SHAWN JOHNSON, Complainant
ROMA PIZZA II, 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 makes the following:
1. The respondent, Roma Pizza II (hereinafter "respondent") is one of two pizza restaurants owned by Mark Galluzzo.
2. The complainant, Shawn Johnson (hereinafter "complainant"), began working for the respondent in July of 2003 as a waitress. She earned $4 an hour, plus tips. The complainant was hired by her son-in-law, Steve Mareth, who was the restaurant manager.
3. At the time she was hired the complainant was 44-years old and unmarried with three grown children. The complainant's two daughters also worked for the respondent, one as a waitress and the other as a delivery driver.
4. Shortly after the complainant was hired, her son-in-law, Steve Mareth, was incarcerated, leaving the respondent without a manager. In August of 2003 the respondent's owner approached the complainant about becoming the restaurant manager. The complainant accepted the job.
5. As restaurant manager, the complainant was responsible for ordering supplies, hiring and firing employees, scheduling employee hours, collecting moneys, and making bank deposits.
6. At her request, the complainant received a weekly paycheck of $100, but received the rest of her compensation in cash. The complainant's compensation was based upon the respondent's profits for the week, and averaged $400 to $500 a week, but could be considerably more.
7. Shortly after the complainant began working as restaurant manager, a personal, sexual relationship developed between her and Mark Galluzzo, the respondent's owner, who was five years younger than the complainant, and unmarried. The sexual relationship between the complainant and Galluzzo was a consensual one, in which the complainant was a willing participant. The relationship lasted for the duration of the complainant's employment with the respondent, approximately two and a half years, and the parties estimate that they engaged in sexual activity more than 80 times. These sexual encounters generally took place after work at Mark Galluzzo's home, to which the complainant would drive over twenty minutes each way in her own vehicle, and were initiated equally by both the complainant and Galluzzo.
8. In December of 2005, at the complainant's request, the respondent stopped giving the complainant her $100 weekly pay check and began paying her entirely in cash.
9. In March of 2006, the respondent's owner started looking into the books for the restaurant managed by the complainant. He discovered that the complainant's restaurant had $18,000 in unpaid debt to vendors.
10. On or about March 21, 2006, Galluzzo confronted the complainant about the finances. The complainant indicated that she did not know how it happened, and explained that business was slow. Galluzzo observed that the amount of cheese the complainant had been ordering was consistent with higher sales and asked where the money was going. The complainant could offer no explanation.
11. The complainant worked on March 22, 2006. Before leaving for the day the complainant removed many of the respondent's restaurant supplies, including the chest freezer, the coffee pot, and the pictures on the walls.
12. On March 23, 2006, one of the respondent's cooks notified Galluzzo that no one was at the restaurant to let her in and, further, that the complainant had said to tell him she quit. When Galluzzo arrived at the restaurant to let the cook in he discovered the missing items.
13. Later that day or the following day the respondent contacted the Racine County Sheriff's Department to report theft of property by the complainant. No criminal charges were filed against the complainant.
14. On March 23, 2006, the complainant contacted the Racine County Sheriff's Department to report that Galluzzo had raped her on March 21. No criminal charges were filed.
Based on the above FINDINGS OF FACT, the commission makes the following:
1. That the respondent did not discriminate against the complainant in the terms or conditions of employment based on sex, in violation of the Wisconsin Fair Employment Act.
2. That the respondent did not engage in or permit sexual harassment, in violation of the Wisconsin Fair Employment Act.
3. That the respondent did not discriminate against the complainant by terminating her employment based on sex, in violation of the Wisconsin Fair Employment Act.
Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:
The complaint is dismissed with prejudice.
Dated and mailed February 25, 2009
johnssh . rrr : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In her petition for commission review the complainant argues that the administrative law judge erred in permitting the respondent to withdraw its deemed admissions. The complainant contends that the administrative law judge abused his discretion by failing to articulate his reasons for permitting withdrawal, that the administrative law judge should have required the respondent to present medical evidence, and that allowing the respondent to withdraw the admissions prejudiced her in maintaining her action. The commission has considered these arguments, but finds them unpersuasive.
In the first place, the commission notes that the complainant has not established that the administrative law judge failed to articulate his rationale for allowing withdrawal of the admissions. No record was made of the motion hearing, and the information the complainant put into the record at the hearing on the merits contains nothing to establish what, if any, rationale was provided by the administrative law judge when he issued his ruling.
Moreover, even assuming the administrative law judge did fail to provide his rationale, such error would not necessarily warrant a remand. Wisconsin courts addressing the question of how to proceed under similar circumstances have stated:
Even though there was an abuse of discretion in the case before us, reversal by this court is not automatic. A reviewing court is obliged to uphold a discretionary decision of a trial court, if it can conclude ab initio that there are facts of record which would support the trial judge's decision had discretion been exercised on the basis of those facts.
