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



ERD Case No. CR200300021

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 makes the following:


1. The respondent, Family Dollar Stores, Inc., (hereinafter "respondent") operates approximately 260 retail stores in four states, including Wisconsin.

2. The complainant, James L. Robertson, (hereinafter "complainant"), applied for a job with the respondent on October 21, 2002.

3. The job application which the complainant completed asked whether he had ever been convicted of a crime. The complainant circled the word "Yes." In response to the next question, "If yes, explain," the complainant wrote, "Will discuss during interview."

4. On November 1, 2002, the respondent extended an offer of employment to the complainant contingent upon his satisfactory completion of a background check and pre-employment drug screen.

5. The complainant accepted the job offer and started work for the respondent on November 5, 2002. He was initially assigned to work as a stocker at a store located on 13th Street and Mitchell in Milwaukee. However, during his brief employment with the respondent he worked at several of the respondent's store locations in the Milwaukee area. As a stocker, the complainant's primary responsibility was to move merchandise from the stock room to the floor. He spent the majority of his time in the stock room.

6. The respondent's employees are predominantly female. However, most, if not all, of the female employees are cashiers who work at the front of the store, rather than in the stock room. Depending upon the time of day, there would be at least one or two other employees present in the store, including a manager or assistant manager. The complainant never worked alone.

7. In addition to its own employees, the respondent engages the services of armed security guards, who are posted at the front of the store near the cash registers. A security officer is always on the premises during normal operating hours. Although the guards are discouraged from going into the non-public areas of the store, including the stock room, they do have access to those areas.

8. The respondent's stores average between 9,000 to 10,000 square feet in size. An average of four to six hundred customers patronize the store locations where the complainant worked each day. The stock rooms, restrooms and offices were not open to the public, and the complainant's only interaction with customers would be in the general area of the store.

9. The stock room in one of the respondent's stores typically has an inside door that leads from the front of the store into the stock room, as well as a back door which leads to the outside. It is the respondent's practice to leave the inside door to the stock room shut when the store is open.

10. The respondent's stores are monitored by security cameras to prevent shoplifting. The cameras do not cover every inch of the store, but focus primarily on parts of the store subject to the highest levels of "shrinkage." (1)

11. The respondent did not complete its background check of the complainant until December 9, 2002. The background check revealed that on October 27, 1982, the complainant was convicted of second degree sexual assault and that, on January 30, 1986, he was convicted of possession of an illegal drug with intent to deliver.

12. Some time after December 9, 2002, the respondent's district manager learned of the results of the complainant's background check and decided to terminate the complainant's employment. The complainant was discharged on December 18, 2002, because of his criminal conviction record.

13. The complainant earned $7.00 an hour as a stocker for the respondent. During his employment the complainant worked full time, as well as some overtime, due to the holiday season. Had the complainant not been discharged, he would have continued to work full time, but would not have continued to receive overtime after the holiday season concluded.

14. The complainant was offered and accepted a job with Neptune Sandwiches beginning on or about June 1, 2003. However, he quit that job after one day because it paid only $6.00 an hour.

15. The complainant began employment, through Spherion, at a JC Penney store, on August 4, 2003. He earned $8.75 an hour in this employment, but was discharged on November 7, 2003, a week prior to the hearing, due to a performance error.

16. As of the date of the hearing, November 13, 2003, the complainant was not looking for work. The complainant indicated that he intended to remove himself from the labor market in order to enroll in school full time and, further, that he planned to help out at a family-owned restaurant without pay.

Based upon the FINDINGS OF FACT above, the commission makes the following:


1. That the complainant is an individual with a conviction record, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act").

2. That the circumstances of the complainant's convictions are not substantially related to the circumstances of the job of stocker for the respondent, within the meaning of the Act.

3. That the respondent unlawfully terminated the complainant's employment based upon his conviction record, in violation of the Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:


1. That the respondent shall cease and desist from discriminating against the complainant because of his conviction record.

