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

HORST JOSELLIS, Complainant

PACE INDUSTRIES INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200100081, EEOC Case No. 26GA10629


On August 10, 2001, Administrative Law Judge (ALJ) James Schacht of the Equal Rights Division of the Department of Workforce Development issued a decision affirming a Preliminary Determination, which dismissed as untimely the portion of Horst Josellis' complaint alleging termination of employment on the basis of age and in retaliation for making a complaint under the Act.

The remaining allegations of Josellis' complaint -- alleged refusal to hire or employ on the basis of age and discriminating against him because he made a complaint under the Act -- were the subject of an Initial Determination of No Probable Cause. On January 8, 2002, prior to the scheduled probable cause hearing following the Initial Determination of No Probable Cause, Administrative Law Judge John Brown issued an order dismissing Josellis' "complaint" as a sanction for failure to make discovery.

Horst Josellis filed timely petitions for review of the decisions by both ALJ's.

The commission has considered complainant's petitions and the positions of the parties, and it has reviewed the complaint and all other material in the case file. Based on its review, and for the reasons set forth more fully in the Memorandum Opinion attached to this decision, the commission agrees with the decisions of both administrative law judges and adopts them as its own.

DECISION

The decision of Administrative Law Judge James Schacht (copy attached) is affirmed.

The decision of Administrative Law Judge John Brown (copy attached) is affirmed.

Dated and mailed June 21, 2002
joselho . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner



MEMORANDUM OPINION

Background

The ERD received a complaint from Horst Josellis on February 16, 2000. Josellis alleged retaliation, defamation of character, breach of contract and conspiracy as the bases for his complaint. Josellis alleged that the respondent fired him on February 9, 1999, because he had filed a discrimination complaint against the respondent (ERD Case #199900264 in January 1999). Josellis also alleged retaliation with respect to failure to hire, asserting that he completed an application for employment with the respondent at a Sauk County Job Fair at the end of April 1999, and that Pace Industries had not responded to his application. Josellis apparently claimed that the matter involving the Job Fair last happened on July 14, 1999.

On February 17, 2000, the ERD sent a memorandum advising Josellis that his complaint was not acceptable as written because of his inclusion of defamation of character, breach of contract and conspiracy as bases of alleged discrimination. The division enclosed a new complaint form for Josellis to complete.

Josellis' revised complaint was not received back at the ERD until February 8, 2001. Josellis repeated his claims of retaliatory discharge and not being contacted after applying for a job with the respondent at a Job Fair.

In response to Josellis' complaint, the respondent included arguments that the complaint was untimely because it did not meet the Act's 300-day statute of limitations period and that it was not saved by the continuing violation theory. (The continuing violation theory applies where a complainant has been subjected to a series of separate, but related alleged discriminatory acts, and where at least one of those discriminatory acts took place within 300 days of the filing of the complaint.)

In a revised amended complaint received by the ERD on April 27, 2001, Josellis added age discrimination as a basis for his discharge and failure to be rehired.

The division issued a Preliminary Determination on May 25, 2001, dismissing the portion of Josellis' complaint regarding his termination of employment as untimely. Using the date of February 16, 2000, the date that the division first received Josellis' complaint, the equal rights officer found that Josellis' allegations of discharge on the basis of age and retaliation were filed more than 300 days after his termination on February 9, 1999.

On May 25, 2001, the division also issued an Initial Determination finding no probable cause to believe that the respondent violated the Act by refusing to hire or employ Josellis because of his age or discriminating (refusing to hire or employ) against Josellis because he made a complaint under the Act.

Josellis filed timely written appeals of both the Preliminary Determination and the Initial Determination of No Probable Cause.

On June 28, 2001, the department issued a written notice to the parties stating that the Preliminary Determination was appealed and had been assigned to ALJ James Schacht, who would issue a written decision either affirming, reversing or modifying the Preliminary Determination.

ALJ Schacht issued a decision on August 10, 2001, affirming the Preliminary Determination. Attached to Schacht's decision was a written notice stating that the decision concluded that the division had no jurisdiction to hear some allegations in the complaint, and that with respect to other allegations there was an Initial Determination of No Probable Cause for which a hearing would be held. The notice then went on to state the following:

"The Administrative Law Judge's decision to affirm the dismissal of part of the complaint may be appealed to the Labor & Industry Review Commission, but only after the Equal Rights Division has issued a final decision on the entire case. You will be sent a notice of appeal rights when a final decision on the entire complaint is issued."

