800 Remedies for Discrimination

The Commission's authority under the Ordinance to remedy discrimination and enforce its orders (including orders for back pay) is constitutional. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/2/80), aff'd per curiam, No. 80-1906 (Ct. App. 7/16/81), aff'd by equally divided court, Wis. Sup. Ct., 3/20/82); Community Action Comm. v. MEOC (Sanchez), No. 161-291 (Dane County Cir. Ct., 8/31/79).

On remand from the Commission, the Hearing Examiner addressed and explained the issues of various damages including front pay, back pay, pre-judgment interest, and emotional distress, and the Complainant's duty to mitigate damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

There is little doubt that the Respondent's job posting violates the prohibitions of Sec. 39.03(8)e Mad. Gen. Ord. in that it states a blanket prohibition from employment for any individual with a felony conviction in the last 7 years. By contrast, Sec. 39.03(8)(i)3b indicates that an employer may not consider a conviction record it if is more than 3 years old, and may consider a conviction record of less than 3 years if the conviction to be considered is substantially related to the duties of one's job. The Hearing Examiner proposes an order requiring the Respondent to cease and desist from publication of its illegal preference. The Hearing Examiner is sympathetic to the difficulty the Respondent faces in conforming its conduct including its advertising to the wide range of requirements that face a multi-state enterprise. However, there are many such employers subject to the jurisdiction of the Commission who manage to comply fully with the requirements of the ordinance. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

801 Burden of Proof

Once discrimination is found, the burden shifts to the employer to show that a complainant did not use due diligence in seeking other employment to mitigate the wages lost due to the employer's discrimination. Steinbring v. Oakwood Lutheran Home, supra.

The Complainant must prove damages resulting from discrimination by a preponderance of the evidence. Such damages may include monetary amounts for back pay, front pay, and emotional distress. The Complainant also has the burden to set forth credible evidence of efforts made to mitigate damages caused by a discriminatory act. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Complainant’s request for further proceedings was timely filed, however the Complainants wish to demonstration additional economic costs associated with her loss of wages falls well outside of the contemplation of the Hearing Examiner as it is essentially a request to reopen the record on the issue of damages. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

805 Right to Liability Finding When No Remediable Harm

810 Remedies Which May be Provided

810.1 Back Pay

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Commission concluded that the Hearing Examiner was justified in finding that the limited record supported an award of $100 to the Complainant for one day's lost pay. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Upon a finding of age discrimination, back pay is an appropriate remedy. Upon remand from the Commission, the Hearing Examiner discussed the issue of back pay, including beginning and ending dates, and applicable offsets. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Complainant's claim of employment discrimination was resolved by an Order of Default against the Respondent. The Hearing Examiner determined that the Complainant appropriately mitigated his damages by finding other employment within ten days of termination, and was entitled to economic damages in the form of back pay in the amount of $448.00, the amount of wages lost between termination and new employment. The Complainant's claims for other economic damages were too speculative and unsupported by facts to be considered. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses.

The Hearing Examiner finds that calculating the Complainant's average wages per shift and average number of shifts per month during Complainant's employment previous to her termination, and extrapolating that amount forward through the Complainant's scheduled but unworked post-termination shifts and further until such time as Complainant procured work after her termination by Respondent, appears to be a reasonable method for determining the Complainant's front and back pay award. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

810.11 Entitlement to Back Pay, Generally

A black who showed that his white co-workers with comparable attendance records were employed for a longer period of time before being discharged was entitled to back pay up to the date those whites were also terminated. Fitzgerald v. Hillhaven, MEOC Case No. 2757 (Ex. Dec. 2/18/82).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

Back pay is a remedy which entitles the Complainant to be placed in at least as good a position regarding wages as if the Respondent had not discriminated against her. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The record was sufficient to establish liability on the part of the Respondent for a claim of discrimination in employment on the basis of the Complainant's conviction record. Having established liability, the Hearing Examiner turned to the question of damages.

It is the Complainant's burden to demonstrate both the entitlement to damages as well as the appropriate amount of those damages. Customarily, one would calculate economic losses by multiplying the hourly or other periodic payment by the number of hours worked in a set period and then multiplied by the length of time for which the Complainant was unemployed or underemployed. However, there is no information on the record to indicate for how long the Complainant was without comparable employment or for how long he might have stayed employed by the Respondent.

It is the Complainant's burden to establish the period for which he might be due back wages. In this regard, the Complainant has failed.

The Complainant also has an obligation to attempt to mitigate his damages by seeking alternative employment, but the record is devoid of any information concerning the Complainant's efforts in this respect. While the Hearing Examiner makes no finding regarding the Complainant's efforts to mitigate his damages, it is another factor that keeps the Hearing Examiner from making an award for back pay.

Ultimately, the Hearing Examiner decided that it was outside of his authority to replace facts with speculation and accordingly, the Hearing Examiner declines to make any award of back wages. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).

810.12 Computation of Amount, Generally

As part of her remedy, a complainant in a discriminatory refusal to hire case was awarded the raise and any experience or longevity pay she would have received had she been hired; . . . and her back pay should not be reduced by the interim earnings she received from a part-time job where the evidence showed she could have performed both jobs simultaneously. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

An employee who established a continuing violation of the ordinance prohibition against discrimination in wages was entitled to back pay beginning two years prior to the date she filed her complaint. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).

In a case where the Commission awarded reinstatement and full back pay (among other remedies) for Respondent's retaliation against Complainant during her employment and in regard to her discharge, on appeal, the Circuit Court remanded that portion of the decision awarding the Complainant interest on her back pay award. The court concluded that the interest award was not based on facts in the record or on a fixed legal standard. Accordingly, the court remanded the case to the Commission to enter on the record the basis for its award of 12% interest. The Court of Appeals affirmed the Circuit Court's order of August 24, 1987, and the Commission modified its previous order to include a finding that the basis for its award of 12% interest was the prime rate current at the time of the violation. The Commission rejected the Complainant's various age discrimination claims, but initially ruled the Complainant had been retaliated against both during her employment and in regard to her discharge. She was awarded reinstatement and full back pay (among other remedies). Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Final Order on Remand 03/29/89; aff'd Case No. 87-2266 (Ct. App. 12/22/1988); remanded Case No. 86 CV 6488 (Dane County Cir. Ct. 08/24/87); Comm. Dec. on Remand 11/10/86; (not available) Case No. 85CV 6300 (Dane County Cir. Ct. 8/20/86); rev'd Comm. Dec. 11/18/85; Ex. Recommended Decis. 07/12/85; Ex. Interim Recommended Decis. 04/11/85).

