STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

AMY E. HILL, Complainant

STANTON OPTICAL, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201103151


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. Timely petitions for review were filed by both parties.

The commission has considered the petitions 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

Findings Of Fact Relating To Liability:

1. Respondent Stanton Optical ("Stanton") is a nationwide company that operates full service optical facilities with optometrists on staff to perform eye exams and in-house labs to make eyeglasses onsite. Stanton operates two stores in Madison, Wisconsin, one on the east side, on East Washington Avenue, and another on the west side, off Gammon Place.

2. In August 2011, Complainant Amy E. Hill ("Hill") was living in Madison and looking for work, by means which included posting her résumé‚ to websites where job-seekers could post information about themselves and employers could locate potential employees.

3. Shortly before August 12, 2011, Ms. Hill received a call from a Stanton Optical employee informing her that she had seen Ms. Hill's résumé on line, and that they were interested in interviewing Hill for a sales manager position. In that conversation an interview was arranged for August 12, 2011.

4. On Friday, August 12, 2011, Hill was interviewed at Stanton's east side Madison store by Aaron Winter, who was a regional manager for Stanton.

5. In the interview, Hill and Winter talked about the sales manager position and what it would require, and about Hill's résumé and previous experience.

6. In the interview, there was discussion of the sales manager position's schedule. Winter explained that Hill would have Sunday off and also one weekday off. There was no discussion of what particular week day she would have off or whether she would be able to choose that day. Winter also told Hill that she would be responsible for opening and closing the store on some days, and he asked her if she would be able to do that. Hill stated that she would. In so stating, Hill was operating on the basis of a belief or an assumption that the store's regular closing time was 6:00 P.M. In fact, it was 7:00 P.M.

7. In the interview, there was some discussion about Hill's criminal record.

8. Hill has a record of criminal convictions consisting of the following:

A January 17, 1995 conviction for theft, 5th Degree, in violation of Iowa Statutes § 714.2(5). Under Iowa law, that offense was a misdemeanor.

A February 9, 1995 conviction for possession of alcohol by a minor, in violation of Iowa Statutes § 123.47(2). Under Iowa law, that offense was a misdemeanor.

A February 9, 1995 conviction for theft, 5th Degree, in violation of Iowa Statutes § 714.2(5). Under Iowa law, that offense was a misdemeanor.

A February 18, 1995 conviction for possession of alcohol by a minor, in violation of Iowa Statutes § 123.47(2). Under Iowa law, that offense was a misdemeanor.

A December 12, 1997 conviction for driving with a suspended license, in violation of Iowa Statutes § 321.218. Under Iowa law, that offense was a misdemeanor.

A January 30, 1998 conviction for operating a vehicle with license suspended, in violation of Iowa Statutes § 321A.32. Under Iowa law, that offense was a misdemeanor.

A February 18, 1998 conviction for theft, 5th Degree, in violation of Iowa Statutes § 714.2(5). Under Iowa law, that offense was a misdemeanor.

A February 24, 1998 conviction for child endangerment resulting in no injury, in violation of Iowa Statutes § 726.6(3). Under Iowa law, that offense was an aggravated misdemeanor.

A 2008 conviction in the United States District Court in Madison, Wisconsin for possession with the intent to distribute more than 50 grams of cocaine base, in violation of federal law. Under federal law, that offense was a felony.

9. In addition to the record of convictions described above, Hill also has a record of having being arrested for and charged with, but not convicted of, a number of offenses, as follows:

A December 12, 1997 charge for operating a vehicle with license suspended, in violation of Iowa Statutes § 321A.32. Under Iowa law, that offense is a misdemeanor. That charge was disposed of by being dismissed.

A February 24, 1998 charge of child endangerment resulting in serious injury, in violation of Iowa Statutes § 726.6(2). Under Iowa law, that offense is a felony. That charge was disposed of on a verdict of "Not Guilty."

A charge of possession with intent to distribute of more than 50 grams of designer drugs, in violation of Wis. Stat. § 961.41(1M)(HM)4. Under Wisconsin law, that offense is a felony. That charge was disposed of on August 8, 2007 by being dismissed on prosecutor's motion.

A charge of possession with intent to distribute of 2,500 to 10,000 grams of THC, in violation of Wis. Stat. § 961.41(1M)(H)4. Under Wisconsin law, that offense is a felony. That charge was disposed of on August 8, 2007 by being dismissed on prosecutor's motion.

A charge of possession with intent to distribute of more than 40 grams of cocaine, in violation of Wis. Stat. § 961.41(1M)(CM)4. Under Wisconsin law, that offense is a felony. That charge was disposed of on August 8, 2007 by being dismissed on prosecutor's motion.

10. The three dismissed Wisconsin charges described above in Finding of Fact 9 involved the same facts that formed the basis for the 2008 federal conviction described above in Finding of Fact 8.

11. In the interview, the discussion about Hill's criminal record was limited to Hill informing Winter of her single federal felony conviction.

12. On the "Employment Application" form used by Stanton, the only questions about criminal record were whether the applicant had ever been convicted of a felony and whether the applicant had been convicted of a misdemeanor in the past five years. Although Winter did not have Hill complete a Stanton employment application form in the interview, it is inferred that that form reflected the information which it was Stanton's regular practice to seek from applicants, and it is inferred that Winter sought that information from Hill orally in the interview.

13. Because Hill had only one felony conviction, and because she had no misdemeanor convictions within the past five years, her response which was limited to her single federal felony conviction would have been an honest and complete response to an inquiry from Winter as to whether she had ever been convicted of a felony and whether she had been convicted of a misdemeanor in the past five years.

14. After talking with and questioning Hill about her experience, Winter told Hill that he thought she had good drive and determination, and that he thought she would be able to turn the store around from the performance trouble it had been having. He told her that out of the candidates he had spoken to thus far she would be a great candidate. At the end of the interview, Winter told Hill that he felt like she was a great fit, but that he had more interviews he had to conduct.

15. In August 2011, Hill was still on probation from her federal felony conviction, and in connection with that probation she was required to and did live in a halfway house, "ARC House." As a resident of ARC House, Hill was subject to a number of requirements, including attendance at various meetings. These included meetings on Monday (substance abuse), Tuesday (women's issues), Wednesday (house meeting) and Thursday evening (vocational rehabilitation). Exceptions could be made if a resident could not attend the Monday, Tuesday and Thursday evening meetings because of scheduling conflicts (including required work attendance), but the Wednesday night meeting was mandatory and non-attendance could not be excused. Given their locations and her transportation options, Hill would have to leave Stanton at 5:30 P.M. to make it to the ARC House Wednesday meeting on time. However, Hill could have addressed any problem caused by the requirement that she be available for the ARC House Wednesday evening meetings, by selecting Wednesday as the weekday she had off.

16. On Saturday, August 13, 2011, Winter telephoned Hill, and after telling her that he felt she was the best fit for the position and that her drive and determination would help turn the store around, he offered her the sales manager position, to start on Tuesday, August 16, 2011. The offer was made with no articulated contingencies. Hill accepted the position.

17. On Monday, August 15, 2011, Hill went out shopping to buy clothes she would need for her new job at Stanton. While she was out, Gina Hillmanowski, her case manager at ARC House, telephoned Winter to confirm the details of Hill's new job. After Hill returned, Hillmanowski told Hill about that telephone call, and she told Hill that in that call Winter had some questions about Hill's conviction or convictions.

