1-2111-12937-3
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE CITY OF SAINT PAUL
HUMAN RIGHTS COMMISSION
W. H. Tyrone Terrill, Director
St. Paul Department of Human Rights
ex rel. Carolyn Marier,
Complainants,
vs. LEGAL INSTRUCTIONS TO THE
PANEL OF COMMISSIONERS
American Red Cross, North Central
Blood Services Region,
Respondent.
In accordance with the St. Paul Human Rights Department’s Rules of Procedure for Enforcement Proceedings[1] and the St. Paul City Code,[2] the undersigned Law Officer, having been duly appointed by Resolution of the City, submits the following Legal Instructions to the Panel of Commissioners (the Panel) in this civil enforcement proceeding.
1. This civil enforcement proceeding arises under Chapter 183 of the St. Paul City Code. The City Code[3] gave the Law Officer authority to preside over the hearing in this matter and gives him authority to issue these Legal Instructions to the Panel. The City Code[4] also gives the Panel authority to conduct deliberations in this proceeding, to make findings of fact, and to issue an order.
2. The City of St. Paul, Human Rights Department (the City), has complied with all of the City Code’s substantive and procedural requirements for maintaining this civil enforcement proceeding.
3. The City gave the American Red Cross proper and timely notice of the hearing in this matter.
4. On June 12, 2000, the City began this civil enforcement by issuing a Notice of Hearing and Complaint on behalf of the Complainant, Carolyn Marier, and by serving that document on the Respondent, the American Red Cross. The Complaint alleged that the American Red Cross had committed discrimination against Ms. Marier in employment, in violation of Chapter 183 of the City Code, on the basis of Ms. Marier’s disability. On June 23, 2000, the American Red Cross filed an Answer to the City’s Complaint in which it denied having unlawfully discriminated against Ms. Marier and raised certain other defenses. The Law Officer conducted a hearing in this civil enforcement proceeding on July 13-14, 2000, and the parties presented evidence in support of their respective positions at that hearing. Based on that evidence, it is now the duty of the Panel to deliberate, to make findings of fact, and to issue an order in this proceeding.
City Code
Provisions
5. Section 183.03 of the City Code deals with discrimination in employment. It provides that, except when based upon a bona fide occupational qualification, it is unlawful for an employer to discriminate in the discharge of an employee.
6. Section 183.02(5) defines “discriminate” as including unequal treatment of a person by reason of disability.
7. Section 183.02(4) defines disability as:
Disability means any condition or characteristic that renders a person a disabled person. A disabled person is any person who:
(a) Has a physical, sensory, or mental impairment which materially limits one (1) or more of such person’s major life activities;
(b) Has a record of such an impairment; or
(c) Is regarded as having such an impairment.
8. Section 183.03(7) (reasonable accommodation) provides that:
For an employer with twenty-five (25) or more permanent, full-time employees effective until June 30, 1994, and within fifteen (15) or more permanent full-time employees effective July 1, 1994, an employment agency or a labor organization not to make reasonable accommodation to the known disability of a qualified disabled person, job applicant or a pregnant employee or job applicant who presents written documentation from her health provider that she is unable to safely continue to perform her usual job duties unless the employer, agency or organization can demonstrate that the accommodation would impose an undue hardship on the business, agency or organization. “Reasonable accommodation” means steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person. “Reasonable accommodation” may include, but is not limited to, nor does it necessarily require:
(a) Making facilities readily accessible to and usable by disabled persons; and
(b) Job restructuring, modified work schedules, acquisition or modification of equipment or devices, and the provision of aides on a temporary or periodic basis. In determining whether an accommodation would impose an undue hardship on the operation of a business or organization, factors to be considered include:
i. The overall size of the business or organization with respect to the number of employees or members and the number and type of facilities;
ii. The type of the operation, including the composition and structure of the work force, and the number of employees at the location where the employment would occur;
iii. The nature and cost of the needed accommodation;
iv. The reasonable ability to finance the accommodation at each site of business; and
v. Documented good faith efforts to explore less restrictive or less expensive alternatives, including consultation with the disabled person or with knowledgeable disabled persons or organizations.
A prospective employer need not pay for an accommodation for a job applicant if it is available from an alternative source without cost to the employer or applicant.
The provisions of this section shall apply to a joint labor-industry apprenticeship committee or board and to each individual member thereof notwithstanding the employer members of such committee or board are not in fact the employer of an apprentice against whom an act of discrimination has been committed, to the extent the members of such committee or board participate in the act of discrimination.
