ERD Case No. 8350622, EEOC Case No. 055832642

On September 12, 1984, an examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter dismissing Complainant's complaint based on his failure to appear at the scheduled hearing, and denying Respondent's petition for attorney's fees and actual cost incurred for preparation for and attendance at said hearing. Respondent filed a timely petition for review of the examiner's decision and subsequently submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


That the attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 19, 1985

/s/ David A. Pearson, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ Hugh C. Henderson, Commissioner


The prevailing Respondent herein seeks attorney's fees. Respondent states that the factual basis for its request is that, despite having received due notice of the hearing, Complainant (who was unrepresented) failed to appear at the hearing; Complainant has never offered an excuse for his conduct; and, as a result of Complainant's conduct, the Respondent was required to incur the expenses required to prepare for the hearing. It is Respondent's position that by analogy to Gloria Watkins v. Labor and Industry Review Commission, 117 Wis. 2d 753, 345 N.W. 2d 482 (March 27, 1984), the department has inherent power to award attorney's fees to a prevailing employer especially where it has been forced to incur costs solely because of the unjustifiable conduct of the other party.

Respondent further argues that: (1) there is no question that attorney's fees could be awarded to the defendant in a Title VII action based upon the outcome of proceedings before DILHR, citing Nottleson v. Smith Steelworkers D.A.L.U. 19806, AFL-CIO, 643 F.2d 445 (7th Cir.), cert. denied, 454 U.S. 1046 (1981 and Christiansburg Garment Co. v. EEOC, 434 U.S. 12 1978); that the Respondent would be entitled to an award of attorney's fees in a Title VII action based upon the outcome of this case if Complainant had pursued his federal remedy; that Respondent should not be deprived of this right simply because Complainant failed to file a federal court action; that an award of attorney's fees by DILHR would be consistent with the principles underlying Title VII and would further the cooperative state-federal legislative scheme; and (2) that pursuant to its broad powers set forth under sec. 111.39(2) and ch. 101, particularly 101.02(1) ( * ), DILHR could establish by rule, in this case, "that it would award attorney's fees to prevailing parties, whether respondent or complainant (the decisional rule established in Watkins, supra, was applied 'retroactively' to that case)."

The Commission finds that Respondent's request for attorney's fees must be denied. In Watkins, the Court concluded that DILHR's authority to award reasonable attorney's fees to a prevailing complainant could be fairly implied when the language of section 111.36(3)(b) [now 111.39(4)(c)] is construed in light of the purposes of the Act and the legislative mandate to liberally construe the Act. Specifically, the Court noted that the two purposes of the Act were to make victims of discrimination whole and to discourage discriminatory employment practices; that under 111.36 (3) (b) once the department found that a respondent had engaged in discrimination the department was specifically authorized to order such action by the respondent as will effectuate the purpose of the Act. However, in contrast, DILHR's authority to award attorney's fees to a prevailing employer cannot be fairly implied.

In addition to lack of support based on the purposes of the Act, sec. 111.39 (4) (d) simply provides that if the examiner finds that the respondent has not engaged in discrimination as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant together with an order dismissing the complaint.

Further, the Nottleson and Christiansburg Garment Co. cases do not provide support for the proposition that attorney's fees could be awarded to the defendant in a Title VII action based upon the outcome of proceedings before DILHR. In Nottleson, the employer was not the prevailing party, the complainant was. In Christiansburg Garment Co., the employer was the prevailing party. There, the question before the U.S. Supreme Court was: Under what circumstances should an award of attorney's fees be allowed when the defendant is the prevailing party in a Title VII action? (Title VII allows the prevailing party attorney's fees.) The Court held that "A district court may in its discretion award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable or without foundation, even though not brought in subjective bad faith." However, despite this pronouncement where an employe had failed to appear for two scheduled hearings, a deposition, and made no attempt to explain her failure to prosecute, a federal court has held that "We do not believe that the mere failure to prosecute, without more, establishes as a matter of law that a claim is either frivolous or vexatious. There is absolutely no evidence in the record concerning the merits of Mrs. Anthony's claim. It may or may not be frivolous. While plaintiff's unreasonable delay and inaction is certainly a factor to be considered, it does not, by itself., constitute vexatiousness or harassment." Anthony v. Marion City General Hospital, 23 FEP Cases 1528, 5th Circuit (1980). In sum, even if Complainant Dantzler had pursued his federal remedy in the same manner he did his state remedy it is not clear that Respondent would have been awarded attorney's fees.

Finally, in response to Respondent's arguments regarding the department's power under ch. 101 to adopt rules to govern its proceedings and to regulate hearings, Judge Byrne has recently stated as follows:

"Section 227.011(2), Wis. Stats., states that 'no agency may adopt a rule which conflicts with state law.' Similarly, section 227.014(2)(a), Wis. Stats., states:

Each agency is authorized to adopt such rules interpreting the provisions of statutes enforced. or administered by it as it considers to be necessary to effectuate the purpose of the statutes, but such rules are not valid if they exceed the bounds of correct interpretation."

Milwaukee Board of School Directors, et al, v. DILHR et al., Dane Co. Cir. Ct. (January 4, 1985).


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(*)( Back ) Section 101.02(1) provides that the department shall have the power, jurisdiction and authority: (1) to adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings."

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