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the amount he would have earned as an employee from the date of discharge until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Beginning June 1, 2003, the complainant's back pay shall be reduced by the amount the complainant could have earned had he remained employed at Neptune Sandwiches. The complainant is not entitled to back pay from August 4, 2003, through November 13, 2003, and until such time as he reenters the labor market or makes reasonable efforts to mitigate his damages. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter in the amount of $10,900.10. A check in that amount shall be made payable jointly to the complainant and Attorney James P. End and delivered to Mr. End.

5. 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 Order. 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).

Dated and mailed October 14, 2005
robertj . rrr : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. Wis. Stat. § § 111.321 and 111.322. However, the law contains the following exception:

Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .

Wis. Stat. § Section 111.335(1)(c)1.

In drafting that exception, the legislature sought to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee the Wisconsin Supreme Court stated, in relevant part:

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience.

"In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related."

Id. at 823.

A determination as to whether the circumstances of a criminal offense are substantially related to a particular job requires assessing whether the tendencies and inclinations to behave in a certain way in a particular context are likely to reappear later in a related context, based on the traits revealed. It is the circumstances which foster criminal activity that are important, e.g., the opportunity for criminal behavior, the reaction to responsibility, or the character traits of the person. Id. at 824. The appropriate method for evaluating the substantially related question is to look first at the statutory elements of the offense involved, since focusing on the elements helps elucidate the circumstances of the offense. Id. at 826.

In 1986 the complainant was convicted of possession with intent to deliver based upon his possession of what he described at the hearing as a "dime bag" of marijuana. Although the record contains no evidence on this point, the commission takes administrative notice of the 1986 statute regarding possession of controlled substances with intent to deliver, which provided:

(1m) Except as authorized by this chapter, it is unlawful for any person to possess, with intent to manufacture or deliver, a controlled substance. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation. . . .

Wis. Stat. § 161.41(1m)(1985-86).

The complainant's conviction for possession of marijuana with intent to deliver indicates a propensity to unlawfully possess and sell illegal drugs.

In 1982 the complainant was convicted of second degree sexual assault. The 1982 statute pertaining to second degree sexual assault, of which the commission also takes notice, provided as follows:

(2) SECOND DEGREE SEXUAL ASSAULT. Whoever does any of the following is guilty of a Class C felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

(b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.

(c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.

(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.

(e) Has sexual contact or sexual intercourse with a person who is over the age of 12 years and under the age of 16 years.

Wis. Stat. § 940.225(2)(1981-82).

The statute contained the following definition of "sexual contact":

"Sexual contact" means any intentional touching by the complainant or defendant either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19(1).

Wis. Stat. § 940.225(5)(a)(1981-82).

The statute also included a definition of the term "consent":

"Consent," as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. . . The following persons are presumed incapable of consent. . .

(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct

(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

Wis. Stat. § 940.225(4)(1981-82).

Unlike the crime of possession of illegal drugs with intent to deliver, the elements of which are reasonably straightforward, the statutory definition of second degree sexual assault encompasses a wide range of offenses which could reflect a variety of character traits, depending in part upon which portion of the statute has been violated. For instance, the second degree sexual assault statute criminalizes both sexual conduct which involves force and coercion as well as sexual conduct that is considered nonconsensual, not because of the threat or use of force, but because of the age or mental state of the victim. Moreover, the conduct which violates the statute can range from touching someone on the outside of the clothing without that person's informed consent, to conduct which would be regarded as substantially more severe. The record here contains no evidence as to which subsection of the statute was violated, and nothing about the fostering circumstances of the crime, (2)  other than that it occurred in the complainant's home and involved his girlfriend. There is no evidence as to the severity of the assault, whether it involved the use or threat of force, or whether the complainant's girlfriend was a minor or otherwise presumed incapable of consent. While there are, of course, some common character traits evidenced by having violated any of the enumerated statutory subsections including, most obviously, a willingness to engage in a nonconsensual sexual act, it cannot be assumed based upon a mere reading of the statutory elements that the character traits revealed by having committed an act of second degree sexual assault include an inclination to engage in sexual conduct by use of force or threats, or an inclination to prey upon individuals who are especially vulnerable, and it is difficult to arrive at any general conclusions as to the dangerousness of the individual who has committed such a crime.

