ERD Case No. 8351095, EEOC Case No. 055832971

On January 18, 1985, an examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter dismissing Complainant's complaint, in accordance with Complainant's written request to withdraw her complaint against the Respondent.

On February 7, 1985, Respondent's attorney filed a "Motion for Attorney's Fees," which was accepted as a petition for Commission review. Respondent's attorney submitted written arguments in support of his Motion; and Complainant's attorney, although given an opportunity to do so, has failed to submit any written arguments.

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


That Respondent's Motion for Attorney's Fees is denied, and the attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed August 9, 1985

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

Carl W. Thompson, Commissioner


Respondent's attorney has cited the fact that Complainant and her attorney pursued the complaint in this matter even after a complaint involving the same matter was dismissed by the United States Equal Employment Opportunity commission on September 29, 1983. Also, Complainant failed to submit a list of witnesses and exhibits to the department or the Respondent prior to the hearing, and requested and was granted a postponement of the hearing two days before its scheduled date. After all this, Complainant appeared at the hearing only to withdraw her charge and state that she had mistaken her remedy.

In Watkins v. LIRC, 117 Wis. 2d 753 (1984), the Supreme Court limited its holding to the allowance of reasonable attorney's fees to a complainant who prevails in an action brought pursuant to the Wisconsin Fair Employment Act. The Court did not address the issue of whether reasonable respondent's attorney's fees should also be allowed. However, allowance of such fees would not promote the two purposes of the Act cited by the Court in its rationale: (1) to make the individual victims of discrimination "whole;" and (2) to discourage discriminatory practices in employment.

In Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the U.S. Supreme Court held that a defendant who prevails in a case under Title VII of the Civil Rights Act of 1964 may recover attorney fees if it is found that the plaintiff's claim was ". . . frivolous, unreasonable or groundless (without foundation), or that the plaintiff continued to litigate after it clearly became so." However, § 706(k) of Title VII provides that a court may in its discretion allow reasonable attorney's fees to the "prevailing party." No similar provision exists in the Wisconsin Fair Employment Act. Furthermore, although the Complainant and her counsel appeared to have behaved in an inconsiderate and unprofessional manner, there is no proof that the claim was prosecuted in such a fashion as to justify Respondent's attorney's fees under the Christianburg standards. Complainants are entitled to seek remedy for perceived discrimination in both the federal and state forums. While it would be possible to infer that Complainant and her attorney had abandoned any hope of prevailing in this case well before the hearing date of November 28, 1984, it is also possible to infer that the decision to withdraw was made at the last moment. Complainant's failure to notify Respondent of the decision to withdraw certainly is a factor to be considered under the Christianburg standards, but without further evidence of frivolous or unreasonable behavior the Commission would not find it to be enough. In addition, it must be reiterated that the Wisconsin Supreme Court has not adopted the Christianburg standards as being applicable to the Wisconsin Fair Employment Act.


Appealed to Circuit Court.  Affirmed September 2, 1986.

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uploaded 2005/06/17