Edward Foster Graham was fired from his job in February 2012. He had always received positive job reviews and was never reprimanded, he said. But a week before his termination, Graham accused a supervisor of discrimination.
Shocked that he was let go, Graham, who is black, filed a discrimination charge with the Minnesota Department of Human Rights.
It took the department more than 14 months to open his case, and less than a week later, they had reached a determination: no probable cause that discrimination took place.
“How much did they really investigate?” Graham asked.
Graham’s case is not an outlier. It takes the Department of Human Rights an average of 426 days to reach a determination, the longest length of time since 2003, according to the department’s midyear enforcement action report filed earlier this month.
Commissioner Kevin Lindsey said determinations take time because of the department’s commitment to investigate every case, which began in 2011. Some critics think the department should use discretion when deciding which cases to investigate. But with two investigations resulting in settlements earlier this month, Lindsey said the department is being more efficient.
In the first six months of 2013, the department determined that 74 percent of the 381 discrimination cases it closed had no probable cause. Only 22 percent of cases had no probable cause for the same period in 2009. Lindsey said there was a large increase in no-probable-cause determinations because before he took over in 2011, many cases were automatically dismissed in a process called “docket and dismiss.”
The department would accept a charge but dismiss it without investigation because of a lack of resources. Charging parties could then pursue their case through the court system. Almost as soon as Lindsey became commissioner, he decided to change that policy. The change came at a cost, as more cases needed initial determination, longer investigation times and investigators were given larger caseloads. Each investigator had 74 cases in the first six months of 2013, compared with 23 cases for the same period in 2009.
“I clearly understood this would not be a linear progress. The only way that would happen is if I abandoned investigating older cases,” Lindsey said. “For this next year, you won’t see a huge decrease in the average length of time. It may even go up. But those older cases will be dwindling from our inventory.”
State Sen. Warren Limmer, R-Maple Grove, said there are serious questions for the department about its procedures.
“Is it appropriate to follow every single accusation, knowing there is a long history in the state of Minnesota that most cases are rather groundless and without merit?” Limmer said. “Is it in the public interest to spend that much money chasing cases that have no grounds?”
Cases are to take a year
Graham claimed his supervisor discriminated against him when he bought two co-workers lunch but excluded Graham. He was written up for making a false accusation and fired within a week, he said.
Graham said he filed an appeal with the department after the initial determination of no probable cause. Lindsey responded within a week, sustaining the determination, but told Graham he could take his case to civil court. He decided not to pursue the case any longer.
By state mandate, the department is to resolve a case within a year. Lindsey said he understands the frustration that people like Graham may feel when a decision takes longer than that.
“I sympathize with that, and that’s something that we are really striving to fix,” Lindsey said. “In those cases in which there are limited number of facts and issues, we want to give a prompt response and allow people to move forward and accept the no probable cause or decide to get an attorney and pursue the matter in court,” Lindsey said.
Lindsey also expects to see an increase of probable-cause determinations and favorable outcomes, as the department becomes more efficient in investigating and negotiating cases.
Two weeks ago, the department also announced two discrimination settlements. Bernice Schwab received a $70,000 settlement after the department determined her employer, Health Inventures in Maplewood, had discriminated by failing to accommodate a disability after she fell and injured her shoulder.
The other settlement involved a St. Cloud liquor store owner who agreed to pay a former employee $30,000 after the department found probable cause of sexual harassment.
In its investigation the department found that Brian Fanfulik, owner of Liquor Pig, subjected an employee to “gestures that were evocative of masturbation and oral sex, and the slapping of the charging party’s buttocks.”
Lindsey said the department will add two investigators and legal interns in the coming months. He wants to “see how things shake out with the older cases.” Despite the backlog, he said he does not blame any previous administrations.
“It would have been helpful to have had more resources within the department to address the backlog prior to taking on this assignment with the state,” Lindsey said. “All my predecessors will attest to the fact that they didn’t have all the resources that they would have liked. I’m sure they all tried to do their best.”