DEBBIE L HAAS, Complainant
JERRY SARK, 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 March 19, 2003
haasdeb . rsd : 115
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
James T. Flynn, Commissioner
On December 29, 1999, the commission issued an order which adopted the ALJ's order without modification. The ALJ's order stated as follows in relevant part:
3. The Respondent shall make the Complainant whole for all losses of pay and benefits that the Complainant has suffered by reason of its unlawful termination of her employment by paying her the amount she would have earned as an employee of American Western Excavating from October 16, 1996 until the date stamped on this Decision and Order [December 28, 1998]. In calculating this amount, the rate of pay to use as of October 16, 1996 shall be $13.00 per hour.
4. This amount described in paragraph 3 above shall be computed on a calendar-quarter basis. The quarterly amounts shall be offset by any interim earnings received during each calendar quarter from Ms. Haas' employment identified in paragraphs 25 and 26 of the above Findings of Fact. (1) .
5. The amount payable to the Complainant after all statutory setoffs have been deducted shall be increased by interest at the rate of 12 percent per annum, simple. For each calendar quarter, a separate amount of net back pay due shall be computed, then interest shall be computed on each quarterly amount from the last day of each calendar quarter to the date of payment..
6. Respondents shall pay to the Complainant a total of $13,963 in reasonable and actual attorney's fees and costs in this matter, as follows:
(a) $10,367 . . . by check made payable jointly to Debbie Haas and Robert C. Howard; and
(b) $3,596 . . . by check made payable jointly to Debbie Haas and Soffa & Devitt.
After an unsuccessful appeal of the commission's decision to Dane County Circuit Court by the respondent (appeal dismissed June 21, 2000), LIRC's decision became final.
The parties were unable to reach agreement on the proper amount of back pay/interest. Respondent conceded that he owed $5,606.58 in back pay/interest. (2)
Complainant contended that her back pay/interest award should be at least $9,940.58; that she would have been employed by respondent in Texas after October 16, 1996; (3) and that additional attorney's fees should be awarded if she were to successfully prove that the proper back pay/interest award exceeded $5,606.58.
In an order dated February 27, 2001, the commission remanded the matter back to ERD for a hearing on the issues of back pay/interest and attorney's fees. (4) Specifically, the commission's order stated:
This matter is remanded to the Equal Rights Division for it to provide the parties with an opportunity to engage in discovery concerning, and to have a hearing on the question of, whether Complainant would have earned more than $5,606.58 as an employee of Respondent from October 16, 1996, until the date of the ALJ's Order (December 28, 1998), and if so, how much more.
The ALJ before whom the hearing is held shall then issue a decision addressing that question and ordering payment of any amounts in excess of $5,606.58 which it is found Complainant would have earned, and also determining and ordering payment of whatever additional attorney's fees and costs, if any, are appropriately due Complainant and her counsel in connection with work done in this matter subsequent to the commission's December 29, 1999 decision.
Prior to the evidentiary hearing, the complainant failed to appear for a deposition, the scheduling of which had been arranged by the parties' counsel over the phone. Counsel for respondent decided to obtain this deposition when, in reviewing complainant's late submission of potential hearing exhibits, he reviewed a "worksheet" which had been prepared by complainant and which had not previously been provided to him. No written notice of deposition was issued by the respondent. Respondent filed a motion to compel discovery and for sanctions which was also heard and argued as part of the evidentiary hearing on remand here.
After conducting the hearing, the ALJ ruled as follows:
(1) The failure of the scheduled deposition to go forward was attributable to a miscommunication between complainant and her attorney, for which complainant should be held accountable. Complainant could have made an attempt to drive to the scheduled deposition once she became aware of it. Because depositions are required to be noticed in writing, the respondent's motion to exclude complainant's testimony as a sanction was denied. However, complainant was excluded from testifying from the subject worksheet and the worksheet was excluded from the record.
(2) After leaving American Western Excavating, complainant conducted a diligent search for new employment. Respondent would not have employed complainant in Texas, or to help him move his equipment to Texas. The amount complainant would have earned from respondent, less the qualifying amounts she actually earned, totaled $3,863.73, one dollar more than respondent had conceded prior to hearing. The accrued interest through the date of hearing totaled $2,105.27. The back pay/interest still owed by respondent totaled $5,969.00.
(3) Because complainant had failed to show that the back pay to which she was entitled significantly exceeded that which respondent had conceded prior to hearing, she was not entitled to an additional award of attorney's fees or costs.
The Equal Rights Division's rules allow for prehearing discovery and provide, at Wis. Admin. Code § DWD 218.14, that the scope of discovery, methods of discovery, and use of discovery at hearing shall be the same as set forth in Wis. Stats. Ch. 804. The failure of a party to attend their own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint. Wis. Stat. § 804.12(4) Here, however, the circumstances are not straightforward and neither party has entirely clean hands. The complainant is more at fault for the failure of the deposition to go forward, i.e., her potential hearing exhibits were apparently filed late, her attorney agreed to the date and time of the deposition but failed to communicate them clearly to her, and, once she became aware of the date and time of the deposition, she failed to make a reasonable effort to get there. However, the respondent also failed here. Wisconsin Statutes § 804.12(4) permits the imposition of sanctions for failure of a party to attend her deposition after she has been served with a "proper notice." Pursuant to Wis. Stat. § 804.15(2), notice of deposition upon oral examination shall be in writing. It could be argued under the circumstances here that counsel for complainant essentially waived this requirement of written notice by agreeing to schedule complainant's deposition through a phone conversation with opposing counsel. Dismissal of the case, considering its long and tortuous history, the apparent failure of the complainant to have engaged in previous dilatory conduct, and the failure of the deposition to have been properly noticed, would be excessively draconian. The conduct of the complainant here is not nearly so egregious as that previously found by the commission to justify dismissal. See, Dobbs v. Super 8 Motel (LIRC, October 15, 1996) (complainant twice failed to appear at properly noticed deposition); Castiglione v. Giesen & Berman, ERD Case No. 199555021 (LIRC, June 25, 1997)(complainant failed to appear at properly noticed deposition, and obstructed respondent's ability to take subsequent deposition); McAdoo v. Beaudoin & Sons, Inc., ERD Case No. 199901719 (LIRC, April 19, 2000)(complainant twice failed to appear at properly noticed deposition, and failed to file a response to resulting motion to dismiss); Taylor v. Franciscan Ministries, ERD Case No. 199701025 (LIRC, April 30, 1998)(complainant failed to appear at properly noticed deposition and failed to respond to ALJ's request that he explain this failure). As a result, narrowly tailoring the sanction to relate solely to the document complainant's actions prevented the respondent from examining through deposition, as the ALJ did here, is entirely appropriate.