On appeal of the Examiner's award of back pay, front pay, prejudgment interest and reasonable costs and attorney's fees, On appeal, the Commission upheld the Examiner's ruling. However, in addition to the remedies proposed by the Examiner, the Commission ordered that the amount of back pay and front pay be augmented to reflect the overtime that would have been paid based on a Department of Labor ruling. This ruling stated that the Complainant was not an "exempt" employee under the Fair Labor Standards act and therefore was entitled to the twenty hours of overtime pay that accumulated every week. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

In a case where the Hearing Examiner determined that Respondent had terminated the Complainant's employment because of race, the Respondent was ordered to cease and desist from further discriminatory actions. The Complainant was awarded $15,330 in back pay and $2,000 in compensatory damages. The Commission affirmed the Examiner's decision and award of emotional damages but remanded to the Hearing Examiner for clarification of the basis for the amount of back pay since Complainant had not recalled his actual wage. Before a decision on remand, the Respondent appealed the Commission decision, arguing that it failed to get notice of the hearing before the Hearing Examiner. The Circuit Court found that Respondent had adequate notice of the hearing. The parties reached a private settlement prior to issuance of an Examiner's decision on remand. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91); Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Although Complainant was entitled to back pay, she failed to mitigate damages. Consequently, she could recover only limited back pay.

Complainant left her employment with Respondent on 12 March 1997. She found temporary work several months later, and began training for real estate sales shortly thereafter, but Complainant indicated that she took the summer off to spend time with family, and the record simply did not show any significant effort to mitigate wage loss. The record likewise did not show whether Complainant voluntarily changed careers or began training for real estate sales only because she could not find substantially similar employment after parting ways with Respondent. Thus, Complainant was entitled to recover back pay only until she began her real estate training. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Back pay accrues from the date of the Complainant's discharge until either the date of a final order or the occurrence of some other event that terminates the Respondent's liability to pay wages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

Having found that the Respondent violated the Ordinance both by permitting the Complainant's sexual harassment and by retaliating against her for her exercise of a right protected by the Ordinance, the Hearing Examiner now addresses damages to compensate the Complainant for her noneconomic damages, or emotional distress, humiliation, and embarrassment from the impact of discrimination, in this case separate awards for sexual harassment, and retaliation.

In addressing the amount of damages, the Hearing Examiner reviews the history of such awards made under the Ordinance, considers, among other things, the intensity of the emotional distress and the period of time during which it is likely to endure, whether the Complainant experienced physical contact or threats, and the Complainant's history, if any, of physical and sexual abuse. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses.

It is the Complainant's burden to establish the period for which he might be due back wages. In this regard, the Complainant has failed.

Complainant testified that he had not been able to find work since the Respondent’s failure to hire, but offered no testimony on mitigation efforts. The Respondent did not raise the issue of Complainant’s failure to mitigate, neither did the Complainant present testimony that mitigation had occurred. Hanson v. Motel 6, MEOD Case No. 20182029.

810.13 Offsets from Back Pay

. . . and the complainant's back pay should not stop because she quit a subsequent job after three days when she learned that the number of hours expected of her at the new job was excessive and no breaks were given during the day. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd, No. 80-1906 (Wis. Sup. Ct., 3/20/82 and 4/6/82).

Following discharge, Respondent is entitled to an offset for wages received by Complainant at new employment. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses.

810.14 Events Limiting Back Pay Liability

Complainant sought damages for lost wages after having been wrongfully terminated based upon sex and age discrimination. Although Complainant was entitled to lost wages, she failed to mitigate damages, and thus could receive only limited back pay. Complainant did not begin searching for new employment until nearly two months after having been fired, and moreover, she filed only three applications. Given the prevailing unemployment rates, the Hearing Examiner determined that Complainant could have replaced lost wages within approximately ten weeks. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

Where a black job applicant proved that a screening test had a racially disparate impact, but the number of blacks actually hired did not establish such a disparate impact and it was uncertain whether the applicant would have been hired or placed on a waiting list even if he had passed the test, he was awarded immediate reinstatement in the hiring process but no back pay; he was also awarded front pay until the time he was hired if he successfully completed the screening process. Jones v. Madison Serv. Corp., MEOC Case No. 2574 (Ex. Dec. 11/24/81).

810.141 Unconditional Offer of Reinstatement

After being discharged (or laid off), the Commission determined the employer made an unconditional offer to reemploy her but reneged after she accepted. The Complainant was awarded $15,060.65 in back pay ($8,396.65 to be paid to her directly and $6,664 to reimburse the state unemployment compensation fund) plus interest and costs. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

In a case where Respondent was found to have discriminated against the Complainant on the basis of race by association, Complainant was awarded back pay, attorney's fees and $25,000.00 in emotional damages. Reinstatement was also ordered because it was the only adequate remedy for the Complainant's loss of opportunity for managerial experience. Complainant failed to appeal a finding of no probable cause on retaliation, resulting in the conclusion that her termination was legally justified, thereby limiting Respondent's liability for back pay. The Commission affirmed the Hearing Examiner's decision in its entirety. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

810.142 Accepting Comparable Job at Same or Higher Pay

When a terminated Complainant obtains a job with a salary comparable to or higher than the salary with a Respondent, the Complainant has no continuing wage loss and front pay is not an issue for damages. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

810.143 Quitting or Being Fired From Comparable Job

810.144 Unavailability for Work

In a case where the Hearing Examiner determined that Respondent had terminated the Complainant's employment because of race, the Respondent was ordered to cease and desist from further discriminatory actions. The Complainant was awarded $15,330 in back pay and $2,000 in compensatory damages. The Commission affirmed the Examiner's decision and award of emotional damages but remanded to the Hearing Examiner for clarification of the basis for the amount of back pay since Complainant had not recalled his actual wage. Before a decision on remand, the Respondent appealed the Commission decision, arguing that it failed to get notice of the hearing before the Hearing Examiner. The Circuit Court found that Respondent had adequate notice of the hearing. The parties reached a private settlement prior to issuance of an Examiner's decision on remand. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91) Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

After the Hearing Examiner found that Complainant had been wrongfully terminated he was awarded back pay. The Complainant was awarded $2,820 instead of $9,870 which the Complainant felt he was entitled to because of his unavailability of work through out much of the period in which he was terminated. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. on damages 10/7/99).

