MARTIN R VENNEMAN, Complainant

STATE OF WISCONSIN, Respondent

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

1. In line 5 of the FINDINGS OF FACT, the year "2003" is deleted and the year "2002" is substituted therefor.

2. In paragraph 13 of the FINDINGS OF FACT, the following sentence is added as the last sentence of the paragraph:

"Hitch testified that she was not given the names of the candidates until after she had approved bringing in four candidates for interviews."

3. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

"That the Respondent shall pay to the Complainant reasonable and actual attorney's fees of $42,072.00 and costs of $2,764.38, for a total of $44,836.38, to be paid by check made out to the trust account of Birnbaum, Seymour, Kirchner & Birnbaum, LLP."

4. Paragraph 7 of the ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the remedial relief ordered in this matter. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) 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."

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed December 17, 2009
vennema . rmd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

This case arises from a complaint of age and sex discrimination filed by Martin Venneman against the respondent, University of Wisconsin-La Crosse. Venneman is a male and his date of birth is October 10, 1944. Venneman alleged that despite his advancement for hire as the dean of the College of Science and Health by the university's search and screen committee, the respondent's former provost and vice chancellor for academic affairs (Dr. Elizabeth Hitch) failed to appoint him as dean of the College of Science and Health because of his age and sex, and instead appointed a younger female (Dr. Karen Palmer McLean, DOB 10/25/54) as the acting dean of College of Science and Health. The ALJ concluded after a hearing on the merits of Venneman's complaint that Venneman had not shown by a preponderance of the evidence that the respondent refused to appoint him to the position of dean of the College of Science and Health because of his age in violation of the WFEA, but that he had shown by a preponderance of the evidence that the respondent's refusal to appoint him to this position was motivated in part by his sex, in violation of the WFEA. The commission agrees.

The ALJ set forth in his memorandum opinion the following as reason for finding sex discrimination:

Although technically the position of acting dean was not the position for which Venneman applied (he applied for the permanent position), there is no denying that Hitch's decision to fill the position on an acting basis supplanted the hiring process for the permanent position. There was no separate hiring process for the position of acting dean, and no opportunity for Venneman to apply for it. Hitch aborted the process for the permanent position and reached down to a female candidate who was not considered by the committee to be as qualified as Venneman, and offered her the position on an acting basis. This circumstance alone was sufficient to show a prima facie case of discrimination on the basis of sex.

Respondent's articulated non-discriminatory reason for declaring the job search a failure was that she [Hitch] wanted the committee to provide her with more than one recommendation for hire, so she would have a greater role in the selection process. The evidence supports the conclusion that in part Hitch was motivated by this desire. Documents written by Hitch that were contemporaneous with her decision (C. Ex. 23, 24, R. Ex. 21) complained of the committee's failure to provide her with "a selection of candidates." Surrounding circumstances, however, support the conclusion that it was the committee's failure to recommend McLean, not its failure to recommend more than one candidate, that drove her decision to fail the search.

First, there was Hitch's reliance on a lack of diversity to justify her decision to declare the search a failure. Hitch seemed to argue that the charge given to the search and screen committee to come up with a pool of candidates that was "diverse (including gender and racial/ethnic diversity) at all stages of the review process" should have had some influence on the committee's recommendation for hire, an argument that seems to favor making hiring recommendations based not solely on qualifications. Hitch testified, however, that her definition of diversity as applied to the recommendation for hire simply was "more than one." This is a strained interpretation of the term. Diversity is concerned not only with the number but also with the make-up of a group. The term diversity, as normally understood, would not describe, for instance, the recommendation to choose between two white males. Hitch's appeal to her charge in order to support her position suggested that she was concerned with the characteristics of the person(s) recommended, not simply with the possibility that the committee would recommend only one person.

