VANESA RODRIGUEZ ROMERO, Complainant

BOUMATIC, LLC, 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 materials in the ERD file in this matter. Based on its review, the commission makes the following:

1. Vanesa Rodriguez Romero filed a complaint of employment discrimination against Boumatic, LLC, on November 22, 2011. That complaint alleged discrimination because of sex, national origin/ancestry, disability, age, and opposition to discrimination in the workplace, in regards to terms and conditions of employment, sexual harassment, and termination.

2. During the investigation of this case, Romero retained Attorney Holly Strop to act as her attorney in the matter. On September 20, 2012, Strop filed a letter with the ERD confirming that she was representing Romero. Strop served a copy of that letter on Boumatic's counsel. At all times material thereafter Attorney Strop was Romero's attorney of record in this case.

3. After an investigation, the Equal Rights Division issued an Initial Determination on February 18, 2013, finding probable cause on Romero's claim of sexual harassment and no probable cause on all of Romero's other claims.

4. The Initial Determination's no probable cause findings were never appealed.

5. Romero has not asserted that she wanted to appeal the Initial Determination's no probable cause findings, or that she instructed or requested Attorney Strop to appeal from the Initial Determination's findings of no probable cause, or that the fact that no appeal was ever filed from the Initial Determination's no probable cause findings was the fault of Attorney Strop.

6. The issue of sexual harassment on which probable cause had been found was certified to hearing on March 27, 2013. Thereafter, on April 11, 2013, Boumatic served its First Set of Written Interrogatories, Requests for Production of Documents, and Requests to Admit, on Attorney Strop. It is clear from subsequent events that Attorney Strop received these discovery requests.

7. Given that Attorney Strop had served notice that she was representing Romero, counsel for Boumatic properly sent copies of these discovery requests only to Strop herself, and not to her client Romero. Thus, unless she was informed of it by her own attorney, Romero would not have known that these discovery requests had been made.

8. There is no indication in the ERD file in this matter that Attorney Strop ever informed Romero that the discovery requests had been made.

9. The deadline for response to the discovery requests was May 13, 2013. However, no response was made within that time. There is no indication in the ERD file in this matter that Attorney Strop took any steps towards responding to the requests.

10. On May 15, 2013, Boumatic's counsel mailed Attorney Strop a letter asking about the status of her discovery response and noting that it was overdue. Again, this was sent only to Strop. Strop responded with a May 20, 2013 voice mail message to Boumatic's counsel apologizing, asking for until the end of the week to provide the responses, asserting that a health issue had been involved, and acknowledging that it had been her mistake. However, Strop then never did respond to the discovery requests.

11. On July 8, 2013, Boumatic's counsel sent Attorney Strop another letter asserting that her non-response was prejudicing Boumatic, that it would treat the matters in the Requests to Admit as having been admitted, and demanding to hear from her at her earliest convenience. Again, this was sent only to Strop. She did not respond.

12. On September 12, 2013, a notice of hearing was issued setting the matter for hearing at 9:00 A.M. on December 6, 2013, at the offices of the Equal Rights Division in Madison, before ALJ James A. Schacht. A copy of this notice of hearing was sent to Romero. This notice would not have made Romero aware that discovery requests had been made and not responded to.

13. On October 2, 2013, Boumatic filed its Answer to the complaint. Again, Boumatic properly sent a copy of this Answer only to Strop herself, and not to her client Romero.

14. On November 5, 2013, with there still having been no response to its discovery requests and follow-up demands, Boumatic filed a motion to dismiss the complaint, on the grounds that (1) Romero had conclusively admitted all the basic facts of Boumatic's defense by not responding to the requests to admit, and (2) dismissal should be ordered as a sanction because Romero had not responded at all to any of Boumatic's discovery requests.

15. Boumatic's counsel sent copies of this motion to Attorney Strop via facsimile transmission, email, and U.S. mail. It is clear from subsequent events that Attorney Strop received the motion. Again, Boumatic properly served only Strop, not Romero.

