STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KENNETH J KRAEMER, Complainant

COUNTY OF MILWAUKEE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200800323


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT

1. The respondent in the above-captioned matter, Milwaukee County (hereinafter "respondent"), is a government entity. Among other functions, the respondent is responsible for the operation of General Mitchell International Airport.

2. The complainant in the above-captioned matter, Kenneth Kraemer (hereinafter "complainant"), began working for the respondent in May of 2005 as Deputy Director of Operations/Maintenance for General Mitchell International Airport.

3. The complainant was hired by C. Barry Bateman, the Airport Director. The complainant and Bateman were close personal friends dating back to the 1980's. The complainant's hire was approved by the Milwaukee County Board and the then-County Executive, Scott Walker.

4. During the course of his employment, the complainant was supervised by Barry Bateman. Bateman's supervisor was George Torres, the Director of Transportation and Public Works. Torres was appointed by and answered directly to the County Executive.

5. As Deputy Director of Operations/Maintenance, the complainant was responsible for the day-to-day operations of the airport, including runways, taxiways, safety and firefighting activities, maintenance, parking, ground transportation, and environmental and safety compliance.

6. The complainant was never given any formal job evaluation. However, he frequently received positive feedback from Bateman, who told him he was doing a wonderful job and made it clear that he expected the complainant to replace him when he retired. The complainant never received any discipline or warnings.

7. During all relevant times, the respondent had a "Use of Technologies Policy" which provided, in relevant part:

Electronic Mail
. . .

Receipt of Inappropriate Material. Users are not permitted to print, display, download or send sexually explicit messages, cartoons, jokes or any other material disparaging or harassing to anyone on the basis of race, sex, disability, age, religion, or national origin. If such material is received, and if feasible, recipient shall immediately advise sender that receipt of such transmission is not permitted and must stop. If assistance is needed in responding to the receipt of inappropriate material, the matter is to be referred to the user's supervisor or the information Management Services Division Manager.

. . .

Personal Use of Technologies

Users may be permitted, at management's discretion and with prior approval, to use the County's technologies for personal activities. Nonetheless, users are reminded that use of technologies may directly reflect on the County, and must be used with sound judgment so as not to embarrass the County. Prior to engaging in personal activities, users must ascertain which equipment, if any, may be used for personal activities, as designated by management.
. . .

Prohibited Uses of Technologies

. . .

 Accessing or distributing indecent material, obscene material, child pornography or any material that violates County's affirmative action principles or the civil rights (race, age, gender, sexual orientation, religious beliefs, national origin, health or disability) of an individual.

 . . .

An "Employee Statement" accompanying the Use of Technologies Policy indicated that violations of the policy may result in progressive steps of discipline including discharge.

8. In 2004, prior to beginning his employment with the respondent, the complainant took a trip to Thailand where he met and began a relationship with a woman named Nisarat Boonkon. After the complainant returned home Boonkon began sending him frequent e-mails, often containing sexually explicit images as attachments. Those e-mails were sent to the complainant's personal e-mail address.

9. From September to December of 2005, the complainant used his personal Hotmail account to surf male dating websites and to arrange encounters with individuals he met on those sites.

10. In the spring of 2006, the complainant took another trip to Thailand. During this trip, the complainant and Ms. Boonkon became engaged. While in Thailand the complainant gave Ms. Boonkon his business card which listed his work e-mail address.

11. Beginning in May of 2006, Ms. Boonkon began sending e-mails to the complainant at his work e-mail address. Many of these e-mails included attachments containing sexually explicit images. The complainant opened at least some of the e-mails, but did not save or download the attachments, and did not forward them on to anyone else.

12. The complainant called Ms. Boonkon and told her to stop sending e-mails to him at work. However, she continued to do so. When the e-mails did not stop, the complainant resolved the problem by requesting Ms. Boonkon's Hotmail account information and then going into her account and removing the e-mail address for his workplace. The last inappropriate e-mail to be sent to the complainant at work arrived at the end of June of 2006.

13. In August of 2006, Ms. Boonkon and her 4-year old daughter came to the United States and she and the complainant were married.

14. On Friday, February 23, 2007, the complainant was arrested and incarcerated. The arrest was related to allegations made by an acquaintance of the complainant and his wife to the effect that the complainant had sexually abused a minor, physically abused a minor, and had child pornography on his computer.

15. The complainant requested permission to call the respondent from jail on Monday, February 26, 2007, but was not allowed to do so. When he failed to report to work without notice that day, Bateman investigated and learned that the complainant had been arrested.

16. The complainant was able to call the respondent on Tuesday, February 27, 2007, and confirmed that he had been arrested. The complainant talked to Bateman, who told him he could not return to work until further notice and that he should take some time off to clear the matter up.

17. The following day, Wednesday, February 28, 2007, the complainant was released from jail. The complainant contacted Bateman and told him he was ready to return to work. He also told Bateman that two of the allegations against him had been dropped--those involving child pornography and physical abuse of a child--but that the allegation of sexual abuse of a child was still under investigation. Bateman informed the complainant he could not return to work until the entire "black cloud" was lifted from over his head.