In Schmid v. Olson, 111 Wis. 2d 228, 237, 330 N.W.2d 547 (1983).
Where the trial court fails to adequately explain the reasons for its discretionary decision, the appellate court will independently review the record to determine whether it provides a reasonable basis for the trial court's ruling.
State v. Clark, 179 Wis. 2d 484, 490, 507 N.W.2d 172 (Ct. App. 1993).
Taking all of the circumstances into consideration, the commission believes that the record does provide a reasonable basis for allowing the withdrawal of the admissions. The respondent filed a response to the requests for admission two and a half weeks after they were due, but prior to the hearing. The respondent's attorney contended that the admissions were not timely filed because, although he began working on the responses when the requests for admissions were served on May 11, 2007, he was incapacitated due to illness for three weeks following Memorial Day. Although the respondent's attorney evidently provided no medical records in support of this assertion, he submitted a sworn affidavit and offered to provide the administrative law judge with his medical records for an in camera inspection, if necessary.
The administrative law judge was entitled to accept the respondent's attorney's representations as credible, and the complainant's argument that the respondent had to present competent medical evidence to support its request to withdraw the deemed admissions is without merit. An administrative law judge may require a party to provide such supporting evidence as the administrative law judge determines, in his or her discretion, is appropriate. Jones-Browning v. Associates Leasing, Inc. (LIRC, March 16, 1990)(emphasis added). However, there is no absolute requirement that a party requesting relief from an order on the ground of illness must present medical evidence in support of that request.
Further, the statute permitting the court to allow withdrawal of deemed admissions does not require the party seeking withdrawal to demonstrate, as a precursor to consideration of the request, that the failure to respond to the admissions in a timely manner was with good cause. Rather, the statute simply provides, as follows:
The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits.
Wis. Stat. § 804.11(2).
In Nabors v. Kelly IT Resources (LIRC, Oct. 6, 2006), in which the commission set aside an administrative law judge's dismissal of a complaint based upon deemed admissions and remanded for a hearing on the merits, the commission explained:
The moving party [for withdrawal or amendment of the admission(s)] must show that the presentation of the merits will be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment will prejudice the party in maintaining the action on the merits. Bank of Two Rivers v. Zimmer, 112 Wis. 2d 624, 633, 334 N.W.2d 230 (1983). It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. Schmid v. Olsen, 111 Wis. 2d 228, 235 fn. 3, 330 N.W.2d 547 (1983).
Since the language in s. 804.11(2) was adopted from and is nearly identical to its counterpart provision in Rule 36(b) of the Federal Rules of Civil Procedure, we may look to federal case law for guidance. Mucek v. Nationwide Communications, Inc., 2002 WI 60, 252 Wis. 2d 426, ¶29. Federal courts have held that the party making the admission must show that presentation of the merits will be subserved by withdrawal and that this inquiry involves consideration of whether the admission is contrary to the record in the case. Mucek, 2002 WI 60, ¶27 n4, citing Siemien v. Chem. Waste Mgmt., Inc., Supp. 2d 939, 941-42 (W.D. La. 1998). See also, Schmid, 111 Wis. 2d at 238 (rejecting plaintiff's assertion that the withdrawal of the admission did not serve the presentation of merits of the case, since liability was a key issue in the case, and aside from the defendant's failure to respond to the requests for admission, there was no indication that it was not a disputed issue). In the instant case, presentation of the merits of the action will be subserved by permitting withdrawal of the admissions. Here, liability is also the key issue. Moreover, aside from the absence of a separate document response from the complainant specifically designated as a response to the respondent's Request to Admit, there is no indication that liability was not a disputed issue. Indeed, these admissions are contrary to the record as shown by the complainant's responses to the respondent's First Set of Interrogatories and Request for Production of Documents.
Finally, the respondent cannot fairly argue that withdrawal of the admissions will prejudice the respondent in maintaining its defense against the action. The record indicates that the complainant had, prior to the date ordered by the ALJ, i.e., August 18, 2006, supplied the respondent with his responses to the respondent's First Set of Interrogatories and Request for Production of Documents, and that within such documents the complainant had specifically challenged the respondent's claim that it had not acted against him on the basis of race and in violation of the Wisconsin Fair Employment Act. Moreover, federal case law explains that the prejudice contemplated by Federal Rule 36(b) is not simply that a party would be worse off without the admissions. Rather, the party benefiting from the admission must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party was held to its admissions. Mucek, 2002 WI 60 ¶30.