16. On November 13, 2013, with there still having been no response to the discovery requests, and with there having been no response even to Boumatic's motion to dismiss, ALJ Schacht sent a letter to Strop, with copies to Romero and to Boumatic's counsel, which ordered that, by November 25, 2013, Strop should:

explain why she had not responded to the discovery requests and why he should not consider the Requests to Admit to have been admitted and on that basis to dismiss the complaint;

explain why he should not award respondent attorney's fees in connection with the motion, and

completely respond to the pending discovery requests.

The ALJ stated in his letter that if Strop did not respond to the first of these, or responded but had "no good explanation or argument," he would dismiss the complaint. It is clear that Strop received this letter.

17. Presumably, Romero would have also received this November 13, 2013 letter. This would have been the first time that Romero knew that there was anything wrong with how Attorney Strop was handling her case.

18. Attorney Strop did not respond to the ALJ, at all, by November 25, 2013. Then on November 27, Strop sent a letter to ALJ Schacht by facsimile transmission, which stated:

I am writing to inform you that the parties have reached a private settlement in the above matter. The parties are in the process of reducing the terms into a confidential settlement agreement. Accordingly, we request that the Equal Rights Division take off its hearing calendar the hearing presently scheduled before you on December 6, 2013. In the near future, I will forward to you a withdrawal of complaint form signed by Ms. Rodriguez Romero. Please do not hesitate to contact me if you have any questions or concerns.

19. Strop's November 27 letter showed in the "cc:" notation that a copy was being sent to Romero. However, while the letter also prominently indicated at the top that it was being sent by way of facsimile transmission to the ERD and by U.S. mail, the only copy of this letter in the ERD file is the copy sent by facsimile transmission. It is inferred from this, that Strop did not in fact send a copy of this letter to the listed recipients by U.S. Mail. There is no evidence in the record that Romero had a home facsimile machine or that Strop ever sent her a copy of her November 27 letter by facsimile transmission. It is inferred from this, that Romero did not see Strop's November 27 letter.

20. In a subsequent letter to Attorney Strop, ALJ Schacht represented that he had canceled the December 6 hearing based on Strop's November 27 letter. However, there is no indication in the ERD file in this matter that any notice was ever issued by the ERD canceling the scheduled December 6 hearing.

21. On December 2, 2013, Romero filed a grievance against Strop with the Office of Lawyer Regulation. This grievance complained that Strop "would not answer my calls for weeks," and that "when I speak to her about letters I receive she would say that she has them already but would never explain it to me." A copy of this grievance was added to the ERD file in this matter at some point but there is no clear indication in the file as to when that happened.

22. It appears that on December 6, 2013, Romero went to the offices of the Equal Rights Division in Madison with the intention of attending the hearing that was scheduled to be held there at 9:00 A.M. that day. Neither Boumatic's counsel nor Attorney Strop were present at the ERD's offices. However, for some reason and in some manner which is not made clear by anything in the ERD file in this matter, ALJ Schacht, whose office is located in Milwaukee, was apparently present in Madison on that morning, and he "encountered" Romero. At that time, ALJ Schacht told Romero that the hearing had been canceled because Strop had said that the parties had settled. Romero told Schacht that there had not been a settlement, and that she was unhappy with Strop's representation of her.

23. Based on what is in the ERD file in this matter it appears that, notwithstanding the provisions of Wis. Stat. § 227.50 (2), ALJ Schacht did not at that time memorialize his December 6 contact with Romero in the file, or inform Attorney Strop or Boumatic's counsel of that contact.

24. The ERD file in this matter contains a document drafted by Romero, with the heading "Motion To Remove Counsel," dated December 6, 2013. It was addressed to both the Office of Lawyer Regulation, and to ALJ Schacht using an incomplete address for the offices of the Equal Rights Division in Madison. It asserted among other things that Strop had distanced herself from Romero and failed to return her calls, that Romero did not know of any settlement having been agreed to, that Romero had not signed any document, and that Romero had received no correspondence from Attorney Strop indicating that Strop was not going to be at the December 6 hearing. While this document is dated December 6, 2013, it does not have any markings indicating when it was first received by the ERD.

