Wednesday, December 5, 2012

Time Has Come Today

Vt. Human Rights Commission v. State of Vt. Agency of Transportation, 2012 VT 88.

It seems appropriate to start off today’s summary with a shout out and congratulations to Robert Appel, the now-former Executive Director of the Vermont Human Rights Commission and lead counsel for Appellants in today’s case. 

For those not familiar with the VHRC or Mr. Appel, the Commission is an autonomous agency in state government that protects individuals from discrimination.  Whether that discrimination is from the state or a private actor or whether it is employment, accommodation, or housing discrimination, the VHRC is charged with investigating, prosecuting, and ending such practices.  And for the past eleven years the face of the VHRC has been Mr. Appel. 

Prosecuting such actions is by and large thankless work and from this news report, it seems to be only modestly compensated.  Still, for anyone who has benefited from fair accommodations or enjoyed a discrimination-free work place, the Commission has an invaluable role to play.

It is in this role that today’s case comes to us.  Unfortunately for the Commission, it is an appeal on purely procedural grounds, which spells doom for any substantive prosecution on the merits.

The case began in 2008 when the Commission began investigating allegations of discrimination against a physically handicapped employee at the Agency of Transportation. 

After a preliminary investigation, the Commission determined on July 2, 2010 that there were reasonable grounds to believe that the Agency had discriminated against the employee in violation of the Vermont Fair Employment Practices Act. 

By statute, the Commission, once it has established a reasonable belief, has an obligation to “make every reasonable effort to eliminate the discrimination by informal means such as conference, conciliation and persuasion.”  This means negotiation, which the Commission began following its vote. 

Unfortunately, negotiations and conversations with the Agency did not pan out, and the result was that the Commission filed the present action against the Agency on April 11, 2011. 

Enter the statute of limitations.  By statute, 9 V.S.A. § 4554, the Commission has six months following a vote of reasonable belief to resolve the case through informal means.  At the end of the six months, the Commission must either file an action in Superior Court or dismiss the proceedings. 

At the trial court, the Agency sought to dismiss the present action as out of time under the six-month period.  It argued that because the Commission took nine months to file the action, it was untimely under § 4554 and must be dismissed as a matter of law.

The trial court agreed and dismissed the action, which the Commission appealed to the SCOV.

On appeal, the Commission argues that the six month timeline established under § 4554 is only directory—that is it directs the Commission to file in a certain manner, but it does not limit the Commission or an action that does not strictly comply with the timeline.  To this end, the Commission argued that a discriminatory claim had a much longer statute of limitations (six years) and § 4554 was not intended to abridge that longer period, which it would do if the Agency’s position was affirmed. 

The SCOV starts its analysis with the statute and the SCOV’s oft-stated goal to interpret the statute in a manner consistent with the legislative intent.  This means starting with a reading of the statute’s plain language.  As the SCOV reads § 4554, the language is clear and creates a mandatory system.  The Commission is authorized to investigate allegations of discrimination.  Once it determines that it has a reasonable belief that such discrimination has occurred, it has up to six months to resolve the issue informally.  At the end of the six months, the Commission must either file an action or dismiss the proceeding.  There are no ands, ifs, or ambiguities. 

From this reading, the SCOV concludes that the legislature did intend to limit the Commission’s time for filing an action.  This is something legislatures have long done, and it is consistent with the legislature’s power.  The SCOV does not speculate as to why, but it simply confirms the statute and rules accordingly.

This leads the SCOV to take up the Commission’s constitutional argument.  According to this argument, the limitation created by § 4554 is unconstitutional because it only applies to actions against the state.  This created a two-tier limitation structure where the life of claim depends only on who it is brought against with the state enjoying a much shorter period.  This, the Commission argued, violated Vermont’s Common Benefits clause by applying the same law in a disparate manner to two different entities. 

The analysis for a Common Benefits Clause claim is three-fold.  First, the party seeking relief must show that a “part of the community” is disadvantaged by the legal requirement.  If this is established, then the state must identify a governmental purpose in drawing the classification.  Then, the court must determine whether the omission of part of the community from the benefit of the challenged law has or lacks “a reasonable and just relation to the governmental purpose.” 

Here the SCOV never gets past the first prong.  It cannot identify a disadvantaged portion of the community.  As the SCOV notes, the victim of the alleged discrimination has the same rights as he would if the employer had been a private company.  In fact, the SCOV notes that the employee’s private action is currently pending and chugging through the system.  The Commission is not disadvantaged because it is not prevented from filing suit.  In fact, from the moment it rules that a reasonable belief exists, the Commission is empowered to direct the informal proceedings and decide when and where to file.  No disadvantage comes from the relatively shorter period of time. 

The result throws the issue back to the general legislative power to set the time during which claims may be brought.  In this action, the legislature is four-square on the floor. 

The Commission’s action is dismissed, and the Agency is allowed to keep on trucking.   

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