18. By this point local media had begun reporting on the story. On February 28, 2007, an article appeared on WTMJ4 news entitled "Airport Executive Busted for Child Sex Assault."

19. Also on February 28, 2007, Bateman and his supervisor, George Torres, met with County Executive Walker. During this meeting they discussed the fact that the complainant had been arrested for some serious issues. Walker expressed concern and indicated that he hoped the matter would be cleared up.

20. Thereafter, Torres kept County Executive Walker and his staff apprised of the circumstances surrounding the complainant's arrest on a bi-weekly basis. Rob McWilliams, a member of the County Executive's staff, expressed anxiety about the situation and told Torres that the complainant had to go.

21. After his release from jail on February 28, 2007, the complainant contacted Bateman on numerous occasions to ask when he could return to work. Each time Bateman would ask about the status of the allegation that the complainant had sexually assaulted a minor. The complainant was not permitted to return to work.

22. The complainant's employment was suspended because Bateman and members of the County Executive's staff did not want the complainant in the workplace while the investigation into his alleged criminal conduct was ongoing.

23. At some point between February 28, 2007, and March 22, 2007, Bateman and Torres met with the respondent's corporation counsel, Mary Ann Grimes, and asked what action should be taken against the complainant. Grimes stated that there was no action to be taken at that point, because there was nothing connected to the complainant's job that would require the respondent to take action.

24. In mid-March, 2007, Ms. Grimes received a call from Rod McWilliams, telling her to dismiss the complainant. However, in a subsequent conversation with McWilliams it was decided to wait until the respondent could "dot I's and cross T's."

25. Shortly after the complainant's arrest, the Milwaukee Police Department took possession of the complainant's work computer. On or about March 22, 2007, the computer was returned. A police officer told Grimes that they had not found any child pornography on the complainant's computer, but suggested that the respondent may want to have a look at it.

26. Grimes advised Bateman that he should have the computer looked at by somebody from outside the county and offered to take care of the matter. Grimes then contacted a county employee by the name of Mary Reddin, who said she knew someone who could do the job. Reddin contacted a private digital forensics company owned by an individual named William Turner, who agreed to investigate what was on the complainant's computer.

27. Turner began his investigation on March 26, 2007. On March 28, Turner spoke with Reddin and advised her that he had seen some inappropriate pictures. Reddin informed Grimes about her conversation with Turner, and Grimes, in turn, informed Bateman. On March 30, Turner submitted to the respondent a two-page written report in which he concluded that the complainant was viewing pornographic images and was using his private Hotmail account on his work desktop to review, respond and set up meetings for sexual encounters. Turner shared his opinion that the complainant was in violation of the respondent's Use of Technologies Policy.

28. Turner's investigation also revealed that the complainant had received an e-mail containing a sexually explicit image from Bateman, and that another airport employee, Diane Gronski, had sent the complainant an e-mail that contained nudity. Bateman and Gronski both received a verbal counseling as a result.

29. On April 1, 2007, the complainant again called Bateman to discuss his work status. The complainant was unaware of the forensic investigation that had been performed on his computer. Bateman told the complainant that he and Torres wanted to have a meeting with the complainant at a Denny's Restaurant the following day.

30. Torres did not attend the April 2 meeting, and only the complainant and Bateman were present. Bateman asked for information about the criminal investigation and whether any charges were going to be brought. The complainant stated that the investigation was still ongoing and asked when he could return to work. Bateman told the complainant his employment was terminated. When the complainant asked the reason for the discharge, Bateman stated that the complainant was an at-will employee, that his job was political in nature, and that Bateman was getting "heat from above." Bateman also told the complainant that if the criminal investigation ended quickly he would do everything in his power to try to get the complainant reinstated.

31. A few days later, on April 4, 2007, Bateman told the complainant that he could choose to resign rather than being terminated. That day the complainant signed an Employee Transaction/Change Report on which he indicated he was "resigning under duress." The Employee Transaction/Change Report listed the effective date of the separation as March 30, 2007.

32. Bateman and Torres made the decision to terminate the employment relationship with the complainant because they were concerned about the negative publicity associated with his arrest and had been receiving pressure from the County Executive's office to discharge the complainant for that reason.

33. Bateman and Torres were also motivated to terminate the employment relationship because of the pornography and other inappropriate materials that were found on the complainant's computer.

34. The allegation of sexual abuse of a child was dropped in December of 2007. No criminal charges were ever filed against the complainant.

Based on the FINDINGS OF FACT above, the commission hereby makes the following:

CONCLUSIONS OF LAW

1. That the complainant is an individual with an arrest record, within the meaning of the Wisconsin Fair Employment Act.

2. That the respondent discriminated against the complainant based upon his arrest record, within the meaning of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW above, the commission hereby issues the following:

ORDER

1. That the respondent shall cease and desist from discriminating against the complainant on the basis of arrest record.

2. That the respondent shall restore to the complainant the paid leave time the complainant used during his unlawful suspension from February 27, 2007, the day on which he was notified he was suspended, through April 2, 2007, the day on which he was notified of his discharge.

