HR-82-005-RL
7-1700-108-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
State of Minnesota, by Stephen W.
Cooper, Commissioner, Minnesota
Department of Human Rights, and FINDINGS_OF_FACT,
his Predecessors, CONCLUSIONS_OF_LAW,
AND_ORDER_(CLASS_ACTION -
Complainant, VALERY BUTKOWSKI)
v.
Sports and Health Club, Inc.,
Arthur W. Owens, Marc Crevier
and Forest Larson,
Respondents.
The above entitled matter came on for hearing before Administrative Law
Judge Richard C. Luis on at the Office of Administrative Hearings in
Minneapolis on March 3, 1988. The record in this matter closed on February«9,
1989.
John A. Cooney, Dorsey & Whitney, 2200 First Bank Place East, Minneapolis,
Minnesota 55402, appeared on behalf of the Complainant. Arthur W. Owens, 6535
Peaceful Lane, Chanhassen, Minnesota 55317, appeared on behalf of Sports and
Health Club, Inc., as its President, and on behalf of himself as an individual
respondent. Marc Crevier, 10965 Fieldcrest, Eden Prairie, Minnesota 55344,
appeared on his own behalf.
NOTICE
Pursuant to Minn. Stat. Þ«363.071, subd. 2, this Order is the final
decision in this case and under Minn. Stat. Þ«363.072, the Commissioner of the
Department of Human Rights or any other person aggrieved by this decision may
seek judicial review pursuant to Minn. Stat. ÞÞ«14.63 through 14.69.
STATEMENT OF ISSUES
1. Whether Valery Butkowski qualifies for relief as a member of Class 4
(persons not hired for employment because of religion) or Class 5 (persons
required to furnish information pertaining to religion) in this matter?
2. If Valery Butkowski is a member of Classes 4 or 5, whether she is
entitled to monetary relief in the form of compensatory damages for lost wages,
or compensatory damages for mental anguish and suffering, or punitive damages?
Based upon all of the files, records and proceedings herein, the
Administrative Law Judge makes the following:
FINDINGS OF FACT
1. Sometime in February of 1986, Valery Butkowski saw a newspaper
advertisement for a position as an Associate Membership Director at Sports and
Health Club. She had been informed by friends, who were Club members, that the
Club was hiring such persons. Later that month, she appeared for a job
interview at the Sports and Health Club in St. Cloud, Minnesota.
2. Ms. Butkowski was at the Sports and Health Club for approximately one
hour. She never filled out a job application. After waiting a few minutes,
she was interviewed alone by Ray Miller, the Respondents' St. Cloud Club
Manager.
3. The job duties of an Associate Membership Director involve primarily
membership sales and "programming" - advice to members on diet and nutrition
and the setting up and supervision of exercise programs for Club members. At
the time of the interview, Butkowski was 33 years old and in good physical
condition. She ran, lifted weights, and exercised regularly. Her prior work
experience involved a variety of sales positions. She considered herself a
good motivator of people and was excited about taking the job opening at Sports
and Health.
4. During the interview, Miller explained some of the job duties to
Butkowski but never asked her about whether she had related experience or was
otherwise qualified. She never explained her qualifications, as listed in the
preceding Finding, to Miller.
5. Most of the interview time Valery Butkowski spent with Club Manager
Ray Miller consisted of an in
Miller asked many questions about Butkowski's religious background (she is
a Roman Catholic). She was asked to defend her views by citing Bible passages.
Miller turned to Bible passages to ask for her interpretation and to
illustrate his views and those of the Club.
6. During the course of the interview, Miller explained to Butkowski that
the Club did not hire persons who smoked, drank, danced or fornicated. He
asked her if she engaged in any such activities. When the Applicant admitted
she was a smoker and an occasional drinker, Miller told her that the Club would
not be able to hire her because such habits were "un-Christian". Miller made a
vague offer of "treatment" for Butkowski to battle such habits, and, were the
"treatment" successful, said the Club would consider hiring her again.
7. The intense, religious-oriented nature of the interview greatly
affected Valery Butkowski. She left the Club in tears. She was shaking
physically. She called her husband and cried to him over the phone about her
experience and also called her parents and told them of the interview. The
experience with Miller made Butkowski feel like a "moral degenerate".
8. Valery Butkowski's income for the last eleven months of 1986 was
$2,593.18. The St. Cloud Sports and Health Club closed on May 31, 1986.
Apportioning Ms. Butkowski's income of $2,593.18 for eleven months over the
period from February 14 to May 31, 1986, yields an estimated income of $826.00.
