Is the MEOD’s process fair to employers?

Former private sector and current nonprofit executive calls for process improvements in city’s process for hearing job discrimination complaints.

From the pages of In Business magazine.

Nino Amato is in a fairly unique position, one that allows him to pull very few punches.

Amato is the president and CEO of the Coalition of Wisconsin Aging Groups, and a former president of the old Madison Equal Opportunities Commission (now the Madison Equal Opportunities Division, which is part of the city’s Civil Rights Department). He was a recipient of three honorary civil rights recognitions from the organization when it was known as the MEOC, and he was on the forefront of efforts such as divestment in South Africa’s former apartheid system of racial segregation. He’ll stack his civil rights record up against anyone’s.

Three times since 2011, CWAG has been hit with employment discrimination complaints — all filed by women represented by the same law firm, Fox & Fox, S.C. The first case ended in a settlement without an acknowledgment of wrongdoing on the part of CWAG or Amato, and two others were decided in favor of CWAG. Our purpose here is not to re-litigate these cases, but to offer a “both sides” presentation of process improvements recommended by Amato, and the organization he represents, based on their experience with the MEOD’s legal process.

To present the other side, we also spoke to Mike Fox, cofounder of Fox & Fox, whose firm has represented plaintiffs filing employment discrimination complaints at the local level, including the three filed against CWAG, and both plaintiffs and defendants at the state and national levels. Fox believes Amato’s recommendations would tilt the scales of justice too far in favor of employers.

We also spoke to Norman Davis, director of the Madison Department of Civil Rights, and to Byron Bishop, equal opportunities division manager.

Balancing rights

Amato notes the three filings against CWAG cost the organization more than $150,000 in legal fees and prompted the organization to move out of the city of Madison — and the MEOD’s jurisdiction — to Monona. He believes that one complaint, which ironically alleged age discrimination, probably cost the organization a $1.5 million grant.

“The moment that hit the press, we lost a $1.5 million grant that was placed on hold,” he states. “How do you support an aging organization when now they have an age discrimination suit filed against them and you’ve just made the front page?”

“Plaintiffs just don’t have
access to the witnesses
and documents that are
sometimes necessary
to prove their claims.”
— Attorney Mike Fox,
cofounder, Fox & Fox, S.C.

Among the reasons that CWAG believes the current process is unfair is because employers can get their reputations dragged through the mud without a fair chance to respond to initial press coverage about the filing of an employment discrimination complaint.

Amato believes that if there is a filing and details are leaked to the press before both sides have a chance to present their sides in a public filing, the case should automatically be dismissed. He says the defendant should have 30 days to respond and until they do so in writing, that file should not become public.

“Right now, if someone files a complaint, it’s ‘I gotcha,’” Amato says. “They tip off the press the moment they file it, or they say ‘by noon today we’re going to file it, and here’s a copy of the complaint.’ We have no chance to respond in the filing, and in the first case, that’s exactly what happened. It made the front page.

“That’s how somebody could easily extort you, and it forces people to look at the cost of going to a hearing versus having a payment of settlement.”

Amato contends that embargoing a public filing until both sides can state their case in writing was common 40 years ago, and while Fox views this as an understandable concern, he notes it’s a balancing act that favors the public’s right to know. The courts are very reluctant to start down what they consider to be a slippery slope regarding secrecy about court proceedings, Fox adds.

“It’s balancing the use of a public forum and what should be public when you use a public forum against the notion that somebody should be allowed to get the particulars of a complaint in the public forum before it becomes a public record,” he says. “I don’t have strong feelings about that one way or the other. I think that the city of Madison and many of these agencies have set up their processes to correspond to what they see as an openness regarding public records.”

Fox also doesn’t know what purpose an embargo would serve because the complaints that are filed are not detailed submissions. In general, they are a complaint filed by an employee stating the belief they were discriminated against on a prohibited basis, and there’s a very short statement as to why. Most of the details come later in the process, including the investigation stage when employee and employer both have the right to discover information that might be relevant to the claim.

Probable causation

A second CWAG reform involves the finding of probable cause that discrimination occurred, which is a critical step in the MEOD’s process because if a staff investigator rules there is probable cause, the case is more likely to move to the hearing stage. CWAG believes an independent, three-judge panel consisting of retired county judges should review evidence for probable cause and allow oral arguments by both sides.

