STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
GAILE P BIGGERS, Complainant
ISAAC'S LOUNGE, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 1991504222, EEOC Case No. 26G910625
In a decision issued in October 1993 the commission held that Isaac Wilson, owner of Isaac's lounge, had sexually harassed the complainant, Gaile Biggers, and terminated her employment on December 5, 1990, for refusing his sexual advances. Ms. Biggers, who held full-time employment as an administrative secretary at the Marquette University School of Dentistry, was working part time as a bartender and assistant manager for Mr. Wilson. She averaged part-time earnings of $140 per week working at Isaac's lounge. The respondent, Mr. Wilson, was ordered to make Ms. Biggers whole for all losses in pay and benefits suffered due to his discriminatory conduct, minus an offset for interim earnings, and to pay her interest on the amount owed. The commission's decision was affirmed on appeal to circuit court, and again before the court of appeals in April 1995.
After the court of appeals' decision became final the parties attempted to resolve the amount of back pay and attorney's fees owed Ms. Biggers but were unable to reach an agreement, basically due to a dispute over whether or not Ms. Biggers had exercised reasonable diligence to mitigate her wage loss following the termination of her employment. In December 1996, the commission was advised that Mr. Wilson had filed a petition for liquidation under Chapter 7 of the Bankruptcy Code and was seeking a discharge of debts, after which the parties were notified that the commission would not be taking any further effort to enforce the award in this matter.
By letter dated February 10, 1998, counsel for the complainant notified the commission that the bankruptcy court had determined that Ms. Biggers' claim against Mr. Wilson was non-dischargeable, pursuant to 11 U.S.C. 523(a)(6) of the Bankruptcy Code, (1) and requested the commission to act on her petition for an award of back pay and attorney's fees. Counsel for Mr. Wilson responded, again raising the issue of whether or not Ms. Biggers had exercised reasonable diligence to mitigate her wage loss. Counsel for the complainant submitted a letter response dated February 27, 1998, and counsel for the respondent in turn submitted a letter in reply dated March 2, 1998.
By decision dated March 25, 1998, the commission remanded the matter to the Equal Rights Division for a hearing and determination of the appropriate relief due Ms. Biggers.
The commission was advised by letter from complainant's counsel dated April 8, 1998 that an action had been recently filed on behalf of Ms. Biggers in circuit court seeking a declaratory judgment against Mr. Wilson, or, alternatively, a writ of mandamus requiring that the commission set the amount of Ms. Biggers' damages. On April 9, 1998, the court ordered the action against the commission dismissed, and subsequently on April 21, 1998, counsel on behalf of Ms. Biggers voluntarily dismissed her declaratory judgment action against Mr. Wilson.
On June 11, 1998, a hearing was held before an ALJ of the Equal Rights Division to determine the appropriate relief due Ms. Biggers. The ALJ issued a decision on January 29, 1999, concluding that Ms. Biggers failed to make a reasonable effort to mitigate her damages, limiting her to back pay of $1,680.00 and awarding attorney's fees and costs in the amount of $12,777.50. A timely petition for review was filed. Briefs were filed with the commission on behalf of the parties, the last of which was received on July 1, 1999.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
FINDINGS OF FACT
1. At the remand hearing Ms. Biggers introduced an affidavit dated March 28, 1996, in which she states that during the period from December 1990 until the fall of 1993, when she obtained part-time employment as a sales associate at Casual Corner, she had placed applications for part-time employment as a bartender at Wyndham Hotel and as a clothing clerk at Boston Store, but was not offered employment. Ms. Biggers' affidavit further states that she had contacted the Hyatt Hotel and the Milwaukee Athletic Club for bartending positions, and the Milwaukee Area Technical College (MATC) for a position as a teacher's assistant, but was advised that due to her employment responsibilities at Marquette and the overtime requirements of that position, she was not suited for part-time employment with the Hyatt Hotel, the Milwaukee Athletic Club or MATC. Ms. Biggers' affidavit states that during the time frame of December 1990 through 1993 she did not apply for a bartending position in a small neighborhood tavern based upon her experience at Isaac's Lounge.
2. There had been no advertisements for job applicants when Ms. Biggers sought employment at the Boston Store, Wyndham Hotel or the Hyatt Hotel. Ms. Biggers had previously worked as a teacher's assistant at MATC. Apparently there had been no notice of a job opening when Ms. Biggers applied at MATC either as she testified that she was just going back to check with a former employer to see if her former position was available.
