OAH Docket No. 7-1700-19038-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF HUMAN RIGHTS
|
State of Velma Korbel, Commissioner, Department of Human Rights, Complainant, v. Chisholm Medical Clinic, Respondent. |
ORDER DENYING SUMMARY DISPOSITION, DENYING MOTION
TO STRIKE, AND COMPELLING DISCOVERY |
This matter came before Administrative
Law Judge Richard C. Luis on cross motions by Chisholm Medical Clinic (“Respondent”) and the Department of Human
Rights (“Department”). Respondent has
moved for summary disposition and moved to strike an affidavit from the
pleadings. The Respondent’s motions were
received on February 7, 2008 and Februay 29, 2008. The Department moved to compel discovery of
employment records held by Respondent. The
Department’s motion was received on February 11, 2008. Both parties filed replies. Arguments on the motions were made on March
11, 2008, at the Office of Administrative Hearings. The motion record closed with the receipt of a
posthearing filing on March 12, 2008.
Margaret
Jacot, Assistant Attorney General, appeared on behalf of the Department. Henry M. Helgen, III, of McGrann Shea
Anderson Carnival Straughn & Lamb, Attorneys at Law, appeared on behalf of
the Respondent.
Based upon the record in
this matter, and for reasons set forth in the accompanying Memorandum, the
Administrative Law Judge makes the following:
1.
The
Respondent’s Motion for Summary Disposition is DENIED.
2.
The
Respondent’s Motion to Strike is DENIED, subject to the preparation of a
privilege log and submission of those documents for which privilege is claimed
to the ALJ for in camera review.
3.
The
Complainant’s Motion to Compel
Discovery is GRANTED.
4.
Dispostive
motions will be filed by the parties not later than March 26, 2008. The parties will disclose their witness
lists, a summary of testimony, and copies of exhibits not later than April 21,
2008. The hearing in this matter is
rescheduled to April 28 through 30, 2008.
Dated: March 14, 2008
_/s/
Richard C. Luis_________
RICHARD
C. LUIS
Administrative
Law Judge
Summary Disposition
Standard
Summary
disposition is the administrative equivalent of summary judgment. Summary disposition is appropriate where
there is no genuine issue as to any material fact and one party is entitled to
judgment as a matter of law.[1] The Office of Administrative Hearings has
generally followed the summary judgment standards developed in judicial courts
in considering motions for summary disposition regarding contested case
matters.[2] A genuine issue is one that is not sham or
frivolous. A material fact is a fact
whose resolution will affect the result or outcome of the case.[3]
The moving party has the initial
burden of showing the absence of a genuine issue concerning any material
fact. To successfully resist a motion
for summary judgment, the nonmoving party must show that there are specific
facts in dispute that have a bearing on the outcome of the case.[4] When considering a motion for summary
judgment, the Court must view the facts in the light most favorable to the
non-moving party.[5] All doubts and factual inferences must be
resolved against the moving party.[6] If reasonable minds could differ as to the
import of the evidence, judgment as a matter of law should not be granted.[7] Summary judgment should only be granted in
those instances where there is no dispute of fact and where there exists only
one conclusion.[8]
The Charging Party was employed by
Respondent as a lab technician. In 2005,
Charging Party’s pregnancy resulted in dizziness and a potential for
fainting. Charging Party was examined by
a physician who issued a physician’s order precluding phlebotomy work [blood
draws] for a period of two weeks. Respondent
discharged the Charging Party the day after the physician’s order was
presented. The Department brought a claim
of sex discrimination arising out of Charging Party’s discharge from employment
with Respondent. Respondent argues that
conducting blood draws is a bona fide occupational qualification (BFOQ) that
justifies the Charging Party’s discharge.
Respondent argues that the action was based on discrimination, the
reason for discharge was not a BFOQ, and that the matter should proceed to
hearing.