Reinforcing that conclusion were the following: (1) on the two prior occasions when she was presented with a single recommendation for hire, she accepted the recommendation and did nothing to change the hiring process for future searches; (2) Hitch's own charge to the committee in this case did not specifically require a recommendation of more than one candidate; and (3) at no time prior to the committee's recommendation did Hitch raise any concern about the possibility that the committee would recommend only one name, despite the fact that she specifically raised the question with the committee chair and was told that a recommendation of a single person was a possibility.

In addition, Hitch's actions after failing the search were inconsistent with a professed desire to choose from multiple candidates. If her main concern was in not having a choice, one would expect that her filling of the position on an interim basis would have been organized to allow fair competition of a number of candidates from which to choose. Instead, Hitch immediately offered the interim position to McLean, without providing any candidates other than McLean an opportunity to meet with her and discuss the position. In doing so, Hitch departed from a lengthy process that was created to produce the most qualified candidate by objective criteria, and embraced one based solely on her own opinion, and chose a candidate who, by the much more exhaustive process, was less qualified. (Citation to cases omitted.)

Hitch's comment to the group of retired female faculty members and administrators that one of her goals was to advance women in higher administrative positions on campus was perfectly justifiable, and laudable, so long as it indicated a desire to rigorously apply the university's affirmative action policy to attract qualified female candidates for high-level positions. (Citation omitted.) Under the circumstances described above, however, the statement was corroborative evidence of a preference in hiring based on gender, not just a commitment to affirmative action policies.

ALJ decis. pp. 12-13.

As reason for not finding age discrimination, the ALJ stated: "As to the age claim, although Venneman was in the protected class and was substantially older than the successful candidate, McLean, it did not appear from the surrounding circumstances that age was a motivating factor. The argument that Zellinger's [the student committee member's] impressions of Venneman were affected by age discrimination was not strong, and Hitch did not appear to have been influenced by Zellinger's questioning as to why Venneman wanted to come back from retirement. Hitch had never stated a preference for advancing younger employees, as she had for female employees." ALJ decis. p. 10, fn 1.

Based upon the ALJ's finding of sex discrimination, the ALJ ordered the respondent to, among other things, instate Venneman into the position of SAH dean and to pay Venneman's reasonable and actual attorney's fees of $37,622 and costs of $2,764.38.

The respondent appeals from the ALJ's determination that the complainant has shown by a preponderance of the evidence that its refusal to appoint Venneman to the SAH dean position was motivated in part by his sex. The complainant appeals from the ALJ's determination that he has not shown by a preponderance of the evidence that the respondent refused to appoint him to the SAH dean position because of his age.

Sex discrimination

The respondent argues on appeal that in all three searches for deans during Hitch's tenure as provost the search committees had forwarded a single candidate, that if she accepted the committee's recommendation the search and screen committee would in effect be a search and select committee, and the University would be in a "very strong pattern for accepting a single candidate for recommendation for hire for some very critical positions" in negation of the provost's prerogative as the hiring authority. The respondent argues that under the university's shared governance policy, it was crucial for the provost to have the ability to choose a dean from among a selection of candidates. The respondent argues that the SAH dean search committee was composed primarily of faculty and academic staff with a vested interest within the university's system of shared governance in choosing a dean to their liking, in effect serving as search and select committees.

The respondent further argues that, as a general matter, it was highly desirable in searches for dean positions to have more than one candidate come forward as recommended for hire as this provided the provost as the hiring authority with options and an ability to choose among candidates, and because having a selection of candidates was important to avoid having a failed search if one of the candidates declined an employment offer, which the provost had experienced in the failed College of Exercise, Science, Health and Recreation (EESHR) dean search. Further, the respondent argues that while the ALJ states that the provost "did nothing" to change the hiring process following the first two dean searches in which she was provided a single candidate on a recommendation for hire, and that this supported a finding of discrimination, with these two searches there were no other viable candidates, and thus there was no impetus for the provost to question or change the search procedures.