3. Ms. Biggers applied for work at the Casual Corner after seeing a help wanted ad in the store's window. Ms. Biggers' part-time employment at Casual Corner apparently began sometime during the last quarter of 1993, and ended during the second quarter of 1995. A non-work related injury to her finger affected Ms. Biggers' ability to perform her duties at Casual Corner and eventually caused her to terminate that employment. Ms. Biggers' duties included carrying heavy loads of clothing by hanger and her injured finger would get caught up in the hangers. Ms. Biggers testified that the condition of her finger did not prevent her from applying for or accepting other employment.
4. At the remand hearing Ms. Biggers also identified a document dated April 30, 1998, containing her answers to the Respondent's First Set Of Interrogatories. In response to interrogatory no. 4 regarding her full-time work schedule Ms. Biggers stated that prior to July 1996 her normal working hours at Marquette University were from 8:30 a.m. to 5:30 p.m., with overtime as required. Ms. Biggers responded further that after July 1996 her hours were cut back, and that in April 1998 she was working from 8 a.m. until 4:30 p.m., with less overtime.
5. Ms. Biggers' April 30, 1998 response to the interrogatories also listed additional efforts she had made to obtain employment. One place Ms. Biggers listed as having applied for employment was at Dorris and Pete's Lounge during 1997. Ms. Biggers testified that she contacted this business because one of the owners had previously approached her about working there when she was working at the Casual Corner, before she had the problems with her finger. Ms. Biggers was not offered employment at Dorris and Pete's Lounge. Ms. Biggers also listed having set up a vendor's booth for two one-day events at the Northcott Neighborhood House during 1997, in an attempt to start her own business. Another business Ms. Biggers listed at which she applied for work was the Lion's Den in 1998. Ms. Biggers' application was not in response to a job advertisement. She applied for a bartender's position there but did not get the job.
6. During the latter part of 1995 Ms. Biggers was advised about an offer to return to work at Isaac's Lounge. She accepted the offer to return to work, agreeing to start on January 3, 1996 or January 4, 1996, depending on Mr. Wilson's wishes. Ms. Biggers kept her evening hours open expecting to be called back to work for Mr. Wilson, but had not been called back to work as of the date of the hearing.
7. From about July of 1996 through April of 1997, Ms. Biggers was being treated for depression. She attended therapy sessions 2-3 times per week during the evening, which affected her ability to work part time on the days she received therapy. Ms. Biggers testified that her depression did not prevent her from applying or accepting part-time employment, however.
8. Additionally, Ms. Biggers testified at the hearing that "over the past several years" she had also looked in the classified ads for bartending positions. Ms. Biggers testified that most of the bartending jobs that she was interested in conflicted with her hours of work at Marquette University, and that a lot of the jobs she called about were for full-time employment. Ms. Biggers testified that part-time hours beginning around 7 or 8 p.m. were best for her. Ms. Biggers could not remember the names of the bars she had contacted, or when she had contacted them.
9. Michaline Wagner, a paralegal at the law firm representing the respondent, presented copies of job ads for bartenders and cocktail waitresses listed in several Sunday editions of a local newspaper. Included were several Sunday edition listings of job ads in March 1991, and random selections of a single Sunday edition's job ads in April and October for the years 1991, 1992, 1993, 1997, and for April 1998. Ms. Wagner conceded that she had not looked for specific neighborhoods or shifts and hours of work, that she had not called any of the places to inquire about the positions advertised, and that she did not know if there were fewer or more bartender jobs in months other than April and October.
10. A tally of the newspaper ads presented for the years 1991, 1992 and 1993, shows that there were 100 job listings for bartenders and 182 job listings for waitressing positions. (2) Ms. Biggers had initially been employed as a waitress when employed by the respondent.
11. Ms. Biggers failed to make a reasonable effort to mitigate her wage loss prior to the fall of 1993 when she obtained employment at Casual Corner. Ms. Biggers mitigated her wage loss while employed at Casual Corner. Ms. Biggers mitigated her wage loss by accepting Mr. Wilson's offer to return to work for Isaac's Lounge, but should have realized after a period of time that Mr. Wilson did not really intend for her to return to work. Ms. Biggers failed to mitigate her wage loss during 1996 after she was not called back to work at Isaac's Lounge, and also during 1997 through the date of the remand hearing.
12. Ms. Biggers is awarded back pay for the period of December 5, 1990, through March 4, 1991; for the last calendar quarter in 1993 when she obtained employment at Casual Corner until she terminated that employment in the second quarter ending June 30, 1995; and for the first calendar quarter in 1996 because she was awaiting Mr. Wilson's call for her to return to work at Isaac's Lounge.