Respondent moves for summary
disposition, asserting that the discharge of the Charging Party is not
prohibited discrimination under the Human Rights Act.
Legal Standard
Charges of discrimination are
governed by the Minnesota Human Rights Act (Minn. Stat. Chap. 363A). Minn. Stat. § 363A.08, subd. 2, states in
pertinent part:
Subd.
2. Employer. Except when based on a bona fide occupational qualification, it is
an unfair employment practice for an employer, because of race, color, creed,
religion, national origin, sex, marital status, status with regard to public
assistance, membership or activity in a local commission, disability, sexual
orientation, or age to:
*
* *
(2)
discharge an employee; ….
Discrimination
based on sex includes “pregnancy, childbirth, and disabilities related to
pregnancy or childbirth.”[9]
There is no dispute that the Charging Party’s physical condition was
related to her pregnancy.
Factual Analysis
Respondent
maintains that the termination of the Charging Party was not discrimination
because it was based on a BFOQ, and thereby exempt under Minn. Stat. § 363A.08,
subd. 2. Respondent notes that blood
draws are part of a lab technician’s duties.
Respondent, relying on the Charging Party’s deposition testimony,
maintains that “blood-drawing phlebotomy duties … comprised at least 80% of her
job.”[10]
The Department
responded that the Charging Party’s deposition testimony was inaccurate, that the
decision-maker was unaware of what job duties were affected by the disability,
that no inquiry was performed as to stated reasons for the discharge, and that
the Respondent improperly considered the period outside of that stated in the
physician’s note in deciding to terminate the Charging Party.
Viewed in the
light most favorable to the non-moving party, as the ALJ must on a motion for
summary disposition, the following facts are presented by this matter:
On May 9, 2005,
Charging Party saw Dr. Kristina McCaughtry, her obstetrician (“OB-GYN”), regarding
dizzy spells, hot flashes and fainting. Dr.
McCaughtry diagnosed the cause of the dizziness as fetal positioning,
exacerbated by leaning over when Charging Party was drawing blood. The doctor told Charging Party that she should
not bend over at all for two weeks. [11] Dr. McCaughtry indicated that Charging Party
could continue working on light duty. Dr.
McCaughtry then wrote Charging Party a note which stated, “Ms. Fosso needs to
have 2 weeks of no phlebotomy duties due to syncope concerns.”[12] Phlebotomy means the drawing of blood.[13] The Charging Party did not think that she was
being removed from any work other than the process of drawing blood.[14]
Later on May
9, 2005, Charging Party presented the note to Ms. Redmond, her supervisor. Ms.
Redmond arranged to perform the blood draws.
In exchange, the Charging Party would perform some of Ms. Redmond’s outreach
scheduling work. Outreach scheduling was
performed sitting down with a patient and performing the scheduling or other
preparation required before that patient’s procedure was conducted at a
hospital. Ms. Redmond’s outreach
scheduling duties took an average of about two hours per day. Blood drawing was mainly performed standing
up.[15] The amount of time Ms. Redmond spent on
outreach was roughly equal to the amount of time that Charging Party spent
drawing blood.[16]
As a medical
laboratory technician, Charging Party’s job involved drawing blood, collecting
urine specimens, and processing lab samples including blood, urine, hemocult,
wet mount, throat cultures, urine pregnancy tests, mono spot tests, and blood
sugar tests. Charging Party was also
expected to complete blood, urine, and tissue specimen preparations for
reference lab testing and run controls on kits. She spent roughly 5 to 6 hours a day
processing lab samples. In addition, Charging
Party performed quality assurance/control testing on clinic machines, performed
proficiency testing, reviewed drug supplies and threw out expired drugs,
notified nursing homes regarding lab results, and filed lab and patient charts.
