ANDREW C HALBRUCKER, Complainant
BUILDING AND LANDSCAPE SERVICES INC, 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 modifications:
1. Delete footnotes 5, 7, 11, 12, 13, 14 and 17 of the ALJ's FINDINGS OF FACT.
2. Delete paragraph 13 of the ALJ's FINDINGS OF FACT, and replace it with the following:
Gross agreed to re-hire the complainant, and he began working for the respondent again on Monday, November 8, 2010.
3. Add the following sentence to paragraph 16 of the ALJ's FINDINGS OF FACT:
On December 28, 2010 the Respondent sent a note to the DOT investigator, telling the investigator: "This employee set this plan in motion well over a year ago. Employee was given his state work pay and is trying to get paid again."
4. Immediately after paragraph 16 of the ALJ's FINDINGS OF FACT, add the following paragraph:
On January 6, 2011, Gross told the Complainant that if he did not make the wage complaint "go away" he would "make life hard" for the Complainant.
5. Delete paragraph 20 of the ALJ's FINDINGS OF FACT, and replace it with the following:
The Complainant was scheduled to perform additional lot sweep work with Gross beginning at about 11 p.m. on January 27, 2011, but became ill. He called Gross at about 10:30 p.m. that night and told him he was sick and would call back when he felt better. At about 3 p.m. on January 28, 2011 the Complainant called Gross and left a message that he was now able to work. Gross did not return this call.
6. Delete the second sentence of paragraph 23 of the ALJ's FINDINGS OF FACT.
7. Immediately after paragraph 23 of the ALJ's FINDINGS OF FACT, add the following paragraph:
In a note to the DOT investigator dated February 6, 2011, the Respondent wrote: "It is apparent that Andy was disgruntled about being off unemployment while banking hours and the possibility of less pay due to less DOT work. He went forward with this scam to get his "big pay day."
8. In the first sentence of paragraph 24 of the ALJ's FINDINGS OF FACT, after the word "office" insert the following: "because he wanted to return to work driving a dump truck".
9. Delete paragraph 26 of the ALJ's FINDINGS OF FACT, and replace it with the following:
The Respondent re-called Michael Allen as a dump truck driver for the 2011 season, hired Todd Clauser as a dump truck driver in May or June 2011, and hired Johnny Popp as a dump truck driver in the fall of 2011.
10. Delete paragraph 27 of the ALJ's FINDINGS OF FACT, and replace it with the following:
On or about March 8, 2011 the Complainant received a check in the amount of $10,898.46, which represented the net amount due to him as a result of his wage complaint filed with the DOT based on the Respondent's failure to pay him prevailing wages in the gross amount of $19,790.78.
11. Delete paragraph 28 of the ALJ's FINDINGS OF FACT, and replace it with the following:
By December 28, 2010, the Respondent, through Gross, believed that the Complainant had filed a complaint against it under the Wisconsin Highway Contracts Act, Wis. Stat. § 103.50.
12. Delete paragraph 29 of the ALJ's FINDINGS OF FACT, and replace it with the following:
The Respondent failed to return the Complainant's call of March 17, 2011, and failed to re-call the Complainant to work as a dump truck driver for the 2011 season, because of its belief that the Complainant filed a complaint against it alleging a failure to pay prevailing wages in accordance with Wis. Stat. § 103.50.
13. Delete paragraph 3 of the ALJ's CONCLUSIONS OF LAW, and replace it with the following:
That the Complainant has established by a fair preponderance of the evidence that the Respondent violated the WFEA by failing to re-call the Complainant to work as a dump truck driver for the 2011 season because it believed that the Complainant filed a complaint against it alleging a failure to pay prevailing wages in accordance with Wis. Stat. § 103.50.
14. 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 discriminating against the complainant because he filed, or the respondent believed he had filed, a complaint under Wis. Stats. § 103.50.