13. Ms. Biggers is awarded back pay (with interest) totaling $13,601.79. (A worksheet attached to this decision shows the computation for this amount. The amount includes interest that would accrue on the back pay owed if payment is made by the respondent on October 31, 1999.)
14. Ms. Biggers incurred reasonable attorney's fees and costs totaling $15,777.00.
CONCLUSIONS OF LAW
1. The respondent was previously found to have violated the Wisconsin Fair Employment Act by sexually harassing the complainant and terminating her employment on December 5, 1990, for refusing his sexual advances.
2. The complainant failed to exercise reasonable diligence to mitigate her wage loss prior to the last quarter of 1993. She exercised reasonable diligence to mitigate her wage loss while employed at Casual Corner. She failed to exercise reasonable diligence to mitigate her wage loss during the time between her employment at Casual Corner and her acceptance of the respondent's offer for her to return to work. The complainant exercised reasonable diligence to mitigate her wage loss by accepting the respondent's offer to return to work, but failed to exercise reasonable diligence to mitigate her wage loss during 1996 after she was not called back to work at Isaac's Lounge, and also during 1997 through the date of the remand hearing.
3. Ms. Biggers incurred reasonable attorney's fees and costs totaling $15,777.00.
1. That the respondent make the complainant whole by paying to her by check the sum of $13,601.79 as back pay and interest.
2. That the respondent make the complainant whole by reimbursing her the sum of $15,777.00 as reasonable attorney's fees and costs incurred in this matter. The reimbursement for attorney's fees and costs shall be paid by check made jointly payable to Gaile Biggers and the law office of Padway & Padway.
3. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent submit a compliance report detailing the specific action it has taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., § § 111.395, 103.005(11) and (12).
Dated and mailed October 29, 1999
biggega.rrr : 125 : 9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
Individuals that have been unlawfully discriminated against are required to take reasonable steps to mitigate their wage loss. Section 111.39(4)(c) of the Wisconsin Fair Employment Act provides, in relevant part, as follows:
"Interim earnings or amounts earnable with reasonable diligence by the person discriminated against.shall operate to reduce back pay otherwise allowable."
In Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983), the Wisconsin Supreme Court found that it was appropriate to consider federal decisions under Title VII of the Civil Rights Act of 1964 for guidance in interpreting the principle of mitigation of wage loss. Like the WFEA's provision, Title VII provides, in relevant part, as follows:
"Interim earnings or amounts earnable with reasonable diligence by the person.discriminated against shall operate to reduce the back pay otherwise allowable."
42 U.S.C. sec. 2000e-5(g)(1)
Under federal case law, once a plaintiff establishes the amount of damages she claims resulted from the employer's conduct, the burden shifts to the employer to show that the plaintiff failed to mitigate her damages or that the damages were in fact less than she asserts. Gaddy v. Abex Corp., 884 F.2d 312, 50 FEP Cases 1333 (7th Cir. 1989). Failure to mitigate is an affirmative defense requiring the employer to establish 1) that the plaintiff failed to exercise reasonable diligence to mitigate her damages; and 2) that there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence. Id. See also, E.E.O.C. v. Gurnee Inn Corp., 914 F.2d 815, 818, 53 FEP Cases 1425 (7th Cir. 1990); Hutcheson v. Amateur Electronic Supply, 42 F.3d 1037, 66 FEP Cases 1275 (7th Cir. 1994).
The ALJ concluded that contacting five employers who had not advertised for help over a two and one-half year period was not a diligent effort to secure work. On appeal, as she had done at the remand hearing, Ms. Biggers emphasizes the fact that she required part-time work that allowed her the flexibility of not starting until around 7 or 8 p.m. because of her need to work overtime at her full-time employment with Marquette University. Ms. Biggers also argues on appeal that the ALJ's decision ignores her undisputed testimony at the June 1998 hearing that she responded to numerous classified job ads in the local newspaper.
The commission agrees with the ALJ that Ms. Biggers failed to exercise reasonable diligence to secure work during the first two and one-half years after her employment at Isaac's Lounge. The fact that Ms. Biggers may have required part- time work with flexible hours does not provide a valid explanation for having contacted only five employers between December 1990 and the last quarter of 1993 when she obtained employment at Casual Corner. And while Ms. Biggers asserted at the June 1998 hearing that "over the past several years" she had looked at want ads for bartending positions and found that most conflicted with her hours of work at Marquette University or involved full-time employment, the ALJ was entitled to give little weight to this testimony given the vagueness of this testimony. "Several years" prior to the June 1998 hearing could refer back only to 1995. Ms. Biggers could not recall when she had contacted a bar in response to a job want ad. Nor could she remember the name of any bar that she had contacted.
