HR-87-006-PE
4-1700-863-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS
State of Minnesota, by Jayne D.
Khalifa, Acting Commissioner,
Department of Human Rights,
Complainant, ORDER DENYING
MOTION FOR SUMMARY
DISPOSITION
Cold Spring Granite Company,
Respondent.
The above-captioned matter is pending before the undersigned
Administrative Law Judge pursuant to a Complaint and a Notice and Order for
Hearing which are dated August 21, 1986,
Carl M. Warren, Special Assistant Attorney General, 1100 Bremer Tower,
Seventh Place and Minnesota Strr-@, St. Paul, Minnesota 55101, has appeared on
behalf of the Complainant (Department). Marcus M. Baukol II, Willenbring,
Lickteig & Dahl, Attorneys at Law, 215 South First Street, P.O. Box 417, Cold
Sprirg, Minnesota 56320, has appeared on behalf of the Respondent.
On September 26, 1986, the Respondent moved for dismissal of the
Complainant's Complaint on the grounds that the Complainant or the Charging
Party failed to comply with various time limits in the Minnesota Human Rights
Act, and on the alternative ground of laches. The specific statutory time
limits upon which the Respondent's Motion is based were further clarified in a
supplemental filing on November 10, 1986. The issues raised by the Respondent
were fully briefed by both parties, the last brief having been filed on
December 4, 1986.
Based upon all the files; records and proceedings herein, and for the
reasons set forth in the Memorandum attached hereto,
IT IS HEREBY ORDERED That the Respondent's Motion to Dismiss be and the
same is hereby DENIED.
Dated this 19 day of December, 1986.
PETER C. ERICKSON
Administrative Law Judge
MEMORANDUM
For purposes of the pending Motion, the parties have generally agreed to
the following set of facts: That the Charging Party, Arthur Welle, applied
for a job with the Respondent on October 30, 1979 by completing an application
for employment indicating that he desired employment on the "whire saw." He
was not hired. Subsequently, on March 21, 1980, Welle signed a Minnesota
Department of Human Rights form charging that the Respondent had discriminated
against him on the basis of a disability in the area of employment contrary to
Minn. Stat. 363.03, subd. 1(2)(a). That charge was acknowledged the same
day it was signed. The charge was received by the Minnesota Department of
Human Rights on March 26, 1980, and stamped as filed on May 5, 1980. On the
latter date, the Department wrote to the Respondent's president, advising him
of Welle's charge. The Respondent received the charge and the Department's
certified letter on May 8, 1980. In the Department's letter, the Department
requested that the Respondent submit a written reply to the charge and any
documentation, information or evidence that the Respondent wanted the
Department to consider. The Respondent wrote to the Department on May 12,
1980, acknowledging receipt of the charge, and advised the Department that the
charge was being reviewed by the Respondent's personnel department, and that
the Respondent would forward any information obtained upon completion of that
review. Subsequently, on September 5, 1980, Respondent's counsel wrote to the
Department, indicating that he would be providing additional information to
the Department shortly. There was no further communication between the
Respondent and the Department until June 21, 1984. At that time, the Acting
Commissioner wrote to the Respondent advising it that a special unit had been
created to work exclusively on backlog cases, including the charge filed by
Mr. Welle. In that letter, the Acting Commissioner advised the Respondent
that the special unit would begin operations in July, 1984, and requested that
the Respondent submit a written response to the charge, if it had not already
done so, by July 2, 1984. On July 5, 1984, Respondent's counsel replied to
the Acting Commissioner's letter . At that time, counsel indicated that the
Respondent denied Welle's charge.
On February 19, 1985, Respondent's counsel wrote to the Department
inquiring into the status of Welle's charge and complaining about the
Department's delay in its investigation. On March 8, 1985, a Human Rights
enforcement officer mailed an information request to the Respondent's
counsel. On April 9, 1985, Respondent's counsel mailed a copy of Welle's job
application to the enforcement officer. On May 8, 1985, a different
enforcement officer submitted an additional information request to
Respondent's counsel. Subsequently, on September 10, 1985, Respondent's
counsel replied to a subpoena which had been served upon the Respondent by the
Department. On November 13, 1985, the Department issued a probable cause
determination. In her probable cause letter to the Respondent, the
Commissioner asked the Respondent whether it was interested in conc i 1 i at i on.
On November 20, the Respondent indicated a desire to conciliate, and on April
20, 1986, another enforcement officer wrote to the Respondent's counsel asking
the Respondent to contact him to begin discussing conciliation. On June 19,
1986, Respondent's counsel advised the Department that conciliation had
failed. Consequently, on August 22, 1986, the instant Complaint and Notice
and Order for Hearing were issued.