In addition, the respondent argues that the ALJ criticizes Hitch for not raising any concerns prior to the search committee vote about a "possibility" the committee would recommend one name because in the meeting just prior to the committee vote with the committee chairman, Dr. Robert Hoar, Hitch had asked Hoar how many candidates he thought the committee would recommend and Hoar responded that he was unsure, however, since the committee had four candidates, the possible outcomes were "zero, one, two, three, or four." The respondent argues that it was perfectly reasonable for Hitch not to raise any concerns because Hitch knew Hoar was a mathematician and thought this was an appropriately mathematical response and because based on the feedback she had received, she was confident there was more than zero or one viable candidate.

The respondent also argues that the provost's charge to the committee that the pool of candidates be diverse at all stages of the review process implied that more than one finalist would be forwarded to her on a recommendation for hire. The respondent argues that the provost did not refer to the diversity language in her charge to indicate any concern as to the protected class characteristics of the recommended to hire list as the ALJ's decision attempts to maintain. The respondent argues that the testimony and documents relating to the SAH search contain no evidence that the provost wanted a woman or younger candidate forwarded. The respondent argues that the ALJ's decision appears to attempt to draw a negative inference from the fact that the two additional viable candidates were women and that the only candidate forwarded by the committee was a man, but the evidentiary record clearly shows that what the provost wanted was to have a choice.

Finally, the respondent argues that Hitch did not have a goal to appoint women to executive positions. The respondent argues that Hitch's position with respect to hiring decisions-that the most qualified candidate should be selected-was evident in her administrative offering to appoint two male deans (Dr. Michael Wade, age 63, and Dr. John Mason, age 58-only Mason accepted the offer) and appointing a male interim provost (Dr. Ronald Rada, age 60) approximately the same age or older than Venneman. The respondent disagrees that general statements about the merits of advancing women are corroborating evidence of sex discrimination. Further, the respondent asserts that even if Hitch had made the remark about having a goal of advancing women, this was made years prior to the search at issue and in a completely unrelated setting. The respondent argues that stray remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker.

The respondent's arguments are unpersuasive.

Contrary to the respondent's argument that the search and screen committees were negating the provost's role in the "shared governance" of the university, the record shows that the provost played a significant role in the search and screen process. As noted by the complainant, in the search for the SAH dean the provost (1) commenced the search for SAH dean, (2) drafted the charge for the search and screen committee, (3) directly appointed two individuals to the search committee, (4) asked a specific individual, Dr. Robert Hoar, to lead the committee, and (4) after providing the committee with customizable procedures to adopt and the committee adopted specific procedures, the provost reviewed and accepted the committee's specific procedures to be used in the committee's search.

Further, contrary to argument by the respondent, the first two searches in which the provost was provided a single candidate should have provided an impetus for the provost to change the search procedures. Both searches in which the provost was provided a single candidate had occurred in 2004 prior to the SAH dean search. One of the searches in 2004 involved the EESHR dean search which was declared a failed search because the recommended candidate declined the provost's employment offer. The failed 2004 EESHR dean search alone should have provided impetus for the provost to change the search procedures if indeed the provost's concern was that she should have a selection of candidates to choose from to avoid having a failed search should one of the candidates decline an employment offer.

The respondent's argument that it was perfectly reasonable for Hitch not to raise any concerns about a "possibility" the committee would recommend one name when advised by Hoar that the possible outcomes were zero, one, two, three, or four because this was an appropriately mathematical response by a mathematician and because based on the feedback she had received she was confident there was more than zero or one viable candidate is unconvincing, given that the search and screen committee's procedures, which Hitch approved, specifically provided that "The committee shall deliver its recommendation(s) to hire...to the provost" (emphasis added) and that only a single candidate had been forwarded to the provost for hire twice during 2004.

The respondent's argument that the provost's charge to the committee that the pool of candidates be diverse at all steps of the review process implied that more than one finalist would be forwarded to the provost on a recommendation to hire is not plausible. The search for a SAH dean was a search for a high level administrative position. The contention that more than one individual would succeed as a finalist after the screening and interview process, much less that multiple successful candidates who were also diverse would be finalists, is simply unreasonable.