In this case, the administrative law judge could have reasonably concluded that the presentation of the merits of the action would be subserved by allowing the respondent to withdraw the deemed admissions and, further, that the complainant had not shown that their withdrawal would prejudice her in presenting her case. The respondent was asked to admit to having engaged in the conduct of which he was accused by the complainant and to further admit that his conduct constituted sexual harassment so severe and pervasive as to create a hostile working environment and which would have compelled a reasonable person to resign. These admissions went directly to liability, which was, obviously, a disputed issue in this case. In his written response to the complaint of discrimination submitted to the adjudicator, a copy of which was provided to the complainant, the respondent's owner specifically denied engaging in the conduct complained of, and the initial determination finding probable cause was based upon the fact that a factual dispute existed which required a hearing to resolve. The fact that the complainant chose to depose the respondent's owner even after the deadline to respond to the admissions had elapsed further indicates that she understood he was not conceding liability and, although the deposition is not in the file, there is every reason to assume that the respondent's testimony at that time was in conflict with the deemed admissions. In addition, when the respondent ultimately submitted its responses to the requests for admission, it did not admit to having engaged in the conduct alleged.
Given the type of allegations in this case and considering that the complainant well understood the respondent's position, permitting withdrawal of the admissions subserved the presentation of the case on the merits and did not result in the type of prejudice contemplated by the court in Mucek, cited above. Under the circumstances, the commission concludes that the administrative law judge did not err in permitting the respondent to withdraw the deemed admissions.
In her petition the complainant also contends that the administrative law judge's delay in ruling on her motions to compel discovery until the day before the hearing prejudiced her ability to prepare for the case, and that the offered remedy of postponement of the hearing date was also prejudicial. The commission agrees that ruling on a motion to compel the day prior to the hearing does little to facilitate the complainant's hearing preparation, and it is troubled by the administrative law judge's failure to respond to the complainant's motions in a more timely manner. However, the delay in ruling on the complainant's discovery motions, as frustrating as it may have been, was not in and of itself prejudicial to her case. The complainant has not explained what specific information she required from the respondent or how additional time to review the information prior to the hearing would have affected her case, and given the "he said/she said" nature of the allegations, it is difficult to imagine what relevant information the complainant could have sought during discovery that she would not already have known of at the time she filed her complaint. Finally, the complainant was offered a postponement if she felt she needed more time to follow up on the information received in discovery, but declined. While rescheduling the hearing may have resulted in some inconvenience to the complainant and her witnesses, it was nonetheless a reasonable solution to her stated concern that the respondent's failure to respond to her discovery requests in a timely manner did not allow her sufficient time to prepare her case.
The complainant's complaint is that she was sexually harassed by the respondent's owner and, ultimately, constructively discharged as a result. The complainant contends that she was involved in a non-consensual sexual relationship with the respondent's owner for two and a half years. She maintains that she was coerced by the respondent, sometimes forcibly, and that, if she did not have sex with him, she would have lost her job. The complainant maintains that she ultimately quit after a specific instance in which the respondent came to the restaurant and demanded she perform a sexual act against her will.
The respondent denied the accusations. It contended that the relationship was completely consensual and that the complainant was a willing and enthusiastic participant. The respondent maintained that the complainant terminated her employment after it confronted her about the fact that, under her management, the restaurant had accrued $18,000 in unpaid bills.
The administrative law judge did not find the complainant's story credible, and the commission agrees. The complainant was in her mid-forties and the manager of a pizza restaurant. She claimed that her rate of pay was $100 a week plus another $400 under the table, and that she worked 50 to 70 hours a week. Thus, according to the complainant's own testimony, the job paid an average of about $8.33 an hour. The complainant testified, moreover, that she received her last paycheck in December of 2005 and worked without pay until she quit in March of 2006. Yet the complainant continued to have a sexual relationship with the respondent during this period in which she contends she worked without a paycheck. During her employment with the respondent the complainant never sought other work and, immediately upon quitting, found a job as manager of a taco restaurant located next door to the respondent which paid $8 an hour. The commission rejects as implausible the premise that the complainant endured years of forcible sex in exchange for a low-paying or non-paying job that she was able to immediately replace with comparable employment as soon as she set out to do so. (1)
The commission also notes that, by the complainant's own testimony, most of the sexual encounters occurred at the respondent's home, to which the complainant drove over 20 minutes each way in her own car without physical duress. Once there, the complainant contends she was forced to have sex with the respondent, who would sometimes choke her or otherwise coerce her. The notion that the complainant would repeatedly drive to the respondent's house to be assaulted against her will is not believable.
