STATE OF WISCONSIN LABOR AND INDUSTRY REVIEW COMMISSION MISCHERAL S. BOND 2822 North 1st Street, #208 Milwaukee, Wisconsin 53212 PAIRRESH S. BOND 2822 North 1st Street, #208 Milwaukee, Wisconsin 53212 Complainants vs. MICHAEL'S FAMILY RESTAURANT 2220 West Wisconsin Avenue Milwaukee, Wisconsin 53233 Respondent ORDER MEMORANDUM OPINION ERD Case #9150755 ERD Case #9151204 An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 3, 1993. Respondent filed a timely petition for review by the commission and both parties submitted written arguments. Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following: ORDER The decision of the Administrative Law Judge (copy attached) is modified as follows: 1. Paragraphs 2 and 3 of the ORDER are deleted. 2. Paragraph 4 of the ORDER is deleted and the following paragraph is substituted therefor: "2.That the respondent shall pay the complainants' reasonable attorney's fees in the amount of $5,110.85 and costs in the amount of $435.64, for a total of $5,546.49 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $5,546.49 shall be made payable jointly to complainant Mischeral S. Bond and to Attorney Katherine Charlton and delivered to Ms. Charlton." 3. Paragraph 5 of the Order is deleted and the following paragraph is substituted therefor:
"3.Within 30 days of the expiration of time in which an appeal may be taken herein, respondent shall submit a compliance report detailing the specific action taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708." As modified, the decision of the administrative law judge shall stand as the FINAL ORDER herein. Dated and mailed March 30, 1994 164
Pamela I. Anderson, Chairman
Richard T. Kreul, Commissioner
James R. Meier, Commissioner MEMORANDUM OPINION The respondent, a restaurant, is a place of public accommodation within the meaning of Section 101.22 (1m)(p), Stats. On March 19, 1991 the complainants, a mother and her six-year old daughter, who are black, were dining at the respondent's establishment. During the course of their meal the complainants heard the restaurant owner engage in loud discussion with certain restaurant patrons, in which the restaurant owner repeatedly used the term "nigger." Although the remarks were not personally directed at the complainants, they pertained to the respondent's negative perceptions of black people in general, and were made loudly enough for the complainants to hear plainly. Upon being placed on notice by one of the complainants that the complainants found these remarks objectionable, the respondent informed the complainants that if they did not like it they could leave. In essence, although the complainants were invited by the respondent to patronize the restaurant, a place of public accommodation, their use of the establishment was made contingent upon their willingness to suffer the offensive comments. Under the circumstances, the commission concludes that the respondent subjected the complainants to a racially hostile environment, thereby depriving them of the "full and fair enjoyment" of a place of public accommodation, in violation of Section 101.22 (9)(a)1, Stats. Both parties have briefed the issues and the respondent has raised a number of arguments in support of reversal. First, the respondent argues that the testimony of the six-year old child should have been stricken from the record by the administrative law judge because that testimony was coached and rehearsed. Upon review of the record, the commission concludes that there is sufficient evidence to support the complainants' version of events without relying upon the child's testimony. Therefore, the commission need not decide whether the administrative law judge should have stricken the child's testimony from the record. The respondent also makes the argument that, even if the complainants' version of events is accepted, the complainants could not be victims of harassment since the allegedly offensive remarks were not addressed to them personally. If this were a case in which the complainants simply overheard a private conversation involving other restaurant patrons, the commission might be prone to agree. However, the fact that racial epithets were not personally directed at the complainants is not the determinative factor in a hostile environment case. See Walker v. Ford Motor Co., 684 F.2d 1355, 1359, n.2 (11th Cir. 1982). The important factors here, as noted above, are that the offensive remarks were made by the restaurant owner herself, that they were made loudly enough for the complainants to hear while seated several tables
away, that they pertained to the respondent's negative perceptions of black people in general and that, after one of the complainants voiced her objections, the respondent told her that if she did not like it she could leave. The commission believes that these factors outweigh the fact that the remarks were not personally addressed at the complainants. The respondent also argues, without admitting that it used the word "nigger," that it could not have created a hostile environment by using the word, since that term is commonly used among black people and therefore, is not capable of causing offense when used by white people. The commission disagrees. The term "nigger" is commonly understood to be racially derogatory, 1 particularly when used by white people in reference to black people. The word is intimidating by its nature and shows an intent to discriminate on the basis of race. Jones v. City of Boston, 738 F. Supp. 604, 605 (D. Mass. 1990). Further, the commission notes that a similar argument was recently considered and rejected by the Court of Appeals for the Seventh Circuit, which upheld a lower court's ruling that a supervisor's use of the word "nigger" contributed to a racially hostile working environment and that use of the term could not be excused on the ground that black employes sometimes used it themselves. Rodgers v. Western-Southern-Life Ins. Co., 792 F. Supp. 628 (E.D. Wis. 1992), aff'd, Case No. 93-1125, 1266 (7th Cir. 1993). The respondent's next argument is that the complainant could not have been offended by the term "nigger" because she responded by calling the respondent a "honky bitch." Although at the hearing the respondent contended that the complainant made such remarks, the administrative law judge did not find this to be the case. Upon review of the record, the commission agrees that the more credible witness testimony suggests that the complainant did not make the alleged racial remarks. The commission believes, however, that even if the complainant had made the remarks in question, her actions in doing so would not serve to neutralize the respondent's racially derogatory remarks or to render them inoffensive to the complainants, just as an individual who is attacked by another does not cease to have been the victim of an attack by virtue of his punching back. Finally, the respondent suggests that, even if it had made the remarks in question, its conduct is protected speech under the First Amendment. The commission is unaware of any authority which
