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A recent opinion involving Delaware’s Department of Labor’s responsibility to claimants under the Discrimination in Employment and Handicapped Persons Employment Protections Act could impact its procedures for accepting and refusing sex discrimination claims. In Holland v. Zarif, Vice Chancellor Leo Strine denied the department’s motion to dismiss and ordered it to review de novo a sexual discrimination claim that it had previously dismissed without following proper procedures and without issuing a written report. In her suit, plaintiff Patricia Holland claimed that the department prematurely dismissed her case based on a non-legally trained employee’s opinion that Holland’s facts did not meet those of a sexual discrimination claim. Under Section 712 of the act, the department does not have the right to refuse a charge of discrimination, Strine found. It is obligated to investigate a claim before dismissal. Holland is also seeking a permanent injunction requiring the Department of Labor to take every charge and investigate it. In her claim, Holland alleged that her boss, Dr. Alae Zarif, fired her to placate his wife’s suspicion that the two had an extramarital affair at a work-related conference. Holland was confronted by Zarif’s wife, Kimberly, at the office and was fired by Zarif a few days later. Holland claims that Zarif told her he was firing her to “keep the peace at home and appease his angry wife,” and that her job performance had nothing to do with her dismissal. Holland said in the opinion that she believed she was fired because of her sex because a male employee would not have been accused of having an affair with Zarif. When she presented her claim during a phone call to the Labor Department, employee Trina Wheedleton dismissed it. Holland pressed Wheedleton for a meeting, which was granted. At the meeting, Holland again presented her facts and completed the requisite forms for the department to review her claim. Wheedleton, who reviewed the information with her superiors, again rejected Holland’s complaint. No written explanation was issued about why the complaint had been rejected, which is required under the procedures of Section 712 of the act. Because Zarif only employed four people, he was not an employer subject to Title VII of the federal Civil Rights Act of 1964. Thus, Holland’s only remedy was under state law, and the department’s dismissal of her claim marked the end of the administrative process. While there have been other cases concerning the Department of Labor’s duty to investigate claims, this is the first in which the plaintiff did not have a federal right of action. The department, which filed a motion to dismiss on the grounds that its dismissals and refusals are not subject to judicial review, has made it a policy to turn away claims without an investigation, according to the opinion. It argued that no court has jurisdiction to determine if its refusal to accept Holland’s claim constituted an abuse of discretion. “Not only has the department been refusing to accept charges, but it has been acting as a trier of fact rather than applying the reasonable cause standard properly,” David A. Boswell of Schmittinger & Rodriguez in Rehoboth Beach, Del., said. Boswell, who represents Holland, said this practice has lead to numerous discrimination cases never being investigated or officially reported. Holland’s case is complicated by the lack of discrimination complaint records, something Boswell is trying to solve by asking other attorneys who have had clients’ complaints improperly refused by the department of labor to step forward. The department’s dismissal of Holland’s claim without following the proper procedures, Strine wrote, equaled a denial of due process. Citing the 1982 U.S. Supreme Court decision in Logan v. Zimmerman Brush Co., he explained that Illinois’ anti-discrimination act, which is similar to Delaware’s, creates a property interest on the part of the claimant. Therefore, the Court said the claimants could not be denied of their interests without due process of law. “The problem for the department is that the act does not provide the safety valve of a private right of action. A refusal by the department if a charge deprives a claimant of the cause of action with finality. A decision by the department of that kind is an important one, which affects property rights of a substantial nature. It seems to me doubtful that the Due Process Clause permits such an important right to be taken from a claimant by line employees of a department, who act without a hearing, without necessarily obtaining formal legal advice, without producing a written decision, and without being subject to judicial review,” Strine wrote. The act, however, explicitly denies judicial review of conciliation decisions, which the labor department believed extended to refusals and dismissals. Strine, however, found that just because the legislature had not expressly approved judicial review of refusals and dismissals doesn’t necessarily mean they are not subject to review. His decision conflicts with the 1990 federal court decision in Chalawsky v. Sun Refining & Marketing Co., Inc. In Chalawsky, Judge James L. Latchum said, “This court will not presume the Delaware legislature intended remedies it did not include in the statute.” However, Strine said, Chalawsky did not present the constitutional issue posed in Holland, which made judicial review necessary. “In this circumstance where the unavailability of such review would raise a serious constitutional question and where the General Assembly has proscribed the use of such review explicitly in one situation [conciliation decisions] under the act but not in any other, I find that the best reading of the act is that these default principles of law are applicable,” Strine said, citing Choma v. O’Rourke, a Delaware Chancery Court decision from 1972. He continued, “I admit that the General Assembly’s failure to address the method for obtaining judicial review of departmental refusal or dismissal decisions can be read as evidencing its view that such decisions should be beyond the purview of the courts. But that is not the only reasonable reading of the act.” During the review, he found that the labor department’s procedures run “afoul of the mandatory requirements of the act. … Section 712(b) does not give the department the power to act without simultaneously exposing its reasoning through the rigorous process of writing.” Despite its abuse of process, Strine found that the department’s procedures were not so tainted that Holland was entitled to press her claim in court. Because he could not determine and the department could not tell him why it had summarily dismissed Holland’s claim, Strine opted not to decide whether Holland had stated a claim under the act. Instead, he gave the department the opportunity to revisit her claim “in good faith and with an open mind.” He ordered a meeting between the parties within 10 days and the delivery of a de novo decision by the department within 60 days. He also outlined several instances in which Holland’s claim could and has supported a sexual discrimination case. It is unclear if Holland’s injunction claim will survive Boswell said, in light of the fact that the department is deciding her claim de novo. If that is the case, he said, there are plans to file a separate suit. C. Cullen Rooney of the Department of Justice represented the Department of Labor, administrator Susan Anders and Wheedleton in their official capacities. Alan Grant Davis of Milton represented Anders and Wheedleton individually. Larry W. Fifer of Lewes represented Zarif.

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