Although the Wisconsin Fair Employment Act authorizes the award of back pay as a make-whole remedy for complainants, Wis. Stat. § 111.39(4)(c) provides as follows in relevant part:
Interim earnings or amounts earnable with reasonable diligence by the person discriminated against shall operate to reduce back pay otherwise allowable.
Once a complainant establishes the amount of damages she claims resulted from the employer's conduct, the burden shifts to the employer to show that she failed to mitigate her damages or that the damages were in fact less than she asserts. Biggers v. Isaac's Lounge, ERD Case No. 1991504222 (LIRC October 29, 1999), citing Gaddy v. Abex Corp., 884 F.2d 312, 50 FEP Cases 1333 (7th Cir. 1989).
The parties' focus in this regard relates to complainant's contention that respondent would have had more work for her than he acknowledged, specifically, that respondent provided work to others transporting equipment to Texas and performing construction jobs in Texas and this work would have been available to complainant had she remained in respondent's employ after October 16, 1996. However, the record shows that respondent ceased performing construction work in Wisconsin in July of 1997, that the construction work in Texas after October of 1996 was performed only by respondent's family members, that complainant would not have been qualified to perform this work, and that complainant did not have the proper commercial driver's license to qualify her to drive the trucks that respondent used between October of 1996 and December of 1998 to transport equipment to Texas.
The record shows that respondent would only have had work available for complainant in the last quarter of 1996 and in the second and third quarters of 1997 (a major project moving earth at Shepherd's Baptist Home which started in the fall of 1996 and was completed in the spring of 1997 after the ground had thawed, and a two-week project in Union Grove in the spring of 1997). The ALJ detailed what complainant would have earned in those quarters, and deducted her actual earnings from those amounts to determine the amount of her back pay award. The amount of this award corresponded to the amount respondent had conceded it owed in back pay prior to this second hearing. The commission concludes that the amount of the award as determined by the ALJ is correct. (5)
Even counsel for complainant conceded that additional attorney's fees would be merited only if complainant succeeded in showing that she was entitled to more back pay than respondent had conceded it owed prior to this second hearing. Complainant showed only that there was a one dollar discrepancy apparently caused by a rounding or other calculation error. This is certainly not a sufficient basis upon which to conclude that complainant sustained her burden to show that she was entitled to a larger back pay award. As a result, the award of additional attorney's fees is not merited here.
Complainant does not detail in her petition the basis for her appeal of the ALJ's decision. It should be noted that her counsel withdrew soon after the petition was filed and no brief was filed on her behalf.
The commission concludes that the ALJ's decision should be affirmed in all respects.
Attorney Robert C. Howard III
Attorney Thomas Nelson
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(1)( Back )
25. Ms. Haas left her employment on October 16, 1996.
26. Immediately after leaving American Western Excavating, Ms. Sark (sic) conducted a diligent search for new employment. From the time she left American Western Excavating through December 31, 1997, Ms. Haas' gross earnings in jobs which required her to work hours that would have been incompatible with her work at American Western Excavating were as follows:
GTS, Inc.: $1,592. 27
J. W. Peters and Sons: 3,591.59
At Your Service: 5,895.79
Asphalt Contractors, Inc.: 100.00
(2)( Back ) There was some confusion in this regard as evidenced by documents in the file. Respondent completed a form which requested wage/interest information/calculations relating to calendar quarters from October 17, 1996, through December 28, 1999. The wage/interest amount on this form totaled $9,940.58. Respondent disputed, however, that he would have had work available for complainant during certain quarters in 1997, 1998, and 1999, the wage/interest amounts for which were included in this total. Based on this form, complainant claimed that respondent had conceded that he owed complainant, pursuant to the commission's final order, $9,940.58 in back pay/interest, although it is clear from the record that respondent had conceded only that he owed complainant $5,606.58.
(3)( Back ) Respondent ceased doing business in Wisconsin in July of 1997, but had done business in Texas before and after that date.
(4)( Back ) An additional issue arose regarding respondent's failure to comply with the commission's December 29, 1999, order. The commission, in a case such as this, does not have the authority to enforce its own orders. As a result, in a letter to DOJ dated March 6, 2001, the commission requested that the Attorney General commence proceedings to enforce this order.
(5)( Back ) The ALJ apparently assumed that complainant, if she had worked in the third quarter of 1997 for respondent, would have had at a maximum only a few days' work since respondent ceased doing business in Wisconsin some time during July, the first month of the quarter. The ALJ, based on this assumption and on the fact that complainant's pay for this few days' work would not have exceeded the amount that she actually earned during this quarter, i.e., $1,872, correctly concluded that there was no back pay liability for the third quarter of 1997.