supports the respondent's argument. The respondent has not developed its argument fully, and the few sources which it has cited are unpersuasive. For example, the respondent cites State v. Mitchell, 169 Wis. 2d 153 (1992), for the proposition that the First Amendment protects not only free speech, but thought as well. In Mitchell, the Wisconsin Supreme Court held that the state's hate crimes statute, which provided for enhanced criminal penalties for crimes in which the victim is selected based on race, sex, or other prohibited basis, violated the First Amendment by chilling free speech. However, Mitchell, which was subsequently overturned by the United States Supreme Court, at 113 S.Ct. 2194 (1993), does not support the respondent's position. In fact, the Wisconsin Supreme Court took great pains in the Mitchell decision to distinguish the hate crimes law from antidiscrimination laws, noting that slight incursions into free speech are permissible where the overarching concern is protection from objective acts of bigotry in the employment marketplace and the adverse consequences of such acts on the civil rights of minorities. If anything, Mitchell lends support to the argument that the application of the public accommodations law in this case does not violate rights to free speech. The right to free speech is not absolute and the courts have consistently found that harassing speech in the work place is not protected by the First Amendment. See, Robinson v. Jacksonville Shipyards, 57 FEP Cases 971 (D.C. Fla. 1991)(verbal harassment not protected speech because it acts as discriminatory conduct in the form of a hostile work environment); Jew v. University of Iowa, 647 FEP Cases 659 (S.D. Iowa 1990)(rights of free speech do not immunize university from Title VII liability for a hostile work environment generated by sexual-based slander). Similarly, the state's interest in providing nondiscriminatory public accommodations may justify slight incursions into free speech. See, Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244 (1984). In Roberts, the plaintiffs alleged that the exclusion of women from full membership in the Jaycees violated the Minnesota Human Rights Act (an act similar to the Wisconsin public accommodations law), while the respondent argued that application of the act in its case would violate male members' rights of free speech and association. The Supreme Court rejected the respondent's position. The Court noted that the Minnesota Act does not aim at the suppression of speech and was not being applied for the purpose of hampering the defendant's ability to express its views. Rather, the Act reflected the state's strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services, a goal unrelated to the suppression of expression, and one which plainly serves compelling state interests "of the highest order." Id. at 623-624. Like the statute at issue in Roberts, the Wisconsin public accommodations law reflects our state's commitment to
eliminating discrimination and to assuring its citizens equal access to publicly available goods and services and serves a compelling state interest. The commission is satisfied that the application of the law in this case is not violative of the respondent's First Amendment rights to free expression. As an additional matter, the respondent contends that, because it raised the First Amendment issue at the hearing, the administrative law judge was obligated to address that issue in her opinion and, because she did not, the matter should be remanded to the administrative law judge in order for her to do so. The respondent has not explained how it was prejudiced by the administrative law judge's failure to specifically comment on its First Amendment argument and the commission does not believe that any prejudice has occurred as a result. The commission interprets the administrative law judge's failure to refer to the respondent's argument in her decision as an indication that she did not find it persuasive. Further, contrary to the respondent's assertions, it is not the administrative law judge's duty to comment on all cited authority An agency need not provide an elaborate opinion, so long as its findings of fact and conclusions of law are specific enough to inform the parties and the courts on appeal of the basis of the decision. The burden would simply be too onerous if an agency would be required to substantiate its reasons for not adopting all alternatives urged on it. Wisconsin Environmental Decade v. Public Service Comm., 98 Wis. 2d 682, 701-702, 298 N.W.2d 205 (Wis. App. 1980). In the instant case, the administrative law judge has set forth findings of fact and conclusions of law and has clearly laid out the reasoning behind her decision. She is not required to comment on all case authority cited by the respondent or to substantiate her reasons for not adopting each legal theory posited by the respondent. Finally, since the commission has considered and rejected the respondent's argument, the respondent's request for a remand is rendered wholly unnecessary. Out-of-pocket expenses: The administrative law judge ordered the respondent to compensate the complainant in the amount of $15.34, an amount representing the cost of the complainants' meals and an accompanying "check-stop" fee, as well as for the cost of two counseling sessions attended by the child. Section 101.22 (10)(a)4 provides that, if the hearing examiner finds by a fair preponderance of the evidence that the respondent has violated sub. (9), the examiner shall order "such actions by the respondent as will effectuate the purpose of sub. (9) and this subsection." While the commission agrees that this language authorizes the administrative law judge to award out-of-pocket expenses, the commission respectfully disagrees with the administrative law judge's decision to award such expenses in this case.
