BRIAN L SUTTLE, Complainant
DEPARTMENT OF CORRECTIONS, 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. Paragraphs 3 and 4 of the ORDER are deleted.
2. Paragraph 2 of the ORDER is renumbered as paragraph 3 and the following is inserted as paragraph 2 of the ORDER:
"That the Department of Corrections make a written offer of reinstatement to Mr. Suttle to the position of Supervising Officer 1, or an equivalent position in the event of the absence of the availability of a Supervising Officer 1 position. The offer of reinstatement shall entitle Mr. Suttle to the wages and benefits that he would have received as if he had continued in employment from the date the charges against him were dismissed by the Court to the date of his reinstatement. The offer of reinstatement shall give Mr. Suttle reasonable notice of the time and place to report to work. The Department of Corrections shall reinstate Mr. Suttle unless, after the commission's decision in this matter becomes final, Mr. Suttle notifies both the Department of Corrections and the commission that he does not wish to be reinstated or Mr. Suttle fails to reasonably report for work at a time and place the Department of Corrections has reasonably designated in its offer of reinstatement. If Mr. Suttle does not wish to be reinstated, he shall notify the Department of Corrections and the commission in writing within 10 days of the offer of reinstatement.
3. In renumbered paragraph 3 of the ORDER, the language "dropped by the District Attorney and" appearing on lines four and five is deleted.
4. Paragraph 5 of the ORDER is deleted and the following is inserted as paragraph 4 of the ORDER:
"Within 30 days of the expiration of time within which an appeal may be taken herein, the Department of Corrections shall submit a compliance report which provides details of the specific action it has taken to comply with the remedial relief ordered in this matter. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. 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 for each such violation the employer shall forfeit not less than $10 nor more than $100 for each offense. Wis. Stat. § § 111.395, 103.005(11) and (12)."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed May 22, 2009
suttlbr . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
Ann L. Crump, Commissioner
This case arises from a discrimination complaint Brian Suttle filed against the Department of Corrections (DOC) which alleged that the DOC violated the Wisconsin Fair Employment Act by terminating his employment on the basis of arrest record. The commission notes here at the outset of this memorandum opinion that neither party requested to file a brief in this matter.
Suttle began employment with the DOC in 1999 as a youth counselor at Ethan Allen School in Wales, Wisconsin. In 2001 Suttle was promoted to the rank of sergeant and transferred to the Racine Correctional Institute. In July 2003 Suttle was promoted to the position of Supervising Officer 1 and transferred to the Milwaukee Secure Detention Facility (MSDF). The MSDF is a medium security institution which houses 1048 inmates. John Husz is the warden. Suttle's job duties as a Supervising Officer 1 included assisting with security, custody and control of offenders, and supervising Correctional Officers and Correctional Sergeants.
On September 25, 2005, Suttle was arrested and charged with sexual assault of a 12-year-old child. Wis. Stat. § 948.02. The child who accused Suttle of the sexual assault was his wife's granddaughter.
On September 29, 2005, DOC placed Suttle on administrative leave without pay, retroactive to September 26, 2005. Pursuant to DOC's Executive Directive 42, when an employee is under the custody, control, or supervision of a federal, state or local law enforcement or correctional agency, that makes the employee unfit for duty.
On October 5, 2005, preliminary hearing proceedings were held on the sexual assault charges against Suttle. Gary Mitchell, the administrative captain at MSDF at the time, attended the October 5 hearing as a representative of DOC. Among other things, the alleged sexual assault victim testified that while spending the night at her grandma's, Suttle came into her room wearing a robe when everyone was asleep, got on top of her and started "grinding" on her. The alleged victim testified that she had on some jogging pants and a T-shirt. She testified that she could feel Suttle's penis between her legs and that he was squeezing her breast. The alleged victim further testified that the first time something like this had happened was probably when she was seven or eight, and that Suttle had done something like this almost every time she went to their house.
According to the transcript of the preliminary hearing, the hearing began at 2:42 p.m. and ended at 3:02 p.m. The assistant district attorney and Suttle's attorney questioned the alleged victim. The court found probable cause to believe that a felony had been committed and ordered Suttle bound over for trial.
Mitchell testified that he talked to Husz on October 5, 2005, about what happened during the preliminary hearing.
Brad Hompe, at the time the deputy warden of the Racine Correctional Institution, and Michael Cockroft, at the time the security director of the Racine Youthful Offender Center, were assigned to conduct an investigation into the allegations of sexual assault against Suttle, and whether or not there had been a violation of a work rule.
On November 16, 2005, Hompe signed the completed investigative report. The report included sixteen exhibits as evidence, an excerpt of questions and answers that were presented in an interview with Suttle at the Milwaukee County Jail on October 18, 2005, an interview (by phone) with the alleged victim's mother on November 2, 2005, and Hompe's conclusions and recommendations. The following were among the sixteen exhibits included as evidence in the investigation report:
1. "Criminal complaint DA case # 05XF6811"
2. "Newspaper article from Journal Sentinel"
3. "Online article from Journal Sentinel dated 9/29/05"
4. "Wisconsin Circuit Court Access report 2005CF005560"
5. "Milwaukee Police Department Reports-20 pages"
6. "Criminal complaint and reports from former sexual assault charge-21 pages"
7. "MSDF Command staff schedule-September"
8. "MSDF shift report 9/7/05"
9. "Phone records for MSDF Lt. office"
10. "Unfit for duty letter to Suttle dated 9/29/05"
11. "Incident report 1056809"
12. Hompe's report states that in a phone conversation with Denise Suttle (complainant's wife) on October 26, 2005, that "Denise said she would not meet with us as she did not want to get caught in the middle. Denise said she did not want a he said-she said situation where she may say something different than her husband...." Hompe's report also includes an excerpt of questions and answers presented in an interview with Ann Smith, a subordinate employee of Suttle's. The focus of the questions was the relationship between Suttle and Smith, and their conduct while on duty.