The respondent contends that the complainant's conviction for possession with intent to deliver is substantially related to the job of stocker at the Family Dollar Store, because the position of stocker would have provided him with substantial opportunities to deal drugs out of the respondent's premises, and that the conviction for second degree sexual assault is substantially related to the job because the stocker position provided the complainant with a substantial opportunity to engage in nonconsensual sexual conduct on its premises. At the hearing the respondent's regional vice president, Sandy Santana, testified that the respondent discharged the complainant because it has women working in the store and was concerned about the safety of its employees, and because drug dealing out of the store would have a negative impact on the store. With regard to how the job would provide an opportunity to offend, Mr. Santana explained that the respondent has had situations in which non-employees have been in the back room of the store and where employees have taken merchandise out of the store, presumably by using the back door. Mr. Santana stated that it is possible for an employee to be in non-public areas of the store, where he could deal drugs without being detected by other employees or security guards. He also stated that any employee would be able to see where the security cameras were located, and that it was possible to engage in criminal conduct that would not be recorded by the cameras. Mr. Santana additionally testified that it would be possible that a person screaming in the back room would not be overheard in the store if the door to the stock room were closed.

While the administrative law judge accepted these arguments and found the existence of a substantial relationship between the circumstances of the complainant's crimes and the circumstances of the job, the commission believes that the administrative law judge's decision overstates both the degree of opportunity to reoffend and the complainant's propensity to do so. The record indicates that the complainant was never alone in the work place and, even in situations where there was only one other worker in the store, a circumstance which the complainant disputed had ever occurred, the respondent always had a security guard and a manager present. In addition, hundreds of customers are in and out of the store each day. The respondent's stores are monitored by security cameras and, while the respondent argued that the complainant could walk out of range of the cameras in order to engage in illegal acts, it failed to explain or demonstrate how the complainant would know that he was out of camera range. The mere fact that the complainant could observe where the security cameras were located does not mean he would be able to avoid detection by the cameras. Moreover, even assuming it were possible to do so, the fact remains that a workplace which is guarded by an armed security guard and monitored by security cameras is not an environment which is particularly conducive to criminal activity, whether that activity be selling drugs or engaging in acts of sexual assault.

The respondent's primary argument with respect to the opportunity to sell drugs is that the stock room door is kept closed and that, when all the other employees are in the front of the store, the complainant would have an opportunity to deal drugs out of the back room unobserved. It likens this matter to Goerl v. Appleton Papers, Inc. (LIRC, Oct. 5, 1992), and Villarreal v. S.C. Johnson and Son (LIRC, Dec. 30, 2002), in which the commission found a substantial relationship between drug-related offenses and warehouse or manufacturing work. However, both Goerl and Villarreal involved employees who had unfettered access to huge facilities, were not subject to any surveillance, and had little or no supervision and large amounts of free unstructured time. Here, the complainant's workplace, while large, was not the enormous building in which Goerl or Villarreal worked, nor was it established that the complainant's job afforded him the same degree of privacy or independence. Moreover, unlike Goerl or Villarreal, the complainant's workplace was monitored by security guards and cameras. While it is certainly possible to engage in criminal activity under such circumstances, the opportunity to do so cannot reasonably be described as being greater than in most workplaces.

With regard to the conviction for second degree sexual assault, the respondent maintains that the complainant would be able to bring someone into the stock room without being detected by the cameras and that, if the stock room door was closed, a person screaming in the stock room would not be heard at the front of the store. It suggests that the complainant could "lure" a female customer or co-worker into the stock room, assault her, then use the back door of the stock room to force his victim out of the store. However, it has not been established that the complainant has the propensity to lure random victims in order to perpetrate assaults upon them, and the mere fact of his conviction for second degree sexual assault does not warrant such a conclusion. The complainant's conviction stemmed from a domestic incident which occurred in his home and involved his girlfriend. No evidence was presented to suggest that the complainant is inclined to use force or violence against strangers, nor does a single conviction for second degree sexual assault establish that the complainant poses a general danger to all females. Indeed, the fact that twenty years have elapsed since the conviction without the complainant's having reoffended, during which time it can be presumed that he has come into contact with females, would seem to indicate that he does not pose a general threat to all females, such that the mere presence of females in the workplace would create a risk of recidivism for him. Finally, even assuming that the complainant had such inclinations, the mere fact that there could conceivably be a scenario in which he could assault someone without being heard does not warrant a conclusion that the job presented a substantial opportunity to do so.