With respect to the appealed Initial Determination of No Probable Cause, the division issued a Notice of Hearing on September 18, 2001, regarding Josellis' claims of refusal to hire or employ on the basis of age and because he made a complaint under the Act. A hearing was scheduled for December 20, 2001, with John Brown as the ALJ.

By letter dated November 5, 2001, the respondent's counsel notified the division of the respondent's intent to depose Josellis on November 27, 2001. Wisconsin Administrative Code § DWD 218.14(2) required that the division be notified of the respondent's intent to conduct discovery because Josellis was not represented by counsel.

On November 9, 2001, ALJ Brown sent a letter to Josellis generally describing the various types of discovery and advising him to consult an enclosed copy of chapter 804 of the Wisconsin Statutes to find out about his rights and obligations in responding to discovery. In bold text the ALJ included the following as the final paragraph of his letter:

"You should be aware that questions in depositions or discovery documents are not beyond the scope of a case so long as they are reasonably calculated to lead to the discovery of relevant evidence."

By letter dated November 15, 2001, Josellis filed a motion with ALJ Brown to postpone the scheduled December 20, 2001 hearing date. Josellis asserted that "(e)mergency circumstances arose making it virtually impossible for (me) to prepare for the hearing and obtain discovery and deposition before December 20, 2001." Josellis then listed the following as reasons: (1) he was "deeply involved" in working on ERD Case No. 199900264 that was before ALJ Allen Lawent; (2) he was working on amending the pleadings and requesting the court to reconsider its decision to dismiss a defamation claim he had filed against the respondent in Sauk County; and (3) he was working 40 hours per week at his job and also running a farm operation of livestock, he had to cut firewood for the winter heating season and that he had undergone extensive medical tests since July of 2001 and was still taking prescribed medication.

The respondent opposed Josellis' motion in a letter dated November 16, 2001. The respondent asserted that it had filed a motion to dismiss in ERD Case No. 199900264, that the motion had been fully briefed by both parties as of October 22, 2001, and that there was absolutely nothing to do except wait for Lawent's decision. The respondent also asserted that Josellis' defamation suit had been concluded since September 17, 2001, when the judge issued his written decision dismissing that action. Further, the respondent argued that since Josellis had not provided any reason sufficient enough to delay or postpone the hearing, it could only be assumed that he has requested a postponement to keep the respondent continually engaged in protracted litigation. The respondent argued that the complainant's own motion was evidence that he had engaged the respondent in protracted and even frivolous litigation. The respondent also argued that this matter had been certified for hearing since September 18, 2001, (1)  and since that time nothing has stood in his way to conduct discovery or otherwise prepare for the scheduled December 20 hearing.

By letter dated November 21, 2001, ALJ Brown denied Josellis' motion to postpone the hearing because it did not meet the standard in Wisconsin Administrative Code § DWD 218.18(2). That provision states that "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..Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties." The ALJ stated that the other ERD and Sauk County litigation was not an emergency or unforeseeable circumstance for him and that it did not appear that there were any recent developments in those cases that would interfere with his preparation for this case. Further, the ALJ noted that the fact that Josellis works 40 hours per week and has additional responsibilities in the winter were not alleged to be unforeseeable circumstances for him at the time the September 18, 2001 notice of hearing was mailed to him. The ALJ also stated that any medical reason for inability to attend a hearing must be proven by competent medical evidence. Finally, the ALJ noted that for the sake of efficiency, he was considering taking evidence on the timeliness defense issue raised by the respondent first, ruling on that, and, depending on his ruling, proceeding with the rest of the case.

On November 27, 2001, ALJ Brown issued a letter to the parties summarizing their telephone contacts of the previous day. According to the ALJ's letter, on Friday, November 23, Josellis had left a telephone message for the respondent's counsel stating that he did not intend to go to his scheduled November 27 deposition. Per the ALJ's letter, the respondent requested that the ALJ order Josellis' attendance at the deposition or that his complaint be dismissed. In the November 27 letter the ALJ stated that it appeared from their discussion that Josellis was refusing to attend the deposition because he was not satisfied with the fact his request to postpone the hearing had been denied and because Josellis wanted a ruling on his motion that the ALJ be disqualified. The ALJ noted that he had not yet received the motion to disqualify but was unaware of any reason why he should disqualify himself.

Josellis' motion requesting that Brown disqualify himself, is dated November 20, 2001, and was received by ERD on November 23. Apparently the motion had been sent to the Milwaukee office and that is why Brown had not seen it. Brown is stationed in the Madison office. In his motion, Josellis questioned why Brown became assigned to the case when Schacht had been assigned earlier, and he asserted that statements made in the respondent's November 16 letter opposing his request to postpone the December 20 hearing date would prejudice Brown against him. Josellis concluded his November 20 motion with the following statement:

"Until there is a decision on this motion, Complainant will put of (sic) the date of Respondent requested deposition, so that Complainant can work out an agreement with the Administrative Law Judge and the Respondent, so that Complainant also can depose witnesses and obtain evidence."