"Out-of-pocket expenses" are amounts which are actually spent by the injured party as a necessary consequence of the prohibited discrimination and are in the nature of expenses of mitigation. See, Metropolitan Milwaukee Fair Housing Council v. Lawrence Goetsch (LIRC, December 6, 1991.) For example, in Lashay v. Walsh (LIRC, April 26, 1984), the commission affirmed an order for payment of specific amounts found to have been expended by a victim of housing discrimination on replacement housing, moving expenses, and transportation. In this case, the cost of the complainants' meals cannot be considered an out-of-pocket expense, within the generally accepted meaning of the term. The complainants did not incur the cost of the meals as a consequence of the discrimination. To the contrary, prior to the discriminatory incident the complainants ordered and ate a portion of the meals. After the offensive behavior occurred the complainants made the decision to leave the restaurant without paying for the meals, although they could have elected to stay and complete their meals or to take the remainder home with them. Thus, the cost of the meals was simply not an expense incurred in mitigation of the harm suffered. The commission also believes that granting the complainants reimbursement for the cost of the meals encourages the notion of "self help" for those who believe they have suffered a legal wrong. The complainants' actions in leaving the restaurant without paying their bill cannot be condoned, regardless of the discriminatory behavior that prompted them to do so. For these reasons, the commission declines to order reimbursement of the cost of the complainants' meals. Similarly, the commission disagrees with that portion of the administrative law judge's order which requires the respondent to reimburse the complainants for the check-stop fee. The connection between the complainant's decision to stop payment on the check and the respondent's discriminatory behavior is highly tenuous, and beyond the purview of what is generally understood as an "out-of- pocket expense." The complainant did not incur the expense of the check-stop fee as a consequence of the respondent's discrimination, but as a result of her own indecision as to whether she should pay the restaurant bill. The commission, therefore, has modified the administrative law judge's order to disallow reimbursement for the cost of the meals and the stop-payment fee. The final out-of-pocket expense awarded by the administrative law judge is the cost of two counseling sessions which the complainant's daughter attended. The commission does not determine whether the counseling sessions fall within the purview of "out-of- pocket" expenses, but disagrees with the administrative law judge's decision to grant reimbursement for this item on the grounds that the record is devoid of any evidence in substantiation of the expense. It is the complainants' obligation to establish their
damages. Yet, the only evidence in the record regarding the two counseling sessions is the complainant's own testimony that her daughter suffered severe emotional harm as a result of her exposure to the respondent's racial epithets and that she, therefore, took the child to see a social worker at the Milwaukee Medical Complex Children and Adolescent Center. The complainants presented no expert testimony establishing the need for the counseling. Further, the complainants presented no bills for these sessions, indicating only that they cost "big dollars." The commission takes the view that the complainants, who were represented by counsel throughout these proceedings, and who knew that they would be demanding the cost of the counseling sessions, should have been prepared to present some competent- evidence establishing the damages claimed. Because the commission is unwilling to require the respondent to reimburse the complainants for the cost of undocumented and unsubstantiated expenses, the commission has modified the administrative law judge's order to remove the cost of the counseling sessions. Attorney's fees: The administrative law judge properly ordered the respondent to pay the complainants' reasonable attorney's fees and costs associated with pursuing this matter. The administrative law judge required that the parties attempt to arrive at a stipulation with respect to these items. However, the file indicates that, after an exchange of correspondence, the parties were unable to arrive at any accord with respect to the fees and costs. Although the respondent now argues that no attorney fees were ordered by the administrative law judge and that, therefore, attorney fees must be considered denied, the administrative law judge's decision quite explicitly provides for attorney's fees and costs. Therefore, the only question before the commission is that of the proper amount to be awarded. An attorney fee award should be based upon a "lodestars" figure obtained by multiplying the number of hours reasonably expended on the matter by a reasonable hourly rate. The complainants' attorney requests $7,892.25 in attorney fees. Three attorneys and two law clerks were involved in the matter and the fee request breaks down in the following manner:
Hours Rate Amount Attorney Shneidman 1.10 $ 175 $ 192.50 Attorney Quartaro 38.60 $ 110 $ 4,246.00 Attorney Charlton .60 $ 90 $ 54.00 Attorney Charlton 5.80 $ 145 $ 841.00 Law clerk Meunier 30.25 $ 50 $ 1,512.50 Law clerk Grothwal 23.25 $ 45 $ 1.046.25
A reasonable attorney fee is to be calculated according to the prevailing market rates in the relevant community and the burden is on the fee applicant to establish that the requested rates are in line with those prevailing in the community for similar services for lawyers of comparable skill, experience and reputation. Blum v. Stenson, 45 U.S. 886, 34 FEP Cases 417 (1984). In the affidavit in support of attorney fees the complainants' attorney states, in part, that she has more than eleven years experience in private practice with an emphasis in civil rights litigation, that she is a member in good standing of the Wisconsin Bar, that she is admitted to practice in Wisconsin federal courts and before the Seventh Circuit, and that she has practiced in southeastern Wisconsin since 1983 and is familiar with the usual and customary rates charged by attorneys. She contends that her own billing rate of $145.00 per hour is appropriate and that the billing rates for the other two attorneys involved are appropriate based upon their years of experience. The complainants' attorney also indicates that the firm's usual and customary rate for law clerks is $45 per hour. Although the commission would prefer to see affidavits from other attorneys in the community establishing that the rates requested are in line with the prevailing market rate, the commission does not find that the rates requested by the complainants' attorneys are unreasonable. While the respondent suggests that the