JOSEPH L VAN DEN ELSEN, Complainant
COUNTY OF BROWN, Respondent
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. In the first paragraph of the administrative law judge's FINDINGS OF FACT, the phrase "Brown County political subdivision of the State of Wisconsin" is deleted and the phrase "Brown County is a political subdivision of the State of Wisconsin" is substituted therefor.
2. The following paragraph is inserted after paragraph 7 of the administrative law judge's FINDINGS OF FACT:
In a "Practitioner's Return to work Recommendations Record" dated April 25, 2000, Dr. Cullen indicated as follows:
"No jackhammer, router or rumble strip router *permanent*"
3. The remaining paragraphs in the administrative law judge's FINDINGS OF FACT are renumbered accordingly.
4. The following paragraph is inserted after paragraph 4 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 $5,836.52. A check in that amount shall be made payable jointly to the complainant and Attorney Bruce Ehlke and delivered to Mr. Ehlke."
5. Paragraph five of the administrative law judge's ORDER is renumbered to paragraph six, and is rewritten to read:
"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)."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 14, 2005
vandejo . rmd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Failure to accommodate (1)
In its petition for commission review the respondent argues that the complainant failed to sustain his burden of establishing the existence of a reasonable accommodation. The respondent maintains that the only accommodation the complainant proposed was that he be permanently relieved from performing work using the jackhammer, an accommodation which the respondent contends was inconsistent with the restrictions imposed by the complainant's doctor and which could not be implemented without inflicting harm to the complainant. The respondent maintains that an employer is entitled to rely on the opinion of a medical professional when such reliance is reasonable and in good faith, and states that requiring the complainant to use prohibited tools would provoke recurrence of his symptoms.
The commission has considered these arguments, but finds them unpersuasive. The commission agrees that, as a general principle, an employer should be able to rely on work restrictions prepared by an employee's own physician. However, this presumes that the employer has not actually had a hand in soliciting the doctor's restrictions. Here, the complainant notified the respondent that he could successfully operate certain vibrating equipment, including a chain saw, and provided the respondent with a doctor's excuse limiting him only from working with the jackhammer, router, and rumble strip router. However, rather than attempting to determine whether the list of tasks the complainant was able to perform could be expanded, the respondent instead took it upon itself to solicit additional restrictions from the complainant's physician. Prior to the issuance of the May 4, 2000, restrictions, upon which the respondent relied to terminate the complainant's employment, the complainant's doctor had never specifically indicated that the complainant could not operate the chain saw, weed eater or brush cutter, and had given every indication that his restriction against using "vibrational tools" referred primarily to the jackhammer. Given these circumstances, the commission questions whether the respondent was justified in relying upon the most recent medical restrictions as a basis to conclude that the complainant could not perform a broad array of tasks beyond that which he indicated would be a problem for him.
Even assuming that the complainant's work restrictions did extend beyond jackhammering to the use of any tool that might vibrate, it is not entirely clear from the record that the complainant required an accommodation. The complainant's bid jobs did not require the use of a jackhammer or other vibrating tools. Thus, the complainant's restrictions would only become an issue if his bid unit was not working and he was assigned to the general labor pool, under which circumstances the complainant would face the possibility that, based on his seniority, he would be required to work with a jackhammer or other vibrating tool. However, the complainant testified that, in the year preceding his discharge, he could not recall ever being assigned to a crew where he was the least senior employee. The complainant explained that in the last year of his employment he was assigned to the rubber crew, paving crew, bridge crew, brushing crew and construction crew and that, with the exception of the jackhammer, there were no tasks other crew members engaged in which he could not perform. He further indicated that, after he was diagnosed with ulnar neuropathy, he was never again put on a crew to jackhammer and did not know whether any crew was out jackhammering during that time.
