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

TAWNI SUE HARPER, Complainant

MENARD INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200602401, EEOC Case No. 26G200601501C


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 makes the following:

FINDINGS OF FACT

1. The respondent, Menard, Inc. (hereinafter "respondent") operates a chain of retail home improvement stores.

2. The complainant, Tawni Sue Harper (hereinafter "complainant"), began working for the respondent on or about September 7, 2004, as a general laborer at the respondent's warranty distribution center located in Eau Claire, Wisconsin. The complainant is a female.

3. The complainant's immediate supervisor was the warranty center manager, Mark Newman. Mr. Newman supervised about 80 employees. He had the authority to hire, fire, and make assignments, and could recommend employees for promotion or transfer.

4. In addition to Mr. Newman, the complainant had several assistant supervisors or team leaders. They were Paul Middleton, Stacy Hanson, and Dave Wyler.

5. Shortly after the complainant began her employment, Mr. Newman began to make comments which made her feel uncomfortable. The remarks in question included the following:

5. On more than one occasion Newman told other Worker's that he only hired the complainant for her looks. Newman also commented to Paul Middleton, one of the complainants' supervisors, that he should "take one for the team" and sleep with the complainant. Neither of these comments was made directly to the complainant, and it was not established that the complainant was aware of the latter.

6. The complainant complained about Newman to Paul Middleton on one or more occasions in the spring of 2006. The complainant told Middleton that Newman said he had only hired her for her looks and that he made a comment about the complainant taking a nap with him.

7. Middleton approached both Newman and Les Pitzer, the respondent's site manager, with information that the complainant was not happy in the workplace and that she had some type of complaint regarding Mr. Newman's treatment of her. However, the record does not establish that Middleton put either individual on notice that the complainant believed she was being sexually harassed by Newman.

8. In February or March of 2006, the complainant and a co-worker, Bill Abramovich, went to see Les Pitzer to discuss various complaints about management, most of which dealt with conflicts involving the team leader, Stacy Hanson. During this meeting the complainant told Pitzer that there were rumors in the workplace that she and Mr. Abramovich were involved in a sexual relationship, and she wanted it known that this was not true. No other sexual comments were reported.

9. On June 6, 2006, Mr. Pitzer was at the building where the complainant worked and stopped to talk with her. Pitzer asked the complainant if things had gotten better, and she indicated that they had.

10. On June 8, 2006, the complainant told Stacy Hanson that she had had enough, put her badge on the desk, and walked out. Hanson tried to talk to the complainant about what was going on, but the complainant refused to discuss the matter.

11. The complainant's co-worker, Marie Sell, also asked the complainant why she was leaving, and the complainant told her it was because of a comment by one of the supervisors, Dave Wyler, to the effect that he expected her to do more work.

12. After the termination of her employment the complainant completed an exit interview form which asked "What were your most important reasons for leaving us." Three lines appear for the response. On the first line the complainant wrote, "Stacy Rae Hanson." On the second and third lines she wrote, "Sexual and deameaning [sic] remarks made by Mark Newman." In the space for "other comments" the complainant provided extensive handwritten remarks, all of which address Stacey Hanson's conduct and say nothing about sexual harassment.

13. Based upon the above FINDINGS OF FACT, the commission makes the following:

CONCLUSIONS OF LAW

1. That the respondent discriminated against the complainant on the basis of sex, within the meaning of the Wisconsin Fair Employment Act, by engaging in sexual harassment.

2. That the respondent did not discriminate against the complainant on the basis of sex, within the meaning of the Wisconsin Fair Employment Act, with respect to the termination of her employment.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

ORDER


1. The respondent shall pay to the complainant reasonable attorney fees and costs associated with these proceedings in the total amount of $4,512.47. A check in that amount shall be made payable jointly to the complainant and Attorney Carol Dittmar and delivered to Ms. Dittmar.

2. 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 Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin. 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).