complainants' counsel should be treated as public defenders and, therefore, compensated at a rate of $40-50 per hour, the commission rejects this argument as illogical and ill-conceived. The respondent has made no credible showing that the hourly rates requested by the complainants' attorneys are outside of the prevailing rates in the Milwaukee community for similarly-qualified civil rights attorneys. The commission will not disturb the hourly rates requested in the fee application, but does adjust the rates requested for services performed by law clerk Meunier from $50 per hour to $45 per hour, in keeping with the fee applicant's statement that the law firm's going rate for law clerks is $45 per hour. The fee applicant also bears the burden of documenting the number of hours expended and should identify the general subject matter of time expenditures, as hours not reasonably expended may be excluded. Hensley v. Eckerhardt, 461 U.S. 424, 31 FEP Cases 1169 (1983). Upon review of the fee application, the commission believes that the number of hours expended on this matter by the complainants' attorneys is excessive. For instance, the fee applicant has requested reimbursement for approximately 33 hours spent researching and drafting a post-hearing brief to the administrative law judge. Subsequently, she requests reimbursement for another 23.25 hours spent researching and drafting the reply brief to the commission, although the brief to the commission,
which is ten pages in length, covers much of the same territory as the complainants' post-hearing brief. In the commission's estimation, the brief to the commission did not reflect an additional 23 or more hours of work, nor did the original brief require 33 hours to prepare. The commission also notes numerous instances in which multiple activities are contained in a single entry, as well as numerous entries for "research" or "telephone conference with client" which do not identify the subject matter of the research or conference. Where the documentation of hours is inadequate, the fee award may be reduced accordingly. Id. at 433. Overly general listed activities have been disallowed because the court has no means of evaluating the reasonableness of the activities. Daniels v. Pipefitters' Assn., 53 FEP Cases 1677 (N.D. Ill. 1990). Further, where activities are grouped, time should be appropriately apportioned. Otherwise, the court is left with the choice of estimating a portion of the time for a particular activity, or excluding the entire entry. Claus by Claus v. Goshert, 657 F. Supp. 237 (N.D. Ind. 1987). As noted, the commission believes that the expenditure of time for some of the activities contained in the fee statement appears, on its face, to be excessive. However, because the fee applicant has not adequately documented her time expenditures, the commission is unable to assess the reasonableness of each expenditure and, consequently, cannot reduce the attorney's fee award based upon a specific analysis of the reasonableness of each item contained therein. Further, the complainants' attorney has not identified which attorney or law clerk performed what activity, rendering it impossible to reduce individual time expenditures based on specific hourly rates. Thus, the commission reduces the number of hours expended in an across-the-board fashion, rather than on an individually itemized basis. The commission concludes that an approximate one-third reduction (or 668 of the hours for which reimbursement is requested by the complainants) is warranted. Reducing the number of hours reasonably expended in this manner, and reducing the hourly rate for law clerk Meunier to $45 per hour, the commission arrives at the following formulation for the calculation of the "lodestar" figure:
hours Rate Amount Attorney Shneidman .73 $ 175 $ 127.75 Attorney Quartaro 25.48 $ 110 $ 2,802.80 Attorney Charlton .40 $ 90 $ 36.00 Attorney Charlton 3.83 $ 145 $ 555.35 Law clerk Meunier 19.97 $ 45 $ 898.65 Law clerk Grothwal 15.34 $ 45 $ 690.30
The complainants have also requested reimbursement in the amount of $435.64 for costs associated with this matter. The respondent has raised no objection to the costs requested by complainants' and the commission finds them to be reasonable. Therefore, the commission awards the complainants a total of $5,546.49 in costs and attorney's fees associated with this matter. Civil forfeiture: Pursuant to Section 101.22 (10)(d) of the public accommodations act, under which a person who wilfully violates sub. (9) of the statute shall, for the first violation, forfeit not less than $100 nor more than $1,000, the administrative law judge assessed a penalty forfeiture against the respondent in the amount of $1,000. However, as a matter of law, the commission must disagree with the administrative law judge's decision to assess the penalty in this case and, therefore, has modified the order to remove the civil forfeiture. The public accommodations statute is both remedial and penal in nature, in that it provides remedies to the injured party as well as forfeitures against the party committing the wrong. Where statutes are both penal and remedial, the courts separate the penal provision from the remedial, giving the provisions establishing penalties strict construction and the remainder of the act a liberal construction. Madison v. Hyland, Hall and Co., 73 Wis. 2d 364, 373, 243 N.W.2d 422 (1976). As cited above, the penalty provision under public accommodations law provides for a civil forfeiture for one who wilfully violates the law. Because section 101.22(10)(d), Stats., must be interpreted strictly, a strict interpretation must be given to the term "wilfully."t The question, then, is how the term "wilfully" should be construed and whether the respondent's actions can be considered "wilful" within the meaning of the statute. Although a finding of discrimination generally implies a finding of intent, it is not enough to simply find that every act of discrimination is an inherently "wilful" act. The United States Supreme Court has construed the "wilfulness" provision of the Age Discrimination in Employment Act as requiring proof of knowing or reckless disregard as to whether actions violate the law. Transworld Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). For instance, "wilfulness" has been found in cases in which a party ignored legal advice to the effect that its planned actions were unlawful. See, Kossman v. Calumet Co., 800 F.2d 697 (7th Cir. 1986), cert. denied, 107 S.Ct. 1294 (1987). Applying this principal, in Metropolitan Milwaukee Fair Housing Council, supra, the commission found that a landlord's use of the term "Christian" in a housing ad, although expressing a discriminatory preference for a Christian, was not "wilful" where the record contained no evidence to suggest that the landlord knew of the existence of the Open Housing Act or of the potential illegality of his conduct under the Act.