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GROUNDS FOR DISMISSAL
In its moving papers, the Respondent has asserted four different grounds
for dismissal. three are based on the Department's noncompliance with
statutory time limits, and the fourth is based on equitable grounds (laches).
The Minnesota Human Rights Act contains a variety of time limitations that
apply to the Department in administering the Minnesota Human Rights Act.
Specific time limits apply to the filing of a charge, service of the charge
upon a respondent, and the Department's investigation of a charge. Respondent
alleges noncompliance with each of those time limits in this case.
Timeliness under Minn. Stat. 363.06, subd. 3.
At the time of the discriminatory act alleged in Welle's charge, Minn.
Stat. 363.06, subd. 3, provided as follows: "Time for filing charge. A
charge of an unfair discriminatory practice must be filed within six months
after the occurrence of the practice." In this case, the date of the
discriminatory act has not been established with certainty. Although it is
known that Welle applied !or employment on October 30, 1979, it is not certain
that he was rejected for employment at that time. However, assuming that he
was, the Respondent has not shown that his charge was not- filed within six
months after that date. The six-month period in this case would expire on
April 30, 1980. This follows from the provisions of Minn. Stat. 645.44,
subd. 13, where a "month" is defined as a calendar month. A calendar month is
the period of time intervening between a given date and the corresponding date
of the next succeeding month. See 86 C.J.S., Time, 10, p. 838-39. Since
the Respondent has not shown that the charge was filed with the Department
after April 30, 1980, that charge cannot be dismissed as untimely filed.
Although Welle's charge is stamped as having been filed on May 5, 1980, it
also contains a date stamp indicating that it was received by the Department
on March 26, 1980. For purposes of Minn. Stat. 363.06, subd. 3, a document
is filed when it is received by the Department. Minnesota Rules, HumRts
102(b) specifically addressed that issue, It states:
(b) Notwithstanding the provisions of Hum Rts 1 and 102(a), a
charge is deemed filed when the Department receives from a
person making a charge a written statement sufficiently precise
to identify the parties and describe generally the action or
practices complained of.
Under this rule, a charge is filed when received by the Department. In this
case, Welle's charge contains a date stamp showing that it was received by the
Department on March 26, 1980, which is within the six-month period specified
for the filing of charges in the statute. Therefore, Welle's charge was
timely.
Minn. Stat 363.06, subd. 1.
Under Minn. Stat. 363.06, subd. 1 (1980) the Commissioner was required
to serve a copy of any charge filed with the Department upon the Respondent
personally or by registered-or certified mail within five days of filing. The
Department did not serve a copy of Welle's charge upon the Respondent within
five days after it was filed, but 40 days after it was filed. Respondent
argules that the time limitation in 363.06, subd. 1 for serving the charge
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upon the Respondent is jurisdictional and the Department's failure to comply
with it requires that its Complaint and the underlying charge be dismissed.
That argument is not persuasive. In State by Gomez-Bethke v. Eastern
Airlines, 346 N.W.2d 184 (Minn. App. 1984), the Minnesota Court of Appeals
held that the time limit in Minn. Stat. 363.06, subd. I is not
juriscictional and that noncompliance will not preclude Departmental action
unless there is willfulness or bad faith on its part or substantial prejudice
to the Respondent. In this case, the Respondent has not shown that the
Department's failure to serve a copy of Welle's charge upon it was due to
willfulness or bad faith or that it resulted in substantial prejudice to it.
The Respondent did not present any evidence showing that the failure to
receive timely notice deprived it of an opportunity to minimize its damages,
hire Welle for an available position, or otherwise effectively conciliate his
claim. Therefore, the harsh remedy of dismissal is not appropriate.
Minn. Stat. 363.06, subd. 4(l) (1983 Supp.).
Eff ective on August 1, 1983, Minn. Stat. 363.06, subd. 4 was amended to
read as follows:
Subd. 4. Inquiry into charge. (1) Consistent with clause (7),
the commissioner shall promptly inquire into the truth of the
allegations of the charge. The commissioner shall make an
immediate inquiry when necessary to prevent a charging party
from suffering irreparable loss in the absence of immediate
action. The commissioner shall also make an immediate inquiry
when it appears that a charge is frivolous or without merit and
shall dismiss those charges. On other charges, the commissioner
shall make a determination within 12 months after the charge was
filed as to whether or not there is probable cause to credit the
allegation of unfair discriminatory practices.