Dated and mailed September 18, 2009
harpeta . rrr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

Credibility

The administrative law judge's dismissal of the complaint was based upon an adverse assessment of the credibility of the complainant's testimony. Prior to reversing, the commission conferred with the administrative law judge about his impressions of the credibility and demeanor of the witnesses. The administrative law judge explained that his adverse credibility assessment of the complainant was not based upon demeanor impressions, but upon internal inconsistencies in the complainant's testimony and inconsistencies between her testimony and other testimony and evidence in the record. As set forth in his memorandum opinion, the administrative law judge was troubled by the fact that the complainant asserted her only reason for quitting was Newman's conduct, while her exit interview form clearly focused on other matters, and by the fact that her co-worker, Marie Sell, testified that the complainant provided her with reasons for quitting that were unrelated to sexual harassment. The administrative law judge was also troubled by the fact that the complainant testified she complained to Middleton earlier in her employment and more frequently than Middleton indicated was the case.

The commission does not disagree with the administrative law judge that the complainant's primary job concerns related to matters other than sexual harassment and that the complainant only began to focus on some of her sexual harassment allegations after-the-fact. However, while the commission believes that the complainant's failure to emphasize Newman's remarks in her exit interview or to mention them as a reason for quitting in the conversation with Marie Sell is evidence that the complainant was not as troubled by the comments as she now alleges, this does not lead it to doubt that the remarks were made. Similarly, while the disagreement between the complainant's testimony and Middleton's with respect to when and how often the complainant complained to Middleton about Newman's conduct may weaken her constructive discharge case, it does not warrant a conclusion that the underlying comments were never made. The commission believes that the complainant's allegations about Newman's conduct, which find support in Middleton's testimony that Newman once commented to him that that he should "take one for the team" and sleep with the complainant, are credible, and it concludes that Newman did, in fact, make the remarks referenced in paragraph 5 of this decision. The commission has, therefore, proceeded to analyze whether those remarks constituted unlawful sexual harassment and, if so, whether the complainant's quitting could be considered a constructive discharge.

Sexual harassment

The Wisconsin Fair Employment Act provides, in relevant part:

(1) Employment discrimination because of sex includes but is not limited to, any of the following actions by any employer. . . :

(b) Engaging in sexual harassment; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employe, other than an employment decision that is disciplinary action against an employe for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employe's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employe's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employe would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.

Wis. Stat. § 111.36(1)(b)(emphasis added).

The commission has interpreted the statute as providing for three categories of prohibited conduct: sexual harassment by an employer, quid pro quo sexual harassment, and hostile environment sexual harassment. The commission has specifically held, and the court of appeals has affirmed, that under the first category, which is italicized in the citation above, employment discrimination based on sex occurs if the employer--meaning the owner or an agent in a position of responsibility such that it is appropriate to apply the rule of respondeat superior and treat the actions of the agent as being the actions of the employer--engages in conduct that meets the definition of sexual harassment, whether or not that conduct creates a hostile work environment. Tobias v. Jim Walter Color Separations (LIRC, Aug. 13, 1997); aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias, 226 Wis. 2d 334, 595 N.W. 2d 68 (Ct. App. 1999). Thus, where the employer or an agent of the employer is perpetrating the sexual harassment, it will be actionable even if the harassment would not be considered sufficiently severe or pervasive as to create a hostile work environment.

In this case, the complainant's allegations fall within the first category of conduct prohibited by the statute, because she has contended that the sexual harassment was perpetrated by the employer itself, in the person of a managerial or supervisory employee. Mr. Newman was the respondent's warranty center manager. He was responsible for the supervision of 80 employees, and had duties including hiring, firing and making job assignments. That Newman should be considered an agent of the employer is not a matter in dispute.

The next question is whether the complainant's allegations constitute sexual harassment. Sexual harassment is defined in the statute, as follows:

[U]nwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employe's work performance or to create an intimidating, hostile or offensive work environment.

Wis. Stat. § 111.32 (13)(emphasis added).

The complainant credibly testified that Newman made the following remarks to her:

While compliments on clothes or on the complainant's looks are not inherently sexual in nature (1),   the other remarks in question undoubtedly were. Thus, the record contains sufficient evidence to warrant a conclusion that the complainant was subjected to deliberate, repeated comments of a sexual nature from her supervisor.

In order to constitute sexual harassment the conduct must also be unwelcome. Conduct is considered unwelcome where the employee did not solicit or invite it, and regards it as undesirable or offensive. See, Fluhr v. Magestro (LIRC, April 1, 1999), citing Henson v. City of Dundee, 682 F.2d 897, 903, 29 FEP Cases 787, 792 (11th Cir. 1982). The record contains no evidence to suggest that the complainant solicited or invited such comments, and while the commission does not find it credible that the complainant was so offended by the remarks as to quit as a result, it is nonetheless satisfied that she viewed the comments as offensive and undesirable. The complainant has, therefore, met her burden of proving that she was subjected to unlawful sexual harassment.