Occasionally, Charging Party would fill
in for the receptionist by taking phone calls and scheduling patients or she
would complete medical transcriptions for pre-ops. Sometimes Charging Party had special projects
including researching new tests and machinery for the clinic, meeting with
sales representatives for the machinery, and updating old x-ray files.[17]
The only job duty that Charging Party could not perform as a result of
her job restriction was drawing blood while standing up.[18]
After arranging
to address the work restriction with Ms. Redmond, the Charging Party gave Kim
Heise, the clinic’s office manager, a copy of the doctor’s note.[19] Charging Party told Ms. Heise that the job
duty adjustments were taken care of to meet the restriction.[20] Ms. Heise then brought the note to Dr. Wilson.[21]
On May 10, 2005, Dr. Wilson and Ms. Heise
called Ms. Redmond into a meeting and informed her that the Charging Party was
going to be terminated.[22] Ms. Redmond had not been consulted in arriving
at the decision.[23] Ms. Redmond told Dr. Wilson that she and Charging
Party had made plans to share duties, that Ms. Redmond would draw blood and Charging
Party would do the outreach scheduling duties.[24] Dr. Wilson replied that he had not known about
the plans and he would not change his mind.[25] Ms. Heise called Ms.
Fosso that evening and told her she was being terminated because the clinic
could not accommodate her pregnancy-related restrictions.[26] Ms. Fosso did not have any additional problems
with dizziness or fainting after leaving the Chisholm Medical Clinic.[27]
Ms. Redmond
and the Charging Party had divided their duties between them on previous
occasions. Neither Respondent nor other
employees objected to these divisions.[28]
The Charging Party’s position went unfilled by a full-time replacement
for almost two months.[29]
The Department
investigation has uncovered evidence that other employees of Respondent have
experienced negative job actions surrounding pregnancy-related issues. In 2002, nurse practitioner Tami Matuszak
became pregnant.[30]
Respondent agreed that she would receive six weeks of paid maternity
leave and when her leave ended she would return to work on a part-time basis,
working three days a week and receiving pay for those three days of work.[31] In May 2003, toward the end of her leave, Respondent
demanded that she return to work full time, which she did.[32] In October of 2003, Ms. Matuszak resigned due
to the change from a part-time schedule to full-time.[33] Respondent then demanded repayment of the
salary that Ms. Matuszak had received during her paid maternity leave. Respondent withheld Ms. Matuszak’s last
paycheck as partial payment and she had to sue in conciliation court to get her
paycheck. The court found in Ms. Matuszak’s favor and she was awarded back
wages. The judge also ordered Respondent
to pay Ms. Matuszak’ an additional amount as a penalty. [34] Dr. Wilson subsequently filed a complaint
concerning Ms. Matuszak to the Minnesota Board of Nursing.[35]
In December of
2003, Jennifer Showalter, the clinic’s office manager, was experiencing a high
risk pregnancy. At that time, Respondent
was moving from one clinic location to another. Dr.
In 2006, after
Ms. Fosso was terminated, clinic manager and R.N. Tammi Gustafson became
pregnant. She experienced complications
and her doctor restricted her to working only four hours per day. Ms. Gustafson was paid a salary rather than an
hourly wage and Dr. Wilson always told staff that as salaried employees,
sometimes they would work extra hours and sometimes they would work fewer hours
and they would always get paid the same salary. When Ms. Gustafson had to reduce her hours, Dr.
Wilson came to her afterward and indicated that she needed to pay him back part
of her salary for the time when she was working half time.[41] Dr.
Issues of Material Fact
The aim of the
Minnesota Human Rights Act is to eliminate discrimination, including actions
taken based on the status of a person, rather than that person’s
abilities. There is no issue regarding
the action having been taken due to the Charging Party’s pregnancy. Absent the BFOQ exemption, discrimination is
proven. Thus the issue for this motion
is whether the facts, taken in the light most favorable to the Charging Party,
support a conclusion that the Respondent did not make its decision on the basis
of a BFOQ.