Further, the evidence fails to support the respondent's contention that the diversity language in the provost's charge to the search committee did not indicate any concern as to the protected class characteristics of the recommended to hire list and that what the provost wanted was to simply have a choice. As noted by the ALJ, diversity is concerned not only with the number but also the make-up of a group. In addition, Hitch's actions also belie the respondent's contentions that the provost was not concerned with the protected class characteristics of the recommended to hire list and simply wanted to have a choice. After Hitch learned during the evening on Wednesday, April 26, 2006, that the committee would not agree to consider voting again in order to recommend more than one candidate's name for hire, on either the very next day or April 28, Hitch met with only candidate McLean, announced to McLean that she was declaring a failed search, without having told any other candidate or a committee member that she was declaring a failed search, and, in that short time span, also decided that McLean was exactly the right person for the SAH dean position.

Finally, the respondent's argument that Hitch did not have a goal to appoint women to executive positions is unconvincing. First, the credible evidence indicates that shortly after Hitch's arrival as provost in 2002 Hitch announced at a luncheon that her goal was to increase the number of women in administrative positions. Anna Beth Culver, a retired professor from the respondent, testified that she was in attendance at the luncheon in question, to which only former female faculty professors, associates or administrators were invited, and that after Hitch commented "I suppose you wonder why I've invited you to this luncheon", Hitch stated that "one of her goals was to advance women in the place of higher education administration on this campus." At Hitch's deposition when asked if she had ever made any statement about the employment of women in administrative positions Hitch's response was "not that I can recall." Hitch admitted at the hearing, however, that she had no reason to believe that Culver would lie. Furthermore, given the circumstances under which Hitch declared a failed search for the SAH dean and her subsequent appointment of McLean as interim SAH dean for a two-year term, Hitch's prior announcement of an intent to increase the number of women in administrative positions is hardly indicative of a stray remark unrelated to the decisional process.

Additionally, the respondent's assertions regarding Hitch's offers to appoint two males as deans is not persuasive, since no evidence was presented about any potential alternatives that Hitch had in those searches. For instance, there is no evidence as to whether any females were even included in the committees' final recommendations, or whether there was a "diverse pool" of candidates at any point in the search process.

The respondent criticizes the ALJ for finding fault with the provost's decision to appoint McLean as the interim SAH dean. The respondent argues that: (1) the ALJ mistakenly conflates the permanent and interim dean appointment processes by treating the interim appointment process as an extension of the competitive permanent SAH dean search process; (2) the provost could choose as interim dean whomever she believed was best suited for the interim position, and that in past interim appointments Hitch had not conducted a competitive search and consistent with her past practice she did not conduct a competitive search for the SAH interim dean; (3) even if formal interviews and a competitive process were called for, the provost did not need to sit down with any of the four finalists to determine their qualifications because the search process had provided the provost with considerable feedback about all four finalists; (4) the contention that McLean was not as qualified for the interim dean position because the search committee had forwarded Venneman and not McLean does not withstand scrutiny since in not only Hitch's estimation, but also Rada's and retiring SAH dean Michael Nelson's estimation, McLean was the best person for the interim position, and that in the search committee's estimation all that separated McLean and Venneman was a single vote, which had the student remained at the search committee meeting another twenty minutes, the committee would have also forwarded McLean and Dr. Trainer to Hitch for consideration; (5) there was a need to move quickly to appoint an interim dean as the provost wanted to announce the failed search and her decision on the interim appointment before the faculty left campus at the end of the spring 2006 semester; and (6) the provost was not adverse to appointing retired males to interim appointments as evidenced by the provost's appointment of Dr. Rada as interim provost just two months prior to her interim appointment of McLean.

