STEPHANIE A LEBLANC, Complainant
SIGNAL TV, 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 conclusions in that decision as its own, except that it makes the following modifications:
1. In the first line of paragraph 3 of the FINDINGS OF FACT, the number "55" is deleted and the number "35.5" is substituted therefor.
2. Paragraph 5 of the ORDER is deleted and the following paragraph is 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 which provides details of the specific action it has taken to comply with the remedial relief ordered in this matter. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. §§ 111.395, 103.005(11) and (12) 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."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed December 17, 2009
leblast . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondent's failure to appear at the scheduled hearing
The Equal Rights Division sent a Notice of Hearing to the parties informing them a hearing would be held on Stephanie LeBlanc's complaint of discrimination on September 3, 2008, at 9:30 a.m. at the state office building in Waukesha, Wisconsin. LeBlanc alleged that the respondent discriminated against her by engaging in or permitting sexual harassment, by discriminating against her with respect to her terms and conditions of employment, by terminating her employment because of her sex and by discharging her because she opposed a discriminatory practice under the Act. LeBlanc appeared at the hearing with counsel, but neither the respondent's owner, Greg Gates, nor anyone on behalf of the respondent appeared for the hearing. Gates was represented by counsel until August 29, 2008. On August 29 the ERD received a fax from Gates' counsel stating that his services have been terminated. LeBlanc testified and presented evidence at the hearing on September 3.
At 3:05 p.m. on September 3, 2008, Gates left a voicemail for the ALJ stating that he was at the hearing location and thought the hearing had been scheduled for 3:00 p.m., that he just looked at the notice and learned that the hearing had been scheduled for 9:30 a.m., that he had it "locked in his head" that the hearing was scheduled for 3:00 p.m. and that he "should have looked at the thing", that he thought it was at 3:00 p.m.
By letter to Gates dated September 4, 2008, the ALJ noted Gates' voicemail explanation for his failure to appear for the hearing and informed him that Section DWD 218.18(4) provides that if a party who failed to appear shows good cause in writing for the failure to appear the ALJ may reopen the hearing. Further, the ALJ advised Gates that good cause was a reason which would amount to circumstances beyond the individual's control or which would otherwise have prevented or made it unreasonable to appear; that the explanation must establish that the failure resulted from excusable neglect.
The ERD subsequently received correspondence dated September 22, 2008, signed "for" Gates by the respondent's former counsel. In this correspondence the following was asserted as reasons for Gates' failure to appear for the scheduled September 3, 2008 hearing: 1) that Gates was up late the prior three nights preparing for the hearing; and 2) that Gates is diagnosed as manic-depressive, for which he takes Thorazine, and that the combination of stress, his mental condition and the Thorazine caused him to mix up the date and time of the hearing. Enclosed with the correspondence was an "Excuse Slip" from Gates' treating physician, Dr. Fernando Itable.
Based upon the September 22, 2008 correspondence, the ALJ notified the parties that a hearing would be held on January 28, 2009, on the issue of whether there was good cause for the respondent's failure to appear for the hearing. Gates appeared and presented testimony and evidence at the January 28 hearing. Neither LeBlanc nor her counsel appeared for this hearing. Gates testified that he "might have authorized" counsel to send the September 22, 2008 letter on his behalf.
At the hearing on January 28, 2009, Gates testified that he has a history of mental illness, that he has been receiving social security disability benefits since 1992 (and also for the period 1980-1981), that "as of September 2008" he was seeing Dr. Itable for treatment of his mental illness, and that he was taking Thorazine for sleep. Gates also testified, however, that "the Thorazine did not make me oversleep on September 3, 2008. I guess my mind was not functioning right as I did not look at the hearing notice carefully enough." Gates further testified that he has a long history of manic depression and that Dr. Itable treats him for manic depression.
Gates also testified that the respondent, Signal TV, went out of business on August 28, 2007, and that the respondent was a privately owned business of which he was the sole proprietor.
On May 15, 2009, the ALJ issued a final decision in the case. The ALJ concluded that the respondent failed to show good cause for failure to appear at the hearing on September 3, 2008, and that the complainant had proven by a fair preponderance of the evidence that the respondent discriminated against her in violation of the WFEA as alleged by the complainant. The ALJ ordered the respondent to cease and desist from discriminating against the complainant and to provide complainant make-whole relief including making an offer of reinstatement to her, paying her lost wages from June 27, 2007 through the date on which she is reinstated and paying her reasonable attorney's fees and costs totaling $4,701.03.
On the issue of the respondent's failure to appear for the September 3, 2008 hearing the ALJ stated, in part, as follows:
The Division does not start hearings at 3:00 p.m. The Hearing Notice clearly indicated the date, time and place of the hearing. The Respondent carefully noted the date and location. His statement that he just got the time wrong in his head does not establish excusable neglect.
