STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
JANET SETZEN SILVERS, Complainant
MADISON METROPOLITAN SCHOOL DISTRICT, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 8021951, EEOC Case No. 0558780823
This case is before the Commission for reconsideration of the remedy ordered. The case began on March 29, 1978, when the Complainant filed a charge of discrimination alleging that Respondent unlawfully retaliated against her, for her earlier complaints of discrimination, in its handling of her applications for teaching positions with Respondent in 1976 and 1977.
A hearing examiner's decision, issued on August 18, 1982, found that Respondent had unlawfully retaliated against Complainant. The Examiner's decision ordered Respondent to (1) cease and desist from further discrimination against Complainant and (2) consider Complainant for the next available teaching position for emotionally disturbed children on the same basis as any other applicant.
Both parties petitioned for review of the Hearing Examiner's decision by the Commission. The Commission's order of June 28, 1983, affirmed the Examiner's decision in its entirety, thereby adopting the Examiner's Findings of Fact, Conclusions of Law and order as the Commission's own. The Complainant timely commenced an action for judicial review in Dane County Circuit Court. On April 3, 1984, judgment was entered by the circuit court, reversing the remedy portion of the Commission's order and ordering the Respondent to pay Complainant backpay for 1976 and 1977.
The Commission timely appealed to the Court of Appeals and Complainant crossappealed. In a decision dated and released on October 28, 1985, the Court of Appeals ordered this case remanded to the Commission for reconsideration of the issue of an appropriate remedy.
After the decision of the Court of Appeals became final, the Commission solicited proposals from both parties as to an appropriate remedy and their positions regarding the necessity of further hearing.
Complainant proposes a remedy consisting of instatement, retroactive seniority, back-pay (including reconstruction of retirement contributions), interest and attorney fees. Complainant takes the position that further hearing is not necessary at this tint.
Respondent has proposed that Complainant should receive backpay, less interim earnings, for the period from 1976 to "the present." Respondent has requested an evidentiary hearing on the questions of whether Complainant's attorney fees have been paid by Complainant or by Madison Teachers Inc. and whether complainant was a member of that organization when such fees were paid.
Having again reviewed the entire record in this matter, and having fully considered the arguments of the parties, the Commission issues the following:
The Examiner's decision, issued on August 18, 1982, is affirmed subject to the following modifications:
Paragraph 2 of the Examiner's Order is deleted and the following is substituted therefor:
"2. That Respondent offer Complainant the next available comparable position for which Complainant is qualified, with seniority retroactive to the date on which Complainant would have commenced employment if she had been hired in 1976;
3. (a) That Respondent make Complainant whole for any losses in pay she suffered during the period beginning with the date on which she would have commenced employment if she had been hired in 1976 and continuing until the date on which Complainant commences comparable employment with Respondent or would commence such employment but for her rejection of a valid offer of such employment.
(b) This backpay award is to be computed on a calendar quarter basis, with interim earnings offsetting only the backpay attributable to the same calendar quarter;
(c) Respondent shall make employer contributions to the Wisconsin Retirement Fund in the employe's behalf for the applicable time period, such contributions being reduced by any contributions made by another employer to such fund during the same period;
(d) The net backpay amount thus computed is to be increased to reflect the accrual of 12% simple interest, ccmputed on a calendar quarterly basis and continuing until date of payment;
(e) Any amounts received by Complainant in the form of unemployment benefits or welfare payments during the applicable period shall not reduce the backpay otherwise allowable but shall be withheld by Respondent and immediately paid to the Unemployment Reserve Fund (by check payable to DILHR and including Complainant's name and Social Security number) or, in the case of a welfare payment, to the welfare agency making such payment.
4. Respondent shall pay Complainant's reasonable attorney fees in the amount of $29,442.50, reflecting 267..5 hours of attorney time at $75 per hour and 117.25 hours of attorney time at $80 per hour. Respondent shall also pay Complainant's costs and disbursements in the amount of $961.12. Remittance of these fees and costs in the total amount of $30,403.62 shall be made payable jointly to Complainant, Madison Teachers, Inc., and Attorney William Haus.
5. Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report to Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.
Dated and mailed July 25, 1986.
/s/ David A. Pearson, Chairman
/s/ Hugh C. Henderson, Commissioner
/s/ Carl W. Thompson, Commissioner
In reexamining the question of an appropriate remedy in this case, the Commission considered whether Respondent has shown, by clear and convincing evidence, that Complainant would not have been hired even in the absence of unlawful retaliation by Respondent. Having again reviewed the hearing record in that light, the Commission now considers that the evidence presented by Respondent to show that Complainant would not have been hired is, at best, speculative. Accordingly, the Commission has resolved the uncertainties against the discriminating Respondent, concluding, for purposes of determining an appropriate remedy, that Complainant would have been hired in 1976 but for the unlawful retaliation by Respondent.