The commission recognizes that an individual who is inclined to engage in criminal activity can potentially find a way to do so in virtually any employment setting. However, the mere possibility that a person could reoffend at a particular job does not create a substantial relationship. Rather, the question is whether the circumstances of the employment provide "a greater than usual opportunity for criminal behavior," Moore v. Milwaukee Bd. of School Directors (LIRC, July 23, 1999), or "a particular and significant opportunity for such criminal behavior." Herdahl v. Wal-Mart (LIRC, Feb. 20, 1997). It is inappropriate to deny the complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct. The respondent has not shown that such opportunity exists in this case. A work environment in which a manager and armed security guard are always present, where security cameras are posted, where the complainant never works completely alone and performs all his work on the premises, and where it can be presumed there is no access to drugs or drug-related products, is not one particularly conducive to drug-related criminal activity on the complainant's part. With regard to sexual assault, the aforementioned factors render the job one which also presents no significant opportunity for criminal behavior, the mere presence of female employees or customers notwithstanding.

In evaluating a case of this sort, the commission finds it useful to consider the question of what job would be suitable for the complainant given his criminal record, if not the job at hand. An assessment of that question in the Herdahl case, cited above, which involved the relationship between a criminal conviction for possession of marijuana and the job of stocker at a Wal-Mart store, led the commission to observe that if the complainant was considered unsuitable for the position at issue based upon the potential to distribute drugs, then it would appear she could be lawfully excluded from essentially every job which placed her in contact with other workers or with the public, and which did not provide constant direct supervision. The commission found that such a result would be inconsistent with the goals of the Act, which are, in part, to foster rehabilitation and employment of individuals with criminal arrest and conviction records. The same rationale applies equally here. The substantial relationship provision of the statute seeks to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. The rehabilitative purpose of the statute is not furthered by a finding which suggests that a person with a conviction record can be excluded from future employment based upon the barest of possibilities that he or she could reoffend, when there is no reason to believe that the job presents any particular or significant opportunity to do so.

The burden of showing that a statutory exception applies is on the proponent of the exception. Chicago & Northwestern R.R. v. LIRC, 91 Wis. 2d 462, 467, 283 N.W. 2d 603 (Ct. App. 1979). The respondent contends that the complainant's 1982 conviction for second degree sexual assault and his 1986 conviction for possession with intent to deliver are substantially related to the position of stocker at one of its retail stores. The commission is not satisfied that the respondent has met its burden of establishing that such a substantial relationship exists, and it concludes that the complainant's discharge from the position of stocker based upon his criminal conviction record was in violation of the Act.

Remedies (3)

A prevailing complainant is presumed to be eligible for "make whole" relief, including reinstatement to a position substantially equivalent to the position he held prior to his discharge, and back pay from the date of the unlawful discharge until the date on which he either returns to work for the respondent or refuses a valid offer of reinstatement. However, the complainant has an obligation to mitigate his damages and, if the respondent can demonstrate that he failed to make a diligent effort to do so, the back pay award may be reduced by the amount the complainant could have earned had he exercised reasonable diligence in seeking new employment. In deciding what remedy is appropriate, uncertainties are resolved against the discriminating employer. See Fields v. Cardinal TG Co. (LIRC, Feb. 16, 2001), citing Silvers v. Madison Metropolitan School District (LIRC, July 25, 1986); Jones v. Dy-Dee Wash (LIRC, Nov. 4, 1988).

