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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 836.4-870     

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836.44 Amount of attorneys fees; Multipliers, "lodestar" enhancement     

During the course of their representation of the Complainant in this case, the Complainant's attorneys were successful in obtaining a Court of Appeals decision clarifying the law on continuing violations. However, LIRC is aware of no authority allowing it to enhance the Complainant's attorneys' fee request to reflect success before a higher court. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

The use of an enhancement or multiplier in contingent fee cases is inappropriate under the Wisconsin Fair Employment Act.  Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

No enhancement for risk is appropriate unless the applicant for fees is able to show that without such a risk adjustment, the Complainant would have faced substantial difficulties in finding counsel in the local or other relevant market. Many courts accept affidavits from other attorneys in the relevant market as sufficient evidence that a plaintiff would have encountered substantial difficulties in obtaining counsel without a risk enhancement. In this case, where the affidavits of two attorneys in the relevant market only state that one was "less likely" to accept civil rights cases without a risk enhancement and the other stated that there are only a handful of attorneys who will take on civil rights cases on a wholly contingent fee basis, the affidavits were deemed insufficient to establish an entitlement to an enhancement for risk of nonpayment. Olson v. Phillips Plating (LIRC, 02/11/92).

A Respondent's vigorous resistance of the Complainant's claim is not an appropriate basis for enhancing the lodestar amount. This resistance is already reflected in the number of hours expended and the attorney's hourly rate. Olson v. Phillips Plating (LIRC, 02/11/92).

The results achieved by an attorney generally will be subsumed in other factors used to calculate a reasonable attorney's fee award and normally should not be used as an independent basis for enhancing the lodestar amount. Olson v. Phillips Plating (LIRC, 02/11/92).

Two basic criteria must be met in order to obtain an enhancement of the lodestar amount. The fee applicant must establish that: (1) the rates of compensation in the relevant market for contingent fee cases as a class differ from the rates in non-contingent fee cases, and (2) the Complainant would have faced substantial difficulty in finding counsel without enhancement for risk. Racine Educ. Ass'n. v. Racine Unified School Dist. (LIRC, 07/17/89).

An hourly rate of $100 per hour was deemed appropriate in an attorney's fee award, but the Commission declined to increase the lodestar figure. The quality of representation and the favorable results achieved were already considered in arriving at the lodestar figure, and the financial risk that the Complainant would be unable to pay was deemed counter- balanced by the probability of success in the matter. The Commission declined to increase the lodestar amount because of the Respondent's vigorous defense of the case, concluding that to do so would be in effect to punish Respondents for exercising their right to defend a case. Wetzel v. Clark County (LIRC, 06/05/87).

A 50 percent multiplier to the amount of the attorney's fee award was granted because of the novelty and difficulty of the issues involved in the case (whether an applicant for a position as a traffic officer who has uncorrected vision of 20/400 in each eye is a handicapped person) and the results obtained and the quality of the representation. Toonen v. Brown County, (LIRC, 10/31/86).

An upward adjustment in the amount of attorney's fees to compensate for the risk of non-recovery because the case is taken on a contingent fee basis is appropriate. A 20 percent multiplier would be appropriate in this case, particularly because it was taken on a contingent fee basis. Benson v. Bumper and Auto of Milwaukee (LIRC, 02/10/86).

An upward adjustment of the basic fee award by a contingency factor is intended to insure that the fee award is consistent with prevailing market rates and adequate to attract competent counsel to represent other civil rights clients. Watkins v. Milwaukee County (LIRC, 07/03/85).

Where counsel pursued with great skill and persuasiveness, and despite unfavorable case law and the absence of any express statutory provision supporting the claim, a case in which the Complainant ultimately prevailed and established the principle that prevailing Complainants were entitled to an award of attorney's fees, it was concluded that an enhancement of the basic lodestar attorney's fee by a factor of 50 percent was appropriate. Watkins v. Milwaukee County (LIRC, 07/03/85).

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836.45 Amount of attorneys fees; Reduction due to partial success

Because the complainant did not prove termination due to sexual harassment or opposition to discrimination, remedy is limited to a cease-and-desist order and attorney’s fees.  Complainant’s attorney’s fees based on her brief to the commission were reduced in proportion to the number of pages in the brief devoted to the issue on which the complainant prevailed.  Cooper v. Options for Community Growth, Inc. (LIRC, 07/29/13).

No partial success reduction is appropriate where the complainant prevailed on both issues (sexual harassment and constructive discharge) and obtained significant pecuniary benefits (10 months back pay) as a result.  Olson v. Whatever Bar (LIRC, 3/12/13).

There is no formula for deciding what portion of requested attorney's fees should be awarded where the Complainant has prevailed on only some of his claims. In this case, the Administrative Law Judge reduced the Complainant's requested attorney's fees by sixty percent of the total amount of fees incurred in order to reflect the Complainant's partial success. The Respondent made no compelling argument for an additional reduction. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

In determining a fee award, the most critical factor is the degree of success obtained. There is no precise rule or formula for making this determination. An attempt may be made to identify specific hours that should be eliminated, or the entire award may simply be reduced to account for the limited success. The Labor and Industry Review Commission has generally adopted the approach of applying an across-the-board percentage reduction. Even where there is a common core of facts and much of counsel’s time is devoted generally to the litigation as a whole, this does not mean that no reduction is appropriate. In this case, the most significant issue presented in the case, and the one which would have entailed the most substantial remedy, was the constructive discharge issue, upon which the Complainant did not prevail. The Complainant obtained no substantive relief whatever for prevailing only on the issue of sexual harassment. A 33% reduction in the attorney’s fees award was, therefore, appropriate in this case. Harper v. Menard, Inc.. (LIRC, 09/18/09).