18. Hill then telephoned Winter. During this conversation, Hill told Winter that if he had any questions about her conviction record that she would be happy to answer them for him. In addition, she stated that she was federally bonded and that her conviction record would have no impact on her ability to perform her job duties. She also gave him some information about the circumstances of the offense that led to her federal felony conviction.

19. At the end of this conversation Winter told Hill not to report to work the next day. He stated that he still wanted to proceed but that he would just need to talk to his corporate office. He told her to wait until she heard back from him.

20. Winter's decision to delay hiring Hill was made because of what he knew of her criminal record at that point, which was that she had a federal felony conviction.

21. On August 16, 2011, Winter telephoned Hill and told her that they still wanted to proceed, and that he wanted her to fill out some paperwork and return it to him and that they would then go ahead. He then faxed her a Stanton employment application form and an "Authorization To Release Information" form.

22. On the Stanton employment application form, Hill answered the question about whether she had ever been convicted of a felony by writing "Possession w/intent to distribute more than 50 grams cocain[sic] base Jan. 2006. Will explain further", and she answered the question of whether she had been convicted of a misdemeanor in the past five years by writing "No." These responses were honest and complete.

23. The Stanton employment application form contained a request to "Please list the times and days available to work." In response to this request on the form Hill wrote: "Monday; Tuesday open-6, Wed open till 5:30 Thursday anytime Friday anytime, Saturday anytime Sunday anytime."

24. Hill faxed the completed employment application and authorization to release information forms back to Winter on August 17, 2011.

25. After she faxed the employment application form and the release authorization form back to Winter on August 17, Hill did not hear from him on that day or on the following day (August 18).

26. Sometime shortly prior to August 19, 2011, and presumably after Hill had returned the "Authorization To Release Information" form to Stanton on August 16, 2011, Stanton's corporate office in Florida arranged to obtain a criminal record background report on Hill from a company named "backgroundchecks.com" or "BGC."

27. Once Hill faxed the employment application form back to Winter on August 17, Winter was in possession of all of the information about Hill's availability for certain hours which was subsequently asserted by Stanton to have been the reason for its decision not to employ Hill. However, Winter did not during that time contact Hill to tell her she could not be employed because of her availability for certain hours. During this period Stanton was waiting for the results of the BGC background report on Hill's criminal record.

28. On August 19, 2011, BGC sent Hill a copy of its criminal record background report on her, with an indication that it had also provided it to Stanton.

29. The BGC criminal record background report on Hill listed misdemeanor charges and convictions as described above in Findings of Fact 8 and 9, except that it:

a) inaccurately showed that Hill had been convicted of the "child endangerment resulting in serious injury" charge and found not guilty of the "child endangerment resulting in no injury" charge;  (1)  and

b) did not include information on Ms. Hill's federal felony conviction.

30. On August 19, 2011, after Stanton had received the BGC background report, Winter telephoned Hill. In that call he told her that he would not be able to employ Hill "due to [her] multiple cocaine convictions, possession of cocaine convictions." Winter also told Hill that she would be a liability to his company "due to the fact that there was prescription drugs in the store." Winter also referred to the background report that had been obtained on her, stating she had other charges they found on her background that she did not disclose. Winter did not say anything about Hill's hours of availability or her ability to work the scheduled hours of the sales manager position.

31. Winter made the decision to refuse to employ Hill because of her arrest and conviction record. 
 

Findings Of Fact Relating To Remedy:

32. The offer of employment Winter made to Hill on August 13, 2011 was for an annual salary of $28,000 plus commission and full benefits. With respect to commissions, sales managers for Stanton receive $100-400 a week in commissions, depending on the performance of their store. With respect to benefits, Hill was told that the benefits that would be provided to her included medical, dental and vision insurance and a 401k plan.

33. After August 19, 2011, Hill made efforts to find other employment. She used a website, "careerbuilder," through which she checked her "alerts" and submitted her résumé electronically to employers.

34. As a result of her efforts to find other employment, Hill was hired by an employing unit named Captel on September 12, 2011. Her employment there paid $7.50 per hour and provided 30 hours of work per week. She received no benefits such as insurance or a 401(k).

35. Hill continued working at Captel until July 28, 2012. On that day, while she was working there, she fell and injured her back.

36. After Hill was injured while working at the job at Captel, she did not return to work there.

37. Hill did not look for work in August or September, 2012.

38. At some point after Hill was injured while working at the job at Captel, she began receiving weekly workers compensation benefit checks from an insurance company, without any decision or award being issued. Hill also went through physical therapy in connection with her back. It is inferred from these facts that as a consequence of her injury at Captel, Hill was at least temporarily disabled from working, and that this is the reason she did not return to work at Captel and did not otherwise look for work in August or September, 2012.

39. At some point prior to the end of October 2012, Hill left Madison and moved to Cedar Rapids. She had previously worked in Cedar Rapids and had family there. She moved because she could no longer afford to live in Madison.

40. On October 29, 2012, while Hill was running in a park in Cedar Rapids, she fainted and collapsed. She was taken to and admitted to Mercy Hospital in Cedar Rapids. Over the following days Hill was in and out of the hospital on 4 separate occasions, being observed for and treated for heart problems and a stroke. The treatment included heart surgery. Following this treatment, Hill was discharged from the hospital for the last time on November 11, 2012.

41. Hill was unable to work from October 29, 2012 through November 11, 2012.

42. Bills from Mercy Hospital for the care provided to Hill from October 29 through November 11, 2012, totaled $105,387.03.

43 There is no evidence in the record as to whether Mercy Hospital has collected any amounts from Hill for the care provided to Hill from October 29 through November 11, 2012, or has made or can be expected to make any attempts to collect any such amounts from Hill.

44. There is no evidence in the record that, after Stanton refused to go forward with her employment, Hill made any attempts to obtain health insurance which would provide coverage for any health care expenses she might incur.

45. On November 12, 2012, Hill was hired by an employing unit named Go Daddy. Her employment there initially paid $12.00 per hour and provided 40 hours of work per week. When her probationary period was over, on February 12, 2013, her rate of pay went to $13.50 per hour. She also began receiving benefits from Go Daddy as of February 2013. As of June 27, 2013, Hill's rate of pay at Go Daddy was increased to $18 per hour.

46. As of June 27, 2013, the alternate employment which Hill had obtained at Go Daddy was at least comparable to the employment she would have had at Stanton.

CONCLUSIONS OF LAW

1. Stanton Optical is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Amy Hill has both an arrest record and a conviction record within the meaning of the Wisconsin Fair Employment Act.

3. Hill established by a fair preponderance of the evidence that Stanton Optical violated the Wisconsin Fair Employment Act by refusing to hire or employ her because of her arrest record and conviction record.

4. It was not established that that Hill's convictions are substantially related to the position of sales manager which Stanton refused to employ her in.

ORDER

1. Time within which respondent must comply with Order. Stanton Optical shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.

2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final 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).

3. Cease and desist. Stanton Optical shall cease and desist from discriminating against the complainant because of arrest record and conviction record, in violation of the WFEA.

