Zabkowicz v. West Bend Co.

789 F.2d 540, 40 Fair Empl. Prac. Cas. (BNA) 1171
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 24, 1986
DocketNos. 84-3020, 85-1305
StatusPublished
Cited by65 cases

This text of 789 F.2d 540 (Zabkowicz v. West Bend Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zabkowicz v. West Bend Co., 789 F.2d 540, 40 Fair Empl. Prac. Cas. (BNA) 1171 (7th Cir. 1986).

Opinion

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff Carol Zabkowicz was successful in an action for back pay brought pursuant to Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the Wisconsin Fair Employment Act, Wis. [542]*542StatAnn. § 111.31 et seq. The district court, however, denied her motion for attorneys’ fees, 601 F.Supp. 139. She appeals this denial. Mrs. Zabkowicz along with her husband Stanley (the “plaintiffs”) have also moved for an order certifying a question to the Wisconsin Supreme Court. The plaintiffs contend that the district court erred in concluding that the Wisconsin Worker's Compensation Act, Wis.Stat. Ann. § 102.01 et seq., barred several of their state tort claims for intentional infliction of emotional distress. As an alternative to certification, the plaintiffs seek reversal of the district court’s ruling. In addition, the plaintiffs appeal the court’s decision dismissing other state tort claims against Carol Zabkowicz’s co-workers for lack of subject matter jurisdiction.

We deny the plaintiffs’ motion for certification and affirm the decisions of the district court dismissing the state tort claims. With respect to the fee issue, however, we reverse the district court’s denial of attorneys’ fees and remand this case for a fee determination.

I.

The present action arose out of the sexual harassment of Carol Zabkowicz during the time she was employed as a general warehouse worker at a West Bend facility in Oak Creek, Wisconsin. Mrs. Zabkowicz, who began working for West Bend in 1977, initially maintained a satisfactory working relationship with her co-employees. Once her brother-in-law began working at the facility, however, this relationship began to deteriorate. In fact, the district court found that a “campaign” of sexual harassment was waged against Carol Zabkowicz.1 Eventually, Mrs. Zabkowicz sought and received permission to take a medical leave of absence beginning on April 26, 1982. She returned to work three weeks later only to have to take another leave for illness on June 17, 1982. Dr. Calvin Gillespie diagnosed Zabkowicz’s illness as “psychophysi-ological gastro-intestinal disease due to harassment at work.” Mrs. Zabkowicz once again returned to work on August 17, 1982.

Shortly after taking her first leave of absence, Mrs. Zabkowicz filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). An investigation by officials of the EEOC and West Bend was conducted in June 1982. As a result of this investigation, disciplinary action was taken against several of Mrs. Zabkowicz’s co-workers who had been involved in the sexual harassment, including defendants Rick Cyrulik, Jeffrey Piotrowski, Larry Romans and Frank Rozina. After this action was taken, the sexual harassment ceased.

The plaintiffs commenced the present action on February 8, 1983, seeking relief on a variety of grounds. First, Carol Zabkow-icz alleged that West Bend and three of its supervisory personnel, Robert Schommer, Wesley Fredericks and Jack DeBraal, had violated Title VII and the Wisconsin Fair Employment Act by failing to protect her from sexual harassment after she had notified them of its occurrence. Second, both Carol and Stanley Zabkowicz sought relief for intentional infliction of emotional distress against (1) co-workers Cyrulik, Pio-trowski, Romans and Rozina, (2) West Bend and the three supervisory employees, and (3) the union to which Carol Zabkowicz belonged as well as the union’s business agent. Finally, Mrs. Zabkowicz asserted labor claims against West Bend, the three supervisory employees, the union and the union’s business agent alleging that these defendants had breached their duty of fair representation. The fair representation claims as well as the tort claims against the union and its agent were eventually dismissed in accordance with the parties’ stipulation.

The parties also agreed that the state tort actions against the individual co-workers be severed for trial. In addition, the district court dismissed the plaintiffs’ tort [543]*543claims against West Bend and the supervisory employees on grounds that they were barred by the exclusive remedy provision of the Wisconsin Worker’s Compensation Act. The plaintiffs’ remaining claims against West Bend and the supervisory employees were tried to the court. The district court ruled that West Bend had violated both Title VII and the Wisconsin Fair Employment Act. Judgment was entered solely against West Bend and the court ordered the company to pay Carol Zabkowicz back pay in the amount of $2,763.20. After this judgment was entered, the only remaining claims yet to be litigated were the state tort claims against the defendant co-workers. Later, the court, on its own motion, dismissed these claims for lack of subject matter jurisdiction. The court concluded that it could not exercise pendent jurisdiction over these claims because there was no independent basis of federal jurisdiction with respect to the co-workers.

As a result of her success with the sexual discrimination action, Mrs. Zabkowicz sought attorneys’ fees of $127,515, plus expenses of $20,785, pursuant to 42 U.S.C. § 2000e-5(k) and the Wisconsin Fair Employment Act. The district court refused to make a fee award noting that, among other things, her fee request was highly exaggerated and failed to distinguish between the hours spent on the Title VII claim and the hours spent on “noncompensable” claims. The court did, however, award Mrs. Zabkowicz $10,000 for expenses incurred in prosecuting the Title VII action.

After the district court’s decision dismissing both the state tort claims against the co-workers for lack of subject matter jurisdiction and the tort claims against West Bend and the supervisory employees, the plaintiffs filed a notice of appeal with this court (No. 84-3020). Subsequently, a second notice of appeal was filed seeking review of the district court’s denial of attorneys’ fees (Ño. 85-1305). To facilitate our review, these two appeals have been consolidated.

II.

A. Worker’s Compensation Act as Exclusive Remedy

The plaintiffs first argue that the district court erred in dismissing their tort claims against defendants West Bend, Schommer, Fredericks and DeBraal. The court ruled from the bench that the plaintiffs’ tort claims were barred by the exclusivity provision of the Wisconsin Worker’s Compensation Act (the “WCA”). The plaintiffs have moved that we certify this question to the Wisconsin Supreme Court or, in the alternative, reverse the decision of the district court.

Where permitted by the highest court of the state, Circuit Rule 13 provides for the certification of state law questions which control the outcome of a pending case. Wisconsin law provides that the Wisconsin Supreme Court may accept certified questions of state law from this court. Wis. Stat.Ann. § 821.01 et seq. Nonetheless, because we find that the Wisconsin Supreme Court has already reached the issue before us, we deny the plaintiffs’ motion for certification. See Wis.Stat.Ann.

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Bluebook (online)
789 F.2d 540, 40 Fair Empl. Prac. Cas. (BNA) 1171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zabkowicz-v-west-bend-co-ca7-1986.