JONAS MILES, Complainant

REGENCY JANITORIAL SERVICE, Respondent

The above-captioned matter having been remanded to the commission "to apply the mixed motive test and determine whether the termination (of Jonas Miles' employment) would have taken place based solely on the falsification of the application," the Labor and Industry Review Commission hereby makes the following:

1. The respondent, Regency Janitorial Service, provides janitorial services. Maggie Kusch was a co-owner of the respondent at all relevant times herein.

2. The respondent is required to have bonding insurance in order to provide janitorial services to commercial facilities. It was Kusch's understanding that anyone with convictions for theft and robbery did not qualify under its bonding insurance agreement.

3. The complainant, Jonas Miles, completed an application for employment with the respondent on March 20, 1998. In response to the application question "Other than a minor traffic violation, have you ever been convicted of a crime?" Miles indicated that he had not been convicted of any crime by underlining the word "NO."

4. On or about March 24, 1998, Miles began working as a cleaning worker for the respondent. Miles was assigned to clean at the respondent's account with Westwood Health and Fitness.

5. In early July 1998, the theft of a diamond ring was reported at Westwood Health and Fitness. Debbie Preuss, a detective with the Waukesha Police Department investigated the matter. Preuss informed Kusch that a criminal background check revealed that two of its employees--Jonas Miles and Heinz Dietrich--had criminal records.

6. Detective Preuss told Kusch that the criminal record report that she had obtained for Miles showed that he had a conviction for armed robbery in Illinois, as well as a number of other convictions in both Illinois and Louisiana.

7. The information provided by Detective Preuss that Miles had a conviction record for armed robbery caused Kusch concern because she did not believe that anyone with that type of conviction was covered under the respondent's bonding agreement. Also, it is the respondent's policy to terminate the employment of an employee who falsifies his or her employment application.

8. Kusch obtained Dietrich's conviction records from the Milwaukee Police Department and went over them with Dietrich. Dietrich's application noted that he had been convicted for domestic violence. Also, Kusch did not believe that the type of offense for which Dietrich was convicted made him ineligible for coverage under the respondent's bonding agreement. Accordingly, Kusch continued the employment of Dietrich.

9. Kusch made a decision to terminate Miles' employment  based on the information from Detective Preuss indicating that Miles had a conviction record, including a conviction for armed robbery, Kusch believed that Miles had falsified his employment application and that he was not bondable under its bonding insurance agreement. Kusch thus made this decision in part because she believed that Miles was convicted of a crime and would not be covered under the respondent's bonding agreement. Kusch failed to prove that Miles was not bondable under a standard fidelity bond or an equivalent bond, however. Kusch also made this decision in part because she concluded that Miles had falsely stated on his employment application that he did not have a conviction record. Kusch would have terminated Miles' employment based solely on the belief that he falsified his employment application.

Based upon the above FINDINGS OF FACT, the commission makes the following:

1. Regency Janitorial Service is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Regency Janitorial Service violated the Act when it terminated Jonas Miles' employment in part on the basis of conviction record.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the commission issues the following:

1. That Regency Janitorial Service cease and desist from discriminating against Jonas Miles on the basis of conviction record.

2. That Regency Janitorial Service pay Miles' reasonable attorney's fees and costs incurred by Jonas Miles in pursuing this matter. The amount of those fees and costs are as follows: $4,995.00 for attorney's fees and $5.00 for costs, for a total sum of $5,000.00. This total sum shall be paid by check, made jointly payable to Jonas Miles and his attorney, Hazel J. Washington.

3. That within 30 days of the expiration of time within which an appeal may be taken herein, Regency Janitorial Service shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, 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. Stats. § § 111.395, 103.005(11) and (12).

Dated and mailed September 26, 2002
jonasmi . rpr : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The mixed motive test is applied in cases where an employer has made an employment decision in part due to a prohibited discriminatory reason and in part due to a legitimate business reason. Hoell v. LIRC, 186 Wis. 2d 603, 608, 522 N.W.2d 234 (Ct. App. 1994). An employer who has made such an employment decision is liable under the Act, but the remedy may be modified depending upon whether the termination would have taken place in the absence of the impermissible motivating factor. Under the mixed motive test, if the employer would have made the same employment decision in the absence of the impermissible discriminatory reason, then the complainant should be awarded only a cease and desist order and attorney's fees. If, however, the employment decision would not have been made in the absence of the prohibited discriminatory reason, the complainant can be awarded all of the remedies ordinarily allowed, such as back pay, reinstatement and attorney's fees.

The evidence in this case indicates that absent the respondent's belief that Miles was not bondable, the respondent still would have terminated Miles' employment. Two reasons support this view. The first reason is that it is the respondent's policy to terminate an individual for falsification of their application. It matters not whether Miles actually falsely stated that he had no conviction record on his employment application. Miles cannot prevail if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial or even baseless. Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997), citing McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992). The record provides no reason to believe that Kusch did not have a good-faith belief that Miles had a conviction record. Kusch based her belief that Miles had a conviction record on information she received from a police detective.

Second, Kusch's decision with respect to Heinz Dietrich's employment also indicates that Miles' employment would have been terminated based solely on the belief that he had falsified his employment application. Kusch had also received information from Detective Preuss that Dietrich had a conviction record but Kusch did not terminate his employment. Kusch did not terminate Heinz' employment because Heinz had reported on his employment application that he had been convicted of a crime and because Kusch did not feel that his conviction record posed a problem to his continued employment.