3. That the respondent shall pay the complainant's reasonable attorney fees incurred in pursuing this matter, in the total amount of $70,587. A check in the amount of $53,526 shall be made payable jointly to the complainant and Tricia Knight and delivered to Ms. Knight. A check in the amount of $17,061 shall be made payable jointly to the complainant and Horizons Law Group and delivered to Horizons Law Group.

4. That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats. § § 111.395, 103.005(11) and (12).

Dated and mailed October 11, 2012
kraemke . rrr : 164 : 5

 BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

Suspension

Under the Wisconsin Fair Employment Act it is an act of employment discrimination for an employer "to refuse to hire, employ. . . any individual. . . or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment. . . 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 Wis. Stat. § 111.321. The term "arrest record" includes, but is not limited to, information indicating that an individual has been "questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." Wis. Stat. § 111.32(1). At all relevant times the complainant was an individual with an arrest record and was protected from discrimination on that basis under the statute.

Notwithstanding the prohibition against discrimination against an individual on the basis of arrest record, the Act also provides:

"[I]t is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, 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 or licensed activity."

Wis. Stat. § 111.335(1)(b)(emphasis added).

The administrative law judge found that the respondent could lawfully suspend the complainant's employment because the circumstances of his alleged crime were substantially related to the circumstances of the job. The commission disagrees with this analysis. As indicated above, the statutory exception allowing an employer to suspend an employee's employment during an arrest only applies where the employee has pending charges against him that are substantially related to the job. In this case, it is undisputed that the complainant was never charged with a crime and, further, that the respondent was aware the complainant had not been charged. Consequently, the "substantial relationship" defense is unavailable to the respondent.

The commission also notes that, even if there had been pending charges against the complainant based upon crimes involving child pornography or physical or sexual abuse of a child,1(1) the record would not establish a substantial relationship between those alleged crimes and the circumstances of the job. The evidence does not indicate that the complainant had any contact with the general public, let alone with children. The fact that the complainant was generally responsible for airport safety, absent any example of how this responsibility could put the complainant in contact with unaccompanied children or create a situation where the complainant might commit a criminal offense involving children, is not sufficient to warrant a conclusion that a substantial relationship exists between the alleged crimes and the job of Deputy Director of Operations/Maintenance. Therefore, even if the complainant had been charged with a crime, the commission would see no basis to conclude that a substantial relationship was established.

In its brief to the commission the respondent argues that the reason it suspended the complainant was not because of his arrest, but because he was too overwhelmed with his personal crisis to perform his job duties. The evidence does not support this. Immediately upon learning of the complainant's arrest, Bateman told the complainant that he could not return to work until the matter was fully resolved and the "black cloud" over his head was lifted. The complainant did not tell the respondent he was overwhelmed or unable to handle the job, and did not request a leave of absence. To the contrary, the complainant testified that he was sitting at home with nothing to do and was very eager to return to work. He further testified, without rebuttal, that he contacted the respondent repeatedly to ask when he could return to work, but was not permitted to do so. When Bateman was asked at the hearing if the complainant could have returned to work had he been ready and able to do so, he refused to answer, repeating his unsupported assertion that the complainant was unable to work because of his frame of mind. Under all the circumstances, the commission concludes that the suspension was not based upon the complainant's inability to work or upon any factor other than that the respondent did not want him present in the workplace given the arrest and criminal allegations against him.

Discharge (2)

The Wisconsin Fair Employment Act makes it unlawful to discharge an individual based upon arrest record. See Wis. Stat. § 111.321 and 322. The respondent has argued that it did not discharge the complainant based on the fact of his arrest record, but because he violated its Use of Technologies Policy. However, while the evidence indicates that the complainant's alleged violation of the Use of Technologies Policy was a factor in the discharge, the evidence also indicates that the respondent was unhappy about the complainant's arrest and the attendant publicity and that a decision to discharge the complainant was made before the respondent discovered the inappropriate material on his computer. The evidence supporting that conclusion is as follows:

The complainant's supervisor, Barry Bateman, and his supervisor, George Torres, met with County Executive Scott Walker on February 28, 2007, only a few days after the respondent became aware of the complainant's arrest. During this meeting they discussed the fact that the complainant had been arrested based on serious allegations, and Walker expressed concern and hopes that the matter would be cleared up. The press had already begun to cover the story, and on the same day an article appeared on WTMJ4 news entitled "Airport Executive Busted for Child Sex Assault." Thereafter, Torres kept the County Executive's office apprised of the status of the circumstances surrounding the complainant's arrest on a bi-weekly basis. In the mean time, a member of the County Executive's staff, Rod McWilliams, contacted the respondent's corporation counsel, Mary Ann Grimes, and directed her to dismiss the complainant. Bateman and Torres also came to Grimes and asked her about taking some action against the complainant. Grimes generally advised that the complainant could not be discharged until the respondent "dotted its I's and crossed its T's."