Constructive Discharge

A finding of constructive discharge contemplates "working conditions so difficult or unpleasant that a reasonable person confronted with them would feel compelled to resign." Cole v. Northland College (LIRC, March 19, 2001), citing Waedekin v. Marquette University (LIRC, March 5, 1991); Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc. (LIRC, Jan. 10, 1992). However, the question of whether certain conduct was severe enough to warrant a finding of constructive discharge is reached only when there is a finding that the conduct caused the quitting. Riley v. American Family Mutual Insurance (LIRC, March 30, 1992). In Riley, the commission was persuaded that much of what the complainant found intolerable in her workplace was caused not by the conduct of the individual engaging in harassment but by the extremely poor relationship between the complainant and her co-Worker's and that the complainant's decision to quit was also motivated in part by a desire to start her own free-lance business. Thus, there was significant reason to question whether the harassing conduct was a cause in fact of the complainant's resignation.

Here, as in Riley, the commission is persuaded that the complainant's decision to quit was motivated by factors other than sexual harassment. The evidence indicates that the proximate cause of the complainant's quitting was a conflict with her supervisor, Stacy Hanson, and the fact that another supervisor, Dave Wyler, had criticized her work performance. The complainant could not identify any specific act of sexual harassment that occurred close in time to the quitting, other than to note that Newman again commented that she looked good in something she was wearing, and there is no reason to conclude that her quitting was triggered by any specific conduct of Newman's. The complainant told her friend and co-worker Marie Sell that she was quitting because of reasons unrelated to Newman and, when filling out her exit interview form, the complainant focused primarily on her personality conflict with a female supervisor, Stacy Hanson, and said almost nothing about sexual harassment. (2)   In a telephone conversation with Ms. Sell shortly after the complainant quit, the complainant stated she intended to write the respondent a letter about Stacy Hanson, but made no reference to Newman.

Further, even assuming the complainant did quit because of sexual harassment, this would not necessitate a finding of constructive discharge. A constructive discharge is not found in every sexual harassment case, but only where the conduct made working conditions so intolerable that a reasonable person would feel compelled to resign. As the commission explained in Tobias, supra:

A finding that there has been sexual harassment by the employer does not always require a finding of constructive discharge; the specific details and circumstances relative to the sexual harassment must always be looked to in deciding whether there was a constructive discharge. Thus, in Miller v. Oak-Dale Hardwood Products, (LIRC 12/13/94), the finding of constructive discharge rested on the commission's analysis of the pervasiveness of the sexual harassment in the case and the Respondent's actions.

A smattering of sexually tinged comments made over the course of a year and a half, while certainly unpleasant and distasteful, is not sufficient to create a hostile working environment or to render working conditions so intolerable that a reasonable person would feel compelled to resign. Moreover, with only one exception -- the "carpet and drapes" comment, made almost a year before she quit -- the complainant did not provide specific dates or timeframes as to when the most egregious comments were made, and indicated that the comment that precipitated her quitting was an innocuous remark about how nice she looked in something she was wearing. The commission is persuaded that the sexual harassment in this case was not severe enough to drive a reasonable person to quit and that, in fact, the complainant did not quit for that reason.

In her petition for commission review the complainant argues that the commission should apply an "in part" analysis, under which the respondent would be liable even if Newman's behavior was not the only reason why she quit. However, an "in part"/"mixed motive" analysis comes into play where an employer has both a legitimate and a discriminatory reason for an employment decision. The commission is unaware of any circumstance in which such analysis could apply to a situation where the employee quits, and although the complainant suggests that it should, she has cited no legal authority in support of this proposition. If working conditions are rendered so intolerable due to sexual harassment as to compel the employee to quit, she would not wait to tender her resignation until other adverse, but non-discriminatory, incidents occurred.

Attorney Fees

The complainant is entitled to payment of her reasonable costs and attorney fees incurred in pursuing this matter. In calculating reasonable attorney fees, the most useful starting point is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This figure is commonly referred to as the "lodestar figure. Hensley v. Eckerhardt, 461 U.S. 424, 31 FEP Cases 1169 (1983).