During Suttle's interview with Hompe and Cockcroft, Suttle asserted that the reason for the child's sexual assault charge was that he was about to tell the child's mother that "boys-guys" that sounded like older men were calling his house for the alleged victim. Suttle stated that before the alleged victim went to bed he and his wife were in the room where the alleged victim slept, on the computer looking at dogs that were stranded by hurricane Katrina because they were looking to adopt one. Suttle denied being in the room where the child was sleeping any other time throughout the night. Suttle's interview also included the following question and answer exchange:
Q. According to your wife you admitted to her that you were in the room the AV was in that night to cover her up.
A. That is inaccurate.
Q. What is inaccurate?
A. Because I don't recall saying that to my wife.
Q. So your wife lied to the police?
A. No. I don't recall saying that. I might have. I don't remember.
Q. Did you go in the room to cover her up?
B. At the ERD hearing Suttle testified that while he was being interviewed at the Milwaukee County Jail there were inmates walking by the interview room making "cut throat" and sexual gestures at him.
In his signed report of November 16, 2005, Hompe concluded that Suttle did engage in criminal activity (i.e., Sexual assault of a child), and that Suttle had violated work rules.
Hompe summarizes his conclusion that Suttle had engaged in criminal activity as follows:
The police reports and the criminal complaint provide information that would indicate Suttle did in fact sexually assault minor [the child's name has been omitted]. The child has been deemed credible and able to tell the difference between truth and a lie. The Step Wise Forensic Interview Protocol was used by law enforcement as a tool to verify credibility of the child. Suttle also stated at the scene that he did in fact enter the room where the child was sleeping on the night prior to his arrest. He denied this but later said he may have said it in later questioning to DOC investigators. Suttle's reasoning for the victim to make allegations is not plausible and is not supported by the evidence obtained in our interviews. Suttle has been bound over for trial for the sexual assault charges.
Executive Directive 2 of the DOC provides that "Discipline may be imposed only after there has been a pre-disciplinary meeting. The purpose of this meeting is to present the employee with the facts concerning his/her misconduct and to inform him or her that discipline is being contemplated. In addition the meeting is to provide the employee an opportunity to respond to the charges and present information that could mitigate in his/her favor or otherwise impact on the decision."
On November 30, 2005, Hompe sent written notice to Suttle that he was required to participate in a pre-discipline hearing on December 2, 2005, that was to take place in Milwaukee County Jail at 9:00 a.m. The written correspondence further stated that:
This hearing involves the results of our investigation regarding your possible violation of DOC Work Rule(s) 2, 4, 6, 11 & 29. Specifically, you have committed a criminal offense (sexual assault); you have misused the state computer and e-mail system on multiple occasions, and were negligent in performing you[r] regular duties due to your inappropriate behavior at work. This behavior included your use of e-mail and sexual contact with a subordinate employee. You also provided false information in an investigatory interview on 10/18/05.
You are entitled to representation at this hearing.
On December 2, 2005, when Hompe and Cockroft arrived at the jail at 8:56 a.m. to conduct the pre-disciplinary hearing Suttle stated that he was waiting for his attorney. Apparently after waiting for a half hour Suttle was offered representation from MSDF, which Suttle declined and requested to call his attorney, and then after going to his cell to call his attorney refused to attend the hearing.
After notice to Suttle, Hompe and Cockroft arrived at the jail again on December 15, 2005, to conduct the pre-disciplinary hearing. Apparently Suttle claimed he had told his wife to contact his attorney about the hearing and at 9:30 a.m. Suttle's attorney had not arrived so he was offered the choices of proceeding without representation, receiving representation by MSDF or having Hompe/Cockroft call his attorney, all of which Suttle declined. Suttle then stated that his attorney had previously told him that DOC would do what they were going to do, so his attorney did not need to be present. Apparently, Suttle was then informed that DOC would proceed based on the evidence it had.
Sometime after December 15, 2005, Warden Husz reviewed the investigation report and the reports regarding the attempted pre-disciplinary hearing meetings.
Suttle posted bail on January 2, 2006, and was released from jail. In February 2006, the court allowed Suttle work release privileges. However, since Suttle continued to remain under supervision of the court, pursuant to Executive Directive 42 he was still considered unfit for duty.
On March 1, 2006, Warden Husz requested and Captain Mitchell supplied a memo to Husz regarding his (Mitchell's) attendance at the preliminary hearing which reads in part as follows:
My recollections of the events as they unfolded are that the victim appeared to be credible and accurate in her testimony. She articulated very well, providing the whereabouts of the incident, date and time. She also stated that this has been ongoing since she was seven or eight, up until September 25, 2005. All events were at her grandmother's house, who was married to Mr. Suttle.
This was a preliminary hearing and no other witnesses were called to testify.
The court denied Mr. Suttle's attorney['s]...motion to dismiss the complaint. The court found probable cause to believe a felony has been committed and bo[u]nd Mr. Suttle over for trial. A scheduling conference was set for October 20, 2005 and bail was set at $10,000.
I've enclosed a copy of the transcript for your review....
After reviewing the investigation report, the reports of the attempted pre-disciplinary hearing, the court transcript of the preliminary hearing and discussing those documents with Captain Mitchell, Warden Husz decided to terminate Suttle's employment based upon his conclusion that Suttle was guilty of the crime of sexually assaulting a minor. Husz decided to base his decision to terminate Suttle's employment solely on his conclusion that Suttle had sexually assaulted a minor and not on any of the other grounds for discipline listed in the investigatory report.
At 1:00 p.m. on April 3, 2006, Husz, Mitchell and Colleen Hansen, human resources director, held a meeting via telephone with Suttle to allow him an opportunity to respond to the reason for the intended termination of his employment.