9. Section 183.02(21) defines qualified disabled person as:
(a) With respect to employment, a disabled person who, with reasonable accommodation, can perform the essential functions required of all applicants for the job in question; and
(b) With respect to services and programs, a disabled person who, with physical and program access, meets the essential eligibility criteria required of all applicants for the program or service in question.
For purposes of this definition, disability excludes any condition resulting from alcohol or drug abuse which prevents a person from performing the essential functions of the job in question or constitutes a direct threat to the health or safety of others or would result in substantial physical damage to or unlawful conversion of the property of others.
If a respondent contends that the person is not a qualified disabled person, the burden is on the respondent to prove that it was reasonable to conclude the disabled person, with reasonable accommodation, could not have met the requirements of the job or that the selected person was demonstrably better able to perform the job.
10. Section 183.10 (reprisal) provides that:
It is an unfair discriminatory practice for any employer, labor organization, employment agency, public accommodation, public service, educational institution, or owner, lessor, lessee, sublessee, assignee or managing agent of any real property, or any real estate broker, real estate salesperson or employee or agent thereof, or any other person to intentionally engage in any reprisal against any person because that person:
(1) Opposed a practice forbidden under this chapter or has filed a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing under this chapter; or
(2) Associated with a person or group of persons who have filed a charge under this chapter, or
(3) Associated with a person or group of persons who are disabled or who are of different race, color, creed, religion, national origin, ancestry, sex, sexual or affectional orientation, familial status, marital status, or status with regard to public assistance.
A reprisal includes, but is not limited to, any form of intimidation, retaliation or harassment. It is a reprisal for an employer to do any of the following with respect to an individual because that individual has engaged in the activities listed in clause (1), (2) or (3); refuse to hire the individual; depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1), (2) or (3).
11. Because of the similarity of Chapter 183 of the City Code to the Minnesota Human Rights Act (MHRA),[5] the Panel should employ the approach to adjudicating discrimination claims that Minnesota’s courts and administrative tribunals use in adjudicating claims brought under the MHRA.
12. In civil actions and administrative contested case proceedings brought under the MHRA, the Complainant has the burden of proving by a preponderance of the evidence that the Respondent committed unlawful discrimination.
13. “Preponderance” means greater weight of the evidence. It means that all of the evidence, regardless of which party may have produced it, must lead the Panel to believe that the fact at issue is more likely true than not true. Greater weight of the evidence does not necessarily mean the greater number of witnesses or the greater volume of evidence. Any believable evidence may be enough to prove that a disputed fact is more likely true than not.[6]
14. In considering whether a discriminatory action has occurred under the MHRA, state courts and administrative tribunals apply the principles expressed by the U. S. Supreme Court in McDonnell-Douglas Corp. v. Green.[7] As applied to this civil enforcement proceeding, the McDonnell-Douglas test consists of the following three-step analysis: The City and Ms. Marier are first required to establish a prima facie case of unlawful discrimination. If they succeed in doing that, a presumption, or inference, arises that unlawful discrimination may have occurred. Although the burden of proof always remains with the City and Ms. Marier, the burden of producing evidence then shifts to the American Red Cross to present evidence of some legitimate, non-discriminatory reasons for its actions. If the American Red Cross, in turn, has come forward with evidence of legitimate, nondiscriminatory reasons for its actions, then there is no longer any inference that unlawful discrimination has occurred, and the burden of producing evidence shifts back to the City and Ms. Marier. They must then prove by a preponderance of the evidence that the reasons or justification given by the American Red Cross for its actions amount to a pretext for intentional discrimination.[8]
15. What constitutes the required, initial prima facie showing by a Complainant varies from case to case, depending on the kind of discrimination being alleged and the particular factual pattern and context.[9] Here, a prima facie case consists of: (1) evidence that Ms. Marier was a member of a class protected by Chapter 183 of the City Code — i.e., a “disabled person”; (2) evidence that Ms. Marier was qualified for the position she held;[10] and (3) evidence that the American Red Cross discharged Ms. Marier. In this case the evidence indicates that the employee was discharged; however, the Panel must decide if she is disabled, that is, whether she has a physical impairment that limits a major life activity (see paragraph 7 above), and whether she was qualified for the position she held.