There were three steps in Respondent's process for selecting teachers. First, credentials (degrees, experience and prior performance evaluations) were considered to determine whether an applicant would be interviewed. Second, the interview would be conducted by one or more members of the school district's administrative staff. Grades ranging from 1 to 5 were assigned to an applicant's credentials and his or her performance in the interview. These two grades determined who went into the "employment pool." As openings arose, supervisors hired from among the appropriate certified teachers who had made it into the employment pool.
The UW Placement Service for Teachers will send to a school district, upon request, the most recent information it has on file regarding a teacher's educational achievements and teaching experience, and Respondent obtained such information about Complainant in 1969, prior to hiring her the first time (she has worked for Respondent several times). Prior to her 1976 application for reemployment, Complainant had provided the Placement Center with updated information about her work experience in the period from 1971 to 1976, when she was not working for Respondent. During that period, Complainant had worked as a teacher with the Verona Public Schools, as an educational consultant for the Wisconsin Department of Health and Social Services and as a teacher with the Edgerton Community Schools. When Respondent processed Complainant's applications for reemployment in 1976 and 1977, Respondent did not follow its customary practice of requesting updated credentials from the UW Placement Service.
The individual who compared the credentials of applicants in 1976 and 1977 was Wanda Warner, Respondent's Employe Services Coordinator. At the time of the hearing in this matter, Warner no longer worked for Respondent; she had moved out of Wisconsin and was not available to testify. Respondent presented the testimony of Maurice Sullivan, who was also no longer working for Respondent but had been Wanda Warner's supervisor in 1976 and 1977. Sullivan testified that he was still working for Respondent when Complainant filed her retaliation complaint and he says he performed an "investigation" to determine whether Complainant had been fairly treated. Although Sullivan testified at length regarding the selection process, he was not directly involved in considering Complainant's applications, and never discussed the matter with Warner.
The applications (including credential ratings and interview ratings) of certain teachers hired and not hired in 1976 and 1977 were received into evidence. One applicant, Mary Jo Beld, was given a credential rating of 3 on the scale of 5. She was interviewed. Complainant had been given a rating of 3 on her outdated 1969 credentials. Three other applicants were interviewed but were not hired even though Respondent hired a total of 15 teachers for emotionally disturbed children in 1976 and 1977. These applicants were Ann Doran, Suzanne Van Dousen and Janet Esser.
Ann Doran was given a credential rating of 4; she was given an interview and her interview rating was also 4. She was placed into the employment pool but was not hired. Since Wanda Warner, who assigned the credential ratings, was not available to testify, and since Sullivan, who did testify, was not involved in that process, there is some possibility that Complainant would have received a higher credential rating than Doran if Complainant's credentials had been properly updated by Respondent, so that once they were both in the employment pool, Complainant would outrank Doran in that regard. The same possibility exists as to interview performance; it is not possible on this record to do anything more than speculate as to how well Complainant would have done on an interview, in comparison to Doran or anyone else. Finally, while Sullivan sought to distinguish between Doran and Complainant on the basis that Complainant had "negative evaluations" in prior employment evaluations, and Doran did not, the Commission considers that Sullivan exaggerated the seriousness of those "negative evaluations," inasmuch as Respondent rehired Complainant in August 1971 despite those evaluations. Moreover, it was not Sullivan who considered Complainant's prior performance evaluations and cared them to those of other applicants; performance evaluations were first compared by Wanda Warner, then by various interviewers, and finally, by the supervisors hiring from the employment pool. None of those individuals testified.
A comparison of Complainant to Suzanne Van Dousen is no less speculative. Like Doran, she had a credential rating of 4 and an interview rating of 4 and no "negative evaluations." Again, however, Ccmplainant's updated credentials may have been rated higher by Warner, Complainant may have done better than Van Dousen on the interview and thereby may have overcome any effect of the evaluations. A comparison to Janet Esser, who, like Complainant, was not hired, proves little since Esser was given neither a credential rating nor an interview.
Comparisons to individuals who were eventually hired further highlight the speculation inherent in Respondent's contention that Complainant would not have been hired. Mary Jo Beld had a credential rating of only 3, yet she was given an interview and, with her interview score of 4+ she not only got into the employment pool but was hired. There is no clear and convincing evidence that Complainant would not have been similarly successful in view of the considerations already discussed. Another available comparison involves Nancy Garson. Garson's credential rating is unknown and therefore may have been lower than an updated rating of Complainant's credentials. Garson got a 4+ on the interview but, again, Complainant may have done that well or better. While Complainant had some "negative comments" in her evaluations, Garson had absolutely no teaching experience other than student teaching.
