HECTOR M RODRIGUEZ, Complainant

FLASH 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 conclusions in that decision as its own, except that it makes the following modifications:

1. The last sentence in paragraph 4 of the FINDINGS OF FACT is deleted and the following sentence is substituted therefor:

"He did not issue an oral or written warning or any other discipline to Rodriguez regarding this incident."

2. The first three sentences in paragraph 6 of the FINDINGS OF FACT are deleted and the following sentence is substituted therefor:

"On August 30, 2000, Rodriguez was driving his truck at the landfill and the driveshaft broke."

3. In the fourth line of paragraph 16 of the FINDINGS OF FACT, the name "Bunge" is deleted and the name "Goodrich" is substituted therefor.

4. Paragraph 2 of the ORDER is deleted and the following paragraph is substituted therefor:

"That the Respondent shall reimburse the Complainant for his reasonable attorney's fees and costs incurred in this matter. The amount of those attorney's fees to date is $11,235.00, and the amount of the costs to date are $891.75. The Respondent shall issue a check payable jointly to the Complainant and his attorney, Victor E. Plantinga, in the amount of $12,126.75 and deliver the check to the office of Mr. Plantinga."

5. Paragraph 5 of the ORDER is deleted and the following paragraph is substituted therefor:

That 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 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. Wis. Stats. § § 111.395, 103.005(11) and (12) 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.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed January 28, 2003
rodrihe . rmd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

This case raises questions about the employer's policy with respect to terminating employees for "truck abuse" and whether the complainant, Hector Rodriguez, was treated differently under this policy.

Hector Rodriguez is Puerto Rican. Rodriguez worked as a truck driver hauling waste for the respondent. Rodriguez was employed by the respondent from June 6, 2000, until October 25, 2000, when he was discharged, allegedly for truck abuse.

The ALJ concluded the truck abuse reason was a pretext for the complainant's discharge and that the real reason was the complainant's race. The commission finds the ALJ's decision to be supported by the record and therefore affirms his decision.

In his memorandum opinion, the ALJ stated that the complainant established a prima facie case, having proved that he was qualified for the job, that he was terminated, and that others not in the protected category were not terminated for similar offenses. Further, the ALJ stated that the respondent offered a nondiscriminatory reason for the complainant's termination, but that the complainant had met his burden of proving that the truck abuse reason was a pretext and that the real reason was the complainant's race.

The ALJ stated that Rodriguez was treated differently than both Thomas Goodrich and Terry Bunge, who had driving records that were comparable to the complainant's. The ALJ noted that Goodrich and Bunge were never disciplined in any manner because of their damage to the vehicles, and that, incredibly, the respondent seemed to not even be aware of the damage that they did to the vehicles. Referencing Bunge, the ALJ noted that while he was a longer-term employee, the record also establishes that he damaged trucks by "truck abuse" three times in about a two-week period.

The ALJ then had this to say about the credibility of the respondent's witnesses:

"The Respondent's witnesses were not especially credible, and raised very serious support for the conclusion that race was the determining factor in this termination decision. Burie did not recall much, but was a willing witness ready to testify to anything that he thought would help the Respondent's case. Yet he could not really remember who made the decision to discharge the Complainant, ending up testifying that both James and Patrick McConnell participated in that decision. James had already denied that he played any role in the termination decision. Patrick had absolutely no recall, but seemed pretty sure that he wasn't involved in the termination decision either. If the Respondent is to be believed, it appears that no one decided to terminate the Complainant!

Scott Burie testified that he was responsible for issuing discipline, in coordination with the terminal manager. He testified that he reviewed termination decisions, which were then made in coordination with the terminal manager and Patrick McConnell. Burie made the notes regarding the June incident at the Omro facility. He was unable to credibly testify specifically that he or James McConnell ever spoke to the Complainant about that incident. He also was unable to testify that he had collected all these notes of alleged abuse before the discrimination complaint was filed. It appears more likely that these notes were all collected in response to the discrimination claim, and not as part of a review of work performance leading to a discharge decision.

