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
$
7,892.25
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
$
5,110.85
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
vs.
DECISION AND
MEMORANDUM OPINION
ERD Case No. 9150755 and
ERD Case No. 9151204
Michael's Family Restaurant
2220 West Wisconsin Avenue
Milwaukee, Wisconsin 53233
Respondent
----------------------------------------------------------------
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.
cc:
Complainants
Respondent
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.