4. Back pay. Stanton Optical shall make Amy Hill whole for all losses in pay and benefits that Hill has suffered by reason of Stanton Optical's unlawful conduct by paying Hill the sum she would have earned as a sales manager for Stanton Optical from August 16, 2011 to October 30, 2012, and from November 12, 2012 to June 27, 2013. Hill's back pay shall be based on an annual salary of $28,000 and commissions of $250 per week. The back pay shall be computed on a calendar quarter basis, with an offset for (a) interim earnings from Hill's employment at Captel and Go Daddy, and (b) any workers compensation disability payments paid, during each calendar quarter. Additionally, the amount payable to Hill after all statutory setoffs shall be increased by interest at the rate of 12% per annum simple. Interest shall be computed as follows: for each calendar quarter in the back pay period, the amount of back pay due for that quarter, after statutory setoffs, shall be computed. Interest shall be computed for each such amount from the last day of each such calendar quarter to the day of payment. The total back pay due will be the total of all such amounts. The back pay check shall include on its face the employee's name, social security number and the decision number of this case, and shall be paid jointly to Hill and her counsel, Mr. Ehlke, and sent to Ehlke care of Ehlke, Bero-Lehmann & Lounsbury.

5. Attorney's fees. Stanton Optical shall pay the reasonable attorney's fees and costs incurred in the representation of the complainant in this matter. To date, reasonable attorney's fees and costs are established as being forty-six thousand three hundred forty two dollars and eighty cents ($46,342.80). Attorney's fees are to be paid by a check made payable jointly to the complainant, using the name Amy Martin, and Attorney Bruce F. Ehlke, and delivered to Attorney Ehlke.

6. Compliance Report. Within 30 days of the date on which this decision becomes final, Stanton Optical shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. Stanton Optical's Compliance Report should be sent to:

Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708

or faxed to (608) 267-4409

or emailed to lirc@dwd.wisconsin.gov

The respondent shall mail a copy of the Compliance Report to the complainant (care of her counsel) at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.

Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.

Dated and mailed September 26, 2014
hillamy_rrr : 110 : 

BY THE COMMISSION:

Laurie R. McCallum, Chairperson

C. William Jordahl, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

Liability -- Stanton argues that Hill did not make out a prima facie case. However, the prima facie case formula is inapplicable where the complainant presents credible direct evidence of discriminatory animus underlying the challenged decision. Willard v. Piggly-Wiggly, ERD Case No. 8601417 (LIRC, 07/31/90). Direct evidence is "evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Plair v. E.J. Brach & Sons, Inc., 105 F.3d 343, 347 (7th Cir. 1997). This evidence "must not only speak directly to the issue of intent, it must also relate to the specific employment decision in question." Randle v. LaSalle Telecomm., Inc., 876 F.2d 563, 569 (7th Cir. 1989).

In this case there is clear, direct evidence that the challenged decision was motivated by Hill's protected status as an individual with an arrest and conviction record. Hill testified that Winter, the Stanton regional manager who had interviewed her for the sales manager position, called her on August 19, 2011, and actually told her that "he was unable to go forward with [her] employment due to [her] multiple cocaine convictions and that [she] would be a liability to his company due to the fact that there was prescription drugs in the store," and that he said that she "had other charges that [she] had been convicted of that [she] did not disclose on [her] application."

This direct evidence is admissible. It is by definition not hearsay, in that it is testimony as to a statement by a responsible agent of a party. See, Wis. Stat. § 908.01 (4)(b)4. The direct evidence is also undisputed: Stanton did not present Winter as a witness to deny that he said it, and it never actually offered any evidence from any other sources that anything other than Hill's criminal record was the reason.

Hill's direct evidence is also persuasive, because it is consistent with what is suggested by other reasonable inferences from the record. This includes the inference permitted under the "absent witness rule," that where relevant evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, an inference may be drawn that such evidence would be unfavorable to him. See, Coney v. Milwaukee & Suburban Transport Corp. (1959), 8 Wis. 2d 520, 526, 99 N. W. 2d 713. The "adverse witness rule" inference is particularly compelling in this case because of the very conspicuous failure of Stanton to offer any explanation for the absence of Winter. If there had been any reason for Stanton's failure to present Winter as a witness, other than the fact that his testimony would have confirmed Hill's, one would have expected to have heard it. Yet there was no assertion that he was unavailable or that his whereabouts were unknown; indeed, there was no explanation provided at all. Stanton's silence on that speaks volumes.

The ALJ found Hill's testimony credible, and so did the commission. That testimony directly proves a discriminatory motive. That is sufficient to resolve the issue of liability.

Even if the commission were to find it necessary to apply the prima facie case analysis here, it would arrive at the same result. Stanton argues that Hill did not make out a prima facie case because she did not establish that she was "qualified" for the position, since her job application indicated that there were two nights a week on which she was not available until the 7:00 P.M. closing time. However, Stanton sought Hill out as an applicant based on her résumé, its regional manager Winter told Hill in an interview that he thought she would be a "great candidate," and he then actually decided to hire her, telling her she was "the best fit" for the position. Given these kinds of positive assessments by the employer, it would be the height of artificiality to consider Hill "not qualified" for prima facie case purposes. The questions now being raised by Stanton as to Hill's availability for certain hours on the schedule, are more appropriately considered to be in the nature of a non-discriminatory reason asserted for the challenged decision. However, Stanton never actually articulated any non-discriminatory reason for its decision to rescind the hire of Hill. To satisfy its burden to articulate a non-discriminatory explanation, an employer must clearly set forth the reasons for the action "through the introduction of admissible evidence." It cannot meet its burden merely through an answer to the complaint or by argument of counsel. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255-56, Note 9, 101 S. Ct. 1089, 1094-95, 67 L. Ed. 2d 207, 216-17, 25 FEP Cases 113, 116 (1981). Yet that was the only way in which Stanton raised that assertion. Nothing in Hill's testimony can be pointed to as an articulation "out of the complainant's mouth", see e.g. Cortez v. City of Milwaukee, ERD Case No. 199802055 (LIRC, 01/31/01), that Stanton's actual reason for refusing to employ Hill had to do with her hours of availability. The only other testimony came from Newcomb and Eastman, both store managers for respondent; neither offered any testimony about why Stanton decided to rescind Hill's hiring. There is also no evidentiary assertion that Hill's hire was rescinded because of her hours of availability; there is merely a letter from Hill's counsel, which mentions the fact that an assertion to that effect was made by Stanton's counsel. Application of the prima facie case analysis therefore leads to the same result as is reached under a direct evidence analysis.

Stanton argued that Hill did not offer any proof, or even allege in her complaint, that she was discriminated against because of arrest record, as opposed to conviction record. It argues that there should therefore be a finding that there was no discrimination because of arrest record. However, the commission believes that Stanton's argument in this respect is wholly without colorable merit. For one thing, arrest record discrimination was expressly alleged in the complaint, on its very first page. For another thing, the record makes it clear that Stanton was made aware of Hill's arrest record (i.e., the record of charges against her which did not result in convictions) by the BGC background report it received, and that subsequent to this it decided to refuse to employ her. Also, the reasonable factual inference from Winter's reference to "multiple drug convictions" is that Winter was motivated not only by Hill's one federal felony drug conviction but also by the records relating to the three Wisconsin felony drug charges. The record of those charges clearly falls within the statutory definition of an "arrest record,"  (2)   if only in that it is "information indicating that an individual has been...charged with...any felony [or] misdemeanor." Arrest record discrimination was thus alleged and proved. 