Burie's testimony was not credible. It was full of generalizations and speculation about what he would normally do, what would normally be considered, and what the termination process should be. He lacked specific recall about what actually took place in the termination of the Complainant. His testimony was often not supported by the other witnesses or by the remainder of the record. He did not recall who actually was involved in the termination decision, what documents were actually part of the personnel file at the time of termination, or what was discussed at the time of the termination. Most incredible was Burie's sudden recollection, after leading questions on direct examination, that Goodrich was going to be terminated for truck abuse too but that the Respondent chose to rely on the insubordination claim so that it could deny the unemployment compensation.

Doug McConnell instructed the Complainant on the proper use of the power divider and what to do if the truck became stuck. He did not discipline or warn the Complainant that he was engaging in truck abuse or that his employment was in danger. Doug McConnell does not make hiring or termination decisions. He was unable to testify that he had, in fact, communicated his opinion about truck abuse to any supervisor or that his note on the repair order was communicated to any supervisor before the complaint was filed in this case. There was no evidence that this repair order referring to truck abuse was reviewed prior to the discharge decision.

James McConnell was not a credible witness. His testimony was incomplete and contradicted the testimony of other witnesses. His demeanor supported the inference that he was not being truthful in his testimony. He testified that the company takes truck abuse seriously and terminates employees for truck abuse. The record shows that truck abuse was apparently only taken seriously in regard to Hector Rodriguez. James McConnell's testimony was also interesting in that he denied any role in the termination decision, contrary to the testimony of his father and Burie. He insisted that Pat McConnell made the termination decision and all that he did was communicate that decision to the Complainant. Yet Pat McConnell has no recollection of even being involved in the decision and Burie couldn't recall who was involved in the decision.

According to Patrick McConnell, he is not directly responsible for discipline and he only makes termination decisions `if asked.' He testified that Burie was supposed to follow a step approach to discipline, which included a discussion, followed by a written warning or suspension, followed by a suspension, followed by a review for termination. Of course, there was no evidence that such a procedure was followed in the termination of either Rodriguez or Goodrich. Patrick McConnell was otherwise unable to recall any details regarding the termination process or the reasons for the termination of the Complainant. His testimony was that James McConnell did not have the authority to terminate an employee. Rather it would have to be a joint decision between James McConnell and Scott Burie. He added that the Complainant did come to him about the termination, that Burie told the Complainant that the reason was truck abuse but did not give any specific information.

James testified that `he guessed' that they would terminate someone after a couple of instances of truck abuse but that he would give the person time off (a suspension) before terminating for that reason. The Complainant was never disciplined or suspended. James testified that he `guessed' that driving too fast in October was truck abuse. He testified that he talked to the Complainant about spinning his tires on two occasions, but never talked to him about the broken leaf spring. When the truck hit the DePere transfer station, James McConnell testified that he believed he had talked to the Complainant but really could not recall and he did not document that incident. He certainly did not discipline the Complainant for that conduct. Finally, he testified that any damage to a truck and even just spinning the tires or driving too fast is truck abuse and that he knew of no employee who had abused a truck and had not been fired."

DISCUSSION

The respondent argues that the ALJ made serious factual errors that led him to an incorrect conclusion in this case. The respondent argues that probably the most significant factual error made by the ALJ was his conclusion that other employees who were not in the protected category had not been terminated by the respondent for similar offenses. As evidence, the respondent cites Exhibit 6, a document Scott Burie prepared showing all employees terminated by the respondent from 1997 to 2001 (except Rodriguez), along with the reasons for their termination, who terminated them and their race. The respondent identifies three white employees on this exhibit whose sole reason for termination is shown as excessive equipment damage. They are Richard Engel, terminated on November 28, 1997; Jack Ostrander, terminated on November 6, 2000; and Dave Harvala, terminated on March 16, 2001.