The ALJ's November 27 letter stated that a pending motion for his disqualification was an inadequate reason to refuse to attend a properly noticed deposition. The ALJ stated that nevertheless, he did not order any sanction against Josellis or dismiss the case primarily because he had some doubt about whether Josellis, not being an attorney, was aware of the serious consequences that could result from noncompliance with proper discovery requests. In bold text the ALJ's letter states that Josellis was put on notice, however, that a second refusal to attend a deposition may well be considered serious enough to warrant dismissal and that it was strongly recommended that Josellis review chapter 804 of the Wisconsin Statutes (a second copy of which was enclosed), particularly s. 804.12(4). (2)

The ALJ's November 27 letter also noted that December 3, 2001, was agreed upon as the new date for Josellis' deposition. In bold text the letter states that Josellis was ordered to attend this deposition, or be subject to sanctions, including possible dismissal of his complaint. Finally, the ALJ's letter notes that Josellis wanted to send some written discovery to the respondent's counsel, and that Josellis was instructed to put this request in writing and that a ruling on this discovery request would be made as soon as possible.

By letter dated November 28, 2001, the ALJ denied Josellis' request that he disqualify himself from the case. The letter noted that Josellis' motion appeared to raise two areas of concern -- (1) how he became assigned to the case in view of ALJ James Schacht's prior assignment to the case;  and (2) how some of the statements in the respondent's November 16 letter might affect the ALJ's ability to be unbiased. With respect to his assignment to this case, ALJ Brown stated that when in a single case an investigator issues both a Preliminary Determination (dismissing a portion of the complaint for some defect) and an Initial Determination of No Probable Cause (dismissing a portion of complaint because there is not probable cause to believe there was a violation of the law) and both determinations are appealed, the case is first assigned to an ALJ to decide the appeal of the Preliminary Determination, and if that appeal is decided against the complainant the case is then assigned to a different ALJ to hear the appeal of the no probable cause determination. The ALJ informed Josellis that this was standard procedure, that there was no "change" of the ALJ in this case, one task was assigned to ALJ Schacht and one to him. With respect to Josellis' second area of concern, ALJ Brown stated that neither the outcome of other litigation brought by him nor the respondent's characterization of it as frivolous would prevent him from considering the instant case on its own merit; that he placed no weight on the respondent's prediction and outcome of his case pending before ALJ Lawent.

On November 28, 2001, the same date the ALJ's letter denying Josellis' request to disqualify himself was issued, a letter was received at the ERD from Josellis asking ALJ Brown for permission to conduct discovery. Josellis requested that the respondent furnish some 33 documents for him to inspect and copy, and permission to depose 4 named individuals.

On November 29, 2001, the respondent faxed a letter to ALJ Brown objecting to Josellis' discovery requests. The respondent noted that the case had been certified for hearing since June 26, 2001 (the point at which discovery could be conducted), and that Josellis had made absolutely no attempts to conduct discovery until now that the December 20 hearing date was fast approaching. The respondent noted that a party is normally allowed 30 days to produce documents, that the hearing was only 21 days away and that it would be needlessly burdensome for the respondent to try to respond to Josellis' discovery requests on an expedited schedule. Further, the respondent argued that many of the documents requested by Josellis were not reasonably calculated to lead to the discovery of admissible evidence. The respondent noted, for instance, that the only issues before ALJ Brown were whether the respondent violated the Act by refusing to hire or employ him because of his age and discriminating against him because he made a complaint under the Act, yet Josellis' production requests seek discovery regarding allegations relative to his termination that occurred on February 9, 1999, allegations which the investigator dismissed as untimely (by Preliminary Determination) and was affirmed by ALJ Schacht. Also, among other things, the respondent asserted that it was premature to address Josellis' deposition requests because he had not made a request to the respondent to conduct these depositions, nor had he served the respondent with any notice of deposition.

By letter dated November 30, 2001, ALJ Brown advised the parties as follows:

"I have now decided that the hearing on December 20th will be limited solely to the issue of the timeliness of the complaint. If I conclude after this hearing that the complaint was timely, I will schedule a new date for a hearing on the substantive issues in the case, and a limited period of discovery prior to that hearing."

