STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


ANTHONY JONES, Complainant

DY-DEE WASH, Respondent

FAIR EMPLOYMENT DECISION
ERD Case Nos. 8551495 and 8551752, EEOC Case No. 055853010


On November 17, 1987, an administrative law judge (ALJ) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the Complainant's race (black) was a factor in the Respondent's decision not to promote him to the position of route driver but that he is not entitled to any remedy other than a finding of discrimination and partial attorney's fees since he would not have been promoted even if he had not been black, due to his attitude and performance problems. Other charges filed by the Complainant involving allegations of race discrimination with respect to conditions of employment and retaliation were dismissed by the ALJ. Those matters have not been appealed and are not the subject of this review. The subject of this review concerns a timely filed petition by the Complainant regarding that portion of the ALJ's decision denying him a remedy other than a finding that race was a factor in Respondent's decision not to promote him and a partial award of attorney's fees, and the Respondent's cross-petition regarding the fact that the ALJ had found race a factor in the Respondent's decision not to hire Complainant and awarded partial attorney's fees despite concluding that Complainant would not have been hired even if he had not been black due to his attitude and performance problems.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

That the decision of the ALJ (copy attached) is modified as follows:

1. In FINDING OF FACT no. 6, the following is added as the last sentence of that paragraph:

"Mrs. Hellerman grabbed the application from Complainant and told him 'you're not going to get hired anyway.'"

2. In FINDING OF FACT no. 7, the name "Hayes" is deleted and the name "Hasse" is substituted therefor. Also, the date "July 29, 1985" is deleted and the date "July 26, 1985" substituted therefor.

3. The second sentence in paragraph no. 4 of the CONCLUSIONS OF LAW is deleted and the following sentence substituted therefor:

"However, Complainant is not entitled to any remedy other than a finding of discrimination and partial attorney's fees because the Respondent has established that he would not have been hired as a route driver even if he had not been black, due to his attitude and performance problems."

4. Paragraph no. 5 of the ORDER is deleted and the following paragraph substituted therefor:

"That Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, 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. 0. Box 8126, Madison, Wisconsin 53708."

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed November 4, 1988.

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


MEMORANDUM OPINION

This case presents a classic example of the mixed-motive case where an employer's employment decision is allegedly motivated by both lawful and unlawful considerations. The Administrative Law Judge concluded that the Complainant's race was a factor in Respondent's decision not to promote him, but that he would not have been hired even if he had not been black due to his poor attitude and insubordination. This, approach represents application of what is known as the "in part" causation standard whereby a complainant may establish employer liability by proving that one of the factors motivating the respondent in the personnel decision was an unlawful factor, regardless of whether there may have been other legitimate factors for the respondent's decision. Further, while a complainant having shown such discrimination is entitled to some relief under this approach, a respondent is allowed to limit the relief by proving that the "same decision" would have been made absent the unlawful discrimination. Under a "but for" causation standard, however, a complainant is required to show that the respondent's consideration of the unlawful factor actually made a difference in the ultimate personnel decision made by the respondent. It must be shown that but for the employer's unlawful motivation, the respondent would not have made the decision it made.

In cases involving discrimination against employes for labor union activities under the Municipal Employment Relations Act, 111.70, Wis. Stats., and the State Employment Relations Act, 111.80, Wis. Stats., the Wisconsin Supreme Court adopted the "in part" standard of causation. In Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B., 35 Wis. 2d 540, 151 N.W.2d 617 (1967) and then later reaffirming this causation standard in Employment Relations Department v. WERC, 122 Wis. 2d 132, 361 N.W.2d 660 (1985) the court rejected the "but for" causation standard stating that an employe may not be fired when one of the motivating factors is his union activities, no matter how many other valid reasons exist for firing him. In Employment Relations Dept., the court stated that application of the but for standard permits an employer to voice his or her hostility toward union activists and even fire employes engaging in union activity, as long as he or she can provide a legitimate reason for terminating the employe's employment, but conduct of this nature will not be encouraged or tolerated by this court. The court found that the "in part" test recognizes the practical difficulty that a discharged employe may have in proving a violation of the State Employment Labor Relations Act and refuting an allegation of misconduct, and that the discharged employe and the employer do not stand on equal footing in cases alleging unfair labor practice because of the employer's advantage of being able to monitor the employe's work performance and document any bona fide basis for discipline. The Commission believes these supreme court cases support application of the "in part" causation standard in cases arising under the Wisconsin Fair Employment Act.

