ER Decision Digest - 836.45 Reduction due to partial success

A partial success reduction is not usually applied in cases where the Complainant contends that he or she was discriminated against on multiple bases (in this case, creed, sexual orientation, and conviction record) but only establishes discrimination on a single basis (conviction record). The Complainant’s various claims involved a similar core of facts, and litigating alternate bases of discrimination did not add a significant amount of time to the preparation of the case. Smith v. State of Wis. Dep't of Workforce Devel. (LIRC, 01/04/19).

LIRC does not generally order a fee reduction based upon the time spent filing unsuccessful motions. Smith v. State of Wis. Dep't of Workforce Devel. (LIRC, 01/04/19).

No partial success reduction was appropriate where the Complainant prevailed on the merits of his claim that he was unlawfully discharged based upon his conviction record, even though he was not awarded any back pay or reinstatement. The lack of a remedy does not preclude an award of attorney’s fees. An employee may file a claim simply to vindicate his or her rights under the statute, even if there is no chance of a monetary recovery. Ionetz v. Dolgencorp, LLC (LIRC, 08/6/15), rev’d on other grounds sub nom. Ionetz and Dolgen Corp., LLC v. LIRC (Jefferson Co. Cir. Ct. 08/25/16), aff’d (Ct. App. Dist. IV, 07/14/17, summary decision).

The Complainant prevailed in her claim of sexual harassment, but failed in her claim of discharge for opposing the harassment. Because the two claims form a common core of facts, the attorney’s time would not have been significantly shortened if it were spent litigating only the successful claim. Nevertheless, a 33% reduction in attorney’s fees is appropriate when the issue on which the Complainant did not succeed was the one that would have provided a back pay remedy for her. There is no precedent, however, for reducing fees by comparing the Complainant’s fees to the Respondent’s, or by comparing the number of witnesses each side called at hearing.Charles v. Welsing & Assoc. (LIRC, 02/28/14).

Because the Complainant did not prove termination due to sexual harassment or opposition to discrimination, remedy is limited to a cease-and-desist order and attorney’s fees. The Complainant’s attorney’s fees, based on her brief to the Commission, were reduced in proportion to the number of pages in the brief devoted to the issue on which the Complainant prevailed. Cooper v. Options for Community Growth, Inc. (LIRC, 07/29/13).

No partial success reduction is appropriate where the Complainant prevailed on both issues (sexual harassment and constructive discharge) and obtained significant pecuniary benefits (10 months back pay) as a result. Olson v. Whatever Bar (LIRC, 03/12/13).

There is no formula for deciding what portion of requested attorney’s fees should be awarded where the Complainant has prevailed on only some of his claims. In this case, the Administrative Law Judge reduced the Complainant’s requested attorney’s fees by sixty percent of the total amount of fees incurred in order to reflect the Complainant’s partial success. The Respondent made no compelling argument for an additional reduction. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

In determining a fee award, the most critical factor is the degree of success obtained. There is no precise rule or formula for making this determination. An attempt may be made to identify specific hours that should be eliminated, or the entire award may simply be reduced to account for the limited success. The Labor and Industry Review Commission has generally adopted the approach of applying an across-the-board percentage reduction. Even where there is a common core of facts and much of counsel’s time is devoted generally to the litigation as a whole, this does not mean that no reduction is appropriate. In this case, the most significant issue presented in the case, and the one which would have entailed the most substantial remedy, was the constructive discharge issue, upon which the Complainant did not prevail. The Complainant obtained no substantive relief whatever for prevailing only on the issue of sexual harassment. A 33% reduction in the attorney’s fees award was, therefore, appropriate in this case. Harper v. Menard, Inc. (LIRC, 09/18/09).

Since the Complainant did not prevail on each issue, there should be a reduction in the attorney’s fees and costs awarded. However, since the issue on which the Complainant prevailed was by far the most significant issue and the one which involved the most substantial and meaningful remedy, this reduction should only be twenty percent in this case. Cleary v. Federal Express (LIRC, 07/30/03); aff’d sub nom. Cleary v. LIRC (Waukesha Co. Cir. Ct., 03/18/04).

Where the Complainant did not prevail on the most significant aspect of her claim, she has failed to achieve “significant success” in the case. Accordingly, she should not receive fully compensatory attorney’s fees. Foust v. City of Oshkosh Police Dep't (LIRC, 04/09/98).

In trying to decide on an appropriate reduction in attorney’s fees where the Complainant prevailed on only some allegations of the complaint, it is worthwhile to consider the question of how a case would probably have been litigated and how much time would have been spent if the Complainant had actually set out to prove only the allegations upon which she prevailed. Tobias v. Jim Walter Color Separations (LIRC, 08/13/97), rev’d on other grounds sub nom. Jim Walter Color Separations v. LIRC (Rock Co. Cir. Ct., 06/19/98).

A reduced fee award is appropriate if the relief obtained by the Complainant, however significant, is limited in comparison to the scope of the litigation as a whole. Roden v. Federal Express (LIRC, 06/30/93).

Where the Complainant successfully proved that the Respondent violated the Wisconsin Open Housing Act by causing to be published the advertisement in question, the Complainant's success was not partial even though the Commission found only that the advertisement stated or indicated discrimination based on lawful source of income, rather than on both lawful source of income and marital status as alleged in the complaint. MMFHC v. South Side Spirit (LIRC, 08/26/92).

The Complainant was entitled to be paid interest on attorney’s fees awarded by a federal court on May 31, 1984 through the date of payment on August 25, 1986. Olson v. Phillips Plating (LIRC, 02/11/92).

It is appropriate to reduce the attorney's fee award where the Complainant’s success has been only limited. In determining the appropriate reduction, the Department may either attempt to identify specific hours that should be eliminated or simply reduce the award to account for the limited success. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

LIRC's reversal of one portion of the Administrative Law Judge’s decision which had found in favor of the Complainant did not warrant a reduction in attorney's fees. Savage v. Stroh Container (LIRC, 09/20/89).

A Complainant who proved that he was not promoted in part because of his race, but who could not refute the Respondent's proof that his work record would have prevented his promotion in any case, prevailed on a significant issue and thus may be awarded attorneys fees, although a reduction in the fee award is appropriate due to the partial success the Complainant achieved. Jones v. Dy-Dee Wash (LIRC, 11/04/88).

A reduction of the fee award by 20 percent reflected a proper balancing of the fact of the Complainant's partial success where she prevailed on the essential and difficult sex harassment issue which had been the primary focus through the case, but failed to prevail on a layoff wage claim. Schwantes v. Orbit Resort (LIRC, 05/22/86).

Where the Complainant paid her legal bills as they were incurred over the course of a case taking many years to litigate, in the eventual award to her of an amount for those attorney’s fees, interest on the amount at seven percent per annum compounded quarterly should be added, to compensate the Complainant for the fact that she lost use of the money paid in legal fees through the pendency of the case. Watkins v. Milwaukee County (LIRC, 07/03/85).