The ALJ's November 30 letter further stated that: (1) in view of the limited nature of the December 20 hearing, with the exception of 5 items (these are listed by the ALJ in the letter), the documents requested by Josellis were not likely to lead to the discovery of evidence relevant to the timeliness issue and would place an undue burden on the respondent if it were required to respond prior to the December hearing; and (2) that with respect to depositions, he would only issue subpoenas to Josellis prior to the December 20 hearing if there is reason to believe the proposed witness has information relevant to the issue of the timeliness of the complaint, and Josellis will have to identify any such witness. Further, the ALJ's letter also informed the parties that "(i)t should be remembered that this case has to do with Respondent's alleged failure to rehire the Complainant."

The final two paragraphs quoted from ALJ Brown's decision in this matter describes what happened next and why the ALJ ordered that Josellis' complaint be dismissed with prejudice:

"Mr. Josellis appeared for his deposition on December 3, 2001. Shortly after the deposition Mr. Gumina [respondent's counsel] asked Mr. Josellis where he was employed. He refused to answer. Mr. Gumina then contacted the ALJ, and by telephone conference moved to dismiss the complaint because of Mr. Josellis' refusal to answer. After questioning both sides the ALJ determined that the deposition question was within the scope of discovery and must be answered. The ALJ informed Mr. Josellis that his complaint would be dismissed if he refused to answer. He continued to refuse to answer and the ALJ indicated that he would issue an order of dismissal after getting a transcript of the deposition.

Mr. Josellis' deliberate refusal, after ample notification and warning, to answer a proper deposition question has obstructed the Respondent's ability to prepare for the hearing, and meets the standard of bad faith described in Hudson Diesel, Inc. v. Kenall, 194 Wis. 2d 531, 543 535 N.W.2d 65 (Ct. App. 1995). Dismissal is therefore an appropriate sanction."

The transcript of the December 3 deposition indicates that the respondent's reason for asking Josellis where he was employed was part of a line of questioning in which the respondent sought to discover whether Josellis had this employment at the time the alleged refusal to rehire him took place. Apparently, one line of defense the respondent was exploring was that if Josellis was employed elsewhere it might reflect on whether there was actually an attempt by him to get rehired and whether his complaint was made in good faith. Respondent's counsel asserted that information the respondent had was that Josellis attended the Job Fair, but the respondent was not sure whether Josellis had actually submitted an application. Further, the respondent asserted that it needed the name of Josellis' current employer (or any other employer that he may have worked for) in order to verify the truth or veracity of what Josellis said.

Josellis, however, refused to state where he was currently employed, asserting that "he has to protect his livelihood." Josellis asserted a concern that the respondent would say something bad about him to his current employer that would harm his employment relationship with his current employer. The ALJ told Josellis that the law protected him against retaliation, and instructed the respondent's counsel and respondent's personnel officer that they were bound by law not to use the information in any way to harm his employment relationship with his current employer. In an apparent reference to his present retaliatory discharge claim, Josellis complained that he should never have lost his job in the first place and that the law did not protect him. The transcript shows that ALJ Brown ordered Josellis to answer the question and informed Josellis that if he still refused to answer the question the ALJ would consider an appropriate sanction under Wis. Stat., § 804.12, including possible dismissal of the complaint. Josellis continued to refuse to answer the question.

DISCUSSION

As an initial matter, it should be noted that in previous decisions the commission has stated that the division's practice of issuing a preliminary determination to dismiss only some allegations contained in a complaint because they do not meet the preliminary review requirements of Wis. Admin. Code § DWD 218.05 do not comport with what is authorized under that administrative rule. This is what the commission has stated:

"Wis. Admin. Code Ch. DWD 218.05, 'Preliminary Review Of Complaints,' provides that the department shall review every complaint filed to determine whether the complainant is protected by the act, whether the respondent is subject to the act, whether the complaint states a claim for relief under the act, and whether the complaint was filed within the time period set forth in the act (if that issue is raised in writing by the respondent). The rule also provides that 'the department shall issue a preliminary determination dismissing any complaint which fails to meet [those] requirements' (Emphasis in original).

