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


ANGELO THOMPSON, Complainant

CENTURY CABLE TELEVISION INC, Respondent A

WARNER CABLE COMMUNICATIONS, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199601523, EEOC Case No. 26G961171


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 and conferred with the administrative law judge regarding witness credibility and demeanor. Based on its review, the commission makes the following:

FINDINGS OF FACT

1. Respondent A, Century Cable Television, Inc. (hereinafter "Century Cable") (1) and Respondent B, Warner Cable Communications (hereinafter "Warner Cable"), operate under a partnership agreement by which Warner Cable has oversight responsibility for Century Cable employes.

2. Angelo Thompson (hereinafter "the complainant") was hired by the respondent on November 27, 1995 as an installer trainee. The complainant's race is black.

3. As a new hire, the complainant was subject to a 90-day probationary period. His rate of pay was $8.50 an hour, and he was scheduled to work 40 hours a week, from 8:00 a.m. until 5:00 p.m., Tuesdays through Saturdays. He reported to David Mueller (hereinafter "Mueller"), the technical operations manager.

4. During the relevant time period the respondent had a written policy on attendance which stated, in relevant part:

"Because providing service is essential to our business, it is extremely important that every employe be on the job on time as scheduled. The Company has established rules regarding absence and lateness to treat all employes fairly. When you or a fellow employe are absent or late, other employes must be asked to carry out additional duties. This places a burden on the Company and your co-workers.

"If you are unable to report for work, you must personally notify your immediate supervisor or department manager as soon as possible before the start of your shift. . . . Any absence without notice or an appropriate reason is a serious infraction of your responsibilities and may result in disciplinary action.

"If you know you will be away from work in advance of the actual absence, you must receive written approval from your supervisor. . . .

"You are expected to be on time. If you are late, Century reserves the right to send you home. An employee's leaving early will be treated the same as lateness.

"Please note that excessive absenteeism and/or tardiness, regardless of the reason, may result in disciplinary action up to and including termination. . . ."

5. On his first day of employment for the respondent, the complainant attended an orientation session that ended prior to the completion of his regularly scheduled shift. The individual conducting the orientation gave the complainant permission to leave early, and he did so. The complainant was late for work in excess of an hour on each of the next three days of his employment. He was absent on December 1, 1995, because his children were sick.

6. The complainant was one minute late for work on December 6 and was absent on December 9 because his car would not start and he lacked other transportation to the workplace. On the latter occasion he contacted the respondent about fifteen minutes prior to the beginning of his shift to notify it he would be absent. The complainant was fourteen minutes late on December 14 because he was stuck in traffic.

7. The complainant was absent from December 20 through December 22 and half the day on December 23 because of an upper respiratory infection. He called the respondent at approximately 8:00 a.m. on December 20 to notify it of his illness. When the complainant returned to work he presented the respondent with a medical excuse.

8. On January 11, 1996, the complainant was five minutes late due to a snow storm. He was almost an hour late the following day because of car problems, and failed to provide notice to the respondent that he would not be on time.

9. Mueller spoke with the complainant about his attendance on a number of occasions during his first two months of employment, including January 16, on which day the complainant reported to work five minutes late. The complainant told Mueller that he would try to improve his attendance.

10. On January 25 the complainant was absent from work because his 14-year old daughter was missing from home. He notified the respondent of his absence, although not prior to the beginning of his shift.

11. On February 1 the complainant was fourteen minutes late because he got stuck in traffic. On February 8 the complainant missed work because he was having trouble with some medication he had been taking to address a work-related shoulder injury. When the complainant returned to work he presented the respondent with a doctor's excuse and was placed in a light duty assignment.

12. On February 17, the complainant was 48 minutes late for work because he overslept.

13. On February 20, Mueller wrote the following memo to Lee Steckman, the human resources manager at Warner Cable:

"Angelo started with the company on Nov. 27, 1995 and has been late or absent 17 out of 58 working days. I had discussed this problem with Angelo on several occasions and finally gave Angelo a verbal warning on January 16, 1996. Since that date Angelo has been late 2 times and has called in sick once and missed work on another occasion when there were problems with his daughter. I am recommending that we terminate Angelo's employment immediately."

14. Mueller discussed the situation with Mr. Steckman and Deidra Edwards, the vice president of human resources for Warner Cable, and a decision was made to terminate the complainant's employment. On February 23, 1996, the complainant was notified that he was discharged due to frequent tardiness and excessive absenteeism.