On date Complainant voluntarily removed herself from the labor market for personal reasons, Respondent's liability for back pay ceased. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.145 Showing that Job Would Have Ended Anyway

810.146 After-Acquired Evidence

810.15 Limitation to Two Years Prior to Filing of Complaint

810.16 Respondent's Obligation to Pay, Exceptions and Limitations

Upon a finding of discrimination, Respondent is generally obligated to pay damages including back pay, front pay, damages for emotional distress, and costs, including a reasonable attorney's fee, subject to certain reductions and exceptions. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.19 Miscellaneous

810.2 Front Pay

After having been wrongfully terminated based upon sex and age discrimination, Complainant sought front pay. Complainant was required to show that reemployment with the Respondent was impossible, but Complainant was voluntarily moving into another line of work. Moreover, while Complainant was seeking front pay until her anticipated retirement date, this extraordinary remedy was available only until one could be expected to replace lost income. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

Where an employee's duties had been assigned to others after his discriminatory discharge, he was awarded front pay until he could be reinstated to the next available position of comparable responsibility and compensation. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82).

On appeal of the Examiner's award of back pay, front pay, prejudgment interest and reasonable costs and attorney's fees, On appeal, the Commission upheld the Examiner's ruling. However, in addition to the remedies proposed by the Examiner, the Commission ordered that the amount of back pay and front pay be augmented to reflect the overtime that would have been paid based on a Department of Labor ruling. This ruling stated that the Complainant was not an "exempt" employee under the Fair Labor Standards act and therefore was entitled to the twenty hours of overtime pay that accumulated every week. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Under the circumstances, awarding front pay would have been inappropriate. Front pay would have been appropriate for some period during which Complainant was securing equivalent employment or was obtaining education and training for such employment. However, Complainant had fully replaced lost earnings when her discrimination hearing commenced. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. In addition to back pay, Complainant sought bonuses and commissions that she arguably would have received but for discrimination. The MEOC Hearing Examiner determined that bonuses and commissions were far too speculative. There was simply no telling whether Complainant would have earned them. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. After finding that age partly motivated her termination, the Hearing Examiner awarded back pay and damages for emotional distress. The Hearing Examiner did not order reinstatement because reinstatement was not feasible, given the hostility between the parties. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

Front pay is an equitable remedy which may be considered when reinstatement is not possible. The remedy relates to replacing future income, and is awarded infrequently. In this case, front pay was not awarded to Complainant even though reinstatement was impossible. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses.

Reinstatement is not appropriate given the history of the Complainant’s unhappiness with her working conditions and the Respondent’s demonstration of a willingness to take extreme measures to rid itself of the Complainant by terminating her employment. Neither is an award of front pay appropriate given the lapse of time since the Complainant’s termination and the limited period that might have been appropriate for front pay. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.3 Reinstatement; Hire

The Respondent discharged the Complainant partially based on several incidents of misconduct, not by reason of race. Respondent did not discriminate in regard to discipline, terms and conditions of employment and termination in retaliation against the Complainant for filing a complaint. The Respondent was ordered to cease and desist from retaliation against the Complainant. Reinstatement was not ordered because the Complainant did not seek it. Complainant was awarded $3,332.72 in back pay, $4,000.00 as compensation for emotional injuries and attorney's fees and costs. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

On remand from a Court of Appeals ruling affirming the decision of the Circuit Court upholding the Commission's finding that Respondent's termination of Complainant was by reason of his race, the Examiner set the amount of back pay at $43,442.50, prejudgment interest at $7,477.76, and established the rate of front-pay at $28,750 per year. In addition, the Examiner awarded reinstatement to the next available chef's position. In reaching his decision, the Examiner found that the Respondents had not made a good faith offer of reemployment that would place the Complainant in at least as good a position as he would have been absent the act of discrimination. The Examiner also rejected the Respondents' contention that the Complainant had failed to mitigate his damages by moving from position to position and by returning to Detroit, his hometown, to seek other employment. The Commission affirmed the Hearing Examiner's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc., v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc.v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Under the circumstances, reinstatement would have been inappropriate. It was unclear whether the manager with whom Complainant had come into conflict "over what the manager perceived as using disability to further career advancement" could still influence the work environment to which Complainant would have returned. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Reinstatement is always the preferred remedy when discrimination occurs, but not always possible due to hostility and conflict between the parties. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

As an equitable remedy, reinstatement to a prevailing Complainant's former employment is generally an appropriate and preferable means of returning the Complainant to the position in which he/she would have been but for the unlawful act of discrimination or retaliation. The Hearing Examiner determined that reinstatement for the Complainant who was fired in retaliation for complaining about his supervisor's use of racist, sexist and homophobic language was not practical due to: the level of animosity by some of Respondent's employees toward the Complainant; the substantial change over time in the positions of the parties; and the inequities involved in transferring current employees to accommodate the Complainant. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

810.4 Other Remedial Orders

810.41 Remedies for Insurance Benefit Denial

810.42 Remedies for Loss of Seniority

810.43 Remedies for Loss of Fringe Benefits

After having been wrongfully terminated based upon sex and age discrimination, Complainant sought damages for loss of participation in an employer-matched stock purchase plan. The MEOC Hearing Examiner refused to award the sought-after compensation because Complainant failed to prove the economic value of this element of damages. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

810.44 Remedies for Emotional Harm

After having been wrongfully terminated based upon sex and age discrimination, Complainant "who was singled out for termination after numerous employees violated loss prevention policies established by their employer" sought damages for emotional distress. The MEOC Hearing Examiner awarded only $2,500 because Complainant failed to demonstrate with sufficient "vividness" how discrimination actually affected her. The Hearing Examiner noted the lack of unusual adverse impact upon Complainant, who gave only sparse testimony regarding emotional distress. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Examiner determined that the Complainant was performing her job satisfactorily and that the reasons advanced by the Respondent for her discharge were unworthy of credence. The Complainant was awarded back pay, costs and reasonable attorney's fees, prejudgment interest on her back pay, and $3,500 for emotional distress. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

When the Respondent did not appear at hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the basis of her sex when it terminated her employment approximately two weeks after she gave birth. The Respondent was ordered to pay back pay of $9,000, compensatory damages for emotional distress of $10,000, punitive damages of $20,000 and costs and reasonable attorney's fees. In a separate decision, the Hearing Examiner awarded attorney's fees of $1,560 and costs of $96. Balch v. Snapshots, Inc. of Madison, MEOC Case No. 21730 (Ex. Dec. on liability 10/14/93, on damages 12/9/93).

In a case where Respondents were found to have discriminated against the Complainant on the basis of sexual orientation in regard to housing, on remand, the Commission affirmed the Hearing Examiner's finding of liability and amended her determination of damages. The Commission vacated the Hearing Examiner's award of punitive damages but increased the award of emotional damages to $3000.00, finding that this sum would more appropriately redress the Complainant's emotional injuries. The Commission also determined that it was without jurisdiction to address the Respondents' claims of unconstitutionality regarding the ordinance and the Commission's application of the ordinance.