Since the Complainant did not prevail on each issue, there should be a reduction in the attorney’s fees and costs awarded. However, since the issue on which the Complainant prevailed was by far the most significant issue and the one which involved the most substantial and meaningful remedy, this reduction should only be twenty percent in this case. Cleary v. Federal Express (LIRC, 07/30/03); aff'd sub nom. Federal Express v. Patrick Cleary et al. and Patrick Cleary v. LIRC et al. (Waukesha Co. Cir. Ct., March 18, 2004).

Where the Complainant did not prevail on the most significant aspect of her claim, she has failed to achieve "significant success" in the case. Accordingly, she should not receive fully compensatory attorney’s fees. Foust v. City of Oshkosh Police Dept. (LIRC, 04/09/98).

In trying to decide on an appropriate reduction in attorney’s fees where the Complainant prevailed on only some allegations of the complaint, it is worthwhile to consider the question of how a case would probably have been litigated and how much time would have been spent if the Complainant had actually set out to prove only the allegations upon which she prevailed. Tobias v. Jim Walter Color Separations (LIRC, 08/13/97), aff'd. Jim Walter Color Separations v. LIRC and Marcy Ann Tobias,  226 Wis. 2d 334, 595 N.W.2d 68 (Ct. App. 1999).

A reduced fee award is appropriate if the relief obtained by the Complainant, however significant, is limited in comparison to the scope of the litigation as a whole. Roden v. Federal Express (LIRC, 06/30/93).

Where the Complainant successfully proved that the Respondent violated the Wisconsin Fair Employment Act by causing to be published the advertisement in question, the Complainant's success was not partial even though the Commission found only that the advertisement stated or indicated discrimination based on lawful source of income, rather than on both lawful source of income and marital status as alleged in the complaint. MMFHC v. South Side Spirit (LIRC, 08/26/92).

It is appropriate to reduce the attorney's fee award where the Complainant's success has been only limited. In determining the appropriate reduction, the Department may either attempt to identify specific hours that should be eliminated or simply reduce the award to account for the limited success. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

LIRC's reversal of one portion of the Administrative Law Judge's decision which had found in favor of the Complainant did not warrant a reduction in attorney's fees. Savage v. Stroh Container (LIRC, 09/20/89)

A Complainant who proved that he was not promoted in part because of his race, but who could not refute the Respondent's proof that his work record would have prevented his promotion in any case, prevailed on a significant issue and thus may be awarded attorneys fees, although a reduction in the fee award is appropriate due to the partial success the Complainant achieved. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

A reduction of the fee award by 20 percent reflected a proper balancing of the fact of the Complainant's partial success where she prevailed on the essential and difficult sex harassment issue which had been the primary focus through the case, but failed to prevail on a layoff wage claim. Schwantes v. Orbit Resort (LIRC, 05/22/86).

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836.46 Amount of attorneys fees; Interest on fee award

The Complainant was entitled to be paid interest on attorney's fees awarded by a federal court on May 31, 1984 through the date of payment on August 25, 1986. Olson v. Phillips Plating (LIRC, 02/11/92).

Where the Complainant paid her legal bills as they were incurred over the course of a case taking many years to litigate, in the eventual award to her of an amount for those attorney's fees, interest on the amount at seven percent per annum compounded quarterly should be added, to compensate the Complainant for the fact that she lost use of the money paid in legal fees through the pendency of the case. Watkins v. Milwaukee County (LIRC, 07/03/85).

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840 Remedies in particular types of cases

841 Refusal to hire

Generally, the failure to promote an employe will not be construed as a failure to hire, except in rare cases where the position sought by an employe and the position offered by the employer are so different that the employer's action can be considered a failure to hire rather than to promote. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

The evidence showed that the Complainant, who was ranked third on the list of candidates, would not have been offered the vacant position even absent the discrimination of the Respondent. The Complainant's argument that the consequences of the Respondent's actions would still lessen his promotional opportunities in the future was deemed speculative, and relief was therefore restricted to a cease and desist order. Holmes v. DILHR (Wis. Personnel Comm., 04/15/87).

Where a job applicant's score for her oral interview was discriminatory, she was given a score based upon the average for all those who had passed the interview, and the employer was ordered to determine the position she would have had on the hiring list if she had received that score and to pay her back pay if she would have thereafter been certified to a hiring authority. Bullock v. Milwaukee County (LIRC, 10/15/82).

Where the employer denied a teacher a position as a volleyball coach because she had a wage discrimination complaint pending, the employer should reimburse the teacher for all back wages and offer her the next year's volleyball coach position. If another person is already under contract for the coming year, the employer shall have the option of paying the teacher the amount of the coach's salary for the year and offering her the position for the year following. Hayward Community Schools v. DILHR (Hedin) (Sawyer Co. Cir. Ct., 05/04/82).

Where a job applicant was discriminatorily denied a position because of his age, he is entitled to the next available position and back wages minus his interim earnings. He is also entitled to the money he would have received in unemployment compensation benefits during periods he would have been laid off with the employer, lost medical benefits and contributions to a pension fund, but any unemployment compensation actually received was offset against his award and the employer should pay those amounts to the Unemployment Compensation Reserve Fund. Vicherman v. Neuendorf Transp. (LIRC, 06/08/81), aff'd. sub nom. Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

LIRC ordered the employer to cease discrimination, put the applicant back in the exam process regardless of his handicap and, if the applicant passed either exam, to appoint him to the next available position. To require the Complainant to be hired immediately would put the applicant in a better position than he would have had absent discrimination. City of Madison v. LIRC (Scott) (Dane Co. Cir. Ct., 10/22/79).