15. On December 15, 1995, a few weeks after the complainant was initially hired, the respondent hired another individual by the name of Jason Fischer (hereinafter "Fischer") to work as an installer trainee. Like the complainant, Fischer reported to Mueller and was subject to a 90-day probationary period. Fischer is white.

16. Fischer missed work on December 28 and 29 because of a death in the family. He was seven minutes late for work on January 3, twelve minutes late on January 4, and four minutes late on January 5. He then missed half a day of work on January 6 due to illness. Fischer was two minutes late for work on January 9. He was seven minutes late on January 11 and left work an hour early that day.

17. Fischer was absent on January 18 because he was in a car accident. On January 23, he was three minutes late.

18. Fischer missed work on February 3 for personal reasons, but had requested this day off in advance. He was out sick on February 10. On February 29 Fischer was three and a half hours late due to a court appearance.

19. On March 2 Fischer overslept and called in to work an hour and a half late, at which point he was told to stay home. He was half an hour late for work on March 7.

20. On March 14, 1996, Mueller wrote the following memo to Lee Steckman:

"I am recommending a one month extension of Jason's probationary period. Jason has had a problem with absenteeism and tardiness. Jason has committed to rectifying this problem over the next 30 days. This thirty day extension will carry Jason to April 18, 1996."

21. Fischer was able to improve upon his attendance during that 30-day period and achieved permanent employe status.

22. The complainant was absent a total of seven and a half days during his first three months of employment and was late on ten occasions.

23. Fischer was absent a total of six and a half days during his first three months of employment and was late on nine occasions.

24. The complainant's race was a motivating factor in the respondents' decision to terminate his employment, rather than extend his probationary period.

25. After the complainant was discharged he remained unemployed for approximately ten weeks, during which time he attempted to find work. In May of 1996 the complainant went to work at a Target store where he had been employed prior to going to work for the respondent. The complainant was scheduled to work the night shift at a pay rate of $5.75 per hour. He remained at that employment only three weeks before quitting due to problems related to the shift. The complainant was then unemployed during the remainder of 1996 and the first several months of 1997. During this time he applied for work, even contacting several temporary employment agencies, but was unsuccessful. In May of 1997 the complainant began a 12-week auto mechanics training program. He completed the program in August of 1997 and, in about the third week of September, began working for Choice Auto as a repair mechanic. As of the hearing, the complainant was working 40 hours a week at a pay rate of $6.00 per hour.

CONCLUSIONS OF LAW

1. The respondents discriminated against the complainant based on his race, within the meaning of the Wisconsin Fair Employment Act.

ORDER

1. The respondents shall cease and desist from discriminating against the complainant because of his race.

2. The respondents shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge. This offer shall be tendered by the respondents or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondents shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondents' unlawful discrimination, including sick leave and vacation credits.

3. The respondents shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the sum he would have earned as an employe from the date of termination until such time as the complainant resumes employment with the respondents or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondents and paid to the Unemployment Insurance Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. The respondents shall pay the complainant's reasonable attorney fees in the amount of $11,636.25 and costs in the amount of $550.25, for a total of $12,186.50 in reasonable attorney fees and costs associated with this matter. A check in the amount of $12,186.50 shall be made payable jointly to complainant Angelo Thompson and to Attorney James C. McCann and delivered to Mr. McCann.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondents shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin. 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. Stat. 111.395, 103.005(11) and (12).

Dated and mailed June 7, 1999
thompan.rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

Merits

The complainant's burden in a discharge case is to establish that he is a member of a protected class, that he was discharged from his employment, that he was qualified for the job, and that an individual or individuals not within the protected class was treated more favorably. See Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985). The complainant clearly met his burden by presenting evidence that he is black, that he was fired from his position based solely upon poor attendance, and that a similarly situated white employe with a poor attendance record was retained.

The complainant having met his burden, the burden then shifts to the respondents to produce a legitimate, non-discriminatory reason for their actions. The respondents have met this burden by asserting that Mr. Fischer's attendance record was not comparable to the complainant's because Mr. Fischer had fewer unexcused absences than the complainant, less tardiness than the complainant, and provided better notice of his absences/tardies. However, based upon its review of the record, the commission rejects the respondents' explanation for their actions as unworthy of credence.

Excused v. Unexcused Absences

The complainant missed only one more day of work than Mr. Fischer did--seven and a half to Mr. Fischer's six and a half. However, the respondents assert that Mr. Fischer had only two and a half unexcused absences, while the complainant had seven, rendering the complainant's record of absenteeism substantially worse than Mr. Fischer's. After a close review of the record, the commission is unpersuaded that any genuine basis exists to distinguish between the complainant's and Mr. Fischer's absences on the ground that they were excused or unexcused, nor is it convinced that the respondents ever made such a distinction prior to their receipt of the complaint of discrimination.