 Relationship of Hill's convictions to the job - The WFEA provides exceptions to the prohibition of arrest and conviction record discrimination if the circumstances of the charge substantially relate to the circumstances of the particular job. Wis. Stat. § 111.335(1)(b),(c). The explanation that Winter gave Hill, that she "would be a liability to his company due to the fact that there was prescription drugs in the store," could be taken as raising a question of whether there was a "substantial relation" between Hill's cocaine conviction and the sales manager job because both allegedly involved drugs. However, the commission finds that the "substantial relation" defense is not applicable in this case.

With respect to Stanton's discrimination because of arrest record, the "substantial relation" defense is inapplicable as a matter of law. The substantial relationship affirmative defense as it relates to arrest record discrimination is only available to employers when a charge is "pending" at the time the adverse action was taken. Wis. Stat. § 111.335(1)(b), Rowser v. Upper Lakes Foods, ERD Case No. 200300509 (LIRC, 10/29/04). Thus that defense is not available to Stanton insofar as its decision was motivated in part by Hill's record of offenses which did not result in conviction and which were not pending at the time Stanton refused to hire her.

With respect to Stanton's discrimination because of conviction record, the "substantial relation" defense is inapplicable because Stanton has abandoned any reliance on the defense. Stanton originally asserted the "substantially related" defense in its formal "Answer And Affirmative Defenses," in which its then-counsel asserted,

based on the nature of Complainant's conviction and arrest record (sic) regarding theft and drug related offenses, such offenses are substantially related to the circumstances of a position as a sales manager, in that Complainant would have a significant amount of unsupervised time around various prescription drugs present at the Respondent retail store and would have a fiduciary duty to the company and her customers which include handling sums of money.

However, that defense then disappeared from Stanton's case. Thus, Stanton made no claim of or any reference to an alleged "substantial relation" at the hearing, and it conspicuously failed to argue that defense in its post-hearing brief to the ALJ. Most notably, it maintained its silence on that issue even in its response to Hill's brief in chief to LIRC, which had expressly argued that Hill's offenses were not substantially related to the job.

The substantially related defense to a claim of conviction record discrimination constitutes an affirmative defense. Jackson v. Summit Logistic Services, ERD Case No. CR200200067 (LIRC, 10/30/03). As such, it is subject to waiver. Stanton's complete abandonment of that defense is such a waiver in this case. The defense having been waived, it was clearly not established as applicable.

Even if Stanton was still pursuing an argument that there was a "substantial relationship" here, that argument would be deserving of rejection, because Stanton's earlier assertions about the factual predicate for such a defense - specifically, the claimed presence of prescription drugs in the workplace - proved unsupported by the record. Stanton's witness acknowledged that the only thing accessible at a Stanton store that could be categorized as drugs was eye drops used for dilating pupils or for reducing pain from scratched corneas, and that those eye drops were not prescription drugs. This is consistent with the fact that Stanton was staffed with optometrists, whose authority to prescribe drugs is limited to drugs used for ocular therapeutic uses. Wis. Stat. § 449.01(1)(a)2.c.   (3)

The commission is satisfied that there is no basis to find a relationship between the circumstances of Hill's convictions and the circumstances of the position of sales manager at a Stanton store. 
 

Remedy -- The ALJ ordered back pay for the period from August 16, 2011 (the day Hill was initially told she would be starting work) to July 28, 2012 (the day she was injured at Captel), and for the period from November 12, 2012 (the day Hill began working at Go Daddy) to February 2, 2013. The amount ordered was to be based on an annual salary of $28,000 and a commission of $200/week. The ALJ omitted back pay for the period from July 28, 2012 to November 12, 2012, because he found that Hill was unable to work during that period as a result of injuries she sustained while working for another employer (Captel). He ended back pay as of February 2, 2013, because he found that as of that date, Hill had full-time work (through Go Daddy) at $13.50/hour as well as full benefits and that this job was as good as or better than the pay and benefits she would have been receiving at Stanton.

The ALJ also ordered Stanton to "treat the medical bills for the treatment [Hill] received between October 29, 2012 and November 12, 2012, as though she had been a Stanton employee with full medical benefits during that period." This treatment resulted from the health problems Hill had during this period, for which the bills totaled more than $105,000. This was based on the ALJ's finding that Stanton's medical insurance would have covered the medical treatment Hill received for her heart and related problems during that period.

The ALJ ordered Stanton to pay attorney's fees and costs based on an hourly rate of $300, applied to 101.5 hours. This reflected the ALJ's rejection of Hill's request for a $400/hour rate, and his rejection of a number of arguments by Stanton for partial and/or complete reduction or disallowance of fees.

In its briefs attacking the finding of discrimination, Stanton has also raised numerous arguments about the remedy part of the order. Hill also filed a petition for review, raising remedy issues. These are addressed below.
 

Stanton's arguments regarding back pay -- Stanton argues that there should be no back pay at all because even if it did discriminate against Hill because of arrest and conviction record, it would not have hired her in any event because of the limits on her hours of availability.

The law places the burden of proof on this question, on the employer, and it is a significant burden:

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 [ERD Case No. 8021951] (LIRC, July 25, 1986).

Moore v. Milwaukee Bd. of School Directors, ERD Case No. 199604335, (LIRC July 23, 1999).

Stanton has not met its burden on this point. While Hill's hours of availability as shown on her job application did not extend to 7:00 P.M. on two days, there was some evidence of flexibility being shown in regard to such conflicts. More significantly, given the fact that Stanton presented absolutely no evidence that scheduling issues were the actual reason Hill's hiring was rescinded, it must be concluded that its argument to that effect does not rise above the level of speculation. Because of that, the uncertainty is resolved against Stanton, and in favor of Hill.

Stanton also argues that there should be no back pay at all because Hill did not make reasonable efforts to mitigate her damages by looking for comparable work.

Here too, the law places the burden on Stanton:

The burden of proving a failure of reasonable mitigation is on the employer. Bodoh v. U.S. Paper Converters Inc., ERD Case No. 9432221 (LIRC, Nov. 14, 1995), Anderson v. LIRC, 111 Wis. 2d 245, 255, 330 N.W.2d 594 (1983). To meet the burden of proving the affirmative defense of failure to mitigate, the employer must establish that the employee failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that the employee might have found comparable work by exercising reasonable diligence.

Mueller v. Schedulesoft Corp., ERD Case No. 199800215 (LIRC, October 27, 2000).

The commission is satisfied that Hill did make efforts to mitigate her loss of income, by seeking other employment. Her use of online job searching methods was reasonable. The fact that she found two jobs, and was employed for much of the time after Stanton discriminated against her, is indicative of genuine effort. The evidence at least supports a finding that Hill exercised reasonable diligence to obtain replacement income. More to the point, given the allocations of burden here, the evidence does not prove that Hill did not make reasonable efforts to mitigate her damages by looking for comparable work

Stanton also did not even argue, much less establish by evidence, that there was a reasonable likelihood that Hill might have found more comparable work than she did by exercising greater diligence. While Stanton argues that this requirement is not applicable here, citing Smith v. Wisconsin Bell, ERD Case No. CR200800434 (April 19, 2012), Smith is distinguishable in that respect. In that case, the commission first acknowledged that there were two elements required to satisfy the burden, the second being that there was a reasonable likelihood comparable work would have been found; it then effectively recognized a specific exception to that for situations in which an employee "has removed himself entirely from the labor market." In Smith, that was a fair characterization: the employee there made no efforts to find employment, and simply continued the same self-employment activities he had engaged in previously when he was working. In this case, the fact that Hill looked for, found, and worked in two different jobs within the back pay period, precludes any finding that she had "removed [her]self entirely from the labor market."