Although, consistent with Grimes' advice, the respondent waited to discharge the complainant until it discovered the pornography on his computer, it appears that the decision to discharge him was made much sooner and was because of the complainant's arrest. Bateman's actions at the discharge meeting provide further support for this theory. Bateman began the meeting by asking the complainant about the status of the criminal investigation against him. He then advised the complainant that his employment was terminated. When asked to explain the reason for the discharge, Bateman made no mention of the complainant's alleged violations of the Use of Technologies policy, but stated that he was getting "heat from above." At the hearing the complainant elaborated that he asked Bateman to tell him as a friend where the decision was coming from, and described Bateman's response as follows:

"He very confidently-or confidentially shared with me that it was coming from the very top, that it was coming from the County Executive, that it was the County Executive Scott Walker's decision that my tenure was - was not going to continue with Milwaukee County."

Bateman then ended the meeting by telling the complainant that if the matter was resolved quickly he would try to get the complainant reinstated, further suggesting that the arrest was the matter of foremost concern to the respondent.

While at the hearing Torres and Bateman denied having received any pressure from the County Executive's office to discharge the complainant, the commission does not find this persuasive. Torres acknowledged that there was "angst" in the County Executive's office because of the nature of the allegations and conceded that McWilliams may have told him, "This guy has got to go." It seems unlikely that Torres, who was appointed by and serves at the pleasure of the County Executive, would ignore a directive from the County Executive's staff to discharge the complainant. Even presuming that Torres and Bateman were not personally motivated to discharge the complainant because of his arrest -- and the commission is not persuaded this was the case -- the evidence suggests that one or both of these individuals functioned as the "cat's paw" (3)  for staff of the County Executive's office, who clearly did have such motivation.

For the reasons discussed above, the commission believes that the respondent was motivated to discharge the complainant because of the fact of his arrest and that the decision to do so was made before it became aware of the complainant's alleged violations of its Use of Technologies Policy. The respondent's actions in that regard were in violation of the Wisconsin Fair Employment Act.

However, while the commission is convinced that the complainant's violation of the Use of Technologies Policy provided the respondent with a convenient rationale for terminating the employment relationship, it does not believe that the alleged violation of the policy was entirely a pretext for discrimination. To the contrary, the commission is persuaded that the respondent was genuinely concerned about the inappropriate materials it found on the complainant's computer and that his employment would have been terminated once those materials were discovered, even in the absence of a troubling arrest record.

Based upon a suggestion by the Milwaukee Police Department, the respondent retained a private expert to perform a forensic examination of the complainant's computer. That expert, William Turner, provided the respondent with a report indicating that the complainant was viewing pornographic images at work and, further, that the complainant had arranged meetings for sex on line during work hours and using the respondent's computer. While the complainant disputes having engaged in any activity in violation of the respondent's policy, and the record contains contradictory evidence on this point, the fact remains that the expert who conducted the forensic investigation was of the opinion that the complainant did violate the policy, and affirmatively stated so in his report to the respondent. At the hearing Mr. Bateman credibly testified that he has no expertise in internet technology and relied on the expert's summary. The commission can see no reason to doubt that the respondent had a good faith belief the complainant was engaging in activities in the workplace in violation of its Use of Technologies Policy that were serious enough to warrant discharge. Such belief, even if mistaken, constitutes a legitimate, non-discriminatory reason for terminating the employment relationship. "The complainant cannot prevail if the respondent honestly believed in the nondiscriminatory reason it offered, even if this reason is foolish or trivial, or even baseless." Fink v. Sears Roebuck & Co., ERD Case No. 200404227 (LIRC March 1, 2007), citing Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 890 (7th Cir. 1997), McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992).

The complainant points out that both Bateman and Gronski e-mailed sexually explicit material but were not discharged. However, an employee who sends a single such item is not comparable to an employee whose computer contains a large volume of inappropriate material and, further, who has used his office computer to arrange for sexual encounters. The commission finds it credible that the respondent considered the complainant's conduct to be sufficiently egregious as to warrant immediate discharge, and it is persuaded that, even had there been no arrest, the complainant would have been discharged based upon the results of the forensic examination of his computer.

If an employee is discharged solely because of an impermissible motivating factor, he normally should be awarded a cease and desist order, reinstatement, back pay, interest and attorney's fees. However, if an employee is discharged in part because of an impermissible motivating 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 employee should be awarded only a cease and desist order and attorney's fees. See, Hoell v. Narada Productions, Inc. (LIRC, Dec. 18, 1992), aff'd., Waukesha Co. Cir. Ct., 05/27/93, aff'd. sub nom Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). Because the commission believes that the complainant was discharged both for an impermissible reason (his arrest record), and a permissible reason (his violation of the Use of Technologies Policy), the only remedy that is appropriate is an order for payment of such attorney's fees as are reasonable considering the complainant's partial success in establishing that the decision to terminate the complainant's employment was motivated in part by an impermissible factor.