Later, on April 3, 2006, Warden Husz wrote to Suttle notifying him of the termination of his employment. The letter reads, in part, as follows:
I have reviewed the information you provided at the meeting and the decision to terminate your employment is justified in my opinion. Therefore, this is formal notice of the termination of your employment as a Supervising Officer 1 at the Milwaukee Secure Detention Facility effective April 3, 2006, for violation of the following DOC Work Rules (sic) that applies to all Department employees:
- WR# 11: Violating a criminal statute or ordinance, or other regulation having the force and effect of law.
This action is based on your having engaged in criminal conduct, that is, you sexually assaulted a minor in violation of s. 948.02, Stats. (Sexual assault of a child) on more than one occasion. Specifically, on or about September 25, 2005, you sexually assaulted a minor while she was in your home. In addition, you engaged in this conduct against this child on multiple occasions over the past several years. This conclusion is based on an investigation which included observing the testimony of the minor victim at the preliminary hearing regarding the sexual assault on September 25, 2005 and the prior sexual assaults.
. . .
You have worked for the Department of Corrections (DOC) since April 12, 1999. However, your current egregious behavior undermines your ability to carry out the duties and responsibilities of your position. As a Supervising Officer 1 (Lieutenant) you are responsible for the supervision of inmates and staff. You [are] expected to act as a role model. You are responsible for caring for the health and safety of inmates and staff. By engaging in the criminal conduct you have demonstrated behavior which preys on the vulnerability of those who cannot adequately defend themselves and due to the fact you are in a position of authority, it therefore undermines your ability to work for the DOC.
(Emphasis in original.)
After Suttle's termination of employment by DOC, the district attorney decided to drop the criminal charges against Suttle and the Court dismissed the criminal complaint against Suttle.
Under the WFEA, subject to ss. 111.33 to 111.36, it is an act of employment discrimination for an employer "to...terminate from employment...any individual...because of any basis enumerated in s. 111.321." Wis. Stat. § 111.322. An individual's arrest record is one basis of prohibited discrimination under § 111.321. The term "arrest record" includes, but is not limited to, information indicating that an individual has been "charged with...any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." Wis. Stat. § 111.32(1).
It is not discrimination on the basis of arrest record, however, if an employer discharges an employee because the employer concludes from its own investigation and questioning of the employee that he or she has committed an offense. City of Onalaska v. LIRC, 120 Wis. 2d 363, 367, 354 N.W.2d 22 (Ct. App. 1984).
In addition, notwithstanding § 111.322's prohibition against discrimination against an individual on the basis of arrest record, "it is not employment discrimination because of arrest record to...suspend from employment any individual who is subject to a pending criminal charge if the circumstances of the charge substantially relate to the circumstances of the particular job..." Wis. Stat. § 111.335(1)(b).
Concluding that the DOC had violated the WFEA by terminating Suttle in part based on his arrest record, the ALJ stated in pertinent part as follows:
The evidence in this case indicated that the DOC made its decision based on all the evidence it had, which included the criminal complaint and the Wisconsin Police Department Reports, each of which have been defined by the Labor and Industry [Review] Commission as part of the arrest record. Betters v. Kimberly Area Schools (LIRC, 07/30/04)....The evidence indicated that the termination decision was based on the totality of the investigation. Warden Husz indicated that he looked at everything that he could, and resisted attempts to identify what was more or less important in his decision. Since the DOC illegally considered matters defined as part of the arrest record in the investigation, the decision based on the investigation has been found to have [been] made in part because of arrest record.
The commission agrees. Warden Husz was the person that ultimately made the decision to terminate Suttle's employment. Initially, on cross-examination Husz testified that he thought it was his review of the transcript of the preliminary hearing that made him comfortable in determining that Suttle had to be terminated. Husz testified that this was what "put him over the edge". Husz testified that at that point in time, reading the victim's testimony led him to believe that he had enough evidence to terminate Suttle's employment. Husz testified that he determined that the witness was credible based on his reading the transcript. Husz also testified that he viewed reading the transcript of the preliminary hearing to be part of an independent investigation because they "were not going to re-victimize" the 12-year-old girl. Husz testified that the basis for his presumption that the girl had been victimized already was "the information that was conducted by my investigators, in addition to Gary Mitchell and reading the transcript."
When asked how much weight he put on Captain Mitchell's determination that the (alleged) victim was credible Husz responded, "I don't think I can give you a percentage in terms of any of the information I had." Husz testified that this was "a piece" of the overall investigation and that he waited until he felt he "was making the right decision, an independent...based upon the underlying behavior."
When asked what in addition to Captain Mitchell's statement about his evaluation of the alleged victim's credibility and reading the transcript was a major contributing factor to determining that Suttle had committed a sexual assault of a child, Husz replied that it was the information from the investigator's interviewing the victim's mother and statements that were taken by Hompe and Cockroft. When asked if there was anything particularly relevant in the alleged victim's mother's interview that caused him to believe that this sexual assault happened, Husz replied, "I think it's part of the story, I think it's part of the foundation to understanding the dynamic, and it was a piece, it was important."
Husz also stated that the observations of the interview with Suttle by the investigators were part of the information he considered in making his decision. Husz stated that he could not give a percentage as to the importance of Suttle's interview. When asked if this was important to him, Husz replied, "I think the overall package was important in making the decision." When asked what about the interview with Suttle sticks out in his mind as important in deciding that Suttle committed this sexual assault Husz replied, "I see what the investigators do and the statements taken from Mr. Suttle as part of the story, part of the information I considered." When asked if there was no particular fact or aspect of that interview or statement that Suttle made; if there was no particular detail in there that he could point to that he felt was important Husz replied: "I don't think there is any particular detail, it's the package, and when I put the package together in March I made the decision to proceed and looked at the underlying behavior and made the decision to terminate Lieutenant Suttle's position."