Century Cable's written attendance policy is a no-fault policy, which does not contemplate treating absences differently based upon individual circumstances and which makes no distinction between excused and unexcused absences. To the contrary, the policy states that, "[E]xcessive absenteeism and/or tardiness, regardless of the reason, may result in disciplinary action up to and including termination." The commission recognizes that there are occasions in which written policy diverges from actual workplace practice. Here, however, it is unpersuaded that the respondents had an unwritten practice of distinguishing between types of absences and excusing some but not others. When asked to explain the procedure by which the decision to excuse or not excuse an absence was made, the respondents were unable to do so, nor could they articulate the basis upon which they made such a distinction. David Mueller, the complainant's manager and the individual who recommended that the complainant be discharged and Mr. Fischer retained, testified that the question of whether or not an absence is excused is "several peoples' decision." However, Mr. Mueller acknowledged that he never actually discussed with anyone whether the complainant's specific absences should be excused, and assuming such a distinction was made, it appears that this was a matter within his sole discretion. Mr. Mueller's explanation for which types of absences he considered to be excused and which unexcused is similarly unpersuasive. At the hearing Mr. Mueller explained that Mr. Fischer's absence after having been involved in a car accident was excused because it was "completely out of his control" and that his absences due to a death in the family were excused because "deaths do occur." This testimony suggests that, in determining which absences were unexcused, Mr. Mueller applied a standard of preventability. However, Mr. Mueller failed to explain why the complainant's absences due to compelling personal circumstances beyond his control, such as the disappearance of his daughter from home, (2) the illness of his children, or his own illness for which he presented doctor's excuses, (3) warranted different treatment. Indeed, but for a single instance in which the complainant missed work because his car would not start, all of the complainant's absences were for reasons that could be described as unpreventable or beyond his control.

Not only does the commission fail to discern any legitimate basis to distinguish between the complainant's absences and those of Mr. Fischer, but it is unpersuaded that the respondents actually made such a distinction at the time the absences occurred. Mr. Mueller testified that a designation as to whether absences were excused "may" have appeared on the employe time cards. However, the time cards were not presented at the hearing, and the only contemporaneous documentation contained in the record does not support a conclusion that the respondents distinguished between excused and unexcused absences. The respondents' "Attendance Controllers," which were prepared based upon the information on the time cards, contain no indication that absences were excused or unexcused, in spite of the fact that the Attendance Controller forms include a code by which excused absences could be designated with an "E" and unexcused absences with a "U." These factors lead the commission to believe that the distinction between excused and unexcused absences arose only after-the-fact, in order to distinguish Mr. Fischer's record from the complainant's.

That Mr. Fischer's absences were only deemed "excused" for the first time as a defense to litigation can be seen from Mr. Mueller's testimony regarding his treatment of Mr. Fischer's absences due to a death in the family. Mr. Mueller originally testified that he did not excuse those absences because they were not requested in advance. However, after being shown documentation by the respondents' attorney which indicated otherwise, (4) Mr. Mueller changed his testimony and stated that he did excuse Mr. Fischer's absences due to a death in the family because "deaths do occur." (5) This inconsistency in Mr. Mueller's testimony indicates that Mr. Fischer's absences were no more considered "excused" than were the complainant's, but that the respondents later attempted to characterize them as excused absences in an effort to justify their disparate treatment of the two employes.

Overall, the commission finds the respondents' efforts to distinguish the complainant's absences from Mr. Fischer's on the basis of whether or not they were excused unconvincing, and is unpersuaded that the respondents were motivated by this factor when deciding that the complainant would be discharged or that Mr. Fischer would not.

