January 16, 2013 - Texas Workforce Commission

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January 16, 2013 - Texas Workforce Commission

1

1 TRANSCRIPT OF PROCEEDINGS

BEFORE THE

2 COMMISSION ON HUMAN RIGHTS

(TEXAS WORKFORCE COMMISSION - CIVIL RIGHTS DIVISION)

3 AUSTIN, TEXAS

4 PUBLIC MEETING FOR THE )

COMMISSION ON HUMAN RIGHTS )

5 TEXAS WORKFORCE COMMISSION )

CIVIL RIGHTS DIVISION )

6

7 COMMISSION MEETING

8 WEDNESDAY, JANUARY 16, 2013

9

10 BE IT REMEMBERED THAT at approximately

11 9:00 a.m., Wednesday, the 16th day of January 2013,

12 the above-entitled matters came on for hearing at the

13 Texas Workforce Commission, TWC Building, 101 East

14 15th Street, Room 244, Austin, Texas, before CHAIRMAN

15 ANDERSON and the COMMISSIONERS of the Human Rights

16 Commission, Texas Workforce Commission - Civil Rights

17 Division; and the following proceedings were reported

18 by Janis Simon, a Certified Shorthand Reporter, in the

19 State of Texas.

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1 TABLE OF CONTENTS

PAGE

2

AGENDA ITEM NOS. 1 & 2 .......................... 3

3 Chairman Anderson

4 AGENDA ITEM NO. 3 ............................... 18

Jonathan Babiak

5

AGENDA ITEM NO. 4 ............................... 40

6 Jonathan Babiak and Daryl Steglich

7 AGENDA ITEM NO. 5 ............................... 58

Jonathan Babiak

8

AGENDA ITEM NO. 6 ............................... 60

9 Vickie Covington

10 AGENDA ITEM NO. 7 ............................... 69

Jonathan Babiak

11

AGENDA ITEM NO. 8 ............................... 75

12 Chairman Anderson

13 AGENDA ITEM NO. 9 ............................... 75

Chairman Anderson

14

AGENDA ITEM NO. 10 .............................. 80

15 Jonathan Babiak

16 AGENDA ITEM NO. 11 .............................. 100

17 AGENDA ITEM NO. 12 .............................. 102

18 REPORTER'S CERTIFICATE .......................... 103

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1 P R O C E E D I N G S

2 WEDNESDAY, JANUARY 16, 2013

3 (9:00 a.m.)

4 AGENDA ITEM NOS. 1 and 2

5 CHAIRMAN ANDERSON: Good morning,

6 everyone, and welcome to the Commission on Human

7 Rights January 16th meeting. We welcome everybody,

8 and Happy New Year. And we look for another good year

9 from TWC-CRD, and I'm sure Jonathan will tell us how

10 the CRD has gotten off to a great start this year.

11 We, what, finished one quarter of the

12 year --

13 MR. BABIAK: Well --

14 CHAIRMAN ANDERSON: -- the budget year?

15 MR. BABIAK: Yes. We've -- the first

16 quarter is September, October, November.

17 CHAIRMAN ANDERSON: Okay. Great.

18 We do have some guests, and we have some

19 speakers. First, Marilou Morrison, and she's from

20 Austin. She'll talk on the budget and the quarterly

21 results.

22 Ms. Morrison.

23 MS. MORRISON: Good morning and New

24 Year -- Happy New Year. This is a new year, both new

25 and old problems, though. Since TWC assumed


4

1 responsibility for the TCHR, it has been an escalating

2 nose-dive.

3 I have been telling you for the last 10

4 years that this is the direct consequences of inept

5 management from the bottom to the top. You are on the

6 third director, and things have never been worse,

7 partly because Commissioners have consistently hired

8 the unqualified and are those with clearly

9 demonstrated bias toward common employees and

10 complainants.

11 The current director has the position as

12 a -- a result of expressing his bias publicly and

13 consequently being required to find other employment.

14 Of three directors since 2003, lack the knowledge

15 and/or ability and interest in properly complying with

16 HUD and EEOC contracts and rules or even the TCHR Act.

17 What's going on? Commissioners hired them. What does

18 this say about Commissioners' commitment to preventing

19 discriminatory employment and housing practices in

20 Texas?

21 Neither the former director nor the

22 current one really had much of a chance to succeed

23 because they were forced to rely on a

24 second-in-command manager with much less education,

25 experience, or ability. Because of this manager's


5

1 record in district court of unlawful discrimination

2 and retaliation resulting in a nearly million dollar

3 judgment and another lawsuit scheduled for trial later

4 this year, TWC has been afraid that firing her would

5 be an admission of guilt. Instead, this manager is

6 allowed to continue to assure the other destruction of

7 any integrity the CRD ever had.

8 While the intake questionnaire is

9 absolutely essential to maintaining sufficient

10 inventory, it has been changed repeatedly and not for

11 the better, and the Spanish version was entirely

12 deleted. Complainants report being discouraged from

13 filing. I suspect it is because investigators and

14 their supervisors do not understand the law well

15 enough to know what a legitimate complaint is, and

16 they're afraid to attempt to write one.