Viewing the facts
in the light most favorable to the Charging Party, the Respondent was unaware
of what job responsibilities were being performed by which employees, the
restricted job duties [drawing blood] did not occupy an extremely large part of
the Charging Party’s job, the Charging Party’s immediate supervisor had
established a reasonable accommodation for the job restriction, and the
Respondent was unaware of both the accommodation and the actual limitations as
established by the Charging Party’s doctor.
These facts, if proven at the hearing in this matter, support a
conclusion that the Respondent did not make its decision based on a BFOQ. These facts, if proven at the hearing,
support a conclusion that the Respondent engaged in illegal discrimination and
that any claim of being motivated by a BFOQ is mere pretext.
Conclusion
The Department
has demonstrated that genuine issues of material fact exist as to whether the
Respondent’s action was motivated by a BFOQ or whether that is merely a pretext
for illegal discrimination. With the
existence of genuine issues of material fact, summary disposition is
inappropriate. The Respondent’s Motion
for Summary Disposition is therefore denied.
Motion to Strike
The
Department’s response to the Respondent’s summary disposition motion included
information from a Department investigator, Jill Klausing. Respondent has argued that the portion of the
Department’s brief relying on that information be stricken, along with the
Affidavit of Jill Klausing.[43]
Respondent submitted discovery requests to the Department, including a
request for the Department’s investigative file.[44]
The Department responded in part, by asserting that some of the information
sought, including the investigative file, was nonpublic or confidential data
under the Minnesota Data Practices Act (Minn. Stat. Chap. 13) or under Minn.
Stat. § 363A.35 of the MHRA. [45]
Respondent
maintains that the information sought to be stricken was not revealed during
discovery and that it constitutes inadmissible hearsay. The Respondent asserts that an administrative
agency cannot rely upon hearsay evidence that would be inadmissible in a
judicial proceeding, citing State ex rel.
ISD No. 276 v. Department of Education.
The holding in that decision was that an administrative agency cannot
solely rely on “inherently unreliable evidence, under the hearsay rule or
otherwise.” [46]
The contested
case rules governing these proceedings expressly allow for hearsay evidence,
stating:
Subpart
1.Admissible evidence. The judge may
admit all evidence which possesses probative value, including hearsay, if it is
the type of evidence on which reasonable, prudent persons are accustomed to
rely in the conduct of their serious affairs. The judge shall give effect to
the rules of privilege recognized by law. Evidence which is incompetent,
irrelevant, immaterial, or unduly repetitious shall be excluded.[47]
Since hearsay is
not excluded by the governing rules, if hearsay evidence is offered, the ALJ
will make a determination, consistent with the rules, as to whether that
evidence is sufficiently reliable to render the evidence admissible. There is no reason to strike the evidence
based solely on its hearsay nature.
The Respondent
maintains that the information sought to be stricken was not revealed during
discovery. The Respondent asserts that
the appropriate sanction is striking the identified information. The relevant discovery standards in contested
case proceedings state:
Subpart
1.Witnesses; statement by parties or witnesses.
Each party shall, within ten days of a written demand by another party,
disclose the following:
A. The names and addresses of all witnesses that
a party intends to call at the hearing, along with a brief summary of each
witness' testimony. All witnesses unknown at the time of said disclosure shall
be disclosed as soon as they become known.
B. Any relevant written or recorded statements
made by the party or by witnesses on behalf of a party. The demanding party
shall be permitted to inspect and reproduce any such statements
C. All written exhibits to be introduced at the
hearing. The exhibits need not be produced until one week before the hearing
unless otherwise ordered.
D. Any party unreasonably failing upon demand to
make the disclosure required by this subpart may, in the discretion of the
judge, be foreclosed from presenting any evidence at the hearing through
witnesses or exhibits not disclosed or through witnesses whose statements are
not disclosed.[48]
The issue of
nondisclosure was analyzed in another recent contested case proceeding:
The
broad brush with which the Department asserts its objection to Respondent’s
discovery request makes it impossible to determine whether, or to what extent,
its investigative file is subject to discovery.