Amount of Tardiness

The attendance summaries prepared by the respondents indicate that Mr. Fischer was late for work on a total of nine occasions, while the complainant was late for work on ten occasions. Although it certainly appears that the complainant and Mr. Fischer have very similar records of tardiness, in fact, it is the respondents' contention that their records differ significantly. The respondents arrive at this conclusion by adding up the total number of minutes each employe was tardy during his probationary period, which permits a judgment that the complainant was tardy more often. According to the respondents, the complainant was tardy a total of 505 minutes, while Mr. Fischer missed only 269 minutes of work due to tardiness. (6)

The commission, however, does not credit the respondents' explanation that they considered the total number of minutes of tardiness prior to the decision to discharge the complainant, and it is convinced that the respondents' calculation of total minutes of tardiness is another after-the-fact effort to set the complainant apart from Mr. Fischer. There is absolutely nothing in the record to suggest that the respondents considered the aggregate number of minutes the complainant missed due to tardiness before deciding to terminate his employment. In fact, the record does not even support a conclusion that the duration of the complainant's individual instances of tardiness had any bearing on the adverse employment action taken by the respondent. Century Cable's attendance policy contains nothing to distinguish between absences of long duration and those of short duration, stating only, "You are expected to be on time. If you are late, Century reserves the right to send you home." When Mr. Mueller talked to the complainant about the importance of being on time, he explained that routes are pre- determined and, if installers are late, the respondent misses appointments or has to assign them to someone else. Mr. Mueller did not indicate that he ever talked to the complainant about the duration of his late arrivals, and his statement about finding coverage for appointments suggests that the respondent was as inconvenienced by an employe who arrived just a few minutes late as by one who was substantially late. Indeed, the fact that the complainant was written up on the Attendance Controller as tardy on December 6, a day on which he was only one minute late, suggests that a tardy arrival of only a minute was no more acceptable than one of more substantial duration. This is borne out by the fact that Mr. Mueller's memorandum recommending the termination of the complainant's employment refers only to the total number of days on which the complainant was late, but says nothing about the amount of time involved.

In addition, even if the commission were to credit the respondents' assertion that they considered the aggregate minutes of tardiness, the difference in the total number of minutes of work missed due to tardiness between the complainant and Mr. Fischer is not nearly so substantial as the respondents suggest. In the first place, the respondents' assertion that the complainant missed 505 minutes of work due to tardiness relies on the inclusion of 143 minutes of time representing the complainant's early departure from work on November 27, his first day of employment. Although Century Cable's attendance policy does contemplate treating an early departure the same as a late arrival, the complainant testified that he was told he could leave at the end of his orientation session, and Mr. Mueller testified that he believed the complainant's early departure that day would be excused. Removing that 143 minutes from the total proposed by the respondents, it appears that the complainant was late a total of 362 minutes (6.03 hours) (7) to Mr. Fischer's 269 minutes (4.48 hours). (8) Thus, during the course of his probationary period the complainant missed only about one and a half more hours of work due to tardiness than Mr. Fischer. Even if the commission were to accept the respondents' contention that they considered the total number of minutes of tardiness, the difference between the complainant's and Mr. Fischer's attendance records is insignificant, and would not appear to warrant differing resolutions as to their continuing employment status with the respondent.

Notice of Absence or Tardiness

The last explanation presented by the respondents for treating the complainant less favorably than Mr. Fischer is that Mr. Fischer provided sufficient notice of his absences and tardiness, whereas the complainant did not. The respondents explain that it is easier to cover for an employe if there is advance notice that the employe will be late or absent. The commission would find this explanation compelling, if it were true. However, the respondents' assertions in this regard are simply not borne out by the evidence.

At the hearing Mr. Mueller testified, "[Mr. Fischer] always kept me informed. He didn't just leave me hanging. He would inform me every time." Mr. Mueller stated, however, that the complainant's absences and tardy arrivals were much more difficult to deal with because the complainant would not call him. On this point, Mr. Mueller's testimony was, "Basically, we required that they would call us an hour in advance of their shift (9) so that if we had to get more contractors in to cover that shift, that would give us at least an hour to an hour and a half. Angelo just didn't warn me. He would not call me before 8:00. He would just show up late. You know, his car wouldn't start, or he ran out of gas. . . ." While this testimony, on its face, appears to warrant drawing a distinction between the complainant and Mr. Fischer, the record simply does not support a conclusion that Mr. Fischer routinely informed the respondent when he would be away from work, nor does it indicate that the complainant routinely failed to do so.

Regarding Mr. Fischer, it was Mr. Mueller's testimony that the two days Mr. Fischer missed in December due to a death in the family were without advance notice. Mr. Mueller stated that he did not know whether or not Mr. Fischer called in to report he would be late to work on three days for which he was tardy during the month of January, and while he indicated that he may have had advance notice of Mr. Fischer's tardy arrival on February 29, he really could not recall. Mr. Mueller did testify that Mr. Fischer called and notified him he had been in a car accident on January 18, although there is nothing in the record to indicate when such notification was provided and whether it was before or after the beginning of his shift. The record further indicates that Mr. Fischer failed to provide advance notice of his absence on March 2, at which time he overslept and neglected to contact the respondent until an hour and a half into his shift. Indeed, the only date for which Mr. Mueller affirmatively indicated that Mr. Fischer provided advance notice of an absence or tardy arrival was February 3, a date which he had requested off at the very beginning of his employment. (10) There is nothing in the record, however, to indicate what, if any, notice Mr. Fischer provided when he was unexpectedly absent or tardy.