Because the Commissioner's finding of probable cause in this case was not
issued within 12 months after Welle's charge was filed, or within 12 months
after August 1, 1983, the Respondent argues that the charge must be
dismissed. That argument is not persuasive. As a general rule, the time
limits that apply to agency actions under statutes which forbid discrimination
are held to be directory rather than mandatory. See, e.g., Zipes v.
TransWorld Airlines, Inc., 455 U.S. 385 (1982); Equal Employment Opportunity
Comm'n v. Burlington Northern, Inc., 644 F.2d 717 (8th Cir. 1981). For that
reason, the Minnesota Court of Appeals expressed reluctance to hold any time
limits In the Human Rights Act, other than the time limit for filing a charge,
to be jurisdictional. State by Gomez-Bethke v. Eastern Airlines, supra at
186, n. 1. For these reasons, it is concluded that the time limitation in
Minn. Stat. 363.06, subd. 4(l) is not a jurisdictional time limit for
Issuing a probable cause determination. This conclusion is consistent with
the general rule that statutorily imposed time limits are construed to be
directory rather than mandatory if the statute does not declare the
consequence of a failure to comply. Sullivan v. Credit River Township, 299
Minn. 170, 217 N.W.2d 502, 507 (1974); State v. Frisby, 260 Minn. 70 108
N.W.2d 769, 773 (1961). The Human Rights Act provides no penalties or any
remecy if the 12-month probable cause determination requirement is not met.
Hence, it should be construed to be directory rather than mandatory.
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Moreover, the 12-month probable cause determination requirement was not
effective until August 1, 1983, more than two years after the charge in this
case was filed with the Department. Minn. Stat. 645.21 (1984) specifically
provides that: "No law shall be construed to be retroactive unless clearly
and manifestly so intended by the Legislature." As stated above, the 1983
amendments to 363.06, subd. 4(l) WE-e not specifically made retroactive.
Moreover, it would not make sense to apply that statutory tinie limit to cases
that were already pending where the time period had or was about to expire.
Consequently, the Judge will not apply 12-month determination period in this
.case, but will examine timeliness in terms of prejudice to the Respondent.
Such an analysis essentially turns the issue of timeliness into one of
laches.
Laches.
The Respondent argued that the complaint and the underlying charge in this
chase should be dismissed on the ground of laches. In Occidental Life
Insurance Co. v. EEOC, 432 U.S. 355 (1977), the United States Supreme Court
indicated that an agency's right to sue an employer on a discrimination charge
made by an employee may be curtailed if the employer's ability to defend is
significantly impaired as a result of inordinate agency delays in commencing
suit. Based on that decision, most federal courts have assumed that laches is
an available defense to discrimination actions brought on behalf of-charging
parties by the Equal Employment Opportunity Commission (EEOC). See, e.g.,
EEOC v. Dresser Industries Inc., 668 F.2d 1199, 29 F.E.P. 249 (1lth Cir.
1982); EEOC v. Liberty Loan Corp., 584 F.2d 853 (8th Cir. 1978). The federal
standard for evaluating the laches defense should be applied in cases arising
under the Minnesota Human Rights Act. Danz v. Jones, 263 N.W.2d 395, 398-99
(Minn. 1978). Ile federal courts apply a two-prong test for determining
whether laches exists: (1) whether the agency unreasonably delayed bringing
suit, and (2) whether the employer was substantially prejudiced by the delay.
EEOC v. Liberty Loan Corp., supra at 857.
Reasonableness of Delay.
In this case the Agency waited six years and five months after Welle's
charge was filed before it commenced this proceeding. Within that long time,
there were several different procedural delays. The Agency delayed serving
the Respondent with notice of the charge for approximately 30 days longer than
provided by statute; it waited nearly five years before it began its formal
investigation; and it waited six months to schedule concilliation after a
probable cause determination was made. The Complainant argues that the
Respondent has failed to show that these delays were unreasonable and that the
Respondent contributed to them by failing to respond to the original notice of
the charge and by refusing to cooperate with the Department in providing
information it requested.
In a host of cases the courts have found that delays exceeding four years
or longer to be unreasonable. See, e.g. EEOC v. Liberty Loan_Corp., supra, at
857 and cases cited therein. A long delay in commencing an action under the
Minnesota Human Rights Act give rise to an inference of unreasonableness and
the Department, as a party best able to provide evidence of the reasons for
delay, has the burden to show that it was reasonable. Id. at 858. It cannot
rely on mere allegations of reasonableness. Id. In this case, the Department
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has not presented any evidence showing that the delays which occured were
reasonable. Shorter delays than that which are present in this case have been
found to be intolerable See, e.g., EEOC v. Dresser Industries, Inc., 668
F.2d I 1 99 (11 Cir . 1 982)
The Department attempted to explain the delays that incurred by alleging
that the Respondent was partially responsible for them. However, it presented
no evidence supporting its allegation that the Respondent's failure to respond
to the original notice of the charge, as it promised, contributed to the five
year delay which ensued before the Department began its investigation. In
fact such a position is untenable because the Department has an obligation to
undertake a prompt investigation of a charge, even if a respondent fails to
supplement its initial response, as it promises to do. Likewise, the
Department has failed to present evidence showing that the Respondent failed
to cooperate with information requests, and even if it had, the short delays
such a failure would have caused, would have been insignificant given that all
the information sought by the Department was gathered within a six month
period. Hence, it is concluded that the Respondent is not chargeable with the
delays that occurred or estopped to assert laches, and that the delays that
occurred were unreasonable.