Attorney fees

The complainant's attorney fee petition includes fee requests for three separate entities: Attorney Rebecca Salawdeh, Attorney Tricia Knight, and Horizons Law Group, the law firm at which Ms. Knight is currently employed. The complainant contends that his attorneys, all of whom billed at a rate of $300 an hour, incurred combined legal fees of $130,740 for representation beginning after the initial determination was issued and continuing through to the present, and that this breaks down to $12,300 for Ms. Salawdeh, $84,840 for Ms. Knight, and $33,600 for Horizons Law Group. (4)

A. Fee request for Attorney Rebecca Salawdeh

The commission is not persuaded that it is reasonable to ask the respondent to pay any portion of Ms. Salawdeh's bill. Ms. Salawdeh was retained by the complainant after the favorable initial determination was issued and withdrew from the case before the hearing on the merits was held. She did not provide representation to the complainant during the investigation of his claim, during the hearing on the merits, or during the course of the petition for review. Whatever services Ms. Salawdeh may have provided to the complainant were not shown to have had any significant bearing on his success in this case. There is no evidence that Ms. Salawdeh's file was forwarded on to Ms. Knight once she began her representation of the complainant, and no reason to believe that any of the time Ms. Salawdeh spent reviewing documents, preparing for hearing, or conferring with the complainant were of benefit to the litigation. To the contrary, it appears that most of the services Ms. Salawdeh provided were duplicated by Ms. Knight. Even the few concrete tasks performed by Ms. Salawdeh, such as the preparation of a witness and exhibit list, were not ultimately useful in litigating this matter and were repeated by Ms. Knight. Further, while Ms. Salawdeh's bill references the preparation of interrogatories, the file does not contain any record of a discovery request prepared and submitted by Ms. Salawdeh, and the only interrogatories that the commission was able to locate in the file were prepared by the complainant during the period of time when he was representing himself, subsequent to Ms. Salawdeh's withdrawal from the case. Because the complainant has not established that Ms. Salawdeh provided services that helped to advance the litigation or were beneficial to the outcome of the case, no award of fees will be made in connection with those services.

B. Fee request for Attorney Tricia Knight

B1. Reasonable hourly rate

Attorney Tricia Knight has requested reimbursement at an hourly rate of $300. This request is supported by affidavits from two attorneys practicing in the Milwaukee area, who have expertise in employment law, and who attest that Ms. Knight's hourly rate is consistent with that charged by other attorneys with similar skill and experience practicing in the Milwaukee area. An hourly rate determined based on such affidavits is normally deemed to be reasonable. See, Blum v. Stenson, 45 U.S. 886, 34 FEP Cases 417 (1984); Roytek v. Hutchinson Technology Inc., ERD Case No. 199903917 (LIRC Feb. 15, 2005). Moreover, while the respondent has objected to the number of hours billed, it has not challenged Ms. Knight's hourly rate. The commission therefore finds that $300 constitutes a reasonable hourly rate for Ms. Knight's services.

B2. Number of hours reasonably expended

Attorney Knight has requested reimbursement for a total of 282.22 hours for herself, and 112.56 hours for Horizons Law Group. The respondent opposes this request on the ground that it demonstrates "excesses and overreaching." The respondent specifically identifies a number of tasks that it regards as clerical in nature, and which it argues should not be part of the attorney fee request. For example, it takes issue with .3 hours billed by Ms. Knight to e-mail portions of the reply brief to the complainant, and with .3 hours for calling opposing counsel to seek an extension. The respondent also objects to 8.1 hours spent editing, formatting, and finalizing the brief to the commission and 5.5 hours billed for finalizing the fee petition and preparing it for mailing. However, the commission is unpersuaded that it is appropriate to remove these items from the fee petition. The respondent has not cited any authority for the proposition that tasks performed by counsel which are not strictly legal in nature cannot be included in the attorney bill and, even assuming this was the case, the solution would be to award payment for those items at a lower clerical rate, rather than to deny payment all together. Moreover, there is no way to be sure that the tasks identified by the respondent were strictly clerical and not substantive. For example, the commission sees no reason to assume that e-mails to the complainant to which portions of the brief were attached contained no communications relevant to the case. Further, it is satisfied that editing a brief and finalizing a fee petition, the two biggest items to which the respondent objects, are tasks that cannot be dismissed as purely clerical.

However, while the commission does not agree with the respondent that all items that could be remotely described as clerical in nature should not be included in the attorney bill, it does agree with the general proposition that the number of hours contained in the fee petition is excessive, particularly as regards the time billed for the preparation of briefs. Ms. Knight's fee statement indicates that she spent 118 hours working on the brief-in-chief, including 29.6 hours spent reviewing the hearing transcripts, that she spent 50.1 hours on the reply brief, and that, as an attorney for Horizons Law Group, she spent 94.3 hours on the brief-in-chief to the commission, and 20.5 hours on the brief in reply, for a total of 282.9 spent preparing the briefs in this matter. (5) With the exception of the hours spent preparing the reply brief to the commission, the commission considers these amounts to be excessive.