The Circuit Court affirmed the Commission's findings as to liability and the amount of damages awarded. The Court found that the Respondents' contention that emotional damages could not be awarded by the Commission because they would be deprived of their right to a jury trial in violation of state and federal constitutions was not supported by law. Specifically, the Court found that the 7th Amendment to the U.S. Constitution was not incorporated by the 14th Amendment with respect to the right to jury trial, and that the administrative action of the Commission was not an action at common law prior to statehood and was therefore not covered by the Wisconsin Constitution's right to jury trial provision. The Court declined to address Respondents' additional constitutional arguments, observing that they had failed to serve the Wisconsin Department of Justice with their constitutional objections. Sprague v. Rowe & Hacklander-Ready, EOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98, Comm. Dec. 7/10/92, 2/10/94, Ex. Dec. 12/27/91); State of Wisconsin ex rel. Caryl Sprague v. City of Madison et al., 93 CV 113 (Dane County Cir. Ct., 8/19/93, 9/30/94).

In awarding damages for emotional harm suffered by a Complainant, it was appropriate for the Hearing Examiner to balance all the factors and circumstances leading to Complainants' emotional distress stemming from Respondents' act of discrimination. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The plain language of Sec. 3.23, Madison General Ordinances in existence at the time of the dispute did not explicitly authorize the Commission to award compensatory and punitive damages but was more consistent with the imposition of forfeitures and equitable relief. The Madison City Council has now amended 3.23 to explicitly grant the Commission authority to award economic and non-economic damages. Therefore, at the time of its decision, the Commission exceeded its jurisdiction when it awarded the Complainant damages for emotional distress. Sprague v. Rowe & Hacklander-Ready, supra (Ct. App. No. 94-2983, 9/26/96).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. In addition to back pay and other work-related compensation, Complainant sought significant damages for emotional distress. The MEOC Hearing Examiner awarded $15,000 for emotional distress. Complainant suffered obvious injury due to discrimination, but the MEOC Hearing Examiner noted that Complainant successfully ran for elected office shortly after leaving her employment with Respondent. This fact suggested that Complainant could still perform many activities, which conclusion led the Hearing Examiner to award much less for emotional distress than Complainant was seeking. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Complainant was sixty-two years old when Respondent terminated her employment. Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. Noting that Complainant only needed to show that age partly motivated her termination, the Hearing Examiner found that Respondent had discriminated against Complainant when Respondent terminated her employment.

Given the circumstances under which the Complainant was fired, and taking into account the fact that she was unemployed for nine months, the Hearing Examiner awarded the Complainant back pay plus $5,000 for emotional distress. The damages for emotional distress were necessarily limited because the record lacked strong evidence regarding the seriousness of her emotional injuries. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Hearing Examiner awarded Complainant $5500 as well as reasonable attorney's fees and expenses related to the pursuit of the complaint where a Bar was found to have denied Complainant a reasonable accommodation of permitting Complainant to enter with his dog and be served at Complainant's bar, a place of public accommodation. Complainant had been diagnosed with mental and emotional disabilities and the dog had training and ameliorated his disabilities.

To show damages for emotional harm, the Complainant does not need to prove a physical manifestation of harm, which is considered an element of the torts of negligent or intentional infliction of emotional distress. The Complainant's testimony regarding emotional harm was corroborated by the testimony of others, including his therapist, a medical professional. Corroborating testimony from a medical professional is helpful in demonstrating emotional harm. Complainant's mental and emotional disabilities made him susceptible to emotional trauma. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07).

In addition to back pay in the amount of $8,908 and 5% prejudgment interest, the Complainant was awarded $15,000 in emotional distress damages. The Complainant's emotional injuries were intense, but were not particularly long lasting or solely attributable to the actions of the Respondent. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

On remand from the Commission, the Hearing Examiner was unable to award additional emotional distress damages to the $5,000.00 awarded previously because of insufficient evidence and the Complainant's specific reference to that amount as sufficient. The Hearing Examiner cautioned that damages for emotional distress should not be speculative or punishing to the Respondent for causally, unrelated conduct. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

After finding the Respondent discharged the Complainant in retaliation for reporting his supervisor's use of racial, sexual, and homophobic comments, the Hearing Examiner awarded $75,000.00 to the Complainant for emotional distress injuries. The Hearing Examiner based the amount on the Complainant's testimony as to the emotional impact the discharge had upon him, including feelings of shock, distress, sadness, worry, and concern for his family's well being. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

Following a finding of liability by default on Complainant's employment discrimination claim, the Hearing Examiner awarded the Complainant $3000.00 for emotional distress (non-economic) damages. Although the Complainant testified he was manic, agitated, depressed and frustrated following his discharge from Respondent's employment, he was unable to show that such reactions adversely affected his life for any length of time, thus precluding his request for a larger damage award. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when it required the Complainants to obtain their food via the restaurant's drive-thru, while serving white patrons inside the establishment. The Respondent failed to respond to the Notice of Hearing and, as a result, the Hearing Examiner entered a default judgment in favor of the Complainants. Nor did the Respondent appear at a hearing to determine the Complainants' damages. As to the issue of damages, the Hearing Examiner held that the Complainants' testimony regarding their emotional distress was sufficiently compelling to justify an aggregate award of $20,000. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages and attorney's fees, although the Hearing Examiner expressed doubt as to the propriety of the amount of said attorney's fees. Briggs v. Popeyes Chicken & Biscuits Restaurant, MEOC Case Nos. 20083073, 20083074 (Ex. Dec. 3/19/10).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

The decision not to hire the Complainant because of his conviction record disheartened the Complainant and made him feel "bad." The work was that for which the Complainant believed himself to be qualified and was the type of work that he enjoyed. He was injured by the knowledge that even though he'd completed his incarceration, he was still being judged for the mistakes of his past.

In assessing the degree of emotional damage and assigning a dollar amount to redress the injury, the Hearing Examiner is guided by the Ordinance's dictate to redress the act of discrimination and to attempt to return the injured party to the condition in which they'd have been absent the act of discrimination.

The Hearing Examiner ordered the Respondent to pay the Complainant $7,500.00 as compensatory damages for his emotional distress, embarrassment and/or humiliation resulting from the Respondent's discrimination.

Had the Complainant in the present matter been somewhat more forthcoming about the impact upon him, or presented the testimony of others to corroborate the extent of his injury, the Hearing Examiner might have made an award of greater than the $7,500.00 that he has made. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).

Complainant sought medical attention for the stress of her employment. Only the distress of associated with the successful claims is compensable. The Complainant experienced stress, distress, embarrassment, humiliation, economic deprivation and homelessness as a result of the Respondent’s retaliation. This was compensable in the amount of $75,000.00. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

Complainant suffered emotional distress following the rescission of the initial job offer until the offer was reinstated, but testimony was sparse and did not evidence a long lasting effect or serious disruption to the Complainant’s life or relationships. A nominal award is all that is appropriate. Obriecht v. Laserwords US, Inc., MEOD Case No. 20152151.Complainant testified that he felt frustrated and irritated by the Respondent’s failure to hire and that he “loves to work and make money.” Testimony of the emotional distress impact in this case was limited, therefore a nominal emotional distress damage award is appropriate. Hanson v. Motel 6, MEOD Case No. 20182029.

