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

JEFFREY NAILL, Complainant


ERD Case Nos. 199404088, 199600370
EEOC Case Nos. 26G950186, 26G960645

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Delete the fourth and fifth numbered paragraphs of the ALJ's "ORDER," and substitute:

"4. That as reasonable attorney fees and costs for the portion of ERD case no. 199404088 for which the complainant prevailed, the respondent shall pay the Complainant $4,281.10 ($4,000 with respect to the hearing before ALJ Brown and $281.10 for review before the Commission.) The amount shall be paid by check made payable jointly to Jeffrey Naill and James G. Birnbaum."

"5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."


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

Dated and mailed: February 12, 1999
nailje.rsd : 101 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


The respondent disciplined the complainant following a complaint from a subordinate and rejected the complainant for several jobs for which he applied. The complainant contends these adverse employment actions were the result of discrimination on the basis of his sex, his age, and for opposing an alleged discriminatory demotion of a coworker, all in violation of the Wisconsin Fair Employment Act (WFEA).

The ALJ dismissed all but one of the complainant's claims. With respect to the claim he did not dismiss, the ALJ found that the respondent committed unlawful discrimination on the basis of sex by denying the complainant certification to compete for the position of instructor in business administration/human resource management. Both the complainant and respondent have appealed.

1. McDonnell Douglas analytic framework.

The basic allocation of burdens and order of presentation set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1972) is used in analyzing cases of employment discrimination under WFEA. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172 (Ct. App. 1985). An employe alleging age or sex discrimination with respect to termination from employment makes a prima facie case by showing: (a) he is in the protected class (for age, that is forty or older), (b) he was discharged, not hired, or treated adversely with respect to promotion, compensation or terms and conditions of employment, (c) he was qualified for the job, and (d) he was either replaced by someone not within the class or others not in the class were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173 (Ct. App. 1985). In the context of a hiring decision, the final criterion is whether the complainant was rejected under circumstances which give rise to an inference of unlawful discrimination. Larson v. DILHR, case no. 96-0013-PC (Wis. Personnel Comm'n, January 22, 1989).

An employe alleging retaliation for opposing a discriminatory practice makes a prima facie case by showing that (a) he was engaged in statutorily-protected expression, (b) he suffered an adverse action taken by the employer, and (c) there was a "causal link" between the protected expression and the protected action. Callaway v. Madison Metro. School Dist., ERD case no. 9101304 (LIRC, 11/27/96). The causal link consists of evidence showing that a retaliatory motive played a role in the alleged adverse action, and may be established simply by the short period of time between the protected action and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 340 (Ct. App. 1989).

In this case, the respondent articulated legitimate nondiscriminatory reasons for the various employment actions it took. (1) It contends its handling of the sexual harassment complaint against the complainant was justified by the facts and was necessary to maintain discipline in the workplace. It asserts that its hiring decisions were not motivated by sex or age, but by the superior qualifications of the other candidates.

Technically, if an employer articulates a legitimate nondiscriminatory reason for a discharge, the issue of whether the employe has made a prima facie case becomes moot. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 31 FEP 609, 611 (1983); Gentilli v. Badger Coaches, ERD case no. 8601411 (LIRC, July 12, 1990), affirmed Gentilli v. LIRC, case no. 91-0454 (Wis. Ct. App., October 24, 1991). Once such a reason is articulated, the burden of proof reverts to the complainant to show this reason is a pretext for discrimination. Puetz Motor Sales, supra, 126 Wis. 2d at 172.

If the articulated nondiscriminatory reason is not credible or unworthy of belief, this may simply prove a pretext (which by itself would not satisfy the complainant's burden) or it may serve double duty and prove a pretext for discrimination. Kovalic v. DEC International, 186 Wis. 2d 162, 167-69 (Ct. App. 1994). In other words, a factfinder's disbelief of an employer's proffered nondiscriminatory reason for an employment false permits the trier of fact to infer the ultimate fact of intentional discrimination without additional proof. St. Mary's Honor Center v. Hicks, 509 U.S. , 62 FEP Cases 96, 100 (1993). Whether the respondent's asserted reasons for the actions it took in this case were a pretext for discrimination is the primary issue in this case.