Further, the Commission is convinced that the "in part" causation standard is the appropriate standard to employ in mixed motive cases arising under the Wisconsin Fair Employment Act due to the weaknesses inherent in applying the "but for" standard. These weaknesses have been noted by Mark S. Brodin in his article, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Columbia Law Review 292. Examining discrimination suits brought under Title VII of the Civil Rights Act of 1964, Brodin points out that the "but for" standard appears to be based on two highly dubious assumptions: (1) that Title VII's only goal is compensating "victims;" and (2) that the only concerned parties are the plaintiff and defendant at bar. Brodin states:

The first assumption flies in the face of congressional and judicial pronouncements that the primary objective (or at least one primary objective) of Title VII is the elimination of discrimination in employment opportunities. With this deterrence goal in mind, why should a plaintiff be required, in order to establish violation, to go beyond proving that race or another forbidden criterion was a motivating factor in the decision . . . . a same-decision causal theory is not likely to provide the "spur or catalyst which causes employers and unions to self-examine and to self evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges" of their discriminatory practices. Indeed, the refusal of the courts to take some action anise such "harmless" discrimination might actually encourage the continuation of such conduct.
. . .
The second assumption . . . overlooks the fact that "claims under Title VII involve the vindication of a major public interest." The statute was enacted against a background of hundreds of years of racism and racial violence and represents a congressional determination that continued discrimination in employment is against the public interest. Brodin, 82 Colum. L. Rev. at 317-19.

In addition to these policy considerations, Brodin further points out that as a practical matter, in many meritorious cases the "but for" causation standard (1) is likely to cause the plaintiff to "face the very difficult task of refuting the defendant's showing (since) (i)t has been observed that 'plausible justification [for adverse personnel action] can frequently be advanced whether or not it actually played any part in the formulation of the decision under contest,'" and (2) the litigation risks for a plaintiff who must meet a same decision defense on the liability question are likely to have the effect of discouraging the filing of many meritorious Title VII actions. Brodin, 82 Colum. L. Rev. at 321-322.

The policy and practical considerations identified by Brodin as applicable under Title VII are equally applicable under the WFEA.

The Respondent disputes the determination that race was a factor in its decision not to hire Complainant as a route driver arguing that (1) It was undisputed that Karl Hellerman made the ultimate decision in filling route driver positions and nothing in the ALJ's findings of fact points to any racial animus on Karl's part insofar as his decision regarding Complainant; (2) that the ALJ only noted two isolated :incidents of alleged racial comments by Lorraine and Thomas Hellerman and these comments were not directed in any meaningful sense toward the Complainant and were made by individuals who did not make decisions regarding route drivers; (3) that the ALJ's finding that the Respondent advertises for route drivers in the Milwaukee journal but advertises for diaper counters and packers only in its window is unsupported by the record; (4) that the ALJ completely ignored that the Respondent has attempted to promote blacks to the position of packer supervisor; and (5) the ALJ also ignored that the Respondent attempted to accommodate the Complainant's apparent inability to arrive at work on time by adjusting his starting time forward one-half hour.

The Respondent's assertions ignore overwhelming evidence which supports a finding that race was a factor in Respondent's decision not to promote Complainant to route driver. For example, except for one female who accepted the position of packer supervisor after three black females had declined the job, the Respondent exclusively employs minorities in the less desirable jobs such as counters, packers, washers and folders, while the route drivers were exclusively white. In fact, since its beginning in 1937, the Respondent has never hired a black driver despite Respondent's inner city location. Further, the hiring procedures utilized by Karl Hellerman strongly suggest that those procedures are designed to maintain a segregated workforce and is itself indicative of racial animus on the part of Karl Hellerman. When seeking to hire route drivers Karl Hellerman places a blind ad in the newspaper listing the Hellermans' home phone number. No address is given. Mr. Hellerman then pre-screens the applicants by phone, selecting a handful for an interview. While claiming to receive approximately 200 responses when it advertises for a driver, Mr. Hellerman admits that in over 50 years he has interviewed only one or two blacks. As asserted by the Complainant, "the inference is strong that Respondent deliberately and systematically screened blacks and other minorities out of the application process by voice identification over the telephone. There is no other rational explanation." When asked how Complainant came to be employed, Thomas Hellerman, who hired the Complainant, stated that Respondent used to put a help-wanted sign out in the window and one day he came in and applied. The Respondent now apparently also utilizes the newspaper to advertise for the less desirable jobs, as evidenced by Respondent's Exhibit No. 3, a recent ad which announced the availability of a washman and counter position. But even in this help-wanted advertisement the Respondent listed its inner city address with instructions to "(c)ome in for appointment." In addition to the above is the undisputed testimony regarding the racial slurs made against blacks by other family members of Respondent. Even assuming they were not directed in any "meaningful sense" toward the Complainant, they were racial slurs nonetheless and reflect the author's personal beliefs and biases against blacks. Finally, contrary to argument by the Respondent, the fact that it may have attempted to promote blacks to a vacant packer-supervisor job and adjusted the Complainant's starting time forward so that he might arrive at work on time is not inconsistent with the conclusion that race was a factor in Respondent's decision not to promote the Complainant to route driver. This evidence does not dispel the clear inference that the Respondent believed blacks should only be employed in the less desirable jobs. The overall evidence strongly suggests that the Respondent simply would not consider blacks for the more desirable route driver position, thus making race a factor in one's ability to become a route driver.