The employer's refusal to enroll the applicant in its welder training school entitled the applicant to an award of back pay until he was offered a welder trainee position and either rejected it or failed to complete the training program. A.O. Smith v. LIRC (Perry) (Milwaukee Co. Cir. Ct., 12/13/79).

To remedy an employer's discriminatory hiring practices, it is within DILHR's power to order the employer to hire a job applicant with all rights, benefits, privileges, pay increases and seniority that he would have had if he had been employed when he first applied. Int'l. Harvester v. DILHR (Ham) (Dane Co. Cir. Ct., 05/15/78), aff'd., Ct. App., Dist. IV, unpublished decision, 11/06/79.

An employer who discriminatorily failed to contact a qualified black applicant for two years was required to offer the applicant the next available general factory job with all rights, privileges and wages she would have earned from the date of her original application until the date she was hired. Easter v. AMC (DILHR, 07/27/76, aff'd. sub nom. AMC v. DILHR (Dane Co. Cir. Ct., 04/05/78).

DILHR did not exceed its authority in ordering an employer to offer a job applicant the next available position where the employer had unlawfully refused to hire him rather than simply refusing to certify him on the eligibility list. Wisconsin Dept. of Agr. v. LIRC (Anderson) (Dane Co. Cir. Ct., 05/25/78).

A qualified black applicant was awarded an offer of the next available position and back pay from the date a white co- applicant was hired to the date the black applicant was offered the position. Buchanan v. Barkow (DILHR, 03/11/77).

Where a job applicant was discriminatorily denied hire after being certified to four positions, the employer was ordered to offer her the next available position with all seniority rights and benefits she would have been entitled to had she been hired when originally certified, and back pay from that date to the date of the final DILHR order. Janssen v. Milw. County (LIRC, 10/12/76), aff'd. sub nom. Milwaukee County v. DILHR (Dane Co. Cir. Ct., 10/20/77).

A white male applicant discriminatorily denied consideration for civil service employment as a steamfitter apprentice was not entitled to back pay, reinstatement in the application process, or hire to a like position where certification for the position was withdrawn and the position was never filled. Gibson v. Wisconsin Dept. of Admin. (DILHR, 12/13/76).

A white male applicant who was discriminatorily denied consideration for civil service employment as a painter apprentice was awarded the right to take the competitive exam and, if he passed, to be hired into the next available painter apprentice position. Patzer v. Department of Admin. (DILHR, 10/31/74).

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842 Remedies in particular types of cases; Termination of employment

The Respondent was found to have violated the Wisconsin Fair Employment Act by discharging the Complainant because of arrest record; however because the underlying criminal charges against the Complainant were not yet resolved, the Complainant was not entitled to a monetary remedy. The Respondent could have suspended the Complainant without pay or other benefits until the charges against him were resolved. The appropriate remedy is to order the Complainant reinstated to "suspended" status. Maline v. Wisconsin Bell (LIRC, 10/30/89).

Where the employer violated the Act by terminating an employe because of arrest, but where the acts the employe was arrested for were substantially related to her job so that suspension of the employe would have been permitted, and where the employer permanently went out of business prior to the resolution of the charges against the Complainant, no remedy of any sort was granted. No back pay was appropriate since the Complainant would have appropriately been on suspension for all time periods up to the closing of the business, and neither reinstatement nor a cease and desist order would be appropriate since the Respondent was permanently out of business. Shipley v. Town & Country Restaurant (LIRC, 07/14/87).

Where the Complainant and another employe had both engaged in disruptive conduct, but the Complainant and not the other employe was discharged, and the Commission found that the discharge was discriminatory, the Commission properly held that the Complainant's back pay entitlement ended at the time that the employer subsequently terminated the other employe whose conduct had been the same as that of the Complainant's. It was a rational interpretation of the statute that the discrimination was eliminated by the firing of the other employe. Pike v. LIRC (Waukesha Co. Cir. Ct., 08/08/85).

An employe who was unlawfully discharged as a welder was granted reinstatement with all rights, privileges, benefits, seniority and remuneration he would have received but for the unlawful disqualification, including loss of pay and other benefits, from the date he was certified by his physician as able to safely return to work until the date of his reinstatement. Chicago & N.W. R.R. v. LIRC (Pritzl), 91 Wis. 2d 462, 283 N.W.2d 603 (Ct. App. 1979).

A male who was discriminatorily discharged received, in addition to an award of reinstatement and full seniority, back pay, including lost earnings and compensation for four weeks of vacation pay and three paid holidays he would have received but for the unlawful discrimination. Lienhardt v. Pacon (LIRC, 09/16/77).

An unlawfully discharged firefighter was entitled to all the benefits he would have received absent the discrimination, including outside part-time earnings, lost medical expenses incurred after his health insurance coverage lapsed and veteran's benefits he would have received if he had been allowed to complete his probationary period. Berndt v. City of Wis. Rapids (DILHR, 12/01/76), aff'd. sub nom. City of Wis. Rapids v. DILHR (Wood Co. Cir. Ct., 08/23/76).

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843   Where an employer had terminated the Complainant both because she was pregnant and because of her unsatisfactory job performance, this was a mixed motive case.  Because there was a finding that the Complainant would have been terminated even if she had not been pregnant, the Complainant’s remedies were limited to a cease and desist order and payment of attorney’s fees and costs.  Hoell v. Narada Productions (LIRC, 12/18/92)


843 Remedies in particular types of cases; Suspension

Where discrimination was found on the basis of the unequal treatment of a Complainant who had been guilty of some misconduct, his first suspension would be rescinded to comport with the discipline imposed on a white employe with a similar record, the second suspension would be reduced in length on the theory that there would have been a less severe penalty on a first offense, but the third suspension would not be reduced because it could not be said that that suspension would have been unlikely to have occurred even if it had been handled nondiscriminatorily. McGhie v. DHSS (Wis. Personnel Comm., 03/19/82).