The timing of events supports the respondent's theory of the case. The allegations of rape came only after the respondent started questioning the complainant about why the restaurant was $18,000 behind on its bills, and after the complainant quit her job, taking a large portion of the respondent's restaurant equipment with her. The commission sees no reason to believe that, had the respondent not confronted her about the missing money, she would not have continued in her employment as restaurant manager and, presumably, also continued her affair with the respondent's owner.
In her petition the complainant argues that the administrative law judge erred in concluding that the complainant never objected to the respondent's advances, and contends that, even a single instance of unwelcome physical contact of a sexual nature violates the law. She argues that the respondent did not specifically deny the complainant's allegation that he forced himself on her on her second to last night of work, March 21, 2006, and that based upon this event alone, the respondent violated the Wisconsin Fair Employment Act. However, the respondent's owner's testimony with regard to March 21 was that he did not recall whether he and the complainant had sex on that date. The respondent did not testify that he could not recall whether he forced himself on the complainant and, to the contrary, he repeatedly testified that this had never occurred and that the complainant had never indicated the relationship was unacceptable or unwelcome. The commission does not believe that the respondent sexually assaulted the complainant as she alleges, and it considers the respondent's testimony to be far more credible on this point.
In her petition the complainant maintains that the administrative law judge erroneously excluded evidence that would have furthered her case. The first such item was the complainant's telephone records, which the complainant maintains would prove that the respondent's claim that the complainant initiated telephone calls to him was false. The telephone records were in the complainant's daughter's name; the complainant asserted that they shared an account, but that the calls to the number listed were hers. The administrative law judge's refusal to accept the telephone records was on the ground that they were not in the complainant's name and there was no certification from the telephone company showing that they were, in fact, the complainant's. The complainant argues that the rules of evidence are relaxed for administrative hearings and that the administrative law judge should admit all evidence of reasonable probative value.
The administrative law judge did not err in refusing to accept telephone records which, on their face, belonged to a third party. Moreover, even if the records could be considered, and if the complainant could establish they were hers, it is difficult to see what probative value they would have. An absence of any record of telephone calls from the complainant to the respondent may cast doubt on the respondent's testimony that the complainant sometimes called him, but would not warrant disregarding the respondent's entire testimony and would not render the complainant's otherwise incredible story credible.
The complainant also argues that the administrative law judge should have permitted her to supplement the record with evidence of the respondent's criminal conviction, subsequent to the hearing, for receiving stolen property. The complainant maintains that a criminal conviction is relevant to the question of credibility. However, in order to justify reopening the hearing on the basis of newly discovered evidence, it must be shown that the evidence is sufficiently strong to reverse or modify the administrative law judge's decision and that such evidence could not have previously been discovered by due diligence.
Tate v. Rouse-Milwaukee, Inc. (LIRC, May 16, 1995);
Whipp v. DePaul Rehabilitation Hospital (LIRC, Feb. 24, 1988). The complainant has not made this showing.
Finally, in her brief to the commission the complainant argues that the administrative law judge erred in allowing the respondent to submit a late post-hearing brief. The administrative law judge issued a briefing schedule by which both parties were to submit simultaneous post-hearing briefs by October 10, 2007, and reply briefs by October 25. The respondent's initial brief was not submitted until October 21, and the complainant's attorney requested that the administrative law judge strike the brief. The complainant's motion was not granted.
It is unclear what remedy the complainant seeks at this point, nor does it appear that any remedy would be available where the respondent's brief has already been accepted and the administrative law judge's decision issued.
Moreover, the complainant should note that when a party fails to comply with a briefing schedule issued by the commission, the commission will generally overlook the failure where the lateness of the brief is minor, and where there is no reason to believe that there would be any prejudice to the other party from accepting the late brief. See, Diedrich v. A. E. Goetze - Manitowoc (LIRC, Oct. 22, 1999)(responsive brief eight days late; no prejudice to petitioning party); Tourdot v. Thompsons Jewelry Inc. (LIRC, Dec. 10, 1997)(petitioner's reply brief two weeks late; no prejudice to respondent); Smith v. Condere Corp. and Clark (LIRC, March 27, 1990)(responsive brief three days late; lateness "insignificant," no prejudice). In this case, there is no reason to believe that the lateness of the respondent's brief resulted in any prejudice to the complainant. The case file indicates that the complainant filed her reply brief on November 9, rather than October 21. It therefore appears that she was given an 11-day extension to compensate for the fact that the respondent's brief was delayed.
NOTE: The commission has rewritten the administrative law judge's decision to more accurately and concisely reflect the relevant facts.
Attorney Sally A. Piefer
Attorney Patrick J. Hudec
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(1)( Back ) For the sake of addressing the complainant's argument, the commission has adopted the salary figures offered by the complainant. The respondent's testimony was that the complainant was paid at least $500 a week, and sometimes more.