11-1700-9669-2

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF HUMAN RIGHTS

 

 

Felanthus Davis,

                               Complainant,

                                                                         RULING REGARDING RESPONDENT’S

vs.                                                                    MOTION FOR SUMMARY DISPOSITION

 

Specialty Staff,

                               Respondent.

 

 

            The above matter is pending before Administrative Law Judge Barbara L. Neilson pursuant to a Motion for Summary Judgment filed by the Respondent.  Sonja Dunnwald Peterson, Attorney at Law, Horton & Associates, 700 Title Insurance Building, 400 Second Avenue South, Minneapolis, Minnesota  55402, appeared on behalf of the Complainant.  Timothy F. Moynihan, Attorney at Law, Krass, Monroe, Moxness and Gibson, P.A., Suite 1100, South Point Office Center, 1650 West 82nd Street, Bloomington, Minnesota  55431-1447, appeared on behalf of Specialty Staff.

            Based upon all of the records, files, and proceedings herein, IT IS HEREBY ORDERED as follows:

            1.      The Respondent’s Motion for Summary Judgment is GRANTED with respect to the Complainant’s claim that the Respondent violated Minn. Stat. § 363.03, subd. 1(3)(a) and (b), which prohibits discrimination by “employment agencies.”

            2.      The Respondent’s Motion for Summary Judgment is DENIED with respect to the Complainant’s claim that the Respondent violated Minn. Stat. § 363.03, subd. 1(2), which prohibits discrimination by “employers,” by failing to take timely and appropriate corrective action after the Complainant allegedly received a racist note while working on assignment for McGill-Jensen, Inc.

            3.      The discovery period in this case shall be reopened and extended to June 26, 1996.

            4.      A telephone conference call shall be held on Monday, July 8, 1996, at 2:30 p.m. to discuss a new hearing schedule.  The Administrative Law Judge will initiate the conference call.

Dated this _____ day of April, 1996.

                                                                    ___________________________________

                                                                     BARBARA L. NEILSON

                                                                     Administrative Law Judge

 

MEMORANDUM

            The Complainant, Felanthus Davis, filed a discrimination charge against Specialty Staff with the Minnesota Department of Human Rights on or about August 31, 1993.[1] In his charge, Mr. Davis alleged that he was a black male who was employed by Specialty Staff and worked on assignment as a third-shift machine operator at McGill-Jensen, Inc., from August 15 to August 19, 1993.  He further alleged that Specialty Staff aided and abetted McGill-Jensen in discriminating against him by complying with a request to remove him from the assignment based on his race and the reaction of McGill-Jensen employees to the presence of a black worker.  The charge asserted that Specialty Staff “has discriminated against [Mr. Davis] on the basis of race in violation of Minnesota Statutes 363.03, subd. 1(3)(a) and (b) [which forbids discrimination by an “employment agency”], and has aided and abetted discriminatory practices in violation of Minnesota Statutes 363.03, subd. 6(1) and 6(2).”  Before the Department of Human Rights concluded its investigation, Complainant requested that the matter be scheduled for hearing before an Administrative Law Judge pursuant to Minn. Stat. § 363.071, subd. 1a (1994), and a Notice of and Order for Hearing was issued thereafter.  Specialty Staff has filed a Motion for Summary Judgment in which it argues that Mr. Davis cannot establish a prima facie case of discrimination; Specialty Staff had a legitimate, non-discriminatory reason for its actions; and Specialty Staff’s actions were not a mere pretext for discrimination.  The Complainant has opposed the Motion for Summary Judgment based upon his assertion that he has stated an actionable claim and genuine issues of material fact remain for trial. 

            Summary disposition is the administrative equivalent to summary judgment.  Minn. Rules pt. 1400.5500(K) (1995).  Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. App. 1985); Minn. R. Civ. P. 56.03.  The Office of Administrative Hearings has generally followed the summary judgment standards developed in judicial courts in considering motions for summary disposition regarding contested cases.  See Minn. Rules pt. 1400.6600. 