However, all of the above arguments by the respondent are unpersuasive for the simple reason that there was no valid reason for the provost to have failed the SAH dean search in the first place. The provost should have offered Venneman the SAH dean position following the committee's recommendation of Venneman as the sole qualified candidate to hire. The committee had followed all of the requirements imposed upon it in the search for a SAH dean. Neither the provost's charge to the search and screen committee or the procedures under which the committed operated required that the committee forward to the provost more than one candidate to hire. Further, for reasons previously stated above, the provost knew, or should have known, before the committee's vote of the possibility that the committee could recommend only one candidate for hire. Moreover, the provost admits that when it came down to any discussion with Hoar regarding the number of candidates advanced for hire that she never indicated to Hoar that if he advanced only one name she would invalidate the search. The provost also admits that it was only after Venneman's name was advanced as the candidate that met the necessary criteria to recommend for hire that she became concerned about the search and screen committee process.

Age discrimination

The complainant argues on appeal that he does not claim he was discriminated against on the basis of age because the student committee member, Zellinger, made ageist comments about him, but does claim he was discriminated against on the basis of age because the provost, in her pleas to the search and screen committee to reconsider its recommendation of him for the SAH dean position, cited to Zellinger's ageist comments.

The record supports the ALJ's determination that the complainant has not shown by a preponderance of the evidence that the respondent refused to appoint him to the SAH dean position because of his age.

First, as noted by the respondent, Zellinger's concerns expressed about the complainant were described in a paragraph which primarily focused on her perception that the complainant had an "aggressive style", was difficult to work with and would not "be the most effective dean", and that in a single sentence Zellinger noted that she "also questioned why he would come out of retirement and take a job such as this...it just didn't seem logical to me and I wondered if there was alterative (sic) motives driving his application." Further, as the respondent also notes, the provost provided the committee Zellinger's expressed concerns after Venneman had already been recommended for hire solely as part of her effort to persuade the committee to send forward additional candidates.

More importantly, the fact that during 2004 the provost made offers to appoint two males as deans who were age 58 and 63, and more particularly, the fact that during the spring of 2006 the provost had appointed Rada, a retired emeritus faculty member, as interim provost, militates against reason to believe that the provost was motivated by Venneman's age in her effort to persuade the committee to send forward additional candidates.

Remedial relief

The respondent points out that if an adverse action is taken in part because of an impermissible motivating factor and in part because of other motivating factors, and the action "would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney's fees." Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). The respondent argues that if the commission finds that the provost's decision to fail the search was motivated in part by Venneman's gender, the respondent submits that the provost's "primary and very strong motivation" was to have a selection of candidates to choose from, and that she would have failed the SAH dean search regardless of Venneman's gender.

However, for reasons already set forth above, the evidence does not support a showing that the provost would have failed the SAH search regardless of Venneman's gender. Accordingly, the complainant is not limited to only a cease and desist order and attorney's fees.

The respondent argues, however, that if liability is found under a mixed motive theory, the commission should exercise its discretion and determine that Venneman's current employment in an equivalent dean's position negates the need to award instatement into the SAH dean's position. The respondent notes that Venneman has been employed as a dean at Northeastern University in Oklahoma since July 1, 2007, at an annual salary of $120,000, and receives fringe benefits equivalent to 33% of his salary, including retirement benefits, health insurance benefits, vacation and sick leave. The respondent argues that Venneman is basically employed full time in an equivalent position as a college dean at the same pay, but richer benefits than he would have been entitled to as a dean for the respondent.

Further, the respondent argues that instatement is not appropriate in this case because to be effective within the shared governance framework at the respondent the SAH dean must be selected on the recommendation of the university's faculty, academic staff, students and appointed by the provost and chancellor, that over three years have passed since the SAH dean search was declared failed, that the current provost (to whom the SAH dean reports) and chancellor were appointed after the conclusion of the SAH dean search, and that Venneman is not known to and would not enjoy the confidence and approval of these key individuals as would be required for success in this position.