Having considered the above, together with all the evidence and arguments not specifically recited above, the Commission considers that Complainant would have been given an interview in 1976 but for the Respondent's unlawful retaliation. There are two clear indications of this. One is the fact that Mary Jo Beld, with a credential rating of 3, the same as Complainant's outdated rating, was given an interview. The second such indication is the fact that a memorandum from Wanda Warner to Maurice Sullivan regarding the employer's employment procedure makes it clear that interviews were to be given to applicants possessing the minimum qualifications for employment and the further fact that Respondent has never disputed Complainant's possession of at least such minimum qualifications.
While the Commission is convinced that Complainant would have been interviewed but for Respondent's unlawful retaliation, the record provides no reliable basis for determining how she would have fared in an interview. Accordingly, the question of whether her interview rating in combination with a properly updated rating of her credentials would have sufficed to place her in the "employment pool," requires speculation upon speculation. Finally, since hiring from the employment pool was the prerogative of supervisors who were apparently not involved in the earlier steps of the hiring process and who did not, in any event, testify at the hearing in this matter, the degree of speculation necessary to any determination of Complainant's actual prospects of employment if she had been fairly treated is again increased.
Resolving the above uncertainties against the Respondent, it cannot be said that Respondent has presented clear and convincing evidence that Complainant would not have been hired in the absence of unlawful retaliation by Respondent. Accordingly, a remedy must be fashioned which will make Complainant whole for losses she suffered as a result of the Respondent's failure to hire her in 1976. That is the purpose of the awards of backpay and instatement now ordered by the Commission.
The award of reasonable attorney fees and costs to Complainant effectuates a second purpose of the Wisconsin Fair Employment Act, that purpose being the discouragement of discriminatory practices in employment. Placing the costs of vindicating the rights of a victim of discrimination on the party responsible for denying those rights does more than simply advance the interests of justice; it effectuates the legislative purpose of proscribing employment discrimination by deterring employers from engaging in conduct prohibited by the Fair Employment Act. Watkins v. LIRC, 117 Wis. 2d 753, 764, 345 N.W. 2d 482 (1984). This purpose is served by the award of reasonable attorney fees and costs to Complainant, whether such fees and costs have initially been borne by Complainant herself or by Madison Teachers Inc. Accordingly, the Commission has not ordered the hearing requested by Respondent for the purpose of establishing the source of payments, if any, made thus far on Complainant's attorney's fees and costs.
The amount and reasonableness of Complainant's costs and disbursements have not been disputed by Respondent. Respondent has made three arguments regarding attorney fees. First, Respondent argues that conferences involving John Matthews, the Executive Director of the employe's union (Madison Teachers, Inc.), and Complainant's attorney should not be charged to Respondent. Specifically, Respondent identifies 17 conferences during the nine year pendency of this action, in which Matthews participated. The hours charged by Complainant's attorney for all of those conferences add up to 21.25 hours. Only four of such conferences (8/2/78, 4/4/79, 1/14/80 and 2/15/80) were limited to Matthews and the Complainant's attorney; the total time charged for those conferences was 1.25 hours. The other 13 conference dates disputed by Respondent (totaling 20 hours) were participated in by the Complainant, ERD personnel or Respondent's own attorney, in addition to Matthews' participation. Under these circumstances, the Commission considers that no reduction of the hours charged by Complainant is appropriate. Complainant's attorney has sworn that all of the disputed conferences involved this case and the degree of participation by Complainant's union representative (Matthews) has not been shown to be unreasonable.
Respondent's second argument is that the hourly rate asked for by Complainant's attorney is excessive. Respondent's attorney inaccurately asserts that Complainant's attorney is asking for $85 per hour; in fact, the fee request is clearly based on an hourly rate of $80. The thrust of Respondent's argument for a reduction of the hourly rate is that since Complainant's attorney has submitted a U.S. District Court judgment in which he was awarded $75 per hour, the hourly rate requested in this matter is excessive. A federal court fee award in a different case is not, of course, controlling in this matter; however, the Commission considers that it is some evidence of the customary and reasonable fee charged by Complainant's attorney in similar matters for work performed through February, 1984. Accordingly, the Canmission has computed the attorney fee award in the instant case on the basis of $75 per hour for work completed through February, 1984 and $80 per hour for work performed thereafter. In the view of the Commission, this reflects a reasonable rise in hourly attorney fees from $75 to $80 per hour during the pendency of the instant action and an overall amount that is reasonable and commensurate with fees charged generally in the Madison area.
Respondent's final argument regarding attorney fees is the vague assertion that the hours charged by Complainant's attorney should be reduced (by some unspecified amount) because the time expended by Respondent's attorney was "far less" (but also unspecified). The Commission rejects these vague and unsupported contentions.
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