The record also contains little evidence regarding the complainant's notice to the respondent or lack thereof. The complainant testified, without rebuttal, that he called in before the start of his shift on December 9 to notify the respondent that his car would not start, and that he called in at around 8:00 a.m., the time at which his shift began, to provide notification that he was going to be absent due to illness on December 20. The respondent also indicated that the complainant's half-day absence on December 23 was excused, and speculated that this might have occurred because the complainant provided advance notice he would absent. The only dates for which the record affirmatively shows that the complainant failed to provide advance notice of an absence or tardy arrival were January 12, on which he reported to work about an hour late due to car trouble, and January 25, the day on which his daughter was missing. Although the complainant did notify the respondent of his absence on January 25, he failed to do so prior to the start of his shift.

Overall, the commission finds no support in the record for the respondents' explanation that Mr. Fischer warranted different treatment than the complainant because of his actions in providing advance notice. Rather, it appears that the complainant and Mr. Fischer had very similar attendance histories, including with respect to the providing of notice to the respondent.

All of the above leads the commission to reject as incredible the respondents' explanation that they did not treat the complainant and Mr. Fischer the same because their attendance records were significantly different. Additional testimony from the respondents' own witnesses indicates that they themselves regarded the records of the two employes as strikingly similar. At a pre-hearing deposition, Ms. Edwards, the vice president of human resources for Warner Cable, indicated that she had reviewed Mr. Fischer's and the complainant's attendance records and was not sure there was any significant difference between them. While at the hearing Ms. Edwards asserted, contrary to her earlier testimony, that there did appear to be a significant difference between the two, Ms. Edwards was unable to adequately explain why she, a human resource specialist, was unable to detect such a difference upon her original review. Mr. Mueller's testimony indicates that he, too, saw no genuine difference between the complainant's and Mr. Fischer's attendance records. When asked why he recommended that the complainant be discharged, Mr. Mueller answered, "Because I did not really see any improvement over the 90-day probationary period." Subsequently, when asked why he recommended that Mr. Fischer's probationary period be extended, Mr. Mueller's response was, "It was coming up on the end of his 90 days, and he was still having problems being on time and showing up for work." This testimony sheds no light upon why two individuals who appear to have very similar records were treated differently and, if anything, reinforces the conclusion that Mr. Mueller himself viewed the complainant's and Mr. Fischer's attendance records as being essentially the same.

Having concluded that the respondents' explanation for their actions in treating the complainant and Mr. Fischer differently is not a credible one, the question to decide is whether it was a pretext for discrimination. The complainant has the ultimate burden of persuasion on this point, and a showing that an employer's reason is a pretext permits, but does not compel, a finding of discrimination. Kovalic v. DEC International, 186 Wis. 2d 162, 168, 469 N.W.2d 224 (Ct. App. 1994); Anderson v. Baxter Healthcare Corp. 13 F.3d 1120, 63 EPD 1016 (7th Cir. 1994). While disbelief of an employer's proffered nondiscriminatory reason for an employment decision does not compel a conclusion of discrimination, it does permit the trier-of-fact to infer the ultimate fact of intentional discrimination without additional proof. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 62 FEP Cases 96, 100 (1993).

In this case, the commission sees nothing to set the complainant and Mr. Fischer apart other than race. Both the complainant and Mr. Fischer were talked to about their attendance on at least one occasion and both indicated a willingness to improve. Thus, it cannot be said that there was a difference in their attitudes which might have accounted for treating them differently. Moreover, there is nothing in the record to suggest that Mr. Fischer's attendance improved during the end of his probationary period--he was substantially late on two occasions during the last two weeks of his original term of probation--such as might have led the respondents to believe that Mr. Fischer's prospects of attaining acceptable standards of attendance were better than the complainant's. There is also nothing to suggest that Mr. Fischer's job performance was generally superior to the complainant's, such as might have explained the respondents' greater willingness to give him an opportunity to salvage his employment. Finally, there is no evidence to suggest that the respondents were motivated by a consideration of the sort that would be unfair, but not discriminatory, such as a personal friendship between Mr. Mueller and Mr. Fischer, or a personal grudge against the complainant for reasons unrelated to his race. Under all the circumstances, the commission concludes that the respondents had no legitimate reason for treating the complainant less favorably than Mr. Fischer, and finds that the complainant was discriminated against in the manner alleged.