A. Reinstatement

In its brief to the commission the respondent contends that the complainant is not entitled to reinstatement, because his position with the respondent was only a temporary one in the first place. However, the respondent did not meet its burden of establishing this was the case. Exhibit 5 in the record, a Personnel Action Form, indicates that the complainant was a "stocker - temp. hire" and that his first day of work was November 5, 2002. A second Personnel Action Form, Exhibit 6, indicates that there was a position change to "part-time hourly," at a different store, effective November 17, 2002. This second Personnel Action Form contains no indication that the position was temporary. The respondent has explained that when a new store opens, all non-managerial employees are hired on a temporary basis for the first two weeks the store is open, after which time some employees will be offered regular positions and others laid off. Here, however, the complainant was not laid off two weeks after he began his employment, but was transferred to a different store location, for which a new personnel action form, which no longer specified the complainant was a temporary employee, was prepared. Although at the hearing the respondent's witness testified that the complainant remained a temporary employee, absent a personnel action form stating otherwise, the evidence seems to warrant the opposite conclusion. Moreover, at the hearing the respondent's witness was specifically asked if he knew whether the complainant would have been laid off or retained after another two weeks, but testified that he did not know. The complainant was never told his employment was temporary, and he was discharged on December 18, 2002, about six weeks after his start date, for reasons unrelated to his having been a seasonal or temporary employee. Under all the facts and circumstances, the respondent has not persuaded the commission that the complainant's employment was only meant to be temporary, and it therefore sees no reason to conclude that he is not entitled to reinstatement.

B. Back pay

The respondent also argues that, assuming the complainant is eligible for reinstatement, his back pay should be cut off at one of several proposed junctures prior to the time that offer is extended. First, it contends that the complainant's back pay should be cut off on either December 30, 2002, or January 30, 2003, on the theory that the complainant's position was temporary or seasonal and that he would have been laid off anyway. As set forth above, however, the respondent failed to demonstrate that, in the absence of discrimination, the complainant's employment would have terminated at any specific point, and the commission sees no basis to conclude that the complainant's back pay should not extend beyond the dates posited by the respondent.

Second, the respondent argues that back pay should be cut off at the point at which the complainant quit subsequent employment. The record indicates that the complainant applied for and received a job at Neptune Sandwiches on or about June 1, 2003, but quit after working only one day, based on dissatisfaction with the salary. The job paid $6.00 an hour, whereas his work for the respondent had paid $7.00 an hour. The complainant has conceded that his actions in quitting the job at Neptune Sandwiches did not constitute a reasonable effort to mitigate his damages, and that his back pay award should be reduced by the amounts he would have earned had he not quit that employment. However, the respondent contends that the complainant's back pay should not merely be reduced, but should be cut off completely when he quit that employment. The respondent cites Peterke v. Jolly Foods (LIRC, Oct. 3, 1977), aff'd. sub. nom, Jolly Foods v. LIRC (Dane Co. Cir. Ct. May 8, 1979), for the proposition that back pay is cut off on the date the complainant voluntarily quits a subsequent job. However, while in Peterke the award of back pay ended when the complainant quit a subsequent job, this occurred because she failed to seek additional employment thereafter. While it is appropriate to reduce a back pay award by the amount the complainant could have earned had he exercised reasonable diligence in seeking new employment, Fields v. Cardinal TG Co. (LIRC, Feb. 16, 2001), quitting a subsequent job is not necessarily an event which completely cuts off the respondent's liability for back pay.

Next, the respondent contends that, if the back pay is not cut off upon the complainant's quitting subsequent employment, then it should be cut off on August 4, 2003, at which point the complainant accepted higher paying work at JC Penney. Here, the respondent cites Anderson v. UW-Whitewater (LIRC, Dec. 3, 1980), aff'd. sub nom. University of Wisconsin-Whitewater v. LIRC (Ct. App., Dist. IV, unpublished decision, Nov. 25, 1985), for the proposition that back pay is cut off as of the date the complainant accepts a higher paying position. Again, the respondent's argument fails. In Whitewater, the court held that if an individual obtains alternative employment with a higher wage, in a position which he would have accepted even if he had been employed by the original employer, then the subsequent employment terminates the original employer's liability for back pay and reinstatement, despite the person's lay-off from the subsequent employment. Following Whitewater, the commission has specifically found that liability for back pay does not cut off automatically when the complainant is reemployed at a higher wage and that there must be testimony about whether the complainant would have quit the original employment. Bodoh v. US Paper Converters Inc. (LIRC, Nov. 14, 1995). In this case, the complainant was not asked whether he would have accepted the job at JC Penney even if he had still been employed by the respondent, and the record contains no evidence on this point. Thus, while the complainant is not eligible for back pay during the time he worked at JC Penney, earning more than he would have earned from the respondent, his acceptance of that employment does not completely cut off his potential entitlement to back pay nor terminate his right to reinstatement with the respondent.

