P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. CR200402731, EEOC Case No. 26G200402205C

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, except that it makes the following modifications:

1. The first sentence in paragraph 2 of the administrative law judge's ORDER is deleted, and the following is substituted therefor:

"That Dollar General shall make Nunn whole for all losses in pay that she has suffered because of Dollar General's unlawful conduct by offering her the gross amount of $10,764.81 that she could have reasonably expected to earn as a store clerk from the period of May 4, 2004, through July 18, 2005."

2. The final sentence in footnote 3 of the administrative law judge's ORDER is deleted and the following substituted therefor:

"The average number of hours worked during that period was 27.34, and the hourly pay rate was $6.25, for a total average weekly wage of $170.87. It took the complainant 63 weeks to obtain equivalent substitute employment of the sort that would end her back pay entitlement. (On July 18, 2005, she began working 23.5 hours a week at Copps Foods, at a pay rate of $7.50 an hour, for a total average weekly wage of $176.25.) Sixty-three weeks of back pay at $170.87 per week amounts to $10,764.81."

3. The following sentence is inserted at the end of paragraph 3 of the administrative law judge's ORDER:

"The reasonable attorney fees associated with filing her successful petition for commission review are $10,840.00, and the fees related to responding to the respondent's petition for commission review amount to $9,920.00, for a total of $20,760.00 related to the proceedings before the commission."

4. That paragraph 4 of the administrative law judge's ORDER is deleted and the following substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."


The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed March 14, 2008
nunnsh . rmd : 164 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The administrative law judge found that the complainant was discharged from her position as a temporary store clerk based upon her arrest record, and that the circumstances of the arrest were not substantially related to the circumstances of the job. The administrative law judge further found that the complainant's race was not a factor in the discharge. The administrative law judge limited the complainant's back pay to the five-week period after which her temporary store clerk assignment would have ended, concluding that it would be speculative to find that the complainant would have been offered permanent employment. She awarded the complainant reimbursement for her costs and attorney fees as requested, less those costs and fees associated with the complainant's pursuit of an unsuccessful disparate impact race claim.

Both parties have filed appeals which focus exclusively on the administrative law judge's remedial order and which do not address the merits of the case. Because the parties have not challenged the administrative law judge's conclusions of law, the commission has not addressed those conclusions, but has confined its review to the remedial issues raised by the parties. (1) 

Complainant's petition

The complainant appeals that portion of the administrative law judge's order which limits her back pay to the five-week period ending June 4, 2004. The complainant contends that she established her employment with the respondent would have extended beyond that date, and that her back pay should continue until the time she began other full-time employment. (2)

Before turning to the merits of the complainant's argument that her back pay period should be extended, the commission finds it necessary to address two preliminary arguments raised by the respondent in its reply brief to the commission. First, the respondent contends that the complainant is not entitled to any remedy after June 4 because, even if her arrest record was not substantially related to the job of temporary store clerk, it would have been substantially related to the job of permanent store clerk. Second, the respondent contends that the complainant is not entitled to any remedy whatever, because it could have suspended her employment pending the resolution of the charges against her. Both of these arguments must be rejected.

In her decision the administrative law judge stated that, because she was not awarding back pay based upon a permanent store clerk position, she did not need to decide if the complainant's arrest record would be substantially related to that position. However, the administrative law judge erred in suggesting that this case presents a separate legal question as to whether the complainant's arrest record would be substantially related to a permanent store clerk position. There is only one position at issue here: the position of store clerk at Dollar General. The question of whether, in the absence of discrimination, the complainant would have been able to work in that position on a permanent basis or only temporarily affects the amount of back pay that can be awarded, but has no bearing on the ultimate conclusion that the complainant's arrest record was not substantially related to the job. If the respondent wished to challenge the administrative law judge's finding of no substantial relationship, its recourse was to file a petition for review with respect to the merits of the case. The respondent chose to limit its petition to issues surrounding the payment of attorney fees, and it cannot now expect to reopen the substantial relationship issue by raising it in response to the complainant's request for additional back pay.