25. On January 30, 2014, ALJ Schacht wrote to Strop, with copies to Romero and to Boumatic's counsel, noting the circumstances and warning that if he did not hear from Strop by February 17 the complaint would be dismissed based on his November 13 order.

26. On February 4, Romero filed a document with the ERD summarizing what had happened to that point and expressing her intention to find new counsel. This document was apparently accompanied by a copy of the "Motion To Remove Counsel" referred to above.

27. On February 13, the ERD received a letter from an attorney, Thomas Burke, indicating that he had been reviewing a request for representation by Romero and had decided not to undertake that representation, but requesting on Romero's behalf that the February 17 deadline stated in the ALJ's January 30 letter be extended so that Romero could have more time to find counsel. This letter showed a "cc:" to Attorney Strop, but not to Romero.

28. On February 17, the ERD received a letter from Boumatic's attorney, summarizing what had happened to that point, and advocating for dismissal of the complaint (although apparently leaving open the possibility that an alternative would be for Romero to "proceed with the previously agreed upon settlement"). This letter too showed a "cc:" to Attorney Strop, but not to Romero.

29. Judging from statements in ALJ Schacht's eventual decision in this case, it appears that in December 2013, and in January and February 2014, ALJ Schacht had several telephone contacts with Romero. In these calls they talked about the question of whether a settlement had been reached and about Romero's dissatisfaction with Attorney Strop. It appears that, notwithstanding the provisions of Wis. Stat. § 227.50 (2), ALJ Schacht did not at that time memorialize these contacts with Romero in the file, or inform Attorney Strop or Boumatic's counsel of those contacts.

30. On March 3, 2014, the ERD received a letter from a social worker at UW Health, summarizing treatment of Romero for the consequences of alleged harassment at work. This letter was evidently sent at Romero's behest. It showed copies being sent to Romero and to OLR, but not the Attorney Strop or to respondent's counsel.

31. On March 5, the ALJ issued his Order of Dismissal. The ALJ gave two reasons for the dismissal. One was that the dismissal was a sanction for non-compliance with a discovery order, specifically, that the complainant had violated his order that she respond to discovery requests. The other was that the complainant's failure to respond meant that Boumatic's Requests to Admit must be deemed admitted, and that given what she thus admitted, she could not prevail.

Based on the foregoing Findings of Fact, the commission makes the following:

There is no reasonable basis on which to conclude that Romero was to blame for the lack of response to Boumatic's discovery requests.

The ALJ exercised his discretion erroneously when he dismissed the complaint in this matter.

Based on the foregoing Findings of Fact and Conclusions of Law, the commission makes the following:

The Order of the ALJ is set aside and this matter is remanded for further proceedings consistent with this decision.

Dated and mailed June 27, 2014

romerva_rrr : 110 : 745

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Dismissal as sanction for discovery noncompliance - In a recent decision, Kelly Welke v. Luther Hospital Mayo Health System, ERD Case No. CR201200652 (LIRC, May 30, 2014), the commission noted that it had for some years followed Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859 (1991) with respect to attorneys' failures to comply with orders compelling discovery. Johnson reasoned that it was more equitable to allow the adverse consequences of poor legal representation to fall on the shoulders of the party who chose the attorney, rather than on the adversary, and thus that it could be appropriate to apply even the "drastic" sanction of dismissal for failures to comply with discovery. The commission also noted that it had applied that rationale in a variety of other situations in which an attorney's conduct adversely impacted a client.