2. ALJ's findings of no discrimination.

The commission first considers the respondent's actions in disciplining the complainant based on Ms. Thomas's complaint that the complainant treated her unfairly at work because of their personal relationship. The complainant contends that employes of the respondent dated one another all of the time, that there have been instances when women dated men whom they supervised, that none of those women were disciplined, and that he would have not been disciplined if he had been a woman.

However, this argument misses two points. First, the complainant and Ms. Thomas were not "dating" (but rather he had attempted a romantic relationship and been rebuffed). Second, the complainant was disciplined for not allowing Ms. Thomas to take a proctoring assignment, not for the relationship itself. Regardless of whether the complainant agrees with the way the discipline was handled or with the language used to reprimand the complainant, the commission is satisfied that the respondent's actions in that matter were not based on sex or age. Because the disciplinary process was essentially over by the time the complainant raised his concern about Dean Frank's demotion, the complainant's claim based on retaliation also may not be sustained.

The commission acknowledges that younger women were hired for the employment positions that the complainant sought. However, the commission is persuaded that the hiring decisions, with the one exception found by the ALJ, were not based on sex, age or the complainant's opposition to Dean Frank's demotion. As the ALJ concludes, because of the number of different staff involved in the selection decisions for most of the positions involved, the hiring process was insulated from any retaliation for the complainant's opposition to Dean Frank's demotion.

Beyond that, a fair appraisal of the record indicates that candidates with equal or superior credentials were chosen either for the job or to proceed further in the interview process than the complainant. In reaching this conclusion, the commission's focus is not on how the complainant or the commission views the complainant's qualifications in comparison to the other candidates, but on how the respondent perceived them. Wiehaupt v. AMA, 874 F.2d 419, 428, 49 FEP Cases 1162, 1169 (7th Cir. 1989). By the same token, courts generally decline to dictate what factors an employer may use to judge between employes or job applicants, so long as the factors are considered in good faith and are not discriminatory. Legro v. County of Langlade, ERD case no. 8801033 (LIRC, 3/20/99), and Wiehaupt, supra, at 49 FEP Cases 1169-70.

As the ALJ pointed out in his carefully-reasoned decision, the respondent could reasonably conclude that Ms. Sopher and Dr. Ruhland were more qualified for the dean position than the complainant. Likewise, the successful candidate for the Advancement Manager position had more recent grant-writing experience than the complainant, as well as other relevant experience he lacked. The ten individuals who were chosen to proceed in the selection of the Vice President of College Relations nearly all had more fund-raising experience than the complainant. Moreover, the ten individuals selected to proceed included seven males, and at least two of the individuals were the complainant's age or older.

The commission also agrees that the respondent could reasonably have considered Dr. Mumford as the superior candidate for interim dean. She had a doctoral degree, eventually became a dean (albeit of a much smaller department) in her own right, and, unlike the complainant, was not embroiled in the continuing "computer dispute" in the business department. Further, while the commission acknowledges that vice president Hamilton tried to deny it, the ALJ concluded that Mr. Hamilton's decision was based in part on Ms. Thomas' unresolved complaint against the complainant. The commission agrees with the ALJ's reasoning on this point, and finds it reasonable to consider such a complaint in selecting the interim dean. Once the complaint was resolved, and Dr. Mumford and her home economics department had departed the scene, the respondent in fact made the complainant interim dean.

In short, the commission sees no basis for a finding of illegal discrimination, based either on sex, age, or opposition to a retaliatory practice with respect to any of these hiring decisions. The record does not indicate that as a class males were excluded or discriminated against at any step of the selection process for any of those jobs. The commission also notes, as did the ALJ in finding number 57, that since 1985 the respondent has filled 27 of 44 college administrative positions with males, 18 of whom were over 40 and 7 of whom were over 50.