In the instant case, the commission believes that the respondent intentionally used the word "nigger," knowing that the word was improper and could reasonably be construed by a listener as an offensive racial epithet. However, like the landlord in Metropolitan Milwaukee, there is no evidence to suggest that the respondent was aware of the existence of the public accommodations law or knew that her actions in using the racial epithets were in violation of that statute. The record contains nothing to suggest that the respondent had ever been the subject of a prior similar complaint, or would otherwise have been aware that her actions were prohibited by law. Further, given that this was a case of first impression for the commission, the commission cannot conclude that the respondent knew or should have known that her actions violated the law. Therefore, while the respondent's conduct amounted to a violation of the public accommodations law, the commission declines to assess a forfeiture penalty and modifies the administrative law judge's order accordingly. cc: Katherine L. Charlton
Peter N. Flessas
STATE OF WISCONSIN DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS EQUAL RIGHTS DIVISION ---------------------------------------------------------------- Mischeral S. Bond 2822 North 1st Street, #208 Milwaukee, Wisconsin 53212
and Pairresh S. Bond 2822 North 1st Street, #208 Milwaukee, Wisconsin 53212 Complainants
DECISION AND MEMORANDUM OPINION ERD Case No. 9150755 and ERD Case No. 9151204
Michael's Family Restaurant 2220 West Wisconsin Avenue Milwaukee, Wisconsin 53233
In complaints filed with the Equal Rights Division ("ERD") on March 20, 1991 and April 30, 1991, respectively, Complainant Mischeral S. Bond (ERD Case No. 9150755) and Complainant Pairresh S. Bond (ERD Case No. 9151204) alleged that the Respondent, Michael's Family Restaurant, denied them full and equal enjoyment of a public place of accommodation because of their race, in violation of the Wisconsin Public Accommodations and Amusements Law, § 101.22(9), Stats.
On April 17, 1991, an investigator for the ERD found probable cause to believe that the Respondent had violated the Public Accommodations and Amusements Law, as alleged in ERD Case No. 9150755. On May 17, 1991, the investigator also found probable cause to believe that the Respondent had violated the Public Accommodations and Amusements Law as alleged in ERD Case No. 9151204. After efforts to conciliate the two cases failed or were waived, both cases were certified to hearing. The two cases were consolidated for purposes of hearing.
A hearing on the merits of both complaints was held on August 6, 1991 and October 1, 1991 in the Milwaukee District State Office Building before Administrative Law Judge Rose Ann Wasserman. The Complainants were represented by Linda S. Quartaro of Shneidman, Myers, Dowling & Blumenfield, P.O. Box 442, Milwaukee, WI 53201 0442. The Respondent was represented by Peter N. Flessas of Flessas Law Offices, 2711 West Michigan Street, Milwaukee, WI
53208-4044. Transcripts of both days of hearing are contained in the file. The parties requested the opportunity to submit post- hearing briefs. The last brief was filed on January 3, 1992, and the record in this case closed as of that date.
On August 7, 1992, the law firm of Shneidman, Myers, Dowling & Blumenfield notified the ERD that Attorney Quartaro had left the firm and that Attorney Katherine L. Charlton was now handling the case on behalf of the Complainant.
Based on the evidence received at hearing, the Administrative Law Judge makes the following: FINDINGS OF FACT 1. The Respondent, Michael's Family Restaurant (hereinafter "the restaurant"), is located at 2220 West Wisconsin Avenue in Milwaukee, Wisconsin. 2. At approximately 4:30 P.M. - on March 19, 1991, the Complainants, Mischeral S. Bond (hereinafter "Bond") and her six-year-old daughter, Pairresh S. Bond (hereinafter "Pairresh") entered the restaurant for the purpose of having a meal. Bond and her daughter sat down in one of the booths along the west wall of the restaurant. 3. At all times relevant to this case, the restaurant was owned by Marge Christodoulakis and her husband, who are white. Christodoulakis was working in the restaurant on March 19, 1991 when Bond and her daughter arrived. While Bond was in the restaurant, she observed Christodoulakis operating the cash register and mingling with the customers, and Bond assumed that Christodoulakis was the manager of the restaurant. 4. Shortly after Bond and Pairresh ordered their meal, a man named Ozzie Balistreri entered the restaurant. Balistreri, who is white, was a regular customer of the restaurant. As he walked into the restaurant, Balistreri stated in a loud voice that "nowadays you can't even step out of your car without getting approached by panhandlers," or words to that effect. He also stated that just before he entered the restaurant a "nigger" had asked him for money. Christodoulakis responded to Balistreri's remark by uttering the phrase, "those god damn niggers." Bond and her daughter overheard Balistreri's and Christodoulakis' remarks. 5. After making the comment about panhandlers, Balistreri walked to the back of the restaurant and sat down in one of the booths along the west wall of the restaurant. Balistreri's booth was five or six booths away from where Bond and her daughter were sitting.
