Company Won’t Reinstate In-House Lawyer; How Much Will That Add to $1.6M Award?

In an unusual decision that could be persuasive in other courts, a Wisconsin appellate panel has recognized the power of an arbitration panel to order reinstatement of an in-house lawyer in an employment discrimination case.

Although Menard Inc. argued that it could not be required to employ legal counsel not of the company's own selection, the Wisconsin Court of Appeals nixed this argument. It also held that an arbitration panel has the power under federal anti-discrimination law to order a company to reinstate a lawyer even when neither of the parties seeks this remedy. In doing so, the court upheld an Eau Claire Circuit Court order enforcing the arbitrators' decision.

Because Menard is refusing to reinstate Dawn Sands to her former in-house position despite the court's order, a further proceeding is planned to determine the damages that she should be paid in lieu of reinstatement, reports the Milwaukee Journal Sentinel.

That amount will be in addition to the $1.6 million plus attorney fees that the arbitration panel awarded her in damages in 2007, according to attorney Carol Dittmar, who represents Sands. Of the $1.6 million, $900,000 was for punitive damages.

Sands, who is in her mid-40s, had been making about $70,000 a year. However, the panel found that she had been paid less than similarly qualified male lawyers and ordered Menard's to reinstate her in 2008 at a salary of $175,000 a year, plus a bonus, the newspaper reports. The arbitrators also found that the company had retaliated against Sands for complaining of discrimination.

In a written opinion (PDF), the court found no reason why a client's recognized right to select its own counsel should trump federal law providing for reinstatement as a remedy in employment discrimination cases.

Now, "the question is what sum will make Miss Sands whole" for the company's refusal to reinstate her, says Lawrence Schaefer, a Minnesota lawyer who also represents her in the case. "She is essentially unemployable now, given all that has happened. She has not been able to find a job for a company that is near the size and scope of Menard."

Attorney Michael Westcott, who represents Menard, didn't return the newspaper's phone calls.

Related coverage:

ABAJournal.com: "Arbitrators Can Award Legal Fees Despite Dutch-Treat ADR Pact, 2nd Circuit Says"