OAH Docket No. 12-1700-17139-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State
of Velma
Korbel, Commissioner, Department
of Human Rights, Complainant, and Theresa
Rinio, Laura Hegland, Alicia
Christensen, and Crystal Kory, Intervenors, v. Checkered
Flag, Inc. and Michael Rodahl, Respondents.
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ORDER ON PETITION TO INTERVENE |
This matter
is before Administrative Law Judge Steve M. Mihalchick on the Petition to
Intervene in this matter submitted on March 9, 2006, on behalf of Theresa Rinio
(“Rinio”), Laura Hegland (“Hegland”), Alicia Christensen (“Christensen”), and
Crystal Kory (“Kory”) (collectively “Petitioners”). Respondents Checkered Flag, Inc., and Michael
Rodahl (collectively “Respondents”) replied to the Petition, raising objections
to the proposed intervention. The
Department of Human Rights (“the Department”) filed a letter of support for
granting the intervention. The last
filing on the Petition was received on March 15, 2006.
Erica
Jacobson, Assistant Attorney General,
Based upon the record in this matter,
the Administrative Law Judge makes the following:
1.
The Petition
to Intervene of Rinio, Hegland, Christensen, and Kory is GRANTED. Petitioners shall file a Complaint in
Intervention within 20 days of this Order and Respondents shall file an Answer
thereto within 20 days of receipt.
2.
Counsel for
the Department and counsel for Petitioners will avoid duplication of discovery
requests made of Respondents.
3.
This Order
does not address any potential introduction of any issue for which no probable
cause was found by the Department.
4.
This Order
does not constitute an engagement of private attorneys by the Department and
Petitioners are advised that attorney’s fees for private attorneys may not be
available under Minn. Stat. § 363A.29, subds. 4 or 11.
Dated: April 4, 2006.
_/s/
Steve M. Mihalchick_______
STEVE
M. MIHALCHICK
Administrative
Law Judge
The Petitioners have each filed a
charge under the Minnesota Human Rights Act (Minn. Stat. Chap. 363A, also know
as the “MHRA”). The Petitioners are
seeking compensatory and punitive damages arising from alleged conduct asserted
to be sexual harassment in the workplace.
The Department found probable cause to believe that the MHRA had been
violated and initiated this proceeding.
In accordance with the MHRA, the Office of the Attorney
General (OAG) has provided the legal representation for the Department.[1] The Petitioners have requested to intervene
individually in this matter, asserting the Department’s interests are
sufficiently different from those of the Petitioners to support the inclusion
of Petitioners in this proceeding as parties in their own right. Respondents objected to allowing this
intervention, asserting that Petitioners’ interests are “fully protected by the
State of
Regarding counsel in contested cases, the MHRA addresses the
role of the OAG as between counsel for the Department and Charging Parties,
stating:
Subdivision 1. Attorney general; privileged
communication. The attorney general shall be the attorney for the
department. When a matter has been referred to the attorney general by the
commissioner after a finding of probable cause or for the purpose of interim
relief, communications between members of the attorney general's office and
charging parties or members of a class formed pursuant to section 363A.28,
subdivision 6, clause (6), are privileged as would be a communication between
an attorney and a client.[4]
This language requires the OAG to represent primarily the Department. However, the Department is seeking actual damages,
punitive damages, and attorneys’ fees to be paid to the Petitioners. There is overlap between that and the remedies
Charging Parties apparently seek by their intervention. Moreover, the OAG will unquestionably
represent the Petitioners interests more than adequately. Nonetheless, Petitioners certainly have the
right to retain their own counsel. And
the interests of the Department and Petitioners are not identical. Therefore, the Petition should be granted.
In support of intervention, Petitioners raised the issue of
Christensen’s constructive discharge claim, for which no probable cause was found. Petitioners maintained that this issue could
be addressed at the hearing, pursuant to Minn. Stat. § 363A.33, subd. 2. This Order does not address this issue, as it
is not necessary to or dispositive of the issue of intervention. It may be addressed after the Complaint in
Intervention and Answer are filed.
Respondents expressed concern over the
duplication of effort and potential duplication of attorney’s fees. There is potential for duplication of effort
and creation of unreasonable burdens upon Respondents in discovery and during
the hearing. Counsel are instructed to
avoid that where possible. Any award of
attorney’s fees under the MHRA in a contested case proceeding appears to be
governed by Minn. Stat. § 363A.29, subd. 11.
Granting the Petition to Intervene in this Order does not constitute the
Department engaging counsel for Petitioners.
S.M.M.