6. Shortly after Balistreri sat down, there was a commotion in another part of the restaurant. Two black men had been ) sitting at a table next to a table occupied by an elderly white woman. Suddenly, the two men grabbed some money that the woman had placed on her table and hurried out of the restaurant with the money. 7. A few minutes after the two black men left the restaurant with the woman's money, Christodoulakis walked over to where Balistreri was sitting. In a loud voice, Christodoulakis told Balistreri that "two niggers" had just stolen money from an elderly customer. Christodoulakis also repeated the phrase "Those god damn niggers," several times. Somebody else sitting near Balistreri remarked that "those niggers wonder why we hate them so much." 8. Because Christodoulakis was speaking so loudly, Bond and her daughter could not help but overhear Christodoulakis' conversation with Balistreri. Bond was greatly offended by the use of the word "nigger," a term that she considered to be an extremely derogatory term for black people. Bond was also worried about the effect that such racially derogatory language would have on her six-year old daughter. At one point, Pairresh asked her mother whether the people talking about "niggers" were talking about them. 9. After hearing Christodoulakis loudly use the word "nigger" several times, Bond got up from her seat and approached Christodoulakis. Bond told Christodoulakis that she and her daughter had overheard her conversation and that her use of the word "nigger" was disturbing them. Christodoulakis responded that she had not been talking about Bond and her daughter, but had been talking about two "niggers" who had just stolen a customer's money. Bond said that she didn't know anything about the two men, but the word "nigger" was an insult to her and her daughter as African-Americans. Christodoulakis then said to Bond, "Honey, if you don't like it, then you can just leave." Bond responded that she would leave the restaurant but that she would not pay her bill, since she and her daughter had not yet finished eating their meal. Bond then went back to her table to get her daughter. As Bond and her daughter were in the process of leaving the restaurant, Christodoulakis asked Bond if she knew what "nigger" meant, and she told Bond to look up the word "nigger" in the dictionary when she got home. Bond and her daughter then left the restaurant. 10. After she heard Christodoulakis repeatedly use the term "nigger," Bond no longer felt that she and her daughter, as black people, were welcome in the restaurant. After Christodoulakis told Bond that she should leave if she didn't like the conversation, Bond felt that she and her daughter had
no choice but to leave the restaurant. 11. On March 20, 1991, the day after the incident in the Restaurant, Bond filed a discrimination complaint against the restaurant with the Equal Rights Division. The Equal Rights Division subsequently sent the restaurant a copy of the complaint, which contained Bond's name and address. Shortly after receiving the complaint, Christodoulakis had her attorney, Peter N. Flessas, send Bond a letter demanding payment for the $10.34 worth of food that she had ordered on March 19, 1991. In response to the letter, Bond sent Attorney Flessas a check for $10.34, but she later stopped payment on the check. On April 5, 1991 Bond sent Attorney Flessas a letter stating that she had stopped payment on the check "due to the unconstitutional treatment my six year old daughter and I received (at the restaurant) on March 19, of this year. My daughter has never been exposed to racism until this encounter." After receiving the letter, Attorney Flessas telephoned Bond and insisted that she send him a money order in the amount of $15.34, to cover the $10.34 food bill, plus a $5.00 bank fee for the stopped check. Bond eventually sent Attorney Flessas a money order in the amount of $15.34. 12. In the weeks following the March 19, 1991 incident in the restaurant, Pairresh made a number of comments which led Bond to believe that Pairresh's self-esteem had been detrimentally affected by the incident. One time Pairresh asked her mother if she (Pairresh) was a "nigger." Pairresh also made comments indicating that she believed that white people did not like her because she is black. For example, Pairresh was given an Easter basket containing a photograph of one of her favorite musical groups, "the New Kids on the Block." Pairresh told her mother she was afraid the band members, who are white,wouldn't like her because she is black. On another occasion,Pairresh and her mother were in the waiting room of a veterinarian's office, and Pairresh noticed a white woman holding a cat. Pairresh told her mother that she would like to pet the cat but was afraid to so because she thought the woman should not like her because she is black. Prior to the March 19, 1991 incident in the restaurant, Pairresh had never made any comments to her mother indicating that she believed that white people would not like her because she is black. 13. Bond decided that her daughter needed psychological counseling to help her regain her self-esteem after the incident on March 19, 1991. Bond arranged to have Pairresh attend two counseling sessions with a psychologist at the Milwaukee County Children and Adolescent Treatment Center. Based on the Findings of Fact made above, the Administrative Law Judge makes the following:
CONCLUSIONS OF LAW 1. The Respondent, Michael's Family Restaurant, is a "public place of accommodation" within the meaning of § 101.22(1m)(p), Stats. 2. The Respondent, by owner Marge Christodoulakis, wilfully violated § 101.22(9), Stats., by denying the Complainants, Mischeral S. Bond and her daughter Pairresh S. Bond, the "full and equal enjoyment" of a public place of accommodation because of their race. Based upon the Findings of Fact and Conclusions of Law made above, the Administrative Law Judge makes the following: ORDER 1. That the Respondent cease and desist from denying the Complainants the full and equal enjoyment of a place of public accommodation, in violation of § 101.22(9), Stats. 2. That the Respondent make the Complainants whole for the out- of-pocket expenses they incurred as a result of the Respondent's unlawful act by paying to Complainant Mischeral S. Bond the sum of $15.34, plus the cost of the two counseling sessions her daughter attended. 3. That the Respondent forfeit the amount of $1,000 to the State of Wisconsin. The forfeiture shall be made payable to the State Treasurer and shall be sent to Diane Kraus, Compliance Officer, Equal Rights Division, 819 North Sixth Street, Room 255, Milwaukee, Wisconsin 53203. 4. That the Respondent shall pay for the reasonable attorney's fees and costs incurred by the Complainants in pursuing this matter. The payment for reasonable fees and costs shall be in the form of a check made jointly payable to Complainant Mischeral S. Bond and to her attorney. If the parties are unable to stipulate to the amount of attorney's fees and costs, the amount of fees and costs shall be determined in the following manner: Within 21 days after the date upon which this order becomes final, the Complainants shall postmark to the Equal Rights Division, with a copy to the Respondent, a petition for reasonable attorney's fees and costs, together with a supporting affidavit and other appropriate documentation. The Respondent shall then have 21 days from receipt of the Complainant's petition to postmark to the Equal Rights Division a response to the petition, with a copy to the Complainant. The base formula to be used to determine the amount of attorney's fees shall be the lodestar figure of reasonable number of hours spent multiplied by a reasonable hourly rate. Following the filing of a petition for fees and
costs, and the filing of any response thereto, an Administrative Law Judge for the Equal Rights Division shall issue an order awarding reasonable attorney's fees and costs to the Complainants. 5. Within 30 days after the date upon which this order becomes final, the Respondent shall submit a compliance report detailing the specific actions it has taken to comply with this order. The compliance report shall be sent to Diane Kraus, Compliance Officer, Equal Rights Division, 819 North Sixth Street, Room 255, Milwaukee, Wisconsin 53203.