Stanton also argues that there should be no back pay at all because Hill did not provide evidence as to the amount of her actual interim earnings and therefore the proper offset for interim earnings cannot be determined. The commission disagrees.

Accepting Stanton's argument would effectively result in imposition of a requirement that an employee affirmatively and specifically prove what all their earnings from collateral sources were, or face a complete loss of all back pay. No such requirement has ever been recognized, and the commission does not think it should be.

Whether there should be some rule to deal with cases in which employees hide or refuse to divulge information about interim earnings, this is not such a case. Hill did provide evidence sufficient to allow Stanton to ensure that her back pay is appropriately reduced to reflect earnings she actually obtained during the back pay period. Hill provided the information about where she worked, when, and for what amounts. If further information is necessary to allow proper computation of the amount of back pay due, this can be addressed in the compliance process. See, e.g., Smith v. Wisconsin Bell, supra. If and when the order in this matter becomes final, the commission assumes that the parties will both be acting in good faith to arrive at a proper quantification of the back pay ordered. Assuming such good faith, there is no reason to believe that there will be inadequate information to do so.
 

Medical expenses -- Stanton argues that the ALJ's order for Hill's medical expenses to be reimbursed, should be reversed, because Hill did not prove that those expenses would have been covered under the insurance policy that would have been applicable to Hill.

In respect to the question of whether her expenses would have been covered, Stanton's argument is unsupported by the evidence. The record establishes that if Hill had continued to be employed by Stanton she would have been enrolled in and covered under its UnitedHealthcare insurance, and the UnitedHealthcare "Benefits Summary" document (contained in Ex. 3) shows that if Hill had been thus covered by that policy, the care Hill received at Mercy Hospital in Cedar Rapids would have been covered to at least the "non-network benefits" level, which is generally at an 80% coverage level if not higher.

However, for a separate reason, the commission concludes that the remedy provided in this case should not include payment of the costs of the health care that would have been paid by the insurance Hill would have had. That reason is, that Hill did not take reasonable steps to mitigate her losses by attempting to obtain insurance comparable to that which she would have been covered by if Stanton had not discriminated against her.

An employer that chooses to engage in an act of discrimination can reasonably be expected to anticipate, that their actions may cause financial harm to the individual affected and that they may be ordered to remedy that harm. However, the potential for an additional 6-figure liability arising because an individual discriminated against suffers a major medical issue, not caused in any way by the employer, is not as likely to be anticipated as a predictable consequence. Particularly for this reason, the commission has in this case carefully considered the question of what should be expected of individuals who have been discriminated against, in regard to mitigating the potential for such harm.

The question of mitigation of damages is simply whether, after a legal wrong has been committed causing damage to another party, that party makes reasonable efforts to avoid or lessen the damage. Dude v. Thompson, ERD Case No. 8951523 (LIRC, Nov. 16, 1990). The duty to attempt to mitigate damages is not necessarily limited to mitigating damages caused by loss of pay. The principles and purposes underlying the duty to take reasonable steps to mitigate damages, also reach the situation of an individual who is denied employment which would have provided them with health insurance. They should be considered to have a duty to take reasonable steps to avoid the risk which health insurance itself is designed to protect against: that is, the risk of incurring expenses for medical care beyond one's ability to pay out of regular income. The rationale for this has been stated this way:

Just as the Claimant has an obligation to make reasonable efforts to mitigate the loss of the salary element of damage in this type of cause of action, we hold that he has a similar obligation to mitigate his losses with respect to loss of health insurance benefits also.

Noltemeier v. Illinois, 38 Ill. Ct. Cl. 107, 120 (Ill. Court of Claims, 1981). The commission agrees with this rationale. The most sensible and effective way of mitigating the risks of loss created by lack of health insurance, is to purchase substitute coverage. If this is done, the cost to the complainant of such substitute coverage can then be included as a remedy.

The nature of the options which might have been available to Hill to try to obtain some kind of health insurance after Stanton refused to employ her, need not be explored here. This is because the issue presented is not simply one as to the adequacy of efforts to mitigate: there is no indication in the record that Hill made any efforts to mitigate the losses she would face if she incurred expenses for medical care beyond her ability to pay from her income. In such circumstances, the commission is unwilling to require the respondent to bear the large costs of the unexpected and unpredictable medical expenses incurred by Hill. In addition, because there is no evidence that Hill did purchase any substitute coverage, there is no premium cost to her that requires reimbursement.
 

Stanton's arguments regarding attorney's fees -- Stanton argues that there should be an initial 50% reduction of attorney fees for "partial success" because Hill did not prove arrest record (as distinct from conviction record) discrimination. Stanton could be considered to have waived its right to make that argument, because it did not make it to the ALJ when it was specifically arguing for other fee reductions on other bases. In any event, the commission considers that "partial success" reduction argument to be without merit here. Arrest record discrimination was both expressly alleged in the complaint, and proved. In any event, this situation is just not one to which the "partial success" concept is relevant. See, Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC, 03/14/08).

Stanton also argues that the attorney fees for Hill should be reduced because billing entries were not specific enough, for which it argues there should be a reduction by 2.75 hours. Stanton's objection is to a number of billing entries such as "Write letter," "Telephone conference," etc. Stanton's objection is that in such cases there was no information about what the call or letter was about.

LIRC has endorsed the proposition that "[o]verly general listed activities may be disallowed because they provide no means of evaluating the reasonableness of the activity." Bond v. Michael's Family Restaurant, ERD Case No. 9150755 (LIRC, Mar. 30, 1994). However, it agrees with the ALJ's view in this case, that the challenged entries have adequate specificity. It is unsurprising that attorneys and clients have contact of the type such entries refer to, and it is readily inferable that the subject of the contact is the client's case, most particularly with reference to the issues presented or arising at or just prior to the time of the contact - issues which generally can be identified by other billing entries at that point. In other words, context can allow a sufficient understanding of the general topic of the contact.

In its brief to LIRC, Stanton argues that there should be a 10% reduction  (4)   in the fee that remains because no billing judgment is reflected in the bills.

Attorneys exercise billing judgment by not charging for time that is unproductive, excessive, or duplicative when seeking a fee award. Establishing the exercise of billing judgment "requires documentation of the hours charged and of the hours written off as unproductive, excessive or redundant." "The proper remedy when there is no evidence of billing judgment is to reduce the hours awarded by a percentage intended to substitute for the exercise of billing judgment."

Winget v. Corporate Green, LLC, 2011 U.S. Dist. LEXIS 57852, 12-13 (D. La. 2011), citing Saizan v. Delta Concrete Products Co., 448 F. 3d 795, 799 (5th Cir. 2006).