In Welke, however, the commission also noted that in Industrial Roofing Services, Inc., v. Marquardt, 2007 WI 19,  61, 299 Wis.2d 81, 103-04, 726 N.W.2d 898, the Wisconsin Supreme Court had turned away from that rationale in Johnson. In Industrial Roofing, the court restricted judicial discretion to dismiss a matter by holding that ordering dismissal with prejudice based on the conduct of a party's attorney would be an abuse of discretion by a judge if the attorney's client is blameless in the discovery failing. Through this holding, the Court explicitly reversed Johnson to the extent it held that a client's conduct is irrelevant, or that dismissal with prejudice is warranted even when the client is blameless.

Based on this, the commission said in Welke:

The commission holds, therefore, consistent with Industrial Roofing, that when the party failing to make discovery is represented by legal counsel: 1) an ALJ must determine whether the party is blameless in the discovery failure when considering an appropriate sanction under Wis. Stat. ch. 804; and 2) it is an abuse of discretion to order dismissal of a complaint without having made a determination that the party, as opposed to the attorney, was at least partially to blame.

Insofar as the ALJ's decision to dismiss the complaint in Romero's case was made as a sanction for non-compliance with discovery and violation of the ALJ's discovery order, this case is similar to Welke.

As in Welke, the fact that Romero failed to comply with the respondent's discovery requests, and failed to comply with the ALJ's discovery order, appears to have been the fault of her attorney, Strop. This is certainly true at least through the point of the ALJ's discovery order on November 13, 2013: up to that point, there is no reason to believe that Romero even knew about the discovery requests. Furthermore, while as of November 13 Romero did have notice that there were discovery problems, she was still limited in what she could do to address these problems, both because she was not being copied on correspondence from the respondent, and because her own counsel was being unavailable or unresponsive to her. That too involves fault on Strop's part.

Another factor which Welke indicates should be considered, is whether an ALJ making a dismissal order as a discovery sanction has made a determination that the party, as opposed to the attorney, was also at least partially to blame.

The ALJ did appear to make such a determination here. However, the commission believes that determination was insupportable.

After describing Attorney Strop's failures, the ALJ wrote:

In addition, Ms. Romero has failed to meet her responsibilities under the law. It is acknowledged that English is a second language to Ms. Romero, and consideration has been given to that. However, the major part of her case against Boumatic was dismissed as a result of Ms. Strop's failure to appeal the findings of no probable cause in February of 2013, but she still completely left matters to Ms. Strop. The letter of November 13, 2013 was sent to her explaining the seriousness of the situations, and, again, Ms. Romero did nothing. To date, Ms. Romero has done nothing but complain about Ms. Strop's conduct and make excuses. At no time did Ms. Romero ever ask what she could do to comply with her discovery responsibilities or make any effort to answer the discovery given to her.

The commission notes that the ALJ faults Romero here for keeping Strop as her attorney after Strop's "failure to appeal the findings of no probable cause." This suggests that Romero had wanted to appeal but that Strop erred by failing to do so. However, there is no clear indication in the file that Romero ever instructed Strop to appeal the Initial Determination. In addition, the commission does not believe it is justified to find active fault on the part of Romero based on an after-the-fact assessment that she should have known her attorney had failed her and should have discharged her sooner than she did.

The ALJ's characterization of Romero as having "done nothing" after the ALJ's letter of November 13 is unsupported and unjustified. It is unsupported because there is simply no evidence as to what contacts might have been had, or attempted, between Romero and Strop. It is unjustified because, again, it amounts to an after-the-fact assessment that a layperson should have known that reliance on their own counsel was unwise.

The ALJ's approach is inconsistent with the point made by the court in Industrial Roofing, that "as a practical matter, a layperson ordinarily cannot be expected to supervise his or her attorney through every pretrial phase of litigation." 2007 WI 19,  62. It is also inconsistent with the ALJ's characterization of Romero as having "done nothing but complain about Ms. Strop's conduct and make excuses." Insofar as Ms. Romero began complaining after she became aware of her attorney's failures, she was not "doing nothing."