Likelihood might have found comparable employment
The ALJ was persuaded that the respondent had met the second prong of its burden stating, "the Respondent supplied evidence as to the great number of employers who were advertising for evening and weekend part-time help" during the two and one-half year period after the termination of Ms. Biggers' employment. The ALJ therefore limited Ms. Biggers' back pay award to ninety days of lost wages, stating that this "represent(ed) a reasonable time period for the Complainant to have made her five employment inquiries and learn that she should seek employment with small tavern operators instead of large institutions."
Ms. Biggers attacks the classified advertisements presented by the respondent, asserting that they were a random sampling of job ads, that full-time jobs had not been excluded from the sampling, that positions which might have been located in neighborhoods which were either too far or unsafe to travel at night or during the early morning hours had not been excluded, and that no follow-up had been done with any of the advertising businesses to determine if they would have hired Ms. Biggers. It is true that the classified ads submitted by the respondent constituted a random sampling of available jobs since classified ads were not presented for every week throughout the year. Nonetheless, based on the several March 1991 Sunday newspaper job ads, and the single Sunday's job ads in April and October for the years 1991 through October 1993 alone, after excluding the ads for full-time employment, there were still at least 78 bartender positions and 125 waitressing positions that were available during this two and one-half year period. (3) Many of the ads specifically stated the positions were for part time evenings and/or weekends. Further, the job ads were for various size businesses listed throughout the Milwaukee area. It cannot be reasonably believed that all of these available jobs were in areas too unsafe or too far to expect Ms. Biggers to travel to. Finally, while Ms. Biggers argues that no follow-up had been done with any of the advertising businesses to determine if they would have hired her, a number of courts have indicated that this is not necessary, instead accepting newspaper advertisements as evidence that comparable employment was available. See, for example, Williams et al. v. Imperial Eastman Acquisition Corp., 994 F. Supp. 926 (N.D. Ill. 1998)(Undisputed that comparable employment available where a three-month survey of Sunday classified ads from a local newspaper corresponding to the first three months after the plaintiffs' layoff revealed 118 different positions available with the plaintiffs' qualifications); Meyer v. United Airlines, Inc., 950 F. Supp. 874, 73 FEP Cases 202 (N.D. Ill. 1997) (employer satisfied its burden of showing that the plaintiff might have secured comparable employment through the exercise of reasonable diligence, based upon the employer's identification, through a three- year survey of a newspaper, of 566 available jobs which fit the plaintiff's previous work experience).
While the commission agrees that it was appropriate to limit Ms. Biggers' back pay during the first two and one-half years to ninety days of lost wages due to her failure to exercise reasonable diligence to mitigate her wage loss during that time period, the commission does not agree that Ms. Biggers' total back pay should be limited to ninety days of lost wages. First, the commission's back pay order contemplated that the back pay period would continue to run until the respondent complied with the back pay order. In this regard, the order stated:
"That the respondent make the complainant whole for all losses in pay and benefits that she suffered by reason of its unlawful conduct by paying her the sum of money she would have earned as an employe but for its unlawful act in terminating her employment. Such sum, minus an offset for complainant's interim earnings, shall be computed from the date of the complainant's termination of employment until the respondent complies with this order."
(Commission decision, p. 4)(Emphasis in bold text added).
The respondent has not yet complied with the commission's order.
Second, a number of courts have awarded back pay to individuals for subsequent periods after initial periods during which they had not exercised reasonable diligence to mitigate their wage loss. See, for example, Hayes v. Shelby Memorial Hospital, 546 F. Supp. 259, 29 FEP Cases 1173 (N.D. Ala 1982), aff'd 726 F. 2d 1543 34 FEP Cases 444 (11th Cir. 1984), rehrg. denied, 732 F.2d 944 (Court denied request for back pay because plaintiff had not pursued employment between October 14, 1980, the date of plaintiff's discharge from employment at Shelby Memorial to November 15, 1981, the date she began work at Baptist Medical Center-Montclair, but in its equitable discretion granted damages representing the disparity in compensation between Baptist Medical Center-Montclair and the higher rate of pay she would have enjoyed at Shelby Memorial during the period between November 15, 1981, and the date of the conclusion of the trial); Sellers v. Delgado College, 902 F.2d 1189, 53 FEP Cases 127 (5th Cir. 1990)(Unlawfully discharged employe failed to mitigate damages from time of discharge in February 1978 until February 1981, mitigated her damages from February 1981 to December 1982 and was awarded back pay for this period, was awarded back pay for the time of her employment from November 1983 to July 31, 1984, and was denied back pay for the periods from July 31, 1984 to December 1984 and from January 1, 1985 until the date of judgment). See also, Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 41 FEP Cases 721 (7th Cir. 1986)(Period for which unlawfully discharged employe may recover back pay will be reduced from the five years between the dates of discharge and trial that federal district court allowed to three years, where employe did not work at all for the first three and one-half years after discharge, he later worked at four jobs for short periods, he would not consider moving, and he could remember applying only to 16 other employers during the five-year period).