4. Back pay. The respondent shall make the complainant whole for all losses of pay and benefits that the complainant has suffered by reason of its unlawful discrimination by paying him the amount he would have earned as an employee of the respondent assigned to truck driving from the beginning of the truck driving season in 2011 through the date on which the complainant commences equivalent or comparable employment with the respondent, or would commence such employment but for his rejection of a valid offer of such employment. The amount of back pay shall be offset by interim earnings of the complainant during this period. Amounts received by the complainant as unemployment insurance benefits during this period shall not reduce the respondent's back pay liability, but that amount shall be withheld by the respondent and paid to the Unemployment Reserve Fund. (Reimbursement for unemployment insurance shall be in the form of a check made payable to the Department of Workforce Development and should note the complainant's social security number and the number of this case.).
5. Interest. The respondent shall pay the complainant interest on the amount in paragraph 4 of this Order at the rate of 12 percent per annum, simple. For each calendar quarter, a separate amount of back pay due shall be computed, then interest shall be computed on each quarterly amount from the last day of each calendar quarter to the date of payment.
6. Reinstatement. The respondent shall immediately make a written offer of reinstatement to the complainant which offers him a position equivalent to the position that he would have held had he not been discriminated against by the respondent in violation of the law, or if that is not possible, to a comparable position. The offer shall entitle the complainant to the wages, seniority, and benefits that he would have received if he had resumed his employment at the beginning of the truck driving season in 2011. The respondent shall reinstate the complainant unless, after the award in this matter becomes final, the complainant fails to reasonably report for work at a time and place which the respondent has reasonably designated in its offer of reinstatement.
7. Attorney's fees and costs. The respondent shall pay to the complainant reasonable attorney's fees of $30,390.00 and costs of $1,788.25 (total: $32,178.25) for representation before the Equal Rights Division and the commission. A check in the total amount shall be made payable to the complainant and delivered to the trust account of Attorney Rebecca Salawdeh.
8. 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, is affirmed.
Dated and mailed
March 21, 2014
halbran_rmd . doc : 107 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Under the direct method of proof in a retaliation claim a complainant must show that he or she: (1) engaged in statutorily protected activity; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. See, e.g., Tomanovich v. City of Indianapolis et al., 457 F.3d 656 (7th Cir. 2006) citing Moser v. Ind. Dep't of Corr., 406 F.3d 895, 903 (7th Cir. 2005); Sitar v. Ind. Dep't. of Transp., 344 F.3d 720 (7th Cir. 2003) citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002). Under the direct method, there are two types of permissible evidence: (1) direct evidence, i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish; and (2) circumstantial evidence, i.e., evidence which does require drawing inferences. See, e.g., Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900 (7th Cir. 2006); Rogers v. City of Chicago, 320 F.3d 748 (7th Cir. 2003). Under the first type of direct evidence, the evidence "essentially requires an admission by the decisionmaker that his actions were based upon the prohibited animus." Rogers (quoting Radue v. Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000)). The second type of direct evidence, circumstantial evidence, "consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff." Sylvester, supra. (quoting Troupe v. May Dep't Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)).
Gephart v. Department of Corrections, ERD Case No. CR200404656 (LIRC Nov. 18, 2009).
Step one -- that the complainant engaged in statutorily protected activity
There is no question that on October 29, 2010 the complainant filed a written complaint with the state DOT against the respondent. The DOT complaint form shows that it was intended to be used to implement Wis. Stat. § 103.50, the statute requiring payment of prevailing wages for state highway contracts. Under Wis. Stat. § 111.322(2m), it is an act of employment discrimination to discharge or otherwise discriminate against an individual for filing of a claim under § 103.50.
Within this step of the complainant's case, the commission has often considered the question of whether or when the employer became aware that the complainant engaged in a statutorily protected activity. See Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993). It is essential for the complainant to establish this:
In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes.
Cangelosi v. Robert E. Larson and Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990).
The respondent's witness was its owner, Joe Gross. Gross testified without dispute that he first became aware of the filing of the wage complaint on November 23, 2010. On that date the DOT mailed a notice of the filing of the wage complaint. The notice, however, did not identify the person who had filed the wage complaint. It is noted on the complaint form that the identity of the person filing the wage claim shall not be disclosed by the agency.