It is hardly surprising that the ALJ gave no weight to Exhibit 6, however. The exhibit provides no information regarding the nature of the truck abuse or how many instances of truck abuse occurred. Furthermore, Scott Burie provided no testimony with respect to the employees identified on this exhibit. Thus, there was no information provided from which a comparison could be made of the similarity of the offenses for which the white employees listed on Exhibit 6 were terminated.

The respondent also takes exception to the ALJ's finding that Bunge's record of truck damage was comparable to the record of damage by Rodriguez. The respondent argues that unlike Rodriguez, Bunge had not been the subject of complaints from landfill operators about driving at excessive speed or spinning tires. The respondent argues that Bunge's truck damage incidents were "isolated incidents after almost one year of uneventful driving."

First of all, it is questionable whether the respondent actually considered driving too fast to be truck abuse. James McConnell stated when questioned by his counsel that he "guessed" that driving too fast was truck abuse, and had to be asked again if he knew or was guessing before stating that it was. As for spinning tires, contrary to Bunge's testimony that he has never been one for spinning tires, Bunge undoubtedly was one to spin his tires. In about a two-week period Bunge broke the power divider on his truck, then broke an axle on his replacement truck and then broke the axle on his original truck after the power divider had been repaired. Douglas McConnell testified that there were two ways to break a power divider and an axle-spinning tires and failure to lock the power divider in gear. Moreover, Douglas McConnell testified that under normal circumstances axles would never break. For some reason, however, the respondent seemed not to even be aware of the damage that Bunge had done to his vehicles. Additionally, there was testimony by James McConnell that an employee would not be fired for breaking a leaf spring. Thus, when comparing the damage caused by Rodriguez to that caused by Bunge, you have Rodriguez who was responsible for striking two waste transfer stations and breaking one drive shaft, and Bunge breaking a power divider and two axles. Finally, while Bunge was a longer term employee, that does not explain the respondent's alleged lack of awareness of his truck abuse, given the alleged seriousness that the respondent placed on truck damage, the fact that Bunge was involved in three incidents of truck damage within a very short period of time and the fact that the likely cause of those incidents of truck damage was due to what the respondent considers to be truck abuse.

Additionally, the respondent argues that the record is at odds with the ALJ's conclusion that the notes the respondent produced at the hearing (i.e., Exhibits 3, 4 and 5) to document instances of truck abuse by Rodriguez were more likely collected in response to the discrimination claim, and not as part of a review of work performance leading to a discharge decision. The respondent argues that Scott Burie testified that he was unsure as to when only Exhibit 4 (Douglas McConnell's repair order for Rodriguez's broken driveshaft) appeared in Rodriguez's personnel file; that Exhibit 5 (Burie's note re 6/14/00 Omro incident) was derived from Rodriguez's personnel file and that Exhibit 3 (James McConnell's 10/18 and 23/00 write-ups for Rodriguez) was maintained in his file.

It is evident why the ALJ would question Scott Burie's testimony that he had Exhibits 3, 4 and 5 available to him at the time that the decision was made to terminate Rodriguez. First, after having testified on direct examination that he had all of these exhibits at the time of the termination, on cross-examination Burie admitted that he did not know when Exhibit 4 was placed in Rodriguez's file. In fact, he testified that this document "may have been (placed in his file after he was terminated), I doubt it, but it may have been." (T. 117) Additionally, Burie's testimony regarding Exhibit 5, his note dated June 14, 2000, when Rodriguez struck the doorframe of the Omro station, raises serious questions about Burie's credibility. The transcript reads as follows, beginning with Burie's reading of what the note states:

A    On 6/14 of 2000 struck door frame of Omro, first incident combined with prior problems at Omro, no disciplinary 
       action, informed to slow down in the future and not unroll tarp fully at Omro and I initialed my initials.