The complainant's post-hearing brief is sixty-two pages in length, the first half of which is devoted to a recitation of the facts, with citations to the record. While this matter is fairly fact intensive, requiring a somewhat greater-than-usual amount of time expended on setting forth the relevant facts and laying out the factual arguments, the legal issues in this case are not complicated, and the brief reflects only a moderate amount of legal research. The commission believes that Ms. Knight, who commands an hourly rate of $300 based, in part, upon her expertise in employment law, should have been able to prepare a brief in a straightforward arrest record discrimination case in considerably less than 118 hours. The fact that Ms. Knight spent more time reviewing the hearing transcripts (29.6 hours), than she did actually attending the hearing, which lasted approximately sixteen hours total, indicates that the overall time expended preparing the brief went beyond what was warranted. Although there is no formula to apply in determining a reasonable amount of hours for the preparation of a brief, based upon its experience in reviewing similar matters, the commission believes that the post-hearing brief in this matter should have taken the complainant no more than sixty hours to prepare. It will, therefore, exclude the difference between that amount and the amount requested from the "lodestar" fee computation.

The commission also considers 50.1 hours to be an undue amount of time to have expended in drafting the reply brief to the administrative law judge. The respondent's post-hearing brief was thirty pages in length and contained some legal arguments that warranted a response on the complainant's part, and the complainant's reply brief was forty-seven pages in length, nineteen of which were devoted to "Additional Facts." Nonetheless, the brief did not reflect a great deal of legal research and the commission is satisfied that it could have been achieved in something less than six full work days. Relying on its prior experience, the commission believes that forty hours would have been a reasonable amount of time to have spent on the brief in reply, and it has calculated the fee computation based on that amount. Similarly, the commission does not believe that ninety-four hours can be justified for preparing the complainant's brief-in-chief to the commission. Although the brief was forty pages in length and included arguments that differed from those raised in the briefs to the administrative law judge, the amount of time spent preparing that document was excessive, and the commission considers it reasonable to award no more than fifty hours for that task.

The respondent has not identified any other items in the complainant's billing records that it considers excessive, and the commission's review of those records reveals no other areas that are excessive on their face. Applying the reductions referenced above to the total 394.78 hour fee request, the commission arrives at a grand total of 282.38 hours reasonably expended on these proceedings. Apportioned by firm, this comes to 214.12 hours for Ms. Knight, and 68.26 hours for Horizons Law Group. (6)

B3. Partial success reduction

Having concluded that the complainant's attorneys reasonably expended 282.38 hours of work on this matter--which, at a rate of $300 an hour, would amount to a total of $84,714--a question arises as to whether and how much to reduce the total fee award to reflect the commission's finding that the respondent had a mixed motive for discharging the complainant.

The commission has consistently held that it is appropriate to reduce the attorney fee award where the complainant has achieved only partial success. See, for example, Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998); Roden v. Federal Express, ERD Case Nos. 8802134, 8802863, and 8900131 (LIRC June 30, 1993); Cangelosi v. Robert E. Larson & Assoc., ERD Case No. 8821554 (LIRC Nov. 9, 1990), citing Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169, 1173-1174 (1983). There is no precise formula to apply in deciding what portion of the fees requested should be awarded where the complainant has achieved only partial success, and it may be difficult to determine exactly how much of the fee request was related to the successful claim. Therefore, one approach that has been recognized as appropriate is to simply reduce the total award to account for the limited success. Felix v. Milwaukee County Behavioral Health Division, ERD Case No. CR200801153 (LIRC April 19, 2011).

In this case, the complainant has requested that the commission award a total of 50% of the net bill as reasonable attorney fees in conjunction with the suspension issue, and that it award two-thirds of the remaining fees related to the termination claim on a partial success theory. The respondent has objected to this request and maintains that the complainant's fees should be limited to no more than $3,513.60. The respondent arrives at this figure by attempting to determine the percentage of time spent briefing the suspension issue and extrapolating that figure, which the respondent concludes was 2.7 percent, to the entire litigation. (7)

However, when deciding how much to award for the suspension issue, the complainant must be compensated for more than simply the time spent drafting the suspension portion of the brief, as the respondent proposes. A fair portion of the total litigation must be attributed to the suspension issue; even in the absence of the discharge issue, the complainant had to prepare for the hearing, present his evidence, and draft the fact and procedural history portions of his brief, in addition to the arguments specifically pertaining to suspension. Consequently, the respondent's contention that the complainant's fee request should be reduced by something approaching 97% is rejected. To the contrary, although the commission does not adopt the percentages proposed by the complainant, it agrees that the complainant's overall approach to resolving the matter is the correct one. Because the complainant prevailed on the suspension issue but achieved only partial success on the discharge issue, the commission will first decide how much of the litigation was devoted to the suspension issue, and then determine the appropriate reduction of the remaining portion to reflect the complainant's partial success with regard to the discharge issue.