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844 Remedies in particular types of cases; Pregnancy discrimination

Where an employer had terminated the Complainant as Accounting Department Manager both because she was pregnant and because of her inferior job performance, this was a mixed motive case. Because there was a finding that the Complainant would have been terminated even if she had not been pregnant, the Complainant's remedies were limited to a cease and desist order and payment of attorney's fees and costs. Hoell v. Narada Productions, Inc. (LIRC, 12/18/92); aff'd. sub nomHoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

The Respondent's argument that a back pay award should not have extended until the date the Complainant (who was discharged because of pregnancy) delivered because it was not "logical" to believe she would have worked up to her delivery date embodies the same type of preconceptions about the effects of pregnancy on the employee's abilities as was found to have violated the Wisconsin Fair Employment Act.  Howard v. The Cloisters (LIRC, 08/24/90).

An employer's rule requiring an employe to terminate her employment at the end of her third month of pregnancy was discriminatory. Mill Fab v. LIRC (Knight) (Dane Co. Cir. Ct., 07/30/81).

A pregnant employe discriminatorily denied accident and sickness coverage was awarded reimbursement for her additional insurance premiums and hospital costs, as well as seniority and other employe benefits she would have received if disabled for other than pregnancy reasons. King v. Wisconsin Telephone (LIRC, 05/16/79).

Where pregnancy disability had not been treated like other disabilities, the pregnant employe was entitled to disability payments, accumulated sick leave, seniority, cost of medical and hospitalization insurance premiums, and reimbursement for medical expenses. Stewart v. AT&T (DILHR, 05/17/74).

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845 Discriminatory compensation

The Complainant established that the Respondent violated the Wisconsin Fair Employment Act by discriminating against her on the basis of sex and age with respect to salary increases. Since the U.S. Supreme Court issued its decision in Amtrak v. Morgan, 536 U.S. 101, 122 S. Ct. 153 (2002), a number of federal courts that have considered claims of discriminatory compensation have limited recovery in such actions to discriminatory paychecks received within the limitations period. They treat each of the prevailing plaintiff's paychecks that included discriminatory pay as a discrete discriminatory act. Following these cases, the Complainant in this case could only recover for the discriminatory pay raises that she received within the 300 days before she filed her complaint with the Equal Rights Division. Gaulke v. School Dist. of Stratford (LIRC 12/08/06).

 
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849 Remedies in particular types of cases; Miscellaneous

While the retaliatory use of a negative evaluation to affect a former employee’s job opportunities can form the basis of a discrimination complaint, such an allegation cannot be piggy-backed onto a separate complaint merely by characterizing it as evidence going to “damages” following a finding of liability. Swanson v. County of Chippewa (LIRC, 05/11/07).

Section 111.39(4)(c), Stats., provides that when there is a finding of a violation of sec. 111.322(2)(m), Stats., compensation (of not less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred) shall be awarded in lieu of reinstatement if requested by all parties, and may be awarded if requested by any party. This provision has no applicability where there was no request made by either party for an award of compensation in lieu of reinstatement. The Complainant here simply stated at the hearing that he was not seeking to be reinstated to employment with the Respondent. The Administrative Law Judge appropriately made a remedial order which directed the Respondent to pay the Complainant his lost pay and benefits from the date of his discharge until the date of the hearing. Grulke v. Q & E Constr. (LIRC 08/10/06).

The Complainant established that she was discharged for opposing sexual harassment. However, she was not entitled to compensation in lieu of reinstatement under sec. 111.39(4)(c), Stats., because compensation in lieu of reinstatement may be awarded only on proof of a discharge for opposing a discriminatory practice under sec. 111.322(2m), Stats. Clark v. Golden Basket Restaurant (LIRC, 05/28/96).

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850 Duty to mitigate damages

851 Generally, burdens and proof

Even though the record did not demonstrate that the Complainants were diligent in searching for full-time work following their discharge, there was no showing that such full-time work was reasonably available.  It was the Respondent’s burden to make this showing.  Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The Wisconsin Fair Employment Act requires that back pay awards be reduced by amounts earnable with reasonable diligence.  The burden of proving a failure of reasonable mitigation is on the Respondent.  The Respondent can sustain this burden by demonstrating:  (1) that the Complainant failed to make a diligent effort to seek new employment and that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence, or (2) that the Complainant unreasonably rejected proffered employment that was comparable to the job that she had with the Respondent.  In this case, the Complainant’s failure to present documentary evidence of her job search efforts did not in and of itself call into question her testimony that she searched for work.  Job seekers do not necessarily keep records of the jobs they have applied for unless they are required to do so for unemployment insurance or other purposes.  Nunn v. Dollar General (LIRC, 03/14/08).

While presentation of classified advertisements is a common method for establishing that a Complainant has failed to mitigate her damages by making a diligent effort to seek new employment, such evidence was unpersuasive in this case where the Complainant had an arrest record which might deter prospective employers from giving her serious consideration (as it did the Respondent).  Thus, even if the Complainant failed to make a diligent effort to seek new employment, and the Respondent had established there were numerous appropriate jobs available, these facts would not necessarily warrant a conclusion that there was a reasonable likelihood that the Complainant could have found comparable work any sooner than she did.  Nunn v. Dollar General (LIRC, 03/14/08).