Q    So you informed Hector Rodriguez of this?

A    Either I would have informed him or his dispatcher would have been informed to make sure that he was aware.

Q    Okay. So the first incident occurred with Hector Rodriguez on what date?

A    That would have been 6/14, so June 14th of 2000.

Q    And that involved damage to the Omro facility, correct?

A    Damage to his unit, the truck unit, the trailer.

Q    And he was warned at that time?

A    At that time, correct.

Burie claims that Rodriguez was warned about damaging his truck trailer in the Omro incident, yet he admits not knowing whether he or a dispatcher had spoken to Rodriguez about the incident. James McConnell, on the other hand, testified that he told Rodriguez "just to watch the lids when he pulled out of the building because it'll catch on the doors." James McConnell's testimony indicates that what had happened to Rodriguez had happened with other drivers. Furthermore, Burie's note states that Rodriguez was informed not to "unroll tarp fully" at Omro. However, Rodriguez was not driving a truck where the driver would manually unroll the tarp. The cover system on his truck unit operated by way of two hydraulic arms that ran the length of the truck bed and had to remain open when backing in to get loaded and when pulling out.

Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of employment discrimination, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

Id. at 172.

To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) he was a member of the protected age group; (2) he was discharged; (3) he was qualified for the job, and (4) either he was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, 126 Wis. 2d at 173 (internal citations omitted).

The respondent does not dispute that Rodriguez established the first three elements of a prima facie case. The respondent argues that the ALJ erred, however, with respect to the fourth element because his conclusion that others who were not in the protected category were not terminated for similar offenses is flatly contradicted by Exhibit 6. The respondent argues that Exhibit 6 clearly shows that other white employees have been terminated solely for excessive equipment damage, both before and after Rodriguez's termination. The respondent's argument fails. As noted above, evidence was lacking from which a comparison could be made of Rodriguez's truck damage and the truck damage for which the white employees listed on Exhibit 6 had been terminated. Exhibit 6 did not provide any information regarding either the nature of the truck abuse by the white employees or how many instances of truck abuse had occurred. Nor did Scott Burie, who is said to have prepared this document from information contained in the employment records of the respondent.

Next, citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the respondent argues that in that case the Supreme Court highlighted that the McDonnell Douglas presumption shifted the burden of production to the defendant, but not the burden of persuasion, relative to the key issue of whether or not discrimination has occurred. The respondent states that there the Court held that the employer satisfies its burden of production when it produces evidence, "whether ultimately persuasive or not," of nondiscriminatory reasons for the employment decision. The respondent argues that it is clear from the ALJ's decision, however, that he based his ultimate decision largely on what he judged to be the lack of credibility of the respondent's witnesses at the hearing. The respondent argues that in doing so, the ALJ effected a legally impermissible shift of the complainant's burden, as articulated in St. Mary's Honor Center, to establish that discrimination did occur.

This argument also fails. It is clear from the ALJ's decision that he understood that the McDonnell Douglas presumption created by a prima facie case of discrimination merely shifted to the respondent the burden of producing evidence of a legitimate, nondiscriminatory reason for its termination of Rodriguez, and that the ultimate burden of persuading the trier of fact that the respondent intentionally discriminated against Rodriguez remained at all times with Rodriguez. This is evident, for example, in the ALJ's memorandum opinion where he states, in relevant part:

The Respondent offered a non-discriminatory reason for the termination. For the reasons outlined above, the Administrative Law Judge has found that the Complainant has met his burden of proving that the truck abuse reason was a pretext and that the real reason was the Complainant's race."

Mem. Op., p 6.