At the time of his discharge, the complainant was number sixty out of seventy-nine workers with respect to seniority. A co-worker by the name of Scott Seguin testified that he was one person behind the complainant in terms of seniority and that, although he could not specifically recall if he had ever been the least senior person in the work crew since the complainant's discharge in the summer of 2000, he thought it improbable. Mr. Seguin explained that he was part of a group of thirteen truck drivers, four or five or whom were less senior than he, and that the truck drivers were generally grouped together. The complainant was also a truck driver and would therefore have found himself in the same position as Mr. Seguin in terms of seniority and assignments. Mr. Seguin additionally testified that, since the probable cause hearing was held in January of 2002, he has never been the least senior person in the crew and has not been called upon to use any vibrating equipment, except in one instance when he volunteered to work the chain saw. The complainant's and Mr. Seguin's testimony indicates that the likelihood the complainant would be in a position where he could be made to perform jackhammering work or, accepting that he was restricted from the use of any vibrating tool, could be required to operate the chain saw, weed-eater, or brush cutter, was slim. Given the circumstances, the commission is not persuaded that any special accommodation would have been necessary.
Assuming, however, that this matter could be considered one in which an accommodation was required, the commission would agree with the administrative law judge that the respondent failed to demonstrate it could not have provided such an accommodation without hardship. While the respondent argues that it expected there to be grievances and that, further, there would be a negative effect on employee morale if the complainant were permanently provided preferential treatment, the commission does not find these arguments compelling. Regarding the latter, the record contains absolutely no evidence to suggest that accommodating the complainant would adversely affect employee morale. To the contrary, both Mr. Seguin and Thomas Vande Hey, the president of the union bargaining committee, testified that the department included a good group of guys who were willing to help out if someone needed an accommodation, and that the more senior workers did not generally push undesirable jobs on the less senior workers. In addition, it is apparent that there was no general consensus as to which jobs were most favorable, and there is no reason to presume that the job or jobs which the complainant was unable to perform would not be considered desirable by someone else. Indeed, Mr. Vande Hey testified that it would be his personal preference to work the air hammer rather than to perform some of the tasks which the complainant was able to do. The fact that other workers might voluntarily choose to perform jobs the complainant was unable to do indicates not only that there would be no morale problem associated with accommodating the complainant, but supports a conclusion that, at the time of his discharge, no affirmative effort at accommodation was necessary. Finally, the commission notes that the union took the position the complainant could be accommodated, and communicated this position to the respondent, undercutting any argument that other workers were unwilling to assist the complainant or that morale would suffer if he were accommodated.
Turning to the issue of the anticipated union grievances, which appears to have been the respondent's primary excuse for failing to offer an accommodation, the commission agrees with the administrative law judge's conclusion that the respondent should have waited until the contract and the complainant's need to be accommodated clashed and decided the issue then. While it is possible that a situation might have arisen in which the complainant was the least senior person on the crew, and in which all the jobs which the complainant was able to perform were taken by more senior workers, leaving the complainant with no option but to work the jackhammer or other vibrating equipment, the fact remains that the respondent acted prematurely in discharging the complainant without waiting for this eventuality to transpire. In that respect, this case is reminiscent of Catlin v. Crystal Lake Cheese Factory (LIRC, July 20, 2001), aff'd. sub nom. Crystal Lake Cheese Factory v. LIRC, 258 Wis. 2d 414 (Ct. App. 2002), aff'd. 264 Wis. 2d 200, 664 N.W.2d 651 (2003), in which a disabled employee contended she could perform most of her job functions and that co-workers were willing to help out with those she could not manage, but was summarily discharged without being given an opportunity to see if such arrangement could be made to work. Where, as here, an employee tells the employer he is able to perform his job but for a few tasks, co-workers have expressed a willingness to help out, and there is nothing inherently unreasonable about such arrangement, why would the employer not permit the employee to try it? While in this case the respondent blamed its unwillingness to attempt an accommodation on concerns about violating contractual seniority provisions, those stated concerns are unconvincing where even the union asked the respondent to work with the complainant.
In its petition the respondent contends that the administrative law judge erroneously imposed a requirement that it wait until one of the complainant's co-workers filed a grievance. However, this argument mischaracterizes the administrative law judge's decision. Nothing in the decision required the respondent to assign the complainant work out of seniority order if this was likely to result in a grievance. Rather, the administrative law judge found it reasonable to permit the complainant to continue performing his job until such time as his disability rendered him unable to do so and the need for a specific accommodation arose. Clearly that point would not be reached until such time as the complainant was required, by virtue of his seniority, to accept work which he was physically unable to perform, and there was no more senior worker willing to voluntarily trade jobs with the complainant in order to enable him to continue working. At that time it would become necessary to make a determination as to whether discharge was warranted or whether an accommodation might be available that would enable the complainant to preserve his employment. The commission agrees with the administrative law judge's assessment that to discharge the complainant before this situation arose was unnecessary and in violation of the law.