In the organization’s view, it’s self-serving to have probable cause evaluated by a MEOD staffer who “lives and dies on the number of probable cause cases they have,” Amato says. CWAG was surprised when cases made it past that point, especially after presenting documents and other evidence that the filings had no merit. “The way the current MEOD ordinance has been created, employees and staff are judge, jury, and probable cause investigator and arbitrator,” he states. “There are no checks or balances in the ordinance, and there is an inherent bias toward the complainant.”

CWAG was also surprised to find that under the applicable city ordinance, plaintiffs have the right to appeal an unfavorable probable cause ruling but defendants do not. He says that both plaintiff and defendant should have the right to appeal a probable cause ruling, which CWAG would have done because “they continued to ignore some specific facts in the cases that would have allowed us to present more evidence.”

When the organization’s board of directors raised the question of an appeal, Amato says outside legal counsel advised directors they would have to first challenge the legal process of the MEOD ordinance, which would have been extremely costly and time consuming. At that point, however, none of the outside legal counsel thought it would take four years to get a written decision on one of the three filings alone.

Fox says the existing appeals process has been part of a scheme that has existed and functioned reasonably well for more than 50 years. “One of the reasons plaintiffs can appeal, and that oft times is encouraged, is that we want employees to be able to resolve their claims without using lawyers,” he explains. “There are many people who use these agencies who do not have counsel when they are using the agencies.”

The agencies, including the MEOD, often employ non-lawyers to screen the initial complaints. To proceed with a claim, an administrative body such as the MEOD accepts a threshold level of reaching probable cause. “Now that’s a burden that is not put on other litigants in other areas,” Fox notes. “It’s not put on business litigants, for example, when they sue another business over a contract. They don’t have to reach a level of probable cause, so it was kind of a cutoff for the employee who was generally thought to be the party with fewer resources in terms of a claim of employment discrimination.”

Most of these claims, regardless of what the municipal agency does, can be brought federally, he adds. They can be brought in federal court in cases where an employer reaches the threshold level with regard to the number of employees that would place them under jurisdiction of Title VII, the section of the 1964 Civil Rights Act that prohibits employment discrimination based on race, sex, and religion. Other protected classes such as age and sexual orientation were added in subsequent laws.

Fox sees this provision as an attempt to create a level playing field because the plaintiff often doesn’t have equal resources. “Often times, the employer has immediate access to the witnesses coming to the facts of the case, as well as immediate access to the documents,” he explains. “They also have sway over the potential witnesses [including employees who have a built-in allegiance to the employer]. Plaintiffs just don’t have access to the witnesses and documents that are sometimes necessary to prove their claims.”

(Continued)

 

The role of MEOD’s initial investigators often is to get some of the information, including records, from the employer that might not be available to the employee. “For example, if somebody says, ‘I was terminated for being tardy, and I think that I’m being treated more harshly with regard to employment because I’m a woman or because of my race,’ what we need to know is how other employees have been treated — whether or not other employees have been tardy and treated the same way, with the same degree of harshness,” Fox explains. “That is information that is in possession of the employer.”

Regarding an independent, third party review for probable cause, Fox believes it would be difficult and expensive. Once you involve third parties, you need oversight and you have to train them on the standards for probable cause. “You have to train them within the system, and if you start out with the premise that you don’t want to do things that create a further burden on the system, that would seem to be counterproductive,” he states.

What’s more, if defendants were able to appeal probable cause, “that could be used to bring the system to a halt,” he adds. Defendants appealing probable cause may sound reasonable on its face, but you have to look at why the system was set up the way it is.

“If employers were able to appeal probable cause determinations, I would always advise an employer, regardless of how they felt, to appeal that because it would be in their interests most often to increase the time and financial pressure on an employee,” Fox explained. “It would make the employee’s litigation harder regardless of the merit of that litigation.”

Byron Bishop added the city is neutral and doesn’t take sides. It is not an advocate for the complainant, and it’s not an advocate for the respondent. “We don’t see the real value in that,” he states. “To be honest, a lot of times the attorneys have been trying to control and take over our process, so a lot of what I do is try to make sure that does not happen. A lot of them don’t understand our process and how things are done, and a lot of times I have to intervene and let them know this is the city’s process, it is the Equal Opportunity Commission’s process, and it’s governed by the ordinance. We follow those guidelines and stay in that lane.”

