266 Wis.2d 693, 667 N.W.2d 377
Court of Appeals of Wisconsin.
No. 02-2377.
Opinion Released: June 19, 2003. Opinion Filed: June 19, 2003.
APPEAL from an order of the circuit court for Dane County: GERALD C. NICHOL, Judge. Affirmed.
Before Dykman, Roggensack and Deininger, JJ.
¶ 1. PER CURIAM.
Pastori Balele appeals from a circuit court order which: (1) affirmed the Wisconsin Personnel Commission’s determination that the Department of Natural Resources did not discriminate against Balele on the basis of race or retaliate against him for engaging in protected practices when it did not grant him a second interview for an open position; (2) required Balele to pay $1,000 in attorney fees as a sanction for filing a frivolous lawsuit; and (3) barred Balele from filing any further employment actions until the sanction was paid. We affirm on each issue.
BACKGROUND¶ 2. Balele, a black man born in Tanzania, Africa, was one of sixteen candidates who applied and was certified as minimally qualified for the position of Director of the Bureau of Integrated Science Services. Each candidate was asked five prepared questions at an initial interview, and their responses were evaluated according to predetermined criteria. Five candidates other than Balele were selected for second interviews, and the person ultimately hired was white.
¶ 3. Balele averred in an affidavit that he believed he had impressed one of the interviewers because the interviewer asked if someone had briefed Balele on the questions. Balele also asserted that he had once heard then-Deputy Secretary Ron Semman state that he was opposed to hiring blacks as bureau directors or section chiefs because they lacked expertise, and that a state affirmative action officer had once told him that she had been prevented from enforcing equal opportunities for blacks in the DNR.
¶ 4. Two of the panel members who interviewed Balele, including the division administrator with effective hiring authority, averred in affidavits that they had not chosen Balele to advance to the second round of interviews because they found his responses to the prepared questions to be “shallow” and “unresponsive.” They further stated that they did not previously know Balele and were unaware of prior complaints he had filed against the department.
¶ 5. The commission dismissed Balele’s employment discrimination complaint on summary judgment, and Balele sought judicial review. The circuit court affirmed on the merits. In addition, after chronicling Balele’s extensive history of litigation, which included sixty-five complaints filed with the WPC, seventeen circuit court cases, six Wisconsin Court of Appeals cases, and four federal Seventh Circuit cases, the circuit court sanctioned Balele for filing a frivolous action by ordering him to pay $1,000 in attorney fees and barring him from filing any new employment discrimination actions in the circuit court until he had paid the sanction imposed.
DISCUSSION Discrimination Claims¶ 6. The framework for evaluating employment discrimination claims is well established and was properly identified and applied in this case by both the commission and the circuit court. See, e.g., Currie v. DILHR, 210 Wis.2d 380, 565 N.W.2d 253 (Ct.App. 1997). Rather than repeat a lengthy and essentially identical analysis, we adopt the circuit court’s discussion as to why the commission properly denied Balele’s claims of disparate treatment and disparate impact using a summary judgment mechanism. A copy of the circuit court’s decision is attached to this opinion.
Costs and Attorney Fees¶ 7. Wisconsin Stat. § 814.025 (2001-02)[1] authorizes the court to award costs and attorney fees upon determining that an action or defense is frivolous, either because it was commenced in bad faith, or because the party or the party’s attorney knew or should have known that the action or defense lacked any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.
The determination of what a reasonable [party or] attorney knew or should have known presents a question of fact, and we will uphold the circuit court’s determination unless it is clearly erroneous. Whether what was known or should have been known supports a finding of frivolousness, however, presents a question of law subject to our de novo review.
Osman v. Phipps, 2002 WI App 170, ¶ 16, 256 Wis.2d 589, 649 N.W.2d 701.
¶ 8. The circuit court found that Balele failed to provide any evidence that he was more qualified than the candidates who were granted second interviews, or that his failure to obtain an interview was based on anything other than his own performance during his first interview. His allegations that the panel’s decision was racially motivated were based on nothing but pure speculation. Furthermore, his allegation that the interview screening process adversely affected minorities was based solely on his own experience, too small a sample to be statistically significant. The circuit court determined that Balele should have known, based on the rejection and findings of frivolousness of multiple similar claims he had made in the past, that “it is not the State’s policy to hire a minority simply because he/she has applied for a position”-implying that Balele should have known his present action had no reasonable basis without any direct evidence of discriminatory intent.
¶ 9. We agree with the court’s conclusion that the action was frivolous. Furthermore, the sanction amount of $1,000 was supported by an affidavit that counsel had spent more than ten hours working on the case and the court’s determination that $100 per hour was a reasonable rate, and was therefore within the court’s discretion.
Restriction on Future Litigation¶ 10. A court faced with a litigant who has engaged in a pattern of frivolous litigation has the authority to implement a remedy that may include restrictions on that litigant’s access to the court. Minniecheskev. Griesbach, 161 Wis.2d 743, 748, 468 N.W.2d 760 (Ct.App. 1991). Such restrictions may include barring the litigant from filing further civil actions, aside from habeas corpus, until the litigant has paid fees or costs imposed in the same case or a prior case. Puchner v. Hepperla, 2001 WI App 50, ¶ 6 and n. 7, 241 Wis.2d 545, 625 N.W.2d 609. We are satisfied the trial court’s restriction on future filings by Balele was appropriately limited to employment discrimination actions and well within its discretion, given Balele’s pattern of abusing the court system.
By the Court. — Order affirmed.