The Respondent has the burden of proving a failure of reasonable mitigation of damages. To meet the burden of proving the affirmative defense of failure to mitigate, the employer must establish: (1) that the Complainant failed to exercise reasonable diligence to mitigate his damages; and (2) that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence. Goldsworthy v. Elite Marble (LIRC, 10/15/04).

The mitigation of damages concept is used to determine whether a terminated employee exercised reasonable diligence in seeking comparable employment after her discharge. Powell v. SBC Ameritech (LIRC, 04/21/03).

Once a Complainant establishes the amount of damages she claims resulted from the employer’s conduct, the burden shifts to the employer to show that the Complainant failed to mitigate her damages, or that the damages were in fact less than she asserts. Haas v. Jerry Sark (LIRC, 03/19/03).

The ultimate inquiry in a mitigation of damages question is whether the Complainant acted reasonably in attempting to gain other employment or in rejecting proffered employment. The Respondent bears the burden of proving the affirmative defense of a failure to mitigate. Ramos v. Stoughton Trailers (LIRC, 08/16/01).

A Complainant has an obligation to mitigate his damages, and if the Respondent can demonstrate that he failed to make a diligent effort to do so, the back pay award may be reduced by the amount the Complainant could have earned had he exercised reasonable diligence in seeking new employment. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

The Respondent attempted to show that the Complainant failed to mitigate her damages by, among other things, introducing statistics published by the Department of Workforce Development showing that the unemployment rate in the area during the backpay period was between 1.5% and 1.7%. These general statistics lump all kinds of employment together; they cannot help answer the question of whether there was comparable work available to the Complainant. Furthermore, the suggested fact that a low unemployment rate means a high rate of open and available jobs is one which is not actually established by the mere unemployment rate figures themselves, but instead requires some additional knowledge of and analysis of labor market conditions. Mueller v. Schedulesoft (LIRC, 10/27/00).

The use of classified advertisements showing the availability of different positions during the backpay period is a common method of proof of failure to mitigate damages. Whether opportunities for other comparable employment existed, such that the employer can be considered to have satisfied its burden of proving that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence, is primarily a question of fact. Where the employer introduces no evidence that any alternative employment was available to a former employee during the backpay period, the employer has not sustained its burden of proof. Mueller v. Schedulesoft (LIRC, 10/27/00).

To meet the burden of proving the affirmative defense of failure to mitigate damages, the employer must establish that the Complainant failed to exercise reasonable diligence to mitigate her damages, and that there was a reasonable likelihood that the Complainant might have found comparable work by exercising reasonable diligence. Biggers v. Isaac’s Lounge (LIRC, 10/29/99).

Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. The burden is on the employer to prove that the Complainant did not have any justifiable reason for quitting. In this case, the Complainant established that the job she took after being discharged by the Respondent was not comparable in terms of working conditions or compensation. Under the circumstances, the Complainant's quitting that job should have no adverse effect on her eligibility for back pay. Crivello v. Target Stores (LIRC, 08/14/96), aff'd. sub nom. Target Stores v. LIRC (Ct. App., Dist. IV, unpublished decision, 1/8/98).

The manner in which the Complainant treated the Respondent at the hearing is irrelevant to the issue of mitigation of damages. The question of mitigation of damages is simply whether, after a legal wrong has been committed causing damage to another party, that party makes reasonable efforts to avoid or lessen the damage. Dude v. Thompson (LIRC, 11/16/90).

In order to satisfy its burden of proving that the Complainant failed to mitigate damages, the Respondent must prove both that the Complainant was not reasonably diligent in seeking other employment and that, with the exercise of reasonable diligence, there was a reasonable chance that the Complainant might have found comparable employment. Lambert v. All Lighting, Inc. (LIRC, 08/28/90).

The burden is on the employer to prove that the employe has failed to exercise reasonable diligence in mitigating her wage loss. Not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

The Respondent has the burden of showing that the Complainant did not make reasonable efforts to mitigate her damages, thereby cutting off the back pay period. Compton v. Great Wall Restaurant (LIRC, 07/20/89).

Where unlawful discrimination has occurred, the employer has the burden of proving its contention that the Complainant has failed to adequately mitigate his or her back pay losses by seeking other employment. Rusch v. City of La Crosse Police and Fire Comm. (LIRC, 12/19/88).

While an employe has a duty to seek other employment in mitigation of damages, the employer has the burden of proof to establish that alternative employment was an available reality. Where there was evidence only that employment was available in the Complainant's field, but there was no comparison of pay, location, or other circum-stances for the available positions, it was held that the employer failed to establish the existence of available alternative employment. UW Whitewater v. LIRC (Ct. App., Dist. IV, unpublished decision, 11/25/85).

The Wisconsin Fair Employment Act requires that backpay awards be reduced by "amounts earnable with reasonable diligence."  The burden of proving a failure of reasonable mitigation is on the employer. Anderson v. LIRC, 111 Wis. 2d 245, 255, 330 N.W.2d 594 (1983).

Where the employer did not show that there were any suitable jobs available during the back pay period or that the job applicant turned down any jobs, it failed to meet its burden of proof on the question of mitigation of damages. Neuendorf Transp. v. LIRC (Vicherman) (Dane Co. Cir. Ct., 05/07/82).

Failure to mitigate damages is an affirmative defense, and where the employer failed to show that there were suitable jobs available during the back pay period or that the applicant turned down any jobs, the employer failed to meet its burden on that issue. Appleton Electric v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).