Hourly Rate

A reasonable fee is calculated according to the prevailing market rates in the relevant community. It is anticipated that, along with the fee petition, the attorney requesting payment will submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determined based on such affidavits is normally deemed to be reasonable. See, Blum v. Stenson, 45 U.S. 886, 34 FEP Cases 417 (1984); Roytek v. Hutchinson Technology Inc. (LIRC, Feb. 15, 2005).

The complainant's attorney, Carol Dittmar, is a solo practitioner located in Chippewa Falls, WI, and has requested fees of $250 an hour for work performed from August of 2006 through November of 2008, and $275 an hour for work performed in 2009. Ms. Dittmar has presented no affidavits from other attorneys in support of her fee request. The respondent argues that the hourly fee request does not appear to be reasonable, but has not provided the commission with any indication of what it believes a more reasonable fee might be.

In 2007, the commission reviewed a case in which a question was raised about the appropriate hourly fee for the complainant's attorney. In that case, Swanson v. County of Chippewa (May 11, 2007), Ms. Dittmar had requested $200 an hour for work performed while a member of a law firm, and $250 an hour for services performed after leaving the firm. Based on the fact that the complainant's attorney had worked together with another attorney from the same firm whose rate the commission had previously found to be reasonable, the administrative law judge found that the $200 fee originally requested was reasonable. However, the administrative law judge held that, in the absence of any affidavit to support that the $250 per hour rate was a prevailing market rate in Chippewa Falls and the surrounding area for litigation of an employment discrimination claim by an attorney of comparable skill, experience and reputation, the rate of $200 per hour would be deemed to be a reasonable rate for the recovery of attorney fees for Ms. Dittmar's work after leaving the firm and the higher hourly fee would not be granted. The complainant appealed the decision to the commission, which affirmed the administrative law judge's decision.

Notwithstanding the Swanson decision, which directly addressed the complainant's attorney's request for reimbursement for legal services at a $250 an hour rate and rejected that request, Ms. Dittmar has once again submitted a fee request for the same or higher hourly rate unaccompanied by any supporting affidavits. While there have been instances in which the commission has been able to determine reasonable attorney fees in the absence of supporting affidavits, the commission must have some basis upon which to make such a determination. Here, there is no information available that would assist in making such determination. A search of the commission's website has revealed no recent cases in which the commission has arrived at a reasonable rate for an attorney practicing in the Chippewa Falls/Eau Claire area to which it could make a comparison and, because the complainant did not prevail at the hearing level, the administrative law judge has expressed no opinion about the reasonableness of the fee request. While the commission has in the past referred to a State Bar of Wisconsin publication entitled The Economics of Practicing Law for information on the median hourly rates charged by attorneys in various parts of the state, (3)   the most recent State Bar publication (4)   does not contain such statistical information and provides no guidance in determining a reasonable hourly fee. In the absence of any supporting affidavits or other information which would assist the commission in determining whether $250/$275 an hour is a reasonable hourly rate for Ms. Dittmar's services, and considering that the respondent has raised an objection to the reasonableness of the hourly fee, the commission believes it appropriate to limit the fee award to the $200 an hour amount which it has already adjudged to be reasonable for Ms. Dittmar's legal services.

Number of hours reasonably expended - specific reductions

The respondent has raised objections to several items listed in the complainant's itemized fee statement, which the commission will address in the order presented. First, the respondent contends that the complainant's brief to the commission was duplicative of the post-hearing brief and not worth the 5.2 hours billed. Instead, the respondent argues that the brief should have taken an hour or two at the most to prepare. The complainant's attorney's bill includes 4.6 hours spent working on the post-hearing brief. A side-by-side comparison of the post-hearing brief and the brief to the commission reveals them to be virtually identical, with only a few minor variations. The latter does not cover any territory not addressed in the former, with the exception of a short procedural summary, a paragraph on the standard of review, and a few paragraphs identifying errors allegedly made by the administrative law judge, and there would seem to be no justification for billing more hours to prepare the commission brief than were billed for preparation of the original. The commission has therefore reduced the amount of time reasonably expended on the commission brief to 2.3 hours, half the total amount of time spent preparing the original brief.

