Glamann v. St. Paul Fire & Marine Insurance

412 N.W.2d 522, 140 Wis. 2d 640, 1987 Wisc. App. LEXIS 3886, 44 Empl. Prac. Dec. (CCH) 37,355, 44 Fair Empl. Prac. Cas. (BNA) 1320
CourtCourt of Appeals of Wisconsin
DecidedJuly 9, 1987
Docket85-2266
StatusPublished
Cited by6 cases

This text of 412 N.W.2d 522 (Glamann v. St. Paul Fire & Marine Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glamann v. St. Paul Fire & Marine Insurance, 412 N.W.2d 522, 140 Wis. 2d 640, 1987 Wisc. App. LEXIS 3886, 44 Empl. Prac. Dec. (CCH) 37,355, 44 Fair Empl. Prac. Cas. (BNA) 1320 (Wis. Ct. App. 1987).

Opinions

DYKMAN, J.

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 Gla-mann’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 determina[645]*645tion, 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 [646]*646merits 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 (1973). McDonnell Douglas requires the complain[647]*647ing 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 (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 [648]*648not 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.

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Glamann v. St. Paul Fire & Marine Insurance
412 N.W.2d 522 (Court of Appeals of Wisconsin, 1987)

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412 N.W.2d 522, 140 Wis. 2d 640, 1987 Wisc. App. LEXIS 3886, 44 Empl. Prac. Dec. (CCH) 37,355, 44 Fair Empl. Prac. Cas. (BNA) 1320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glamann-v-st-paul-fire-marine-insurance-wisctapp-1987.