Citing that portion of Conclusion of Law No. 4 where the ALJ states "the Complainant has failed to establish that he is entitled to a remedy of backpay,"   the Complainant has argued that the ALJ erred in not shifting the burden to Respondent to prove that it would not have promoted him even in the absence of discrimination, while the Respondent, citing the latter portion of the same sentence where the ALJ states that "the proof at hearing established that he would not have been hired . . . even if he had not been black," argues that the clear implication is that the ALJ placed the burden upon it to show by clear and convincing evidence that the Complainant was not qualified, that Respondent did so, and that the Complainant failed to establish entitlement to promotion because he was unable to effectively impeach or otherwise refute the overwhelming proof Respondent had presented. The Commission agrees that the clear implication is that the ALJ placed the burden of proof upon the Respondent, but has modified this Conclusion of Law to clarify any ambiguity that might exist.

The Complainant argues that the Respondent has not met its high burden, however, because the Respondent's assertions that he was abusive, insubordinate, undependable and untrustworthy were strongly denied by the Complainant and said denials were supported by the testimony of at least one other witness, a co-worker, Steve Ross. The Complainant argues that even if the Commission could not resolve this conflict in the testimony by Complainant and Respondent with certainty, it should be resolved against the Respondent because of a number of uncertainties concerning the credibility of the Respondent's witnesses and the Respondent's story. The Complainant asserts that (1) the Respondent's credibility is impugned because it had denied that Complainant ever applied for the route driver position but the ALJ found that on three occasions he had asked Karl or Lorraine Hellerman for the position and the last such occasion he received an application from Karl; and (2) that the ALJ found that on each occasion Complainant asked for the position, he was turned down while the Respondent denied that these conversations ever took place, that the Complainant had ever expressed an interest in the job to Karl or Lorraine prior to July 29, 1985, or that anyone from Respondent had given Complainant an application form. Complainant argues that the Respondent's denials that Complainant had asked for a route driver position, and the ALJ's contrary finding creates sufficient doubt about its credibility to render the rest of its story unworthy of belief. The Commission disagrees. The Respondent's lack of candidness regarding knowledge of the Complainant's interest in a route driving job does not support the further argument that its testimony regarding Complainant's work performance is not believable.

The ALJ was obviously persuaded that the Respondent would not have promoted Complainant to route driver even absent the unlawful consideration of race. Further, the fact that some of the testimony given by Complainant and his witness, Steve Ross, also raised doubts about the credibility of parts of their testimony, supports the ALJ's refusal to discredit all testimony given by the Respondent. For example, while the Complainant denied that he had any difficulty getting to work on time or that his tardiness was a problem, asserting that most of his tardiness was only 5 minutes or less and that he was allowed to continue in employment at Respondent for over 3 1/2 years, he was forced to admit that he did receive a written warning (with a threat of discharge) for excessive tardiness on January 31, 1984. His written warning showed that he had also received an oral warning regarding his attendance in November 1983. Also, the Complainant denied that he had ever shouted at or threatened Thomas Hellerman, including during an incident on July 26, 1985, but he had to admit that he was sent home early that day. Further, Complainant testified first that he did not know why he was sent home July 26, and then asserted that he had been sent home because he had filed a complaint with the Department, but had to admit that July 26, 1985, was before he had ever filed a complaint.

Steve Ross's testimony was not impressive either. He gave vague and contradictory testimony about how Lorraine Hellerman  treated the Complainant as compared to others. At one point when testifying that Mrs. Hellerman was constantly yelling at Complainant, he stated that this would occur when the Complainant came in in the morning and stopped to have general conversation before beginning work. However, the Complainant's reporting time for work was at 6 a.m. and Ross conceded that Mrs. Hellerman usually arrived for work after 8 a.m. Ross had also been discharged by the Respondent in November 1985, for alleged misconduct.