Contrary to the argument by the respondent, the ALJ's decision indicates that his ultimate decision that there was race discrimination is largely based on proof that the respondent's explanation of truck abuse for Rodriguez's termination was unworthy of credence. The ALJ concluded that this explanation was unworthy of credence because other white employees, particularly Terry Bunge, had a record of truck damage comparable to Rodriguez's record of truck damage, yet they were not terminated for truck damage. Further, the ALJ noted that the respondent, in fact, did not even seem to be aware of all the damage that Bunge had caused. Given that Bunge had broken a power divider and the axles on two trucks in about two weeks time, however, it is unreasonable to believe that the respondent did not know about this since in each instance it was necessary for the respondent to make arrangements for someone else to finish his work for the day due to the incapacitation of his truck. (T. 134-135) Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000), citing St. Mary's Honor Center, 509 U.S. at 517. See also, Gordon v. United Airlines, 246 F.3d 878, 891 (7th Cir. 2002)(Employer's proffered reason for plaintiff's discharge further placed in question because no manager claimed responsibility for making the employment decision.)

The respondent's argument that the ALJ found the respondent failed to meet its burden of production on the basis of the lack of credibility of its witnesses, thereby improperly shifting the burden of proving discrimination from the complainant to the respondent, cannot be sustained. The ALJ recognized that the respondent had satisfied its burden by merely articulating the legitimate, nondiscriminatory reason of truck abuse as reason for Rodriguez's termination. The credibility of the respondent's witnesses was simply an additional assessment that the ALJ considered in determining whether or not the complainant, Rodriguez, had met his burden of proving that the truck abuse reason articulated for his termination was a pretext and that the real reason was his race. The ALJ has sufficiently set forth his assessment of the credibility of the respondent's witnesses as quoted above. As the Court stated in St. Mary's Honor Center:

"The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.. upon such rejection, 'no additional proof of discrimination is required.' "

509 U.S at 511.

The respondent states that in St. Mary's Honor Center, the Court also held that the fact finder's rejection of an employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the complainant. The respondent acknowledges, however, that more recently in Reeves, the Court held that, in certain cases, it may be permissible for the trier of fact to infer the ultimate fact of discrimination, when coupled with sufficient evidence to find that the employer's asserted justification is false. The respondent then points out, however, that the Court continued, stating:

"This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact finder could conclude that the action was discriminatory."

The respondent states that one of the examples the Court suggested as a possible such circumstance is that in which the claimant has created only a weak issue of fact as to whether the employer's reason was untrue, and there is abundant and uncontroverted independent evidence that no discrimination had occurred. This is not such a case. The ALJ found the respondent's truck abuse reason to be unworthy because other white employees, particularly Terry Bunge, had damage records comparable to that of Rodriguez, but were not terminated for truck abuse. Further, the ALJ found serious problems with the credibility of the respondent's witnesses. Moreover, there is not abundant and uncontroverted independent evidence that no discrimination has occurred in this record.

Finally, the respondent argues that there is no discussion by the ALJ as to whether the respondent honestly believed its reason for discharging Rodriguez. The respondent argues that if it did honestly believe its reasons for discharging Rodriguez, Rodriguez is clearly unable to meet his burden of proving pretext. The respondent argues that this holds true even if the reason for discharge was "foolish or trivial or even baseless," so long as the respondent honestly believed it. (Citing, Gordon v. United Airlines, 246 F.3d at 889, and Salinas v. Crivello Properties (LIRC, 06/05/92)(An employer's reason for discharge may be good, bad, mistaken or for no reason at all, so long as it is not based on considerations of race.)

This argument by the respondent likewise fails. In Gordon, the court stated that when determining whether an employer's belief is honest "we need not abandon good reason and common sense in assessing an employer's actions." 246 F.3d at 889. Further, as pointed out by the court:

"  '[I]f the employee offers specific evidence from which the finder of fact may reasonably infer that the proffered reasons do not represent the truth, the case then turns on the credibility of the witnesses.' Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir. 1995). In such circumstances, the employee creates `a factual issue as to whether the employer's explanation is credible or merely a pretext for discrimination.' Dey [v. Colt Constr. & Dev. Co., 28 F.3d 1446], 28 F.3d at 1461. `When the sincerity of an employer's asserted reasons for discharging an employee is cast into doubt, a fact finder may reasonably infer that unlawful discrimination was the true motivation.' " Andreani [v. First Colonial Bankshares Corp., 154 F.3d 389 (7th Cir. 1998)], 154 F.3d at 395 (citations omitted)."

