KRISTEN BARON, Complainant
DARBOY FAMILY CHIROPRACTIC, Respondent A
ROBERT W. BLUE, Respondent B
An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. The first sentence in paragraph 13 of the administrative law judge's FINDINGS OF FACT is deleted and the following sentence is substituted therefor:
"Baron's co-worker, Jennifer Andree, and a patient, Danielle Marie Young, were both subjected to similar conduct by Dr. Blue."
2. In paragraphs seven, eight, and sixteen of the administrative law judge's FINDINGS OF FACT the name "Zitzelberger" is deleted, and the name "Zitzelsberger" is substituted therefor.
3. The following paragraph is inserted after paragraph four of the administrative law judge's ORDER:
"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $3,487.50. A check in that amount shall be made payable jointly to the complainant and Attorney Brian C. Hough and delivered to Mr. Hough."
4. Paragraph five of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:
"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 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. Stat. § § 111.395, 103.005(11) and (12)."
5. The administrative law judge's ORDER is renumbered accordingly.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed April 13, 2005
baronkr . rmd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
With its petition for commission review the respondent has introduced a motion to supplement the record with evidence of the respondent's acquittal by a jury of the charges against him in a civil case filed by the complainant and three others which concerned the same set of facts, and with evidence of the fact that the police report filed by the complainant never resulted in any criminal charges against the respondent. The respondent apparently contends that these matters constitute newly discovered evidence. The respondent's motion is denied.
With regard to the jury verdict, the commission initially notes that the verdict was dated August 22, 2003, two months before the administrative law judge issued his decision on October 30, 2003. The respondent has not explained why it did not file its motion prior to the issuance of the administrative law judge's decision, so that the administrative law judge could have considered this evidence, and the commission sees no reason to believe it could not have done so. Further, even assuming the respondent could justify its failure to act sooner in this matter, it has not explained why it believes the jury verdict has any bearing on the case now before the commission. The commission is unable to speculate as to what evidence was presented to the jury or what considerations went into its determination that the respondent did not commit an assault and battery on the complainant.
Regarding the lack of criminal charges against the respondent, this again would appear to be a matter of which the respondent could have known prior to the issuance of the administrative law judge's decision, if not prior to the hearing itself. The respondent has provided no explanation for its decision to raise the issue for the first time at this point in the proceedings. Moreover, even if the commission were to consider the fact that no criminal charges were filed against the respondent, it is not at all clear what conclusion should be drawn from this. There are many factors which may affect the exercise of prosecutorial discretion, and a decision not to issue criminal charges is not proof that no crime has been committed. Finally, and more importantly, the fact that the complainant's allegations may not have warranted criminal charges against the respondent does not mean that those same allegations would not warrant a finding of discrimination under the Fair Employment Act.
The majority of the respondent's petition for review is devoted to arguments regarding the credibility of the witnesses. The respondent has identified perceived shortcomings in the testimony of the complainant and her witnesses, and maintains that the administrative law judge's basis for finding the respondent not credible -- Dr. Blue's failure to immediately admit there had been a prior complaint about him -- is flawed. The commission has considered the respondent's arguments, but finds them unpersuasive.
During its review of this matter the commission consulted with the administrative law judge in order to obtain the benefit of his impressions of the demeanor of the witnesses. The administrative law judge strongly indicated that he found Dr. Blue not to be credible, and that he attached more weight to the testimony of the complainant and her witnesses. The administrative law judge also noted that the demeanor of the complainant at the hearing, during which she cried and appeared to be embarrassed, suggested that her story was believable. After consideration of the administrative law judge's demeanor impressions, and based upon its independent review of the record, the commission concurs with the administrative law judge's credibility assessment and agrees that the complainant's version of events was most credible.
Although in its brief the respondent argues that Dr. Blue was not untruthful when asked about prior complaints against him, because he believed he was being asked whether any complaints had been "filed," the commission does not agree with this characterization of the record. Dr. Blue was initially asked a general question about whether there were any complaints against him, but chose to respond to a more limited question than that asked, and stated that no complaints had been "filed." Dr. Blue was subsequently asked whether anyone had ever complained about anything of a sexual nature involving him which related to chiropractic care and responded, "Not to my knowledge." He ultimately acknowledged, in an indirect manner and without providing any detail, that a staff member on whom he had performed trigger point work complained about him and indicated he made her feel uncomfortable. Dr. Blue's testimony on this point was evasive, if not wilfully dishonest, and his unwillingness to be forthcoming did not reflect well on his overall credibility.