In any case, aside from any question of the witnesses' credibility, the Complainant's attendance record alone would have justified his non-hire as a route driver. While the Complainant asserts that his tardiness was mostly for 5 minutes or less, out of 61 incidents of tardiness in 1984, he was late more than 5 minutes on 16 occasions (at times as much as an hour or more), and during 1985 through July 24, out of 38 incidents of tardiness, he was late more than 5 minutes on 6 occasions. Even if the Complainant's attendance record did not prompt the Respondent to discharge him, this does not mean that such record satisfied the punctuality Respondent required and expected of its route drivers.

Secondly, the Complainant asserts that the Respondent's allegations that he had attitude and performance problems suffers from credibility problems because while Respondent's witnesses portrayed him as an unbelievably unreliable, abusive and insubordinate employe and alleged that it would not have promoted him even if he had applied for the route driver job because of the alleged traits, Lorraine Hellerman offered to promote him to a washer position in August 1985, when the qualifications for that position included "reliable" and "good worker." Complainant asserts that the Respondent's allegations about his attitude and performance further suffer from credibility problems because the Complainant was employed for over three years prior to the incidents in question and no employer would tolerate the type of behavior described by Respondent for that length of period. However, the Respondent's offer of the washer position to Complainant hardly constitutes Respondent's unequivocal affirmation that he constituted a good or reliable worker. As mentioned above, his attendance record alone refutes any such contention. Furthermore, Mrs. Hellerman maintains that Complainant was offered the washer job only because he was always asking for more money and that job paid more.  The fact that Respondent did not discharge Complainant is not inconsistent with the fact that he was an abusive, threatening, unreliable and insubordinate employe. Respondent's management admitted to confusion on how to handle the Complainant, expressed their indecision on how to handle him to other employes and tried their best to avoid confrontations with Complainant. The mere fact that Respondent retained Complainant as long as it did shows only that Respondent's management was less decisive in managerial decision-making than some other employers might have been, and also shows that Respondent exercised exceptional patience with him.

Thirdly, the Complainant asserts that the only record in his personnel file which reflects negatively on his work history is a documentation of a tardiness problem with a document recording his punch-in time for each work day (with each late starting time circled) for a two and a half year period of time from March '1983 through August 1985. Complainant argues that given Respondent's painstaking documentation of his tardiness, it is simply not credible that he could have engaged in the kind of behavior attributed to him without documentation or mention of even one such incident in his file. However, there is nothing inherently incredible in the fact that Respondent would document Complainant's tardiness but not other problems it had with him because before July 1985 the Respondent did not follow a normal business practice of documenting problems with employes. Further, given the immediacy of contact between Respondent and its fairly small group of employes, documentation of problems was unnecessary.

The Commission finds that the evidence overwhelmingly supports the conclusion that even in the absence of discrimination, the Complainant would not have been hired as a route driver due to his work performance problems.

Next, the Respondent argues that the ALJ exceeded her powers under the WFEA in awarding attorney's fees because "the racial 'factor' found clearly had no effect." Respondent argues that to assess substantial attorney's fees on the basis of "factors" without effects is to spin liability out of thin air and clearly contravenes the purposes of the WFEA. Respondent asserts that the Act addresses "the practice of unfair discrimination" which results in "denial of opportunity, Wis. Stats. 111.31(1)," and that nowhere in the Act is there authority to support the proposition that wrongful thinking, wrongful attitudes or wrongful beliefs which have no prohibited effects are in themselves prohibited. Respondent asserts that awarding attorney's fees therefore constitutes an attempt to punish wrongful thinking, attitudes or beliefs on the part of Respondent, as opposed to wrongful effects of such thinking.

The Respondent further argues that in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 42 (1984), it was recognized that the Department had authority to award reasonable attorney's fees "to a complainant who prevails in an action" brought under the Act and that the Complainant was not a prevailing party, citing Haskins v. U.S. Department of Army, 808 F.2d 1192 (6th Cir. 1987);  McQuillen v. Wisconsin Education Association Council, 830 F.2d 659 (7th Cir. 1987);  Harrington v. Vandalia-Butler Bd. of Ed., 585 F.2d 192 (6th Cir. 1978), cert. denied 449 U.S. 891; and Miller v. Texas State Bd. of Barber Examiners, 65 F.2d 650 (5th Cir. 1980), cert. denied, 449 U.S. 891.

