GEORGE WOOD, Complainant

PUROLATOR COURIER CORPORATION, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 22, 1990, and an amended decision on July 10, 1990. Respondent filed a timely petition for review by the Commission and both parties subsequently submitted written arguments.

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

ORDER

1. Delete the third paragraph of the ORDER and substitute therefor the following:

"3. That the Respondent shall pay the sum of $2,142.19 as reasonable attorney fees and costs in this matter. This sum shall be paid by check made jointly to the Complainant and his attorney, Richard Thal."

2. Delete the fourth paragraph of the ORDER and substitute therefor the following:

"4. Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Oder. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708."

As modified, the AMENDED FINAL DECISION of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 11, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner

The Respondent's main argument is that the Complainant has not established a prima facie case that his termination was based upon age discrimination. A prima facie case is established by showing (1) the Complainant was in the protected age group (40 years or older, pursuant to sec. 111.33(1) of the Statutes; (2) the Complainant was discharged; (3) the Complainant was qualified for the job; and (4) the Complainant was replaced by someone not within the protected age group or that others not within the protected age group were treated more favorably. See Schenck v. Northwest Fabrics, LIRC, 2/20/87. The Respondent concedes that the Complainant has established that he is within the protected age group and that he was discharged by the Respondent. However, the Respondent contends that the Complainant has not established that he was qualified for the job as courier, and finally, that he was replaced by someone not within the protected age group or that others not within the protected age group were treated more favorably.

The Respondent contends that based upon the Complainant's own testimony concerning his reprimands after 1985, the Complainant has established that he was not qualified for the job. The record does not sustain this contention. It should be noted that the Respondent did not appear at either the probable cause hearing or the hearing on the merits to rebut the Complainant's testimony that he was qualified for the job. Although the Complainant testified that on occasion he made coding mistakes, he also testified that every courier did, and normally if another courier caught the mistake it would be corrected. Complainant testified that his new supervisor, Gary Olson, a male in his early 30s, orally reprimanded the Complainant for mistakes in coding packages; however, in many instances the mistakes were caught and did not result in any harm to the Respondent. In one case, a package was delivered a day late because of Wood's coding mistake.  In another particular incident the Complainant had brought in a truck filled with packages and unloaded it with the help of two other employes. The Complainant, believing that the two helpers had made a last check of the truck, overlooked a package left inside the truck. Though the package was delivered on time (it was a two-day delivery package), the Complainant was reprimanded for the incident even though the two other employes who assisted the Complainant, who were in their 30s, were not reprimanded for this mistake. Overall, the Complainant's testimony sufficiently establishes his qualifications as a courier.

The Respondent also contends that the Complainant has not established that he was replaced by someone not within the protected age group. The Administrative Law Judge found that the Complainant's courier position was filled by Tom Carr, a 35-year-old male. The Respondent contends that this finding is based upon exclusively inadmissible hearsay testimony since the Complainant had no independent knowledge of his replacement's age. Upon review of the argument and testimony, the Commission concludes that the Complainant's statement of his replacement's age falls under the hearsay exception, when the availability of a declarant is immaterial Section 908.03(24), often referred to as the "hearsay catchall," provides that statements not specifically covered by any of the hearsay exceptions, but having comparable circumstantial guarantees of trustworthiness, are admissible. In light of the Respondent's lack of appearance and discovery cooperation, the Complainant's review of the investigatory equal rights file is a sufficient guarantee of the trustworthiness of the statement. The Respondent did not appear to rebut or offer contrary evidence at the hearing and does not contest the accuracy of the Complainant's replacement's age. Moreover, the Commission concludes that this case is ripe for administrative notice without the requisite additional notice to the parties for comment since the Respondent has not contested the validity of its documentation furnished to the Equal. Rights investigator regarding the Complainant's replacement.