Justice delayed

Amato was also critical of the length of time it took to resolve each case. The first was filed in 2011 and the third was resolved earlier this year, a six-year span that he claims calls out for the following reform: Following a formal hearing before the MEOD, a ruling should be made within 30 to 45 days. If it’s not, the case is dismissed and the complaint is thrown out.

Amato cited his experience in the 1980s, when he was appointed to head up the old MEOC by then Mayor Joel Skornicka. Some cases were taking two or three years to resolve and Amato and others were brought in to streamline the process to the point where a final determination was typically made within one calendar year. As he recalls, about 50% of the cases that were filed were eventually dismissed. “As president, I was engaged in the process, and we cleaned up the process,” he states. “We did continuous process improvement we thought we could get done, and we had checks and balances. A member of the commission, if it was appealed, had to read the whole file from top to bottom and serve as the expert on that case. They don’t even do that anymore.”

“There are no checks or
balances in the ordinance,
and there is an inherent bias
toward the complainant.”
— Nino Amato,
president and CEO,
Coalition of Wisconsin
Aging Groups

The problem, he continues, is the old process was never formalized as part of the ordinance, and when staff members left or retired, their institutional knowledge left with them. Now, he argues, a long, laborious process incentivizes employers to settle even if they think the facts exonerate them.

In Fox’s view, a time limit on the post-hearing ruling is a rather bizarre suggestion. No other type of legal claim has that kind of a time limit, or such consequences to a faultless litigant, imposed on them, and so that would neither be feasible nor fair, he reasoned.

“The litigant cannot control how quickly a governmental body makes a decision, and so to throw the complaint out if the decision isn’t made within particular a time frame that short, or within any time frame, is something pretty much unknown to the law and would offend any notion of due process that I’m familiar with.”

Bishop thinks Amato’s recommendation is a reasonable request, but it’s missing one step. Once the hearing is completed, “we have to allow time for both sides, the complainant and the respondent, to submit briefs to the hearing examiner,” he notes. “So the judge has to have time to review their legal briefs of the hearing, of the summation of the case. Then the judge has to look at those briefs and then render a decision based on those briefs. We usually allow 30 to 45 days for those briefs to be submitted and another 30 to 45 days for that decision to be rendered.”

In yet another reform, Amato says if a defendant can demonstrate a plaintiff to be dishonest in the filing of a complaint, that the filing was not done in good faith according to the whistle-blower law, the defendant should have some type of retribution or payment for attorney fees over a 10-year period. Amato says that one plaintiff had filed a false whistle-blower report claiming fraudulent billing on his part — he was later exonerated in a state Department of Health Services review — but CWAG was unable to recover damages for the time and money spent on its legal defense. “Somehow, they [plaintiffs] have to understand they are at risk,” Amato says.

To Fox, this is another strange recommendation, one with unintended consequences. He notes that these claims are proven through circumstantial evidence; it’s rare for a person to have direct evidence of discrimination. “It is understood by the bodies that are charged with adjudicating these claims that the claims will likely be proven by circumstantial evidence, if proven at all,” Fox says. “So therefore, one person’s point of view may look to the other person as deceptive or a lie. Once again, if an employer has this tool to slap the plaintiff by saying, ‘If we litigate, we will go after you and say you lied,’ regardless of whether the person was actually lying, that’s a rather big stick to hand to one side.”

Nature of Madison

Some employers don’t understand why the city needs a civil rights department when the state and the federal governments already have such agencies. It’s uncommon for a municipal body, even one of the nation’s largest cities, to have a civil rights department, but what is common is that most cities have an affirmative action officer or an equal opportunities compliance officer; if someone submits a complaint, it often goes to the state agency.

Norman Davis notes that cities have the discretion to organize how they see fit within the confines of state or federal law, and Madison’s decision to have a legal forum to hear charges of employment discrimination and, more recently, a civil rights department, is simply the nature of a progressive city. “The city of Madison does have a very progressive history,” he says, “and our leaders in particular, when looking at cities at the national level, are concerned if Madison if not keeping pace with progress in the rest of the country.”

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