The commission sees other reasons to question Dr. Blue's testimony beyond that cited in the administrative law judge's opinion. The commission is troubled by Dr. Blue's testimony about the type of chiropractic treatments he performed on the complainant, which it regards as being similarly evasive and unforthcoming. Although asked several times whether his treatment of the complainant had included work on the buttock area and whether her buttocks were exposed during the course of treatment, Dr. Blue professed confusion about the question and insisted on substituting the terms "lumbosacral," "sacroiliac joint," "pelvic region" or "low back" for "buttocks." Dr. Blue stubbornly refused to acknowledge that he had performed treatments on the buttock area and insisted that he does not diagnose or treat buttocks pain, in spite of the fact that the complainant's medical record, prepared by Dr. Blue, references "intermittent right buttock pain." The commission believes that Dr. Blue's attempt to substitute what his attorney describes as "anatomically correct" terminology for the commonly understood term "buttocks" constituted a disingenuous attempt to avoid answering a direct question, which did not enhance Dr. Blue's credibility as a witness.
Dr. Blue acknowledged having engaged in certain conduct which was admittedly inappropriate. He testified that on one occasion he sat the complainant on his lap in order to perform trigger point work, and agreed this was not appropriate, yet offered no explanation as to why he would have engaged in such conduct. Dr. Blue also acknowledged having given the complainant unsolicited hugs at work, which he stated were to comfort her when she was upset. The fact that Dr. Blue was willing to give hugs in the office to the complainant, a 16-year old girl, and to sit her on his lap in order to work on her back, conduct that was admittedly outside the boundaries of appropriate chiropractic care, leads the commission to believe that he was capable of other types of inappropriate and improper conduct and that he did, in fact, engage in the conduct alleged.
The commission has considered the arguments made by the respondent in its brief raising doubts about the credibility of complainant and her witnesses. However, upon consideration of the overall record, the commission agrees with the administrative law judge that the complainant's version of events was credible. The various witness' allegations of sexual harassment were consistent in nature, without being identical, and the commission believes that Dr. Blue did, indeed, engage in the conduct alleged by the complainant. The commission was also influenced by the testimony of Sandra Zitzelsberger, who was not subject to any inappropriate or sexually harassing conduct by the respondent, but testified that early in her employment Dr. Blue asked her whether she was the type of person who went around "screaming sexual harassment just from joking." Ms. Zitzelsberger indicated that she made it clear to Dr. Blue that, while she could take a joke, she would not tolerate sexual harassment. She stated that she was cautious around Dr. Blue and that he made her feel uncomfortable, and testified that one of her co-workers complained to her about being sexually harassed by Dr. Blue. The testimony of Ms. Zitzelsberger, who has not filed any type of complaint against Dr. Blue, lends further support to the complainant's allegations.
Legal Issue--failure to complain
In the petition the respondent makes an argument that, even if the respondent engaged in sexual harassment, it was not actionable because the complainant never complained about the activity. The respondent maintains that the law requires that the complainant complain about the allegedly improper acts before liability can attach. However, the law contains no such requirement. While, under Wis. Stat. § 111.36(3), an employer is liable for sexual harassment on the part of its employees only if it permits the sexual harassment to occur, sexual harassment perpetrated by the employer or its agent is unlawful without regard to whether the complainant has availed herself of an opportunity to complain. Moreover, as a practical matter, it is hard to imagine to whom the complainant could have complained in this case, where the person engaging in the harassment was both the owner of the business and her direct supervisor.
Attorney Fees and Costs
In its petition for review the respondent argues that the fees awarded by the administrative law judge are excessive and should be reduced. The respondent objects both to the hourly rate and the number of hours granted.