            It is well established that, in order to successfully resist a motion for summary judgment, the non-moving party (here, the Complainant) must show that specific facts are in dispute which have a bearing on the outcome of the case.  Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).  The existence of a genuine issue of material fact must be established by the non-moving party by substantial evidence; general averments are not enough to meet the non-moving party’s burden under Minn. R. Civ. P. 56.05.  Id.; Murphy v. Country House, Inc., 307 Minn. 344, 351-52, 240 N.W.2d 507, 512 (1976); Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1988).  Summary judgment may be entered against the party who has the burden of proof at the hearing if that party fails to make a sufficient showing of the existence of an essential element of its case after adequate time to complete discovery.  Id.  To meet this burden, the party must offer “significant probative evidence” tending to support its claims. A mere showing that there is some “metaphysical doubt” as to material facts does not meet this burden.  Id.  The evidence presented to defeat a summary judgment motion, however, need not be in a form that would be admissible at trial.  Carlisle, 437 N.W.2d at 715 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). 

            The non-moving party has the benefit of that view of the evidence which is most favorable to him or her, and all doubts and inferences must be resolved against the moving party.  See, e.g., Celotex, 477 U.S. at 325; Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988); Greaton v. Enich, 185 N.W.2d 876, 878 (Minn. 1971); Thompson v. Campbell, 845 F.Supp. 665, 672 (D. Minn. 1994).  If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986).  The U.S. Court of Appeals for the Eighth Circuit has cautioned that “[s]ummary judgments should be sparingly used [in cases alleging employment discrimination] and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion . . . .  All the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the non-moving party.”  Johnson v. Minnesota Historical Society, 931 F.2d 1239, 1244 (8th Cir. 1991), relying upon Hillebrand v. M-Tron Industries, Inc., 827 F.2d 363, 3264 (8th Cir. 1987), cert. denied, 488 U.S. 1004 (1989), and Holley v. Sanyo Manufacturing, Inc., 771 F.2d 1161, 1164 (8th Cir. 1985).

I.  Factual Background

            Based upon the memoranda, affidavits, discovery responses, and depositions submitted in this matter, and construing the facts in a light most favorable to the Complainant, the Administrative Law Judge assumes solely for purposes of considering the Motion for Summary Disposition that the following facts are true.  Mr. Davis is an African American male who registered for temporary work at Respondent Specialty Staff, Inc., on June 8, 1993.  Specialty Staff is a temporary employment agency that provides personnel to customers of the agency on an assignment-by-assignment basis.  When customers contact Specialty Staff to request personnel to perform temporary light industrial labor, Specialty Staff makes the necessary arrangements to send its employees to perform the assignment at the customer’s place of business.  Specialty Staff charges its customers for each of its employees based upon the number of personnel hours worked at the customer’s place of business.  After the assignment has been completed, Specialty Staff places its employees on another assignment.  All of the personnel sent to customers’ places of business are on the payroll of Specialty Staff.  Specialty Staff pays these employees, withholds the appropriate taxes from their paychecks, and pays the employer’s share of social security taxes for the work performed by these employees. Specialty Staff also maintain unemployment and worker’s compensation insurance coverage for these employees.  Affidavit of James B. Croft, ¶¶ 1-4.

            Mr. Davis had worked for temporary employment agencies prior to the time that he began working for Specialty Staff and understood that the temporary employment agency was his employer.  Davis Deposition at 19, 21-22.  Mr. Davis’ first assignment after he began working for Specialty Staff was at Nordic Ware.  Mr. Davis later terminated his assignment at Nordic Ware because he moved to St. Paul and found it difficult to commute to Nordic Ware.  He had no problems with his assignment at Nordic Ware or his treatment by Specialty Staff while he was at Nordic Ware.  Id. at 47, 49.  Mr. Davis turned down the next assignment offered by Specialty Staff at Tyro Industries based upon the pay.  Mr. Davis later accepted an assignment at McGill-Jensen.  He had no problems with Specialty Staff at that time.  Id. at 53-55.