3. ALJ's findings of discrimination.

This leaves the situation for which the ALJ did find illegal discrimination on the basis of sex: the certification for the business administration/human resources management instructor position. The ALJ's decision, and the focus of the parties on review, turns on the decision of the respondent's certification officer, Kenneth Baltz, not to ask the complainant about his personnel-related experience directly, when he did contact Ms. Hoveland-Belden about hers.

The respondent first asserts that the complainant cannot prevail on this claim because he has not established he is a member of a protected class, and thus cannot make a prima facie case. Assuming, of course, the prima facie case analysis is required in the face of the complainant's articulation of a non-discriminatory reason for the complainant's non-certification, (2) the commission must conclude the complainant has made a prima facie case. As a male, he is in a protected class in a sex discrimination case. He has shown he was treated adversely by being denied certification. He was qualified to have his credentials considered for certification. A female candidate was treated more favorably, in that Mr. Baltz contacted her by telephone to seek elaboration on her credentials but did not contact the complainant.

The respondent, however, contends that males are not necessarily members of a protected class in sex discrimination cases. In order to prove that he is a member of a protected class, the respondent asserts, the complainant must show that the respondent is "that unusual employer" that discriminates against the majority. In support of this proposition, the respondent cites two cases decided under Title VII of the federal Civil Rights Act: Jones v. Slater Steel Corporation, 660 F. Supp. 1570, 1575, 43 FEP Cases 1657, 1659-61 (N.D. Ind. 1987) and Parker v. B&O R.R. Co., 652 F.2d 1012, 1017, 25 FEP Cases 889, 893-94 (D.C. Cir. 1981).

The commission acknowledges that federal cases under Title VII may be considered in the interpretation of WFEA. However, the commission cannot conclude that WFEA requires males to make the "unusual employer" showing to establish a prima facie case of sex discrimination. First, the Jones court's statement that "similar heightened standards have been articulated by a variety of courts," Id., at 43 FEP Cases 1661, followed by citation to only three federal court of appeals cases including Parker, itself suggests that the "heightened standard" or "unusual employer" rule is not the majority rule. Second, the "unusual employer" rule, as articulated in Parker, at least, relies on language in McDonnell Douglas, supra, at 411 U.S. 792, 802, 5 FEP Cases 965, 969, which states that a black job applicant could make a prima facie case by showing "he belongs to a racial minority." However, the U.S. Supreme Court itself later characterized this language from McDonnell Douglas as "set out to demonstrate how the racial character of the discrimination could be established in the most common sort of case, and not as an indication of any substantive limitation of Title VII's prohibition of racial discrimination." McDonald v. Sante Fe Trail Transp. Co., 427 U.S. 273, 12 FEP Cases 1577, 1579, note 6 (1976). The Supreme Court went on to hold that "Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes...." Id., at 12 FEP Cases 1580.

Beyond that, of course, the commission and the courts of this state have previously applied the sex discrimination provisions of the WFEA in cases involving males. See, for example, Health Enterprises of Wisconsin, Inc. v. LIRC and LeConte, case no. 95-2584 (Wis. Ct. App. July 3, 1996); Rathsack v. Crescent Woolen Mills, ERD case no. 8205822 (LIRC, 09/25/84); and Scheidel v. American Council of the Blind, ERD case no. 7905740 (LIRC, 4/6/82). The commission's research has not disclosed any instance where the heightened standard or unusual employer standard was applied in a WFEA case involving a claim of sex discrimination by a male, nor has such a case been cited by the respondent.

The respondent next contends that, assuming the complainant has made a prima facie case, it has articulated a legitimate nondiscriminatory reason for treating Ms. Hoveland-Belden differently than the complainant. Specifically, the respondent contends that the person who made the certification decision, Mr. Baltz, reasonably determined that the complainant's experience in human resources or personnel matters was facially- inadequate based on his review of the certification documents, while Ms. Hoveland-Belden's was not. For this reason, Mr. Baltz acted reasonably when he contacted Ms. Hoveland-Belden about her experience during the certification process, but not the complainant. The respondent goes on in its brief to favorably contrast Ms. Hoveland-Belden's experience with the complainant's.