The commission has previously recognized that an employer's investigation might include information that is part of what has been defined as part of an arrest record but that the evidence nevertheless supports a finding that the employer's adverse action had not been taken because of the individual's arrest record. For instance, in Betters v. Kimberly Area Schools (LIRC, 11/28/07), the commission stated:
Of course, the respondent had some information here about the fact that complainant had been arrested. The respondent also had a copy of an arrest report containing what purported to be information, provided by a law enforcement officer, to the effect that the complainant had made certain admissions in the jail. Such information, coming from the arresting authority, does not constitute information independent of the arrest and of the arresting authorities, but is part and parcel of the complainant's "arrest record". Betters v. Kimberly Area Schools (LIRC, 07/30/04).
However, the fact that the respondent had this information does not in and of itself prove that there was a violation of the prohibition against discrimination because of arrest record. The question is whether the employer's conclusion that the employee had engaged in unacceptable behaviors was based on other information, independent of the arrest and of the arresting authorities.
The critical question which needs to be answered to properly apply Onalaska in a case where an employer has both learned of and about an employee's arrest from the arresting authorities, and has learned things about the employee's conduct independently of the arresting authorities, is the question of the employer's motivation. The question is whether the employer made the decision to discharge the employee because of the information it acquired from the arrest and the arresting authorities, or because of the information it acquired through its own investigation independent of the arresting authorities. This being a question of the employer's subjective intent and motivation in arriving at the challenged decision, it is a question of ultimate fact. (citations omitted)
Betters v. Kimberly Area Schools (LIRC, 07/30/04). Here, the evidence shows that the respondent obtained a significant amount of information, through its own investigation independent of the arresting authorities, which led it to conclude that the complainant had used illegal drugs and had been dishonest with the respondent in a number of respects relating to or arising out of that drug use. The ALJ found, and the commission agrees, that the respondent's beliefs and conclusions regarding this conduct by the complainant were the result of the information the respondent obtained independent of the arresting authorities and the fact of the arrest. The respondent's actions taken because of its beliefs and conclusions, including its discharge of the complainant, were thus not "because of" the complainant's arrest record under the controlling interpretation reflected in Onalaska [City of v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 233 (Ct. App. 1984)]. (Italicization text emphasis added.)
See also, Williams v. Northeast Wisconsin Technical College (LIRC, 07/09/91)(the respondent shared with and received from the police department information regarding Williams activities, but the respondent conducted a rather thorough investigation and was satisfied that Williams had committed sins which warranted termination, regardless of the existence of a police investigation, criminal charges, conviction or acquittal.)
Unlike the Betters and Williams cases, the evidence in the instant case fails to establish that DOC obtained a significant amount of information, through its own investigation independent of the arresting authorities, which led it to conclude that Suttle had engaged in the conduct with which he was charged; that the DOC had concluded from its own investigation that Suttle had committed the sexual assault of a minor regardless of the criminal complaint against Suttle, the newspaper and online Journal Sentinel articles, the Wisconsin Circuit Court Access report and the Milwaukee Police Department reports.
This is most evident based on Husz' repeated testimony that it was "the overall package was important in making the decision", that he could not assign a particular weight to Captain Mitchell's statement about his evaluation of the alleged victim's credibility, that there was nothing particularly relevant in the alleged victim's mother's interview that caused him to believe that this sexual assault happened, that "It's part of the story" and that there was no particular fact or detail in the investigators' interview with Suttle that he thought was important.
The WFEA provides that "If, after hearing, the examiner finds that the respondent has engaged in discrimination...the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay...." Wis. Stat. § 111.39(4)(c).
With respect to awarding remedial relief in cases where an employer's action was based in part on a discriminatory motive and in part on a legitimate one, in Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994), the Court of Appeals held the commission's summary of the appropriate remedies in mixed motive (i.e., in part) cases to be reasonable based on the federal fair employment law. In Hoell, the court quoted the commission's summary of such remedies as follows:
"[I]f an employe is terminated solely because of an impermissible motivating factor, the employe normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney's fees under the Wisconsin Fair Employment Act. If an employe is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Commission has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employe is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employe should be awarded only a cease and desist order and attorney's fees.
Id. at 609-610. (Underlining emphasis in original.)
Assuming the applicability of the Hoell in part test to the instant case, given that Warden Husz decided to terminate Suttle based upon looking at everything that he could (which included matters defined as part of Suttle's arrest record) and given that Husz could not identify what was more or less important in his decision, the commission believes that it is impossible to conclude that Husz's decision to terminate Suttle would have taken place in the absence of the impermissible motivating factor. Accordingly, under Hoell the commission would have the discretion to award some or all of the remedies "ordinarily awarded". That is, a cease and desist order, reinstatement, back pay, interest on the back pay and attorney's fees.
Wisconsin Statute § 111.39(4)(c) reads, in relevant part, as follows:
If, after hearing, the examiner finds that the respondent has engaged in discrimination...the examiner shall make written findings and order such action by the respondent as will effectuate the purpose of this subchapter, with or without back pay....If the examiner finds a respondent violated s. 111.322(2m), the examiner shall award compensation in lieu of reinstatement if requested by all parties and may award compensation in lieu of reinstatement if requested by any party. Compensation in lieu of reinstatement for a violation of s. 111.322(2m) may not be less than 500 times nor more than 1,000 times the hourly wage of the person discriminated against when the violation occurred. Back pay liability may not accrue from a date more than 2 years prior to the filing of a complaint with the department....
The ALJ held that in appropriate situations, the ERD had authority to award front pay in lieu of reinstatement if it would be unreasonable for a complainant to return to the workplace, citing Oak-Dale Hardwood Products, Inc. v. LIRC (Pierce Co. Cir. Ct., 02/16/96). The ALJ concluded that the evidence in this case indicated that this was a case where reinstatement would be unreasonable for both parties because of the nature of Suttle's former position. The ALJ ordered the respondent to pay Suttle the sum of 750 times his hourly wage as front pay.