The respondent also objects to payment for items designated "response to ERD" drafted on November 3, 2006, and "review mailing from Department" on March 14, 2007. The respondent contends that it has no record of either item and that, therefore, they should be disallowed. The November 3, 2006, correspondence, which was apparently not sent to the respondent, consists of a letter from the complainant's attorney to the Equal Rights Division in response to questions from a Division investigator. Such correspondence pertains directly to the case and is clearly a matter for which the complainant's attorney should be paid. However, the complainant's attorney fee request does not specify what "mailing" her attorney was reviewing on March 14, 2007, and the commission is unable to locate anything in the file that was sent by the department on March 14, 2007, or within a few days of that date, which the complainant's attorney might have been reviewing on March 14. The commission therefore agrees with the respondent that no compensation should be awarded in conjunction with this item. Since the complainant's request for .40 hours on March 14 encompasses two tasks, "review mailing from Department and deposition status," the commission has reduced the fee award for this item by half, or .20.

The respondent also objects to paying for February 21 and April 7, 2008 correspondence to the administrative law judge, on the ground that these letters were improper submissions outside of the scope of the briefing schedule. The February 21 letter was submitted by the complainant's attorney in lieu of a reply brief and is clearly compensable. The April 8 letter (5)  was to put the administrative law judge on notice that the commission had removed the complainant's unemployment insurance decision from its website upon her request. While this letter was ostensibly in response to a motion by the respondent that the commission's unemployment insurance decision should be given preclusive effect, the administrative law judge had already issued a ruling denying the respondent's motion in May of 2007 such that, at the time the complainant's attorney prepared this correspondence, the matter was moot. The commission agrees with the respondent that the letter was extraneous to these proceedings and that the respondent need not compensate the complainant's attorney for the time spent writing it.

Number of hours reasonably expended - reduction for partial success

Where a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). In determining a fee award the most critical factor is the degree of success obtained. Id. There is no precise rule or formula for making this determination. An attempt may be made to identify specific hours that should be eliminated, or the award may simply be reduced to account for the limited success. 461 U.S. at pp. 436-437.

The complainant's attorney contends that she expended a total of 34.4 hours on this matter, of which she estimates that 20% of the discovery depositions, the day before hearing, the actual hearing, and the post-hearing brief was spent on the issue of constructive discharge. The complainant's attorney has neglected to explain how many hours she believes are attributable to her work on the constructive discharge issue, but based upon the amount of fees requested, $8425.04, which is only $355 less than her total bill of $8780, it appears her contention is that only about 1.4 hours of her time was spent on the constructive discharge issue.

The respondent argues for at least a 33% reduction in fees awarded. It maintains that of the complainant's 11-page post-hearing brief, four pages were devoted to constructive discharge and that, in her brief to the commission, three of nine pages addressed constructive discharge. The respondent also argues that the complainant's motion to compel pertained solely to constructive discharge and that the March 8 telephone call with the Division and subsequent e-mail relate solely to her constructive discharge claim.

While the complainant is endorsing the approach of reducing only specified items that she contends were related to the constructive discharge claim, the commission has generally adopted the approach of applying an across-the-board percentage reduction. For example, in Muenzenberger v. County of Monroe Department of Human Services, (LIRC, Aug. 13, 1998), in which the complainant was found to have been retaliated against in the terms and conditions of her employment, the administrative law judge reduced the fee award by fifty-five percent as a result of her lack of success on her constructive discharge claim, and the commission affirmed that reduction. By contrast, in Mateski v. Nuto Farm Supply (LIRC, Feb. 15, 2005), the commission found that, although the complainant did not prevail on her claim that the respondent failed to offer a reasonable accommodation for her disability, a reduction of the requested fee award by only twenty percent was appropriate where the complainant obtained significant success, having prevailed on her claim that she was refused rehire and terminated based on the respondent's perception that she was disabled.

In the Swanson case referenced above, in which the complainant was represented by Ms. Dittmar, she prevailed on only one issue, but Ms. Dittmar argued that she was entitled to be reimbursed for all of her work connected with the case, less only $1,072 to reflect the three and a half pages of her post-hearing brief which were devoted exclusively to the issues of interference with the exercise of her FMLA rights and constructive discharge. The commission disagreed, stating:

Where the complainant did not prevail on the most significant aspect of her claim, she has failed to achieve "significant success" in the case and should not receive fully compensatory attorney fees. Foust v. City of Oshkosh Police Department (LIRC, April 9, 1998). Here, the complainant prevailed on only a single issue, a limited victory which did not entitle her to back pay, reinstatement or any type of substantive relief. The complainant did not prevail on the most significant issue raised, her claim of constructive discharge. Further, because the complainant's attorney fee request includes time spent litigating a separate complaint, ERD Case No. C200303498, on which the complainant also did not prevail, the degree of success achieved in relation to the amount of hours billed must be deemed a limited one.