Lastly, the Respondent argues that the ALJ creates a new type of prohibited fair employment practice: discrimination "in the air," that is, "discrimination" which has no detrimental effects, which deprives no one of any opportunities and abridges no rights. The Respondent argues that the "discrimination" upon which the ALJ based attorney's fees is the ethereal race "factor," that the gist of the legal conclusion implicit in her decision is that   if values, attitudes, thoughts or beliefs which might result in denial of a promotion are believed to be present, this presence alone can be punished even when nothing has been denied to a complainant transforming the Act "from a tool for extirpating and remedying discriminatory effects into a tool for policing values, attitudes, thoughts and beliefs." Respondent asserts that such construction of the Act collides headlong with First Amendment protections; that while the values, attitudes, thoughts and beliefs of reprehensible organizations like the Ku Klux Klan or the American Nazi party, are offensive to most, the government cannot constitutionally limit the freedom of those whose "ideas (are) resented by the majority of their fellow citizens," citing Coates v. City of Cincinnati, 402 U.S. 611, 612 (1971).

First, as already noted, Watkins held that an award of reasonable attorney's fees may be made to a complainant who prevailed under the WFEA. A complainant need not prevail in every aspect of his complaint in order to be entitled to attorney's fees. The Unit States Supreme Court, in Hensley v. Eckerhardt, 461 U.S. 424, 103, S.Ct. 1933 (1983), has defined a prevailing party as one which succeeded on any significant issue which achieves some of the benefit the party sought.

The Complainant herein has prevailed on a significant issue which achieved some of the benefit he sought;  he proved that the Respondent discriminated against him on the basis of race in refusing to promote him, arid the Respondent's assertion that this finding of discrimination had no "effect" on its hiring decision because of attitude and performance problems does not defeat his entitlement to an award of at least partial attorney's fees. Furthermore, Respondent's assertion that the finding of discrimination did not have an "effect" on its hiring decision is in error; race did bar him from the position because he would not have been promoted, regardless of his work record, because of his race.

Further, quoting from Watkins, Complainant correctly states that policy reasons support the award of attorney's fees even if the Respondent prevails on the issue of whether he is entitled to back pay since the reason for awarding attorney's fees under the Act is not only making a complainant "whole," but also the protection of the public interest. Complainant points out that in Watkins, the Wisconsin Supreme Court states:

An award of reasonable attorney's fees to a prevailing Complainant is justified to promote the second purpose of the Act: to discourage discriminatory practices in employment. We have previously recognized that an individual who brings an action to enforce statutory rights may be acting as a "private attorney general" to enforce the public's rights under the statute . . . . Similarly, a Complainant who files a Complaint under the Fair Employment Act is acting as a "private attorney general" to enforce the rights of the public and to implement a public policy that the legislature considered to be of major importance. The aggregate effect of such individual actions enforces the public's right to be free from discriminatory practices in employment, which in turn effectuate the legislative purpose of outlawing such practices. Without an award of reasonable attorney's fees, few victims of discrimination would be in an economic position to advance both their individual interest and the public's interest in eliminating discriminatory employment practices . . . . (This) effectuates the legislative purpose of: prescribing employment discrimination because it will deter employers from engaging in conduct prohibited under the Act.

Responding to the Respondent's assertion that the ALJ's award of attorney's fees penalizes the Respondent for mere "wrongful thinking, wrongful attitudes or wrongful beliefs," the Commission disagrees. The ALJ's decision was not based on such factors, it was the Respondent's hiring practices and procedures, evidenced by its segregated workforce, that formed the basis for her determination.

With respect to the Harrington v. Vandalia-Butler Bd. of Ed., 585 F.2d 192 (6th Cir. 1978) and Miller v. Texas State Bd. of Barber Examiners, 615 F.2d 650 (5th Cir. 1980), cases that Respondent cites as support for determining whether a complainant is a prevailing complainant, these cases are inapplicable because here: (1) the Complainant was injured, a finding having been made that his race was a factor in his denial of a promotion, thereby entitling him to injunctive relief; and (2) those cases ignore the dual policy concern of the Act as interpreted by the Wisconsin Supreme Court in Watkins -- that awarding attorney's fees where discrimination has been proven, even where a complainant is not entitled to the monetary relief requested, deters discriminatory practices on the part of employers and protects the public interest in assuring fair employment practices. As for the other two cases cited by the Respondent, McQuillen v. Wis. Education Association and Haskins v. U.S. Dept. of Army, they are also inapplicable because: (1) in those cases, unlike the case at hand, no finding of discrimination was made; and (2) those cases rely on a "but for" causation standard.