Wisconsin Statute Section 111.39(4)(c) provides, in relevant part, that "If, after hearing, the examiner finds that the respondent engaged in discrimination...the examiner shall...order such action by the respondent as will effectuate the purpose of subchapter II of Chapter 111. Under Wis. Stat. § 111.39(4)(c), the commission or DWD may award reinstatement and back pay. Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, 69, 735 N.W.2d 477. In general, the commission or DWD has the discretion to award the prevailing complainant some or all of the remedies available under subchapter II of Chapter 111. Id.

The respondent's argument that Venneman's current employment negates the need for an award of instatement into the SAH dean position is unavailing. The reason Venneman accepted the dean's position in Oklahoma was to mitigate his damages. Indeed, Venneman testified that he did not want to have a major relocation like he wound up doing because he had spent 30 years of his professional life in La Crosse, and he's got many friends there and did not want to uproot an entire life and start again somewhere else. Under these circumstances, the failure to order Venneman instated into the position of SAH dean because he is basically employed full time in an equivalent position as a college dean is unreasonable.

Furthermore, Venneman was selected for hire as the SAH dean under the respondent's shared governance framework. The provost simply failed to appoint him to the SAH dean position. Also, it is not Venneman's fault that over three years have passed since the SAH dean search was declared failed.

The respondent's further argument that Venneman would not enjoy the confidence and approval of the current provost (to whom the SAH dean reports) and chancellor who were appointed after the conclusion of the SAH dean search presents a closer question. However, the commission also concludes that this argument fails.

"The law is clear that reinstatement - in a case like this, 'instatement' in the first instance - is the preferred remedy in Title VII cases. Deloughery v. City of Chicago, 2004 U.S. Dist. LEXIS 9102 (N.D. Ill, E. D), citing Bruso v. United Airlines, Inc., 239 F.3d 848, 861 (7th Cir. 2001); McKnight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992).

In Bruso, the court stated as follows:

The equitable remedy of reinstatement requires the court to strike a delicate balance. On the one hand, reinstatement is the preferred remedy for victims of discrimination, and the court should award it when doing so is feasible. See McKnight v. General Motors Corp., (citation omitted)(quoting Coston v. Plitt Theatres, Inc., 831 F.2d 1321, 1330 (7th Cir. 1987), vacated on other grounds, 486 U.S. 1020 (1998)). On the other hand, a court is not required to reinstate a successful plaintiff where the result would be a working relationship fraught with hostility and friction. See Hutchinson v. Amateur Elec. Supply, Inc., (citation omitted). Reinstatement in such situations could potentially cause the court to become embroiled in each and every employment dispute that arose between the plaintiff and the employer following the plaintiff's reinstatement. See id. at 1046. A court must be careful, however, not to allow an employer to use its anger or hostility toward the plaintiff for having filed a lawsuit as an excuse to avoid the plaintiff's reinstatement. See [EEOC v.] Century Broad. Corp., 957 F.2d [1446] at 1462.

The court's task of identifying the source of the friction between the employer and the plaintiff following the litigation may be straightforward when there is absolutely no evidence that there was friction in the relationship before the plaintiff filed suit. See id. However, reinstatement may become particularly infeasible if the plaintiff would no longer enjoy the confidence and respect of his superiors once reinstated. See Tennes v. Massachusetts Dep't of Revenue, 944 F.2d 372, 381 (7th Cir. 1991). Reinstatement may also be more problematic when the plaintiff holds a management position, see Avitia [v. Metropolitan Club of Chicago, Inc.], 49 F.3d [1219] at 1230, or would be supervised by the same individuals who discriminated against him in the first place, see Price v. Marshall Erdman & Assoc., Inc., 966 F.2d 320, 325 (7th Cir. 1992).