            Mr. Davis worked at McGill-Jensen from August 15, 1993, through August 19, 1993, in its bindery department on the third shift, which ran from 11:00 p.m. to 7:00 a.m., doing light industrial work.  During the time that Mr. Davis worked for McGill-Jensen, he was told several times by a machine operator who monitored him that he was doing a good job.  He received no complaints about his work.  Mr. Davis was also told by Shannon Carpentier of Specialty Staff and by a McGill-Jensen employee nicknamed “Peep” that he would be given a permanent full-time job with benefits at McGill-Jensen after a 30-day probation period.  Complainant’s Interrogatory Answers at 2.

            On August 16, 1993, two people that Mr. Davis believed to be McGill-Jensen employees gave him “dirty looks” and “sneers” that made him feel uncomfortable. Mr. Davis did not do anything in response to this conduct.  On August 17, 1993, Mr. Davis continued to receive the same dirty looks and sneers.  He did not tell anyone in the workplace about this conduct.  Davis Dep. at 61-64, 66, 69-70; Complainant’s Answers to Respondent’s Second Set of Interrogatories at 2.

            On or about the morning of August 19, 1993, Jenny Danley, Specialty Staff’s Coordinator, called Mr. Davis and told him that McGill-Jensen no longer needed his services because of complications or problems.  Complainant’s Interrogatory Answers at 2. Mr. Davis told Ms. Danley there had to be a mistake because he had received outstanding compliments at McGill-Jensen.  Ms. Danley said that she would call Mr. Davis back.  Mr. Davis called Specialty Staff back and talked to Warren Clayton, Specialty Staff’s Sales Manager.  Mr. Clayton told Mr. Davis that McGill-Jensen did not want him back.  Mr. Davis told Mr. Clayton that something was going wrong, that he was going to find out what it was, and that it was not fair.  Mr. Clayton said that McGill-Jensen was cutting back.  Mr. Davis said that that was a lie because he had been told before accepting the job about the job opportunities at McGill-Jensen after a 30-day probation period.  Mr. Clayton said he would check on this and hung up.  Less than a minute later, Mr. Clayton called Mr. Davis and said, “O.K. Felanthus, you can go back.”  Mr. Davis was angered by this treatment and told Mr. Clayton that he did not want to go back if he “had to go through hassle with the temp or Specialty Staff.”  Mr. Clayton told him that he did not have to worry about it, and Mr. Davis told him that he would go back to McGill-Jensen. Complainant’s Interrogatory Answers at 3.

            Mr. Davis reported to work at McGill-Jensen for the third shift on August 19, 1993, at 11:00 p.m.  Other Specialty Staff employees were also working at McGill-Jensen on the third shift on August 19.  After arriving, Mr. Davis put his baseball cap down on some boxes next to the machine he had previously operated.  About five employees were grouped together and watched Mr. Davis when he came to punch in.  One male employee in the group said to Mr. Davis, “Hey, let’s go to the board to see what machine you’ll work on.”  The employee then took Mr. Davis to the spot where Mr. Davis’ name tag was crumpled up and lying on the floor.  Mr. Davis picked up the name tag, saw his name on it, and went to the break room to call his wife.  Complainant’s Interrogatory Answers at 3.

            When Mr. Davis returned to where he had left his cap, he found that someone had left a folded white piece of paper inside his cap.  He read the note.  The note stated, “You fucken nigger Come back and die!!!  You will hang!  You aids infected nigger You will burn!  This has only just begun!  White power is here to Stay!  go back to Africa.  You black ass nigger Porch Monkey this is a white world.  You are not wanted nigger!!”  Mr. Davis immediately took the note to “Peep,” who told him to go to the office.  Mr. Davis went to the office and showed the note to Bruce McCabe, McGill-Jensen’s third shift supervisor.  As Mr. McCabe read the letter, Mr. Davis said, “This is wrong.  That’s funny because I got a phone call . . . .”  Mr. McCabe cut Mr. Davis off and yelled, “I don’t have to tolerate this from you!”  Mr. Davis snatched the note back.  Mr. McCabe said, “I’m not going to let you get out of here with that [note]!”  Mr. Davis began crying and ran out of the office.  He stuffed the note in his pants so that no one could take it and went home.  Complainant’s Interrogatory Answers at 4.