If a complaint contains some allegations that satisfy the requirements described in DWD 218.05, it would clearly be improper to dismiss the entire complaint just because it also contains some allegations that do not satisfy those requirements. However, DWD 218.05 authorizes only one type of action, and it is precisely that: dismissing the entire complaint. It does not speak of dismissing individual allegations which do not meet those requirements. By contrast, DWD 218.07(3), which relates to Initial Determinations finding no probable cause, does expressly provide for dismissing individual allegations of a complaint. That this is provided for expressly in one section of the rules is reason to question whether it is fair to treat it as being implied in another section of the rules, a section that seems, by its express terms, to involve only the situation of dismissing an entire complaint. (Emphasis in original)

An alternative way of handling complaints which contain both legally viable allegations and legally inadequate ones, would be to submit them to the normal probable cause/no probable cause investigation process and to issue an Initial Determination finding 'no probable cause' as to the legally inadequate allegations (with reference to their legal problems as the rationale for the 'no probable cause' decision). That would result in a more conventional form of 'split decision,' one the ERD has rules and procedures in place to deal with. It would also appear to comport better with the language of the rules."

Marie Stone v. Milw. Bd. of School Directors (LIRC, 08/17/01), quoting Woodford v. Norwood Health Center (LIRC, 05/11/01). While the better practice is for the division to issue an Initial Determination which addresses both the legally viable allegations and the legally inadequate ones, a review of the instant case indicates that all of the allegations of Josellis' complaint warrant dismissal, even though those allegations have not been handled by way of the normal probable cause/no probable cause investigation process.

SANCTION FOR FAILURE TO MAKE DISCOVERY

The administrative law judge has the same authority to impose sanctions as the court has under ch. 804, Stats. DWD 218.14(4).

Under Wis. Stat. § 804.12(2)(a)3, the trial court has discretion to dismiss a complaint for a discovery violation. Hudson Diesel, 194 Wis. 2d at 541-542, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273-274, 470 N.W.2d 859 (1991). Section 804.12(2)(a)3, Stats., provides in relevant part as follows:

"(a) If a party . . . fails to obey an order to provide or permit discovery, including an order made under sub. (1) . . . 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.dismissing the action or proceeding or any part thereof."

Subsection (1) mentioned above in s. 804.12(2)(a) includes the situation where the discovering party applies for and obtains an order from the court compelling discovery due to a deponent's failure to answer a question propounded in a deposition upon oral examination. Wis. Stat., § 804.12(1)(a). That is essentially what occurred in this case. Respondent's counsel contacted the ALJ to have him intervene when Josellis refused to answer the question asking where he was currently employed. The ALJ determined that the question propounded was a proper question that Josellis was required to answer. The ALJ orally ordered Josellis to answer the question and informed him that if he still refused to answer the question the ALJ would consider an appropriate sanction under Wis. Stat., § 804.12, including the possible dismissal of his complaint. Josellis, however, continued to refuse to answer the question after being advised that his refusal to respond would result in an order of dismissal. The ALJ therefore stated that he would be issuing a dismissal order.

The authority to impose sanctions is essential to the circuit court's ability to enforce its orders. Johnson, 162 Wis. 2d at 274. "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." Id.

A circuit court's decision to dismiss an action is discretionary, and will not be disturbed unless the party claiming to be aggrieved by the decision establishes that the trial court has abused its discretion. Johnson, 162 Wis. 2d at 273. Dismissal, however, is an abuse of discretion if the aggrieved party can establish "a clear and justifiable excuse" for his or her conduct. Id.

Josellis has argued that the ALJ's decision does not address his reasons for failing to answer the question. Josellis states that his reason for not answering where he was currently employed was that he feared losing his present job and therefore his livelihood. Josellis states that in Prahl v. Brosamle, 142 Wis. 2d 658, 667, 420 N.W.2d 376 (Ct. App. 1987), the court held that the outright dismissal of a complaint for noncompliance of pretrial orders is appropriate only in cases of egregious conduct. Josellis also cites the case of City of Milwaukee v. Michael Machnitzky, 218 Wis. 2d 832, 581 N.W.2d 594 (Ct. App. 1998). Josellis asserts that in this case the court said that an action may be dismissed for noncompliance with a discovery order only after making a reasonable determination that the noncomplying party's conduct was egregious and there was no clear, justifiable excuse for the party's noncompliance. Josellis argues that it was not shown that his conduct was egregious or that there was no clear and justifiable excuse for his conduct.

Josellis' argument fails. First, assuming for purposes of argument that Josellis' conduct in not answering the deposition question was not "egregious," the case law establishes that courts may impose sanctions where the non-complying party's conduct is egregious or in bad faith and without a clear and justifiable excuse. See for example, Brandon Apparel Group, Inc., 2001 WI App. 205, 11 n.5, 247 Wis. 2d 521, 533, 634 N.W.2d 544 (Ct. App. 2001)(citing Hudson Diesel, 194 Wis. 2d at 543), Sentry Insurance v. Davis, 2001 WI App 203, 247 Wis. 2d 501, 517, 634 N.W.2d 553 (Ct. App. 2001)(citing Johnson v. Allis Chalmers Corp., 162 Wis. 2d at 275 and Smith v. Golde, 224 Wis. 2d 518, 526, 592 N.W.2d 287 (Ct. App. 1999). As noted by the court in Hudson Diesel, "To dismiss a complaint for bad faith, the trial court must find that the non-complying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand." 194 Wis. 2d at 543. Josellis' refusal to answer the question propounded at his deposition was an intentional refusal to respond to the respondent's discovery demand.

