LEE P. NILES, Complainant

FLEET & FARM OF GREEN BAY, INC., Respondent

On February 2, 1985, an examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter finding that the Complainant had failed to establish discrimination on the basis of sex and/or sexual orientation, and dismissing his complaint. Respondent timely filed a petition for Commission review on the basis that the examiner's decision did not provide for payment of Respondent's reasonable attorney's fees. Both parties have submitted written arguments concerning this issue to the Commission.

Based upon a complete review of these arguments and the relevant law, the Commission issues the following:

That the attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed July 25, 1985

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

/s/ Carl W. Thompson, Commissioner

Respondent's attorney has claimed that the discrimination charges brought by the complainant were frivolous, that they were brought to harass the Respondent and had no basis in fact or law, that Complainant's attorney knew or should have known that there was no basis for the charges, and that the department failed to investigate the charges before ruling that there was probable cause of discrimination. Respondent further argues that by analogy to Gloria Watkins v. LIRC, 117 Wis. 2d 753 (1984), and certain federal court cases, the department is authorized to award attorney fees not only to prevailing complainants, but also to prevailing respondents.

In Watkins (supra), the Supreme Court limited its holding to the allowance of reasonable attorney's fees to a complainant who prevails in an action brought pursuant to the Wisconsin Fair Employment Act. The Court did not address the issue of whether reasonable respondent's attorney's fees should also be allowed. However, allowance of such fees would not promote the two purposes of the Act cited by the Court in its rationale: (1) to make the individual victims of discrimination "whole;" and (2) to discourage discriminatory practices in employment.

In Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978), the U.S. Supreme Court held that a defendant who prevails in a case under Title VII of the Civil Rights Act of 1964 may recover attorney fees if it is found that the plaintiff's claim was ". . . frivolous, unreasonable or groundless (without foundation), or that the plaintiff continued to litigate after it clearly became so." However, § 706 (k) of Title VII provides that a court may in its discretion allow reasonable attorney's fees to the "prevailing party." No similar provision exists in the Wisconsin Fair Employment Act. Furthermore, the Commission concluded that the complaint filed in this matter was not shown to have been frivolous, unreasonable or groundless, or to have been intended to harass. Complainant and his attorney could reasonably have suspected a discriminatory motive in this situation, which testimony at a hearing might elicit. The employer's written grooming standards did not cover the wearing of an earring by a male employe, and the state of mind of the Complainant's supervisor at the time of the firing was therefore a matter which could legitimately have been questioned. In January of 1984, the Complainant and his attorney amended the complaint to include a charge of discrimination based on sexual orientation. This merely indicates that the Complainant and his attorney recognized by that time that it was possible that discrimination based on sexual preference rather than the Complainant's sex had occurred. Such recognition does not demonstrate that the claim based on disparate treatment of males and females was frivolously conceived.

Respondent's attorney has cited other federal court cases which are not on point. Also cited is s. 814.025, Wis. Stats., which allows the awarding of attorney fees to a prevailing defendant in a civil proceeding where the plaintiff's action is found by the court to be frivolous. Respondent argues that this statute supports its argument that a frivolous complaint under the Fair Employment Act should result in award of attorney fees to the Respondent. Clearly, s. 814.025 is applicable only to civil cases and not to the Fair Employment Act. As previously indicated, the Wisconsin Supreme Court has not addressed the issue of whether respondent's attorney's fees should be awarded when a complaint is found to be frivolous, and the Commission found the complaint in this matter not to have been frivolous.

Respondent's claim that the department failed to investigate Complainant's claim prior to the issuance of an initial determination is indeed groundless. The initial determination itself fully summarizes the positions of the parties, lists the individuals interviewed by the department investigator, and enumerates the relevant exhibits. The finding of probable cause is made only after a lengthy explanation of the investigator's findings.

Finally, Complainant's attorney has moved to dismiss the claim for Respondent's attorney's fees, on the basis that the attorneys who have represented Respondent in this matter are not licensed to practice law in the State of Wisconsin. The Commission has chosen to dismiss the request for attorney's fees on the grounds previously stated, and therefore has not reached the question of whether Respondent's attorneys are licensed to practice in this state. However, should further proceedings arise out of this matter, Complainant's attorney is advised to contact the State Bar regarding future involvement of the attorneys in question.

185

Appealed to Circuit Court.  Reversed December 16, 1985.  Appealed to Court of Appeals.  Circuit Court decision reversed, and LIRC decision affirmed, in unpublished summary disposition, July 16, 1986.

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