RUBEN L PEREZ, Complainant
SYNICO STAFFING INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed December 9, 2010
perezru . rsd : 125 : 9
James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On June 11, 2009, Ruben Perez filed a complaint with the ERD alleging that the respondent violated the WFEA by discriminating against him on the basis of conviction record. Perez's complaint shows his mailing address as P. O. Box 64092, Milwaukee, WI 53204. Perez provided his home telephone number and his cell phone number on the complaint.
As part of the discrimination complaint Perez was also asked to complete an Equal Rights Process Information Sheet. Included on this sheet was a section titled "Availability/Contact Information", which included in parenthesis the following information: "(Important! The complainant must notify the Equal Rights Division if there is a change of address or telephone number. If we are unable to locate the complainant, the complaint may be dismissed.)"
Perez provided the name, Evelyn Hernandez, as a person who did not reside with him but would know where to reach him, and he provided her telephone number on the Equal Rights Process Information sheet.
On September 17, 2009, an equal rights officer for the Division issued an Initial Determination concluding that there was probable cause to believe the respondent may have violated the WFEA by refusing to hire or employ Perez because of a conviction record.
On June 8, 2010, the ERD issued a Notice of Hearing to the parties which informed them that a hearing would be held in the matter on August 11, 2010.
By letter to the parties dated July 1, 2010, the ALJ granted the respondent's motion to postpone the scheduled August 11, 2010 hearing on Perez's complaint. The ALJ initially set the date, November 8, 2010, as the new date for the hearing.
The ALJ subsequently informed the parties by letter dated August 3, 2010, that the hearing would be held on November 30, 2010.
On August 4, 2010, the ERD issued a Notice of Hearing Change which informed the parties of the November 30, 2010 hearing date.
On August 4, 2010, the Division received a copy of a letter dated August 2, 2010, that respondent's counsel had sent to Perez informing him that the respondent would be conducting discovery in the case.
On August 4, 2010, the ALJ sent a letter to Perez in which she provided him information about discovery, including the purpose of discovery and his responsibility to fulfill the discovery requests. This letter, a copy of which was also sent to counsel for the respondent, advised the parties that all discovery must be completed by September 7, 2010.
On August 30, 2010, newly retained counsel for the respondent sent a letter to Perez. After stating that his law firm had been retained to defend the respondent, counsel states that he attempted to call several phone numbers to reach Perez, but all of the numbers were disconnected. Counsel further states that since he had no way of reaching Perez, he had enclosed a Notice of Deposition requiring Perez's appearance at his office on September 7, 2010, at 10 a.m. Counsel asked that Perez please call him at a number that was provided after receiving the letter to discuss this scheduling.
By letter dated September 7, 2010, counsel advised the ALJ that after unsuccessfully trying to telephone Perez, he sent a notice of deposition requiring Perez to appear on September 7, 2010 for a deposition, but that Perez did not appear. Counsel stated that he would like to give Perez one more chance to appear for his deposition and asked the ALJ to accept the letter as respondent's request to compel Perez to appear for a deposition at his office in the next 21 days. Counsel also stated that he would have preferred to resolve this problem directly with Perez, but had no way of contacting him via telephone and that Perez has ignored his correspondence.
In a letter to the parties dated September 8, 2010, the ALJ stated, among other things, that Perez should file a response to the respondent's motion to compel by September 20, that sanctions, including dismissal of the complaint, could be imposed if Perez failed to comply with reasonable discovery requests and that if Perez did fail to respond to the respondent's motion by September 20 she would dismiss his complaint because he failed to comply with discovery and failed to comply with the ALJ's order to respond to the respondent's discovery motion.
In a letter the ALJ sent to the parties dated September 23, 2010, after referencing counsel's September 7, 2010 motion to compel and her September 8, 2010 letter in which she told Perez that if he failed to respond to the respondent's motion by September 20 she would dismiss Perez's complaint because he failed to comply with discovery and because he failed to comply with her order to respond to the respondent's discovery motion, the ALJ stated that to date, Perez had not responded in any manner to her September 8 letter and therefore she had decided to dismiss Perez's complaint.