While the ALJ did not elaborate on why he found this to be true in this case there is some evidence in the record that tends to supports this conclusion. Suttle testified that while being interviewed by Brian Hompe and Michael Cockroft at the Milwaukee County Jail there were inmates walking by the interview room making "cut throat" and sexual gestures at him. Suttle testified that those gestures were a signal to him that they were threatening him because he was a DOC employee. If the inmates at the Milwaukee County Jail were making "cut throat" and sexual gestures at Suttle based on his being charged with the sexual assault, it is certainly possible that Suttle could receive this same type of response by the inmates at the MSDF, or any other DOC facility for that matter, if Suttle were to be ordered reinstated to his former position as Supervising Officer 1. Since Suttle's job duties included assisting with security, custody and control of offenders, if the offenders he was responsible for reacted as the inmates at the Milwaukee County Jail did this could potentially undermine Suttle's ability to satisfactorily carry out the duties of a Supervising Officer 1.
Federal courts have held that front pay may be awarded under Title VII of the Civil Rights Act of 1964 where reinstatement is infeasible or inappropriate. See e.g., Reed v. A.W. Lawrence & Co., Inc. 95 F.3d 1170 (2d Cir. 1996); Winsor v. Hinckley Dodge, Inc., 79 F.3d 996 (10th Cir. 1996); Williams v. Pharmacia, Inc., 137 F.3d 944 (7th Cir. 1998); Weaver v. Casa Gallardo, 922 F.2d 1515 (11th Cir. 1991); Shore v. Federal Express, Inc., 777 F.2d 1155 (6th Cir. 1985).
However, the language of Title VII provides that a court is authorized "to order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay..., or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1). In Williams, the court stated:
Title VII explicitly authorizes reinstatement as an equitable remedy; front pay is the functional equivalent of reinstatement because it is a substitute remedy that affords the plaintiff the same benefit (or as close an approximation as possible) as the plaintiff would have received had she been reinstated. As the equivalent of reinstatement, front pay falls squarely within the statutory language authorizing "any other equitable relief." Thus, the district court did not err in awarding front pay after it concluded that Williams could not be reinstated to her old position. (1)
The commission has most recently addressed the question of the availability of front pay under the WFEA in Grant et al. v. Sienna Crest Assisted Living, Inc. (LIRC 07/18/08). In Grant, the commission stated as follows:
The only commission decision directly addressing the front pay issue, other than in the context of Wis. Stat. § 111.322(2m), is Miller v. Oak-Dale Hardwood Products, Inc, ERD Case No. 9200205 (LIRC Dec. 13, 1994). In this decision, the commission, analyzing the language of Wis. Stat. § 111.39(4)(c), stated as follows:
As a matter of statutory interpretation, the fact that the legislature expressly permitted the department to award front pay in certain situations involving retaliation indicates that it knew about front pay, that it knew how to draft legislation permitting front pay awards, and that it specifically chose to limit such awards to situations in which retaliation has occurred. If the legislature had intended front pay to be available in all cases, front pay would have been mentioned along with back pay as a permissible remedy in all instances in which discrimination is found. Consequently, the commission concludes that the legislature did not intend to permit front pay awards in cases other than those involving retaliation and that it, therefore, lacks the authority to consider an award of front pay in this instance.
On appeal, the circuit court in Pierce County disagreed with the commission's holding as to the front pay issue, reasoning as follows:
The court believes that the rule of statutory construction cited by the Commission in support of a narrow construction of the remedies available to it in a case such as the one before this court runs contrary to the expressed legislative intent that the act be liberally construed to effect the remedial purposes of the act. As pointed out in Miller's brief, an employer could offer reinstatement the day after the employee quits and the employee would either have to return to the hostile environment or give up any remedy for the employer's violation of the statutory prohibitions against sexual harassment.
Oak-Dale Hardwood Products, Inc., and Miller v. LIRC, Case Nos. 95-CV-5, 95-CV-6 (Wis. Cir. Ct. Pierce Co., Feb. 16, 1996). [LIRC appealed the court's ruling on the front pay issue, but the parties entered into a settlement agreement before the court of appeals rendered a decision on the matter.]
However, the commission continues to believe that Wis. Stat. § 111.39(4)(c) does not authorize the award of front pay in cases other than those implicating Wis. Stat. § 111.322(2m).
Most significantly, application of the statutory construction principle of expressio unius est exclusio alterius (if a statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded) to Wis. Stat. § 111.39(4)(c) compels the conclusion that the mention of front pay only for Wis. Stat. § 111.322(2m) retaliation cases means that it is not available in other cases.
In addition, an administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates, any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority, and liberal construction does not give a court or administrative agency the right to expand the terms of the legislation. State v. ILHR Department, 77 Wis. 2d 126, 252 N.W.2d 353 (1977); American Motors v. ILHR Dept., 101 Wis. 2d 337, 305 N.W.2d 62 (1981). Relying upon these general precepts, because the WFEA does not expressly authorize an award of front pay other than in those cases arising under Wis. Stat. § 111.322(2m), and because there exists reasonable doubt whether such authority may be fairly implied, the commission concludes that the authority to award front pay is not granted under the general remedial provisions of Wis. Stat. § 111.39(4)(c).
Finally, to adopt the Pierce County Court's reasoning could permit an additional award after the rejection of a valid offer of reinstatement, a result inconsistent with Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983). Moreover, the Pierce County court's reasoning that complainants should not be required to return to their former workplace in order to maximize their remedy presumes that current anti-retaliation laws are inadequate to protect them from further retaliation, a presumption the commission rejects.