In Saizan, the court imposed a 35% reduction in hours because of the failure of counsel to show in their fee request that they had made any "billing judgment" reductions in their billing. However, an arguably important feature of Saizan was that in that case the party opposing the fee award specifically identified the areas in which it asserted there were hours not reasonably expended which should have been omitted in the exercise of billing judgment. The reduction the court eventually settled on in that case to account for the failure of the fee request to show any "billing judgment," was in the same ballpark as the total of the hours identified by the other party as allegedly excessive. Here, by contrast, while Stanton has made a "billing judgment" argument, it has failed to specifically identify any billing which it contends should have been reduced on that basis. In effect, it has left it to the commission to do the work of going through the fee request and attempting to analyze the specific entries with regard to reasonableness and necessity. The commission rejects this "billing judgment" argument on the grounds that it is inadequately developed.

Stanton argues that there should be a 5% reduction in the fee because there was no delegation of work to clerks, paralegals or junior associates. This argument includes specific assertions as to 2.5 hours of work that it is argued could have been delegated to support staff. However, in neither of the two briefs in which it argues for this reduction does Stanton provide any legal authority that fees can be reduced on a "failure to delegate" basis. More important, it appears that even if there were such authority, the factual basis for it is absent here. Hill's counsel, Ehlke, responds with the assertion (supported by his "Second Supplemental Affidavit") that his is a small firm that does not employ any junior associates or law clerks and whose only paralegal is used exclusively in support on Workers Compensation matters. There is thus clearly no basis whatsoever for granting this reduction.

Finally, Stanton argues that there should be a 40% reduction in the fee because Hill's counsel billed only in quarter hours. The basis for this kind of reduction is that quarter-hour billing inflates the hours total because the "rounding up" typical in billing has a larger effect when the billing increments are larger. See, Montanez v. Chicago Police Officers, 931 F. Supp. 2d 869, 885, n.12 (ND Ill 2013), LaSalvia v. City of Evanston, No. 10 C 3076, 2012 U.S. Dist. LEXIS 89434, 2012 WL 2502703 (ND Ill. June 28, 2012).  (5)

In Montanez, however, the court rejected the request for a quarter-hour billing reduction because the defendant did not do the kind of analysis used in LaSalvia. The Montanez court said:

In this case, Defendants have not provided sufficient analysis of the billing entries and their financial impact to allow the Court to determine whether such billing caused an inflated lodestar.

That is the case here: Stanton has not done an analysis of Ehlke's bill that would allow a determination of how quarter-hour entries may have inflated the bill. The commission rejects Stanton's argument on this point because, as in Montanez, "[d]efendants have not provided sufficient analysis of the billing entries and their financial impact."
 

Hill's arguments regarding back pay -- Hill argues that the amount of back pay ordered should be greater. This is based on a number of different assumptions and/or findings than those made by the ALJ.

The ALJ's back pay order effectively provides for an assumption that Hill would have been paid a salary of $28,000/year and would have received commissions of $200/week. It is undisputed that that salary figure is what Hill was offered. Hill agrees with the salary figure, but wants an assumption of commissions of $250/week, that figure being the average of the range of $100 to $400 testified to by Newcomb. It is not clear why the ALJ used the $200 figure; the commission does note though, that he made an actual finding that store managers received commission of $100-$400/week. The average of that range being $250, the commission adopts that figure instead.

A much more financially significant issue is presented by Hill's argument that, based on the experience of other sales managers at Stanton, she would have been promoted from sales manager to store manager within 3 to 5 months of being hired. She asserts in support of this that every sales manager hired by Stanton in the Madison area in recent years has been promoted to a store manager position within 3 to 5 months of starting. The significance of this is that as a store manager, she would have earned a salary of $37,500/year and bonuses of $475 per week.

The normal assumption is that the complainant's salary would remain the same, and it is the complainant who bears the burden of establishing that her earnings would have increased. Kaczynski v. WSR Corporation/Whitlock Auto Supply, ERD Case No. 9350108 (LIRC, October 29, 1997), citing, Holbrook v. Coffee Systems, Inc., (LIRC, April 10, 1992). Thus Hill should be considered to bear the burden of proving that she would have been promoted to a store manager position.

There was no evidence of a formally established system by which sales managers were regularly promoted to store managers; there is only the circumstantial evidence as to what happened in individual cases. The commission has carefully considered the evidence in the record as to the other individuals who were in sales manager positions at various points. It finds the record not sufficiently persuasive to carry Hill's burden of proving that she would have been promoted.

The issue as to what time periods Hill should get back pay for, is complicated by the periods in which Hill was physically unable to work, first as a result of her injury at Captel, and then as a result of her health problems in late October 2012.

The ALJ's findings and his back pay order reflect assumptions that Hill was unable to work during -- and thus not entitled to any back pay for -- the entire period from her July 28, 2012 injury at Captel through to her starting to work for Go Daddy on November 12, 2012.

Hill argues that she should get back pay for this entire period. Her argument appears to be that (1) if she had not been discriminated against she would never have been working at Captel and thus would not have been injured there, (2) there is no reason to believe that her Captel injury would have disabled her from doing her Stanton work, and (3) Stanton provided workers compensation coverage and also provided sick leave and there is no reason not to believe that, if she had fallen and injured herself at Stanton, she would have continued to receive the equivalent to her full pay. Hill's argument in this regard is hardly any more developed than the summary of it here, and it is accompanied by no authority.

Trying to determine a logical approach to restoring Hill to the position she would have been in but for the discrimination is difficult, because while the Captel injury would not have happened at all if the discrimination had not caused Hill to go to work there, it did in fact happen, and that fact cannot now be undone.

The commission believes that the best way to approach the period from July 28, 2012 to November 12, 2012, is to give weight to the fact that, to the extent the Captel injury caused actual inability to work on Hill's part during the period from July 28, 2012 to November 12, 2012, it was effectively the fault of Stanton, in that the injury was incurred in employment that Hill was engaging in only because of the discrimination. "But for" the discrimination, Hill would have been uninjured, capable of working, and working for Stanton during that period. Also, the commission is not convinced by the argument that there was an unreasonable failure to attempt to mitigate loss of income damages during this period. For these reasons, it agrees with Hill's argument that, with exceptions noted below, back pay should be paid for this period.

One exception is, that it is reasonable to allow Stanton to offset any back pay due for this period by the amount of workers compensation disability payments Hill received. While this amount is not in the record, it is the kind of thing as to which confirmation should be easily and reliably obtainable in the compliance process. Another exception is, that it is also reasonable that back pay liability should be deemed suspended during the two weeks in late October and early November 2012 during which Hill was in and out of the hospital. This differs from the Captel injury matter, in that Hill's health problems at this point were not caused in any sense by the discrimination, and would presumably have occurred even if Stanton had not discriminated against her. It is a reasonable inference that Hill was temporarily unable to work during that period. These considerations are reflected in the commission's order. 
 

Termination of the back pay period -- The ALJ found that "in February 2013" Hill began receiving benefits in her Go Daddy job and got a pay raise to $13.50/hour, and that as of that point her job at Go Daddy was as good as or better than what she would have been receiving at Stanton, and that this therefore ended back pay liability. The ALJ's failure to even mention reinstatement in his decision suggests that he intended that the right to reinstatement would also be considered cut off as of that point. This appears to reflect the ALJ's (unarticulated) application of the rule that if a person obtains alternate employment with a higher wage in a position which he would have accepted even if he had been employed by the original employer, then the subsequent employment terminates the original employer's liability for back pay and reinstatement. See, Anderson v. UW-Whitewater, ERD Case No. 8133525 (LIRC, Feb. 16, 1983); aff'd. sub nom. UW-Whitewater and Anderson v. LIRC, Case No. 83-CV-1351 et al., Dane Co. Cir. Ct., June 4, 1984.