The Respondent also contends that the Complainant has not established that others not within the protected age group were treated more favorably. Again, the record does not sustain this contention. The Complainant testified that more recent new employes who were younger than the Complainant were treated more favorably by his supervisor, Gary Olson. Also, the Complainant testified that his supervisor treated him less favorably when he reprimanded the Complainant for minor errors such as leaving a package on the truck. The Complainant did testify that supervisors withheld reprimands towards subordinates whom they liked, but as referenced, only the Complainant was reprimanded for leaving the package on the truck even though two other employes who happened to be younger, were not reprimanded despite their assistance given to the Complainant on that day. The Respondent challenges the Complainant's lack of specifics regarding names and dates and attacks the sufficiency of the Complainant's evidence in establishing his prima facie case. It is difficult for the Respondent to assert a legitimate argument attacking the sufficiency and credibility of the evidence when it did not appear at the hearing to make its case or rebut the Complainant's case. The Commission concludes that there is sufficient evidence in the record to support the Administrative :Law Judge's findings regarding the replacement's age and the new supervisor's more favorable treatment of those not within the protected age group. Accordingly, the Complainant has established a prima facie case.

Assuming arguendo, that the Complainant has established a prima facie case, the Respondent contends that not only did the Complainant state the Respondent's nondiscriminatory reason for discharge, he also failed to rebut the Respondent's legitimate, nondiscriminatory reason for the termination. Respondent contends that the Complainant in his own testimony stated the Respondent's legitimate reason for his discharge; that is, he was discharged for poor job performance (miscoding which resulted in a late delivery) and not because of his age. Accordingly, the Respondent contends that because the Complainant has articulated the Respondent's nondiscriminatory reason, the Administrative Law Judge's Amended Final Decision should be reversed. The Respondent cites two Commission decisions to support its arguments. In Davis v. Jos. Schlitz Brewing Co. (LIRC, 9/14/82), the Commission explained that a respondent is not required in every instance to go forward with its own case in order to meet the complainant's evidence. The Commission cited Sime v. Trustees of State University, 11 FEP Cases 1104 (9th Cir. l975), where the Ninth Circuit held that a respondent. employer can meet its burden "out of the mouths of (complainant's own witnesses), by cross-examining them." Sime at 1106. If the respondent meets its burden, the burden moves back to the complainant who must undertake to present the evidence of pretext before resting his case.

In Ewing v. James River Dixie Northern (LIRC, 10/19/84), the respondent did not call any witness but had the opportunity to cross-examine the complainant.. By analogy, the Respondent here argues that the Respondent has met its burden of establishing a legitimate, nondiscriminatory reason for discharge (miscoding the package) . This argument is illogical under the circumstances. The essence of Sime is that a respondent's case need not fail if it does not produce any witnesses. In other words, a respondent can go forward with its case via complainant's witnesses. Here, the Respondent never went forward with its case via cross-examination of the Complainant since it did not appear. To argue that the Complainant has met the Respondent's burden is not persuasive, given the Complainant's complaint that his age, not the miscoding error of April 1, 1987, was the determining factor in his discharge. Since the Respondent has failed to meet its burden of establishing a legitimate nondiscriminatory reason for the Complainant's termination, the burden does not move back to the Complainant to present evidence of pretext before resting his case.

The Administrative Law Judge's findings are not based merely on the fact that the Respondent did not appear. The Complainant put his case on and the Administrative Law Judge accordingly developed the record fairly in light of the Respondent's nonappearance. The Complainant testified that he was qualified for his job and prior to his new supervisor's tenure he was a model and complimented employe. Moreover, the Complainant established his replacement's age and without evidence to the contrary, that the supervisor and other supervisors treated the newer and younger employes more favorably. Additionally, the Respondent did not put forth any explanation or proof to support a legitimate nondiscriminatory reason for the Complainant's discharge. Without evidence to the contrary, the record supports a reasonable inference that Respondent's actions to discharge were based on Complainant's age and not a legitimate nondiscriminatory reason. The Commission therefore concludes that the Complainant has produced sufficient evidence to establish a finding of age discrimination.