Second, Josellis failed to prove that he had a clear and justifiable excuse for his failure to answer the deposition question. Josellis asserted that his refusal to answer the deposition question was necessary to "protect his livelihood." Josellis asserts that "verification of employment dates, requested under legal process, would alarm any employer about the employee." He asserts that verification of his employment would be "in effect telling my present employer you have an employee who filed a discrimination complaint against us (Respondent represented by a Law Firm) watch out, to play safe, find a way to get him out, because that will be the impact that such a request will have with Complainant's present employer." Further, Josellis asserts that he was concerned that the respondent would say something bad about him to his current employer that would harm that employment relationship. Josellis' assertions do not constitute an adequate reason for his refusal to answer the deposition question. Josellis merely speculates about what his current employer would do if it learned of his complaint of alleged retaliation against the respondent and that the respondent would say something bad about him to his current employer. During the ALJ's intervention at Josellis' deposition, the ALJ instructed the respondent's counsel and personnel officer that they were bound by law not to use the information about where he was currently employed to harm that employment relationship. Josellis has provided absolutely no basis for reason to believe that his current employer would terminate his employment or discriminate against him because he had filed a complaint of discrimination against another employer. Further, Josellis' present claim of retaliation against the respondent provides no justification for his refusal to answer the deposition question. Josellis had not proven that the respondent retaliated against him.

Josellis asserts that he understands that the purpose of the question was to verify that he was not working at the time of the Jobs Fair in April 1999. He asserts, however, that verification was unnecessary because he pointed out to ALJ Brown that he was unemployed at the time of the rehire request. Further, Josellis argues that the respondent could have easily obtained the answer to its question in other ways that would not endanger his livelihood provided by his current job. Josellis cites his wage and income tax statements as a means that could have been used. Also, Josellis argues that the respondent was aware that he was on unemployment insurance because his exhibits in ERD Case No. 199900264 included the UCB Fact-Finding Interview Notice and a determination dated February 19, 1999, showing that benefits were allowed. Josellis also apparently argues that in 1999 the respondent had received weekly UCB-7074 Notices of Benefits that were charged to its account with him as the claimant until November 1999. Josellis argues that evidence he submitted in ERD Case No. 199900264 showing that he was qualified to receive unemployment causes him to believe that the respondent's deposition question was not for the reason the respondent states, but that it had other motives. Josellis argues that the respondent purposely asked the question about his present employer so he would be financially damaged enough so he could not continue his discrimination claim against the respondent. Josellis argues that the ALJ himself, working for the DWD, could have learned from DWD computers that during the Jobs Fair he was collecting unemployment insurance.

Josellis' arguments fail to establish that the ALJ's dismissal of his complaint amounted to an abuse of discretion. The respondent was not obligated to rely on Josellis' statement that he was unemployed at the time of the alleged request to be rehired; the respondent was entitled to an answer about where Josellis was employed so that it could verify for itself whether or not he was unemployed at the time of his alleged request to be hired. Josellis' assertions about his wage and income tax statements and eligibility for unemployment insurance are not in the record. When the ALJ intervened at the December 3 deposition Josellis did not offer to furnish his wage and tax statement as an alternative means of providing an answer to the deposition question. In fact, he did not even mention his wage and income tax statements as an alternative means for the respondent to obtain an answer to its question. He also made no mention of any exhibits in ERD Case No. 199900264 regarding his being on unemployment insurance and did not assert that the respondent had notice of benefits charged to its account with him as the claimant in 1999. Furthermore, the fact that Josellis had claimed and was paid unemployment insurance is not conclusive proof that he was unemployed during 1999. Also, as previously noted, Josellis' claim that the respondent's purpose in asking where he was employed was so that it could harm that employment relationship is nothing more than mere speculation. Finally, it is not the obligation of the ALJ to seek out information that might provide an answer to a party's discovery question. That is the deponent's responsibility.