In addition to the express mention/implied exclusion rule of statutory construction argument regarding front pay only as a remedy for a violation of Wis. Stat. § 111.322(2m) mentioned above, in Oak-Dale Hardwood Products, Inc. and Miller v. LIRC, Case No. 96-1125, which was before the court of appeals on appeal from the circuit court's decision, the department of justice, representing the commission, noted that the following legislative history also supported the commission's position that the WFEA did not authorize front pay as a remedy for discrimination other than in cases arising under § 111.322(2m):
Senator Van Sistine, the sponsor of the legislation amending the WFEA, 1989 Senate Bill 60, wrote a memo to Senator Rude dated October 9, 1989, which states in pertinent part:
The substitute amendment would be authored by the two of us and would include the following modifications:
. . .
3. Currently, the bill's penalties include back pay and reinstatement. Compensation shall be substituted for reinstatement if both parties consent, and may be substituted for reinstatement at the request of either party. . .
Immediately below the quoted language, there is a handwritten notation which is difficult to read but which appears to state "[illegible word] apply to retaliation not other cases sex etc." It is unclear what the memo means when it states that "[c]urrently, the bill's penalties include back pay and reinstatement" because the bill at that point in time contained no provisions concerning remedy. It is probable that the memo means that the WFEA then provided only back pay and reinstatement, and that it did not provide for compensation in lieu of reinstatement. It also is probable that the handwritten notation means that the compensation-in-lieu-of-reinstatement remedy was intended to apply only in cases involving the new protection against retaliation under sec. 111.322(2m), Stats., and not in other cases. (2)
(Underlining emphasis in original.)
Based upon the above-stated reasons, the commission is persuaded that an award of front pay under the WFEA is available only as a remedy for a violation of Wis. Stat. § 111.322(2m).
This case thus presents circumstances which on one hand suggest that inclusion of an award of reinstatement to make Suttle whole may not be the most appropriate remedy, but on the other hand presents a situation where the commission is unable to award the substitute relief of front pay to afford the complainant the approximate same benefit as if he had been reinstated. However, if DOC is not ordered to reinstate Suttle and an award of front pay is unavailable as remedial relief, Suttle will not be made "whole" for DOC's discriminatory conduct. Back pay alone will not make Suttle whole. Back pay would only cover the period from the date of discrimination until date the commission's decision in this matter becomes final. Suttle would be uncompensated for the time between the date the decision becomes final and the date he attains the position he would have occupied but for the discrimination. Furthermore, to not require DOC to reinstate Suttle would only serve to reward DOC for its discriminatory conduct.
The two purposes of the WFEA are: 1) to make the individual victims of discrimination "whole"; and 2) to discourage discriminatory practices in employment. Anderson v. LIRC, 111 Wis. 2d 245, 259, 330 N.W.2d 594 (1983)(prejudgment interest must be included on back pay awards to carry out the purposes of the Act).
In EEOC v. Kallir, Phillips, Ross, Inc., 420 F.Supp. 919 (S.D.N.Y 1976), aff'd, 559 F.2d 1203 (2d Cir. 1977), cert denied 434 U.S. 920 (1977), a case arising under Title VII of the Civil Rights Act of 1964, the court stated: "...since the purpose of reinstatement is to make the plaintiff whole for the injury she has suffered, it, like back pay, should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination." (Internal citation omitted.)
The commission notes that despite Suttle's testimony about the gestures of the inmates at the Milwaukee County Jail, Suttle also specifically testified that he continues to be willing and able to return to work at DOC, and that Suttle has also requested reinstatement in his post hearing brief to the ALJ. Given the unavailability of an award of front pay to a complainant under the WFEA, the fact that Suttle has specifically requested reinstatement and the fact that Suttle will not have been made "whole" absent a requirement that Suttle be reinstated, the commission finds that it is constrained to require that DOC offer Suttle reinstatement.
Finally, the ALJ ordered the respondent to pay the reasonable attorney's fees and costs incurred in representing Suttle in this matter. (The ALJ determined that to May 1, 2008, the reasonable attorney's fees and costs that had been incurred was $10,150.99. Suttle had submitted a request for fees and costs totaling $16,558.49.)
In awarding attorney's fees in the instant case the ALJ concluded as follows:
The Supreme Court makes clear in this decision [Wis. Dept. of Transportation v. Wis. Personnel Commission, 176 Wis. 2d 731, 500 N.W.2d 664 (1993)(Express statutory authorization is required in order to tax costs and attorney's fees against the state)] that its ruling does not apply to cases, as is the case here, where the Respondent has been found to have violated the WFEA. Moreover, it certainly suggests in its language that it considers the instruction to liberally construe the WFEA to authorize the ERD to order state agencies to pay attorney's fees, and that if the legislature gave " such directions regarding chapters 227 and 804" that its decision would have been different. Similarly, the undersigned concludes that the decisions of the Labor and Industry Review Commission cited by the DOC do not adequately support its proposition that the Equal Rights Division lacks the authority to order it to pay attorney's fees and costs.
The finding in this case is that the DOC violated the WFEL. An award of attorney's fees and costs is necessary to effectuate the purposes of the WFEL. The DOC has failed to show that precedent or law prevents the undersigned from complying with the statutory mandate to make such an award as will "effectuate the purposes of" the Act.
The commission agrees with the ALJ that ordinarily an award of attorney's fees and costs is necessary to effectuate the purposes of the WFEA.
Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984) holds that an award of reasonable attorney's fees also serves the purposes of making a complainant whole and discouraging discriminatory practices in employment.