Complainant testifies to a strong initial emotional reaction to her termination, but then a fairly quick return, of necessity to the demands of daily life. The Complainant is awarded compensatory damages for emotional distress. Franklin v. AJ Prestige, LLC, MEOD Case No. 20152133.

810.45 Miscellaneous Remedial Orders

810.451 Clearing File, Neutral References

810.452 Posting Order, Notices

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Commission affirmed the Hearing Examiner's order that the Respondent place equal opportunity statements in its place of employment and attend training presented by the Commission. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Having found that the Respondent violated the Ordinance both by permitting the Complainant's sexual harassment and by terminating her in retaliation for her exercise of a right protected by the Ordinance, the Hearing Examiner now determines that Respondent shall develop and implement an anti-harassment policy based on any of the protected classes set forth in the Ordinance, post such policy prominently on its premises for both customers and employees to see, include in said posting information on how to file a formal complaint, and advise that such complaints may be made without fear of retaliation. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016)

810.453 Counseling or Training

The Hearing Examiner concluded that the Respondents had discriminated against the Complainants on the basis of their race but not their lawful source of income, when the Respondents' rental agent failed to notify the Complainants of the process used for applying for an apartment. The Hearing Examiner rejected the Respondents' contention that the Complainants were not qualified renters, finding that the Respondents' rental agent did not possess sufficient information to make such a determination when she apparently concluded that the Complainants could not afford the apartment. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The Commission will order a Respondent to receive training from the Commission about the extent and coverage of the Ordinance when it is determined that training of corporate and local managers having responsibility for Respondent's local operations may assist in preventing recurring discrimination. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

810.459 Miscellaneous

810.5 Interest on Award

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

Where Complainant was found to have been discriminated against by his employer and then was awarded back pay, the Hearing Examiner also awarded Complainant prejudgment interest. This award was given to Complainant for the lost opportunity cost for money that should have been paid to the Complainant but was not due to his termination. The rate of the prejudgment interest used by the Commission to calculate the interest was 5 percent per annum. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. on prejudgment interest 10/7/99).

In this case remanded for clarification of damages findings, one issue was whether pre-judgment interest was appropriate, and if so, what rate of interest. The parties stipulated to the pre-judgment interest rate of 4% per annum to be applied to the wages awarded from the date of Complainant's discharge until the judgment is paid. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

There should be an attempt to reflect the actual economic conditions during the relevant time period when determining the pre-judgment interest for lost opportunity or time costs. The proposed average of the prime rate for the relevant period, compounded annually, will be used to determine the pre-judgment interest amount on the award of back pay. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

Pre-judgement interest was awarded in the interest of making the Complainant whole and replacing the lost opportunity costs or the investment value of the lost wages. Hanson v. Motel 6, MEOD Case No. 20182029.

810.6 Attorney's Fees, Costs

810.61 Generally

The "any significant issue" test enunciated in Hensley v. Echerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983) is the appropriate test under which to determine what attorney fees (and costs), if any, a prevailing complainant is entitled to under the ordinance. Vance v. Eastex Packaging, MEOC Case No. 20107 (Ex. Dec. 5/21/85).

Without an agency finding that a complainant's claim is "frivolous, unreasonable or without foundation," an employer is not entitled to compensation for attorney fees for any issue on which it may ultimately prevail. Laboratory Consulting, Inc. v. MEOC, et al., No. 85 CV 6300 (Dane County Cir. Ct., 8/20/86).

The Hearing Examiner after dismissing the complaint for the Complainant's failure to appear at the time of hearing, denied the Respondent's motion for costs and attorney's fees. The Hearing Examiner found that the ordinance makes no provision for such an award to a prevailing Respondent and that such an award would contravene the clear intent of the ordinance to encourage complainants to file complaints of discrimination. Rose v. Marquip, MEOC Case No. 21026 (Ex. Dec. 6/29/89).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Where Complainant failed to comply with the Hearing Examiner's order to submit to discovery and then failed to respond to the Hearing Examiner's Order to Show Cause why the complaint should not be dismissed, the complaint was dismissed with prejudice. However, the Hearing Examiner had no authority to grant Respondent's motion for request of attorney's fees. Harris v. Accent Service Company, MEOC Case No. 22576 (Ex. Dec. 8/24/98).

Complainant filed a charge against Respondent alleging that she was discriminated against in housing because of her sexual orientation. After Respondent was found liable she was ordered to pay Complainant's attorney's fees although they were considerably more than the actual damages received by the Complainant. The Commission reasoned that the standard for attorney's fees is not based upon the proportion of damages that is awarded, but whether the outcome of the case achieved the purpose for bringing the claim. Sprague v. Rowe & Hacklander-Ready, MEOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98).

Travel expenses for attorneys traveling to Madison, when necessary, will be part of an award of attorney's fees. No part of the ordinance makes it necessary to retain local counsel. A Minnesota lawyer's traveling expenses of mileage and hourly fees were included in an award of attorney's fees. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. on Attorney's Fees 6/1/01).

Upon a finding of discrimination, the Complainant, in order to be made whole, is entitled to the cost and expenses of bringing the action including a reasonable actual attorney's fee. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

After the Hearing Examiner entered a finding of discrimination in housing against the Respondent (no damages proven), the Complainant submitted a petition for costs and fees which the Hearing Examiner denied for lack of documentation and proof and the Complainant's pro se status. On appeal, the Commission upheld the Hearing Examiner's decision except the Commission ordered the Respondent to pay the Complainant $93.00 in costs, an amount which the Respondent had agreed to pay previously. Terry v. YWCA, MEOC Case No. 20051011 (Comm. Dec. 9/19/08; Ex. Dec. Costs & Fees 1/4/08; Ex. Dec. 10/8/07)

The cases of two Complainants alleging discrimination on the basis of race in the provision of a public place of accommodation or amusement were consolidated by the Hearing Examiner into a single case for hearing and related proceedings. Where hours expended were for the benefit of both Complainants, counsel has elected in order to preserve her overall hourly rate to charge her time at half her overall rate to each Complainant. The Respondent did not object to Complainants' petitions in this regard. The Hearing Examiner sees nothing wrong with respect to this process of accounting for time spent in connection with this matter. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

