11-1700-10365-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
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Kelli Anderson,
Complainant,
vs.
Mid America Talent and Jeffrey Taube,
Respondents. |
FINDINGS OF FACT, CONCLUSIONS, AND ORDER
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This matter came on for hearing before Administrative Law Judge Barbara L. Neilson on Thursday, September 19, 1996. Howard L. Bolter, Attorney at Law, Borkon, Ramstead, Mariani & Letourneau, 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402-1949, appeared on behalf of the Complainant. There was no appearance by or on behalf of the Respondents, Mid America Talent and Jeffrey Taube, 1128 Harmon Place (Lower Level), Suite 306, Minneapolis, MN 55403.
STATEMENT OF ISSUE
The issue in this matter is whether Respondent Mid America Talent discriminated against the Complainant on the basis of sex or engaged in acts of reprisal against her in violation of Minn. Stat. § 363.03, subd. 1(2)(b) and (c), and subd. 7(1), and whether Respondent Jeffrey Taube aided and abetted illegal discrimination against the Complainant in violation of Minn. Stat. § 363.03, subd. 6(1).
Based upon all of the files, records, and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Notice of and Order for Hearing was issued in this matter on February 21, 1996, and served upon the Respondents by U.S. mail at 1128 Harmon Court (Lower Level), Minneapolis, Minnesota 55403. The Notice of and Order for Hearing informed the Respondents that, if they failed to appear at the hearing, “a finding may be made that the Complainant’s allegations are true without a presentation of further evidence except as to damages.”
2. The Notice of and Order for Hearing included a notice that a Prehearing Conference would be held on March 25, 1996, at 3:30 p.m. The Respondents did not appear at the March 25, 1996, Prehearing Conference.
3. On March 26, 1996, the Administrative Law Judge issued a Prehearing Order noting that the Respondents had failed to appear at the March 25, 1996, Prehearing Conference and requiring the Respondents to file an answer to the Complaint by April 8, 1996. The Order also scheduled a second Prehearing Conference for April 26, 1996, at 10:30 a.m. and warned the Respondents that a finding may be made that the Complainant’s allegations were true without a presentation of further evidence except as to damages if they failed to file an answer or failed to appear at the April 26, 1996, Prehearing Conference.
4. The Respondents filed an Answer to the Complaint on April 8, 1996. Respondent Jeffrey Taube, the owner of Mid America Talent, appeared at the April 26, 1996, Prehearing Conference without benefit of counsel on behalf of both Respondents. Counsel for the Complainant was also present. A discovery schedule was established during the Prehearing Conference and the parties were notified that they were required to exchange proposed exhibit and witness lists by September 5, 1996. The hearing was scheduled to commence on September 19, 1996, and continue on September 20, 1996, if necessary. These dates were also set forth in a Second Prehearing Order that was issued on May 1, 1996.
5. The Administrative Law Judge was informed in a letter from counsel for the Complainant dated September 12, 1996, that Mr. Taube may have moved to California in late August and that the Respondents had failed to serve the Complainant with their witness and exhibit lists by September 5, 1996, as required by the Second Prehearing Order of the Administrative Law Judge issued on May 1, 1996.
6. The information relating to Mr. Taube’s possible move out of the state and the Respondents’ failure to comply with the Judge’s Order to serve witness and exhibit lists raised questions regarding whether the Respondents plan to appear at the hearing in this matter scheduled for September 19-20, 1996. Accordingly, on September 13, 1996, the Administrative Law Judge issued a Third Prehearing Order requiring that the Respondents (1) serve the Complainant with their witness and exhibit lists and file a copy of such lists with the Administrative Law Judge before 4:30 p.m. on September 17, 1996, and (2) inform counsel for the Complainant and the Administrative Law Judge by 4:30 p.m. on September 17, 1996, whether they had moved and provide any new address and telephone number. The Third Prehearing Order was sent to the Respondents by U.S. mail addressed to 1128 Harmon Place, Suite 306, Minneapolis, MN 55403, the address the Respondents had previously supplied to the Administrative Law Judge. Unsuccessful attempts were made to send the Third Prehearing Order to the Respondents by facsimile transmission on September 13 and September 16, 1996, and messages were left on the Respondents’ voice mail on those dates regarding the unsuccessful attempts to fax the Order.
