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



ERD Case No. 199800215, EEOC Case No. 26G980640

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.


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

Dated and mailed October 27, 2000
muellsh.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


This case arises out of Complainant Sharon Mueller's allegations that Respondent ScheduleSoft violated the Wisconsin Fair Employment Act in a number of respects, including engaging in sexual harassment and discriminating against her because of her sex and opposition to that sexual harassment.

The Administrative Law Judge ("ALJ") issued a decision which rejected Mueller's allegations that there had been sexual harassment or sex discrimination, and while he found that ScheduleSoft unlawfully retaliated against Mueller when it reduced her "draw", he awarded her no remedy in connection with that event based on his conclusion that it would have occurred even in the absence of the improper motive. Although many of her claims were thus rejected by the ALJ, Mueller did not file a petition for review, and she has not made any assertion that the ALJ erred in any respect in those parts of his decision which were adverse to her.

The ALJ also decided, that ScheduleSoft did discriminate against Mueller in retaliation for her opposition to what she perceived to have been unlawful discrimination by ScheduleSoft, when it terminated her employment, and he issued a remedial order consistent with this conclusion. Again, though, not all of these parts of his decision have been challenged. While ScheduleSoft has filed a petition for review, it has very precisely and very specifically challenged only some of the findings, conclusions and orders of the ALJ which were adverse to it.

Thus, the only issue which has been placed before the commission in this case, is an issue raised by ScheduleSoft concerning the ALJ's back pay order. Because neither party has raised any other issue in a petition for review or in arguments to the commission, it restricts its review to the single issue raised. (1)

The remedy issue presented by ScheduleSoft's appeal is whether Mueller failed to exercise reasonable diligence in attempting to obtain other employment following her termination by ScheduleSoft. Contending that she did not, it argues that she should for that reason not be granted any back pay. It also argues that because Mueller should not (according to its theory) recover any monetary compensation, she should also not be allowed any attorneys fees. (2)

The WFEA requires, in Wis. Stat. 111.39 (4)(c), that back pay awards be reduced by "amounts earnable with reasonable diligence." The burden of proving a failure of reasonable mitigation is on the employer. 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 plaintiff failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence. Biggers v. Isaac's Lounge (LIRC, October 29, 1999). Whether opportunities for other comparable employment did exist, such that the employer can be considered to have satisfied the second part of the test described above, is primarily a question of fact. State ex rel. Schilling v. Baird, 65 Wis.2d 394, 398, 222 N.W. 2d 666 (1974).

In Biggers, the employer offered evidence in the form of classified advertisements showing the availability of work during the back pay period. That evidence, which was a "random" sample of advertisements, showed 78 bartender positions and 125 waitressing positions available during the two and one-half year back pay period. As is shown by the other cases cited in the Biggers decision, this kind of use of classified advertisements is a common method of proof on this issue.

ScheduleSoft argues in its Reply Brief, that there is no requirement that employers offer classified advertising evidence to establish that there was a reasonable likelihood that an employee might have found comparable work by exercising reasonable diligence. While it is true that there is no requirement that an employer offer this particular type of evidence, there is a requirement that they offer some type of evidence. In State ex rel. Schilling v. Baird, the court observed that where the employer introduces no evidence that any alternative employment was available to a former employee during the back pay period, "it follows" that the employer has not sustained its burden of proof. 65 Wis.2d at p. 399.

ScheduleSoft relies on two things to meet its burden of establishing that there was a reasonable likelihood that Mueller might have found comparable work by exercising reasonable diligence: the testimony at hearing that when her draw was cut to $16,000 she told Flessas that there were plenty of $30,000/year sales jobs out there, and statistics published by the Department of Workforce Development showing that the unemployment rate in the Madison area during the back pay period was between 1.5 and 1.7 percent.

The commission does not consider Mueller's statement to have any significant weight as evidence. For one thing, there is no foundation for the statement: she is not a labor market expert, and there is no indication in the record of any other reason to think that she would be a reliable source of information about how many sales jobs were available in the labor market and what they paid. On the contrary, there is every reason to believe that Mueller would have had little or no idea of what the market for her sales skills was. At the time she made the statement, she had no significant background or experience in sales, or in looking for work in sales. Furthermore, the context in which the statement was made - i.e., in response to an announcement that her draw would be significantly cut - suggests that it was probably made intemperately, with less regard for the possible accuracy of the statement than one would expect from a person asked to dispassionately appraise the state of the labor market.

The commission also finds the DWD statistics on the unemployment rate for Madison to be without any significant weight as evidence. For one thing, these general statistics lump all kinds of employment together; they cannot help answer the question of whether there was comparable work available to Mueller, i.e. this type of commission sales work. For another thing, the suggested fact that a low unemployment rate means a high rate of open and available jobs is one which is not actually established by the mere unemployment rate figures themselves, but instead requires some additional knowledge of and analysis of labor market conditions which is absent here. Essentially, ScheduleSoft is asking the commission to take administrative notice of the "fact" that because the unemployment rate was very low, there must have been many open jobs which Mueller could have obtained. However, this is not an adequate method of meeting the burden of proof on mitigation. In State ex rel. Schilling v. Baird, supra, the court noted that evidence is required, and it held that courts should not take judicial notice of the suggested fact that other employment of a like character, with similar and not inferior terms and conditions and in a place reasonably convenient, was available to an employee. Id., at p. 399-400.

The commission does not find it necessary to reach the question of whether ScheduleSoft showed that Mueller failed to exercise reasonable diligence to mitigate her damages because she restricted her search to part-time work. An employer has the burden of proving both that a former employee failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that the former employee might have found comparable work if she had exercised reasonable diligence. ScheduleSoft failed to prove the latter. It therefore failed to meet its burden of proof on the question of mitigation of damages.

ScheduleSoft's argument concerning attorneys fees is based entirely on the theory that Mueller should not be entitled to a back pay award because she failed to mitigate her damages. Because it has not established that theory, its argument as to the attorneys fee award must also be rejected.

cc: Attorney Paul A. Kinne
Gingras, Cates & Luebke

Attorney Robert Horowitz
Stafford Rosenbaum

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(1)( Back ) See, Crosby v. Intertractor America Corp. (LIRC, 05/21/93) (commission will generally not address issues which are not raised by a petition for review).

(2)( Back ) ScheduleSoft has not raised any separate issue as to the appropriateness of the amount of the attorney fee award.