The fact that it is the respondent's policy to terminate the employment of individuals who falsify their employment application and that Dietrich, who had truthfully reported his conviction record was not terminated, while Miles' employment was terminated because it was believed he had falsified his application, weighs heavily in favor of a conclusion that the respondent would have terminated Miles' employment even absent its belief that he was convicted of a crime and was not bondable. Accordingly, Miles is entitled to only a cease and desist order and an award of attorney's fees.

ATTORNEY'S FEES

Before the court's remand of this matter the commission determined in its May 31, 2001 decision that the sum of $7,270.83 was a reasonable award of attorney's fees and costs in this case. This sum was comprised of the ALJ's award of attorney's fees of $4,740.00 and costs of $10.83, plus the sum of $2,520.00 awarded for Miles' attorney's services performed in response to the respondent's petition for review of the matter to the commission. The $7,270.83 sum represented an award for 48.4 hours of work at $150.00 per hour, plus costs of $10.83.

Following the court remand the commission issued a proposed decision finding that the respondent terminated Miles' employment in part based on an unlawful discriminatory reason but that the respondent would have terminated his employment absent the impermissible discriminatory reason. Along with that decision, the commission established a schedule for the parties to file affidavits and supporting position statements on the question of attorney's fees, and requested from the complainant an itemization of services and disbursements for work performed in circuit court in connection with this case. (1)   The commission informed the parties that after receipt of such materials the commission would determine the appropriate award of attorney's fees for this case.

The complainant submitted a request for attorney's fees in the amount of $3,225.00 for work performed in circuit court. This sum represented an award for 21.5 hours of work at $150.00 per hour. The complainant requests the commission to enter an order in this case for an award of attorney's fees in the amount of $3,225.00 for the court work, plus the $7,270.83 in attorney's fees and costs previously awarded by the commission on May 31, 2001, for a total of $10,495.83 (69.9 hours x $150.00, plus costs of $10.83).

The respondent does not challenge the hourly rate requested. However, the respondent does challenge the appropriateness of certain time entries connected with the court work (8.9 hrs.) as well as the complainant's overall entitlement to an attorney fee award given the commission's mixed-motive finding and the finding that he would have been discharged regardless of any impermissible motive.

In view of the commission's determination that the respondent terminated the complainant's employment in part based on an unlawful discriminatory reason but that the respondent would have terminated his employment even absent the impermissible reason, the complainant has achieved only limited success.

In Hensley v. Eckerhart, 461 U.S. 424 (1983), the Supreme Court stated as follows:

"If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount..(T)he most critical factor is the degree of success obtained.
. . . 
There is no precise rule or formula for [reducing fee awards where the plaintiff has achieved only partial or limited success]. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success."

Id. at 436-437.

In this case there are no specific number of hours attributable to hours expended in connection with an unsuccessful claim. The complainant's case was strictly based on a claim of unlawful conviction record discrimination. It would therefore be appropriate to simply reduce the fee award to account for the complainant's limited success.

The commission notes the respondent's argument that the court in Sheppard v. Riverview Nursing Center, 88 F.3d 1332 (4th Cir. 1996), relying on Farrar v. Hobby 506 U.S. 103 (1992) and Hensley, concluded that in a mixed-motive case the courts should consider such factors as: "why only cease and desist relief was awarded; what public purposes were served; how ubiquitous and wrongful the defendant's conduct was; and the strength of the discriminatory motive and other motives - such as unsatisfactory actions of the employee - in influencing the termination decision, even though it played a part in it."

The respondent argues that the factors identified in Sheppard weigh in favor of limiting the complainant's right to attorney's fees to $4,750.83, the amount of fees the complainant incurred in the original hearing. Further, the respondent argues that if additional fees are awarded, the respondent takes exception to 8.9 hours of time billed by the complainant's counsel for the circuit court proceeding. These hours reflected billing relating to the complainant's unsuccessful motion to dismiss the respondent's petition for review of the commission's decision in circuit court on the grounds that the court lacked subject matter jurisdiction or competency to proceed. The respondent has presented no other argument for further reduction of the fees claimed for circuit court work.

The commission concludes that the sum of $5,000.00 constitutes a reasonable award for attorney's fees and costs in this matter. The respondent's termination of the complainant's employment was motivated in part by a discriminatory reason. One of the purposes for awarding attorney's fees is to discourage discriminatory practices. Also, while the respondent has shown that it would have terminated the complainant's employment absent the impermissible discriminatory reason due to an honest belief that the complainant had falsified his employment application with respect to his conviction record, it also must be noticed that this is not a case in which it was proven that the complainant had in fact falsified his employment application regarding a conviction record. In short, to the extent that it may be appropriate to consider the "unsatisfactory actions of the employee in influencing the termination decision" this was not a mixed-motive case where there was proven unsatisfactory conduct on the part of the complainant which justified the action taken by the respondent. In reducing the requested fee and cost award from $10,495.83 to $5,000.00, the commission believes that it is appropriate to consider the case as a whole, inclusive of the proceedings that followed the original hearing. The success the complainant ultimately achieved in this matter, although limited, was obtained as a result of the entire course of this matter. The commission agrees, however, that the 8.9 hours the complainant's counsel expended in connection the unsuccessful motion to dismiss the respondent's petition for review at the circuit court level should be denied.

cc: 
Attorney Hazel J. Washington
Attorney Ronald Statler

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(1)( Back ) Notice was also given that the previously submitted itemization of services and disbursements for the period up through the commission's May 31, 2001 need not be submitted again. 

uploaded 2002/10/04