In his petition for Commission review, the Respondent also raises several procedural issues that must be addressed by the Commission. On July 10, 1990, the Administrative Law Judge amended her final decision. The Respondent contends that the Administrative Law Judge was without authority or jurisdiction to alter her final decision by amendment since neither the Fair Employment Act of Wisconsin, Chapter 227 or Ind 88, Wisconsin Administrative Code, provides administrative law judges with the authority to amend their decisions. The Respondent cites Foster v. Crest Building Maintenance (LIRC, 1/30/84), for the proposition that administrative law judges may not amend their decisions. The Respondent's reliance on this case is misplaced since the complainant in Foster did not file a timely petition and the Administrative Law Judge in Foster amended his order after the time limit for petitioning the Commission expired. Here, the Administrative Law Judge amended her final decision before the Respondent filed its petition and before the time for petitioning expired. Although the statutes and rules may not specifically provide the administrative law judges with the authority to amend during the petition appeal timeframe, the Administrative Law Judge did not lose jurisdiction during this timeframe. The Respondent has not been harmed in any way and was provided full opportunity to respond to the Amended Final Decision.

The Respondent in its petition also contends that it never received proper notice of either hearing and that it is not an employer under sec. 111.32(6) of the Statutes. The Respondent does not elaborate or present any arguments in its brief to support its contentions. Without briefing its assertions, the Respondent has abandoned its arguments asserted in its petition. See Reiman Associates v. R/A Advertising, 102 Wis.2d 305, 306, n.1 (Ct. App. 1980), where the court noted a party's failure to brief a cross-appeal issue abandoned.

Finally, the Respondent contends, without briefing, that the Complainant's attorney fees and costs are unreasonable. At the time of the Respondent's petition the Administrative Law Judge had awarded attorney fees and costs in the amount of $1,054.64. Since issuance of the Amended Final Decision, the Complainant's attorney has petitioned the Commission for additional attorney fees and costs associated with the petition. The Complainant has requested an additional $1,743, representing fees and costs related to the Complainant's response to the Respondent's petition.

In matters arising under the Wisconsin Fair Employment Act, Wisconsin courts have frequently looked to the federal courts for guidance in applying Wisconsin's Fair Employment Act. Specifically on the matter of attorney fees, the United States Supreme Court has stated in Hensley v. Eckerhart, 31 FEP Cases 1169 (1983), that the most useful starting point of determining the amount of a reasonable fee is the number of hours reasonably expended on litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on which to make an initial estimate of the value of a lawyer's services. Id at 1173. This calculation is known as the "lodestar. " Ecklund v. Tomah-Mauston Broadcasting Co. (LIRC, 9/16/86).

Here, the Complainant's attorney's hourly rate is $70, a reasonable fee. In preparation for the hearing and attending the hearing, the Complainant's attorney spent approximately ten hours on the case. These attorney's fees also included law clerk fees. Based on the nature of the case and the fact that the Complainant's attorney was unaware that the Respondent would not appear at the hearing, the Commission finds the Amended Final Decision award of $1,054.64 to be a reasonable amount. Since the hearing, the Complainant's attorney has worked approximately 25 hours in preparation for and an actual response to the Respondent's brief. Given the nature of the case and the fact that the Respondent did not appear at the hearing, and the number of hours that the Complainant's attorney accumulated before the petition, the Commission finds the requested number of 25 hours to be moderately excessive. Therefore, the Commission is reducing the number of requested hours accumulated since the Amended Final Decision's issuance from 25 hours to 15 hours. Based on the reasonable hourly rate of $70, Complainant's attorney is awarded an additional $1050 in attorney fees and $37.55 for costs associated with the petition. Respondent is ordered to pay a total amount of $2,142.19 in attorney fees and costs. The Commission concludes that this revised final award accurately reflects the complexities of this case.

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