Romero's reliance on her attorney was reasonable during the time when she was effectively in the dark about that attorney's failures. Once she was made aware (by the ALJ's November 13, 2013 letter) of the problems, she made reasonable efforts to contact her attorney to learn more about what was happening, and then to complain to the Office of Lawyer Regulation. The commission believes that given the facts here, the only reasonable conclusion is that Attorney Strop was to blame, and that Romero was blameless, in the discovery problems that arose. Therefore, under Industrial Roofing and Welke, it is appropriate to set aside the dismissal of the complaint and to remand for further proceedings.

Dismissal Based On Deemed Admissions - The ALJ relied on an alternative rationale for the dismissal in this case: that due to Romero's deemed admission of the respondent's requests to admit by her failure to respond to them, she could not prevail on the substance of her case.

LIRC has decided a number of cases involving the consequences of failures to respond to or outright admissions of Requests to Admit. (1) Over the last ten years it has taken the approach of interpreting the parties' opposition to being bound by the deemed admissions, as an implicit motion to withdraw the admissions, and it has allowed such withdrawal on the statutory grounds that to do so would subserve litigation of the case and would not prejudice the other party. See, e.g., Ford v. Briggs & Stratton, in which the commission explained:

The respondent's argument assumes that the matters contained in the discovery admissions must be accepted as given facts. However, under Wis. Stat. § 804.11(2), withdrawal of admissions may be permitted, when the presentation of the merits or action will be subserved thereby and the party who obtained the admission fails to show that withdrawal or amendment will prejudice the party maintaining the action or defense on the merits. Mucek v. Nationwide Communications, Inc., 2002 WI App. 60, 252 Wis. 2d 426, 26, 643 N.W.2d 98.

While § 804.11(2) indicates that this may be done "on motion," it is not necessary in every case that a formal motion be brought. Schmid v. Olsen, 111 Wis. 2d 228, 235 fn. 3, 330 N.W.2d 547 (1983). It was clear in this case that Ford opposed dismissal of his complaint based on his response to the admissions. The commission believes it is appropriate in the circumstances here to consider such opposition to be effectively a request for withdrawal of those admissions...

The inquiry into whether presentation of the merits will be subserved by allowing withdrawal of admissions involves consideration of whether the admission is contrary to the record in the case...

With respect to the question of prejudice, the prejudice contemplated by the statute 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...

The commission is satisfied that in this case, presentation of the merits of the action will be subserved by permitting withdrawal of the admissions. This is so, the commission believes, because it is clear that the significant issues in this case -- whether the subjective motives of the respondent's agents in the actions taken and decisions made concerning Ford were affected by discriminatory bias - are, in fact, in dispute. In his complaints, in his submissions to the investigator, and most significantly in his responses to the respondent's interrogatories, Ford has made it clear that he believes, and contends, that the respondent did act with such motives. The admissions requested are plainly contrary to the record of the positions Ford has taken in this case...

Furthermore, the commission is satisfied that allowing withdrawal of the admissions will not prejudice the respondent in maintaining its defense against the action, in the manner and to the extent contemplated by the statute. As noted above, the prejudice contemplated by the statute is prejudice in addition to the inherent consequence of having to prove something that would have been established under the admissions. There is no basis to find here that Ford's response to the admissions requests induced the respondent to forego any further discovery it would otherwise have sought to engage in; in any event, even if that were the case, the problem is remediable by allowing any such further discovery now. Apart from that, there is no basis to find any other prejudice. Respondent will simply be in the position it was in before the admissions.

The commission finds this rationale persuasive here. It is clear that the significant issue in this case, of whether there was sexual harassment, is one that is in dispute. In the cases mentioned above, the commission has taken a broad approach to applying the "presentation of the merits or action will be subserved" standard, and in evaluating whether there would be prejudice to the other party from allowing withdrawal of "deemed" admissions. Allowing Romero to have a hearing on her sexual harassment claim would be consistent with that approach.