Dated at Milwaukee, Wisconsin FEB O 3 1993
Rose Ann Wasserman
Administrative Law Judge MEMORANDUM OPINION I. Factual Issues / Credibility
The major factual dispute that had to be resolved in deciding this case was whether restaurant owner Marge Christodoulakis repeatedly used the word "nigger" during her conversation with customer Ozzie Balistreri on March 19, 1991, as alleged by the Complainants. If the Administrative Law Judge ("ALJ") were to believe Christodoulakis's testimony that she did not use the word "nigger," the ALJ would then have to conclude that Complainant Mischeral Bond jumped up from her table, walked over to Christodoulakis, and falsely accused her of having used the word "nigger". However, there is simply no evidence in the record to support such a conclusion. To the contrary, as explained below, the preponderance of the credible evidence clearly supports Bond's allegation that Christodoulakis repeatedly used the word "nigger´ during her conversation with Balistreri.
First of all, the ALJ found Bond's testimony concerning Christodoulakis' conversation with Balistreri to be credible. Bond testified that she heard Christodoulakis repeatedly use the word "nigger," and that it greatly upset her because she was afraid that such racially derogatory language would have a psychologically detrimental effect on her daughter. The ALJ believes that Bond's testimony was the heartfelt testimony of a mother concerned for her child's welfare. Furthermore, Bond's testimony that Christodoulakis repeatedly used the word "nigger" was corroborated both by her daughter Pairresh and by Brian Jung, the former waiter who served Bond and her daughter on the day in question. As to Pairresh, although Respondent's counsel attempted to show that Pairresh's testimony was simply a form of play acting that had been
coached by her mother, the ALJ believes that Pairresh was telling the truth about what happened in the restaurant on March 19, 1991. As to Jung, who was not present in the hearing room when Bond testified, his account of the incident in question closely paralleled the account given by Bond. Although Respondent's counsel tried to paint Jung as being a disgruntled former employee who wanted to get back at Christodoulakis, his former boss, by testifying against her, the ALJ found Jung to be a credible witness.
By contrast, the witnesses who attempted to corroborate Christodoulakis' testimony that she did not use the word "nigger," i.e., Jerome Steffen, Ozzie Balistreri, and Melanie Sellers, were not very credible. As to Steffen, his testimony was of little evidentiary value. During the incident in question, Steffen was sitting on the opposite side of the restaurant, and he admitted that he did not hear what Christodoulakis had said to Balistreri before Bond got up from her table and confronted her. As to Balistreri, his credibility is highly-questionable, given the fact that he too was accused of having used the word "nigger." Moreover, his account of the incident wasn't even consistent with Christodoulakis'. For example, even though Christodoulakis admits to having told Bond to look up "nigger" in the dictionary, Balistreri denied that Christodoulakis made such a comment. As to Sellers, her testimony is of limited utility, inasmuch as she admitted that she did not witness the entire incident.
Finally, although Christodoulakis denied having used the word "nigger" during her conversation with Balistreri, other admissions that she made during her testimony support the conclusion that she did in fact use the word. Christodoulakis testified that she thought the term "nigger" applies to "low-class" people of any race, not just to black people. 2 Based on that testimony, the ALJ believes that when Christodoulakis told Bond to look up "nigger" in the dictionary, she was, in effect, saying to Bond, "Yes, I used the word 'nigger,´ but if you look it up in the dictionary you will see that it is not a racially derogatory word, so you should not have gotten so upset by my using it." II. "Hostile Environment" Claims Under the Wisconsin Public Accommodations Law
§ 101.22(9), Stats., prohibits a person from denying another person "the full and equal enjoyment" of any public place of accommodation because of race. The undersigned ALJ believes that an individual is denied the "full and equal" enjoyment of place of accommodation in cases where 1) the individual is subjected to
racially derogatory language which creates a hostile environment; 2) where the hostile environment causes the individual to feel unwelcome in the place of accommodation; and 3) where the derogatory language was either directly or indirectly condoned by the management of the place of accommodation. In this case, where the management not only condoned the racially hostile environment but actually created it in the first place, the Complainants were clearly denied the "full and equal" enjoyment of a place of accommodation, in violation of the Public Accommodations Law.
