TIMOTHY A. NICKELL, Complainant
COUNTY OF WASHBURN, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
Paragraph five of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:
"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 taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, 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. Stat. § § 111.395, 103.005(11) and (12)."
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed July 29, 2005
nicketi . rsd : 110 :
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Late brief issue -- The administrative law judge's decision was issued on November 26, 2004. The respondent filed a timely petition for commission review. In its petition, the respondent indicated that it assumed that a briefing schedule would be issued and that it would await such.
On December 29, 2004, the commission issued a briefing schedule calling for sequential briefing, with the brief on behalf of the petitioning respondent to be filed first. The briefing schedule provided that respondent's brief would be due on or before January 31, 2005. The briefing schedule also provided that complainant's response brief would then be due on or before March 2, 2005, and that respondent's reply brief would be due on or before March 17, 2005.
The respondent did not file a brief, or contact the commission with a request for an extension, by the January 31 deadline set by the briefing schedule. In the weeks following the January 31 deadline, no contact of any kind was received from the respondent. Thereafter, no brief was filed on behalf of the complainant.
In June, 2005, the commission contacted counsel for the parties to attempt to determine what had happened with respect to briefing.
Counsel for the complainant informed the commission that he had never received a brief from respondent and did not file a brief of his own for that reason. The office of counsel for the respondent informed the commission that no brief in chief had been filed on behalf of respondent because of an error in their office. Shortly after this, on June 13, the commission received a copy of a brief on behalf of respondent, accompanied by a letter from respondent's counsel which stated:
Due to an apparent clerical error, our brief in support of respondent's petition for review was not mailed in January when it was completed. We apologize for the inconvenience to the commission and to counsel and are enclosing a copy of the brief. By this letter, I am also submitting a copy to counsel for the complainant, Peter Reinhardt. Needless to say, we have no objection to Mr. Reinhardt having sufficient time to submit his responsive brief.
In response, complainant's counsel objected to the late submission of this brief, pointing out the great length of time that this case has been pending (the complaint was filed in July, 2001), and arguing that respondent had not provided any legitimate reason for the commission to accept its brief almost 5 months after it was due.
The commission agrees that the excuse offered by respondent for the lateness of its brief is insufficient. For one thing, it is acknowledged by respondent's counsel that it was entirely the result of an error in counsel's office, and not some outside factor beyond their control, that caused the brief to be so late. It is appropriate to impute the procedural errors of a party's representative to the party. See, e.g., Cramer v. Woodmans Food Market (LIRC, January 14, 2005); see also, Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284-85, 470 N.W.2d 859 (1991).
For another thing, the error is one which could and should reasonably have been caught earlier. Respondent's counsel who prepared the brief, must have been aware of whether or not he had ever signed it in preparation for its filing. If a brief in final form had never been presented to him for signature, this should reasonably have led to some investigation. If a brief in final form had been presented to him for signature, and he had signed it and believed that it had then been filed, it seems reasonable to suppose that he would have noted it when he received no response brief from complainant's counsel as had been called for by the briefing schedule; this too should reasonably have led to some investigation. In either case, the kinds of inquiries which would have been a reasonable response to these developments, would presumably have led to the discovery of the non-filing of the respondent's initial brief.
The complainant would clearly be prejudiced by a decision to consider respondent's brief notwithstanding its lateness, since complainant would in that case need to incur the additional expense of preparation of a brief in response.
The commission has, on occasion, overlooked a party's failure to comply with
deadlines in a briefing schedule where the lateness was minor and there was no
reason to believe that there would be any prejudice to the other party from
accepting the late brief. (1) This is not such a case. The failure of a petitioning party to file their initial brief for almost 5 months after the due date, with no valid excuse, and where there would be prejudice to the other party, warrants disregarding the brief. For these reasons, the commission will not consider the late brief filed on behalf of the respondent.
Merits -- Complainant, a male who is a degreed and licensed nurse, worked for Washburn County in its Public Health Department as a public health nurse beginning in 1986. Beginning in 1997, he also served as a charge nurse at the respondent's assisted living center, where he had responsibility over around six certified nursing assistants and licensed nurse or medical technician. In addition, he was made Acting Public Health Officer and Interim Director of the Public Health Department when the incumbent in that position resigned in May, 2000. In November, 2000, respondent posted a notice of an opening in a position "Nursing Supervisor / Interim Director". There were three applicants: the complainant, another male, and a female. Following an evaluation process involving scored interviews, the female was ranked highest and the complainant was ranked second. Some time after the interview process had ended, the respondent's Administrative Coordinator/Personnel Director had a conversation with the complainant about why he had not been offered the position, and told him that he was a dynamic nurse but had "no supervisory skills".