Therefore, the commission finds that Romero opposed dismissal of her complaint based on her deemed admissions, that it is appropriate in the circumstances here to consider such opposition to be effectively a request for withdrawal of those admissions, that allowing that withdrawal will subserve the presentation of the merits on the sexual harassment issue presented here, and that it will not prejudice Boumatic. The dismissal of the complaint based on the rationale that the requests to admit were deemed admitted, is therefore set aside.

Notes concerning further proceedings on remand --

Deciding that dismissal of the complaint was unjustified necessitates the setting aside of the dismissal and remanding the matter for further proceedings, but it does not change the fact that Boumatic made certain discovery requests which have not yet been responded to. It is still entitled to that response. On remand, Romero should be considered to be subject to an obligation to comply with all of Boumatic's outstanding discovery requests, within 30 days of the remand. If she continues to be an unrepresented party, (2) that obligation will rest on Romero personally. If there is at that point a failure to timely respond to respondent's discovery requests, that failure would necessarily rest directly and solely on Romero, and the Industrial Roofing rationale would not be relevant.

The respondent is also still entitled to seek attorney's fees in connection with the work done on the discovery non-compliance matter when it first arose. Consistent with the Industrial Roofing / Welke approach discussed above, though, and with the commission's finding that the failure in this case was the fault of Attorney Strop, it would follow that any obligation to pay the attorneys fees of Boumatic connected to its November 5, 2013 motion, should be placed on Attorney Strop and not on Romero. (3)

Finally, the commission would note that Romero's petition for review (4) appeared to raise arguments about matters, including termination and disability, which were resolved and dismissed by the Initial Determination. As was noted above in Finding of Fact Nos. 3-5, though, there was a finding of no probable cause as to all of the allegations of Ms. Romero's complaint other than the allegation of sexual harassment, and those allegations were dismissed. That no probable cause finding was not appealed. Ms. Romero should be aware that in the proceedings on remand, those other allegations may not be pursued. The only issue remaining from Ms. Romero's complaint is the issue of sexual harassment.

cc: Attorney Holly J. Strop
Attorney Troy D. Thompson

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(1)( Back ) Ford v. Briggs & Stratton, ERD Case Nos. CR201002734 (LIRC, Jul. 24, 2012), Johnson v. Roma Pizza II, ERD Case No. 200603187 (LIRC, Feb. 25, 2009), Nabors v. Kelley IT Resources, ERD Case No. 200500651 (LIRC, Oct. 6, 2006), Jackson v. Quality Carriers, ERD Case No. CR200400448 (LIRC, Mar. 17, 2006), Swanson v. Kelly Services, ERD Case No. CR200203683 (LIRC, Oct. 13, 2004), Gross v. Sodexho Marriott Management, ERD Case No. 200003458 (LIRC, Jun. 21, 2002).

(2)( Back ) There is actually nothing in writing in the file, from either Romero or Strop, which expressly states that Strop is no longer representing Romero. It is arguably implicit, that Romero's filing of a complaint against Strop with OLR, and her December 6, 2013 "Motion To Remove Counsel," effected a discharge of Strop and thus ended the representation. However, assuming that is the case, it should still be made express. Attorney Strop and Ms. Romero should both promptly advise the Equal Rights Division in writing as to whether Strop represents Romero in this matter.

(3)( Back ) In Industrial Roofing, the court noted: "The circuit court has other sanctions available to it short of dismissal of the litigant's case with prejudice, the most severe sanction possible. Sanctions could be imposed on the lawyer personally." (emphasis added). 2007 WI 19,  62.

(4)( Back ) The petition was accompanied by around 150 pages of attached documents, including copies of correspondence and other writings to, from, or about the complainant and others (including her employer and individuals employed there, the ALJ, the Office of Lawyer Regulation, various attorneys), documents from the ERD's file in the case, and correspondence and reports from medical and other treatment professionals.

uploaded 2014/08/08