With regard to the hourly rate, the respondent contends that the complainant's attorney made no attempt to identify what the going rate is for legal services in the area in which he practices and that there is nothing to support his request of $150 an hour. Respondent's counsel submits that a contingent fee in the amount of one-third of the total recovery is the customary charge for attorneys who represent plaintiffs in this sort of litigation. This argument fails. The respondent did not object to the $150 hourly rate at the hearing level, and the commission sees no reason to question the reasonableness of the rate at this juncture. The complainant's attorney fee request was accompanied by an affidavit from the complainant's attorney stating that he has practiced employment discrimination law for eight years, along with supporting affidavits from two attorneys, one practicing in Appleton and one in Neenah, both of whom have experience litigating employment discrimination cases, and both of whom attest that $150 is a reasonable fee to charge in the Appleton area by an attorney with eight years of experience for litigating an employment discrimination case. These affidavits provide adequate support for the complainant's attorney's hourly fee request, and the commission sees no reason to question the reasonableness of that rate. Moreover, the respondent's attorney has presented nothing in support of his assertion that it is customary to charge a contingent fee of one-third of the total recovery, and the commission is unaware of any such practice. The commission customarily awards attorney fees based upon an hourly rate multiplied by a reasonable number of hours expended, not as a percentage of the total recovery.
Next, the respondent's attorney reiterates an argument first raised before the administrative law judge that the fee request includes time spent preparing for other litigation, and that the complainant's attorney is attempting to get paid for his unsuccessful work in the civil case by lumping the two cases together and requesting reimbursement in the present case for all of his time. The commission finds no merit in this argument and agrees with the administrative law judge that the mere fact some of the work in this case was useful in a different case is irrelevant, where the work was reasonably related to the proceedings before the Equal Rights Division. The complainant's attorney maintains that he would have done the same work even if there had been no civil trial, and the respondent's counsel has failed to object to any specific charges as being unrelated to these proceedings. Consequently, the commission sees no basis to reduce the amount of fees awarded in the manner suggested.
The time expended in litigating this matter was adequately documented by the complainant's attorney, and the commission sees nothing inherently unreasonable about the number of hours billed. Litigation of this case entailed three days of hearing with multiple witnesses, and included the presentation and analysis of expert medical testimony. While the respondent argues that this is a standard sexual harassment case and that the issues are not novel, it is unusual for a sexual harassment case to require medical testimony or an assessment of the appropriateness of medical practice. The discovery and presentation of that evidence entailed additional preparation time which was appropriately charged to this proceeding. Given the above, and considering that the complainant's attorney prevailed and achieved a favorable result for the complainant, including back pay through the date of the hearing, the commission sees no reason to reduce the amount of the fee request. For these reasons, and because the respondent has failed to demonstrate that any of the items billed were not relevant to this matter or were so excessive as to warrant a reduction, the commission affirms the administrative law judge's decision on attorney fees and costs.
The complainant's attorney has requested an additional $3,187.50 for the time spent responding to the respondent's petition for review and motion to supplement the record. This amounts to 21.25 hours at counsel's hourly rate of $150. The respondent argues generally that this is excessive and should be reduced. The commission disagrees. In order to respond to the petition for review the complainant's attorney had to review three hearing transcripts, totaling approximately 435 pages, for which he reasonably billed six hours, and review the respondent's seventeen-page brief, for which he billed only fifteen minutes. The complainant's counsel also reviewed and responded to the motion to supplement the record, for which he billed two hours. The rest of the time was devoted to the preparation of an eighteen-page responsive brief, which contained numerous citations to the record, and the drafting of the fee affidavit. The commission does not find the number of hours billed for these services to be unreasonable, nor has the respondent explained what amount of time it would consider more appropriate.
Finally, in the responsive brief in support of the request for attorney fees, the complainant's attorney requests an additional $300 for the time spent preparing the responsive brief and supporting affidavit. This amounts to two hours work at the complainant's attorney's $150 rate. The respondent has not raised any objection to this additional request, and the commission sees no reason to question the reasonableness of two hours time spent preparing a four-page brief/affidavit, in which the complainant's attorney responded point by point to the respondent's brief in opposition to attorney fees and costs. The commission therefore awards an additional $3,487.50 in reasonable attorney fees related to the proceedings before the commission.
Attorney Brian C. Hough
Attorney Drew J. Cochrane
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