The position was offered to the female applicant, but she declined it. Although it would have been permitted under the respondent's employment policies for it to then offer the position to the complainant, it did not do so. Instead, he was sent a letter which, after thanking him for interviewing, stated that "after careful consideration, the county has decided to readvertise the position". It continued by stating, "[w]e would encourage you, however, to submit your application again should a vacancy occur in which you are interested." The respondent then readvertised the position, renaming it as "Director of Public Health", in January, 2001. Whereas the initial posting had listed "five years' public health agency experience" as one qualification, the new posting listed "public health agency experience". Also, whereas the initial posting had stated "supervisory experience preferred", the new posting stated "supervisory experience needed". The complainant did not file a new application for the "Director of Public Health" position. Three persons did submit applications. Of these three, only one, a female, had a nursing degree, which was a basic requirement for the position, so the other two were not even offered interviews. In addition, this applicant did not have any experience working for a public health agency.
The complainant's application for the "Nursing Supervisor/Interim Director" position was still on file, and it would have been permitted under the respondent's employment policies for it to invite him to an interview for and consider him for the "Director of Public Health" position based on his previous application. However, and notwithstanding the fact that it had only one new applicant who met the basic requirement of having a nursing degree, and that this applicant did not have public health agency experience (which complainant, of course, did have), the respondent did not invite the complainant for an interview or consider him. Instead, it gave the position to the female applicant who had been interviewed.
The commission finds completely understandable, and accepts, the complainant's explanation as to why he did not file a new application. The complainant understood that his previous application was good for 12 months. Understandably, the complainant took the statement which had been made to him, that he "had no supervisory skills", as making it clear that he would not be hired if he did apply. Furthermore, the complainant reasonably interpreted the wording of the letter he was sent as effectively communicating that he should not apply for the readvertised position.
The commission agrees with the reasoning and conclusions of the ALJ as to the reason why the non-discriminatory reason asserted by the respondent for not hiring the complainant is simply not worthy of credence. The ALJ summarized his reasoning this way:
In summary, the Respondent, after intentionally bypassing the Complainant and another male candidate when a previous female candidate had turned down the position, hired a female candidate for the readvertised position who lacked public health experience and on that basis was arguably less qualified than the Complainant, who had served as acting Director for approximately nine to ten months. The evidence that the Respondent hired a female who had similar supervisory experience as the Complainant but did not have the requisite public health experience (as did the Complainant) establishes that sex was a motivating factor in regard to the Respondent choosing to readvertise the position and not having offered the Complainant the job after Veber declined it.
The commission agrees with the ALJ that it is reasonable to infer, from the fact that the respondent's explanations for the steps taken in the hiring process do not stand up to examination, that the complainant's sex was a factor in the decision.
Attorneys Fees -- The attorney fees here are significantly higher than the total back pay award. However, that is not a reason to question the reasonableness of the award. See, Hibbard v. Kelly Photo Service (LIRC, 09/30/85). The procedural history of the case (an initial finding of no probable cause, which required a separate no probable cause hearing procedure) largely accounts for the significant amount of the attorney fees involved. As far as the particular amounts claimed, the ALJ carefully analyzed and disposed of the objections to the fee award made by the respondent when the matter was pending before the ALJ. The commission agrees with the ALJ's analysis, and finds the amount of fees awarded by the ALJ to be reasonable in all respects.
Peter A. Reinhardt, Attorney for Complainant
James R. Scott, Attorney for Respondent
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(1)( Back ) See, e.g., Diedrich v. A. E. Goetze - Manitowoc (LIRC, Oct. 22, 1999) (response brief 8 days late, no prejudice to petitioning party); Tourdot v. Thompsons Jewelry Inc. (LIRC, Dec. 10, 1997) (petitioner's reply brief 2 weeks late, no prejudice to respondent); Smith v. Condere Corp. and Clark (LIRC, March 27, 1990) (response brief 3 days late; lateness "insignificant", no prejudice).