Ms. Biggers argues that the ALJ's decision ignores the uncontradicted evidence that she obtained part-time employment between 1993 and 1995 and even attempted to return to work at Isaac's lounge. The record supports Ms. Biggers' argument. Ms. Biggers obtained part-time employment at Casual Corner during the last quarter of 1993. She continued this part-time employment until sometime during the second quarter of 1995, when she terminated that employment because a non-work related injury to her finger affected her ability to perform the work at Casual Corner. Ms. Biggers' W-2 statements for this period show that she earned wages totaling $3,474.88 from Casual Corner. Ms. Biggers therefore mitigated her wage loss during the period from the last quarter of 1993 through the second quarter of 1995, and her earnings from this employment operate to reduce the back pay otherwise allowable.
Further, the record shows that during the latter part of December 1995, Ms. Biggers accepted an offer from the respondent to return to work for the respondent, needing only to hear from Mr. Wilson as to whether he wanted her to begin on January 3 or 4, 1996. Ms. Biggers therefore kept her evening hours open awaiting to hear from Mr. Wilson, but Mr. Wilson never called to have her report for work. Ms. Biggers should not be found to have failed to mitigate her wage loss when she had been mislead by the respondent into believing that she would be called back to work. Thus, it would not be unreasonable to allow Ms. Biggers back pay for the first quarter of 1996. After that point, however, it should have become clear to Ms. Biggers that the respondent did not intend for her to return to work, and she should have again attempted to secure other employment.
Ms. Biggers failed to mitigate her wage loss for the remainder of 1996, during 1997 and during 1998 up to the period of the June 1998 remand hearing. The record contains no evidence that Ms. Biggers made any effort to mitigate her damages during the second, third or fourth quarters of 1996. She has stated that she was being treated for depression two to three evenings per week during 1996 but that this did not prevent her from applying for or accepting part-time employment. Ms. Biggers has not identified any business that she contacted in 1996 in an effort to secure employment, however. Other than attending two one-day events at the Northcott Neighborhood House during 1997 in an attempt to start her own business, Ms. Biggers' only search for employment consisted of contacting one business for employment during 1997. While self-employment can constitute employment for purposes of mitigating damages, the self-employment must be a reasonable alternative to finding other comparable employment. Smith v. Great American Restaurants, 969 F.2d 430, 59 FEP Cases 646 (7th Cir. 1992). The record does not disclose that Ms. Biggers' attempt to start her own business was a reasonable alternative to finding other comparable employment, and, in any event, her attendance at only two one-day neighborhood events does not indicate a serious attempt to market her own business. Also, as of April 30, 1998, Ms. Biggers had made only one verbal inquiry about a bartending job.
Bartending and waitressing jobs were available during 1997 and 1998, and there was a reasonable likelihood that Ms. Bigger's might have found comparable employment had she exercised reasonable diligence. The respondent's single Sunday's job ads for the months of April and October 1997 alone, contained ads for at least 22 bartending jobs and 29 waitressing jobs. There were numerous ads for part-time work, with many specifically offering flexible or evening hours.
The single Sunday's job ads for the month of April 1998 contained 14 ads for bartenders and 19 ads for waitresses. Seven of the ads for bartenders and eight of the ads for waitresses were for part-time work. Many of the ads for part-time work specifically offered flexible or evening hours of work.