Id.

Rodriguez offered specific evidence regarding the respondent's failure to terminate (or even consider for any discipline or write-up) Terry Bunge for truck abuse despite his several instances of truck abuse, thus permitting the ALJ to reasonably infer that the respondent's proffered reasons did not represent the truth. Furthermore, this fact combined with the ALJ's assessment that the respondent's witnesses were not credible could allow the ALJ to reasonably infer that unlawful race discrimination was the true motivation for the respondent's termination of Rodriguez's employment.

ATTORNEY'S FEES AND COSTS

The ALJ awarded the complainant attorney's fees of $6,750 and $812.50 for costs to the date of his decision. The attorney's fees awarded were for 45 hours of service at a rate of $150 per hour. The complainant had requested an award for 63.1 hours of service (with a portion of those hours at a rate of $150 per hour and another portion at the rate of $170 per hour). In addition, the complainant had requested attorney's fees of $3,181.96 for the purported assistance provided by an attorney from another law firm.

The complainant's fee petition submitted to the ALJ failed to include an affidavit regarding counsel's experience and billing rate and what constituted a reasonable billing rate for fair employment cases in the south- eastern Wisconsin area. However, because the ALJ was aware from personal experience of the complainant's counsel's work on other equal rights cases in the past and had observed his presentation in the instant case, the ALJ was able to judge that a rate of $150 per hour was a reasonable billing rate for the complainant's counsel.

As for the hours of service expended, first the ALJ eliminated the request for 2.4 hours billed for research and considering federal claims for the complainant, and he reduced the hours of service requested by 5.2 to reflect excessive calls to co-counsel regarding the status of the case. Second, the ALJ further reduced the number of hours requested by an additional 10.5 hours. In making this further reduction the ALJ gave consideration to the complainant's counsel's need to travel to attend depositions, to prepare for the hearing and to attend the hearing itself, but he also concluded that an award for 45 hours of service was reasonable for this case, considering the fact that this was a relatively simple factual case without complex evidence and extended testimony, and that the entire hearing took less than four hours.

The ALJ declined to award any attorney's fees for the purported services of the second attorney, however, for several reasons. Among them were that the second attorney had never filed a notice of retainer in this case, no hourly rate was identified in the billing he submitted, the ALJ was unfamiliar with this attorney, and the second attorney's itemization of services was incomplete and did not adequately identify what work had been performed.

REQUEST FOR ADDITIONAL FEES AND COSTS IN CONNECTION WITH PETITION FOR REVIEW

The complainant's fee petition requests additional compensation for costs of $88.75 and 33.9 hours of service at the rate of $170 per hour. (33.9 hours x $170 per hour equals $5,763. However, the complainant's billing statement shows an amount of $5,719, a difference of $44. It appears that this $44 difference results from two itemized entries for .2 hours that should each actually amount to $34, but are shown as amounting to only $12. $170 x .2 hours equals $34.)

Included with the complainant's fee petition before the commission is an affidavit stating counsel's experience and that $170 per hour is the hourly rate for all of his private clients. Counsel's affidavit states that he is a 1986 law school graduate, that he has since served as a prosecutor, then went into private practice and is now a partner at Rose & deJong. The affidavit states that he has had experience in ERD hearings, proceedings before LIRC and at the circuit court level upon appeal, and that he has also handled federal court claims under the ADA, Title VII and 1981 claims. Further, counsel states that he was counsel in the leading Wisconsin religious discrimination case entitled Marquardt v. Wal-Mart, and that because of his expertise, he receives referrals on approximately a bi-weekly basis from large firms that only represent management, including Davis & Kuelthau, the firm representing the respondent in this case. Counsel's affidavit also states that he is a skilled litigator, having argued cases in state and federal court, including the Seventh Circuit Court of Appeals, and that he has also conducted trials in the states of Illinois, Indiana and Michigan. The affidavit also lists the various types of civil and criminal cases that he has tried.