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852 Duty to mitigate damages; Cases

The Complainant attended a technical school in order to gain the skills necessary to become employed with a specific employer in the area. He also attempted to continue in paid employment while attending school, but quit that employment when it interfered with his schoolwork. There was no reason to believe that the Complainant's efforts were not undertaken in mitigation of his damages. It would not be appropriate to reduce his back pay as a result. Knight v. Walmart Stores East (LIRC, 10/11/12).

The Complainant did not attempt to mitigate his damages. The Complainant was not eligible for back pay following his discharge where he did not seek employment and he made no contention that his failure to do so was because of a lack of job opportunities in the labor market. Smith v. Wisconsin Bell (LIRC, 04/19/12).

Self-employment is an acceptable method of mitigating damages. The Complainant did not fail to mitigate his damages in the first year following his discharge where he enrolled in taxidermy school and set up his own taxidermy business. The evidence did not suggest that at the time the Complainant decided to go to taxidermy school and start his own business he lacked a reasonable expectation that the business could be successful. Nor was there any evidence to indicate that the Complainant’s efforts to get the business off the ground were inadequate. However, while it might be reasonable to expect a new business to founder in its early days, there comes a point at which the Complainant’s self-employment efforts are recognized to be failing and can no longer be deemed a reasonable effort to mitigate damages. At some point the Complainant should have recognized that he was not going to be able to support himself on his taxidermy business alone. At that point he was no longer attempting to mitigate his wage loss and, therefore, cannot expect to pass his continuing wage loss on to the Respondent. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

After the hearing, and after the Administrative Law Judge issued a preliminary decision finding that the Respondent had unlawfully discriminated against the Complainant, the Respondent moved to amend its answer to raise a question of failure to mitigate damages. The administrative rules relating to hearings before the Equal Rights Division provide that a complaint may not be amended less than twenty days before hearing unless good cause is shown. Although the rule dealing with answers is silent on when amendment is permitted, one may infer a twenty-day rule applies to amendments offered to raise affirmative defenses in answers as well. Further, even if sec. 802.09(2), Stats., applied to cases before the Equal Rights Division, the statute does not authorize raising entirely new, unlitigated causes of action or affirmative defenses after the conclusion of the hearing. Kalsto v. Village of Somerset (LIRC, 10/03/00).

The employer offered evidence in the form of classified advertisements showing the availability of work during the backpay period. That evidence was a "random" sample of advertisements which showed that there were 78 bartender positions and 125 waitressing positions available during the two and one half year backpay period. Biggers v. Isaac’s Lounge (LIRC, 10/29/99).

The Complainant did not fail to exercise reasonable diligence in mitigating her damages when she was fired from her subsequent employment for having three absences which, under the circumstances, were understandable absences. U. S. Paper Converters v. LIRC and Bodoh,  208 Wis. 2d 523, 561 N.W.2d 756 (Ct. App. 1997)

A certified teacher who was discriminatorily refused hire as an accountant was thereafter justified in pursuing teaching rather than accounting positions. Anderson v. UW-Whitewater (LIRC, 02/16/83), aff'd. sub nom. UW-Whitewater v. LIRC (Dane Co. Cir. Ct., 03/09/84).

Self-employment is an acceptable method of mitigating damages, and a rejected job applicant who became owner-operator of a tavern qualified under this method. Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

A discharged employe did not use reasonable diligence to mitigate his lost earnings where he did not seek other employment because of a belief that the nature of his discharge made him unemployable. Fruehwald v. City of Milwaukee (LIRC, 12/18/81).

The discharged employe's actions in applying for factory jobs and working as a waitress satisfied her mitigation duty. Appleton Electric v. LIRC (Kreider) (Dane Co. Cir. Ct., 05/12/81).

Where a job applicant made an exhaustive effort to find work before she was discriminatorily denied employment, her failure to make additional efforts should not diminish her back pay award because she was justified in believing that it would be fruitless, she had already registered with various job services and she did not have the money to travel downtown. Janssen v. Milwaukee County (DILHR, 10/12/76).

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860  Frivolous claims and defenses

861  Frivolous claims and defenses;  Administrative law judge authority to find that a claim or defense is frivolous (227.483, Stats.)

[Sec. 227.483, Stats., provides that if a hearing examiner finds, at any time during the proceeding, that an administrative hearing commenced or continued by a petitioner or a claim or defense used by a party is frivolous, the hearing examiner shall award the successful party the costs and reasonable attorney’s fees that are directly attributable to responding to the frivolous petition, claim, or defense.  If the costs and fees awarded are awarded against the party other than a public agency, those costs may be assessed fully against either the party or the attorney representing the party, or they may be assessed so that the party and the attorney each pay a portion of the costs and fees.]

The commission reviews an ALJ’s decision whether to impose sanctions for making a frivolous claim according to an “abuse of discretion” standard.  The commission was not given authority to make its own findings under sec. 227.483, and therefore cannot conduct a de novo review.  Under the abuse of discretion standard, the question is whether the ALJ “examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.”  Loy v. Bunderson, 107 Wis.2d 400, 415, 520 N.W.2d 175 (1982); Paytes v. Kost, 167 Wis.2d 387, 393, 482 N.W.2d 130 (Ct. App. 1992).  The ALJ failed to meet that standard, where she told the parties she would decide the issue based on the record and briefs, then proceeded to gather documents outside the record, and decided the issue based in part on those documents.  Although the documents were in the possession of the agency in case files other than the one in front of the ALJ, and it may have been possible to take administrative notice of them under sec. 227.45(2), in this case the ALJ did not provide the parties an adequate opportunity to rebut the documents or offer countervailing evidence as required by sec. 227.45(2).  Reed v. Heiser Ford, Inc. (LIRC, 05/31/13).

