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

CARL A HOLMAN, Complainant


ERD Case No. CR200101703, EEOC Case No. 26GA22281

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:

The second sentence of Finding of Fact 19 is modified to read as follows:

Respondent's concerns about complainant's negative attitude toward his work arose before and continued after his demotion. After his demotion, this negative attitude was expressed once in his reluctance to take the temporary assignment to a welding position in March, and again in his questioning about assignments, frequent trips to the restroom, and stopping his work five minutes before the end of the shift, documented in a memo prepared by Mr. Morse on April 9, 2001.

The second sentence of the first paragraph of the "Memorandum" section is modified to read as follows:

Instead, in the interrogatory answer the Respondent portrayed the decision to lay off Mr. Holman as due to lack of work; to his lack of qualifications on the CNC, the 400 ton press, and the plate roll work stations; and to his status as the second machinist.

The sixth sentence of the second paragraph of the "Memorandum" section is modified to read as follows:

The policy contemplated that the company could deviate from seniority in the interest of keeping employees with special skills. Although Mr. Morse had superior skills to Mr. Holman's in the area of leadership and supervisory ability, the company's characterization of Mr. Morse's technical skills as superior to Mr. Holman's is not supported by the record.

The third paragraph of the Order is modified to read as follows:

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, as modified, is affirmed.

Dated and mailed August 15, 2003
holmaca . rmd : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


The commission agrees with the administrative law judge that, although the complainant's filing of an equal rights complaint was a motivating factor in the complainant's layoff, complainant would have been selected for layoff even if he had not engaged in this protected fair employment activity; and that, as a result, the proper remedy is a cease and desist order and an award of attorneys' fees.

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. Hoell v. LIRC, 186 Wis. 2d 603, 608, 522 N.W.2d 234 (Ct. App. 1994). An employer who has made such an employment decision is liable under the Fair Employment Act, but the remedy may be modified depending upon whether the termination would have taken place in the absence of the impermissible motivating factor. Under the mixed motive test, if the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, then the complainant should be awarded only a cease and desist order and attorney's fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney's fees. Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002).

The complainant's primary argument in its petition for commission review is that the respondent's failure to clearly identify its concerns regarding the complainant's negative attitude in its response to an interrogatory question during prehearing discovery asking the respondent to identify each reason for selecting the complainant for layoff, establishes that the offer of this reason by the respondent at hearing to justify and explain the layoff decision demonstrates pretext.

Complainant is correct in asserting that inconsistencies between responses to discovery requests and evidence offered at hearing are often used for impeachment purposes. Here, however, as the administrative law judge concluded, there was documentary evidence and credible testimony that the respondent had ongoing concerns about the complainant's attitude toward his work and toward the respondent which constituted the primary basis for his demotion on February 6, 2001, and which continued even after this demotion.

The other pretext argument offered by the complainant which merits discussion relates to his contention that his assignment to perform lead machinist duties and responsibilities while Morse was on leave demonstrates that the respondent no longer had concerns at that time (after the demotion but before the layoff) about his allegedly negative attitude. However, this is only part of the story. The respondent's concerns about the complainant's attitude centered primarily on his ability to communicate with others, his relationships with co-workers, his contribution to low morale in the workplace, and his failure to promote workplace harmony. When Morse was injured and was required to be off work to recuperate, respondent assigned the complainant to carry out Morse's administrative paperwork responsibilities on Monday of each week, and the responsibility for directing the unit's employees was assigned to another worker. This tends to reinforce rather than to rebut the respondent's contention in this regard.

The resolution of the retaliation issue here necessarily requires a determination as to the credibility of respondent's evidence that it was motivated by complainant's negative attitude to select him for layoff. The commission, as did the administrative law judge, finds the respondent credible to the extent that complainant's attitude was a primary motivator, but concludes as well that the evidence, particularly that showing that respondent had discounted complainant's broad range of technical skills, had more machinist work available than one position could perform, and had unjustifiably assumed that complainant would decline an offer of a welder position, supports a conclusion that the respondent had other reasons for selecting the complainant for layoff. The commission concludes that an additional factor exists to demonstrate that something other than respondent's concerns about complainant's attitude was at work here, i.e., Don Rose, the supervisor of the welding department who was demoted at the same time as complainant due to concerns about his attitude and leadership abilities, was not selected for layoff despite the fact that the welding department was slated for a 2.5 position reduction.

Finally, the parties dispute the amount of attorney's fees awarded to the complainant. A complainant who achieves only partial success is entitled to only a partial award of fees. See, Miles, supra; Hensley v. Eckerhart, 461 U.S. 424 (1983). Here, the administrative law judge determined that $2244.38 should be deducted from the complainant's request of $13,943.16 (difference = $11,698.78) because that amount related to work on a different case, and the commission agrees. The administrative law judge then deducted an additional $1,220 because the complainant only achieved partial success. The commission agrees with this apportionment since, although the complainant achieved only partial success here, he did succeed in proving his main contention, i.e., that a retaliatory animus played a role in his selection for layoff. The complainant did not prevail in regard to his petition for commission review, so any further award of fees/costs based on work performed in relation to the petition is not appropriate.

Attorney Peter M. Reinhardt
Attorney Warren E. Peterson

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