The Department has not asserted any privilege recognized by law for
withholding information from its file.
While there may be documents which are not discoverable, such as those
protected by attorney-client privilege, the ALJ cannot determine what they may
be based on the Department’s response.
Therefore, the ALJ is requiring the Department to submit, for in camera
review, the documents with specific information about the type of documents
being submitted and how or why the documents should not be made available. [49]
The failure to
disclose during discovery is correctly cited as a breach of the Department’s
obligation to reveal, in a timely fashion, the evidence for its various claims
against the Respondent. Counsel for the
Department recognized that the information, particularly regarding additional
witnesses, should be disclosed in the event any of these persons should be
called to testify. Counsel promptly
disclosed those witnesses after the hearing on this motion.
The rules
governing failure to disclose allow the ALJ to exclude undisclosed witnesses or
undisclosed documents from admission to the hearing record. Exclusion is a severe sanction and it should
not be applied absent a showing of prejudice to the party seeking
discovery. In this matter, there is no
prejudice since the witnesses are available for interviews prior to the
hearing.[50]
While the
Department has identified potential witnesses, the contents of the Department’s
investigative file remains undisclosed. The
contents of the file are likely to be relevant to this matter and that file
remains undisclosed. Rather than
guessing whether any part of the file is appropriately stricken for failing to
disclose, the ALJ will require the Department to prepare a privilege log (similar
to that required under the Minnesota Rules of Civil Procedure) and identify
what information, if any, is actually in the file and properly not revealed due
to either the Minnesota Data Practices Act or the MHRA. The ALJ will conduct an in camera review of the identified documents and determine whether
they can be released. The documents so
released will either be redacted or a Protective Order issued that will prohibit
the disclosure or use of those documents outside of this proceeding. Subject to these conditions, the Respondent’s
request to strike is denied.
Motion to Compel Discovery
The Department
made a discovery request for the Respondent’s payroll records between 2002 and
2005 and specific categories of information regarding former and current employees,
dating from January 1, 2002. Respondent
objected to the discovery requests as overbroad, and provided the names of 35
employees. Regarding the requested current
employee information, the Respondent identified twelve employees. The Respondent supplemented its answers in
response to the Department’s Motion to Compel.
The supplemented answers have payroll data for the Respondent from
January 9, 2005 to June 3, 2005.[51]
Under the MHRA, where an employer has
meets a designated threshold of numbers of employees, the employer is required
to accommodate a disabled employee, unless doing so would create an “undue
hardship” on the employer.[52] At issue in this proceeding is whether the
Respondent is subject to the additional affirmative obligation regarding
reasonable accommodation. The pertinent language
in the statute sets the standard as “an employer with a number of part-time or
full-time employees for each working day in each of 20 or more calendar weeks
in the current or preceding calendar year . . . equal to or greater than 15 …..”[53]
The Respondent
asserted that it met its obligation by providing five months of payroll data
ending at the time of the Charging Party’s discharge. The Department noted that the statute refers
to the current or preceding calendar year, which in this matter would be all of
2004 and all of 2005.
The statutory
provision is unambiguous in that where an employer has 15 full- or part-time
employees for any period of 20 weeks in the calendar year when the alleged
discrimination occurred or the calendar year prior, the threshold is
triggered. The Respondent’s entire
payroll for all of 2004 and all of 2005 is relevant and must be provided.
A different
question is posed by the request for specific information, as detailed in the
Department’s information request regarding persons who left the Respondent’s
employ from January 1, 2002, onward.[54]
The Department is seeking to prove discrimination in employment, which
necessarily reaches intent by an employer in making decisions, particularly
regarding continued employment. The
Department has identified a number of former employees whose employment status
with Respondent changed at the time they became pregnant.
