Wisconsin Department of Transportation v. Wisconsin Personnel Commission , 169 Wis. 2d 629 ( 1992 )

EICH, C.J.

The Wisconsin Department of Transportation appeals from an order affirming the state personnel commission's decision directing the department to pay costs and attorney fees for discovery motions filed by a complainant in a proceeding under the Wisconsin Fair Employment Act. The issue is whether the commission has the authority to award motion costs against the department. We conclude that it does and affirm the order.

Dwight Beaverson complained to the commission that the department had discriminated against him in violation of the Fair Employment Act. He sought discovery, and when the department refused to comply with his discovery request, he moved to compel discovery and sought to recover his attorney fees for the motion. The department opposed the motion, arguing that neither the commission's rules nor applicable statutes authorized an award of costs or fees against the state in such circumstances. Relying on its authority under Wis. Adm. Code sec. PC 4.03 and sec. 804.12(l)(c), Stats.,¹ the commission ordered the department to answer Beaverson's interrogatories, to produce certain documents, and to pay Beaverson's attorney fees on the motion. The circuit court affirmed.

Whether the commission has authority to award costs and attorney fees under the Fair Employment Act is a question of law, and the general rule is that we are not bound by an agency's legal conclusions. West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1, 11, 357 N.W.2d 534, 539 (1984). In some cases, however, we defer to an agency's legal conclusions and interpretation of statutes. William Wrigley, Jr., Co. v. DOR, 160 Wis. 2d 53, 69, 465 N.W.2d 800, 806 (1991), rev'd on other grounds, 120 L. Ed. 2d 174 (1992).

The commission is charged by the legislature with the duty of hearing and deciding discrimination claims and applying the provisions of the Fair Employment Act to particular cases. Sec. 111.375(2), Stats.; Phillips v. Personnel Comm'n, 167 Wis. 2d 205, 216, 482 N.W.2d 121, 125 (Ct. App. 1992). Where, as here, "the agency is charged by the legislature with the duty of applying the statute being interpreted, the agency's interpretation 'is entitled to great weight.' " Id. at 215, 482 N.W.2d at 125 (citation omitted). We thus will uphold the commission's interpretation unless it is clearly contrary to the legislative intent as expressed in the statute. Id. at 216, 482 N.W.2d at 125. And if the commission's interpretation is reasonable, we will affirm even if another conclusion is equally reasonable. Id., citing DILHR v. LIRC, 161 Wis. 2d 231, 245, 467 N.W.2d 545, 550 (1991).

In Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984), the supreme court held that the Fair Employment Act authorized an agency to award attorney fees to the prevailing complainant in a discrimination action. Although the act does not expressly state that attorney fees may be recovered, the court held that authority to award fees "may be fairly implied" from its terms. Id. at 763, 345 N.W.2d at 487. In so ruling, the court emphasized the purpose of the act — banning discriminatory employment practices — and the legislative mandate to liberally construe its provisions. Id.

We agree with the commission that the Watkins rationale is equally applicable here. The commission pointed out that there were "a number of parallels between the situation in Watkins and th[is] situation," including the fact that both "involve proceedings under the [Fair Employment Act], and in both ... it can be said that an award of costs would be consistent with the [Fair Employment Act's] liberal interpretation clause." The commission then quoted at some length from Justice Bablitch's opinion in Watkins:

[I]t is evident that the authority to award reasonable attorney's fees to a prevailing complainant is necessary in order to fully enforce and give meaning to the rights created by the [WFEA]. The legislature could not have intended the [WFEA] to be a meaningless, empty gesture. However, a right without the means to enforce it is meaningless. If rights are to be meaningful, they must be enforceable. To enforce the rights guaranteed under the [WFEA], assistance of counsel is fundamental. One of the more invidious aspects of discrimination is that its targets are frequently the economically weak, who are often unable to afford ... counsel. Without the assistance of counsel, the ability to vindicate one's rights under the [WFEA] is so impaired that it renders the existence of those rights nearly meaningless. Id., 117 Wis. 2d at 765, 345 N.W.2d at 488.

Based on Watkins, the commission concluded:

Much of this rationale also applies to the ability of a complainant to recover motion costs with respect to discovery . . . where a state agency's opposition to a motion or failure to comply with a discovery order is not substantially justified. The ability to conduct discovery is an important tool of a complainant attempting to prosecute a [W]FEA complaint, just as it is an important tool of the employer in defending against a complaint. A state agency/employer inherently has substantially more resources than a complainant.

We conclude that the commission's interpretation of its discovery rules and the applicable provisions of the Fair Employment Act — as authoritatively construed by the supreme court — is reasonable and thus is not subject to reversal on appeal.

The department disagrees, contending that the fees may not be assessed against it under any circumstances, citing the general rule — based on considerations of sovereign immunity — that attorney fees are not recoverable against the state in the absence of express statutory authority. Martineau v. State Conservation Comm'n, 54 Wis. 2d 76, 194 N.W.2d 664 (1972); State v. Beloit Concrete Stone Co. and AAA Disposal Systems, 103 Wis. 2d 506, 309 N.W.2d 28 (Ct. App. 1981).

The state and its agencies, however, are specifically included within the definition of "employer" under the Fair Employment Act. See sec. 111.32(6)(a), Stats. (" 'Employer' means the state and each agency of the state"). Because the legislature has unambiguously subjected the state and its agencies to the provisions of the act, and because, as the supreme court held in Watkins, the terms of the act fairly imply the authority to recover costs and fees against those persons and entities so covered, we consider that any claim of sovereign immunity has been effectively waived in this case, as it was in Watkins.

By the Court. — Order affirmed.

1 Wisconsin Adm. Code sec. PC 4.03 provides:

Discovery. All parties to a case before the commission may obtain discovery and preserve testimony as provided by ch. 804, Stats. For good cause, the commission or the hearing examiner may allow a shorter or longer time for discovery or for preserving testimony than is allowed by ch. 804, Stats. For good cause, the commission or the hearing examiner may issue orders to protect persons or parties from annoyance, embarrassment, oppression or undue burden or expense, or to compel discovery.

Section 804.12(l)(c)l, Stats., provides:

If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.