However, Mr. Baltz testified on cross-examination that none of the job titles in Ms. Hoveland-Belden's resume mentioned human resources. He admitted that Ms. Hoveland-Belden's resume, while showing 17 years of administrative, supervisory, budgetary and policy experience, said nothing about personnel experience. He acknowledged that the complainant had all of those same qualifications, presumably from his employment with the respondent. He also acknowledged that simply because a person served as a chief executive officer of an operation does not necessarily mean he or she could be certified to teach human resources management.

Mr. Baltz also testified that he defined human resources or personnel experience as working as a human resource person. A human resource person, he testified, works in a personnel office and determines policies, procedures, equal opportunity, and affirmative action. Mr. Baltz indicated he could not count supervisory experience as personnel experience if the job complainant obtained supervisory experience with an employer that has a separate personnel office.

Mr. Baltz acknowledged that the complainant had been employed by the respondent for a number of years in a supervisory capacity. However, the complainant's experience working for the respondent could not be considered "human resources experience" because the respondent had a separate personnel department. The evident difference between the complainant's experience and Ms. Hoveland-Belden's experience is that the entities which she worked for did not have separate personnel offices.

However, when discussing Ms. Hoveland-Belden's resume, Mr. Baltz indicated that a chief executive officer could qualify for human resource management experience simply by supervising personnel. Mr. Baltz admitted he did not know what type of work the complainant had performed at Jewel Food Corporation, so would not know about the type of management experience that may have been involved. Nor did he contact the complainant to discuss the complainant's potential human resources experience through his ownership of the Pink Cadillac tavern. Although Mr. Baltz testified he spoke with the complainant prior to denying his certification, his testimony indicates the two discussed the complainant's job history only after the certification had been denied.

The commission also conferred with the administrative law judge about Mr. Baltz' testimony. The ALJ indicated that Mr. Baltz appeared uncomfortable during both days of his testimony, and left the ALJ with the impression that he was not entirely forthcoming during examination. The commission acknowledges that witnesses may appear nervous or uncomfortable while testifying for any number of reasons, many of which have nothing to do with credibility. However, the ALJ's negative demeanor impressions are another factor supporting his decision.

The commission realizes that, after excluding his experience while working for the respondent, the complainant's resume may not have appeared as strong as Ms. Hoveland-Belden's. However, Mr. Baltz was not responsible for deciding which of the two candidates to hire. Instead, he was performing the preliminary step of determining whether the candidates could be provisionally certified to teach the course in question. He reviewed two resumes of two individuals. Neither individual's resume clearly established the individual could be certified; both resumes included information relevant to the certification process. Mr. Baltz contacted the female job candidate directly to inquire about her experience, but did not contact the male candidate. His explanation about why he treated the candidates differently, and his demeanor while testifying to that explanation, were not persuasive. In sum, the commission, like the ALJ, does not credit the respondent's articulated nondiscriminatory reason for treating the complainant less favorably than Ms. Hoveland-Belden. The commission concludes the articulated reason was a pretext for discrimination, and infers unlawful discrimination on that basis. (3)

4. Attorney fees.

The last question is whether the complainant is entitled to attorney fees for the appeal and, if so, in what amount. The complainant's attorney has submitted a fee petition for costs and fees incurred for the appeal to the commission in the amount of $3,820.56. The respondent contends that it should not be liable for fees because it is a state agency, citing DeShon v. Department of Regulation and Licensing, ERD case no. 9202461 (LIRC, January 12, 1996). DeShon, in turn, relies on Dept. of Transp. v. Wis. Personnel Comm., 176 Wis. 2d 731, 738 (1993) in which the court denied fees against the state department of transpiration in a WFEA case, observing that "express statutory authority is required in order to tax costs and attorney fees against the state" and that no such legislative authorization existed.