There is one other issue in this case related to the question of hostile environment, and that concerns the racial connotations of the term "nigger." Prior to the hearing in this matter, the ALJ thought that there was no question that the term "nigger" is generally understood to be a racially derogatory term. However, because the Respondent argued at the hearing that the term "nigger" is not racially derogatory, the ALJ feels she must address this issue. As noted earlier in this opinion, Christodoulakis testified that the term "nigger" applies to "low-class" people of any race and that it is not a derogatory term for black people. 3 Debra Hill, a black waitress employed by the Respondent, also testified that the word "nigger" is not a derogatory term for blacks and that she would not be bothered in the least if a white person called her a nigger.
However, the ALJ has taken judicial notice that in common parlance, the term "nigger" is understood to be an extremely derogatory term that is used specifically in reference to black people. 4 Webster's Seventh New Collegiate Dictionary, defines "nigger" as follows: "1: Negro -- usu. taken to be offensive. 2: a member of any darkskinned race - usu. taken to be offensive." Moreover, in the context of civil rights litigation, the courts have consistently held that the term "nigger" has a strongly derogatory connotation. For example, in Jones v. City of Boston, 738 F. Supp. 604, 605 (D.Mass. 1990), a case cited by the Complainants in their brief, the district court held that "without
question, the racial epithet of 'nigger´ shows an intent to discriminate on the basis of race," and that "(t)he term 'nigger´ is intimidating by its very nature." III. Issues Relating to Remedy
Upon a finding that the Public Accommodations Law has been violated, § 101.22(10)(a)(4), Stats., formerly 5 101.22(4)td), Stats., authorizes the Equal Rights Division to "order such action by the respondent as will effectuate the purpose" of the Public Accommodations Law. In a number of cases, the Labor and Industry Review Commission (LIRC) has held that the provision authorizes the Equal Rights Division to award a prevailing complainant reasonable attorney's fees and costs and "out-of-pocket" expenses which were actually spent by the complainant as a necessary consequence of the prohibited discrimination. See, e.g., Milwaukee Metropolitan Fair Housinq Council v. Goetsch, (LIRC, 12/6/91) and Davis v. Piechowski, (LIRC, 10/24/86). Thus, in this case the ALJ has awarded the Complainants reasonable attorney's fees and costs and out-of-pocket damages.
However, the ALJ has not awarded the Complainant any noneconomic damages, such as damages for emotional distress, because the ALJ has concluded that non-economic damages are not authorized under the Public Accommodations Law. This conclusion is based on recent amendments to the both the Public Accommodations Law and the Open Housing Law. Prior to the amendments, which became effective on September 1, 1992, the remedial provision cited above, § 101.22(4)(d), was applicable to both the public accommodations law and to the housing law. However, as amended, the provision (renumbered as § 101.22(10)(a)(4)), now only applies to the Public Accommodation Law. As for the Open Housing Law, the Legislature created an entirely new remedial provision, § 101.22(6)(h), Stats. The new provision expanded the types of remedies available under the housing law, and it expressly states that both "economic" and "non-economic damages" may be now awarded in housing cases. The fact that the Legislature deemed it necessary to expressly state that non-economic damages may now be awarded in housing cases, implies that prior to the amendments, the old remedial provision (i.e., § 101.22(4)(d)), did not allow for the award of such damages. If the old provision, which still applies to public accommodations cases, did allow for non-economic damages, then presumably the Legislature would have clarified that such damages are now also allowed in public accommodations cases, not just in housing cases, but it did not do so. Thus, the ALJ has concluded that the Equal Rights Division does not have the authority to award non-economic damages in public accommodations cases.
Having said that, the undersigned ALJ would like to state for the record that if the Public Accommodations Law did allow her to award damages for emotional distress, she certainly would have awarded them to the Complainants in this case. It is clear from
the evidence presented at hearing that the incident in the Respondent's restaurant caused both of the Complainants a great deal of emotional distress. The ALJ was particularly saddened by how the incident seemed to undermine Pairresh's self-esteem. However, as shown by her testimony, Pairresh is a very bright and delightful little girl, and the ALJ is hopeful that with the passage of time, Pairresh will be able to overcome the damage done by the unfortunate incident that occurred in this case.
Katherine L. Charlton, Attorney for the Complainants
Peter N. Flessas, Attorney for the Respondent
1. Webster's Seventh New Collegiate Dictionary defines "nigger" as "1: Negro - usu. taken to be offensive. 2: a member of any darkskinned race - usu. taken to be offensive."
2. However, as discussed in footnote no. 2, the ALJ has concluded that Christodoulakis actually knew full well that "nigger" was a racially derogatory used to refer to black people.
3. The ALJ believes that Christodoulakis was feigning ignorance when she testified that she thought the term "nigger" only meant a "low-class" person and that it did not specifically apply to black people. When Christodoulakis was asked during cross-examination whether she ever uses the word "nigger" at her restaurant, which has a clientele that is more than 50% black, her response was, "No, I have more manners than that." She also admitted that it would not be "appropriate" for her to call a black person "a nigger."
4. § 227.45(3), Stats., allows a hearing examiner to take official notice of generally recognized facts.