Prejudice to Respondent.
The mere passage of time does not, by itself, require dismissal under the
laches doctrine. EEOC v. Westinghouse Electric_Corp., 592 F.2d 484, 486 (8th
Cir. 1979). Accord, EEOC v. Martin Processing, Inc., 533 F.Supp. 227, 230
(W.D.Va. 1982). Therefore, the Department's unreasonable delay does not
permit dismissal unless it prejudiced the Respondent's ability to defend. On
a motion for summary judgment, the moving party must establish prejudice with
such clarity as to leave no room for doubt that the other party is not
entitled to recover under any discernable circumstances. EEOC v. Westinghouse
Electric_Corp., supra, citing EEOC v. Liberty Loan Corp., supra. Hence,
prejudice must be established with more than "generalized assertions." EEOC
v. Chesapeake & Ohio Railway Co., 577 F.2d 229,234 (4th Cir. 1978).
The typical elements of prejudice involve the loss of records, personnel
changes and the unavailability of witnesses. EEOC v. Dresser Industries,
Inc., supra. In this case the Respondent argues that the mere passage of time
is prejudicial per se because some records have been destroyed and
recollections have dimmed. These generalized assertions are not sufficient to
establish prejudice. Occidental Life Insurance Co. of California v. EEOC, 432
U.S. 355 (1977)(Records); Fowler v. BlueBell, Inc., 596 F.2d 1276 (5th Cir.
1979)(Records); EEOC v. Massey-Ferguson, 622 F.2d 271 (7th Cir. 1980)(Dimmed
Memories). Although some courts have-indicated that the failure to retain
records may be excused when there is an inordinate delay, EEOC v. Alioto Fish
Co., 623 F.2d 86 (9th Cir. 1980), or when a party is unfamiliar with
administrative procedures underlying discrimination actions, EEOC v. Bray
Lumber, 478 F.Supp. 993 (M.D. Ga. 1979), there is no evidence in this case
that the Respondent destroyed documents, that those documents are essential to
its case, or that their destruction resulted from the delays that occurred.
In fact, if documents were destroyed it appears that they were destroyed
before a charge was even filed. As such, their destruction cannot be
attributed to the Complainant or the delays that occurred. As a general rule,
a party cannot assert the defense of laches merely because it has failed to
preserve evidence with knowledge of a pending claim. See, e.g., Bernard v..
Gulf Oil Co., 596 F.2d 1249, 1257 (5th Cir. 1979).
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Likewise, while the courts frequently allude to faded memories when
dismissing proceedings which have been unreasonably delayed, they have done so
when the respondents have identified other specific problems that have
resulted from the delays, such as the death of witnesses, retirements,
personnel changes and other factors, including business reorganizations
resulting in loss of records. However, the courts have not dismissed cases
under the laches doctrine based solely on unsupported allegations of faded
memories. See, EEOC v. Massey-Ferguson, supra. Since the Respondent has not
presented any affidavits or other evidence supporting its generalized
assertion that its witnesses' memories were impaired due to the delays that
occurred, it cannot be concluded that it has been prejudiced by those delays.
The Respondent has simply presented no concrete evidence of prejudice. It has
not shown that vital evidence has been destroyed or lost, that necessary
witnesses are now unavailable, or that memories have significantly faded,
making a presentation of the facts difficult or impossible. Since the record
does not establish that the Respondent has been prejudiced by the
Commissioner's tardy determination of probable cause, the Complaint should not
be dismissed.
Although the Respondent has not established prejudice at this point, that
does not necessarily mean that it is entitled to no relief after a complete
record is developed, or that damages awarded to the charging party in this
case, if any, should not be reduced because of the delays that have occurred.
See, e.q., Kamberos v. GTE Automatic Electric Inc., 603 F.2d 598 (7th Cir.
1979), cert. den, 102 S.Ct. 612, 27 F.E.P. 221 (1981).
P.C.E.
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