The respondent's argument that the complainant is not entitled to any back pay whatever, because it could have suspended her employment pending her actual conviction, is equally unpersuasive. That an employee was lawfully suspended pending resolution of a criminal charge is an affirmative defense which may be deemed waived unless raised in the answer. Wis. Admin. Code § DWD 218.12(2). The respondent did not raise this affirmative defense in its answer, and the undisputed facts in the record would not support it. While an employer can lawfully suspend an employee's employment pending conviction, this is only the case if the crime with which the employee is charged is substantially related to the job. Wis. Stat. § 111.335(1)(b). Because the offense with which the complainant was charged was not substantially related to the job, the respondent would not have been justified in suspending her employment because of it. Moreover, the hypothetical ability to suspend the employment of an employee pending the resolution of criminal charges against her is of no consequence in this case, since the respondent did not suspend the complainant's employment, but terminated it. Although the statute allows employers to suspend the employment of workers who are charged with but not yet convicted of certain offenses, it is illegal to discharge an employee because of arrest. Shipley v. Town and Country Restaurant (LIRC, July 14, 1987)(emphasis added).

Having concluded that there are no legal impediments to expanding the back pay period for the complainant if the record warrants doing so, the commission now turns to the issues raised by the complainant in her petition.

The goal in fashioning a remedy in a case under the Wisconsin Fair Employment Act is to recreate the conditions and relationships that would have existed had the unlawful discrimination not occurred, i.e. to determine how to make the employee "whole." Powell v. SBC Ameritech (LIRC, April 21, 2003). If it is found that the complainant would have remained employed by the respondent beyond June 4, 2004, then to cut off her back pay as of that date does not make her whole.

Although the administrative law judge found that it would be speculative to assume that the respondent would have chosen the complainant for a permanent store clerk position, her undisputed findings of fact do indeed support just such a conclusion. The administrative law judge stated, in relevant part:

"Six of the temporary employees who began working for Dollar General on the set-up crew for the Monona store on May 4, 2004, did not continue working for Dollar General after their first week or two of employment. They either left without notice or failed to call in or show up for work. Five of those employees were black and one was white. The other 9 temporary employees worked into either late May or through June 4, 2004, continuing to perform set-up tasks after the store opened for business on May 15, 2004. Holle permanently hired 6 of those 9 employees as store clerks, scheduling them to work from 15 to 30 hours per week. One of the permanent employees was black, one was Hispanic, and the other 4 were white. All of the 3 temporary employees whom Holle did not retain were white. All 3 of them later reapplied for permanent employment and were hired to work at the Monona store." (Administrative law judge's FINDINGS OF FACT, Para. 14).

Excluding the six employees who stopped reporting for work of their own volition, all of the remaining nine temporary hires were given permanent store clerk jobs, six immediately and three at an unspecified "later" date. One of the latter three individuals was not immediately offered a permanent position because she had another job, and the other two were not selected because the respondent believed they did not perform as well in terms of getting along with customers, having a strong work ethic, and working as a team, as the six employees who were retained. However, notwithstanding these deficiencies, both employees were permitted to reapply for the same jobs and were ultimately offered permanent employment as store clerks. It appears, therefore, that the bar was not set high for an offer of permanent employment, and any temporary employee who performed reasonably well could expect to obtain such a job. Based on the foregoing, it seems likely that the complainant would have been able to stay on as a permanent store clerk had no discrimination taken place.

In its brief the respondent points out that no one can be sure the complainant would have been among the six immediately selected, or that she would have been offered a job at all, and that it is impossible to assess what her job performance would have been since she worked for it only a few hours. However, it seems unfair to conclude that the complainant cannot show her performance was satisfactory when it was the respondent's discriminatory act that deprived her of the opportunity to make such a showing in the first place. The complainant testified that, in the job she ultimately obtained at Copps Foods, which she still held at the time of the hearing, she received positive customer feedback and got along well with her supervisors and co-workers. While the complainant's performance in a different job may not necessarily be an accurate predictor of her performance at Dollar General, it is the best evidence the complainant can offer given the circumstances.