Gross, however, acknowledged that by December 28, 2010 he figured that the complainant was the one who had filed the wage complaint, since the data that the DOT sought primarily involved projects on which the complainant worked. It is clear from Gross's email to the DOT investigator on December 28th that he had zeroed in on a particular employee: "This employee set this plan in motion well over a year ago. Employee was given his state work pay and is trying to get paid again." (1)
Step two -- that the complainant suffered an adverse action taken by the employer
The commission has set the following standard regarding what constitutes an adverse action in a retaliation claim under the WFEA:
...the commission concludes that in a claim of retaliation under the WFEA, a complainant must show that a reasonable individual would have found the challenged action adverse, that is, it well might have dissuaded a reasonable individual from opposing any discriminatory practice under the Act or from making a complaint, testifying or assisting in any proceeding under the Act, and that context matters.
. . .
There is not bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case.
Kruschek v. Trane Co., ERD Case No. CR200603576 (LIRC Dec. 23, 2010). See also Valyo v. St. Mary's Dean Ventures, Inc., ERD Case No. 200902511 (LIRC Jan. 29, 2013) ("The respondent's actions in notifying the complainant that his chances for a promotion depended on the withdrawal of his discrimination complaint were actions that might well have dissuaded a reasonable individual from filing a discrimination complaint or opposing discrimination, given the clearly stated message that such conduct would be a bar to advancement within the respondent's business.").
To apply this standard, it is necessary for the tribunal deciding the case to temporarily accept the supposition that the complainant's statutorily protected activity caused the respondent's alleged adverse act, and to ask whether a reasonable person in the complainant's position would have been dissuaded from engaging in the statutorily protected activity if he or she had known what the respondent's reaction would be.
Failure to call the complainant back to work driving a dump truck in March 2011
The commission concludes that Gross's failure to call the complainant back to work driving a dump truck for the 2011 season qualifies as an adverse action under this standard. Gross admitted that the complainant called him on March 17, 2011, and asked him to call back, but that Gross failed to do so. The complainant stated that he called on March 17th in order to ask about being called back to drive a dump truck for the 2011 season. In years past, the complainant did not need to call; Gross had called the drivers to let them know when the season would start. Gross's failure to call the complainant in the spring of 2011, and his failure to return the complainant's call of March 17th, deviated from his past practice. Supposing for the moment that Gross's failure to call the complainant back to work in March 2011 was in reaction to the complainant's filing of his wage claim, it is apparent that a reasonable person in the complainant's position might well have been dissuaded from filing the wage claim if he had known that it would result in the respondent's not calling him back for the 2011 season.
There were two other events that occurred after December 28, 2010 that were possible adverse actions for purposes of establishing a case of retaliation-1) Gross's alleged comment to the complainant on or about January 6, 2011 to the effect that the complainant had better make his wage complaint "go away" or he would "make life hard" for him; and 2) Gross's failure to call the complainant back for any snow plowing or lot sweeping assignments after January 28, 2011.
Threat of January 6, 2011
The complainant testified that on or about January 6, 2011 Gross "gave him a hard time with the DOT complaint." The complainant wrote in his notebook later that day that if he didn't make the complaint go away he (Gross) would make life miserable for him.
This remark falls short of the commission's standard for an adverse action. It is not clear how it relates to the terms and conditions of the complainant's employment, unlike the threat in Valyo, supra, which was specific and clearly related to employment. Nevertheless, it is a piece of evidence showing that Gross harbored animus against the complainant for his pursuit of the wage claim, and thus is part of the mosaic of evidence tending to show retaliation (as will be discussed in Step three below). Although the complainant's memory about Gross's negative comments to him is not very reliable, (2) his testimony about Gross's January 6th comment was not disputed by Gross.
Failure to call the complainant for snow plowing or lot sweeping assignments after January 28, 2011
The ALJ found Gross's failure to call the complainant for snow plowing or lot sweeping assignments after January 28, 2011 to be an adverse act. It is necessary to review the complainant's work history to determine whether this was the case.