            On or about August 20, 1993, Mr. Davis called Specialty Staff and told Paul Hughes, Specialty Staff’s Vice President, that he had received racial hate mail at McGill-Jensen.  Mr. Hughes told Mr. Davis to bring the note to him so he could look at it.  Mr. Davis was afraid and told him that he would not bring it in.  Mr. Davis also refused to read the note to him over the telephone.  Mr. Hughes informed Mr. Davis that he needed his cooperation in order to investigate the incident. On or about August 26, 1993, Mr. Davis called Specialty Staff to ask about his paycheck and was told by Mr. Hughes that his paycheck was at the St. Paul office.  When Mr. Hughes asked if Mr. Davis wanted any work, Mr. Davis told him that he did not want to work for Specialty Staff any more.  Mr. Davis again refused to produce a copy of the note.  Complainant’s Interrogatory Answers at 4-5; Davis Dep. at 94-95; Statement of Paul Hughes.

            Mr. Davis filed a charge of race discrimination against Specialty Staff with the Minnesota Department of Human Rights on August 31, 1993.  Specialty Staff received a copy of the charge in early September of 1993 and filed an initial response with the Department of Human Rights on or about September 14, 1993.  See Ex. D appended to the Complainant’s Memorandum in Opposition to the Motion.

            Specialty Staff began pulling its employees from McGill-Jensen in September of 1993.  Its final employee left McGill-Jensen by October 31, 1993, and Specialty Staff ceased doing business with McGill-Jensen as of that date.  Second Affidavit of James B. Croft, ¶ 1.

II. Discussion

            As a threshold matter, the Complainant has essentially conceded that the charge erroneously alleged a violation of the provisions of the Minnesota Human Rights Act relating to “employment agencies.” The Complainant has ascertained through discovery that Mr. Davis was, in fact, actually employed by Specialty Staff and that Specialty Staff did not act as an “employment agency” within the meaning of the MHRA.  Accordingly, summary judgment is granted for Specialty Staff as to the claim that it violated Minn. Stat. § 363.03, subd. 1(3)(a) and (b).

            The main focus of the Complainant’s current claim with respect to Specialty Staff appears to be an allegation that Specialty Staff discriminated against Mr. Davis, its employee, by failing to take prompt corrective action with respect to his receipt of the alleged racist note while on assignment at McGill-Jensen.  This is not a claim that the Complainant clearly specified in his charge or in his discovery responses..[2]

            The MHRA provides in pertinent part that it is an unfair employment practice for an employer “to discriminate against a person with respect to hiring, . . . terms, . . . conditions, . . . or privileges of employment” because of race, unless based on a bona fide occupational qualification.  Minn. Stat. § 363.03, subd. 1(2) (1994).  Minnesota courts have often relied upon case law developed in discrimination cases arising under federal law in interpreting the MHRA.  See, e.g., Continental Can Co. v. State, 297 N.W.2d 241, 246 (Minn. 1980); Danz v. Jones, 263 N.W.2d 395, 398-99 (Minn. 1978). 

            Relevant Minnesota case law establishes that plaintiffs in employment discrimination cases arising under the MHRA may prove their case either by presenting direct evidence of discriminatory intent or by presenting circumstantial evidence in accordance with the analysis first set out by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973).  Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 & n. 4 (Minn. 1992); Sigurdson v. Isanti County, 386 N.W.2d 715, 719 (Minn. 1986); Danz v. Jones, 263 N.W.2d at 399.  The approach set forth in McDonnell Douglas consists of a three-part analysis which first requires the complainant to establish a prima facie case of disparate treatment based upon a statutorily-prohibited discriminatory factor.  Once a prima facie case is established, a presumption arises that the respondent unlawfully discriminated against the complainant. The burden of producing evidence then shifts to the respondent, who is required to articulate a legitimate, nondiscriminatory reason for its treatment of the complainant.   If the respondent establishes a legitimate, nondiscriminatory reason, the burden of production shifts back to the complainant to demonstrate the respondent’s claimed reasons were pretextual.  McDonnell Douglas, 411 U.S. at 802-04; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619, 623 (Minn. 1989); Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983).  The burden of proof remains at all times with the complainant.  Fisher Nut Co. v. Lewis ex rel. Garcia, 320 N.W.2d 731 (Minn. 1982); Lamb v. Village of Bagley, 310 N.W.2d 508, 510 (Minn. 1981).  It is clear that the three-part McDonnell Douglas analysis is to be applied in deciding summary judgment motions involving disparate treatment claims under the MHRA where, as here, there is no direct evidence of discriminatory intent.  Albertson v. FMC Corp., 437 N.W.2d 113, 115 (Minn. App. 1989), citing Sigurdson v. Isanti County, 386 N.W.2d 715, 719-22; see also Rademacher v. FMC Corp., 431 N.W.2d 879, 882 (Minn. App. 1988); Shea v. Hanna Mining Co., 397 N.W.2d 362, 368 (Minn. App. 1986).

