MARIA E. KASONDA, Complainant

ALDRIDGE, INC., Respondent A

GEORGE WEBB, Respondent B

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a Decision on Probable Cause in the above-captioned matter on January 8, 1993. Complainant filed a timely petition for review by the commission and the parties submitted written arguments.

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a Decision on Motion for Attorney Fees in the above-captioned matter on December 28, 1992. Respondent B filed a timely petition for review by the commission and the parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

The decisions of the administrative law judge (copies attached) are affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed November 30, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

In her petition for commission review the complainant essentially argues that she offered direct evidence at the hearing of racial discrimination and sexual harassment, as well as evidence indicating that she was subjected to retaliation and constructive discharge. Ind 88.01(8), Wis. Adm. Code, provides that "probable cause means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that the discrimination ... has been ... committed." Based upon its independent review of the record, the commission concludes that the administrative law judge's findings of fact and conclusions of law are supported thereby and affirms the administrative law judge's decision that there is no probable cause to believe that the employe was discriminated against based on her race or sex or that she was subjected to retaliation by the respondents in violation of the Wisconsin Fair Employment Act.

The respondent (Respondent B) has also petitioned for commission review of the administrative law judge's denial of its motion for attorney fees. In the petition, the respondent argues that the complainant's decision to proceed to the no probable cause hearing was frivolous and that the same reasoning applied to allow prevailing complainants to recover attorney fees should also be applied to permit the respondent to recover attorney fees in this situation. The respondent argues that the policies underlying the Wisconsin Fair Employment Act aim at protecting both employes and employers and that such a result is dictated by principles of equity. The respondent also points out that employers may recover attorney fees in Title VII cases where the plaintiffs action was frivolously taken and that circuit courts have the authority to award costs and fees to a prevailing party where the claim is frivolous.

An administrative agency's authority to award attorney fees must be either expressly or impliedly conferred by statute. The Wisconsin Supreme Court has held that, in light of the purpose of the Fair Employment Act, which is to discourage discriminatory employment practices and to make victims of discrimination "whole," the authority to award attorney fees to prevailing complainants may be fairly implied from section 111. 3 6(3)(b), Stats. which authorizes the department to ". . . order such action by the respondent as will effectuate the purpose of this subchapter [the Fair Employment Act] . . . ." Watkins v. LIRC, 117 Wis. 2d 753, 345 NW.2d 482 (Wis. 1984). However, the Wisconsin Fair Employment Act neither expressly nor impliedly authorizes the commission to make such an award to a prevailing respondent. Section 111.39(4)(d) of the statute provides that, "If the examiner finds that the respondent has not engaged in discrimination ... as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant together with an order dismissing the complaint." This section does not allow the agency to order any type of relief for a prevailing employer, much less specifically authorize an award of attorney fees. Tatum v. LIRC, 132 Wis. 2d 411, 422, 392 NW.2d 840 (Wis. Ct. App. 1986) (emphasis in original). Accordingly, the commission may not overturn the administrative law judge's decision.

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