In prior cases in which the complaint has not prevailed on a discharge issue, but has prevailed on another less significant issue, the commission has awarded fees ranging anywhere from 25% to 75% of the amounts requested. See, for example, Anderson v. MRM Elgin Corp., ERD Case No. 199804070 (LIRC Jan. 28, 2004)(fees reduced by 25% where the complainant prevailed on her claim of sexual harassment, but did not prevail on her allegations relating to discharge or failure to hire); Bowen v. Stroh Die Casting Co. Inc. ERD Case No. CR200301568 (LIRC Oct. 28, 2011)(fees reduced by 60% where the complainant prevailed on his harassment claim, but not on his discharge claim); Cangelosi, supra (fees reduced by two-thirds where the complainant prevailed on a claim that she was discriminated against with respect to the denial of a bonus prize, but did not prevail on her discharge claim); Roden v. Federal Express, ERD Case Nos. 8802134, 8802863, and 8900131 (LIRC June 30, 1993)(fee request reduced by 75% where the complainant prevailed on her claim of retaliation with respect to terms and conditions of employment for having opposed discriminatory practices but did not prevail on claims of discrimination because of sex and because of retaliation with respect to compensation and discharge).

In the instant case, the commission finds it reasonable to award one-third of the total hours reasonably expended based upon the complainant's success with respect to the suspension issue alone. In arriving at that figure, the commission has taken into the account the fact that although the suspension issue may not be the most important claim in the case, it results in a small, but not insignificant, monetary award, and achieves some of the benefit the complainant sought in bringing suit. See, Cangelosi, supra. The commission believes that the finding that the respondent discriminated against the complainant by suspending him based upon his arrest record is a significant one meriting the payment of attorney fees, but that the entire litigation would have been reduced by approximately two-thirds had the complainant focused on the suspension issue alone.

The next question to decide is whether, and to what extent, the remaining portion of the complainant's fees must be reduced to reflect the fact that the commission has found the respondent had a mixed motive for discharging him. In its response to the complainant's fee request, the respondent suggests that the complainant should not be awarded any fees whatever in conjunction with the discharge issue in this case, because he did not receive any cash remedy with regard to that issue. This argument is without merit. One of the purposes for awarding attorney's fees is to discourage discriminatory practices. Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002). Consequently, the mere fact that the complainant's success on this issue did not result in an award of back pay is not a basis to deny him attorney fees. Further, the commission has held that the fact attorney fees are significantly higher than the total back pay award is not a reason to question the reasonableness of the award. Nickell v. County of Washburn, ERD Case No. CR200102614 (LIRC July 25, 2005).

As with the suspension issue, there is no precise formula to apply in deciding what portion of the fees requested should be awarded based upon the complainant's partial success on the discharge issue. In previous cases in which the commission has found that an employer had a mixed motive for discharging an employee, it reduced the total fee award by anywhere from 10% to two-thirds. See, for example, Holman v. Empire Bucket & Mfg. Inc., ERD Case No. CR200101703 (LIRC Aug. 15, 2003)(fees reduced by 10% where the respondent demonstrated a legitimate motive for discharge, but the complainant succeeded in proving his main contention that a retaliatory animus played a role in his selection for layoff); Miles v. Regency Janitorial Service, ERD Case No. 199803666 (LIRC Sept. 26, 2002)(fees reduced 50%, commission noted that to the extent it may be appropriate to consider the unsatisfactory actions of the employee in influencing the termination decision, there was no proven unsatisfactory conduct on the part of the complainant which justified the action taken by the respondent); Odya v. Captain Install, Inc., ERD Case No. 199705081 (LIRC May 19, 2000)(fees reduced 50%); Jones v. Dy-Dee Wash, ERD Case Nos. 8551495 and 8551752 (LIRC Nov. 4, 1988)(fee request cut by two-thirds).

In the instant case, the commission considers it appropriate to reduce the portion of the attorney fees attributable to the discharge issue by 25% based upon the complainant's partial success. Although the commission has found that the respondent had a legitimate reason for the discharge, the complainant has nonetheless achieved significant success in establishing the unlawful motivation behind the discharge. Moreover, while the respondent has shown that it would have terminated the complainant's employment absent the impermissible discriminatory reason, due to an honest belief that the complainant violated its Use of Technologies Policy, it was not persuasively proven that the complainant actually engaged in conduct that violated the policy. See, Miles, supra.

Applying the reductions referenced above, the commission concludes that the sum of $70,587--$53,526 for Ms. Knight and $17,061 for Horizons Law Group-- constitutes a reasonable award of attorney's fees in this matter.(8) The respondent is ordered to pay attorneys fees in those amounts.

 

NOTE: The commission conferred with the administrative law judge who held the hearing on the merits in order to obtain his impressions of the credibility and demeanor of the witnesses. The administrative law judge had no specific credibility or demeanor impressions to impart.