However, the commission disagrees with the ALJ's conclusion that the court's ruling in Wis. Dept. of Transportation does not apply to this case. In Deshon v. State of Wis. Dept. of Regulation and Licensing (LIRC, 01/12/96) (No authority to grant the complainant an award of attorney's fees and costs against the Department of Regulation and Licensing and the Medical Examining Board in connection with their violation of sec. 111.34, Stats.), the commission discussed the supreme court's holding in Wis. Dept. of Transportation regarding authority to award attorney's fees and costs against a state agency. In Deshon, the commission stated:
That case [Wis. Dept. of Transportation] was one under the Fair Employment Act in which the complainant, employed by the Wisconsin Department of Transportation (DOT), was awarded costs and attorneys' fees against DOT not as a result of winning a discrimination claim, but only in connection with an interlocutory ruling on a discovery matter. Following the statutes governing the resolution of discovery disputes in court, the Personnel Commission awarded the costs and fees to complainant after he prevailed on a motion to compel discovery. The DOT appealed, and after the circuit court affirmed the order, the Court of Appeals held in Wisconsin Dept. of Transportation v. Wisconsin Personnel Commission, 169 Wis. 2d 629, 486 N.W.2d 545 (1992), that the Personnel Commission did have the right to award attorneys' fees. The Supreme Court's decision reversed the Court of Appeals. The court held that, notwithstanding Watkins, the award of costs in Wisconsin Dept. of Transportation was not authorized.
Wisconsin Dept. of Transportation was limited on its facts to a situation involving an award of costs and fees in connection with a discovery motion, rather than a final decision finding discrimination. Thus, it could be that the decision's interpretation and application of the law was meant to be limited to that fact situation. There are a number of points in the decision in which the court seems to be so suggesting. On the other hand, other language in the decision is quite broad, and suggests no limitation to the narrow facts of the case.
A factor which the commission views as significant is that, despite the very prominent advice given by the court in Wisconsin Dept. of Transportation that the legislature could change the situation by expressly providing for fee awards against the state, 176 Wis. 2d at 738, the legislature has not done so. Its failure to act during the almost 2 1/2 years since Wisconsin Dept. of Transportation was decided makes the argument for the possibility of fees against the state a weaker one than it would have been some time ago.
The commission concludes that Wisconsin Dept. of Transportation reflects a rule that is applicable, not just to discovery motions, but to all procedural postures in which a case may find itself when an attempt is made to award attorneys fees against the state. Wisconsin Dept. of Transportation teaches that these fees can not be ordered.
(Italicization text emphasis added.)
In Naill v. Western Wisconsin Technical College (LIRC, 02/12/99), the commission cited its earlier decision in Deshon and the court's holding in Wisconsin Dept. of Transportation, but awarded attorney's fees and costs in that case because the commission concluded that the respondent was not a state agency. More recently, in Blunt v. Dept. of Corrections (LIRC, 02/04/05), concluding that the employment action by the Department of Corrections -- denying Blunt a last-chance agreement -- was impermissibly based in part on Blunt's arrest record but that the same action would have occurred in the absence of the impermissible motivating factor, the commission held that under Hoell v. LIRC, 186 Wis. 2d 603, 608-609, 522 N.W.2d 234 (Ct. App. 1994), Blunt would be entitled to an award of a cease and desist order and attorney's fees, but limited Blunt's award to a cease and desist order because no authority existed for the commission to order a state agency to pay Blunt's attorney's fees, citing Wisconsin Dept. of Transportation and Martineau v. State Conservation Comm. 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972) (No express statutory authority exists to tax costs and attorney's fees against the state).
Suttle argued before the ALJ that neither Deshon, Naill, or Blunt involved a finding of wrongful termination based on discrimination, nor did they involve an order that the complainant be made whole, (3) and that the same is true of Wis. Dept. of Transportation. Suttle argued that on the other hand, Watkins was the only authority in which the complainant prevailed on a claim of discriminatory termination and that the commission ordered a remedy that made the complainant whole. Suttle argues that these are the same circumstances that exist in the present case and that Watkins, and not Wis. Dept. of Transportation should apply. Suttle argued that any other result would defeat the express legislative purpose of Ch. 111, run afoul of Watkins, and ignore the clear distinctions set forth by the court in Wis. Dept. of Transportation.
While the commission is not unsympathetic to Suttle's argument for awarding attorney's fees, the commission nevertheless concludes that no authority exists under the WFEA to tax costs and attorney's fees against a state agency. The commission disagrees with the ALJ's conclusion that Wis. Dept. of Transportation makes clear that its ruling does not apply to the instant case. It does not. What is clear, however, is that express statutory authorization is required in order to tax costs and attorney's fees against the state, and that there is no express statutory authorization in the WFEA that the ERD may tax costs and attorney's fees against the state. An administrative agency has only those powers which are expressly conferred or which are fairly implied from the four corners of the statute under which it operates. State v. ILHR Department, 77 Wis. 2d 126, 136, 252 N.W.2d 353 (1977). Any reasonable doubt as to the existence of an implied power should be resolved against the exercise of such authority. Id. Liberal construction does not give a court or administrative agency the right to expand the terms of the legislation. American Motors v. ILHR Department, 101 Wis. 2d 337, 351, 305 N.W.2d 62 (1981). Express statutory authorization is required in order to tax costs and attorney's fees against the state. The WFEA does not expressly authorize an award of costs against the state. It would be inappropriate to find that such authority could be implied under the WFEA where express statutory authority is required in order to tax costs and attorney's fees against the state.
Suttle argued before the ALJ, in the alternative, that he was entitled to reimbursement of his attorney's fees and costs under Wis. Stat. § 227.485(3). That statutory section provides as follow:
In any contested case in which an individual...is the prevailing party and submits a motion for costs under this section, the hearing examiner shall award the prevailing party the costs incurred in connection with the contested case, unless the hearing examiner finds that the state agency which is the losing party was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
The ALJ did not address Suttle's alternative basis for awarding attorney's fees and costs to Suttle, apparently because he decided that such an award was available under the WFEA.
The legislature intends that hearing examiners and courts be guided by federal law interpreting substantially similar provisions under the federal equal access to justice act, 5 USC 504, when interpreting s. 227.485. Wis. Stat. § 227.485(1).