Addressing the possible friction between the instated-employee and the "primary wrongdoer", the complainant notes that Hitch is no longer employed by the respondent. This still leaves, however, the respondent's argument that Venneman would not enjoy the confidence and approval of the current provost (to whom the SAH dean reports) and chancellor who were appointed after the conclusion of the failed SAH dean search. A couple of factors in this case would appear to lessen the respondent's stated concern about the current provost and chancellor enjoying the confidence and approval of Venneman. First, Venneman has already had a long history of employment with the respondent. Second, since the current provost and chancellor are relatively new in their positions at the respondent, there is no reason to believe there would be any obstacle preventing them from gaining confidence in and approval of Venneman.

Furthermore, the commission has previously held that front pay (the functional equivalent of reinstatement because it is a substitute remedy), in lieu of reinstatement, is unavailable to a prevailing complainant under the WFEA, except in claims under Wis. Stat. § 111.322(2m) (see e.g., Suttle v. DOC (LIRC, 05/22/09); Grant et al. v. Sienna Crest Assisted Living, Inc. (LIRC 07/18/08)). If the respondent is not ordered to instate Venneman as the SAH dean and front pay is unavailable as a remedy, Venneman will not be "made whole" for the respondent's discriminatory conduct against him. For this reason, a failure to order instatement should be considered only in the most unusual circumstances. The commission does not consider this case to present the most unusual circumstances.

Attorney's fees and costs

The ALJ awarded $37,622 in attorney's fees and costs of $2,764.38. The attorney's fees were based upon 231.7 hours of work, all of which were incurred by three counsel who performed work on the case with the exception of 1.4 hours for work done by two paralegals. The hours expended and costs incurred were for representation of the complainant from May 30, 2006 to December 3, 2008, and related to the investigation by the ERD, written discovery and multiple depositions, two non-consecutive days of hearing and post-hearing briefing. The lead counsel's hourly rate was $175 per hour at the start of this case and then $200 per hour effective August 1, 2007. Co-counsels' hourly rate was initially $140 per hour and then $150 per hour effective August 1, 2007. The hourly rate for the paralegals was $55. The hours expended on the case by counsel and the rates charged are reasonable. The respondent has not contested the ALJ's award of attorney's fees and costs.

The complainant requests an additional award of $5,385 in attorney's fees for the period between December 3, 2008 and March 4, 2009. The request includes attorney's fees of $2,640 for lead counsel (13.2 hours x $200), and $2,745 for co-counsel (18.3 hours x $150). The respondent correctly notes, however, that the hours expended by lead counsel actually total 10.1 hours, not 13.2 hours. This results in a reduction of $620 from lead counsel's fee request. The respondent also objects to 2.1 (of the 2.2 hours) lead counsel billed for expending time to review the file and confer with co-counsel on 12/03/08, 12/15/08, 01/02/09, 01/07/09, 01/08/09, 01/20/09 and 01/29/09, as duplicative and excessive. The commission agrees. A reduction of 2.1 hours amounts to $420. This results in a total fee reduction of $1,040 for lead counsel for the period between December 3, 2008 and March 4, 2009.

The respondent also objects to .6 hours of the 1.5 hours requested by co-counsel for February 2009 as being attributed to telephone calls and communication with the EEOC and unrelated to this proceeding. Venneman's complaint was cross-filed with the EEOC. In Fields v. Cardinal TG Co. (LIRC, 02/16/01), the commission held that attorney's fees or costs involving the complainant's federal claim is not reimbursable through the proceedings before the ERD. A deduction of .6 hours from co-counsel's hours would result in a reduction of $90. However, a review of the billing statement for co-counsel's work shows that the actual hours expended by co-counsel was not 18.3 hours, but actually 19.6 hours. A reduction of .6 hours from 19.6 hours leaves 19.0 hours. Multiplying 19 hours x $150 per hour equals $2,850. Accordingly, co-counsel's additional fee request is increased by $105.

Accordingly, the commission has ordered an additional attorney fee award of $4,450 for counsels' work performed between December 3, 2008 and March 4, 2009, rather than the requested amount of $5,385 for this period.

cc:
Attorney James G. Birnbaum
Attorney Tomas L. Stafford

Appealed to Circuit Court.  Affirmed, January 11, 2011.

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