For several years, until October 29, 2010, the complainant performed work primarily as a dump truck driver for the respondent. This work was seasonal, from about March to November. In the winter months the complainant performed snow plowing work sporadically for the respondent, and collected unemployment insurance. Effective October 29, 2010, the complainant quit, informing the respondent that he needed steadier work. He worked for another company for about one week, and then asked Gross if he could return, because the new job was not what he expected. Gross testified that on November 8, 2010 he hired the complainant into a full-time job sweeping parking lots, something the complainant had not done before. Gross also maintained that there was a set schedule for lot sweeping, starting at 11 p.m. nightly. The complainant, on the other hand, denied that Gross mentioned anything about sweeping parking lots when he re-hired him; instead, he testified that Gross simply gave him his old job back. The ALJ did not resolve this question, instead simply finding that the position the complainant returned to was "hotly contested." (FOF 13).
The complainant returned to work on or about November 8, 2010, but for approximately the next two weeks he worked not as a lot sweeper, but as a dump truck driver. The respondent's explanation for this was that when he informed the complainant that the lot sweeping job started at 11 p.m., the complainant balked at performing the job both because he needed time to arrange for a babysitter at that time of night, and because he was not sure it was in his interest financially to hire a babysitter while he performed the job. Despite the complainant's hesitancy about accepting lot sweeping assignments, Gross still considered the complainant to be an employee.
Then, on or about January 17, 2011, the complainant began calling Gross about doing lot sweeping work. After he called several times Gross responded by telling him that he would have the person currently performing the job finish the week, then the complainant could start the following Wednesday, which would have been January 26, 2011. The complainant then performed lot sweeping for about two and one-half hours, from 11 p.m. January 26th to 1:30 a.m. January 27th. The complainant then performed some snow plowing work on January 27th, but became ill and called Gross at about 10:30 p.m. and told him he was sick and would call back when he felt better. Apparently, then, the complainant knew he was scheduled to sweep again at 11 p.m. January 27th.
The complainant placed a call to the respondent at 3:02 p.m. on January 28th, and left a message that he was now able to work. The respondent did not dispute that a call was made, but stated that he did not get a message.
The complainant did not do any lot sweeping on January 28th, but did not count that absence as a no-call-no-show. (3) The next two days, January 29 and 30, were a Saturday and Sunday. According to the sweeper schedule put in evidence by the respondent, there normally would not have been any sweeper work those two days.
It is undisputed that on the next two days, Monday, January 31 and Tuesday, February 1, 2011, there was a blizzard in the Milwaukee area, and there would have been a need for snow plowing. It is doubtful that any lot sweeping would have taken place. (4) The respondent did not call the complainant to do any snow plowing, but it was not clear whether the complainant needed to wait for a call from Gross before he could start plowing. (5) At that point the complainant believed he no longer had a job with the respondent, and began to look for other work.
This record is not clear enough to support a conclusion that Gross's failure to call the complainant for snow plowing or lot sweeping after January 28th was an adverse act. If a reasonable person had known that Gross would react to a wage claim by not calling him to do plowing or lot sweeping, but the reasonable person was not inclined to do lot sweeping anyway, and was aware that he might obtain plowing work by persisting in calling Gross, it does not seem likely that Gross's failure to call him for this work would have dissuaded him from pursuing his wage claim, therefore the failure of the respondent to call the complainant in for snow plowing or lot sweeping after January 28, 2011 was not an adverse act under Kruschek.
Step three -- that there is a causal connection between the protected activity and the adverse act
The adverse act, then, under Kruschek was the respondent's failure to contact the complainant in March 2011 and call him back to work driving a dump truck. Gross testified that by March 2011 he considered the complainant to have abandoned his employment, but that does not explain his failure to return the complainant's call and re-assign him to truck driving. Gross testified that even though he thought the complainant had abandoned his employment, Gross would have welcomed the complainant back if he had left the message that he was willing to come back to do parking lot sweeps, even if he had already filled the position with someone else. It is not credible that Gross would have returned the complainant's call only if he had left a particular message expressing an interest in lot sweeping, and otherwise would have ignored the complainant's message to call back. First, for all Gross knew, the complainant may have been calling about the lot sweeping job.
