LANA J OLSON, Employee

WHATEVER BAR, Employer

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. The following paragraph is inserted after paragraph 2 of the administrative law judge's ORDER:

"That the respondent shall pay to the complainant reasonable attorney's fees associated with responding to the respondent's petition for commission review, in the amount of $5,515.00. A check in that amount shall be made payable to the complainant and delivered to the trust account of Attorney Nicholas Fairweather."

2. Paragraph 4 of the administrative law judge's 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 detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

The decision of the administrative law judge, as modified, is affirmed.

Dated and mailed March 12, 2013
olsonla . rmd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Back pay

In its petition for commission review the respondent argues that there is no historic precedent supporting the administrative law judge's award of back pay in this case. The respondent contends that the complainant failed to present character testimonials from previous employers and that her testimony indicates that she has a history of chronically unsteady employment. It argues that the complainant was a generally less-than-exemplary employee, including when employed by the respondent. The respondent maintains that, in light of the complainant's spotty work history, an award of damages that amounts to essentially a full year's pay is unreasonable and excessive; it contends that it is absurd to award lost earnings that are nearly double the annual income the complainant earned in the three years for which she was able to produce records. In support of its arguments, the respondent cites a commission decision in which the commission affirmed an administrative law judge's decision that permitted a reduction in damages where the complainant had a history of tardiness and absenteeism. Szczerbiak v. Forest Laboratories, ERD Case No. 9756021 (LIRC July 6, 1983).

The respondent's arguments fail. The complainant's employment history prior to her work for the respondent has no bearing on her eligibility for back pay in this case, nor is the complainant required to prove that she was an exemplary employee in order to receive back pay. To the contrary, a prevailing complainant is presumed to be entitled to back pay and it is the discriminating employer that has the burden of proving otherwise through clear and convincing evidence. See, Moore v. Milwaukee Board of School Directors, ERD Case No. 199604335 (LIRC July 23, 1999). To the extent that Szczerbiak, cited above -- an administrative law judge's decision that was affirmed by the commission without comment -- has any value, it stands for the proposition that, where the respondent presents ample evidence to indicate that an employee's attendance was such that she would not have earned full-time wages had she remained employed, her back pay may be reduced accordingly. In this case, there is no evidence of absenteeism on the part of the complainant and no reason to believe that, had she remained employed, she would not have continued to work an average of three seven-hour shifts per week, plus a few extra hours on occasion, as she did during the course of her employment. The administrative law judge's back pay award is, therefore, affirmed.

Attorney's fees

In its petition the respondent renews its argument that the complainant's attorney's fee request is excessive. The respondent argues that the administrative law judge considered its objections, but made only token deductions and contends that it fails to comprehend how an award of this magnitude could be reduced by less than ten percent where there were five instances of inflated billings found. The respondent also maintains that the various findings of excessive billing made by the administrative law judge "are symptomatic of a more widespread malignancy." It argues that these five instances were "woefully egregious" and raise substantial questions with regard to the accuracy of the remainder of the complainant's fee petition. This argument fails. The administrative law judge considered each of the respondent's specific objections and reduced the attorney fee request where it was warranted. The fact that the administrative law judge found that a reduction of certain requested items was appropriate does not suggest that the complainant's entire attorney fee petition was inflated and is not grounds for an across-the-board reduction in fees. To the contrary, the commission believes that the amount of attorney fees ultimately awarded was reasonable given the nature and extent of this litigation, and consistent with fee awards the commission and administrative law judges have issued in the past.

The respondent also raises objections to an additional fee item that appeared on the complainant's initial attorney fee statement, but that the respondent failed to include in the list of objections it filed with the administrative law judge. Specifically, the respondent objects to the complainant's request for $1,625 representing five hours of work, at $325 an hour with the description: "Finalize complainant's 218.17 filing; email to and from opposing counsel regarding potential for prehearing resolution." The respondent argues that the 218.17 filing is simply the list of witnesses and exhibits a party intends to present, and that it should not have taken five hours to prepare this list. The respondent further points out that the emails to and from opposing counsel regarding settlement were all sent over the course of less than two hours, and none are more than a few sentences long.

The commission does not find this argument persuasive for several reasons. First, the respondent has not explained why it did not raise this objection at the time it objected to other aspects of the fee petition. The administrative law judge had a more intimate involvement with the hearing and hearing preparation than the commission and, because the respondent failed to raise the issue earlier, the commission is deprived of the administrative law judge's insights into the reasonableness of the request. Moreover, the respondent has failed to explain what amount of time it would consider to be reasonable for the preparation of the witness and exhibit list and has given the commission no guidance in evaluating the request. As the complainant's attorney points out, filing the witness and exhibit list is not merely a clerical task, but requires deliberation about which witnesses and exhibits to present. The complainant's attorneys are entitled to compensation for that effort, and the commission sees nothing elsewhere in the fee petition to suggest that they already requested and received such compensation. Finally, while the commission agrees that the settlement e-mails did not require a great deal of time to prepare, there is no reason to believe that this task amounted to more than a small portion of the total billing for the entry in question. Under all the circumstances, the commission can see no compelling reason to order further reduction of the complainant's attorney fee award.

The respondent also argues that a partial success reduction is appropriate given the limited pecuniary benefit achieved in this case. Again, this argument lacks merit. There were two issues in this case, sexual harassment and constructive discharge, and the complainant prevailed on both of them. Moreover, the "pecuniary benefit" she derived -- over ten months of back pay -- is significant, as evidenced by the fact that the respondent has so strenuously argued for its reduction. Given those factors, there is simply no basis for finding that the complainant achieved anything other than significant success in this litigation.

The complainant has requested an additional $5,515 for attorney fees incurred in responding to the respondent's unsuccessful petition for review. The amount requested represents 18 hours of legal work including, among other things, conferring with the complainant, reviewing the respondent's petition, correspondence with the commission to request a briefing schedule, conducting legal research and drafting a responsive brief, and drafting the supplemental fee petition. The respondent objects to this request on the ground that the complainant's brief was "substantively anemic" and "banal," and did not address the respondent's contentions in any meaningful way. However, the respondent has not objected to any specific item contained in the complainant's fee petition, nor has it proposed an amount of attorney fees it believes would be more reasonable. The commission's review of the complainant's attorney fee petition reveals nothing inherently unreasonable, and the commission declines to order a reduction based solely upon the respondent's subjective observations about the quality of the brief. The commission has, therefore, awarded $5,515 in additional attorney's fees.

cc:
Attorney Nicholas Fairweather
Attorney Mark Eisenberg

Appealed to Circuit Court.

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uploaded 2013/03/25