The respondent's next argument is that the entitlement to back pay ends when the complainant was discharged from the job at JC Penney, because he was discharged for poor performance. The respondent maintains that engaging in poor performance is not acting with reasonable diligence to keep the position and, as such, demonstrates a failure to mitigate damages. However, there is no per se rule that discharge from subsequent employment ends back pay liability, even when the discharge is for poor performance. Rather, the question is whether the discharge indicates that the complainant did not act reasonably to mitigate his damages. In this case, the complainant was fired for failing to record the correct number of pallets. The record contains nothing to suggest that this was anything more than an inadvertent performance error on his part, and the commission sees no reason to regard it as a deliberate failure to mitigate his damages.

While the commission finds that the discharge from subsequent employment does not act to cut off the complainant's back pay, it cannot ignore the fact that at the hearing, which took place on November 13, 2003, the complainant testified that he had not looked for work since the November 7, 2003, discharge, and was planning to enroll in school on a full-time basis and to help out at a family run business without pay. The complainant is not entitled to back pay from the respondent while he is a full-time student or has otherwise removed himself from the labor market. (4)

A final issue with respect to the complainant's back pay relates to whether a back pay award should be calculated based upon a 40-hour work week, or whether it should be based upon the number of hours the complainant worked for the respondent, which included overtime. The complainant maintains that his back pay should be based upon the amounts he was earning, including overtime, while the respondent contends that any back pay should be based on a straight 40-hour week. It is generally assumed that the complainant's salary would remain the same after a termination, and the respondent bears the burden of demonstrating that it would have been reduced. At the hearing in this case, the respondent's witness testified that overtime was common in the months of November and December, but not during the rest of the year. Given the nature of the respondent's business, the commission finds it reasonable to believe that the complainant's overtime was related to the need for additional staffing during the holiday season, and the complainant did not challenge the respondent's assertion in that regard. The commission, therefore, concludes that back pay covering any months other than November and December should be based upon an assessment of what the complainant would have earned in a 40-hour work week.

C. Attorney fees and costs

The complainant's attorney has requested $10,822.50 in attorney fees, plus $77.60 in costs, for his work through the date of issuance of the commission's decision. This covers, among other things, preparation for the hearing, attending the hearing, reviewing the transcript, research, drafting a brief and reply brief for the administrative law judge, settlement discussions with the respondent's attorney, filing the petition for review, and briefing the matter to the commission, and represents a total of 67.40 hours of work. Approximately half of the complainant's attorney's time is billed at an hourly rate of $150, with a rate increase to $175 at such time as the complainant's attorney became a shareholder in his firm. The fee request also includes .7 hours for consultation with more senior members at the same firm, whose hourly rates are $275.

The complainant's attorney has submitted an affidavit from another attorney in the locality attesting to the reasonableness of his hourly rate, as well as that of the more senior members of his firm, and based upon its own experience in assessing attorney fee requests, the commission believes the rates charged by the complainant's attorneys are reasonable. The complainant's attorney has additionally submitted his own affidavit explaining many of the items contained in the billing statement. The complainant's fee request is well documented, and on its face, does not appear to be excessive or unreasonable.