The respondent acknowledged that it has never accommodated an employee on a permanent basis and, as in Crystal Lake Cheese Factory, the evidence suggests that the respondent was not genuinely interested in offering an accommodation to the complainant. Although the respondent had some indication that the complainant's restrictions may be less extensive than what it assumed to be the case, it made no attempt to find out whether the list of duties the complainant could perform could be expanded. Instead, the respondent contacted the complainant's doctor and solicited broader restrictions. Moreover, the respondent's witnesses indicated that, even if the complainant's only restriction was occasional use of the jackhammer, they would still have been unable to accommodate him. Given the infrequency with which the complainant would be required to work with a jackhammer, a stated inability to accommodate a minor limitation on jackhammer use is indicative of a general lack of interest in keeping the complainant employed.
Finally, the commission notes that in its brief the respondent has challenged numerous of the administrative law judge's factual findings. The commission has considered the respondent's challenges to the administrative law judge's factual findings, but finds them lacking in merit. Although there may be instances in which the evidence in the record could support more than one version of the facts, based upon its independent review the commission believes that the administrative law judge's factual findings are supported and, further, that those findings warrant a conclusion that the complainant was discriminated against in the manner alleged.
In a separately filed petition for commission review the complainant takes issue with the administrative law judge's decision to reduce his attorney's requested hourly rate from $300 to $200 and the law clerk's hourly rate from $100 to $60, and with the decision to reduce the number of hours reasonably expended by his law clerk to read the transcripts and assist with drafting the brief. The commission has considered complainant's arguments on this issue, but finds them unpersuasive.
A reasonable fee is calculated according to the prevailing market rates in the relevant community. It is anticipated that, along with the fee petition, the attorney requesting payment will submit affidavits from other attorneys in the locality establishing that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. An hourly rate determined based on such affidavits is normally deemed to be reasonable. See, Blum v. Stenson, 45 U.S. 886, 34 FEP Cases 417 (1984); Roytek v. Hutchinson Technology Inc. (LIRC, Feb. 15, 2005).
In his first affidavit, dated April 24, 2004, the complainant's attorney, Mr. Ehlke, detailed his experience and qualifications and stated: "This affidavit is being submitted in support of a request that the Department award attorney fees in this case at the rate of $300.00 per hour for the legal work indicated in the attached statement. The rate suggested for the Law Clerk's work is $100.00 per hour." In that affidavit, the complainant's attorney additionally stated, "I am reliably informed and believe that the hourly rate I have requested actually is somewhat low for someone with my experience and ability." In a supplemental affidavit dated May 11, 2004, Mr. Ehlke reiterated essentially the same assertions. A cover letter to the supplemental affidavit, written by the complainant's attorney, contains the following statement:
"I am reliably informed, and I believe that it is a matter of common knowledge in this community, that Madison Attorneys of comparable skill, experience and reputation, who represent employees in cases similar to the case at hand, [names of specific attorneys omitted], regularly request and are awarded attorney fees for the work that they do in such cases at the rate of $300.00 to $350.00 per hour, and sometimes at the rate of $400.00 per hour."
However, Mr. Ehlke did not supply affidavits from any of the attorneys mentioned establishing that they charge such rates, and notwithstanding the assertion to the contrary, it is not a matter of "common knowledge" that similarly situated attorneys charge $300 to $400 an hour. The complainant bears the burden of demonstrating that the rate requested is prevailing in the community. The complainant's attorney's representations made in a letter to the administrative law judge, and unsupported by any affidavits from similarly situated attorneys or other competent evidence, simply do not satisfy that burden.
