MELISSA G FELIX, Complainant

MILWAUKEE COUNTY BEHAVIORAL HEALTH DIVISION, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph 10 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"Ms. Felix went to her supervisor, Judy Pascal, regarding being scheduled to work each Wednesday evening in November."

2. The first sentence in the second paragraph of the administrative law judge's MEMORANDUM OPINION (page 6 of the Decision) is deleted.

3. The third paragraph of the administrative law judge's MEMORANDUM OPINION (page 7 of the Decision) is deleted and the following is substituted therefor:

The respondent explained that it discharged the complainant because of transcription errors. This explanation satisfied the respondent's burden of producing a legitimate, non-discriminatory reason for its actions. The complainant bears the ultimate burden of persuasion, but did not establish that the respondent's proffered reason for the discharge was a pretext for discrimination.

The complainant presented no direct evidence of discrimination; the respondent made no negative comments about her religious faith, and there is nothing else in the record to suggest that it was motivated to discharge the complainant because she was a Jehovah's Witness. The supervisor to whom the complainant was assigned during the time in which she had difficulty obtaining Wednesdays off had retired prior to the complainant's discharge, and her most recent supervisor, Pamela Myers, was not shown to have been involved in the denial of the complainant's request to be off work the day before Passover or to have engaged in any conduct that could be construed as being hostile to the complainant's faith.

The complainant also presented no comparative evidence to show that employees who were not Jehovah's Witnesses were treated in a more favorable manner. The complainant's one comparator was treated the same as the complainant with respect to the Coumadin error, and the record contains no evidence to indicate that this person made additional transcription errors. It should also be noted that, unlike the complainant, the individual in question had already completed his probationary period.

The complainant conceded that she made transcription errors and that she understood she could be discharged for such errors. Given that the complainant was on the verge of completing her probationary period, and considering that the evidence established the respondent had legitimate concerns about the quality of the complainant's work, there is no reason to conclude that the respondent's decision to terminate the employment relationship was made for discriminatory reasons.

4. The last sentence of the administrative law judge's MEMORANDUM OPINION (page 8 of the Decision) is deleted and the following is substituted therefor:

"An award of $4,328, representing one-third of the requested fees, reflects the limited but beneficial result achieved in this case, and takes into account the issues discussed earlier with regard to the presentation of the case."

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

Dated and Mailed April 19, 2011
felixme . rmd : 164 : 9

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Discharge

In her petition for commission review the complainant argues that she demonstrated a prima facie case of discrimination, and, further, that once an employer has articulated a legitimate nondiscriminatory reason for its employment decision, the question of whether the complainant made out a prima facie case is no longer relevant. The commission agrees with the complainant's legal analysis in this regard, and it has modified the administrative law judge's decision to reflect this fact.

The complainant goes on to argue that the reason given for the respondent's termination of her employment is a pretext for discrimination. The commission has considered the complainant's arguments on this point, but does not find them persuasive. First, the complainant contends that the respondent's reason has no basis in fact because it failed to testify as to when the additional transcription errors or counselings for those errors occurred and submitted no evidentiary documents to show when these conversations occurred. This argument fails. The respondent's witness, Pamela Myers, testified that the complainant made several errors in addition to the Coumadin error, for which the complainant concedes she was warned, and that she discussed two of those errors with the complainant. Ms. Myers elaborated that in one instance a medication was discontinued in error, and explained that she discussed this with the complainant in early March. She contended that that same evening the complainant made a second error -- some medication was not shown on a patient's medical administration record and the patient missed three doses. Ms. Myers indicated that she also discussed this error with the complainant. She further testified that, although she had notes about the transcription errors, she did not bring records to the hearing as she believed patient medical records were confidential. The complainant, for her part, admitted to making other transcription errors, and testified that she understood she could be discharged for transcription errors. Given the above, the commission is satisfied that the respondent's asserted reason for the discharge is a credible one which is adequately supported by the evidence in the record.

The complainant also argues that the timing of the discharge is suspect, coming shortly after she was denied a day off to observe Passover, and, further, that the respondent had an animus towards Jehovah's Witnesses that was demonstrated by its unwillingness to accommodate the complainant's requests for time off from work. Again, these arguments fail. It was not shown that the complainant's supervisor had any involvement in the denial of the complainant's vacation request, nor is there any reason to conclude that Ms. Myers or any other person who may have been involved in the decision to discharge the complainant harbored animus against the complainant based upon her religion. The mere fact that the discharge occurred shortly after the complainant requested and was denied a day off for her religious observance is not a sufficient basis to warrant a conclusion that the discharge was discriminatory. Indeed, the timing of the discharge could just as easily be explained by the fact that the complainant's probationary period was about to expire.

The complainant had the burden of establishing that the respondent's asserted reason for discharging her was a pretext for discrimination. For the reasons set forth above, the commission does not believe the complainant has satisfied that burden.

Attorney Fees

In her petition the complainant takes issue with the administrative law judge's decision to reduce her attorney fee request because the administrative law judge did not find in favor of her on the termination issue. The complainant argues that her claims involved a common core of facts and that it is illogical to assume one can determine the amount of time the complainant's attorney spent relating specifically to the claim that the complainant was discharged because of her creed. The complainant maintains that the result is what matters and that, as a prevailing party, her request for attorney's fees and costs was reasonable.

The commission does not find this argument persuasive. While a prevailing party is entitled to attorney fees, a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole. Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169 (1983). There is no precise formula to apply in deciding what portion of the fees requested should be awarded where the complainant has achieved only partial success and, as the complainant argues in her brief, it may be difficult to determine exactly how much of the fee request was related to the successful claim. Therefore, one approach that has been recognized as appropriate is to simply reduce the total award to account for the limited success. See, Cangelosi v. Robert E. Larson & Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990).

In this case, the administrative law judge determined that an award of one-third of the fees requested was reasonable given the result achieved. Such reduction is consistent with what has been ordered in similar cases. See, for example, Roden v. Federal Express, ERD Case Nos. 8802134, 8802863, and 8900131 (LIRC June 30, 1993) (fee request reduced by 75% where the complainant prevailed on her claim of discrimination with respect to terms and conditions of employment but did not prevail on claims of discrimination with respect to compensation and discharge); Swanson v. County of Chippewa, ERD Case No. CR200304106 (LIRC May 11, 2007)  (fee request reduced by 70% where the complainant prevailed on her retaliation claim, but did not prevail on her claim of constructive discharge, and where the fee request also included time spent litigating a separate complaint on which the complainant did not prevail); Cangelosi, supra, (fee request reduced by two-thirds where the complainant prevailed on a claim that she was discriminated against with respect to the denial of a bonus prize, but did not prevail on her discharge claim); Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998)(fee request reduced by 60% where the complainant prevailed on a claim that she was discriminated against with respect to a promotion, but did not prevail on a second promotion claim, only the latter of which would have involved a salary increase). The commission is satisfied that the amount of attorney fees awarded in this case is reasonable and that it accurately reflects the degree of success achieved by the complainant.

The complainant also argues that the fee reduction was based upon the respondent's argument that the complainant's attorney spent too much time preparing her brief, although the respondent never articulated a reasonable amount of time it believed the complainant's attorney should have spent on the brief nor provided any supporting documentation challenging the amount requested. The commission agrees that no basis has been shown to reduce the fee award because of the time spent on the complainant's brief, and it has modified the administrative law judge's Memorandum Opinion to clarify that the fee reduction is not related to any conclusion that the time spent preparing the complainant's brief was excessive.

cc:
Attorney Stephanie M. Brown
Attorney Roy L. Williams

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uploaded 2011/04/22