A party requesting an award of attorney's fees and costs pursuant to sec. 227.483, Stats., ('Costs Upon Frivolous Claims') must do so prior to the end of the proceedings before the Administrative Law Judge. LIRC cannot act on a request made for the first time before LIRC. Drabek v. Major Industries (LIRC, 06/09/11).

Any request for an award under the frivolous claims statute, sec. 227.483, Stats., must be made to the Administrative Law Judge. LIRC can then review the ALJ's ruling on the request. LIRC cannot act on a request made for the first time before LIRC. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

Section 227.483, Stats., does not address the question of exactly when during a case a party should make a motion for a finding that a claim or defense was frivolous. However, some matters of timing are implicit in the fact that the statute authorizes an administrative law judge to make a finding under the statute “at any time during the proceeding.” From this it is implicit that a party does not have to wait until the end of the proceeding. It is also implicit that a party must request such a finding prior to the end of the proceedings before the ALJ. Other considerations relevant to the timing question arise from limitations implicit in the Wisconsin Fair Employment Act. The authority of the Labor and Industry Review Commission extends only to review of an ALJ’s final findings and orders in a case within the meaning of sec. 111.39, Stats. From this it is clear that the only way in which LIRC can review a ruling by an ALJ under sec. 227.483, Stats., is in the course of conducting a review of an ALJ’s final findings and order in a case, when the findings and order include such a ruling. A party who wishes to have a ruling on a request for a finding of frivolousness and an award of costs and fees under sec. 227.483, Stats., must make such a request before the Administrative Law Judge issues his or her final findings and order in the case. The Administrative Law Judge can then include a ruling on the request in the ALJ’s final findings and order in the case. If this procedure is followed, then the ALJ’s ruling on the 227.483 request will be reviewable by the Labor and Industry Review Commission. Henderson v. Department of Corrections (LIRC, 03/19/09).

It seems obvious that in order to qualify as frivolous under sec. 227.483, Stats., the petition, claim, or defense in question must have been an unsuccessful one.  In this case, the claims were found to be meritorious by the ALJ.  Therefore, they could not be considered frivolous.  Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

Prior to the hearing, the Respondent submitted a Motion for Sanctions for Frivolous Claim against the Complainant pursuant to sec. 227.483, Stats. The Respondent asserted that sanctions were appropriate because the Complainant had both commenced and continued this action in bad faith, solely for the purpose of harassing and injuring the Respondent, and without any reasonable basis in law or equity to bring or continue his claim. The Administrative Law Judge indicated that she would consider the motion for sanctions after the hearing. However, the Complainant withdrew his complaint on the day of the scheduled hearing. The Administrative Law Judge then dismissed his complaint, without ruling on the motion for sanctions. On appeal to the Labor and Industry Review Commission, the Respondent asserted that the Complainant should not be allowed to engage in a tactic of initiating charges and lawsuits against employers, only to abandon them. The Respondent argued that an interpretation that deprived the Equal Rights Division of jurisdiction the instant a notice of withdrawal was presented would allow any petitioner to file a frivolous charge and maintain it until the very moment it became apparent that defeat was imminent and that sanctions would be awarded. This would render sec. 227.483, Stats., meaningless, as it would not serve as a deterrent for a Complainant (especially in a case like this, where the Complainant had filed multiple claims against many different employers over the past several years). The Labor and Industry Review Commission agreed with the Respondent’s arguments that the Administrative Law Judge should retain jurisdiction to rule on a sec. 227.483, Stats., motion once a Complainant submitted a request to withdraw his complaint. The case was remanded to the Equal Rights Division for further proceedings with respect to the Respondent’s motion for sanctions against the Complainant for a frivolous claim. Reed v. Heiser Ford (LIRC, 12/07/07).

 

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862  Frivolous claims and defenses;  Court authority to find that a claim or defense is frivolous (802.05, Stats., former 814.025 Stats.)

[Ed. Note:  Sec. 814.025(1), Stats., was repealed by Supreme Court Order No. 03-06, effective July 1, 2005.  Sec. 802.05, Stats., was also repealed by the Supreme Court.  It was re-created to conform with Rule 11 of the Federal Rules of Civil Procedure. The cases summarized below were decided before sec. 814.025(1), Stats. was repealed.]

The Labor and Industry Review Commission affirmed the decision of an Administrative Law Judge that there was no probable cause to believe that the Respondent had violated the Wisconsin Public Accommodations and Amusements Law by giving preferential treatment on the basis of race.  The Complainant then filed an action against the Respondent in circuit court under sec. 106.52(4)(c), Stats., pursuant to which a complainant may receive a new trial and a decision de novo by the circuit court on public accommodations discrimination claims.  The circuit court decided on a motion for summary judgment that there had been no discrimination.  The circuit court also concluded that the court action had been frivolous under sec. 814.025, Stats.  It awarded the Respondent reasonable costs and attorney’s fees pursuant to that statute.  The court found that the action was frivolous because both the Equal Rights Division and LIRC had found that there was no probable cause to believe that discrimination had occurred, and the Complainant had presented no new evidence in his appeal to the circuit court to provide a factual basis for the claim, but relied only upon unsubstantiated conclusory statements.  The Complainant should have known that without more than conclusory statements his claim would be as unsuccessful in court as it was in the previous administrative proceeding.  Harris v. Curley (Dane Co. Cir. Ct., 08/11/04).