Moreover, as the administrative law judge noted in his decision, the complainant's attorney has not contended that he typically charges $300 an hour, and there is no basis to conclude that $300 is his normal hourly rate. In his brief to the commission the complainant's attorney takes issue with this reasoning, arguing that when determining what a reasonable fee is, the amount "normally" charged by the attorney is not a consideration. However, the complainant's attorney has not presented any example of a case in which the commission or a court has ordered reimbursement at an hourly rate higher than the rate actually charged by the attorney, and the commission is unaware of any precedent for doing so. In Roytek v. Hutchinson Technology Inc., supra, the commission specifically rejected the notion that an attorney can reasonably request an hourly rate of reimbursement upon securing a favorable judgment which exceeds the rate the attorney habitually charges clients for legal services. The term "prevailing market rates," upon which reasonable fees are calculated, refers to the rates actually charged for legal services in a community. Since the rationale for permitting the complainant to recover his reasonable attorney fees and costs is to make him whole for the discrimination he has suffered, the commission sees no basis to award fees in excess of what the attorney actually charged the complainant or, where the attorney has not billed the complainant for his services, would charge other paying clients. The commission, therefore, declines to increase the hourly rate to $300.
With respect to the law clerk, the administrative law judge reduced the $100 hourly fee requested to $60 based on the fact that in his affidavit Mr. Ehlke characterized the $100 hourly rate as a "suggested" rate, while acknowledging in his cover letter that the law clerk's services were billed out at $60. The commission agrees with the administrative law judge that, where the law clerk's time was billed to the client at a rate of $60 an hour, that is the appropriate rate of reimbursement.
Regarding the number of law clerk hours billed to review the transcripts and assist with the brief, the commission agrees with the administrative law judge that the amounts originally requested were excessive. The complainant's brief to the commission contains no argument with respect to the number of hours reasonably expended on the brief to the administrative law judge, but focuses exclusively on the amount of time spent reviewing the transcripts. On this point, the complainant's attorney states that it is understandable it might take the law clerk longer to carefully review the transcripts than it took to conduct the hearing, particularly since he was not present at the hearing. He further contends that it was more economical to have the law clerk read the transcript than to do it himself, since the law clerk's time is billed at a lower hourly rate. The transcripts in this case were voluminous, totaling approximately 850 pages in length. However, while the commission appreciates that it can take a long time to review such a transcript, it agrees with the administrative law judge that twenty-three hours is excessive, even for a law clerk, and that a reduction was warranted. The commission believes that the number of hours awarded by the administrative law judge is reasonable and it affirms that aspect of his decision.
Attorney fees and costs for petition for review
The complainant is entitled to additional attorney fees and costs incurred in conjunction with responding to the respondent's petition for review. In his petition the complainant requests a total of 127 hours for Attorney Ehlke's time, .5 hours for Attorney Parsons, (2) and 101.75 hours for Attorney Ehlke's law clerk. This amounts to an additional 22.5 hours for Mr. Ehlke, .5 for Mr. Parsons, and 8.25 for the law clerk since the issuance of the administrative law judge's decision. In a footnote to the reply brief Mr. Ehlke supplements this request by an additional 13.25 hours, for a total of 35.75 hours expended by Mr. Ehlke subsequent to the issuance of the administrative law judge's decision.
In its responsive brief to the commission the respondent argues that the complainant's attorney is requesting an additional 30.75 for preparing his brief to the commission, and that this is excessive because the brief is substantially similar to the post-hearing brief. The respondent has not elaborated upon this argument and has not explained what amount of time it believes would be more reasonable. The respondent has not challenged the time requested for Mr. Parsons or the law clerk. The commission has reviewed the fee petition, but does not discern 30.75 hours spent on the brief. Rather, the billing statement indicates that Mr. Ehlke spent approximately 17.5 hours on the brief, with another 4.75 hours by his law clerk and .5 hours by Mr. Parsons. This does not seem excessive, nor do the briefs to the commission appear to be strikingly similar to the ones filed below. While the post-hearing brief did, of necessity, cover some of the same ground as the commission brief, it is not readily apparent that they are duplicative, and the respondent has not demonstrated this to be the case. Moreover, the commission has held that, if the respondent is of the opinion that the amount of time expended on briefing was excessive, it is the respondent's obligation to suggest an amount of time that would be more reasonable. The respondent has not done so in this case. Because the commission does not believe that 35.75 hours for Mr. Ehlke, .5 hours for Mr. Parsons, and 8.25 for a law clerk are clearly excessive in conjunction with the petition for commission review, and because the respondent has not demonstrated otherwise, it does not order any reduction on that basis.