Attorney's Fees and Costs
Ms. Biggers requested attorney's fees and costs which included the $2,027.20 previously awarded by the commission, $6,282.30 for the circuit court and court of appeals proceedings, $2,228.75 for initial collection efforts against Mr. Wilson between September 1994 and January 1997, $4,465.00 relating to the proceedings before the bankruptcy court, and $5,285.33 for collection efforts against Mr. Wilson between December 1997 and June 1998. These various amounts totaled $20,288.58. The ALJ did not award Ms. Biggers the requested amount of $5,285.33 for her counsel's collection efforts against Mr. Wilson between December 1997 and June 1998, nor the requested amount of $2,228.75 for her counsel's initial collection efforts against Mr. Wilson. The amount thus awarded in attorney's fees and costs totals $12,774.50. The ALJ denied the balance of the $20,288.58 award requested ($7,514.08) stating, "No award is made for the remaining fees for various collection efforts as no amount of damages had as of that time been determined."
Counsel for Ms. Biggers argues that the ALJ's award for attorney's fees and costs ignores the stipulation by respondent's counsel that the fees and costs incurred through the bankruptcy proceedings, that is, the fees and costs in the amount of $2,228.75 incurred in the initial collection efforts against Mr. Wilson, were reasonable.
The record supports counsel's argument. There was a stipulation at the June 11, 1998 hearing that attorney's fees and costs incurred through the conclusion of the bankruptcy proceedings were reasonable. See T. pp. 8-10. These fees and costs were associated with Ms. Biggers' counsels' attempt to informally resolve the dispute over the amount of back pay owed. Thus, costs and fees for the initial collection efforts against Mr. Wilson should have been included in the fee award. However, while counsel for Ms. Biggers puts this amount at $2,228.75, a review of the June 4, 1998 billing statement for the services rendered between September 1994 and January 1997 actually totals $2,152.50.
No award for fees and costs should be made in connection with the various collection efforts against Mr. Wilson in court after the bankruptcy proceedings, however. There had not yet been a determination of the amount owed to Ms. Biggers, and those court actions were either dismissed by the court or withdrawn by Ms. Biggers.
Although no award should be made for attorney's fees and costs in connection with the collection efforts of counsel for Ms. Biggers after the bankruptcy proceeding, there were further services rendered by her counsel for which payment has been requested. Specifically, a fee request has been made for 15.4 hours for services relating to preparing answers to the respondent's interrogatories, preparing an accounting of the fees and costs and preparing for the June 11, 1998 hearing. The 15.4 hours requested appears excessive, however, especially in view of the time expended in connection with preparing an accounting of fees and costs. For example, on June 2, 1998, preparing an accounting of the fees and costs is itemized together with a telephone conference with client for 3.1 hours, on June 3, 1998, preparing an accounting of fees and costs is itemized together with a letter to "DILHR" for 5.0 hours, and then again on June 4, 1998, preparing an accounting of fees and costs is itemized together with a conference with client to prepare for hearing for 3.0 hours. Ms. Biggers' counsel had already previously submitted a billing statement to the commission with an accounting of its fee request and costs through February 10, 1998, under a letter of the same date. A June 1998 update of the fees and costs should not have required the expenditure of that much time. A reduction of the 15.4 hours requested by 10.4 hours would not be unreasonable. Accordingly, 5.0 hours at $100.00 per hour ($500.00) has been added as an award for attorney's fees.
Finally, the case file indicates that the June 11, 1998 hearing lasted two hours. Ms. Biggers' counsel also submitted briefs to the ALJ and to the commission. An additional 3.50 hours, or $350.00, has been added to the fee award for these services. The total award for attorney's fees and costs is therefore $15,777.00.
The grand total, for back pay, interest, and attorney's fees and costs, is $29,378.79.
Mark J. Goldstein
Robert E. Haney
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(1)( Back ) The bankruptcy court issued its order on November 25, 1997. In January 1998, counsel for the complainant caused to be issued a Sheriff's Levy: Execution Against Property, against Mr. Wilson in an effort to collect back pay and attorney's fees for Ms. Biggers. This action was dismissed by the court.
(2)( Back ) Some of the copied ads submitted as evidence contained duplicate copies of job ads. Where duplicate job ads were found they were not counted twice.
(3)( Back ) In fairness to Ms. Biggers the job ads for waitressing positions should probably not be taken into account during the first year after her termination. Ms. Biggers was entitled to a period of time in which to find comparable employment. While Ms. Biggers had worked as a waitress when she first began employment with the respondent, she had last worked as a bartender and assistant manager for the respondent. Waitressing jobs are not comparable to her position as a bartender and assistant manager. However, counting only the available waitressing jobs during the last year and one-half before she obtained employment at Casual Corner there were still 85 waitressing jobs available and she might have been able to secure a waitressing job with the exercise of reasonable diligence.