The record establishes no basis for the Respondent's assertion that the ALJ created a new type of prohibited employment practice (i.e., discrimination "in the air" which has no detrimental effects) and that she "punished" the Respondent for "ethereal" values, attitudes, thoughts and beliefs; rather the record establishes, and the ALJ found, that Respondent made a decision concerning Complainant's employment status based upon an impermissible discriminatory factor. Lastly, there is no merit to Respondent's assertion that an award of attorney's fees herein violates the constitutional protections of free speech.

Finally, the Respondent argues that the amount of the attorney's fees awarded ($2,352) far surpasses that which is reasonable or equitable.

The Respondent asserts that a paramount consideration in awarding attorney's fees in civil rights litigation is the degree of success which the plaintiff achieves, quoting from the United States Supreme Court's decision in Hensley v. Eckerhardt, 461 U.S. 424 (1983) as follows:

A reduced-fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole..

We hold that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees . . . [W]here the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the result obtained. Hensley, 461 U. S. at 440.

Respondent asserts that Hensley thus held that even where a plaintiff's claims are interrelated, an award of attorney's fees simply viewing the hours reasonably expended on the litigation as a whole times a reasonable hourly rate will be excessive if the. plaintiff has achieved only partial or limited success.

Respondent argues that given the Court's admonition that "the most critical factor is the degree of success obtained," a substantial reduction of attorney's fees is appropriate where a plaintiff has only limited success; that in reliance on this principle, reductions in attorney's fees awards between 50 and 75 percent are common, citing three federal court cases.

Respondent argues that the Complainant brought at least five different claims against it: (1) retaliation on August 30, 1985 for filing previous charges of discrimination; (2) harassment and racist remarks by Respondent management; (3) discriminatory discipline on July 26, 1985; (4) discriminatory suspension on August 16, 1985; and (5) failure to promote to a driver position; however, the ALJ's only finding of "discrimination"--that race constituted "a factor" in the promotion decision--was admittedly a non-determinative factor. Respondent argues that the Complainant thus "prevailed," at most, in demonstrating that he could potentially have suffered actionable discrimination had he been a less demonstrably poor and abusive employe; therefore, even under the most charitable view, Complainant's "success" is tenuous and justifies nominal attorney's fees, certainly no more than $1,000, and appropriately much less than this. Respondent argues that the ALJ's award suggests Complainant fully prevailed on one or more of his substantive claims, when, in fact, he lost all five.

Respondent further argues that a reasonable alternative to a pure "degree of success" formula for assessing attorney's fees is to consider the amount of time actually spent by an attorney on the successful claim. Respondent apparently argues that the transcript shows Complainant spent one-third of the hearing attempting to prove that he was discriminatorily denied a promotion (and that the Respondent spent another one-third of the hearing defending against such claim), but he did not succeed in showing anything beyond the fact that race constituted an ultimately nondeterminative "factor" in the decision not to promote him, making his degree of "success" on this issue at best only partial. Respondent therefore argues that equating time spent on the promotion claim with degree of success on this claim, the complainant should not receive more than half the amount actually awarded.

Complainant asserts that the Respondent's arguments must fail for two reasons: First, it grossly misrepresents the relative significance of the finding of discrimination. Complainant argues that the finding vindicates Complainant on the one issue of paramount social impact on him and other working people in the state: that it is not permissible for anyone to make employment decisions on the basis of a person's race. Complainant argues that even assuming the Respondent can prove that he would not have been hired, even if he were not black, this does not minimize the significance of the finding that Respondent would not have hired him because he is black. Secondly, Complainant asserts that the Respondent's argument fails because it assumes that each of his claims were of equal value and significance to him, but they were not. Complainant asserts that the primary issue litigated in this matter was whether Respondent refused to promote him because of his race and he prevailed on this issue, at least in substantial part.

The Commission finds that the $2,352 amount awarded as attorney's fees is consistent with Hensley, and is reasonable in relation to the result obtained. It is clear from the record that while Complainant may have brought at least five different claims, the primary claim that was litigated was his claim of discrimination with respect to promotion. Further, the ALJ did in fact allow for a substantial reduction in the fee award due to the partial success that the complainant achieved. A fee request of approximately $6,840 for services performed to prove that Respondent has unlawfully discriminated against the Complainant with respect to refusal to promote had been sought and only $2,352 was awarded.

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