Second, given Gross's expressed willingness to re-employ the complainant for lot sweeping, there is no reason, but for the complainant's wage claim, for Gross to have been uninterested in having the complainant return to his truck driving position, the position that had generated the prevailing wages that Gross had failed to pay. Gross was satisfied with the complainant's performance of his job as a truck driver, and he needed additional truck drivers that spring. He re-called another driver, hired a new driver that spring, and hired another new driver in the fall of 2011. The record is clear that Gross harbored animus against the complainant for having brought the wage claim. There is not only the complainant's undisputed testimony that on January 6th Gross told him if he didn't make the wage complaint go away he would make life miserable for him; there is also Gross's statement of December 28, 2010, casting the complainant as someone who was trying to take unfair advantage of him ("Employee was given his state work pay and is trying to get paid again."); and his similar statement of February 6, 2011 ("It is apparent that Andy was disgruntled about being off unemployment while banking hours and the possibility of less pay due to less DOT work. He went forward with this scam to get his 'big pay day'...").
The timing of events also supports the conclusion that Gross's refusal to return the complainant's call in March was caused by the complainant's wage claim. Even though it is true that Gross offered work to the complainant after December 28, 2010, the date that Gross became aware that the complainant had filed the wage claim, it is also true that events in the investigation of the wage claim subsequent to the filing may well have stoked Gross's animosity toward the complainant for having filed the complaint, and these happened closer in time to the complainant's March 17th telephone call. On February 6, 2011, for example, Gross revealed in a letter to the DOT investigator that the investigator questioned the validity of Gross's documents; and on March 8, 2011 a check was issued to the complainant for net past-due wages of $10,898.46. It is likely that these developments soured Gross on the idea of taking the complainant back for another season of truck driving. When put with the evidence about Gross's attitude concerning the wage claim, the history of the employment relationship between Gross and the complainant, the fact that Gross was in need of drivers, and the fact that Gross was satisfied with the complainant's performance as a truck driver, the commission concludes that that the respondent would have re-called the complainant to the job of driving a dump truck in March 2011 if it were not for the fact that the complainant had filed a wage claim against it.
The commission therefore affirms the decision of the ALJ, as modified in this decision.
Attorney's fees
The complainant's attorney, Rebecca Salawdeh, requested attorney's fees of $30,390, and costs of $1,788.25, for representing the complainant before the ERD and the commission. The fee request is based on 101.3 hours of services at an hourly rate of $300.
The respondent objected to the hourly rate on two grounds. Citing Wis. Stat. § 814.045, the respondent argued that an award cannot be made at this time because an award of attorney's fees must be no more than three times the compensatory damages in a case, and the amount of compensatory damages to be awarded to the complainant in this case is unknown. The commission declines to apply Wis. Stat. § 814.045. First, that section applies to costs to be awarded by courts, not administrative agencies. Second, the section does not mandate a cap, it only presumes that a cap should be applied. Third, the cap only operates in cases where compensatory damages are awarded, and the monetary remedy in a case of employment discrimination, back pay, is part of a complainant's "make-whole" remedy, not compensatory damages. See Watkins v. LIRC, 117 Wis.2d 753, 763 (1984); Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011); Wis. Stat. § 103.10(12) and (13); Wis. Stat. § 230.90(4)(cm).