Had Butkowski been employed for that period as a full-time Associate
Membership Director at Sports and Health, she would have earned approximately
$3,500.00 (see Stipulated Joint Exhibit A).
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1. The Notice of Hearing was proper and all relevant substantive and
procedural requirements of law and rule have been fulfilled.
2. The Administrative Law Judge has jurisdiction herein and authority to
take the action Ordered pursuant to Minn. Stat. ÞÞ«14.50 and 363.071, subd. 2
(1987).
3. Under International_Brotherhood_of_Teamsters_v._United_States, 97
S.Ct. 1843, 431 U.S. 324 (1977), after the Complainant makes a prima_facie
showing that an individual has been the victim of a discriminatory employment
practice, the burden of proof shifts to the employer to establish by a
preponderance of the evidence that adverse employment action taken against an
employee was for lawful, non-discriminatory reasons.
4. Any of the preceding Findings of Fact more properly termed Conclusions
of Law are hereby adopted as such.
5. Under State,_by_McClure_v._Sports_and_Health_Club, 370 N.W.2d 844
(Minn. 1985), appeal_dismissed, 106 S.Ct. 3315, 92 L.Ed.2d 730 (1986), the
Respondents engaged in prohibited employment practices by rejecting persons for
employment because of religion, and by requiring persons who sought employment
to furnish information pertaining to religion and marital status.
6. The Complainant has not made a prima_facie case showing that Valery
Butkowski was rejected from employment because of religion. The policy against
hiring smokers is secular, not religious. Therefore, she is not a potential
member of Class 4 in this action.
7. The Respondents required Valery Butkowski to furnish information
pertaining to her religion and marital status when she sought employment with
them. Under State,_by_McClure_v._Sports_and_Health_Club, supra, she has been
aggrieved by the Respondents' discriminatory practice. Therefore, she
qualifies for relief as a member of Class 5.
8. Minn. Stat. Þ«363.071, subd. 2, authorizes payment to an aggrieved
party who has suffered discrimination, such as Valery Butkowski, of
compensatory damages, including damages for mental anguish and suffering, and
punitive damages.
9. Valery Butkowski is entitled to compensatory damages of $3,000.00 for
mental anguish
10. Ms. Butkowski is entitled to an award of punitive damages against the
Respondents in the amount of $3,000.00.
11. Minn. Stat. Þ«363.071, subd. 2 (1983 Supp.), requires the award of a
civil penalty to the State where a violation of Chapter 363 is found, "taking
into account the seriousness and extent of the violation, the public harm
occasioned by the violation, whether the violation was intentional, and the
financial resources of the respondent". The State is entitled to payment of a
civil penalty in the amount of $1,000.00.
12. In accordance with the Minnesota Supreme Court decision herein, the
Respondents are jointly and severally liable liable for all damages and
penalties awarded herein. State,_by_McClure_v._Sports_and_Health_Club, 370
N.W.2d 844, 853-54 (Minn. 1985).
Based upon the foregoing Conclusions of Law, the Administrative Law Judge
makes the following:
ORDERS
IT IS HEREBY ORDERED that the Respondents shall pay to Valery Butkowski
$6,000.00 ($3,000.00 in compensatory damages for mental anguish and suffering,
$3,000.00 in punitive damages) plus interest on the compensatory damages for
mental anguish and suffering at a rate of six percent from February 14, 1986,
in accordance with Minn. Stat. Þ«334.01.
IT IS FURTHER ORDERED that the Respondents shall pay a civil penalty to the
State of Minnesota in the amount of $1,000.00. Payment of the civil penalty
shall be made to the Chief Administrative Law Judge of the Office of
Administrative Hearings for remittance to the General Fund of the State of
Minnesota.
Dated this ______ day of March, 1989.
__________________________________
RICHARD C. LUIS
Administrative Law Judge
Reported: Taped
MEMORANDUM
Minn. Stat. Þ«363.03, subd. 1 prohibits discrimination in employment on
account of religion, marital status and sex. It also prohibits pre-employment
inquiry pertaining to such subjects. The Minnesota Supreme Court, in determin-
ing what sort of actions constitute prohibited discriminatory practices under
the Human Rights Act and in dictating how such discrimination must be proven,
has followed the approach of the federal courts in interpreting a similar
statute, Title VII of the 1964 Civil Rights Act, 42 U.S.C. Þ«2000e. et_seq.,
and has decided that court decisions under Title«VII are applicable to similar
actions under state law. See Danz_v._Jones, 263 N.W.2d 395 (Minn. 1978) and
Hubbard_v._United_Press_International,_Inc., 330 N.W.2d 428 (Minn. 1983).