The respondent acknowledges that the complainant's counsel's affidavit identifies his hourly rate and provides extensive detail about his experience but argues that it still fails to address what a reasonable billing rate would be for handling a fair employment case in southeastern Wisconsin. The respondent states that the ALJ, who faced a similar deficiency, determined that an hourly rate of $150 per hour was reasonable, and that the commission should adopt the rate selected by the ALJ absent information concerning what a reasonable rate would be in southeastern Wisconsin for similar services provided by lawyers of comparable skill and experience.

With respect to hours of service, the respondent points out that the current fee application includes entries for services dated February 18 and 22, 2002, totaling 4 hours, which are exact duplications of entries previously submitted to the ALJ and must be disallowed as duplicative.

Further, the respondent points out that the complainant has asked for $9.50 in costs for fax and copying charges on February 18, 2002, which were also part of his previous submission and therefore should be denied as repetitious.

Additionally, the respondent objects to 3.4 hours of time submitted for the assistance of an outside attorney. The respondent has identified dates in February, March, April and May of 2002 for such services. The respondent asserts that the complainant's counsel's affidavit submitted in support of its current application for additional fees extensively details his experience in labor and employment matters and that the complainant has made no demonstration of need for the assistance of an outside attorney in addition to his counsel in the preparation of his response to the respondent's appeal.

The respondent thus requests that the complainant's additional fee request be awarded at the rate of $150 per hour, that the fee request be reduced by 7.4 hours ($1,110) and that the request for costs be reduced by $9.50.

Given the absence of information from the complainant concerning what a reasonable rate would be in southeastern Wisconsin for similar services provided by lawyers with skills and experience comparable to his lawyer, and because it was the ALJ's judgment that $150 per hour was a reasonable rate for the complainant's counsel, the commission is inclined to keep the rate for the additional fee request at $150 per hour.

The commission agrees with the respondent that the complainant's entrees for services dated February 18 and 22, 2002, totaling 4 hours, must be disallowed as duplicative.

In reply to the respondent's arguments regarding a reduction of hours for assistance of counsel, the complainant states that in February 2002, he made calls to the respondent's previous counsel at Sorenson law offices regarding the status of any appeal and attempts to resolve the case. The complainant's billing statement confirms that there were two such calls. One was made on February 22 for .3 hours regarding "Respondent's Plan to Appeal," and the other on February 25 for .2 hours regarding "Potential Settlement without Appeal." The commission agrees with the complainant that the fee requests for the .3 hours and .2 hours spent on the telephone with the respondent's previous counsel on February 22 and 25, respectively, should not be deducted. These itemized requests were not previously made before the ALJ and should be compensable as efforts to resolve the case.

Additionally, the complainant states that several of his calls to attorneys in connection with the respondent's appeal were made to various management labor attorneys concerning issues raised in the respondent's brief. The complainant argues that these calls enabled him to streamline his research, thus benefiting the respondent, and that the alternative would be to conduct this research himself, thus increasing his request for legal fees.

The commission agrees with the complainant and therefore has not reduced the fee requested for these services.

To summarize, the commission has reduced the requested hours for service expended by 4, thus granting an additional award of 29.9 hours for services expended at the rate of $150 per hour. This comes to $4,485 in additional fees. Also, the commission has deducted costs of $9.50 as duplicitous. This results in an additional award of $79.25 for costs.

The total award for attorney's fees is $11,235.00. The total award for costs is $891.75.

cc: 
Attorney Victor E. Plantinga
Attorney Alyson K. Zierdt

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