Remedies

Reinstatement

In ordering reinstatement to a "substantially equivalent" position, the commission contemplates that the respondents shall put the complainant where he would have been had no discrimination occurred. In this case, the complainant would have had a 30-day extension of his probationary period, had he been treated in the same manner as a similarly situated white employe. Consequently, the respondents are required to offer to reinstate the complainant to an installer position with the extended probationary period to which he would have been entitled in the absence of discrimination. Should the complainant accept the respondents' offer of reinstatement, it is anticipated that, at or near the completion of the extended probationary period, the respondents will evaluate the complainant's performance and suitability for permanent employment according to legitimate, nondiscriminatory standards, similar to those which were applied to Mr. Fisher or other employes who are not members of the protected class.

Backpay

At the hearing the complainant testified that, with the exception of a three-week long stint at Target, which was not comparable to his work for the respondent and which he quit for justifiable reasons, he remained unemployed until September of 1997. While the commission is somewhat skeptical of the complainant's assertion that he was unable to obtain other employment for more than a year's time, even after having contacted temporary employment agencies, the respondents, which had the burden of demonstrating that the complainant failed to make reasonable efforts to mitigate his damages, made no effort to rebut it. Although the respondents had an opportunity to cross-examine the complainant regarding his efforts to secure other employment, they elected not to do so and his testimony on this point must stand. The commission, therefore, finds no basis to cut off the complainant's backpay award at any point prior to the offer of reinstatement. The commission has attached a worksheet to this decision to assist the parties in arriving at the appropriate backpay and interest amounts.

Attorney Fees and Costs

The complainant's attorney has requested a total of $14,051.25 in attorney fees, plus $730.81 in costs. The attorney fee request amounts to 76.65 hours for Attorney McCann at a rate of $175 per hour and 4.25 hours for Attorney Koch at a rate of $150.00 per hour.

The respondents have raised numerous objections to the complainant's fee request. First, the respondents challenge Attorney McCann's hourly rate of $175. The respondents point out that, in his affidavit, Mr. McCann indicated he has over twenty years experience in personal injury litigation, but said nothing about civil rights work. The respondents maintain that, because Mr. McCann described no expertise in the Fair Employment Act, his hourly rate is excessive. The commission does not agree. In addition to noting his experience in personal injury work, Mr. McCann also stated that he has participated in administrative hearings over the past twenty-one years. These representations are sufficient to establish that the complainant's attorney has some experience in these matters, even absent a specific assertion that he has practiced before the Equal Rights Division or the commission. The respondents have not argued that $175 is out of line with prevailing market rates for attorneys of comparable experience, skill and reputation, and the commission sees nothing inherently unreasonable about a $175 hourly fee for an attorney practicing in the Milwaukee area who has more than twenty years personal injury and administrative practice under his belt.

However, while the commission believes that the hourly rate requested is reasonable, it does not think the respondents are responsible for the entire amount of attorney fees requested. To the contrary, the commission agrees with the respondents that many of the items contained in the complainant's attorney fee request should be disallowed. To begin with, the respondents' attorney accurately points out that the complainant's attorney has erroneously requested reimbursement for the following time spent corresponding with the Equal Employment Opportunity Commission (hereinafter "EEOC"):

6/16/98 Review file; review transcript and decision; prepare     
letter to the EEOC
1.8 (JWM)
7/23/98 Review file; EEOC letter                                              .2 (JWM)

The complainant's attorney has not provided a breakdown of how much time was spent on the EEOC matter. The commission has, therefore, reduced the amount of time reasonably expended by a proportional share of the activities listed: a .6 reduction of the first item and a .1 reduction of the second.

In addition to the above, which took place concurrently with the complainant's pursuit of his Fair Employment Act complaint, the attorney fee request also contains numerous items associated exclusively with the preparation of his summons and complaint in federal court and other matters related to pursuing a Title VII action. The complainant's reply brief to the commission was filed on September 14, 1998, and subsequent to that date the only task the complainant's attorney performed that was in any way connected to the case before the commission was the gathering of time sheets in preparation to submit the attorney bill, which occurred on April 14, 1999. Everything in between those two dates, totaling 10.8 hours of work, relates solely to the complainant's federal court action and is noncompensable through these proceedings.

