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836.12 Prevailing party; partial success

[Ed. note: This topic collects decisions concerning the general right of Complainants to receive an award of attorney’s fees and costs in the case of partial success. Decisions on the computation of awards in partial success are collected in sec. 836.45]

The fact that the Complainant succeeded in getting an ALJ’s dismissal order overturned does not entitle him to attorney’s fees. He must be the prevailing party by proving discrimination in order to be entitled to attorney’s fees. Owens v. SBC Commc'n (LIRC, 08/22/14).

The Complainant succeeded in demonstrating that she was unlawfully discharged because of an arrest. She did not establish that she had been discriminated against on the basis of her race, as she had alleged in her complaint. The fact that she did not establish that she was discriminated against on multiple bases does not weaken the success of her case and has no effect on her entitlement to a remedy. Where a Complainant has obtained excellent results, the fee award should not be reduced simply because the Complainant failed to prevail on every contention raised in the complaint. Nunn v. Dollar Gen. (LIRC, 03/14/08).

While the addition of several potential bases for discrimination does not generally add much time to the overall litigation, in those cases when time spent litigating an issue of an additional basis is quantifiable, a reduction of attorney’s fees may be appropriate. Nunn v. Dollar Gen. (LIRC, 03/14/08).

A party who proves discrimination on any issue is a prevailing party entitled to costs and attorney’s fees. It is not necessary to establish that the actual relief ordered materially altered the legal relationship between the parties by modifying the Respondent’s behavior in any way that directly benefits the Complainant. Fields v. Cardinal TG Co. (LIRC, 02/16/01).

The Court of Appeals has adopted the Supreme Court's approach in Hensley v. Eckerhart, 461 U.S. 424 (1983), which provides that a party may not be entitled to attorney’s fees where only partial success is obtained. In Hensley, the Court indicated that it should focus on the “significance of the overall relief obtained by the Plaintiff in relation to the hours reasonably expended on the litigation. Where Plaintiff has obtained excellent results the fee award should not be reduced simply because the Plaintiff failed to prevail on every contention raised in the lawsuit.” Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).