Finally, the fact that a conclusion that the complainant would have been offered a permanent position does, of necessity, entail some degree of uncertainty and speculation should not prevent the commission from ordering appropriate make-whole relief. The commission has held that, in deciding what remedies are appropriate, uncertainties should be resolved against the discriminating employer. See, Fields v. Cardinal TG Co. (LIRC, Feb. 16, 2001), and cases cited therein. In Mark Moore v. Milwaukee Board of School Directors, ERD Case No. 199604335, (LIRC July 23, 1999), in which the commission found that an applicant for a janitor position was discriminatorily denied consideration for that position based upon his conviction record, the commission stated:

"Once the complainant proves discrimination, back pay should be awarded unless the respondent establishes by clear and convincing evidence that, even in the absence of discrimination, the rejected applicant would not have been selected for the open position. Silvers v. LIRC, Dane Cty. Cir. Ct., Case #83-CV-3644, February 13, 1984. Where the evidence presented by the respondent on that point is speculative, the commission will resolve the uncertainty against the discriminating respondent. Silvers v. Madison Metropolitan School District (LIRC, July 25, 1986). Here, the complainant established that he tested within the top ten applicants and, further, that he had previously been hired for and performed the very job in question. Thus, it is apparent that the complainant is qualified for the position. Although the respondent may have had reason to believe that other applicants were better qualified than the complainant or that there were other non-discriminatory reasons which would have rendered the complainant ineligible for the job, it failed to present any evidence on these points at the hearing, and the commission is unwilling to speculate that this would have been the case. Consequently, the commission agrees with the administrative law judge that instatement into the position, with back pay, is the appropriate remedy for the harm suffered in this case."

The Silvers case, on which the commission relied in deciding Moore, supra, specifically addressed the notion of speculation, and concluded that it was best to speculate in favor of the victim of discrimination rather than against her. In Silvers, the commission stated, as follows:

"While the Commission is convinced that Complainant would have been interviewed but for Respondent's unlawful retaliation, the record provides no reliable basis for determining how she would have fared in an interview. Accordingly, the question of whether her interview rating in combination with a properly updated rating of her credentials would have sufficed to place her in the "employment pool," requires speculation upon speculation. Finally, since hiring from the employment pool was the prerogative of supervisors who were apparently not involved in the earlier steps of the hiring process and who did not, in any event, testify at the hearing in this matter, the degree of speculation necessary to any determination of Complainant's actual prospects of employment if she had been fairly treated is again increased.

"Resolving the above uncertainties against the Respondent, it cannot be said that Respondent has presented clear and convincing evidence that Complainant would not have been hired in the absence of unlawful retaliation by Respondent. Accordingly, a remedy must be fashioned which will make Complainant whole for losses she suffered as a result of the Respondent's failure to hire her in 1976. That is the purpose of the awards of back pay and instatement now ordered by the Commission."

Lacking any reason to believe that the complainant would not have been offered one of the permanent store clerk positions at Dollar General, and resolving any doubts on that question in her favor, the commission concludes that "make whole" relief for the complainant must include back pay extending beyond the date on which the temporary assignment would have ended.

The commission next turns to the question of mitigation. The respondent has argued that, if the complainant's damages are not cut off at the end of the temporary assignment, they should nonetheless not be permitted to run until she obtained new employment, because the complainant did not mitigate her damages. The commission has considered the respondent's arguments on this point, but finds them unpersuasive.

The Fair Employment Act requires that back pay awards be reduced by amounts earnable with reasonable diligence. Wis. Stat. § 111.39(4)(c). The burden of proving a failure of reasonable mitigation is on the respondent-employer. Anderson v. LIRC, 111 Wis. 2d 245, 255, 330 N.W.2d 594 (1983). The respondent can sustain this burden by demonstrating both that the complainant failed to make a diligent effort to seek new employment and that there was a reasonable likelihood that the complainant might have found comparable work by exercising reasonable diligence or that she unreasonably rejected proffered employment that was comparable to the job she had with the respondent. Murphy v. Autozone, Inc. (May 7, 2004), citing Mueller v. Schedulesoft (LIRC, Oct. 27, 2000) and Ramos v. Stoughton Trailers (LIRC, Aug. 16, 2001).

The complainant was unemployed for a year after losing the job with the respondent in May of 2004. She testified that in 2004 she applied for jobs at a variety of employers including, but not limited to, U.S. Cellular, Shopko, Culver's, Pizza Hut, Range Rover, Kwik Trip, Stop 'N Go, Mobil Gas, and EastTowne shopping mall, and that in 2005 she remembered applying at businesses including Citgo, Sentry Foods, Walgreens, and PDQ. At some point the complainant became involved with a jobs program through the county. The record is unclear as to when this began. Starting in late May of 2005 the complainant was required to maintain a log of her contacts with employers in order to request reimbursement for gas. The complainant's logs from May and June of 2005 show a vigorous effort made to apply for jobs in those months. The complainant secured part-time employment at Copps Foods in July of 2005, and the job became full-time in October. The complainant testified that between her discharge in May of 2004 and the start of her new job in July of 2005 she had about ten job interviews, but received only one offer, which she accepted.