Complainants adequately demonstrate the reasonableness of the hourly attorney charge; there is nothing in the record to demonstrate that the amount is unreasonable or unjustified; and the Respondent has not challenged, at any stage, the petitions of the Complainants for their costs and fees including a reasonable attorney's fee. Given this failure on the part of the Respondent, the Hearing Examiner can find no reason why he should not accept as reasonable the hourly rate for Complainants' counsel as established in a previous Hearing Examiner's Order. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

The purpose of an attorney’s fee award is to provide an incentive for the private bar to assist in the enforcement of rights conferred by the Ordinance. Attorney’s fee awards are neither meant to be a windfall to the Complainant’s attorney nor punitive to the Respondent. Parties can choose to be represented and can choose by whom to be represented and the parties should understand the risks associated with taking a case to hearing, including the risk of being held responsible for attorney’s fees. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.62 Procedures Used in Determining Fees

Where the Complainant’s petition fails to demonstrate a reasonable hourly rate, it is up to the Hearing Examiner’s discretion to establish a reasonable rate for the purposes of calculating the lodestar. Comparison was made to attorney’s fees as established in prior cases by attorneys with similar experience levels to that of the Complainant’s. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.63 Who May Be Awarded Fees

810.64 Amount of Fees

810.641 Generally

On remand from a Court of Appeals decision for further determination of damages, the Hearing Examiner established the Complainant's costs and attorney fees at $50,511.49. This incorporated the previously awarded attorney fees and fees related to the appeals to Circuit Court and the Court of Appeals. The Commission amended the Hearing Examiner's Order for costs and attorney's fees to $57,964.01, adding the fees requested in the Complainant's petition of March 13, 1990, which had not previously been addressed by the Hearing Examiner. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

In a case where Respondent was found to have discriminated against Complainant on the basis of race in its refusal to hire, in regard to Complainant's Petition for Costs and Attorney's fees, the Examiner found that: 1) Complainant's attorney's hourly rate of $140.00 was presumed to be reasonable and the Respondent failed to rebut the presumption; 2) the Complainant's failure to prevail on two of three claims of discrimination did not require a reduction in attorney's fees because all claims were significantly related, factually and legally; and 3) the relatively modest amount of damages awarded to the Complainant did not warrant a reduction in her attorney's fees because she had met the objectives of her complaint. Complainant was awarded attorney fees of $7,124 and costs of $552.46. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

It is appropriate for the Hearing Examiner to grant supplemental attorney's fees requested for additional work performed subsequent to the issuance of the Examiner's decision since such an award is consistent with Commission policy and practice with regard to the costs and fees of prevailing Complainants and the Respondents raised no objection to the inclusion of additional fees. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

In a case where Respondent was found to have discriminated against Complainant by its refusal to rent Complainant a room, the Hearing Examiner awarded the Complainant $5,191.05 in costs and attorney's fees, over the Respondent's objections that the award of attorney's fees should be limited because the original recommended award was small, the case contained no significant or difficult issues, the Commission reduced the Hearing Examiner's recommended award, and the Respondent told the truth about his lack of recollection instead of lying. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

An employee who takes medical leave for conditions that are brought on or exacerbated by discriminatory or retaliatory conduct may seek damages, even if the leave was not sought for six months after the triggering discriminatory event. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The Hearing Examiner found that Respondent violated the Ordinance's prohibition against discriminating against the Complainant on the basis of his conviction record when it failed or refused to hire him for a sales position. As part of the Order, the Complainant was awarded his reasonable costs and fees. The Complainant's petition did not contain any duplicative or unreasonable charges. The Hearing Examiner awarded $7,606.52 in costs and fees. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).

810.642 Amount of Time Expended

The Order for attorney’s fees in this case was for those fees relating solely to the Complainant’s success on the discriminatory rescission of employment claim. Accounting provided by the Complainant for the purpose of determining the lodestar is insufficient to attempt a meaningful review of the work performed relating to the rescission claim only. A time entry for hours billed in the hearing of the matter as the entire amount of the time spent at hearing casts doubt as to whether all hours listed were related solely to the rescission claim. Obriecht v. Laserwords US, Inc., MEOD Case No. 20152151.

Travel time was expended regardless of the division of claims. The amount of travel time claimed cannot be affected by counsel’s geographic location, in that either party has the right to choose their representation, and a non-local attorney is still entitled to fees for reasonable travel time. Obriecht v. Laserwords US, Inc., MEOD Case No. 20152151.

The accounting provided by the Complainant’s attorney of number of hours expended for purposes of calculating the lodestar amount is fatally insufficient for a meaningful review of the work performed. Not all communication is compensable at an attorney’s hourly rate as activities that could or should be performed by administrative or clerical staff may not be charged at the attorney’s hourly rate. Parties cannot recover attorney’s fees or paralegals fees for tasks that could be delegated to a non-professional, whether or not the attorney has administrative or clerical staff. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

It is not appropriate for an attorney to charge a client or opposing counsel for the time it takes to educate oneself or bring themselves up to a professional level of competence. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.643 Hourly Rate

Where Complainant's attorney's hourly rate increased shortly after taking the case and then later increased towards the end of the case, the Hearing Examiner determined that it is reasonable for the attorney's fees to be calculated at the hourly rate where the vast majority of work was performed as long as the work done was necessary, reasonable and non-duplicative. Meyer v. Purlie's Cafe South, MEOC Case No.3282 (Ex. Dec. on attorney's fees Dec. 3/20/95).

Complainant alleged that the Respondent discriminated against him on the basis of his disability when it terminated his employment. The Respondent denied discriminating against the Complainant on the basis of his disability, and asserted, among other things, that the Complainant violated the Respondent's attendance policy. The Respondent did not appeal the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order of March 12, 2010 in which the Hearing Examiner directed the Complainant to file a petition for costs and fees including a reasonable attorney's fee. On April 5, 2010, the Complainant filed a petition for costs and fees and the Respondent did not object to the petition within 15 days. Accordingly, the Hearing Examiner granted the Complainant's petition for costs and fees, but did not award all of the attorney's fees requested by the Complainant. Since the Complainant's attorney did not sufficiently explain the variable rates at which his law firm charged the Complainant, the Hearing Examiner reduced the aforementioned rates pursuant to the usual and customary hourly rates employed by the attorney's firm in the past. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. on Attorney's Fees 5/10/10).