The note from the doctor that the Respondent submitted does not establish that the medication or any medical condition caused the Respondent to make this mistake. It is not competent evidence of an inability to appear. There is no evidence demonstrating that the medication had any impact in terms of confusing the Respondent or causing him to oversleep or miss appointments. Instead, just the opposite is true. The Respondent never claimed that he overslept or that medication or any disability made it impossible for him to attend the hearing on time. He just "got the time wrong", became convinced that the hearing was at 3:00 p.m., and did not appear at the scheduled time for the hearing. This is not the result of excusable neglect.
While it is unfortunate that he prepared for and did not appear at the hearing, the fact is that his own inexcusable negligence caused him to miss that hearing. Good cause requires competent evidence of circumstances beyond the individual's control or which prevents appearance or makes it unreasonable.
On appeal from the ALJ's decision, the respondent argues that due to the stress in preparing for the case with very limited sleep, his thinking was not clear. The respondent argues that the ALJ was unfamiliar with Thorazine; that it is used to treat "acute psychosis" which is a part of being manic-depressive. The respondent argues that the "number '3' repeated in my mind, thus, September 3 at 3 o'clock". Further, the respondent asserted that because the ALJ did not accept his testimony about being manic-depressive, he was obtaining his complete mental health records and an explanation from his doctor stating that he has a medical condition which causes him to confuse dates and times for appointments.
Gates' sister, Diane Gates, subsequently submitted correspondence and various medical records on behalf of Mr. Gates, in support of the respondent's appeal.
Ms. Gates argues that the respondent "had good cause and excusable neglect" in its failure to appear at the September 3, 2008 hearing. Ms. Gates argues that Gregory Gates' medical diagnosis at three hospitals has been consistent for over a decade, that Mr. Gates' October 1996 Psychiatric History Summary by Dr. Vance Baker of the Medical College of Wisconsin describes a long history of Bipolar Affective Disorder with admissions for manic episodes since 1979, usually occurring in the later part of the year suggesting a "seasonal disorder", that Gates' inability to accurately perceive reality has continued to be observed in recent years by psychiatrist Leandrea Lamberton of the Medical College of Wisconsin, most notably at a brief session before the Holidays in 2003 concerning extreme anxiousness, at which time Dr. Lamberton indicated that Gates "hears voices when he gets stressed" and also noted on that same date that Gates came late to the meeting because he had the appointment time confused. Ms. Gates argues that preparing for a court hearing is exceedingly more stressful than anticipating a Holiday and that Mr. Gates' Bipolar Affective Disorder condition caused him to confuse the details of the September 3, 2008 hearing date and time.
Further, Ms. Gates references Mr. Gates' request for an emergency appointment on July 17, 2007, with Dr. Lamberton, which was not granted. Ms. Gates asserts that Gates suffered acute stress after receiving a settlement letter from the complainant's counsel dated July 11, 2007.
The respondent's arguments fail to establish good cause for the respondent's failure to appear for the September 3, 2008 scheduled hearing on the merits of this case. As noted by LeBlanc's counsel, "[a]lthough Respondent has provided a substantial amount of medical records regarding his mental condition, there are no medical records demonstrating that Mr. Gates was hospitalized on September 3, 2008, or that he was under the care of a physician at that time." Further, with respect to Gates' alleged mental condition after receiving the complainant's July 11, 2007 settlement letter, the complainant notes that based on the respondent's argument: 1) "Mr. Gates would have been suffering through this health issue for over a year in order for that to affect his failure to appear at the merits hearing. Yet there are no medical records demonstrating that he received treatment after July 2007"; and 2) Mr. Gates "had the mental capacity to comply with discovery requests and to prepare for the hearing on September 3, 2008. It is simply illogical, therefore, that his mental condition was the reason that he missed the merits hearing on September 3, 2008."
Merits
Absent a determination that the respondent has shown good cause for its failure to appear at the September 3, 2008 hearing and remand of the matter for further proceedings, the factual assertions contained in Ms. Gates' correspondence regarding the merits of the case cannot be considered by the commission.
The Wisconsin Fair Employment Act defines sexual harassment, in relevant part, to mean:
...unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature...."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...or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment.
Wis. Stat. § 111.32(13).
LeBlanc, a female, testified that she is 25 years old, that her highest level of education is the 12th grade, that she is not married and that she has a three-year-old daughter.
LeBlanc testified that she was hired by the respondent on March 21, 2006, to be the receptionist/secretary and that the respondent was a TV repair shop. LeBlanc was paid $7.00 per hour. LeBlanc testified that she was paid on an hourly basis "most of the time", that she usually worked eight hours a day, but sometimes as much as 50-55 hours in a week, that in an average week she probably worked 15 hours of overtime, (1) that she received no benefits and that she never received any performance reviews, reprimands or bonuses.
LeBlanc was Gates' only employee. LeBlanc testified that her relationship with Gates was initially pretty good but then Gates started getting aggressive about how he felt about her, consistently giving her cards and that he tried to give her gifts and flowers. LeBlanc testified that she told Gates 10-30 times to stop giving her the cards, and that they only had a business relationship, but he kept doing it. LeBlanc testified that Gates gave her about 100 cards. See Exhibit 1.