The respondent argues that the complainant failed to mitigate her damages by making an adequate job search. The respondent contends that the complainant's testimony that she applied at many places after May 4, 2004 is belied by the fact that she failed to provide specific evidence or documentation regarding such efforts, and that the evidence shows she did not engage in serious efforts to find employment until June 2005. However, the complainant's failure to present documentary evidence of her job search efforts prior to late May of 2005, when she was required to keep a job search log, does not in and of itself call into question her testimony that she searched for work. Job seekers do not necessarily keep records of the jobs they have applied for, unless they are required to do so for UI or other purposes, and the absence of such records is not a reason to doubt the complainant's testimony that she looked for work with the employers mentioned.

The respondent also contends that there were numerous entry-level/service type jobs available for the complainant and that it should not have taken her a whole year to find one. The respondent's evidence in support of this assertion consists of a stack of photocopies of newspaper classified ads. However, much of what was submitted by the respondent is illegible, most pages are undated, and the document bears no indication of which jobs the respondent considered appropriate for the complainant. While presentation of classified advertisements is a common method of proof on this issue, see Biggers v. Isaac's Lounge (LIRC, October 29, 1999), the documents offered in this case do not prove the respondent's contention that numerous entry level jobs were available in the complainant's labor market area during the time period in which she was unemployed. Further, even if the record did contain evidence warranting a conclusion that numerous appropriate job opportunities existed, the fact remains that the complainant has an arrest record which might deter prospective employers from giving her serious consideration, as it did the respondent. Consequently, even if the commission were to find that the complainant failed to make a diligent effort to seek new employment, and that there were numerous appropriate jobs available--and the commission wishes to emphasize that it does not believe the respondent met its burden on these questions--these facts would not necessarily warrant a conclusion that there was a reasonable likelihood the complainant could have found comparable work any sooner than she did. 

Respondent's Petition

The respondent has petitioned for review on the ground that the attorney fees awarded by the administrative law judge should have been further reduced to reflect partial success. The respondent maintains that the complainant achieved only partial success because she did not establish she would have been hired in the permanent position, and therefore qualified for only limited damages, and because she did not prove her race was a factor in the discharge.

The former argument has been rendered moot by the commission's determination that the complainant is, in fact, entitled to back pay based upon an assumption that she would have been offered full-time employment, and the commission is unpersuaded by the latter. The complainant succeeded in demonstrating that she was unlawfully discharged. The fact that she did not establish she was discriminated against on multiple bases does not weaken the success of her case and has no effect on her entitlement to a remedy. "Where Plaintiff has obtained excellent results the fee award should not be reduced simply because the Plaintiff failed to prevail on every contention raised in the lawsuit." Racine Unified School Dist. v. LIRC , 164 Wis. 2d 567, 476 N.W.2d 70 (Ct. App. 1991).

It should be noted that, while the addition of several potential bases for discrimination does not generally add much time to the overall litigation, in those cases when time spent litigating an issue on an additional basis is quantifiable, a reduction of fees may be appropriate. In this case, the administrative law judge did reduce the attorney fee award to reflect the fact that the complainant's attorney requested costs and fees associated with preparing a disparate impact race argument.

The complainant's attorney has requested $10,840.00 in attorney's fees in conjunction with the complainant's petition for commission review, and another $9,920.00 for the brief in opposition to the respondent's petition. The respondent's only objection to this request is that it should be reduced by half based upon a partial success theory. The commission has already rejected the respondent's argument in favor of a partial success reduction, which was raised in the context of deciding whether the fees and costs ordered by the administrative law judge's order were reasonable. Its argument that the attorney's fees awarded for work related to the petition for review should be cut in half on that basis is also rejected.

Attorney Jeff Scott Olson
Attorney Anderson B. Scott

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(1)( Back ) Although the filing of a petition for review by either party vests the commission with jurisdiction to review the entire decision, the commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Dude v. Thompson (LIRC, Nov. 16, 1990).

(2)( Back ) It should be noted that the complainant's petition and brief in support thereof contain no request for reinstatement.

uploaded 2008/03/17