7. Mr. Taube contacted the Administrative Law Judge by telephone on Monday, September 16, 1996. He stated that he was staying with his fiancee in California and that he was in the process of trying to decide whether he would be moving to California. He said that he was not yet sure whether he would be moving. He indicated that he no longer had a physical office in Minneapolis and merely had a telephone. He also stated that he was close to filing for bankruptcy. Mr. Taube supplied the Administrative Law Judge with a fax number in California, and the Administrative Law Judge agreed to fax the Third Prehearing Order to that number. The Judge told Mr. Taube what was required by the Third Prehearing Order. Mr. Taube indicated that he had sent his witness list to counsel for the Complainant several weeks ago. Mr. Taube further stated that he was not planning to be in Minneapolis on Thursday, September 19, when the hearing was scheduled to begin. When the Judge asked him if he was requesting a delay in the hearing date, Mr. Taube indicated that he was not aware that he had any ability to request a delay. The Administrative Law Judge referred Mr. Taube to Minn. Rules pt. 1400.7500, which governs the granting of continuances in contested case proceedings. Mr. Taube indicated that his copy of the rules was boxed up, and the Judge read him the first three paragraphs of Minn. Rules pt. 1400.7500. The Judge informed Mr. Taube that, if he wished to request a continuance, he should contact counsel for the Complainant to determine if counsel had any objection to a continuance and, if an objection was made, file a written request for a continuance with the Administrative Law Judge and arrange a telephone conference call between the Judge and the parties.
8. On Monday, September 16, 1996, the Administrative Law Judge faxed Mr. Taube a copy of the Third Prehearing Order at his fax number in California ((714) 261-1141).
9. The Respondents did not file their witness and exhibit lists with the Administrative Law Judge or provide the Judge with address and telephone number information by 4:30 p.m. on September 17, 1996, as required by paragraphs 1 and 2 of the Third Prehearing Order. The Respondents also did not file a written request for a continuance or arrange a conference call between the parties and the Judge to discuss a continuance at any time prior to the September 19, 1996, hearing date.
10. On Wednesday, September 18, 1996, counsel for the Complainant informed the Administrative Law Judge in a telephone conversation that Mr. Taube called him on Monday, September 16, 1996, or Tuesday, September 17, 1996. During the conversation, Mr. Taube told counsel for the Complainant that his witness list had not changed from the information he had previously provided during discovery, and said that he did not know that he would have any exhibits. Mr. Taube did not discuss a continuance with counsel for the Complainant at that time.
11. The Respondents did not appear at the hearing on September 19, 1996.
12. Mr. Taube left a message on the voice mail of the Administrative Law Judge at 1:20 p.m. on September 19, 1996. He stated that he wanted to make sure that the Judge had received his fax and requested that the hearing be rescheduled for some time after October 5 or 6, 1996. No such facsimile transmission had been received from Mr. Taube. The Administrative Law Judge called Mr. Taube back on September 19, 1996, at his Minneapolis number and left a message indicating that she had not received any fax from him and informing him of her fax number.
13. Mr. Taube called the Administrative Law Judge on September 20, 1996. During this conversation, Mr. Taube stated that he had originally sent a faxed request for continuance on September 18, 1996, but had erroneously sent it to Mr. Bolter’s fax number rather than the Administrative Law Judge’s fax number. Mr. Taube further stated that he was having difficulty transmitting the fax to the number the Administrative Law Judge had provided him because he kept getting a message indicating that it was a mobile phone number. The Administrative Law Judge confirmed that Mr. Taube had the correct fax number and he stated that he would try again to transmit the fax.
14. The Administrative Law Judge received a facsimile transmission from Mr. Taube at approximately 11:30 on September 20, 1996. In the fax, which was dated September 18, 1996, Mr. Taube stated that he had not relocated to California but was considering making the move in the near future. He said that he was staying with his fiancee when he was in California and with friends when he was in Minneapolis, but did not provide either address. He indicated that he had already filed his witness and exhibit list with Mr. Bolter and that Mr. Bolter had agreed that there was no need to re-submit them. Finally, he requested a continuance until the second week of October because he was “not financially able to return until that time.”
15. On September 25, 1996, Mr. Bolter, counsel for the Complainant, indicated in a telephone conversation with the Administrative Law Judge that Mr. Taube called him either on September 19 or September 20, 1996, and mentioned that he would like to request a continuance. Mr. Bolter told Mr. Taube that he would not agree to any continuance and that Mr. Taube should do what he had to do. The Administrative Law Judge received a letter from Mr. Bolter on September 25, 1996, in which he indicated that neither he nor his office staff who handle facsimile transmissions had received a facsimile transmission from Mr. Taube at any time during the week of the scheduled hearing on September 19, 1996.
