RYAN JAMES CARLSON, Complainant

SCATZ SPORTS BAR AND NIGHTCLUB, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on December 29, 2010. A petition for review was filed by the respondent, Scatz Sports Bar and Nightclub ("Scatz") on January 26, 2011.

On January 31, 2011 the complainant filed a letter objecting to the respondent's petition for review on the grounds that it was untimely and that the respondent had not been prejudiced because of exceptional delay in the receipt of a copy of the decision within the meaning of the applicable statutes.

Complainant's January 31 letter also requested an award of additional attorney's fees in the amount of $1,155.00 for attorney time reasonably expended on the response to the respondent's petition for review. An affidavit supporting that fee request was attached to the letter. The respondent did not file any response to the complainant's January 31 letter and attorney's fee request.

On March 15, 2011 the commission issued a decision finding that the respondent's petition for commission review was not timely and that the respondent had not been prejudiced because of exceptional delay in the receipt of a copy of the decision within the meaning of the applicable statutes, and dismissing the respondent's petition for review on that basis. The decision did not address the complainant's attorney's fee request.

On April 1, 2011 the complainant filed a letter requesting that the commission issue a supplemental decision addressing the complainant's attorney's fee request.

The Wisconsin Fair Employment Act provides, at Wis. Stat. § 111.39(5)(c), that on motion, the commission may set aside, modify or change any decision made by the commission, at any time within 28 days from the date thereof if it discovers any mistake therein, or upon the grounds of newly discovered evidence.

The commission's failure to address the complainant's attorney's fee request in its March 15, 2011 decision was not intended as a denial of that request, but was instead the result of an oversight. This was a "mistake" within the meaning of Wis. Stat. § 111.39(5)(c).

Now therefore, pursuant to the authority granted in Wis. Stat. § 111.39(5)(c), the commission hereby modifies its March 15, 2011 decision in this matter, as follows:

1) The DECISION paragraph is omitted and the following is substituted therefor:

The petition for review is dismissed.

The respondent shall reimburse the complainant for his reasonable attorney's fees incurred as a result of responding to the respondent's petition for commission review, such fees being determined to be in the amount of $1,155.00. The respondent shall deliver a check in that amount, made payable jointly to the complainant and his attorney, Amy F. Scarr, to the law office of Amy F. Scarr.

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 for the payment of attorney's fees as described above. Such 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. Stats. § § 111.395, 103.005(11) and (12).

2) The following NOTE is appended at the end of the decision:

NOTE: Complainant has requested an award of attorney's fees incurred as a result of responding to the respondent's petition for commission review. It is well established that reasonable attorney's fees should be awarded to a complainant who prevails in an action brought pursuant to the Wisconsin Fair Employment Act, Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). Complainant prevailed in the action he brought in this matter, and he was awarded attorney's fees in the ALJ's decision. It is also well established that a complainant is entitled to attorney's fees in conjunction with proceedings before LIRC. See, Fields v. Cardinal TG Co. (LIRC, 02/16/01). Although the untimeliness of the respondent's petition for review ultimately left it without the authority to review the ALJ's decision, LIRC clearly had the power to make the limited determination it did make as to whether the respondent's petition was timely. It concludes that it is necessarily implied from the existence of that power, that it also has the power to determine and award attorney's fees to a prevailing complainant for attorney's services reasonably incurred in responding to a respondent's petition for commission review, in a case such as this in which the decision is that the petition was untimely.

The complainant's request for fees in the amount of $1,155.00 for responding to the respondent's arguments concerning the timeliness of its petition, appears reasonable both as to the hourly rate and the number of hours. Given this, and given that the respondent filed no response disputing the reasonableness of the amount of the request, it is allowed.

Dated and Mailed April 8, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

cc:
Attorney William A. Abbott
Attorney Amy F. Scarr

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