The respondent's attorney has been given an opportunity to object to the complainant's fee request. The respondent argues, however, that its due process rights have been violated by being asked to address the fee issue prior to seeing the commission's decision. The respondent contends that it cannot meaningfully respond to the complainant's petition for attorney fees without knowing the content of the commission's decision on the merits, because an attorney fee award may be reduced if the complainant achieves only partial success. The respondent points out that it has raised various arguments about back pay and reinstatement, some of which it might prevail on, and asserts that this might affect the amount of attorney fees the complainant is entitled to. The respondent also maintains that the partial success argument is just one possible argument it could make based upon the commission's decision and that, without knowing the contents of the decision, it cannot foresee all the arguments it might raise against the complainant's petition for attorney fees. It states that, based upon the commission's decision, it might challenge individual entries of time or seek a percentage reduction in the fees sought by the complainant. The respondent therefore asks the commission to vacate its "order" setting a briefing schedule on attorney fees until after the commission has issued its decision. The respondent has not presented an alternative argument addressing the reasonableness of the complainant's fee request, should the commission deny its motion, nor has it explained whether it believes the complainant's request would be reasonable in the event the complainant is fully successful in his claims.

The respondent's arguments are without merit. The content of the commission's decision has no bearing on the question of whether the hourly rate requested by the complainant's attorney is reasonable. While the respondent correctly points out that, in the event the commission issued a decision finding for the complainant on only one issue, a reduction for partial success would be warranted, that argument is inapposite in this case, which presents but a single issue. The rationale for reducing attorney fees when the complainant has not prevailed on all issues is that, had the complainant's attorney not spent time litigating the issue or issues on which he did not succeed, the total amount of time he would have spent on the matter may have been reduced, thereby warranting a reduction in the total fee award. That rationale does not apply to litigating the remedy issues cited by the respondent, and even if the commission had decided not to order reinstatement or to cut off the complainant's back pay at an earlier juncture than he might have requested, this would not be a matter which would warrant a reduction of attorney fees on a partial success theory. Indeed, the commission has specifically held that it will not limit a fee award on that basis. MMFHC v. Goetsch (LIRC, Dec. 6, 1991)(reduction in attorney's fees because the extent of remedy was not as great as was sought is not appropriate).

The respondent had an opportunity to object to the complainant's attorney fee request, but has not done so. In the absence of any objection from the respondent, the commission concludes that the fees and costs requested by the complainant are reasonable, and awards payment in the amount of $10,910.10.


NOTE: The commission did not confer with the administrative law judge who presided over the hearing about witness credibility and demeanor. The commission's reversal of the administrative law judge's decision does not rely on a differing assessment of witness credibility, but is as a matter of law.


Attorney James P. End
Attorney Brian A. Price

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) The record does not indicate whether or not there are any security cameras located in the stock room.

(2)( Back ) While the Wisconsin Supreme Court has found that when assessing the character traits revealed it is appropriate to look first at the statutory elements of the offense involved, it has also held that "the full assessment of what may be termed the 'fostering' circumstances may, at times, require some factual exposition" in order to ascertain the relevant, general, character-relate circumstances of the offense. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 825 (1987).

(3)( Back ) The respondent maintains that, if the complainant prevails on the merits, this matter should be remanded to the administrative law judge for a decision on damages and mitigation issues. It contends that a remand is necessary because credibility determinations need to be made with regard to whether the complainant was discharged from subsequent employment based on poor performance. However, the commission has the authority to issue a decision addressing the questions of back pay and mitigation, and there is no requirement that the administrative law judge issue a separate decision on those matters. Moreover, notwithstanding the respondent's assertions to the contrary, a decision on back pay does not require a credibility determination with regard to the complainant's discharge from subsequent employment where the only evidence in the record regarding the circumstances surrounding that discharge is the complainant's unrebutted testimony.

(4)( Back ) In its brief the respondent requests an opportunity for discovery and hearing on the question of the complainant's post-hearing mitigation efforts. However, absent any assertion from the complainant that he has reentered the labor market and attempted to mitigate his damages subsequent to the hearing, there is no reason to order any further proceedings. If, during the compliance phase of this matter, the complainant asserts that he has done so, and the parties are unable to agree on the complainant's entitlement to back pay subsequent to the date of the hearing, additional proceedings with respect to that issue may be appropriate.


uploaded 2005/10/21