Like the ALJ, however, the commission is satisfied that the respondent is not an agency of the state. The definition of state agency in Wis. Stat. 111.32(6)(a) includes, among other things, "independent agencies." Admittedly, the "technical college system board" created under Wis. Stat. 15.94 is an independent agency. However, the respondent is "exclusively controlled" by a district board, (4) and Wis. Stat. ch. 38 does not indicate that the respondent or the controlling district board are state agencies. Nor are the district boards listed, either as independent agencies or as boards attached to the technical college systems board, in Wis. Stat. ch. 15, which governs the structure of the state executive branch. Simply because an entity is created by state law does not mean it is "in state government" within the meaning of Wis. Stat. 111.32(6)(a). Indeed, the Personnel Commission has previously concluded that technical colleges like the respondent are not state agencies in Jacquelyn Thomas v. Madison Area Technical College, case no. 95-0065-PC-ER (Wis. Personnel Comm'n August 4, 1995). (5)

That question resolved, the final issue is the amount of fees to award. Because the complainant did not prevail on his petition for review, no fees may be ordered for the time spent by the complainant's attorney, Dawn Marie Harris, on preparation of the complainant's petition and brief supporting that petition. However, the complainant was successful in his defense against the respondent's petition for commission review and is entitled to attorney fees and costs associated with responding to the respondent's petition.

According to Ms. Harris's fee petition, she spent 2.30 hours from June 24 though July 10, 1998, working on the complainant's successful reply brief to the respondent's petition for review. Ms. Harris's hourly rate for services is $100, according to her petition. The respondent's attorney concedes these figures are reasonable. The commission finds them reasonable as well, and orders them paid together with one-half of the costs for photocopying and mailing (on the assumption one-half of those charges were associated with the complainant's own petition.) The commission therefore awards the sum in fees ($230) and costs ($51.10) of $281.10.


Pamela I. Anderson, Commissioner, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I disagree with the majority on the question of whether the college discriminated against the employe when they failed to certify him for a position as instructor in business administration/human resources management.

Mr. Baltz knew the employe prior to the certification process but he did not know Ms. Hoveland-Belden. One of the rules that Mr. Baltz relied on was that a person could not count management experience as personnel experience if the employer had a separate personnel division. WWTC had a separate personnel division so Mr. Baltz already knew that none of the complainant's work for the employer would count as human resources management. Mr. Baltz did not give much weight to the complainant's outside experience as a part-time owner/operator of a tavern for 21 months or the complainant's work as a nighttime relief manager at a grocery store for three years between high school and college and part-time for several years while he was in college. The employe had also worked for his family's A&W business but he did not have that information on his application form. While in the part-time tavern work the complainant would likely have the ability to hire and fire but it is unlikely that the nighttime relief manager at a grocery store would involve much if any personnel work. The part-time tavern work for 21 months would not have been enough to qualify for the needed 24 months. Mr. Baltz did not call the complainant but not because of the complainant's sex.

Mr. Baltz did not know whether Ms. Hoveland-Belden's work as an executive director of a non-profit agency could count as human resources management because he did not know if that agency had a separate personnel division. Mr. Baltz called Ms. Hoveland-Belden to find out if she had experience that counted as human resource management. He found out that she did so he certified her.

There is no question that Mr. Baltz treated the complainant and Ms. Hoveland-Belden differently but there is nothing in the record to point to sex, age, religion, national origin or any other protected category as the reason they were treated differently. The law even allows Mr. Baltz to make a wrong decision so long as he was not motivated by a discriminatory reason. In Wilbert v. City of Sheboygan (LIRC, 04/15/86), a case of alleged hiring discrimination in which the respondent claimed that the male candidate hired had better educational qualifications, the issue is not whether the male actually had better educational qualifications but whether the respondent's hiring committee sincerely believed, at the time they made the hiring decision, that the male candidate's education satisfied the stated requirements. The issue, in other words, is the respondent's motivation for its conclusion and not the objective basis in fact for that conclusion. If the respondent formed a sincere belief, then that judgment does not reflect a discriminatory motive, regardless of whether it is correct.