Wisconsin Statute § 227.485(2)(f) provides that "'Substantially justified' means having a reasonable basis in law and fact."
In Sheely v. Dept. of Health & Social Services, 150 Wis. 2d 320, 442 N.W.2d 1 (1989), the court held that "To satisfy its burden the government must demonstrate (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced", citing Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638 (7th Cir. 1987). Losing a case does not raise the presumption that the agency was not substantially justified. Id. citing S & H Riggers & Erectors, Inc. v. O.S.H.R.C., 672 F.2d 426 (5th Cir. 1982). Nor is advancing a "novel but credible extension or interpretation of the law" grounds for finding a position lacking in substantial justification. Id. citing Thomas v. Peterson, 841 F.2d 332, (9th Cir. 1988). The test is one of reasonableness. Behnke et al. v. Dept. of H & SS, 146 Wis. 2d 178, 430 N.W.2d 600 (Ct. App. 1988), citing S & H Riggers & Erectors, Inc., supra.
Suttle argued before the ALJ that the Division should note that the respondent does not attempt to argue that its position in the underlying litigation was "substantially justified", that, rather, the respondent questions the statutory authority to order it to pay attorney's fees and costs.
Suttle then apparently goes on to argue that Wisconsin courts have fully addressed the standard for awarding attorney's fees and costs under § 227.485, citing Bracegirdle v. Board of Nursing, 159 Wis. 2d 402, 425, 464 N.W.2d 111 (Ct. App. 1990). In that case, as the prevailing party, Darlene Bracegirdle moved for an award under § 814.245(3), Stats., which provides in relevant part as follows:
If an individual...is the prevailing party in any action by a state agency or in any proceeding for judicial review under s. 227.485(6) and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.
Like the argument made in Bracegirdle, Suttle has essentially argued that DOC has made no effort to demonstrate that there was substantial justification for its position and therefore "abdicated" that argument. However, in Bracegirdle, the court disagreed with that contention, stating that "We conclude that the board could justify its position based on the record before the agency and the trial court proceedings."
Further, in Bracegirdle, the court held that "In evaluating the government's position to determine whether it was substantially justified, we look to the record of both the underlying government conduct at issue and the totality of the circumstances present before and during litigation", citing Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1987).
The DOC's position throughout this matter has been that it terminated Suttle's employment based on its conclusion that Suttle had sexually assaulted a minor. And while DOC has acknowledged that its investigation into the criminal charge against Suttle included information such as the criminal complaint against Suttle and the Milwaukee Police Department Reports, it has nevertheless maintained that it did not terminate Suttle because of his arrest. A reasonable basis in truth for the facts asserted by DOC exist in that DOC's investigation into the conduct for which Suttle was criminally charged was not limited to information such as the criminal complaint and police reports about the alleged sexual assault, but included Captain's Mitchell's attendance at Suttle's preliminary hearing and reporting back to Warden Husz about the alleged victim's credibility at the preliminary hearing, Hompe and Cockroft's interviews of Suttle and the alleged victim's mother and Husz's review of the interview notes, and Husz's reviewing of the transcript of the alleged victim's testimony at the preliminary hearing.
Second, a reasonable basis in law exists for the theory propounded by DOC. DOC's position is that it terminated Suttle's employment because of the information it acquired through its own investigation independent of the arresting authority. Where an employer discharges an employee because the employer concludes from its own investigation and questioning of the employee that he committed an offense, the employer does not rely on information indicating that the employee has been charged with an offense, and therefore does not rely on an arrest record as defined under the WFEA. City of Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984). Furthermore, as noted above, the commission has previously ruled that an employer's investigation might include information that is part of what has been defined as part of an arrest record, but nevertheless conclude that no violation of the Act occurred because the evidence shows that the employer's decision to terminate the employee was the result of its beliefs and conclusions regarding the employee's conduct based on information obtained independent of the arresting authorities. See, Betters, supra; Williams, supra.
Finally, there is a reasonable connection between the facts alleged and the legal theory advanced. For example, in Husz's April 3, 2006 letter of termination, Husz advised Suttle that his employment was terminated based on his having engaged in criminal conduct (sexually assaulting a minor in violation of s. 948.02) and that "this conclusion is based on an investigation which included observing the testimony of the minor victim at the preliminary hearing regarding the sexual assault on September 25, 2005 and the prior assaults." Similarly, at the hearing Husz testified that he waited until he felt he "was making the right decision, an independent (decision) based upon (Suttle's) underlying behavior."
Accordingly, assuming the commission has the authority to decide whether Suttle is entitled to an award of attorney's fees and costs under § 227.485(3), the commission concludes that Suttle is not entitled to an award of attorney's fees and costs under this statute.
Attorney Brian Kinstler
Attorney Gloria J. Thomas
Appealed to Circuit Court. Affirmed in part (as to discrimination finding, and as to front pay) and reversed in part (as to attorneys fees), May 14, 2010.
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(1)( Back ) In addition to there being no explicit authorization of reinstatement under the WFEA, there is also no statutory language authorizing "any other equitable relief" deemed appropriate. Hoell indicates, however, that reinstatement is an appropriate remedy available under the WFEA.
(2)( Back ) A footnote at the end of this paragraph in the assistant attorney general's brief states: "The illegible word in the handwritten notation could be 'don't' but it is unlikely because that would mean that the author intended the compensation-in-lieu-of-reinstatement remedy not to apply to cases involving the new protection against retaliation contained in section 111.322(2m) when the language of the amend[ment] expressly provides to the contrary."
(3)( Back ) As noted above, in Blunt there was a determination that DOC's employment action had been impermissibly based in part on Blunt's arrest record. However, other than a cease and desist order, nothing further was required to make Blunt "whole" because DOC would have taken the same action in the absence of the impermissible conduct.