Glamann v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 09 July 1987
• Parties: , 44 Fair Empl.Prac.Cas. (BNA) 1320, 44 Empl. Prac. Dec. P 37,355 Carol Ellen GLAMANN, Plaintiff-Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Carl F. Anderson, Defendants- Appellants. 85-2266.
• Court: Wisconsin Court of Appeals

Page 522

412 N.W.2d 522

140 Wis.2d 640, 44 Fair Empl.Prac.Cas. (BNA) 1320,

44 Empl. Prac. Dec. P 37,355

Carol Ellen GLAMANN, Plaintiff-Respondent, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY and Carl F.

Anderson, Defendants- Appellants.

85-2266.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 9, 1987.

Opinion Released July 9, 1987.

Opinion Filed July 9, 1987.

Review Granted.

Carroll Metzner and Virginia Newcomb and Bell, Metzner, & Gierhart, S.C., Madison, for defendants-appellants.

William Smoler and Smoler & Albert, S.C., Madison, for plaintiff-respondent.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

Carl Anderson and St. Paul Fire & Marine Insurance Company appeal from a judgment in favor of Carol Glamann in this legal malpractice action. The jury found that Anderson negligently failed to pursue Glamann's employment discrimination claim against her former employer, Command Performance, a hairstyling salon, and awarded her $2,200 in lost wages. The trial court granted Glamann's post-verdict motion to increase the award to $14,388 and added prejudgment interest and reasonable attorney fees. ¹ We conclude that credible evidence supports the jury's discrimination determination, but that the court erred in increasing the jury's award and awarding reasonable attorney fees. We therefore reverse the judgment and remand with instructions to enter judgment consistent with this opinion.

CREDIBLE EVIDENCE OF DISCRIMINATION

We must sustain a verdict if any credible evidence supports it. Brain v. Mann, 129 Wis.2d 447, 452, 385 N.W.2d 227, 231 (Ct.App.1986). "[W]e do not look for credible evidence to sustain a verdict the jury could, but did not, reach." Sumnicht v. Toyota Motor Sales, 121 Wis.2d 338, 360, 360 N.W.2d 2, 12 (1984). The jury weighs testimony and evaluates credibility. We must accept the inferences drawn by the jury where more than one inference can be drawn from the evidence. Bennett v. Larsen Co., 118 Wis.2d 681, 706, 348 N.W.2d 540, 554 (1984).

The elements of legal malpractice are: (1) the existence of an attorney-client relationship; (2) acts constituting the alleged negligence; (3) the attorney's negligence proximately caused the client's injuries; (4) the fact and extent of the injury alleged; and (5) the client would have been successful in the prosecution of an action but for the attorney's negligence. Lewandowski v. Continental Casualty Co., 88 Wis.2d 271, 277, 276 N.W.2d 284, 287 (1979).

In a legal malpractice action, "the plaintiff is compelled to prove two cases in a single proceeding," Lewandowski, 88 Wis.2d at 277, 276 N.W.2d at 287, or a "suit within a suit." Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 103, 362 N.W.2d 118, 124 (1985). The merits of Glamann's malpractice action depend upon the merits of her discrimination claim. Lewandowski, 88 Wis.2d at 277, 276 N.W.2d at 287. In order for Glamann to prove causation and damages in this malpractice action, she must prove that she would have prevailed against Command Performance had her discrimination claim been properly presented in the first instance. Id. at 281, 276 N.W.2d at 289.

Sex discrimination, as defined by sec. 111.32(5)(g), Stats. (1979-80), is prohibited by sec. 111.325. The Wisconsin Fair Employment Act (WFEA), secs. 111.31-111.37, "does not establish a specific procedure by which a complainant must prove a claim of discrimination...." Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 172, 376 N.W.2d 372, 374 (Ct.App.1985).

While Wisconsin courts considering claims of sex discrimination under the [WFEA] are not bound by decisions of the federal courts under Title VII [Civil Rights Act of 1964, 42 U.S.C. sec. 2000e], "[t]his court has looked to such federal decisions before for guidelines in applying the state fair employment law."

Hamilton v. ILHR Dept., 94 Wis.2d 611, 621 n. 4, 288 N.W.2d 857, 861 (1980) (citations omitted).