The administrative law judge and the majority place weight on the fact that Mr. Baltz was uneasy at the hearing. He may now believe that he made a mistake in not calling the complainant. He may have been upset that he had to attend a hearing. There was no testimony that showed that over the years he only called women applicants or even that a majority of the people he called were women. In fact there was no evidence to show what Mr. Baltz had done in other situations. Mr. Baltz was not at all involved in any of the determinations of who would receive the other positions the complainant applied for, so there is not a pattern of behavior based on discrimination based on sex.

I believe that there needs to be more than a showing that one phone call was made before one reaches the level that the call was made for discriminatory reasons based on sex. I agree that the best policy is for the employer to treat applicants for positions the same but not doing so is not automatically discrimination based on sex. There is no such thing as an individual disparate impact case. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff'd., Winnebago Co. Cir. Ct., 10/27/93. An isolated decision not reflective of a regular employment practice or policy is not appropriately challenged under the disparate impact theory. Turman v. W. H. Brady Co. (LIRC, 10/17/85).

There was a question of whether the employer had an unwritten affirmative action policy of hiring women for the vacancies. The problem with that issue is the commission clearly decided that all of the other hirings went to women who were better qualified than the complainant. Also there is no evidence of how many jobs were available at the employer during this time period and what the breakdown by sex was for those who applied and those who were hired. We only have records for those jobs for which the complainant applied. The second problem is that Mr. Baltz played no role in those other decisions. Mr. Baltz only dealt with the decision on whether to certify the complainant.

For these reasons, I would reverse the decision of discrimination in the case of certification of the complainant for the business administration/human resources position.

Pamela I. Anderson, Commissioner

cc: Dawn Marie Harris
W. A. Kirkpatrick

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(1)( Back ) To satisfy the requirement of "articulation," the employer need only raise a genuine issue of fact as to whether it discriminated against the employe. To do this, though, the employer at least "must clearly set forth, through the introduction of admissible evidence, the reasons for the [employe's] rejection." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 116 (1981).

(2)( Back ) Gentilli v. Badger Coaches, ERD case no. 8601411 (LIRC, July 12, 1990), affirmed Gentilli v. LIRC, Dane County Circuit Court (January 15, 1991), U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983).

(3)( Back ) The dissent notes, correctly, that it would be inappropriate apply the disparate impact theory of discrimination set forth in Griggs v. Duke Power Company, 401 U.S. 424, 3 FEP Cases 175 (1971) in this case. The disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group; under the disparate impact theory, a complainant need not offer proof of intent to discriminate. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 594 (Ct. App. 1991). However, this case does not involve the application of a facially neutral policy. As the dissent acknowledges: "There is no question that Mr. Baltz treated the complainant and Ms. Hoveland-Belden differently..." Thus, the majority applies the McDonnell Douglas framework, not under the disparate impact theory, but the alternative disparate treatment theory. Racine Unified School District, supra at 164 Wis. 2d 594-95.

(4)( Back ) Wis. Stat. 38.12(1).

(5)( Back ) The question of whether the respondent is a "state agency" as defined in Wis. Stat. 111.32(6)(a) is dispositive of whether the Personnel Commission or the Equal Rights Division (ERD) is authorized to process the complainant's claim under Wis. Stat. 111.375(2). Of course, the definition under Wis. Stat. 111.32(6)(a) theoretically may not be dispositive of whether the respondent is a state agency for the purposes of attorney fee liability, which turns on the issue of sovereign immunity. However, nothing in this case supports the conclusion that the respondent is not a state agency under Wis. Stat. 111.32(6)(a) (so that ERD and this commission rather than the Personnel Commission have jurisdiction of the case under Wis. Stat. 111.375(2)) but is a state agency for the purposes of the fee issue.