In her briefs Hill does not directly assert that the Anderson v. UW-Whitewater rule is wrong, or that it was not satisfied here because there was no evidence that she would have taken the Go Daddy job even if she was working in the job at Stanton. She simply asserts that the loss of earnings she suffered as a result of the discrimination was greater than that contended by Stanton (primarily because Hill argues she would have been promoted to store manager) and that her financial loss thus should be considered to continue to the present time.

It appears that the ALJ may have arrived at his holding in respect to this issue, based on a concession made by Hill during her testimony at the hearing.  (6)    However, both Hill and her counsel had made a different concession at a prior point in the hearing.  (7)   Furthermore, the ALJ's decision that as of February 2013 Hill's position at Go Daddy was equivalent to what her position would have been at Stanton, is not supported by the evidence as to rates of pay: Hill would have been earning significantly more at Stanton as of that point.

Having carefully considered the evidence as to pay and benefits Hill would have received at various points, and giving particular weight to the concession by Hill and her counsel (see Note 7), the commission is satisfied that as of June 27, 2013, Hill's position at Go Daddy was at least as good as the position she would have had at Stanton. For these reasons, it is appropriate to consider the back pay period to have been terminated as of June 27, 2013. As a result, no order of reinstatement is provided for. 
 

Hill's arguments concerning attorney's fees -- Hill sought $400/hour as a rate for attorney's fees; the ALJ reduced that to $300 based on the failure of Hill's counsel, Ehlke, to submit a supporting affidavit from any attorney other than Ehlke himself. Hill argues that an hourly attorney fee rate of $400 should be allowed because the failure to submit affidavits supporting that rate has been corrected by his submission of such affidavits with his brief to LIRC.

The initial fee request submitted by Hill's attorney, Ehlke, to the ALJ, was supported only by Ehlke's affidavit. With respect to the matter of the hourly rate, that affidavit said only this:

I am reliably informed and believe that the hourly rate I have requested, $400 per hour, is reasonable, if not somewhat low for someone with my experience and ability.

What is conspicuously absent here is any indication (as might be provided by affidavits from them) that other attorneys of skill and ability comparable to Ehlke, charge that rate to clients.

The absence of these things is not only conspicuous, but surprising, because Ehlke should have known they were necessary. In a number of cases, see e.g. Harper v. Menard, ERD Case No. CR200602401 (LIRC, Sep. 18, 2009), Roytek v. Hutchinson Technology Inc., ERD Case No. 199903917 (LIRC, Feb. 15, 2005), LIRC has said:

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.

(emphasis added).  (8)   Notably, this has included at least one case in which Mr. Ehlke himself was counsel for the complainant, see, Van Den Elsen v. Brown County, ERD Case No. CR200100007 (June 14, 2005), and in which he was taken to task by LIRC for failing to submit affidavits from other attorneys in the locality supporting his requested rate. In that case, LIRC upheld the ALJ's decision to reduce the rate allowed for Mr. Ehlke from the $300/hour which he sought, to $200/hour.

The only factor distinguishing this case from Van Den Elsen was that here, Ehlke finally did file affidavits from other attorneys, after the case reached LIRC. Stanton argues that these affidavits should not be considered because considering affidavits filed after the ALJ issued his decision would be like considering evidentiary material not submitted at hearing.

The commission does not find it necessary to resolve that issue, because it believes the affidavits are insufficient in any event.

The affidavits, one from Colleen Bero-Lehman (a member of Ehlke's firm) and one from Marilyn Townsend, are similar in what they include. After a description of the affiant's legal education and experience, the affidavits assert familiarity with the fees charged by attorneys in the Madison area who practice in discrimination law and familiarity with the experience and work of Attorney Ehlke, and they then close with assertions about Ehlke's hourly rate. With respect to that last matter, Bero-Lehman avers:

In my experience the hourly rate charged by Attorney Bruce Ehlke of $400.00 an hour is well within the average rate charged by attorneys of similar skill, experience and reputation in the community.

and Townsend avers:

Based on my familiarity with the hourly rates charged by attorneys who litigate civil rights cases in Wisconsin, it is my opinion that the $400 per hour rate sought by Attorney Bruce Ehlke in this case is well within the range of hourly rates charged to paying clients by attorneys of similar experience, skill, reputation and ability in this community.

Notably, these affidavits from other attorneys lack any averments about what the affiants themselves actually charge their clients. They also lack any averments about what other attorneys in this area charge their clients. While they aver that $400/hour is "within the average" or "the range" charged by comparable attorneys, they do not describe what that range or average is. These affidavits are of less persuasive value than if they had included such information.

Another problem is that there is also no indication from Ehlke as to whether he actually charges the rate he is seeking, to clients. As noted above, Ehlke's initial affidavit contained no assertion that Ehlke typically charged $400/hour or that it was his normal hourly rate. Neither of the Supplemental Appendixes that he submitted after the matter came to LIRC provided such an assertion. The client invoices which were attached to these affidavits reflect only the number of hours of work done in each billing period, not the charges made to the client. The single summary page which is attached at the end of the collection of client invoice pages, and which does reflect a rate of $400/hour, contains nothing indicating it was sent to the client (Hill) as or with the invoice, and the affidavit does not so aver.

In Van Den Elsen, the same situation was presented: Ehlke had submitted an affidavit that stated that it was being submitted in support of a request for an award of fees using a particular hourly rate, and that Ehlke believed that the hourly rate he had requested was reasonable, but the affidavit nowhere asserted that Ehlke actually charged clients the rate he was seeking. In its decision in that case, LIRC declined to give Ehlke the rate he sought, expressly noting that:

In Roytek v. Hutchinson Technology Inc., supra, the commission specifically rejected the notion that an attorney can reasonably request an hourly rate of reimbursement upon securing a favorable judgment which exceeds the rate the attorney habitually charges clients for legal services. The term "prevailing market rates," upon which reasonable fees are calculated, refers to the rates actually charged for legal services in a community. Since the rationale for permitting the complainant to recover his reasonable attorney fees and costs is to make him whole for the discrimination he has suffered, the commission sees no basis to award fees in excess of what the attorney actually charged the complainant or, where the attorney has not billed the complainant for his services, would charge other paying clients.

The commission believes that Ehlke's failure to make any assertion that he actually charges $400/hour warrants rejection of his argument that his fees should be computed based on that rate.

Finally, there is the matter of Hill's attorney's fees in connection with the proceedings on LIRC review. Hill's request was submitted with Hill's brief to LIRC. By the commission's computations, it appears that 22.75 hours were sought. In its subsequent reply brief to LIRC, Stanton raised no objection to the number of additional hours sought. Considering that LIRC's briefing schedule had expressly provided that the respondent was to "include any objections to complainant's request for additional attorney's fees in its reply brief," Stanton's failure to make any objections can be considered a concession as to the reasonableness of the number of additional hours requested. The commission also finding the request reasonable, it is allowed, albeit at the $300/hour rate as determined above.