Based on the facts and circumstances presented, the ALJ had a rational basis for issuing a dismissal order in this case. The ALJ had initially emphasized in a letter to Josellis dated November 9, 2001, that questions in depositions were not beyond the scope of a case so long as they were reasonably calculated to lead to the discovery of relevant evidence. However, shortly after the start of his December 3, 2001 deposition, Josellis refused to provide an answer when asked where he was currently employed. Upon his intervention at the deposition the ALJ correctly determined that where Josellis was currently employed was relevant and therefore a proper deposition question. Despite being ordered by the ALJ to answer the question and apprised that an appropriate sanction, including dismissal of his complaint, would be considered if he failed to answer, Josellis still refused to answer the question. Josellis did not have a clear and justifiable excuse for his failure to answer the deposition question. In addition to Josellis' refusal to obey an order to answer a proper question at his December 3, 2001 deposition, the week before it had been necessary for the ALJ to address Josellis' announced refusal to attend his November 27, 2001, originally scheduled deposition. (3)   Prior to that, on November 15, 2001, Josellis had requested that the ALJ postpone the December 20, 2001 scheduled hearing, asserting that "emergency circumstances" had arisen which necessitated postponement of the hearing, but completely failing to establish that emergency circumstances had arisen which warranted postponement of the scheduled hearing. Also, on November 28, 2001, only 3 weeks prior to the scheduled hearing, Josellis advised the ALJ that he wanted the respondent to furnish him numerous documents and to be able to depose 4 individuals. This request was made by Josellis despite his having had the opportunity to conduct discovery since June 26, 2001. It cannot be concluded on the basis of the record in this case that the ALJ erroneously exercised his discretion in issuing a dismissal order as a sanction.

An argument could be made that ALJ Brown's dismissal of Josellis' "complaint" encompasses all the allegations of his complaint. However, the commission believes the better view is that it does not. First, there is no indication in the transcript of Josellis' December 3, 2001 deposition that ALJ Brown ever informed Josellis that the imposition of a sanction for his refusal to answer a discovery question in connection with the proceeding before ALJ Brown would also extend to that portion of his complaint on which there had been a Preliminary Determination.

Second, the courts have held that sec. 804.12 limits a discovery sanction to the case before the court.

". . . (T)he discovery sanction statute, sec. 804.12, Stats., limits a discovery sanction to the case before the court. Section 804.12(2)(a) states that 'the court in which the action is pending may make such orders.as are just..' (Emphasis in original.) We conclude that this language unambiguously limits the sanction to the case before the court."

Paytes v. Kost, 167 Wis. 2d 387, 398, 482 N.W.2d 130 (Ct. App. 1992). See also, City of West Allis v. WEPCO, 2001 WI App 226, 57, 248 Wis. 2d 10, 51, 635 N.W.2d 873 (Ct. App. 2001)(". . . (T)he statute authorizing discovery sanctions 'limits the sanctions to the case at hand.' ")(Citing Paytes).

Josellis' claim that the respondent terminated his employment because of his age and in retaliation for filing a complaint under the Act was not before ALJ Brown. That claim was the subject of the Preliminary Determination, which was reviewed and affirmed by ALJ Schacht. What was before ALJ Brown was Josellis' claim about the respondent's failure to rehire him, the matter addressed by the Initial Determination of No Probable Cause. ALJ Brown's sanction of dismissal therefore should apply only to Josellis' claim that the respondent violated the Act by refusing to hire or employ him because of his age and by discriminating against him because he made a complaint under the Act.

What remains then is Josellis' claim that the respondent terminated his employment because of his age and in retaliation for filing a complaint, allegations which were found to be untimely by the Preliminary Determination, and affirmed upon review by ALJ Schacht.

TIMELINESS OF ALLEGATIONS REGARDING TERMINATION OF EMPLOYMENT

Section 111.39(1), Wis. Stat., requires that a complaint of discrimination be filed no more than 300 days after the alleged discrimination occurred. The date on which an act of unlawful discrimination occurs is when the employer acts and the employee knows about it. Hilmes v. DILHR, 147 Wis. 2d 48, 433 N.W.2d 251 (Ct. App. 1988). The respondent terminated Josellis' employment on February 9, 1999. Accordingly, in order for Josellis to have filed a timely complaint of discrimination his complaint must have been received by the ERD no later than December 6, 1999. The division did not receive Josellis' complaint alleging age discrimination and retaliation with respect to his February 9, 1999 termination of employment until February 16, 2000.

Josellis appears to argue that the doctrine of equitable estoppel and the continuing violation theory make his complaint timely. Josellis argues that he filed his complaint within 300 days of when he became "aware of his rights," that he was "actively misled by the respondent using performance as the basis for his termination." Further, he argues that under the continuing violation theory he "may pursue claims for discriminatory conduct occurring prior to the 300-day filing period where that conduct is part of an on-going or continuing pattern or practices (sic) of discrimination." Josellis' arguments fail.