Proof of the elements of the lodestar rest with the Complainant. The Complainant did not provide evidence (i.e., evidence of awards made by other tribunals, affidavits of the hourly rates of other local attorneys, or evaluations of hourly rates or fees request by other area attorneys) to support the rate which he requested in his Petition. The contingency fee agreement signed by the Complainant appears not to establish a usual and customary rate for fees. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.644 Multipliers, "Lodestar" Enhancement

810.645 Partial Success

The lodestar amount will not be reduced based upon the success in demonstrating liability in four out of five bases claimed as the award of damages would not have changed whether the Complainant demonstrated discrimination on any or all of the basis claimed. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

810.646 Interest on Fee Award

810.7 Punitive Damages

After having been wrongfully terminated based upon sex and age discrimination, Complainant—who was singled out for termination after numerous employees violated loss prevention policies established by their employer—sought punitive damages. The MEOC Hearing Examiner concluded that while the Madison Equal Opportunities Ordinance contained provisions for awards including civil forfeitures, the Commission lacked authority to award punitive damages. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

820 Remedies in Particular Types of Cases

820.1 Housing and Public Accommodations

Two males who proved they were discriminated against on the basis of sex in their attempt to rent an apartment were each entitled to the difference in rent and utilities that they each would have paid from what they did pay and each received an additional award for inconvenience suffered as a result of the discrimination. Each also were entitled to their costs of administrative litigation. Bahr et al. v. Hinken, supra.

In a case where the Respondent was found to have discriminated against the Complainant on the basis of race and national origin, with regard to housing, the Complainant was awarded out of pocket expenses, damages for emotional distress, punitive damages and restitution of rent he paid in excess of the reasonable rental value of the premises (the Hearing Examiner concluded that the Respondent's actions so affected the atmosphere and living conditions in the Complainant's household that the rental value of the premises was diminished), as well as prejudgment interest and reasonable costs and attorney's fees. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

The Hearing Examiner determined that "Ladies' Night" promotions violate the ordinance's prohibition against discrimination on the basis of sex in the provision of a public place of accommodation or amusement. The Examiner found that the Respondent's offer to women of two drinks for the price of one, while men paid the full price, constituted payment of a higher price by men. The Examiner awarded the Complainant $50 for his emotional injury stemming from the act of discrimination. Wilker v. Bermuda's Night Club, MEOC Case No. 3221 (Ex. Dec. 7/10/89).

In a case where Respondent was found to have discriminated against complainant's child in regard to denial of admission to a place of public accommodation, Respondent was ordered to cease and desist from denying admission of otherwise eligible handicapped individuals to its facilities. The Complainant was awarded compensatory damages, attorney's fees and costs. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).

The Hearing Examiner determined that a bartender's calling a patron "white boy" and ordering him from the premises represented discrimination on the basis of race in provision of a public place of accommodation or amusement. The Hearing Examiner awarded the Complainant $1,000 in compensatory damages for embarrassment and humiliation along with his costs and attorney's fees. The Commission upheld the finding of discrimination but reduced the damage award to $750. The Commission found that the Complainant's return to the bar on several occasions showed that the lower amount was appropriate to the actual level of embarrassment suffered by the complainant. Meyer v. Purlie's Cafe South, MEOC Case No. 3282 (Comm. Dec. 10/5/94, Ex. Dec. 4/6/94, on attorney's fees: Ex. Dec. 3/20/95).

The Hearing Examiner determined that the Complainant had been discriminated against by the Respondent when the Respondent's manager failed or refused to offer him a room for the night at the Respondent's motel. The Respondent's manager did not recall the incident but the Complainant's testimony was fully corroborated by a companion. The Complainant was awarded $2,000 for emotional damages. The Commission affirmed the Hearing Examiner's determination of liability but reduced the damage award to $, finding that the record did not support the $2,000 recommended by the Hearing Examiner. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

Respondent was charged with allegedly discriminating against the Complainant in a public place of accommodation because of Complainant's race. Prior to any evidence being presented, the Respondent conceded a plea of no contest and Complainant accepted Respondent's concession. The Hearing Examiner accepted Respondent's concession only after receiving reassurances that no monetary relief was sought and that the Complainant did not waive his rights to pursue the claim in other forums.

As a result, Respondent was found to have discriminated against Complainant and was ordered to cease and desist from discriminating against the Complainant in Respondent's place of accommodation. Williams v. China House Restaurant, MEOC Case No. 3067 (Ex. Dec. 11/26/80).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12)

The Complainant alleged that the Respondent discriminated against him on the basis of his conviction record when it rejected his application for Section 8 housing. The Respondent asserted that it was the Complainant's credit history and not his conviction record that prompted the denial of his application. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent knew about the Complainant's conviction record and that it acted upon that knowledge, at least in part, in denying his application for housing. As a result, the Hearing Examiner ordered the Respondent to pay the Complainant's emotional distress damages totaling $10,000 and to pay his costs and attorney's fees. Midstokke v. Southridge Village Apartments, MEOC Case No. 20071119 (Ex. Dec. 02/21/12, aff'd Comm. Dec. 08/13/12).

The Complainant having charged Respondent with denying her housing on the basis of familial status in violation of the Madison Equal Opportunities Ordinance Sec. 39.03(4), Respondent filed a Motion to Dismiss the complaint for failure to state a claim upon which relief could be granted, asserting that he was prohibited from renting to a family of four a unit with a square footage well under the minimum prescribed by M.G.O. Sec. 27.06(2)(b)(1).

The Respondent can utilize the Occupancy Code to either defend against the claim of discrimination or limit potential damages in the same manner as an "after acquired evidence" defense would dictate. Following the general principle of McKennon v. Nashville Banner Publishing Co., 115. S.Ct. 879 (1995), relief, if warranted, could not include an order for possession of the property or a similarly situated apartment, and damages would be limited to the period of time prior to the Respondent’s becoming aware of the intersession of the occupancy limits. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

While the testimony of the Complainant in this case was fairly clear on her economic loss, the damages amount proposed by her attorney muddied the waters. Because it would be inappropriate to infer that any damages were requested beyond the testimony given, the Hearing Examiner finds an award of $3,000.00 for economic loss and compensable emotional injuries to be appropriate. Pollard v. Rohy, LLC, MEOD Case No. 20151168.

820.2 Particular Employment Actions

820.21 Refusal to Hire

A complainant who showed that her previous employer had failed to rehire her as a nursing assistant because of a disability was entitled to the following: (1) lost wages and interest up to the time of her reinstatement (less amounts she could have earned with due diligence); (2) sick, holiday and vacation time lost; (3) retroactive seniority; and (4) all other rights, privileges and benefits she would have had absent the discrimination. Steinbring v. Oakwood Lutheran Home, supra.

As part of her remedy, a complainant in a discriminatory refusal to hire case was awarded the raise and any experience or longevity pay she would have receive had she been hired; . . . and her back pay should not be reduced by the interim earnings she received from a part-time job where the evidence showed she could have performed both jobs simultaneously. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/2/78).

An employer found to have discriminated against applicants in its hiring of drivers was properly required to submit for Commission approval a proposed procedure for interviewing and testing applicants. Matlack v. Badger Produce, MEOC Case No. 2394 (Comm. Dec. 8/9/79, Ex. Dec. 5/11/79).