On September 24, 2010, the ALJ issued an order dismissing Perez's complaint for failure to comply with the respondent's discovery request to appear at a deposition and for failure to comply with an order to explain his failure to comply with discovery.
The hearing notices, the respondent's former and newly retained counsel's correspondence, and all of the ALJ's correspondence and the ALJ's order dismissing Perez's complaint, was sent to Perez's post office box number, P.O. Box 64092, in Milwaukee.
Perez filed a petition for review of the ALJ's decision with the ERD on October 14, 2010. In his petition for review, Perez states, in part, as follows:
Since June 22nd 2010 I have been incarcerated due to a few allegations that was brought against me. I was unable to show up to any hearings or be contacted by phone because of the situation I am in. If I were out, I would've made it my responsibility to attend every hearing and returned all phone calls. Right now I am serving 14 months that I received from my revocation law judge. I dont know how much longer I am going to be here, so I would like to know if its possible that I can do a sattelite hearing or a telephone hearing for the date you have set for me on November 30th 2010?
The envelope containing Perez's petition shows the following return address: Dodge Correctional Institution, P.O. Box 700, Waupun, WI 53963. Prior to October 14, 2010, Perez had never notified the ERD that he was incarcerated at the Dodge Correctional Institution.
The administrative law judge has the same authority to impose sanctions for failure to comply with discovery as provided under ch. 804, Stats. Wis. Adm. Code § DWD 218.14(4).
Wisconsin Statute § 804.12(2)(a) 3 provides, in pertinent part, as follows:
(2) FAILURE TO COMPLY WITH ORDER. (a) If a party ... fails to obey an order to provide or permit discovery, including an order under sub. (1) [Motion for order compelling discovery] ..., the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party...
In Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 274-275, 470 N.W.2d 859 (1991), the court stated:
Dismissal of an action is a particularly harsh sanction for a party's failure to obey discovery orders because it destroys the noncomplying party's property interest in his cause of action. Nevertheless, at both the state and federal levels, it is undisputed that under certain conditions the trial court must have authority to dismiss actions for a party's failure to comply with court orders. (Internal citations omitted.)
The latitude circuit courts in Wisconsin have to dismiss actions as a sanction is demonstrated by sec. 805.03, Stats., which permits dismissal whenever a party fails "to obey any order of the court." Although this language could be viewed as permitting dismissal for noncompliance with even trivial procedural orders, closer examination of the statutes reveals that the court may only impose such orders "as are just." Furthermore, the Judicial Council Committee's Note-1974 to the statute emphasizes that "[b]ecause of the harshness of the sanction, a dismissal under this section should be considered appropriate only in cases of egregious conduct by a claimant." Our case law establishes that dismissal is improper, i.e. not "just," unless bad faith or egregious conduct can be shown on the part of the noncomplying party. See, e.g., Trispel [v. Haefer, 89 Wis. 2d 725, 279 N.W.2d 242 (1979)(A trial court erroneously exercises its discretion in ordering dismissal if the aggrieved party can establish a "clear and justifiable excuse" for his or her conduct)], 89 Wis. 2d at 732; Furrenes v. Ford Motor Co., 79 Wis. 2d [260, 255 N.W.2d 511 (1977)] at 267-69.
In Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 543, 535 N.W.2d 65 (Ct. App. 1995), the court stated:
Section 805.03, Stats., does not define bad faith. Nonetheless, it is readily understood that bad faith by its nature cannot be unintentional. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 691, 271 N.W.2d 368 (sic) 376 (1978). Given this fact, it is apparent that to dismiss a complaint for bad faith, the trial court must find that the noncomplying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand. ...
If the noncomplying party's conduct, though unintentional, is so extreme, substantial and persistent that it can properly be characterized as egregious, the trial court may dismiss the action. Johnson, 161 Wis. 2d at 273, 470 N.W.2d at 865.