NOTE: When the commission issued its proposed decision on the merits it established a briefing schedule on the subject of reasonable attorney fees. The briefing schedule issued by the commission contemplated that the complainant would submit documentation and a position statement in support of his attorney fee request and that the respondent would have an opportunity to submit a response. Although the commission did not order a reply brief from the complainant, and the complainant did not request an opportunity to submit one, his attorney nonetheless submitted a responsive brief. Several days later, the respondent submitted yet another brief in response to the complainant's reply brief. The commission's review of this matter was near completion at the time the complainant submitted her unsolicited reply brief. The commission therefore declines to review the complainant's unsolicited responsive brief, as well as the respondent's unsolicited surreply brief, and it has issued its decision without regard to any arguments raised in those briefs.

 

cc:
Attorney Tricia Knight
Attorney Alan Levy


Appealed to Circuit Court.  Affirmed, August 13, 2013.  Appealed to the Court of Appeals.

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Footnotes:

(1)( Back ) The first two allegations were dismissed almost immediately. The only pending allegation during the majority of the complainant's suspension involved sexual abuse of a child.

(2)( Back ) In his decision the administrative law judge characterized the separation as a "constructive discharge." A constructive discharge refers to a situation where working conditions are rendered so difficult or unpleasant that a reasonable person feels compelled to resign. See, Waedekin v. Marquette Univ. (LIRC, March 5, 1991). In this case, the complainant was not forced to resign because of intolerable working conditions and did not initiate the separation. Rather, the complainant was told he was being discharged, then was subsequently given the option of resigning. The complainant's after-the-fact signature on a resignation document does not convert the separation from a discharge to a quit.

(3)( Back ) Under the so-called "cat's paw" analysis, a finder-of-fact may impute a discriminatory motive to an unbiased decision-maker who is "decisively influenced" by another agent of the employer who is prejudiced against the complainant. See, Haecker v. Charter Steel, ERD Case No. CR200002629 (LIRC Jan. 28, 2003).

(4)( Back ) The commission's calculations differ slightly from those contained in the complainant's brief. The number of hours requested multiplied by the hourly rate requested, the "lodestar fee," comes to $84,666 (282.22 x $300) for Ms. Knight, and $33,768 (112.56 x $300) for Horizons Law Group and $12,300 for Ms. Salawdeh (41 x $300), for a total of $130,734.

(5)( Back ) The respondent contends that the complainant charged a total of 302.4 hours for the preparation of briefs. However, the respondent has not explained how it arrived at this figure, and the commission review of the billing records reveals a somewhat lower amount.

(6)( Back ) Knight requested 168.1 total hours for the post-hearing briefs to the administrative law judge. Because the commission is allowing only 100 hours (60 for the brief-in-chief and 40 for the reply brief), Knight's fee request is reduced by 68.1 hours. Knight requested a total of 282.22 hours. Reducing that amount by 68.1 hours, the commission concludes that Knight reasonably expended a total of 214.12 hours on this matter. Horizons Law Group requested a total of 114.80 hours for preparing the briefs to the commission. Allowing 70.5 hours for the preparation of briefs (50 for the brief-in-chief and 20.5 for the reply brief), Horizons' total fee request of 112.56 hours is reduced by 44.3 hours, for a total of 68.26 hours reasonably expended by Horizons Law Group in conjunction with this matter.

(7)( Back ) The respondent initially makes an argument that the complainant's total wage loss for his wrongful suspension amounted to $8,698.25, although he was trying to recover a total of $500,202.45 in lost wages, and that the amount the complainant will receive for the suspension issue is 1.7% of the total amount sought. The respondent maintains, therefore, that the complainant's total award should be 1.7% of the $130,800 total fees sought, for a total attorney fee award of $2,233.60. The respondent then arrives at the slightly higher $3,513.60 amount, not by considering how much back pay the complainant is entitled to based upon his partial success, but by comparing the amount of time the complainant spent on the claims on which he prevailed to the total amount billed. The respondent contends that, although the complainant spend 302.4 hours drafting briefs, only 7 hours were spent drafting and editing the suspension argument, which amounts to approximately 2.57% of the total drafting time. It further contends that, of the total 492.78 hours billed, only 1.4% of that time was time drafting briefs on the suspension issue. The respondent concludes that, using the higher factor of 2.57%, and after reducing all billable hours by 20%, as the complainant's attorney did when submitting her fee statement, the complainant should be awarded a total of no more than $3,513.00.

(8)( Back ) Starting with 292.38 hours reasonably expended on the total litigation (214.12 for Ms. Knight and 68.26 for Horizons Law Group), and apportioning those hours one-third to the suspension issue (71.37 hours for Ms. Knight and 22.75 hours for Horizons Law Group) and two-thirds to the discharge issue (142.74 hours for Ms. Knight and 45.50 hours for Horizons Law Group), minus a 25% reduction for partial success on the discharge issue, the total number of hours allowed comes to 178.42 for Ms. Knight and 56.87 for Horizons Law Group. Multiplying the hours reasonably expended by the reasonable hourly rate of $300, the commission arrives at a total of $53,526 for Ms. Knight and $17,061 for Horizons Law Group.

 


uploaded 2012/12/07