The respondents also correctly point out that the complainant inappropriately seeks reimbursement for attorney fees relating to pursuing an unsuccessful motion to compel discovery. Specifically:

6/30/97 Prepare draft of Motion to Compel and Affidavit;             
research
1.5 (JWM)
7/02/97 Prepare letter enclosing Motion to Compel; OT client
re: status
.2 (JWM)
7/10/97 Review respondent's witness list, exhibits; review
correspondence and ALJ letter ruling
.2 (JWM)

The commission has italicized those portions of the fee request which appear to relate to the unsuccessful motion to compel and has disallowed those items, again in proportional share to the compensable activities listed. This amounts to a total fee reduction of 1.7 hours with respect to the motion to compel.

Next, the respondents point out that, subsequent to counsel's filing of his reply brief with the administrative law judge on January 23, 1998 and his receipt of the administrative law judge's decision on June 8, 1998, he reports a total of eleven contacts with the complainant to discuss the status of the case, each in the amount of .1 hours, the first occurring on February 5, 1998. The respondents argue that none of this time is reasonably necessary or related to the prosecution of the action in question. While the commission agrees that eleven status conferences is excessive, it does not seem unreasonable that the complainant would contact his attorney every month or so in order to inquire as to whether a decision had yet been issued in his case. The commission, therefore, allows fees related for one status contact per month, or five of the eleven contacts requested. This results in a .6 hour fee reduction.

The respondents further argue that on January 7, 1998, the complainant's attorney filed his brief at the Equal Rights Division and "researched procedures" and that on July 30, 1998, the complainant finalized his brief to the commission and again "reviewed procedures." The respondent maintains that there were no procedures to research or review and that these items should be disallowed. The commission disagrees. Both the Equal Rights Division and the commission have their own administrative rules, and the commission does not consider it unreasonable that counsel would want to check those rules prior to submitting briefs to either body. The commission, therefore, will not disallow that portion of the fee request.

The respondents additionally make a general argument that the hearing in this case took only 3.5 hours, and that Attorney McCann's claim for over $14,000 for prosecuting a matter that took 3.5 hours to try is excessive. The commission finds this argument unconvincing. The length of the hearing does not necessarily correspond to the amount of time reasonably expended in preparation for the hearing or the amount of time reasonably expended in researching and drafting motions and briefs, and the commission sees no basis for an across-the-board reduction in fees simply because the hearing was short. Here, the complainant's attorney drafted interrogatories, deposed witnesses, prepared for and attended the hearing, reviewed the transcript, prepared post-hearing briefs, and filed a petition for commission review and briefs to the commission. While this was not an especially complex or demanding case, there is nothing inherently unreasonable about the complainant's attorney fee request, apart from the specific items mentioned above.

The items discussed above result in a total reduction of 13.8 compensable hours at an hourly rate of $175. That amounts to a $2,415 reduction in the fees requested, for a total of $11,636.25 in reasonable attorney fees associated with this matter.

Finally, although the respondents failed to mention this issue in their objection to the fee request, the commission reduces the amount of costs requested by $180.56, which relates to the U.S. District Court filing fee and service of summons and complaint, matters which were erroneously included in this fee request. This results in a total of $550.25 in costs associated with the prosecution of this complaint.

PAMELA I. ANDERSON, (dissenting)

I am unable to agree with the result reached by the majority herein and I dissent. The employer terminated the complainant because of his record of excessive absenteeism and tardiness. I do not believe that there is a question about the employe's record. The employe was a probationary employe and the employer's policy emphasized it was essential to their business to provide timely service to its customers. The employer extended the probationary period of another worker whose employment overlapped the complainant's employment.

The majority would have the employer determine ahead of time exactly how every possible kind of absence will be treated during the probationary period or else find that the discharge of one worker must be pretextual if the records are within a range of absenteeism. I believe the complainant was terminated for a terrible attendance record. While I am certain that the employer added up the minutes after the fact as a defense against discrimination charges, that does not change the reason why the employe was discharged. Both employes were given unexcused absences for sickness. Both employes were given excused absences for time requested off in advance of the date. The co-worker received excused days for a death in the family and a car accident. The employe did not have a death in the family or a car accident when he was absent.

The length of time of the complainant's tardies was generally longer than those of the co-worker. In the under ten minute category, the complainant had tardies of 1 minute, and two of five minutes. The co-worker had five tardies under ten minutes. They were 2 minutes, 3 minutes, 4 minutes, and two of seven minutes. The co-worker had one tardy excused in advance. That was a court appearance and he was 213 minutes late. The co-worker also was told to stay home on a day he called in late by 90 minutes because he overslept. There was nothing in the way in which the employer handled the tardies that would indicate that they were any stricter with the employe than the co-worker.