LeBlanc identified Exhibits 5, 6 and 7 as photo albums containing the photographs taken by Gates. The photos are of LeBlanc, LeBlanc's daughter, a scrabble board, the business and a few of Gates in his underwear (briefs). LeBlanc testified that Gates took photos of her almost every day at random times throughout the day, and that she never gave Gates permission to take photos of her. LeBlanc testified that she told Gates to stop taking pictures of her and that a couple show her shying away or walking out of the room.
LeBlanc initially testified that Gates touched her on a "few occasions" but subsequently clarified her testimony to state that Gates' kissing her on her collarbone and touching her (rubbing her shoulders) on her birthday were really the only two times Gates touched her. LeBlanc testified that when she was making something to eat Gates kissed her on the collarbone and that she moved away and asked, "What are you doing?" LeBlanc testified that Gates laughed and walked into the bathroom. LeBlanc testified that on her birthday Gates rubbed her shoulders and that she told him to "stop doing such activities." LeBlanc testified that Gates' physical contact with her made her feel very uncomfortable. LeBlanc testified that she did not quit her job because she had a family to raise and could not afford to be unemployed.
LeBlanc testified that Gates made comments to her of a sexual nature all the time; that he probably made over 100 sexual comments, but he laughed about them. LeBlanc testified that Gates would say that he "liked it when I wore my hair down", that her "jeans looked good because they conformed to my body right" and that Gates told her how beautiful she looked. LeBlanc testified that Gates made comments like this constantly. LeBlanc testified that her response to Gates was that his making such comments would never amount to anything between them and that he should stop before he hurt himself emotionally.
LeBlanc testified that her employment ended on June 27, 2007, the day after her birthday. LeBlanc testified that Gates fired her because she would not accept his advances (i.e., Gates' stated desire to be with her, rubbing her shoulders and trying to kiss her). LeBlanc testified that Gates asked for a birthday kiss on her birthday and that she told him no. LeBlanc testified that on June 27 Gates was upset and terminated her. LeBlanc testified that on her birthday, after telling Gates he could not kiss her he became aggressive about not wanting to hear what she had to say about his not being allowed to touch her; that Gates got in his van and squealed (apparently, his tires) out of the parking lot. LeBlanc testified that she knew Gates was upset because usually Gates checked in at the end of the day to see how sales were, but that day he did not call and he did not answer when she called him.
The evidence supports the ALJ's determination that LeBlanc has proven by a fair preponderance of the evidence that the respondent discriminated against her by engaging in and permitting sexual harassment, in regard to the terms and conditions of employment because of her sex, by terminating her employment because of her sex, and by discharging her from employment because she opposed a discriminatory practice under the WFEA, all in violation of the WFEA.
Attorney's fees and costs
LeBlanc submitted a request for $7,833 in attorney's fees and $74.53 in costs. The ALJ noted that the fee petition was deficient. The ALJ indicated that some of the attorneys who performed the work are unidentified; that it was impossible to determine if the hourly rate was appropriate without identification of the attorney and because there needed to be some explanation as to why the hourly rate was appropriate. Since the ALJ was able to identify one attorney who was known to the ERD, he awarded that attorney at the requested rate of $195 per hour and the other attorneys at the rate of $150 per hour as appropriate for counsel in Milwaukee, absent identifying information regarding their skills, qualifications or experience. Further, the ALJ reduced the time billed for the case on matters that were not related to the instant case. Finally, the ALJ determined that the request for costs in the amount of $74.53 appeared to be reasonable and that there was no way to separate out any expenses for the unrelated claims.
Based on the above, the ALJ determined that $4,701.03 represented reasonable attorney's fees and costs incurred in pursuing the complaint in this case. The ALJ's award of attorney's fees and costs appears reasonable. The respondent has presented no argument on this issue on appeal.
NOTE: The commission notes that an issue apparently exists as to whether or not the respondent's business closed on August 28, 2007. However, LeBlanc presented no evidence at the September 3, 2008 hearing on the merits of her complaint which established that the respondent had in fact ceased operations on August 28, 2007, and Mr. Gates' failure to appear at the September 3, 2008 hearing has not been shown to be for good cause. While Mr. Gates' asserted at the January 28, 2009 hearing that the respondent went out of business on August 28, 2007, the January 28 hearing was scheduled only for a hearing on the issue of whether or not the respondent had good cause for its failure to appear at the September 3, 2008 hearing. The complainant did not appear at the January 28, 2009 hearing, apparently because it had nothing to offer regarding the respondent's failure to appear at the hearing on the merits. Whether or not the respondent actually ceased doing business in August 2007 would affect the possibility of LeBlanc being reinstated and the extent of her back pay. However, the commission has no basis on which to address this issue since it was never litigated by the parties. Since the time to do so has now past, the parties will have to resolve this issue themselves.
cc:
Attorney Christopher M. Kloth
Ms. Diane Gates
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