Also, in Sentry Insurance v. Davis, 2001 WI App 203, 19, 247 Wis. 2d 501, 515, 634 N.W.2d 553, the court stated:
The court's discretion to impose sanctions is "not dependent on a showing that the opposing party has been actually prejudiced by the delay." Schneller [v. St. Mary's Hospital], 162 Wis. 2d [296, 470 N.W.2d 873 (1991)] at 314 (citing Johnson).
Further, in Sentry Insurance the court stated:
We conclude that the terms "egregious" and "bad faith" are not necessarily synonymous, and that a party can be guilty of egregious conduct even if it did not act in "bad faith."*
[* In a footnote the court stated: "According to the Random House Dictionary of the English Language (2d ed., 1987), "egregious" means "extraordinary in some bad way; glaring, flagrant," while "bad faith" signifies a "lack of honesty and trust." "Flagrant," in turn, means "shockingly noticeable or evident; obvious, glaring." We conclude that a party could commit a flagrant discovery or scheduling order violation without necessarily lacking honesty in so doing."]
2001 WI 21 n.8.
Neither of the notices of hearing or any of the ALJ's correspondence that was sent to Perez's Milwaukee post office box number was returned by the Post Office as undeliverable. Further, based on Perez's petition references to being "unable to show up to any hearings or be contacted by phone" and to the hearing being "set for me on November 30th 2010", Perez's mail apparently was being forwarded to him where he was incarcerated, or he at least was being notified of the contents of such correspondence. This is apparent because in addition to the fact that Perez filed a petition for review of the ALJ's order dismissing his complaint, which had been mailed to Perez's Milwaukee post office box number, the ALJ's order of dismissal does not mention the respondent's attempts to contact him by phone or the November 30, 2010 hearing date, while one or both of these matters is mentioned in the Notice of Hearing Change sent to Perez by the ERD, the correspondence sent to him by the respondent's counsel and the correspondence sent to him by the ALJ beginning on August 3, 2010.
Perez had a clear and justifiable excuse for not appearing for his deposition, but he did not convey it to counsel and the ALJ. Perez did not have a clear and justifiable excuse for his failure to notify the ERD of his address change or his failure to respond to counsel's request for discovery and the ALJ's order to respond to the respondent's motion to compel, however.
A simple letter from Perez informing the ERD that he was incarcerated would likely have resulted in the ERD simply postponing a hearing on his complaint of discrimination.
As noted above, bad faith or egregious conduct on the part of a party is justification for dismissal of a case. Bad faith by its nature cannot be unintentional; to dismiss a case for bad faith it must be found that the noncomplying party intentionally or deliberately delayed, obstructed or refused the requesting party's demand. Hudson Diesel, supra. "[E]gregious" means "extraordinary in some bad way; glaring, flagrant," while "bad faith" signifies a "lack of honesty and trust." "Flagrant," in turn, means "shockingly noticeable or evident; obvious, glaring." Sentry Insurance, supra.
On balance, given that it can be inferred that Perez's mail sent to him at his Milwaukee post office box number was either being forwarded to him or he was being notified of the contents of this mail, it is not unreasonable to conclude that Perez's failure to provide any response to counsel's discovery request and the ALJ's order to respond to the respondent's motion to compel discovery, when he knew he was incarcerated and could not appear at counsel's office for his deposition, was intentional.
Further, given Perez's failure to provide the ERD with his new address while incarcerated, despite ERD's notice that it was important that he notify the ERD of an address change, together with his failure to provide any response to counsel's discovery request and the ALJ's order to respond to the respondent's motion to compel discovery, Perez's conduct can be reasonably seen as egregious. Perez's failure to provide notice that he was incarcerated caused a lot wasted effort, particularly on the part of the ALJ, and also likely prevented the ALJ from scheduling another matter for November 30, 2010.
Finally, while the respondent may not have actually been prejudiced because of Perez's failure to respond to its discovery request, because Perez was incarcerated and thus would have been unable to comply with counsel's request that he appear for a deposition, the court's discretion to impose sanctions is not dependent on a showing that the opposing party has been actually prejudiced by the delay. Schneller, supra.
Ruben L. Perez
Attorney David J. Turek
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