The complainant contends, however, that the commission should consider how the case would have been litigated and how much time would have been spent if she had set out to prove only the allegation upon which she prevailed. The complainant maintains that she could not have proved retaliation without establishing that she exercised her rights under the FMLA, that she protested the manner in which the respondent handled her exercise of those rights, and without establishing the quality of her work performance. The commission does not find this argument helpful to the complainant's case. Had the complainant only set out to prove retaliation with respect to the separation report, her task would have been a fairly simple one. The complainant could have satisfied her burden of proof by presenting a copy of the job evaluation from July of 2003, showing that she met standards in every area, a copy of her FMLA complaint filed in September of 2003, and a copy of the separation report prepared in the same month, by the same individual who evaluated her in July, showing that she no longer met standards in most areas. These documents, along with testimony indicating that the complainant's job performance was consistent and that she was not notified by the respondent that it felt the quality of her work was declining during the three months preceding her resignation, would have been sufficient to support a finding of retaliation. Given the circumstances, limiting her award to thirty percent of the attorney fees requested does not seem at all unreasonable.

Unlike Swanson, the two issues in this case involved a similar core of facts, and to litigate only the successful issue would not have significantly shortened the hearing or abbreviated the pre-hearing discovery. However, even where there is a common core of facts and much of counsel's time is devoted generally to the litigation as a whole, this does not mean that no reduction is appropriate. "The [decision-maker] should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." See, Muenzenberger, citing Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169, 1173-1174 (1983). The most significant issue presented in this case and the one which would have entailed the most substantial remedy was the constructive discharge issue, upon which the complainant did not prevail. In fact, just as in the Swanson case, the complainant obtained no substantive relief whatever for prevailing only on the sexual harassment issue.

The respondent has argued for a reduction of at least 33% to reflect the complainant's partial success and, given the complainant's failure to achieve any substantive relief, the commission agrees that a 33% reduction would be appropriate. While it might be argued that a somewhat greater reduction would be an accurate reflection of the level of the complainant's success, the commission is disinclined to reduce the complainant's fees further, particularly where the respondent has not advocated for a greater reduction and where the total number of hours reflected in the fee petition is a very moderate one.

Calculation of reasonable attorney fees and costs

Starting with a total of 34.4 hours and subtracting 2.3 hours for excessive time spent on the commission brief, .2 hours for reviewing a March 14, 2007 mailing from the department which cannot be located, and .2 hours for the extraneous correspondence to the administrative law judge regarding the removal of a case from the commission website, there are a total of 31.7 compensable hours prior to any reduction for partial success. Subtracting 33% to reflect the complainant's partial success, 21.2 compensable hours remain. At a $200 hourly rate, the total fee award would be $4,247.80.

The complainant's attorney has also requested $395.04 in costs, which when pro-rated by the same percentage as the attorney fees, amounts to $264.67. The complainant is entitled to a total of $4,512.47 in reasonable fees and costs associated with this action.

 

cc:
Attorney Carol S. Dittmar
Attorney Landon E. Pelkola


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Footnotes:

(1)( Back ) Whether compliments on the complainant's clothes or looks are of a sexual nature depends upon the context. See, Anderson v. MRM Elgin Corp. (Jan. 28, 2004).

(2)( Back ) As was discussed in the administrative law judge's decision, it is unclear whether the complainant ever submitted the completed form to the respondent and, if so, what the completed form consisted of. Attached to the exit interview form presented at the hearing are two separate pages of lined paper, on which the complainant wrote extensive comments about her sexual harassment allegations. These extra pages appear not to be part of the original form but to have been added after-the-fact.

(3)( Back ) See, Roytek v. Hutchinson Technology (LIRC Feb. 15, 2005).

(4)( Back ) Diane Molvig, The Economics of Practicing Law: A 2008 Snapshot, Wisconsin Lawyer, Vol. 81, No. 11, November 2008 (State Bar of Wis., http://www.wisbar.org).

(5)( Back ) Although the fee request indicates that the letter was written on April 7, 2008, the letter is dated April 8, 2008.

 


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