16. If the Panel finds that the City and Ms. Marier established a prima facie case, the burden of producing evidence shifts to the American Red Cross. It is required to produce evidence of legitimate, nondiscriminatory reasons for discharging Ms. Marier. If the Panel finds that the American Red Cross had legitimate, nondiscriminatory reasons for the actions that it took against Ms. Marier, the burden of producing evidence shifts back to the City and Ms. Marier to establish by a preponderance of the evidence that the reasons that the American Red Cross gave for the actions that it took against Ms. Marier were pretextual and that the American Red Cross’ real motive was to discriminate against Ms. Marier on the basis of her disability.
17. If the Panel finds that Ms. Maier is disabled, it must also determine whether or not the American Red Cross failed to make a reasonable accommodation for her disability. (See paragraph 8 above). In making this determination the Panel must decide if Ms. Marier is a qualified disabled person, that is, one who with reasonable accommodation can perform the essential functions of the job. (See paragraph 9 above).
18. The Panel must also determine if the American Red Cross intentionally engaged in a reprisal against Ms. Marier when it discharged her because she opposed a practice forbidden by Section 183.03 (e.g. denial of a requested reasonable accommodation) or filed a charge under Section 183.03 (See paragraph 10 above).
19. Despite the shifting burden of producing evidence, the burden of proving that the American Red Cross engaged in intentional discrimination always remains with the City and Ms. Marier.[11] For example, even if the Panel were to find that the reasons the American Red Cross gave for the actions it took against Ms. Marier were not its real reasons, the City must still prove that the real reason was intentional discrimination against Ms. Marier because of her disability. Otherwise, the City has not met its burden of proof in this proceeding.
20. For discrimination to be unlawful, it must be proved to have been “intentional.” In other words, the City must establish by a preponderance of the evidence that the American Red Cross had a discriminatory “intent” when it acted against Ms. Marier.[12]
21. “Intent” means that a person (a) wants to cause the consequences of his or her acts, or (b) knows that his or her actions are substantially certain to cause those consequences.[13]
22. A fact can be proved in one of two ways: (a) by “direct evidence” when that fact is proved directly without any inferences, or (b) by “circumstantial evidence” when the fact can be inferred from other facts proved in the case. So, the City may sustain its burden of proving discriminatory intent, as required by the third step of the McDonnell-Douglas test, either directly, by presenting direct evidence of a discriminatory motive, or circumstantially, for example, by showing that the explanations that the American Red Cross has offered are unworthy of belief.[14] The Panel may consider both kinds of evidence. The law makes no distinction between the weight given to either direct or circumstantial evidence. It is up to the Panel to decide how much weight to give any kind of evidence, so long as the inferences that it makes are reasonably justified by the evidence in the case.[15]
23. The City Code[16] incorporates some rules about the evidence that a Law Officer may allow at a hearing, and it was the Law Officer’s duty to make sure that the attorneys followed those rules. Attorneys may have objected if they thought that a question or answer was against the rules. In that regard, if the Law Officer sustained an objection, the Panel must ignore the question or answer. On the other hand, if the law officer overruled an objection, the answer to the question is evidence in this case. The objections themselves were not evidence, and the fact that some evidence may have been objected to should not affect the Panel’s view of the evidence.[17]
24. After completing its deliberations, if the Panel concludes that the City and Ms. Marier have not established their claims by a preponderance of the evidence, it should prepare an order dismissing the City’s complaint.
25. On the other hand, if the Panel concludes that a violation of Section 183.03 of the City Code has occurred, the City Code contains the following provisions, among others, about the kinds of relief that panels may award to successful complainants:
If, after hearing, the panel shall conclude that a violation has occurred, it shall prepare an order which may require the respondent to pay a complainant, who has suffered discrimination, compensatory damages in an amount up to three (3) times the actual damages sustained. The panel may also order the respondent to pay a complainant who has suffered discrimination, damages for mental anguish or suffering, in addition to punitive damages in conformance with Minnesota law.