            The elements of a prima facie case of discrimination vary depending upon the type of discrimination alleged, and must be tailored to fit the particular circumstances.  In order to establish a prima facie case of discrimination based upon alleged sexual harassment, the Minnesota Supreme Court has held that the employee must establish that: (1)  the employee belongs to a protected group; (2)  the employee was subjected to unwelcome harassment; (3)  the harassment complained of was based on the protected status; (4)  the harassment complained of affected a “term, condition, or privilege” of employment; and (5)  the employer is liable because it knew or should have known of the harassment and failed to take timely and appropriate action.  Continental Can Co. v. State, 297 N.W.2d 241, 247-48 (Minn. 1980).  This analysis also appears to be appropriate in evaluating a racial harassment claim, with the possible modification of the second factor to eliminate the requirement that the harassment be shown to be “unwelcome.”  See L. Larson, Employment Discrimination § 52.02 (July 1995 Supp.) at 15 (“[T]he unwelcomeness requirement was introduced into sexual harassment claims to differentiate between sexual conduct in the workplace that was offensive and that which signaled the beginning of a consensual relationship.  There is simply no counterpart in the . . . racial harassment cases because the complained-of conduct is, itself, offensive and rooted in animosity toward a person because of their protected characteristics.”)

            It appears that there is no dispute that Mr. Davis is African American and thus a member of a protected class.  For purposes of this Motion, the Respondent has not disputed that Mr. Davis received a racial hate note from co-workers at McGill-Jensen or the contents of that note. A single outrageous incident involving the use of a racial epithet such as “nigger” may be sufficient to establish a claim of racial harassment.  Rodgers v. Western-Southern Life Insurance Co., 12 F.3d 668 (7th Cir. 1993).  The receipt of a note that contains “nigger” and several other racial epithets and specifically threatens the recipient’s life is sufficiently severe to qualify under the Rodgers standard and to be deemed to have affected a term, condition, or privilege of employment.  Complainant thus has presented facts which, if proven, will be sufficient to support a finding that he has satisfied the first through the fourth elements of the prima facie case requirement.

            Specialty Staff contends in its Motion for Summary Judgment, however, that the Complainant cannot establish the fifth element  of the prima facie case requirement. Specialty Staff asserts that it did, in fact, conduct a follow-up investigation, only to have it thwarted by Mr. Davis himself.  Specialty Staff presented evidence that Mr. Davis refused to bring in the “hate note,” provide Specialty Staff with a copy of the note, or read the note to Specialty Staff personnel over the phone. Specialty Staff also alleges that Mr. Clayton contacted Ross Hooge, McGill-Jensen’s Human Resources Manager, to investigate the incident and that Mr. Hooge told Mr. Clayton that, on advice of counsel, McGill-Jensen employees were not to discuss the incident with anyone.  Specialty Staff further points out that the FBI later subpoenaed and seized all of Specialty Staff’s records relating to the incident (apparently based upon a charge filed by Mr. Davis) and instructed Specialty Staff not to discuss the incident with anyone.

            In response, the Complainant emphasizes that Specialty Staff received Mr. Davis’ charge of discrimination, which quoted the racist note verbatim, within approximately two weeks after the incident.  The Complainant asserts that Specialty Staff did not contact Mr. Davis again to discuss the incident, speak to its other temporary employees who were assigned to McGill-Jensen that day, conduct an investigation into the racist hate note even after it received the discrimination charge, raise any disapproval of the racist act with McGill-Jensen, or disseminate an anti-harassment policy to its employees.  The Complainant thus alleges that Specialty Staff failed to take “timely and appropriate action”  to end the harassment.

