JANICE D CHARLES, Complainant
WELSING AND ASSOCIATES, 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 conclusion in that decision as its own except that it makes the following modification:
Delete the ALJ's ORDER and replace it with the following:
1. Time within which respondent must comply with Order. The respondent shall comply with all of the terms of this Order within 30 days of the date on which this decision becomes final. This decision will become final if it is not timely appealed, or, if it is timely appealed, it will become final if it is affirmed by a reviewing court and the decision of that court is not timely appealed.
2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final 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).
3. Cease and desist. The respondent shall cease and desist from engaging in or permitting sexual harassment of the complainant in violation of the WFEA.
4. Attorney's fees. The respondent shall pay to the complainant reasonable attorney's fees for services that are associated with the claim on which the complainant has prevailed, in the total amount of $8,082.00. A check in that amount shall be made payable to the complainant and delivered to the trust account of Attorney Nicholas J. Linz of Gerbers Law, S.C.
5. Remaining claims. The remaining claims in this complaint, discrimination in terms and conditions of employment because the complainant opposed a discriminatory practice, and discharge from employment because the complainant opposed a discriminatory practice, are dismissed.
6. Compliance Report. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:
Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708
or faxed to (608) 267-4409
or emailed to lirc@dwd.wisconsin.gov
The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.
The decision of the administrative law judge (copy attached), as modified above, is affirmed.
Dated and mailed
February 28, 2014
charlja_rsd . doc : 107 : 5 836.45 Attorneys fees - reduction for partial
success - no precedent supports adjusting complainant's fees by comparing to
respondent's fees, or by looking at the number of witnesses each side
called at hearing - 33% "partial success" reduction where sexual harassment and
discriminatory discharge were alleged but complainant was successful only on
sexual harassment element and thus failed to achieve a substantial part of what
was sought: past and future compensation
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
An investigator for the Equal Rights Division concluded that there was probable cause to believe that the respondent engaged in sexual harassment, and discriminated against the complainant for opposing a discriminatory practice, both in the terms and conditions of her employment and in the termination of her employment, in violation of the Wisconsin Fair Employment act (WFEA). A hearing on the merits was held on these issues. Both parties were represented by legal counsel. The Administrative Law Judge (ALJ) who heard the case issued a decision on May 30, 2013, (1) concluding that the respondent violated the WFEA by engaging in or permitting sexual harassment, but that it did not discriminate against her or discharge her because she opposed a discriminatory practice. The decision awarded reasonable attorney's fees to the complainant, but did not specify an amount.
Subsequently, the complainant's attorney submitted to the ALJ a petition and supporting material requesting attorney's fees, the respondent's attorney filed a response, and both parties then submitted additional information and argument on the issue. The complainant requested attorney's fees of $12,123. The respondent objected that the amount of hours spent by the complainant's attorney, 51.3, was excessive, and that the amount should be reduced to reflect the fact that the complainant did not prevail on a significant issue in the case, namely, the issue of whether she was discharged from employment in violation of the WFEA. The respondent's attorney also suggested that the amount of fees its law firm charged to the respondent, $7,303.20, might be a guide to what a reasonable fee would be for the complainant, and indicated that the respondent would stipulate that that amount or something very close to it would be a reasonable attorney fee award for the complainant.
The ALJ re-issued her decision in this matter on January 17, 2014, with an amendment awarding attorney's fees to the complainant in the amount of $8,001.18, which was intended to represent a 33% reduction in the amount requested. (2) The reason for the reduction was that the complainant failed to succeed on her discharge claim, which the ALJ regarded as the most significant issue in the case, and the one that would have given the complainant the most substantial remedy.
The respondent filed a petition for commission review challenging only the attorney fee award. The petition appears to have been submitted by the respondent pro se. The respondent argued that a further downward adjustment in attorney's fees should be made, based on the argument that even though the respondent had more witnesses than the complainant at the hearing, the respondent's attorney only charged the respondent $4,423.20.
The commission has fully reviewed the attorney fee issue in this matter, and rejects the argument of the respondent. First, the respondent's assertion that its attorney only charged $4,423.20 is untrue. That amount was only the last of a series of bills from the respondent's attorney. The respondent's attorney charged the respondent a total of $7,303.20, as it had asserted in its letter to the ALJ. Second, as the commission noted in Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001), there is no precedent for adjusting a complainant's attorney fee award by comparing the complainant's fees to the respondent's, and the question of how many hours are reasonably expended in a case is not adjudged on that basis.
The starting point for determining an attorney fee award is to consider the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhardt, 461 U.S. 424, (1983). The number of hours reasonably expended on the litigation is determined by reviewing the documentation of the attorney's time expenditures. The documentation should be detailed enough to allow for an evaluation of the reasonableness of the attorney's activity. Olson v. Phillips Plating, ERD Case No. 8630829 (LIRC Feb. 11, 1992). The respondent has not challenged the adequacy of the complainant's attorney's documentation, and the commission does not find it to be inadequate. There is no basis to question the reasonableness of the time spent on the case by the complainant's attorney by looking at the number of witnesses the complainant called compared to the number of witnesses the respondent called at hearing.
The ALJ found the circumstances of this case to be similar to those in Harper v. Menard, Inc., ERD Case No. CR200602401 (Sep. 18, 2009), where the commission approved a 33% reduction for partial success. The commission agrees that the two cases are similar. Both cases involved claims of sexual harassment and discharge, and arose from a common core of facts. In each, the complainant prevailed on a claim involving terms and conditions of employment, but failed to prove a discharge from employment in violation of the WFEA. The complainant here argued to the commission that the claim on which she prevailed, sexual harassment, was the most significant claim brought by the complainant, and that it was unjust to limit the respondent's penalty when she has prevailed on that claim.
The commission acknowledges that when multiple claims arise from a common core of facts, litigation of only the successful issue by the complainant may not have significantly shortened the time spent by the attorney on the case. Even so, a reduction may be appropriate:
The [decision-maker] should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation. . .The most significant issue presented in this case and the one which would have entailed the most substantial remedy was the constructive discharge issue, upon which the complainant did not prevail.
Harper, supra (citations omitted). The same is true in this case. Although the complainant's attorney maintains that the sexual harassment claim was the most significant claim, prevailing on that claim did not achieve a substantial part of what, according to the discrimination complaint, the complainant was seeking -- past and future compensation.
The commission therefore affirms the decision of the ALJ, including her decision to reduce the complainant's attorney fees by 33%, with modifications noted in this decision.
cc:
Attorney Nicholas Linz
Attorney Randall Gast
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