The order may include provisions which require the respondent to rent, sell or lease particular real estate property to the complainant, place or reinstate him or her in a particular job with or without back pay, file periodic compliance reports, or to do any other thing as may be just. . . . The panel’s order may also require the respondent to pay for investigation and enforcement costs and reasonable city attorney’s fees.[18]
26. If the Panel finds that the evidence supports a claim for compensatory damages, it must make findings of fact relating to any compensatory damages that it may award. The term “compensatory damages” means a sum of money that will fairly and adequately compensate a person who has been harmed for any past or future injury or harm that that person may have sustained. Compensatory damages may include both past and future harm, but the City and Ms. Marier must have proved that any future harm is reasonably likely to occur.[19] The City and Ms. Marier have the burden of proving any damages caused by the American Red Cross by a fair preponderance of the evidence.[20] They must also prove the nature, extent, duration, and consequences of any injury or harm they are claiming. The Panel may not decide damages based on speculation or guess.[21]
27. Compensatory damages include any damages for mental anguish or suffering that Ms. Marier may have experienced in the past or is reasonably certain to experience in the future. The Panel must make findings of fact relating to any damages for past or future mental anguish or suffering that it may award. In so doing, it should consider the type, extent, and severity of any mental anguish or suffering, the length of time that they lasted or are reasonably certain to last, and any other factors that the Panel considers to be relevant.[22]
28. Finally, if the Panel were to find that there is clear and convincing evidence that the American Red Cross acted with deliberate disregard for the rights or safety of others, it can award “punitive damages.” Punitive damages are intended to punish a respondent and discourage others from acting in a similar way. But the evidence must convince the Panel that the American Red Cross acted with deliberate disregard for the rights and safety of others. And the Panel must also have a firm belief, or be convinced there is a high probability that the American Red Cross acted in this way.[23]
29. “Deliberate disregard” means that the American Red Cross knew about facts or intentionally ignored facts that created a high probability of injury to the rights or safety of others, and that it deliberately acted with conscious or intentional disregard, or with indifference to the high probability of injury to the rights or safety of others.[24]
30. If the Panel finds that the legal criteria for punitive damages have been met here, it should also make findings to that effect. And it should then consider the following factors, among others, in fashioning any punitive damage award:
a. Any profit that the American Red Cross may have made as a result of its misconduct;
b. The length of time of the misconduct and if the American Red Cross hid it;
c. The attitude and conduct of the American Red Cross when misconduct was discovered;
d. The number and level of employees involved in causing or hiding the misconduct;
e. The financial state of the American Red Cross; and
f. The total effect of other punishment likely to be imposed on the American Red Cross as a result of the misconduct. This includes compensatory damages and punitive damage awards.[25]
31. After preparing its order in this civil enforcement proceeding, the City Code requires the Panel to take the following steps:
The panel’s findings of fact and order shall be served on the complainant and respondent and each member of the commission by mail and shall become the findings and order of the commission and the department unless within thirty (30) days after mailing of the findings and the order, the commission shall revoke or amend the order and/or findings.[26]
Respectfully submitted this 15th day of August, 2000.
|
|
|
GEORGE A. BECK |
|
Law Officer |
NOTE: It is requested that the Law Officer also be served with a copy of the Panel’s final decision.
[1] Rule 3.06.
[2] Section 183.24.
[3] Id.
[4] Id.
[5] Minnesota Statutes, Chapter 363.
[6] 4 Minnesota District Judges Association, Minnesota Jury Instruction Guides—Civil § 14.14 at 37 (4th Ed. 1999) (hereinafter 4 CivJIG).
[7] 411 U.S. 792, 802-03 (1973). See Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983) and Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).
[8] Id.
[9] Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).
[10] Hubbard, supra, at 442; Miller v. Centennial State Bank 472 N.W.2d 349, 352 (Minn. Ct. App. 1991). Wilking v. County of Ramsey 153 F. 2d 869 (8th Cir. 1998).
[11] Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).
[12] Sigurdson, supra, 386 N.W.2d at 720.
[13] 4A CivJIG § 60.10 at 4. See also Victor v. Sell, 222 N.W.2d 337, 340 (Minn. 1974); see also R.W. v. T.F., 528 N.W.2d 869, 872 (Minn. 1995).
[14] Sigurdson, 386 N.W.2d at 720, quoting Burdine, 450 U.S. at 255-56.
[15] 4 CivJIG § 12.10 at 25-26. Illinois Farmers Ins. Co., v. Brekke Fireplace Shoppe, Inc., 495 N.W.2d 216 (Minn. App. 1993).
[16] Section 183.24(4).
[17] 4 CivJIG § 10.30 at 12.
[18] Section 183.24(6).
[19] 4A CivJIG §§ 90.10 at 298 and 90.20 at 301.
[20] Canada v. McCarthy, 567 N.W.2d 496, 507 (Minn. 1997).
[21] Id.
[22] 4A CivJIG §§ 91.10 at 309-10 and 91.25 at 315.
[23] 4A CivJIG § 94.10 at 356-57.
[24] Id.
[25] 4A CivJIG § 94.10 at 356-57.
[26] Section 183.24(7) of the City Code.