The Puetz court summarized the methodology for proving a discrimination claim:

The basic allocation of burdens and order of presentation of proof in employment discrimination suits brought under Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982), was determined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973). McDonnell Douglas requires the complaining party to establish a prima facie case [by a preponderance of the evidence], which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 [101 S.Ct. 1089, 1094, 67 L.Ed.2d 207] (1981). The complainant then must be given the opportunity to prove that the proferred reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805 ; see also Hamilton v. DILHR, 94 Wis.2d 611, 619, 288 N.W.2d 857, 861 (1980).

Puetz, 126 Wis.2d at 172, 376 N.W.2d at 374 (footnote omitted). A plaintiff can prove discrimination by direct or circumstantial evidence or by making the required showing under McDonnell Douglas. Babrocky v. Jewel Food Co., 645 F.Supp. 1396, 1417 (N.D.Ind.1986). Pretext can be shown in one of two ways: (1) the employer was more likely motivated by a discriminatory purpose; or (2) the employer's proferred reason is not credible. A proferred reason is not credible if it has no basis in fact, was not really a factor in the employer's action, or was so removed in time that it was unlikely to be the cause for the employer's action. Id. at 1418.

Glamann claims her employer discriminated against her by reducing her hours and discharging her because she was pregnant.

Glamann's expert, Bruce Cameron, testified how a reasonable Department of Industry, Labor and Human Relations equal rights division hearing examiner would have handled a sex discrimination complaint. A complainant must make a minimal showing that she was performing the job for which she was hired and that her pregnancy was more likely than not a factor, but not the only factor, in her discharge. Absent direct proof, the reasonable DILHR examiner would infer that pregnancy was a factor from the circumstances surrounding the discharge. A reasonable examiner would adhere to the allocation of burdens and order of presenting proof detailed in Puetz, McDonnell Douglas and Burdine. The examiner would also consider when the employer learned of the pregnancy, when the employer began criticizing the employee, when the discharge occurred, how other pregnant and non-pregnant employees were treated, when the employer's reasons for the discharge were articulated, and if the employee had an opportunity to respond to the employer's criticism. Treatment of employees whose pregnancies became known to the employer after the complainant's pregnancy would not be persuasive because the employer could have changed its policy. However, treatment of pregnant employees prior to the complainant's pregnancy would be persuasive.

Glamann testified that she worked forty hours per week at Command Performance until she told the manager in May 1980 that she was pregnant. Her hours were halved in the second week of May and her appearance was criticized. The manager told her that her hours were reduced because "the shop was slow." Glamann had tendered her resignation in March 1980 but the manager did not accept it because Glamann was "fantastic with customers," a "fine" bookkeeper and got along well with the hair stylists. Glamann was discharged on June 21, 1980 because she was late to work, assigned customers out of order, and failed to inform her supervisor she was going to lunch. Glamann testified that she was five to ten minutes late to work on June 21 because she was doing Command Performance's banking, that the employees generally covered for each other during lunch without informing the manager, and After her discharge, Glamann sought unemployment compensation. At the hearing on her unemployment compensation claim, Glamann's former co-workers testified that she was neither unpleasant to customers nor hostile to management in front of customers and that she was late to work only once. Command Performance did not examine any of the witnesses and it was not represented by an attorney at the hearing. Although there was testimony that Glamann was difficult to work with, the hearing examiner concluded that Glamann never refused to perform any duty required by Command Performance. Although her job performance dissatisfied Command Performance, the examiner concluded that Glamann did not engage in willful misconduct.

that she assigned the customer out of order because the customer was impatient.

After her discharge, Glamann sought other employment and obtained two part-time positions. She stated that she would have taken twelve weeks of maternity leave for the births of her two children in 1980-82.

Glamann's co-workers testified that other employees were pregnant during Glamann's employment and that none of them had suffered adverse employment consequences. Command Performance employees testified that Roxanne Roy was pregnant and miscarried in April or May 1980. Roy's mother testified that Roxanne was pregnant after March 1981 and miscarried in April 1981, almost a full year after Glamann was discharged. Other pregnant employees were Jean Franklin, a receptionist after Glamann left (1981), and Jackie Prader (a stylist), pregnant from October 1980 to July 1981. Prader testified she was not disciplined because of her pregnancy. Muriel Nieskes, the other bookkeeper-receptionist at the time Glamann was discharged, testified that she heard Command Performance's owner say he wanted someone attractive in the reception area. Nieskes testified that she did not ask late-night customers to prepay because she stayed until 10 p.m. to do the books. Security did not tell her she had to be out of the building by 9 p.m., contrary to Glamann's...