Wis.LIRC ER Decision: Owens, Kamar - August 22, 2014 - 836.12 Attorney's fees - fact that party was successful in getting an ALJ's dismissal order overturned does not entitle them to attorney's fee award - must be 'prevailing party' based on proving discrimination - if complainant eventually prevails, may then be entitled to fee award, but not before then

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

KAMAR JEFFERY OWENS, Complainant

SBC COMMUNICATIONS / AMERITECH/AT&T, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200103588

ORDER
The Equal Rights Division of the Department of Workforce Development issued an initial determination in this matter finding probable cause to believe discrimination occurred. Before a hearing on the merits of the complaint took place, an administrative law judge issued a decision dismissing the complainant's claims on a theory of laches. The complainant filed a timely petition for review. On March 28, 2014 the commission issued an order setting aside the dismissal, and remanding this matter to the Division for a hearing on the merits.

In July 2014, while this matter was pending at the Division for the hearing on the merits, the complainant filed a motion for attorney's fees with the commission. The complainant requested attorney's fees for services related to his petition for review of the ALJ's dismissal. The respondent opposes the motion.

The complainant's motion is denied. Attorney's fees may be awarded under the Wisconsin Fair Employment Act (WFEA) to a complainant who is a prevailing party. Watkins v. LIRC, 117 Wis.2d 753, 345 N.W.2d 482 (1984). A complainant becomes a prevailing party when he or she proves discrimination on an issue under the WFEA. Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001). By succeeding in having the ALJ's dismissal set aside, the complainant did not prove discrimination on any issue in his complaint. If the complainant were to prevail by proving discrimination, he might then be entitled to attorney's fees in conjunction with his petition for review to the commission, but not before then.

Because there has yet to be a final agency action in this matter, this order is not ripe for judicial review. Deering v. LIRC, 2012 WI App 52, 340 Wis.2d 742, 813 N.W.2d 248.

Dated and mailed August 22, 2014
owensk12rpr . doc : 107 : 5 836.12

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

cc:
Attorney Richard Steinberg
Attorney Daniel McAlvanah
ALJ John Gelhard

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uploaded 2014/09/02