Continuing Violation

The purpose of permitting a plaintiff to maintain a cause of action on the continuing violation theory is to permit the inclusion of acts whose character as discriminatory acts was not apparent at the time they occurred. Doe v. R.R. Donnelly & Sons Co., 42 F.3d 439, 446 (7th Cir. 1994). The continuing violation doctrine is inapplicable here. A discharge is not amenable to a continuing violation. It is a discrete, completed act which must be regarded as an individual violation. The statute of limitations began to run on Josellis' discharge claim when he was notified of his discharge on February 9, 1999. Consequently, in order for Josellis to have filed a timely claim of discrimination he must have filed his complaint on or before December 6, 1999. He did not file his complaint with the division until February 16, 2000.

Equitable Estoppel

In Thelen v. Marc's Big Boy Corp., 64 F.3d 264 (7th Cir. 1995), the court stated, "Equitable estoppel -- sometimes referred to as fraudulent concealment -- 'comes into play if the defendant takes active steps to prevent the plaintiff from suing in time,' [quoting, Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990)] such as by hiding evidence or promising not to plead the statute of limitations." See also Mull v. ARCO Durethene Plastics, Inc., 784 F.2d 284, 292 (7th Cir. 1986)("Equitable estoppel is available only if the employee's otherwise untimely filing was the result 'either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge. (citation omitted) Among other factors, the granting of equitable estoppel should be premised upon (1) 'a showing of the plaintiff's actual and reasonable reliance on the defendant's conduct or representations' and (2) 'evidence of improper purpose on the part of the defendant or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct.' " (citation omitted)) In Thelen, an age discrimination case, the plaintiff, John Thelen, claimed that equitable estoppel applied because at the time of his discharge on November 9, 1987, the employer told him that an employee over age 40 would assume most of his duties but he later learned on October 21, 1988, that he had been replaced by another worker presumably less than 40 years of age. Thelen's claim of equitable estoppel failed. In Thelen, our Seventh Circuit recognized that the plaintiff's position "has some support in other circuits," but noted that the Seventh Circuit has declined to endorse it, citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990); Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir. 1992). Quoting from Cada, the Thelen court stated:

"It is the view of this court that such a position would eviscerate the concept of a limitations period because '(i)t implies that a defendant is guilty of fraudulent concealment unless it tells the plaintiff, 'We're firing you because of your age.' "

Josellis' basis for application of equitable estoppel in the instant case is even less persuasive than that in Thelen. Josellis simply claims that he was "misled" because the respondent gave performance as the basis for his termination. An employer's citing of performance as a basis for termination is not the type of conduct against which the principle of equitable estoppel is meant to protect. The respondent did nothing to dissuade Josellis from filing a complaint alleging age discrimination and retaliation for filing an earlier complaint of discrimination. Under federal case law from our own Seventh Circuit, Josellis' claim that the doctrine of equitable estoppel makes his complaint timely fails.

cc: Attorney Joseph E. Gumina


Appealed to Circuit Court. Appeal dismissed September 26, 2002 on procedural grounds.  Appealed to the Court of Appeals. Dismissal order summarily affirmed, August 22, 2003.

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Footnotes:

(1)( Back ) Actually, the matter had been certified for hearing since June 26, 2001.

(2)( Back ) Section 804.12(4) sets forth, among other things, the possible consequences of a party's failure to attend their own deposition.

(3)( Back ) Josellis has argued that his reason for not wanting to attend his scheduled November 27, 2001 deposition was not because he was dissatisfied with the ALJ's refusal to postpone the December 20 hearing as stated by the ALJ, but because he first wanted the ALJ to rule on the motion for the ALJ to disqualify himself. As evidence Josellis cites his November 20, 2001 motion to disqualify the ALJ wherein he states that "Until there is a decision on this motion, Complainant will put of (sic) the date of Respondent requested deposition." Josellis points out that his November 20 motion occurred before the ALJ denied his motion to postpone the hearing. However, while Josellis may have first indicated that he would not attend his deposition prior to the ALJ's refusal to postpone the hearing, this does not contradict the ALJ's statement that during the November 26, 2001, telephone conference Josellis stated he was refusing to attend his deposition because of his dissatisfaction with the ALJ's refusal to postpone the hearing. Moreover, as noted by the ALJ, a pending motion for his disqualification was not an adequate reason to refuse to attend a properly noticed deposition. 

 


uploaded 2002/06/24