A three-part analysis was set out by the United States Supreme Court in the
case of McDonnell-Douglas_Corporation_v._Green, 411 U.S. 792 (1973), describing
the shifting burdens of production and proof in discrimination cases, and this
analysis was refined by the Court in the case of Texas_Department_of_Community
Services_v._Burdine, 450 U.S. 248 (1981). The requirements are: (1) the
plaintiff must establish a prima_facie case of discrimination; (2) the
defendant must rebut the prima_facie showing by articulating some legitimate,
non-discriminatory reason for the employment action; and (3) the plaintiff must
then show, by a preponderance of the evidence, that the reasons stated are a
pretext for actual discrimination.
Under the Minnesota Human Rights Act, a member of a protected class who
alleges that (s)he was treated differently from other persons because of
membership in that protected class carries the initial burden of proof of
establishing a prima_facie case by showing (1) (s)he is a member of a protected
class; (2) (s)he was qualified for the job; (3) that an adverse employment
action was taken against him/her; and (4) the employer assigned non-members of
the protected class(es) to do the same work. Hubbard_v._United_Press
International,_Inc., 330 N.W.2d 428 (Minn. 1983)
The United States Supreme Court case of International_Brotherhood_of
Teamsters_v._United_States, 97 S. Ct. 843, 431 U.S. 324 (1977) provides for a
different approach to the burden of proof in a class action lawsuit when the
government has already proven a system-wide pattern and practice of
discrimination on the part of the employer in the liability phase of the
action. As the Court stated, at 97 S. Ct. 1868:
The proof of the pattern or practice supports an inference
that any particular employment decision, during the period
in which the discriminatory policy was in force, was made in
pursuit of that policy. The Government need only show that
an alleged individual discriminatee unsuccessfully applied
for a job and therefore was a potential victim of the proved
discrimination. . . . The burden then rests on the employer
to demonstrate that the individual applicant was denied an
employment opportunity for lawful reasons.
The Teamsters case involved discrimination by trucking companies and the
Union against Black and Hispanic employees who were initially hired only as
servicemen or local-city drivers, positions less desirable and lower-paying
than over-the-road, long-distance driving jobs. Applying the reasoning of the
above-quoted paragraph to this case, once the Complainant establishes that a
non-born-again-Christian job applicant who is qualified for entry-level
employment as an Associate Membership Director for the Respondents
unsuccessfully applied for such an entry-level position, and once the
Complainant establishes that such a job applicant was required to furnish
information pertaining to marital status and religion prior to beginning
employment, the burden then shifts to the Respondents to prove that a potential
Class Member was not hired for legitimate, non-discriminatory reasons and that
the questioning was non-discriminatory. In this case, it has been held that
the Complainant has not made a prima_facie showing that Ms. Butkowski was a
qualified job applicant. However, it has been held that the Complainant has
made a prima_facie showing that she was asked questions that required her to
furnish information pertaining to marital status and religion.
Ms. Butkowski was not hired because she was a smoker. The fact that
Miller, in rejecting her for employment for that reason, commented that such a
habit was "un-Christian" does not convert this case into one of religious
discrimination. In deciding this matter, the Judge is persuaded by Mr.«Owens's
argument that the Club made a decision to ban all smoking from its facilities,
and not to hire smokers as Associate Membership Directors in the mid-1970s.
This secular policy, although considered by the Respondents to ban persons from
employment for "un-Christian" habits, has not been shown to be applied
unequally or in a discriminatory manner. The Administrative Law Judge is not
persuaded by the Complainant's argument that barring smokers from employment is
religious discrimination because the bar against smoking is a tenet of the
Respondents' beliefs. The record shows that the bar on employing smokers is
secular, legitimate and non-discriminatory.
The evidence is clear that Ms. Butkowski qualifies for relief as a member
of Class 5 in this action. She was subjected to a long, humiliating barrage of
religious-based questions that required her to furnish information pertaining
to her religious beliefs and practices. This is illegal under the Minnesota
Human Rights Act.
During her direct examination at the hearing, Ms. Butkowski was unable to
identify St. Cloud Club Manager Ray Miller by name as the person who
interviewed her. Miller was identified by Respondents' witnesses Owens and
Crevier when they testified, however, and the mention of his name refreshed
Ms.«Butkowski's recollection as to her interviewer's name. Independent of the
refreshing of her recollection, however, the Administrat
Damages have been awarded for mental anguish and suffering because the
questioning was lengthy, humiliating, and traumatized Ms. Butkowski. The
$3,000.00 sought in damages by the Complainant in this case is a reasonable
measure of the damages suffered.