            An employer may avoid apparent liability for acts of harassment committed by a co-worker if it shows that it took “timely, appropriate, remedial action.” Tretter v. Liquipak International, Inc., 356 N.W.2d 713, 715 (Minn. Ct. App. 1984).  Such action “may include dissemination of an anti-harassment policy, transferring the employee to another shift, or taking or threatening disciplinary action against offending employees.” Id. at 715-16, citing McNabb v. Cub Foods, 352 N.W.2d 378, 384 (Minn. 1984); see also Continental Can Co. v. State, 297 N.W.2d 241, 248 (Minn. 1980), citing Howard v. National Cash Register Co., 388 F.Supp. 603 (S.D. Ohio 1975) (appropriate corrective action may include transferring the plaintiff, holding frequent meetings with plaintiff and his department head, disseminating the company’s anti-harassment policy to all employees, and taking disciplinary action against the harassers).  The Tretter decision emphasized that “[a]n employer must take strong, swift action to separate itself from the harassment . . . .” 356 N.W.2d at 716.  It is generally held that employers must undertake a reasonable investigation to obtain the truth and, if the harassment was committed by an employee, take disciplinary action that is in line with the severity of the harassment.  Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989); Swentek v. USAir, 830 F.2d 552 (4th Cir. 1987).  The remedial measures taken to correct harassment must be prompt and reasonably calculated to end the harassment.  See, e.g., Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).  Employers must take action within hours or days; waiting even four weeks before acting has been held to be too long.  Bennett v. New York City Department of Corrections, 705 F.Supp. 979 (S.D.N.Y. 1989).

            In the present case, the Complainant has raised a genuine issue of fact regarding whether Specialty Staff in fact took timely and appropriate corrective action.  As the Complainant pointed out, there is no evidence that Specialty Staff contacted other Specialty Staff employees who were working at McGill-Jensen the night of the alleged incident or disseminated an anti-harassment policy to McGill-Jensen or its own employees to make its opposition to the alleged harassment clear.  These actions could have been taken even in the absence of knowledge of the precise language of the hate note.  In addition, there is no evidence that Specialty Staff ever sought to speak to McGill-Jensen personnel or its attorney following its initial unsuccessful attempt or that it ever contacted Mr. Davis after August 26, 1993.  Specialty Staff apparently received the formal charge of discrimination and was aware of the precise nature of the hate note in early September.  Although Specialty Staff understandably may have been reluctant to contact an unrepresented former employee who had filed a discrimination charge and such an employee may not be willing to cooperate, company representatives should have made an attempt to reach Mr. Davis through the Department of Human Rights in order to exchange relevant information.  Indeed, the investigation and processing of discrimination charges is supposed to include such exchanges of information.  Neither the FBI investigation that occurred at some unspecified point in time nor Specialty Staff’s decision to discontinue doing business with McGill-Jensen more than two months after the alleged incident insulate Specialty Staff from the requirements of the MHRA. The same factors that lead the Administrative Law Judge to conclude that material issues of fact exist relating to whether Specialty Staff took timely and appropriate action also raise issues of fact relating to the legitimate, non-discriminatory reasons asserted by Specialty Staff for its failure to conduct an investigation (i.e., the refusal of Mr. Davis and McGill-Jensen to cooperate) and pretext.

            Because genuine issues of material fact remain for hearing, the Respondent’s Motion for Summary Judgment on this point is denied.  While the Complainant is entitled to some leeway in fashioning his theory of discrimination in this matter, the Respondent did not receive specific information regarding the theory to be asserted until the Complainant filed its response to the Motion for Summary Judgment.  The Respondent indicated at the oral argument on the motion that it would like an opportunity to conduct further discovery on this issue.  Accordingly, it is appropriate to re-open the discovery period.  The previously-established discovery deadline is hereby stricken and a new deadline of June 26, 1996, is hereby established.  A telephone conference call shall be held after the completion of discovery to set a new hearing date.

B.L.N.