The respondent's other objection to the attorney fee petition was that the complainant's attorney failed to carry her burden to show that her hourly rate was reasonable, chiefly due to her failure to submit any evidence beyond her own affidavit. The respondent noted that the complainant's attorney should produce evidence in addition to his or her own affidavit to show that the requested rates were "in line with those prevailing in the community for similar services by lawyers of reasonable comparable skill, experience and reputation." Crawford County v. Masel, 2000 WI App 172, ¶ 8, 238 Wis.2d 380, 385, 617 N.W.2d 188, quoting Blum v. Stenson, 45 U.S. 886, 34 FEP Cases 417 (1984). The commission has discussed an attorney's failure to provide supporting affidavits:
While there have been instances in which the commission has been able to determine reasonable attorney fees in the absence of supporting affidavits, the commission must have some basis upon which to make such a determination. Here, there is no information available that would assist in making such a determination. A search of the commission's website has revealed no recent cases in which the commission has arrived at a reasonable rate for an attorney practicing in the Chippewa Falls/Eau Claire area to which it could make a comparison. . . While the commission has in the past referred to a State Bar of Wisconsin publication entitled The Economics of Practicing Law for information on the median hourly rates charged by attorneys in various parts of the state, the most recent State Bar publication does not contain such statistical information. . . In the absence of any supporting affidavits or other information which would assist the commission in determining whether $250/$275 an hour is a reasonable hourly rate for [the attorney's] services, and considering that the respondent has raised an objection to the reasonableness of the hourly fee, the commission believes it appropriate to limit the fee award to the $200 an hour amount which it has already adjudged to be reasonable for [the attorney's] services.
Harper v. Menard, Inc., ERD Case No. CR200602401 (LIRC Sep. 18, 2009).
In the case at hand, the respondent offered the cover page and two pages from the 2013 version of the State Bar's survey, The Economics of Practicing Law, and argued that based on the survey data, the relevant prevailing market rate should be between $200 and $250 per hour. The two pages attached to the respondent's argument, however, do not show the data that the respondent claimed, so the commission cannot accept the respondent's conclusions about the relevant prevailing market rate. Following the analysis set out in Harper, supra, the commission has searched for and found recent cases in which it accepted a reasonable hourly rate for several attorneys practicing in the Milwaukee area: See Bowen v. Stroh Die Casting Co., Inc., ERD Case No. CR200301568 (Oct. 28, 2011); Kraemer v. County of Milwaukee, ERD Case No. CR200800323 (LIRC Oct. 11, 2012); Davis v. City of Milwaukee Police Department, ERD Case No. CR200703169 (LIRC Aug. 26, 2011). The accepted hourly rate in these cases was $300. The commission has also found one recent case in which it determined Attorney Salawdeh's hourly rate of $300 to be reasonable for services she provided beginning in 2011, even though the reasonableness of that rate was challenged by the respondent. Siegel v. Marshfield Clinic, ERD Case No. CR200901873 (LIRC Oct. 31, 2013). (6) The respondent here has argued that past awards are not determinative of a current prevailing market rate, citing B & B Mining, Inc., v. Director, OWCP, 522 F.3d 657 (6th Cir. 2008). The court in B & G Mining, however, did recognize a value in past awards:
As a general proposition, rates awarded in other cases do not set the prevailing market rate -- only the market can do that. Rates from prior cases can, however, provide some inferential evidence of what a market rate is, just as state-bar surveys of rates provide evidence of a market rate, but themselves do not set the rate.
522 F.3d at 664. The Seventh Circuit, in fact, has found an attorney's rate in prior similar cases to be the primary indicator of a reasonable rate in the case before it, in the absence of contrary evidence from the opposing party. Amax Coal Co. v. Director, OWCP, 312 F.3d 882, 895 (7th Cir. 2002); Peabody Coal Co. v. Estate of J.T. Goodloe, 299 F.3d 666, 672 (7th Cir. 2002). The contrary evidence provided by the respondent in the case at hand does not sufficiently contradict the reasonableness of Attorney Salawdeh's hourly rate based on past attorney fee awards for Attorney Salawdeh and for other attorneys in the Milwaukee area.
The commission therefore orders the respondent to reimburse the complainant for reasonable attorney's fees in the amount of $30,390 and costs of $1,788.25, for a total amount of $32,178.25.
cc:
Attorney Rebecca L. Salawdeh
Mr. Joseph Gross, Milwaukee, WI
Attorney Joseph W. Seifert
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