The fact of a
change in employment status does not, by itself, prove discrimination. But a comparison of the treatment of all
employees to that of employees who become pregnant can lead to or reveal
evidence of possible discrimination. That sort of evidence is likely to be
relevant to the issues in this proceeding.
The Respondent has made no showing that the request regarding these
specific employees is unduly burdensome.
The Department’s Motion to Compel is granted.
R.C.L.
[1] Sauter v.
Sauter, 70 N.W.2d 351, 353 (
[2] See,
[3] Illinois
Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 634 (
[4] Thiele v.
Stitch, 425 N.W.2d 580, 583 (
[5] Ostendorf v.
Kenyon, 347 N.W.2d 834 (
[6] See, e.g.,
Thompson v.
[7]
[8]
[9] Minn. Stat. § 363A.03, subd. 42.
[10] Respondent’s
Memorandum of Law in Support of Motion for Summary Disposition, at 4.
[11] Affidavit of Kalee Fosso (“Fosso Aff.”) ¶ 3.
[12] Jacot Aff. Ex. C, Heise Dep. Ex. 12.
[13]
[14] Fosso Aff. ¶ 3.
[15]
Jacot Aff. Ex. B,
[16]
Affidavit of Marianne
Redmond (“
[17] Fosso Aff. ¶ 2.
[18] Jacot Aff. Ex. A, Fosso Dep. 31:4-10, 36:10-11.
[19]
Jacot Aff. Ex. B,
[20]
[21] Id. Ex. C, Heise Dep. 40:15-41:15, Ex. D, Deposition of Dr. William Wilson (“Wilson Dep.”) 80:6-14, January 10, 2008.
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29] Jacot Aff. Ex, C, Heise Dep. 80:8-81:3.
[30] Jacot Aff. Ex. D, Wilson Dep. Ex. 4.
[31] Klausing Aff. ¶ 4.
[32] Jacot Aff. Ex. D, Wilson Dep. Ex. 4.
[33]
[34] Klausing Aff. ¶ 5-6.
[35] Jacot Aff. Ex. D, Wilson Dep. 5 8:2-4.
[36] Klausing Aff. ¶ 12.
[37]
[38]
[39]
[40] Jacot Aff. Ex. D, Wilson Dep. Ex. 1.
[41] Klausing Aff. ¶ 9.
[42] Jacot Aff. Ex, D, Wilson Dep. 69:18-24, 70:14-16, Ex. M at 10, 13.
[43] As the
Department pointed out, the Respondent did not file a formal written motion on
this issue. The ALJ with deal with the
issue regardless.
[44] Helgen Affidavit, Exhibit B, Request No. 16.
[45] Helgen
Affidavit, Exhibit C, at 4, 6, 9, and 11-14.
[46] State ex rel. ISD No. 276 v. Department of
Education, 296 N.W.2d 619, 627 (
[47]
Minn.
Rule 1400.7300, subp. 1..
[48] Minn. Rule 1400.6700, subp. 1
[49] State of Minnesota by Korbel v. Clay County,
OAH Docket No. 15-1700-18042-2 (Order on Motions to Compel Discovery issued
October, 2007).
[50] At the motion hearing, the Respondent
maintained that prejudice arose from the expense of deposing these
witnesses. There is no requirement that
the witnesses be deposed. The
Respondent’s burden in conducting depositions is no different than if the
witnesses were disclosed earlier. The
Respondent has not shown prejudice regarding these witnesses.
[51] Helgen
Discovery Affidavit, Exhibit A. The
accompanying brief describes the data provided as running from June, 2004 to
June, 2005, but this appears to be incorrect.
[52] Minn. Stat. § 363A.08, subd. 6(a); Kammueller v. Loomis, Fargo & Co.,
285 F. Supp. 2d 1200, 1210 (D.
[53] Minn. Stat. § 363A.08, subd. 6(a).
[54] Jacot Discovery Aff. Ex. E (Initial Information Request).