Finally, there is the matter of the complainant's attorney's fees in connection with the proceedings on LIRC review.

The complainant's initial request for attorney's fees in connection with the proceedings on LIRC review was submitted in the form of a "Supplemental Affidavit" of Attorney Ehlke, filed shortly before the filing of the complainant's brief in chief to LIRC. This "Supplemental Affidavit" did not separately total the fees sought in connection with the proceedings on LIRC review; instead, it accumulated the fees sought for LIRC review with the fees sought for the earlier proceedings, and provided one overall total figure. However, from the total figure thus set out and the hours shown on the billing statements, it was possible to determine that the "Supplemental Affidavit" sought fees for an additional 22.75 hours of services, provided from November 12, 2013 through January 22, 2014.

Thereafter, a further request for attorney's fees in connection with the proceedings on LIRC review was submitted in the form of a "Second Supplemental Affidavit" of Attorney Ehlke, filed shortly after the filing of the complainant's reply brief to LIRC. Again, this "Second Supplemental Affidavit" did not separately total the additional fees it sought, but it was possible to determine that it sought fees for an additional 27.25 hours of services, provided from January 23, 2014 through February 10, 2014.

In Stanton's reply brief to LIRC, which was filed after the complainant's initial request (its "Supplemental Affidavit") for attorney's fees in connection with the proceedings on LIRC review, Stanton raised no objection to the additional hours sought in that request. Considering that LIRC's briefing schedule had expressly provided that the respondent was to "include any objections to complainant's request for additional attorney's fees in its reply brief," Stanton's failure to make any objections can be considered a concession as to the reasonableness of the number of additional hours requested. The commission also finds that the 22.75 hours requested by the "Supplemental Affidavit" was reasonable for the services it involved.

Again, after the complainant filed her second request ("Second Supplemental Affidavit") for attorney's fees in connection with the proceedings on LIRC review, Stanton raised no objection to the additional hours that request sought. The commission also finds that request reasonable for the services it involved, albeit with one exception. Totaling the hours reflected on the billing statements for the period from January 23, 2014 through February 10, 2014, the commission arrives at 26.25, not 27.25.   (9) Therefore, the commission will allow that lesser amount of hours.

Finally, in the "Motion Regarding Attorney Fees," the complainant requests a further fee award beyond that addressed above. Specifically, the complainant seeks 6.75 hours asserted to have already been expended since February 10, 2014 and through September 30, 2014, for "providing advice and counsel to [the complainant]" regarding this case. Furthermore, the complainant asserts that "it is anticipated that, including the two hours' work on the instant Motion, an additional 7 – 9 hours of time will be required in order to work on and reach agreement regarding the back wages calculations and to bring this case to a conclusion, assuming all goes smoothly and there is no appeal."

The billing entries for the period after February 10, 2014 which the complainant has submitted, which total 6.75 hours, include only 2 hours post dating LIRC's decision. Presumably, this is the "two hours' work on the instant Motion" that are referred to in the complainant's recent request. The remaining hours are for services that would not have been incorporated into an award in any event. The commission will allow an additional 2 hours of work post-dating its September 26 decision, connected with the instant motion and necessitated by the mistake being corrected herein. The other hours, including the "anticipated" hours of services that have not yet even occurred, are not allowed.

In summary, the amounts described above result in an award of 101.5 hours for services provided during the period from August 22, 2011 through October 17, 2013, plus 22.75 hours for services provided during the period from November 12, 2013 through January 22, 2014, plus 26.25 hours for services provided during the period from January 23, 2014 through February 10, 2014, plus 2 hours for services in connection with the "Motion Regarding Attorney Fees," for a total of 152.5 hours, at a rate of $300/hour, resulting in a total fee award of $45,750, plus expenses in the amount of $592.80, for a total of $46,342.80. That amount is provided for in paragraph 5 of LIRC's Order as indicated above.  

cc:
Bruce F. Ehlke, Attorney for Complainant
Katherine M. Gaumond, Attorney for Respondent


Note:  The decision is reproduced here as affected by a corrective modification issued by the commission on October 14, 2014.  The modification also reflected a change of the complainant's name to Amy Martin. 

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Footnotes:

(1)( Back ) It is found that the BGC report was inaccurate in this respect for two reasons. First, Hill directly testified that she was convicted of the misdemeanor child endangerment charge but not on the felony charge, and this testimony is considered to be credible. Second, given the sentence imposed, it is more reasonable to believe that the conviction had actually been entered on the lesser, misdemeanor, "resulting in no injury" charge.

(2)( Back ) See, Wis. Stat. § 111.32 (1).

(3)( Back ) The commission notes that Stanton's current counsel has affirmatively argued, that there were no prescription drugs on the premises of its stores. Its theory apparently is, that this shows that Hill was not credible when she testified that Winter told her that she would be a liability to his company due to the fact that there were prescription drugs in the store. This theory depends on an assumption that Winter was being truthful when he told Hill that. Of course, there is another possibility: that Winter was being disingenuous, using an inaccurate claim about the presence of prescription drugs as an excuse for conviction record discrimination. The commission finds this more likely.

(4)( Back ) As with the matter of its request for a "partial success" reduction, Stanton could also be considered to have waived its right to seek anything more than a 5% "lack of billing judgment" reduction, given that 5% is all it requested from the ALJ on that basis.

(5)( Back ) The effect is explained this way in LaSalvia:

As compared to tenth-hour billing, quarter-hour billing inflates an attorney's actual time by a maximum of 9 minutes. The greatest inflation occurs when the lawyer works for one minute and rounds up: under the tenth-hour convention, the lawyer would bill .10 hours, or six minutes (5 minutes too many), under the quarter-hour convention, the lawyer would bill .25 hours, or fifteen minutes (14 minutes too many).

(6)( Back ) Hill testified that "[w]hen [she] had benefits" -- which occurred in February 2013 - "to me it would be equivalent." (T. 82)

(7)( Back ) Regarding the June 27, 2012 date on which Hill's pay raised to $18/hour, Hill had testified, and Hill's counsel made the following concession:

ALJ: As of [June 27, 2013], do you dispute that - are you claiming that the job is not comparable for - is it as good or better a job in pay was what you would have been working at Stanton Optical?

HILL: I believe now it's a better job than I would have, but I just received a raise effective --

ALJ: So at least as of that date, Mr. Ehlke, is there a date that you're viewing her work as comparable to that at Stanton?

MR. EHLKE: As of the date of the raise, the job is as good or better than. (T. 80).

(8)( Back ) In so holding, LIRC has relied on and followed Blum v. Stenson, 465 U.S. 886, 896, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), in which the U. S. Supreme Court stated that the burden is on the fee applicant to produce satisfactory evidence, in addition to the attorney's own affidavits, of market comparability.

(9)( Back ) It appears possible that this discrepancy is a result of the fact that, on the copy of the billing statements which was included with the "Second Supplemental Affidavit" filed with LIRC, the number of hours shown for the services rendered on February 10, 2014, is illegible. However, the commission will not base an award of fees on speculation that, on a better copy of the billing statement, a number might have been legible there. Hill provided the commission with billing statements on which there was no legible indication of hours of service on February 10, 2014, and the commission will make its determination on the basis of what was submitted.


uploaded 2014/10/14