Punitive damages have been awarded to Ms. Butkowski because: (1) the
Respondents' actions in requiring her to furnish information regarding her
religious beliefs and practices show by clear and convincing evidence "a
willful indifference to the rights...of others", and (2) the discriminatory
action, even if taken by an agent of the Respondents, was authorized by the
Respondents, within the scope of the agent's employment, and was done with the
Respondents' approval. See, Minn. Stat. Þ«549.20, subds. 1 and 2.
In the underlying case, the Administrative Law Judge stated that punitive
damages against the Respondents were inappropriate because their discriminatory
acts, although indifferent to the rights of others, had not been "willful".
That reasoning cannot protect Respondents for actions taken after the
Administrative Law Judge issued Orders enjoining them from discriminatory
actions (such as requiring persons to furnish information pertaining to
religion prior to employment). In fact, the Minnesota Court of Appeals and
Hennepin County District Court Judge Franklin Knoll have held that the
Respondents' refusal to obey the Orders of April 26, 1984, was contemptuous.
See, State,_by_Johnson_vs._Sports_and_Health_Club, 391 N.W.2d 329 (Minn. App.
1986). The Administrative Law Judge's Orders of April 26, 1984, are the first
pronouncement that the Respondents' business practices were illegal by a
neutral fact-finder and a person empowered to take actions against the
Respondents for illegal discrimination. The above-noted decision of the
Minnesota Court of Appeals makes it clear that the Administrative Law Judge's
Orders were to have been obeyed from the day they were issued. It is clear
from the record of this case that the Respondents disregarded those Orders and
made no efforts to instruct their interviewing personnel to obey them. After
the Orders of April 26, 1984, the Respondents were apprised that their actions,
although sincere, were not protected under the Constitution. They were ordered
clearly to cease them. Ms. Butkowski's interview took place in February, 1986.
The non-cessation of the illegal actions 22 months after the Respondents were
Ordered to stop them is a clear demonstration of "willful indifference to the
rights of others" within the meaning of Minn. Stat. Þ«549.20.
Subdivision 3 of Þ«549.20 mandates measurement of punitive damages awards
by the factors that justly bear on the purpose of punitive damages, including
seriousness of the hazard to the public arising from the defendant's
misconduct, the duration of the misconduct, the degree of the defendant's
awareness of the hazard and of its excessiveness, the attitude of the defendant
upon the discovery of the misconduct, the number and level of employees
involved in causing the misconduct, the financial condition of the defendant,
and the total effect of other punishment likely to be imposed on the defendant
as a result of the misconduct, including compensatory and punitive damage
awards to the plaintiff and other similarly situated persons, and the severity
of any criminal penalty to which the defendant may be subject. After
considering all the listed factors, the Administrative Law Judge has decided to
assess punitive damages in this case of $3,000.00.
R.C.L.
Service List
Stephen W. Cooper, Commissioner Richard L. Varco, Jr.
Department of Human Rights Assistant Attorney General
Fifth Floor Bremer Tower 1100 Bremer Tower
Seventh Place & Minnesota Street 7th Place and Minnesota Street
St. Paul, MN 55101 St. Paul, MN 55101
John A. Cooney Arthur W
Dorsey & Whitney 6535 Peaceful Lane
2200 First Bank Place East Chanhassen, MN 553l7
Minneapolis, MN 55402
Marc Crevier
Sports and Health Club, Inc. 10965 Fieldcrest Road
Arthur W. Owens, President Eden Prairie, MN 55344
6535 Peaceful Lane
Chanhassen, MN 55317 Forest Larson
5005 Richmond Drive
Edina, MN 55436
March 9, l989
Stephen W. Cooper, Commissioner
Department of Human Rights
Fifth Floor Bremer Tower
Seventh Place & Minnesota Street
St. Paul, MN 55101
Re: State of Minnesota, by Stephen W. Cooper, Commissioner, Minnesota
Department of Human Rights, Complainant v. Sports and Health Club,
Inc., Arthur W. Owens, Marc Crevier and Forest Larson, Respondents
(Class Action Case of Valery Butkowski); OAH Docket No. HR-82-005-RL,
7-1700-108-2.
Dear Commissioner Cooper:
Enclosed and served upon you by mail, please find Findings of Fact,
Conclusions of Law and Order of the Administrative Law Judge (Class Action -
Valery Butkowski) in the above-entitled matter.
Very truly yours,
RICHARD C. LUIS
Administrative Law Judge
RCL/sh Telephone: 612/341-7610
Enclosures
cc: Richard L. Varco, Jr.
John A. Cooney
Sports and Health Club, Inc.
Arthur Owens
Marc Crevier
Forest Larson
Administrative Law Judge Janice K. Frankman