It is the Complainant's burden to establish the period for which he might be due back wages. In this regard, the Complainant has failed.

820.22 Termination of Employment

A complainant who proved he was discriminatorily discharged on the basis of race was entitled to back pay, interest, costs and attorney fees. Amounts received by the complainant as unemployment compensation and public assistance did not reduce the total amount of back pay that the employer had to pay, but the unemployment compensation fund and the public assistance funds were reimbursed out of the total back pay and the complainant received the remainder. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

A Complainant discharged due to her age was entitled to back pay, interest, damages for emotional distress, costs and a reasonable attorney's fee. Neither reinstatement nor front pay was an appropriate remedy. Some amounts, such as unemployment compensation, might have to be repaid to the State. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses, as well as reasonable attorney's fees and costs. It also includes damages to compensate the Complainant for her noneconomic damages, or emotional distress, humiliation, and embarrassment from the impact of discrimination, in this case separate awards for sexual harassment, and retaliation. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

A "make-whole" remedy includes a calculation of economic loss experienced by the Complainant, such as back pay and other out-of-pocket losses.

820.23 Pregnancy Discrimination

820.24 Suspension

820.9 Miscellaneous

830 Duty to Mitigate Damages

On remand from a Court of Appeals ruling affirming the decision of the Circuit Court upholding the Commission's finding that Respondent's termination of Complainant was by reason of his race, the Examiner set the amount of back pay at $43,442.50, prejudgment interest at $7,477.76, and established the rate of front-pay at $28,750 per year. In addition, the Examiner awarded reinstatement to the next available chef's position. In reaching his decision, the Examiner found that the Respondents had not made a good faith offer of re-employment that would place the Complainant in at least as good a position as he would have been absent the act of discrimination. The Examiner also rejected the Respondents' contention that the Complainant had failed to mitigate his damages by moving from position to position and by returning to Detroit, his hometown, to seek other employment. The Commission affirmed the Hearing Examiner's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Searching for jobs immediately upon being terminated is a clear sign of mitigating damages. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

One Complainant has a continuing duty to mitigate damages following an act of discrimination. Efforts to find and secure employment are an adequate mitigation of damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Hearing Examiner rejected the Respondent's argument that the Complainant failed to mitigate his damages following his unlawful discharge in retaliation for complaining about his supervisor's use of racist, sexist, and homophobic statements. The Hearing Examiner concluded that the Complainant's efforts to replace the income lost because of the discharge were reasonable when such efforts included applying for numerous employment positions, starting a consulting business and pursuing a Master's degree. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

840 Enforcement of Orders and Settlement Agreements

The ordinance authorization to the Commission to enforce its orders is constitutional. Community Action Comm. v. MEOC (Sanchez), No. 161-291 (Dane County Cir. Ct., 8/31/79); . . . and the Commission may seek a forfeiture against the party failing to comply with its orders. City of Madison v. Llama Imports (Laitsch), No. 82-CV-3782 (Dane County Cir. Ct., 9/23/83); State ex. rel. Badger Produce v. MEOC (Matlack), supra. Note: The Ordinance makes failure to comply with a lawful order of the Commission a separate violation subjecting the violator to forfeitures of between $100 and $500 per day.

By failing to seek judicial review, an employer is precluded from challenging the Commission's finding and conclusions in an action brought by the Commission to enforce its order. Community Action Comm. v. MEOC (Sanchez), supra.

Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).

After the parties reached an apparent settlement based upon materials submitted by both parties, the Complainant should not be permitted to seek additional relief not included in the agreement reached by the parties, especially where the Complainant has received a substantial monetary payment. The Complainant was free to file a new complaint for alleged violations not covered by the terms of the apparent settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).

The Hearing Examiner exercised his discretion to dismiss a complaint where there was an apparent settlement between the parties that the Complainant refused to honor after receiving a substantial monetary payment. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).

Where the Complainant refused to execute the settlement documents and withdrawal form after the Respondent fully complied with the terms of a settlement apparently reached by the parties, the Respondent’s Motion to Dismiss was the proper method to enforce the terms of the agreement, though not signed by the Complainant. It was within the powers of the Hearing Examiner to determine that there had been substantial compliance with the terms of the settlement and that the Complaint should not be permitted to seek further claims not contemplated by the settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).

890 Miscellaneous

The Commission affirmed the Hearing Examiner's finding of liability, it remanded the claim to the Hearing Examiner to assess the appropriateness of pre-judgement interest, the level of damages for emotional distress and the applicability of front pay and the Complainant's efforts at mitigation of her damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

800 Remedies for Discrimination

801 Burden of Proof

805 Right to Liability Finding When No Remediable Harm

810 Remedies Which May be Provided

810.1 Back Pay

810.11 Entitlement to Back Pay, Generally

810.12 Computation of Amount, Generally

810.13 Offsets from Back Pay

810.14 Events Limiting Back Pay Liability

810.141 Unconditional Offer of Reinstatement

810.142 Accepting Comparable Job at Same or Higher Pay

810.143 Quitting or Being Fired From Comparable Job

810.144 Unavailability for Work

810.145 Showing that Job Would Have Ended Anyway

810.146 After-Acquired Evidence

810.15 Limitation to Two Years Prior to Filing of Complaint

810.16 Respondent's Obligation to Pay, Exceptions and Limitations

810.19 Miscellaneous

810.2 Front Pay

810.3 Reinstatement; Hire

810.4 Other Remedial Orders

810.41 Remedies for Insurance Benefit Denial

810.42 Remedies for Loss of Seniority

810.43 Remedies for Loss of Fringe Benefits

810.44 Remedies for Emotional Harm

810.45 Miscellaneous Remedial Orders

810.451 Clearing File, Neutral References

810.452 Posting Order, Notices

810.453 Counseling or Training

810.459 Miscellaneous

810.5 Interest on Award

810.6 Attorney's Fees, Costs

810.61 Generally

810.62 Procedures Used in Determining Fees

810.63 Who May Be Awarded Fees

810.64 Amount of Fees

810.641 Generally

810.642 Amount of Time Expended

810.643 Hourly Rate

810.644 Multipliers, "Lodestar" Enhancement

810.645 Partial Success

810.646 Interest on Fee Award

810.7 Punitive Damages

820 Remedies in Particular Types of Cases

820.1 Housing and Public Accommodations

820.2 Particular Employment Actions

820.21 Refusal to Hire

820.22 Termination of Employment

820.23 Pregnancy Discrimination

820.24 Suspension

820.9 Miscellaneous

830 Duty to Mitigate Damages

840 Enforcement of Orders and Settlement Agreements

890 Miscellaneous

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