16. Because the Respondents failed to file the required information with the Administrative Law Judge by 4:30 p.m. on September 17, 1996, failed to appear at the hearing on September 19, 1996, without the prior consent of the Administrative Law Judge, and failed to request a continuance prior to the hearing, they are in default.
17. Pursuant to Minn. Rules pt. 1400.6000, the allegations contained in the charges of discrimination attached to the Notice of and Order for Hearing and the Complaint subsequently filed by the Complainant are hereby taken as true and incorporated into these Findings of Fact.
Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1. The Administrative Law Judge has jurisdiction over this matter pursuant to Minn. Stat. §§ 14.50 and 363.071 (1994).
2, The Notice of Hearing issued in this matter was proper and the Complainant has complied with all relevant substantive and procedural requirements of law and rule.
3. Pursuant to Minn. R. 1400.6000, a default occurs when a party fails to comply with any interlocutory orders of the Administrative Law Judge or fails to appear at the hearing without the consent of the Judge.
4. The Respondents, having failed to comply with a prehearing order of the Administrative Law Judge, having made no appearance at the hearing without the prior consent of the Administrative Law Judge, and not requesting any continuance prior to the hearing, are in default.
5. The Respondents did not make any written request of the Administrative Law Judge for a continuance prior to the scheduled date of the hearing. No written request was received by either the Office of Administrative Hearings or counsel for the Complainant prior to the hearing.
6. Minn. R. 1400.7500 specifies that “[a] request for a continuance filed within five business days of the hearing shall be denied unless the reason for the request could not have been earlier ascertained.” Even if Mr. Taube had made a timely request for a continuance, his request would have been denied because there is no evidence that the reason for the request (his financial inability to travel to Minnesota) could not have been ascertained prior to the date of his request.
7. Pursuant to Minn. Rules pt. 1400.6000, the allegations contained in the charges of discrimination attached to the Notice of and Order for Hearing and the Complainant subsequently filed by the Complainant are hereby taken as true.
8. Respondent Mid America Talent discriminated against the Complainant on the basis of sex due to activities constituting sexual harassment within the meaning of Minn. Stat. § 363.01. subd. 41, in violation of Minn. Stat. § 363.03, subd. 1(2)(b) and (c), and engaged in acts of reprisal against the Complainant in violation of Minn. Stat. § 363.03, subd. 7(1).
9. Respondent Jeffrey Taube aided and abetted Respondent Mid America Talent in sexually harassing the Complainant and discriminating against her on the basis of sex, as well as allowing acts of retaliation and reprisal to occur, in violation of Minn. Stat. § 363.03, subd. 6(1).
10. The issue of the penalties, damages, or other relief to be awarded as a result of the above violations of the Minnesota Human Rights Act shall be addressed in a hearing to be held on October 10, 1996, at 2:00 p.m. in the courtrooms of the Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota. The Complainant and the Respondents shall be permitted to participate by telephone conference call, if they do not desire to appear in person.
11. If the Respondents wish to participate in the October 10, 1996, hearing by telephone conference call, they shall contact the Administrative Law Judge by 4:30 p.m. on October 9, 1996, and provide a number where they may be reached.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
ORDER
IT IS HEREBY ORDERED as follows:
1. Respondents Mid America Talent is liable to the Complainant for acts of sexual harassment which constitute discrimination on the basis of sex and for acts of reprisal against her in violation of Minn. Stat. § 363.03, subd. 1(2)(b) and (c), and subd. 7(1).
2. Respondent Jeffrey Taube is liable to the Complainant for aiding and abetting Respondent Mid America Talent in sexually harassing the Complainant and discriminating against her on the basis of sex, as well as allowing acts of retaliation and reprisal to occur, in violation of Minn. Stat. § 363.03, subd. 6(1).
3. A hearing to establish what, if any, penalties, damages, or relief shall be ordered pursuant to Minn. Stat. § 363.071, subds. 1a and 2, based upon the above violations of the Minnesota Human Rights Act shall be held at 2:00 p.m. on October 10, 1996, in the courtrooms of the Office of Administrative Hearings, 100 Washington Square, Suite 1700, Minneapolis, Minnesota. The Complainant and the Respondents shall be permitted to participate by telephone conference call, if they do not desire to appear in person. If the Respondents wish to participate in the October 10, 1996, hearing by telephone conference call, they shall contact the Administrative Law Judge by 4:30 p.m. on October 9, 1996, and provide a number where they may be reached.
Dated this 25th day of September, 1996
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BARBARA L. NEILSON
Administrative Law Judge
Reported: Default.