseless" and forcing his opposition to prepare for a hearing which never takes place, without suffering due consequences; and that it was not the intention of the framers of § 227.483 to allow for a complainant to avoid the consequences of § 227.483 by a strategic late withdrawal.

Further, the respondent asserts that Reed has repeatedly employed the tactic of initiating charges and lawsuits against employers, only to abandon them, noting that this practice has even been observed by the Seventh Circuit, citing Reed v. Great Lakes Companies, Inc., 330 F.3d 931, 936 (7th Cir. 2003). Counsel for respondent states she was aware of Reed's history and wrote to him on at least two occasions prior to the April 26 hearing in an attempt to prevent Reed from using that tactic in this matter.

As noted above, the ALJ indicated that she wasn't aware of any case law or anything that allowed her to retain jurisdiction of the case once Reed withdrew his case. The ALJ's comment may have been in part based upon Wis. Adm. Code § 218.03(7) and a number of commission decisions which have held that once the complainant or his or her representative has filed a written request to withdraw a complaint, the administrative law judge is obligated to dismiss the complaint. See, e.g., Lokken v. General Casualty of Wisconsin (LIRC, 05/30/02); Gribbons v. Chart Industries, Inc. (LIRC, March 03/26/02); Johannes v. County of Waushara Executive Committee Board of Supervisors (LIRC, 11/01/93). The administrative rule in question, § 218.03(7), states:

(7) WITHDRAWAL OF COMPLAINT. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant's duly authorized representative. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

The respondent points out that § 227.483 provides in relevant part as follows:

Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by the party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense...(bold text and underlining emphasis in original).

The respondent argues that a correct interpretation of the law compels the conclusion that the ALJ was not deprived of jurisdiction the moment Reed stated a desire to withdraw his claim; that between the time Reed submitted his Notice of Withdrawal and her acting upon the notice the ALJ had jurisdiction to resolve any outstanding matters, including the pending Motion for Sanctions.

The respondent argues that an interpretation that strips jurisdiction the instant a Notice of Withdrawal is presented would allow any petitioner to file a frivolous charge and maintain it until the very moment it became apparent defeat was imminent and that sanctions would be awarded, which would render § 227.483 meaningless, as it would not serve as a deterrent for the seasoned complainant such as Reed. The respondent argues that § 227.483 must be applied either post-withdrawal or prior to an ALJ acting on a Notice of Withdrawal is especially true in Reed's case because he acknowledged at his deposition that he has filed discrimination claims against at least 30 different employers in Wisconsin in the last several years. Further, the respondent argues that Reed has repeatedly used the tactic of forcing a respondent to expend time and monetary resources preparing for a hearing which he knows will never take place.

The respondent argues that its interpretation of § 227.483 is consistent with the manner in which federal courts and the U.S. Supreme Court have handled cases in which a plaintiff dismisses a case after a motion for sanctions under Fed. R. Civ. P. 11 has been filed, citing, Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)(addressing question of whether a petitioner's dismissal of its complaint deprived the district court of jurisdiction to award attorney's fees held that a district court's authority to impose sanctions was not terminated by the plaintiff's voluntary dismissal of its lawsuit); and others including, Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073 (7th Cir. 1987), cert. denied, 485 U.S. 901 (1988)("The violation of Rule 11 is complete when the paper is filed...This implies that a court should always be able to award fees, whether the plaintiff wins, loses on the merits, or dismisses his own case.").  (2)

Finally, the respondent notes that Rule 11 was amended in 1993 to allow a party a "safe harbor" of 21 days before a Rule 11 motion is filed (the party filing a Rule 11 motion is required to serve the motion 21 days before filing it) but if the party allows the 21 days to expire and the moving party properly files its motion, the court retains its jurisdiction to grant the defendant's motion even if the party thereafter dismisses his or her case, citing cases, including, Jenkins v. Macatawa Bank Corp., 2007 WL 737747 (W.D. Mich. March 7, 2007)(A voluntary dismissal filed after the expiration of the 21-day safe harbor did not deprive the court of jurisdiction to consider the imposition of sanctions); Retail Flooring Dealers of America, Inc. v. Beaulieu of America, LLC, 339 F.3d 1146 (9th Cir. 2003)("Imposition of a Rule 11 sanction is a determination of a collateral issue and a determination of a collateral issue may be made after the principal suit has been terminated for lack of jurisdiction.").

In response to the respondent's argument regarding the ALJ's decision not to rule on the motion for sanctions, Reed begins by asserting that "The Respondent has filed the silliest, most ridiculous motion, the Complainant has ever read. It almost defies basic legal intelligence, that someone who purports to have attended law school, would waste the time of this Commission and the Complainant, not to say anything about wasting the Respondent's client's money. This motion should be denied forthwith, accompanied by an admonishment by the Commission."