A trial court must generally hold a separate hearing on the issue of frivolousness in a court proceeding under sec. 814.025, Stats.  However, a finding of frivolousness may be made without a hearing if the facts are undisputed and only a question of law remains.  A claim is not frivolous under sec. 814.025, Stats., simply because there is a failure of proof, or because it was later shown to be incorrect, or it lost on the merits.  The critical question is whether the party or the party’s attorney knew or should have known that the needed facts did not exist or could not be developed to support the claim.  Harris v. Curley (Dane Co. Cir. Ct., 08/11/04)

Circuit court review of an administrative case is analogous to an action originating in the circuit court.  A circuit court may properly award reasonable attorney’s fees if it finds that any single claim of a petitioner was frivolously brought before the court on review under Ch. 227, Stats.  The circuit court cannot award attorney’s fees incurred at the various agency levels, however.  In this case, the plaintiff did not appeal the Department’s adverse decision on her race discrimination claim to the circuit court.  Thus, she did not “continue” her race discrimination claim before the circuit court under sec. 814.025, Stats.  Therefore, the circuit court could make no finding as to its frivolousness.  Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).

 
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863  Frivolous claims and defenses;  LIRC authority to determine that a claim or defense is frivolous

[Ed. Note:  Sec. 814.025(1), Stats., was repealed by Supreme Court Order No. 03-06, effective July 1, 2005.  Sec. 802.05, Stats., was also repealed by the Supreme Court.  It was re-created to conform with Rule 11 of the Federal Rules of Civil Procedure.]

A party requesting an award of attorney's fees and costs pursuant to sec. 227.483, Stats., ('Costs Upon Frivolous Claims') must do so prior to the end of the proceedings before the Administrative Law Judge. LIRC cannot act on a request made for the first time before LIRC. Drabek v. Major Industries (LIRC, 06/09/11).

Any request for an award under the frivolous claims statute, sec. 227.483, Stats., must be made to the Administrative Law Judge. LIRC can then review the ALJ's ruling on the request. LIRC cannot act on a request made for the first time before LIRC. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

The authority of the Labor and Industry Review Commission extends only to review of an ALJ’s final findings and orders in a case within the meaning of sec. 111.39, Stats. From this it is clear that the only way in which LIRC can review a ruling by an ALJ under sec. 227.483, Stats., is in the course of conducting a review of an ALJ’s final findings and order in a case, when the findings and order include such a ruling. A party who wishes to have a ruling on a request for a finding of frivolousness and an award of costs and fees under sec. 227.483, Stats., must make such a request before the Administrative Law Judge issues his or her final findings and order in the case. The Administrative Law Judge can then include a ruling on the request in the ALJ’s final findings and order in the case. If this procedure is followed, then the ALJ’s ruling on the 227.483 request will be reviewable by the Labor and Industry Review Commission. Henderson v. Department of Corrections (LIRC, 03/19/09).

The Respondent requested that LIRC remand a case to the Administrative Law Judge with directions to grant the Respondent its costs and attorney’s fees on the ground that the Complainant’s appeal of the decision by the Administrative Law Judge was frivolous under sec. 227.483, Stats. LIRC denied the request. While the record evidence did not support the Complainant’s underlying discrimination claim, it also did not support the Respondent’s assertions that the Complainant had no evidence to reasonably support his discrimination claim, or that he had maintained that claim in bad faith or solely for the purpose of harassing the Respondent. Dobberstein v. NSight Telservices (LIRC, 02/23/07).

The arguments raised by the Respondent in an effort to establish that the Complainant’s position in this case was frivolous were not addressed.  It would be superfluous to do so under the controlling decision in Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 849 (Ct. App. 1986).  Ring v. Midwest Directories (LIRC, 01/26/96).

Neither ch. 227, Stats., nor the Wisconsin Fair Employment Act expressly or impliedly authorizes the Labor and Industry Review Commission to award attorney’s fees to an employer for frivolous employment discrimination claims brought by an employee.  Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).

The Labor and Industry Review Commission has no authority to award attorney's fees to an employer after the Complainant withdraws her complaint of employment discrimination.  Sec. 814.025, Stats., does not authorize the Commission to make determinations of frivolousness or to assess costs and reasonable attorney's fees against Complainants in favor of Respondents.   Jeffries v. Cameo Convalescent Center (LIRC, 08/09/85); aff’d sub nom. Cameo Convalescent Center v. LIRC (Milwaukee Co. Cir. Ct., 09/02/86).

The Wisconsin Fair Employment Act does not impliedly authorize the Labor and Industry Review Commission to award attorney's fees to prevailing employers in employment discrimination actions.  Sec. 814.025, Stats., relating to awards of fees for bringing a frivolous claim in courts, applies only to court proceedings.  Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85); aff’d sub nom. Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86).

 
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900  CIVIL ACTION FOR DAMAGES AFER COMPLETION OF ALL ADMINISTRATIVE PROCEEDINGS (Sec. 111.397, Stats)

(No Cases)

[Ed. Note: Wis. Stat. § 111.397 was created by 2009 Wisconsin Act 20 [https://docs.legis.wisconsin.gov/2009/related/acts/20].  2009 Wisconsin Act 20 first applied to acts of employment discrimination, unfair honesty testing, or unfair genetic testing committed on its effective date, which was July 1, 2009.

The changes made to the WFEA by 2009 Wisconsin Act 20 were repealed by 2011 Wisconsin Act 219 [https://docs.legis.wisconsin.gov/2011/related/acts/219].  2011 Wisconsin Act 219 first applies to an administrative proceeding under section 111.39 of the statutes concerning a violation of section 111.321, 111.37, or 111.372 of the statutes in which a copy of the final decision under section 111.39 (4) (d) or (5) (d) of the statutes is mailed to the last-known address of the complainant on the effective date of this subsection, which was April 20, 2012.]

 

 

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