I find nothing in the record to indicate that the complainant was treated differently than a similarly situated co-worker. I do not believe that the co-worker's record was as bad as the complainant's attendance record. The co-worker's record was by no means good and that is why the employer extended his probationary period. There was nothing else in the record to indicate that the employer had a discriminatory motive for discharging the employe. I agree with the administrative law judge that race was not a factor in the complainant's termination.

I would affirm the administrative law judge's decision.

________________________________________
Pamela I. Anderson, Commissioner

cc: James C. McCann
Mary Pat Ninneman


Appealed to Circuit Court. 

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Footnotes:

(1)( Back ) Unless otherwise specified, the term "the respondent" in this decision refers to Century Cable.

(2)( Back ) During the credibility conference the administrative law judge stated that some things about the complainant's testimony "didn't ring" and that, specifically, he had doubts about the complainant's testimony regarding his daughter running away from home. However, Mr. Mueller testified that he did not disbelieve the complainant's reasons for being absent, but indicated that he nonetheless chose not to excuse most of the complainant's absences. Consequently, the credibility of the complainant's explanation for his absence is not at issue.

(3)( Back ) While the respondents were quick to point out that they also did not excuse Mr. Fischer's absences due to illness, the commission is skeptical of an undocumented and unexplained rule which, fortuitously, results in four days of days of unexcused absence for the complainant but only a single day's unexcused absence for his non-black comparator.

(4)( Back ) The documentation in question, Exhibit 17, is not a contemporaneous document, but is a summary which was prepared by the respondents specifically in response to this litigation.

(5)( Back ) At the hearing Deidra Edwards, the vice president of human resources for Warner Cable, testified that Warner Cable has a bereavement policy under which an employe is entitled to an excused absence of anywhere from three to five days depending upon the relationship between the employe and the deceased. This policy is not in the record and appears to be contrary to Century Cable's attendance policy, which prohibits excessive absenteeism "regardless of reasons." Moreover, it was never Mr. Mueller's testimony that he decided to excuse Mr. Fischer's absences because of a bereavement policy.

(6)( Back ) In a separate document, Exhibit 13, a comparison between the complainant's and Mr. Fischer's attendance records, which was apparently prepared in anticipation of litigation, the respondents indicated that Mr. Fischer was late a total of 212 minutes and the complainant was late a total of 422 minutes. A typewritten notation at the bottom of the document states, "Conclusion: Angelo missed twice as much work due to tardiness. Angelo was absent at least twice as much as Jason, subtracting excused absences."

(7)( Back ) At the hearing the complainant also testified that he was given permission to report late on his second day of work. The administrative law judge indicated he did not believe this testimony since, if the complainant had received such permission, he would have said so when he was disciplined for being late on that day. It appears, however, that the complainant was not disciplined for being late on his second day of work, and the commission sees nothing inherently incredible about his testimony that he was given permission to report later than usual. However, the commission considers such a finding unnecessary to its decision since, even concluding that the complainant did not have permission to report late on his second day of work, it nonetheless believes that the complainant's and Mr. Fischer's attendance records were sufficiently similar as to warrant similar treatment.

(8)( Back ) In concluding that Mr. Fischer was late 269 minutes, the respondents have subtracted from his record 213 minutes of tardiness on February 29, asserting that he provided advance notification that he would need to make a court appearance before coming in to work that day. Mr. Mueller's testimony, however, was that he "may" have excused Mr. Fischer's tardiness on the day in question, but could not recall. No other evidence was presented to establish that Mr. Fischer actually provided advance notice of his late arrival that day and, although the respondent's policy requires written approval if an employe knows he will be away from work in advance, no such approval was ever obtained. If the late arrival on February 29 were to be included, Mr. Fischer's total number of minutes tardy would be 482, more than the complainant's. The commission, however, need not decide whether the respondents' representation of the total number of minutes Mr. Fischer missed due to tardiness is inaccurate since, even removing the February 29 instance from Mr. Fischer's record, no meaningful distinction between the two employes exists.

(9)( Back ) Century Cable's attendance policy does not require an hour's notice. It states, "If you are unable to report for work, you must personally notify your immediate supervisor or department manager as soon as possible before the start of your shift." (Exhibit 1)

(10)( Back ) Again, while the respondent's policy required Mr. Fischer to obtain written approval from his supervisor for this absence, no such approval was ever issued.