Also, in his "Background" statement, Reed states that he sent a response dated April 16, 2007 to the respondent's April 9, 2007 letter inquiry regarding his intention of going forward with the April 26 hearing. Reed states, "Complainant who was aware of the murder of Complainant's half brother, informed Atty. Meyer that Complainant was 'undecided' on this issue." Reed cites "Compl Exh. 1" as support. Reed has a portion of an unmarked document attached as the first document to his brief which shows what appears to be a date of April 16 at the bottom of the page. In his Background statement, Reed suggests that he was "undecided" about going forward with the April 26 hearing because he was now aware that his brother was murdered. However, what "Compl Exh. 1" indicates is that what Reed was "undecided" about was an inquiry by the respondent if he planned "to pursue this case on the day of the scheduled hearing at the ERD or to exercise my right to continue this matter in federal court." Reed's April 16 letter then goes on to indicate that he had attempted to talk to respondent's counsel on the phone that day to resolve "some of their issues" and that after he had reminded her that he would "not tolerate her constant interruptions when I am speaking, nor will your disrespectful demeanor go without retort", respondent's counsel hung up on him.

Reed argues that just because the respondent "provided limited information" to him by way of its initial position statement to the department, doesn't mean this information must be taken as truthful on its face; that this information must be subject to questioning and examination and the people who are the subjects of this information interviewed and scrutinized. Further, with respect to discovery, although acknowledging it was his fault that he had little time to "dissect the information" received from the respondent, Reed argues that he found the respondent's discovery answers to be non-responsive and requested a postponement of the hearing and intervention by the ALJ but was denied this request. Reed also argues that the fact remains that his half brother "was not merely dead, but murdered" keeps being minimized.

Reed next argues that the ALJ and the respondent seem to think that because he filed necessary motions before the hearing-motions essential to preserving his rights-that he was not grieving about the tragic event.

Finally, Reed argues that the respondent is simply trying to take advantage of his pro se status; that he isn't obligated to share with the respondent what he plans to do before he plans to do it; that he does not have to answer respondent's counsel's request to find out what his intentions are; that counsel would not do this if he was represented; and that he can view evidence at his own pace and decide one month or one day before the hearing if the case should be pursued through the ERD procedure or in another venue.

Reed's arguments solely address the merits of the respondent's Motion For Sanctions against him pursuant to § 227.483, not the issue raised by the respondent, which is whether or not the ALJ retains jurisdiction to rule on a § 227.483 motion once a complainant has submitted a request to withdraw his complaint. The commission finds the respondent's arguments and cited case law regarding whether the ALJ should retain jurisdiction to rule on a § 227.483 motion once a complainant submits a request to withdraw his complaint persuasive. Further, the commission notes that in a case decided on January 26, 1995, Northwest Wholesale Lumber v. Anderson, 191 Wis. 2d 278, 528 N.W.2d 502 (Ct. App. 1995), the court cited with approval the Cooter & Gell case, supra, where the U.S. Supreme Court allowed the motion for sanctions to continue after dismissal where the offending attorney or party voluntarily dismisses an action in order to frustrate the opponent's ability to seek sanctions under Rule 11. In a footnote, the court of appeals stated:

The rationale makes sense. As the Court noted: "If a litigant could purge his violation of Rule 11 merely by taking a dismissal, he [or she] would lose all incentive to 'stop, think and investigate more carefully before serving and filing papers.' " Northwest Wholesale Lumber, 191 Wis. 2d at 289, n.7.

Accordingly, the commission has remanded this matter for further proceedings with respect to the respondent's motion for sanctions against Reed for a frivolous claim.

cc: Attorney Jerilyn Jacobs

 


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Footnotes:

(1)( Back ) This statute reads as follows:

227.483 Costs upon frivolous claims. (1) If a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous petition, claim, or defense.

(2) If the costs and fees awarded under sub. (1) are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party or may be assessed so that the party and the attorney each pay a portion of the costs and fees.

(3) To find a petition for a hearing or a claim or defense to be frivolous under sub. (1), the hearing examiner must find at least one of the following: (a) That the petition, claim, or defense was commenced, used, or continued in bad faith, solely for purposes of harassing or maliciously injuring another. (b) That the party or the party's attorney knew, or should have known, that the petition, claim, or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification, or reversal of existing law.

(2)( Back ) Rule 11 at this time read, in part, as follows:

..The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation....If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.

 


uploaded 2007/12/10