However, the commission does note that a portion of the attorney fees incurred in conjunction with preparing the petition and briefs to the commission related to the complainant's unsuccessful cross-petition regarding the attorney fee issue. A reduction in fees to reflect the fact that the complainant did not prevail on its cross-petition is warranted. There is no precise formula which must be followed in determining the appropriate reduction for partial success, but two approaches that have been recognized are to either attempt to identify specific hours that should be eliminated or to simply reduce the award to account for the limited success. The complainant's fee affidavit does identify some specific items that relate solely to the attorney fee issue, such as the time spent preparing the complainant's petition. However, the hours spent briefing and doing research, which account for the bulk of the time billed, are generally not broken down by issue. It is, therefore, not possible to completely separate out and subtract those items which pertained solely to the complainant's petition.
The complainant's brief to the commission is thirty-seven pages in length, with seven pages devoted to the attorney fee issue. The reply brief is sixteen pages long, with six pages addressed to attorney fees. Even when taking into consideration the fact that additional time went into filing the complainant's petition, which related solely to the issue of attorney fees, it appears that the majority of the time expended related to addressing the respondent's arguments on the merits of the case. The commission concludes that, had the complainant not filed a petition on the question of attorney fees, the time spent in litigation before the commission would have been reduced by approximately one-fourth. The commission therefore orders payment of the fees requested, subject to a one quarter across-the-board reduction to reflect the amount of time devoted to issues on which the complainant did not prevail and, therefore, for which he is not entitled to reimbursement.
The fees requested for work at the commission level, at the hourly rates discussed above, amount to a total of $7,705. (3) Reduced by one fourth, this becomes $5,778.75. The commission considers $5,778.75 to be a reasonable attorney fee for the time expended in connection with the proceedings before the commission, and it awards payment in that amount.
The complainant has also requested an additional $77.03 in itemized disbursements. The respondent argues that the items requested, Westlaw research fees and long-distance telephone charges, are not recoverable under Wis. Stat. § 814.04(2). However, Chapter 814 of the statutes does not apply to proceedings before the commission. The commission routinely orders repayment of out-of-pocket expenses, including research and telephone fees, provided those expenses were reasonably incurred as part of the litigation. Lacking any reason to believe that the itemized costs billed to this proceeding were not reasonably incurred as part of this litigation, the commission orders that those costs be paid, subject to the same proportional reduction as was applied to the attorney fees. A total of $57.77 in costs has therefore been added to the amount ordered by the administrative law judge.
Attorney Bruce F. Ehlke
Attorney Anna M. Pepelnjak
Joseph L. VanDenElsen
Joseph L. VanDen Elsen
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(1)( Back ) The respondent argues in a footnote that the issue of reasonable accommodation is moot because the complainant failed to file an appeal of the September 30, 2002, decision which found no probable cause to believe that the respondent's articulated reason for refusing to accommodate the complainant was pretextual. This argument, which the respondent has failed to develop, is wholly without merit. The September 30, 2002, decision found probable cause to believe that the respondent refused to provide the complainant with a reasonable accommodation and certified the case for hearing on the merits. The probable cause decision, which was in any event favorable to the complainant, was not subject to appeal.
(2)( Back ) The .5 hours for Attorney Parsons is billed at $120. The complainant has failed to provide any affidavit or other information establishing this is a reasonable rate, stating again, that it is a "suggested" rate. However, because the respondent has not challenged it as unreasonable, and because an hourly rate of $120 does not appear on its face to be unreasonable for an attorney practicing in the area of employment discrimination in this locality, the commission sees no reason to question that rate.
(3)( Back ) This breaks down to 35.75 hours for Attorney Ehlke at the rate of $200 per hour, .5 hours for Attorney Parsons at the hourly rate of $120, and 8.25 hours for the law clerk at the hourly rate of $60.