17 And there is only one intake

18 investigator, and this investigator is relatively new

19 and inexperienced in employment discrimination

20 matters. It should be obvious that one intake

21 investigator cannot possibly take enough complaints to

22 supply sufficient case inventory for all employment

23 investigators. That -- that is a no-brainer.

24 Housing management is even worse. HUD

25 provided a hundred thousand dollars in additional


6

1 funds to assist the CRD in resolving the backlog of

2 very old cases. Unfortunately, the utilization of

3 these projected funds for overtime to try to

4 accomplish this has been a dismal failure, and the CRD

5 is unlikely to ever collect that hundred thousand

6 dollars.

7 Again, this is a direct consequence of

8 the investigators receiving no guidance from

9 supervisors and because supervisors themselves do not

10 understand the laws or requirements of EEOC and HUD.

11 Review the original applications. Most of them are

12 totally unqualified from the very beginning.

13 The Comptroller's report reveals that

14 the CRD is not receiving the funding previously

15 received from state revenue. Why? Is this -- this

16 situation could easily be turned around. Why has

17 this -- has nothing been done? If anyone just knew or

18 cared about Civil Rights in Texas in housing or

19 employment, you could do something, and this is the

20 year to do it if you're ever going to do it. Thank

21 you.

22 CHAIRMAN ANDERSON: Well, unfortunately,

23 it's a new year, same -- same old message.

24 We now have two individuals from the

25 Valley, one from Brownsville and one from Harlingen,


7

1 who wish to speak.

2 And Mr. John Shergold wants to talk

3 about one of the cases.

4 MR. SHERGOLD: Good morning, Honorable

5 Commission. It's a distinct honor to be in front of

6 this Commission. Many years ago, when I was a young

7 lawyer out of law school, I worked across the street

8 over here at the Capitol for then, State

9 Representative Doyle Willis, who is now deceased. And

10 I'm really honored to be back in Austin today with my

11 colleague, Mr. Warner.

12 The reason that we're here today is to

13 alert the Commission about a specific case that

14 Mr. Warner and Mr. Ruben Pena, who unfortunately

15 couldn't be here today, have been working on with due

16 diligence. And it's a case involving a worker that

17 had been employed with the County of Hidalgo. And the

18 worker had been terminated, and we had filed a -- a

19 charge of discrimination with Mr. Babiak and his fine

20 staff, a civil rights complaint.

21 The case is real simple, because what

22 happened in the case we believe has an impact

23 statewide because the Court of Appeals had affirmed

24 the judgment notwithstanding the verdict. We had

25 received a jury verdict in favor of my client of


8

1 $100,000. The Trial Court had reason to do a JNOV.

2 Then, we appealed to the Court of Appeals in the 13th

3 Court, who affirmed the Trail Court's JNOV.

4 The reason we're here today is to alert

5 you of the rationale of that affirmation against

6 our -- our jury verdict and the JNOV against our --

7 our verdict, is because in the holding the Court has

8 reasoned that the procedures of the TWC and EEOC are

9 equivalent to those of a local governing body. What

10 happened in this case real simply is: The worker who

11 was terminated appealed through the local policy, a

12 grievance policy there that the county had, asked for

13 a hearing, and that policy had the authority to

14 reinstate if so given a hearing. The county had

15 decided to turn off the hearing process locally to

16 this client of ours and create a situation where his

17 local hearing that he was bound to have in the policy

18 book was turned off by his own county. So, therefore,

19 he wasn't able to appeal locally.

20 The Court reasoned that, since he filed

21 a complaint with the TWC, vis-a-vis EEOC, that the

22 procedures were equivalent. In other words, now this

23 holding has said -- and I know this is strange, but

24 this is what the holding means -- that if a worker

25 files a complaint with the TWC, he's not harmed and


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1 he's not injured if the local county in this situation

2 turned off his local grievance procedure. Now, this

3 is a very -- a very frightening situation, because now

4 we basically have created a situation where we don't

5 have a local grievance procedure that a worker can

6 have faith that he can apply to and get a hearing if

7 he decides to file a complaint with Mr. Babiak and his

8 department, a civil rights complaint.

9 The Court reasoned that they were

10 equivalent procedures, because a worker could be

11 reinstated. The worker in the opinion says that the

12 worker can be reinstated by Mr. Jonathan Babiak and

13 his -- and his Civil Rights Commission. Now, I know

14 he's a very powerful fellow. I know he's got a lot of

15 responsibilities, but under -- there's no code,

16 statute, or constitutional provision that basically

17 gives his agency or the EEOC the power to reinstate a

18 worker in the State of Texas.

19 So, therefore, if this decision holds

20 the Court of Appeals, we plan to -- Mr. Warner is

21 going to be talking in just a second, we plan to

22 appeal this to the Texas Supreme Court, because we

23 believe that every worker in the state now is at

24 jeopardy because every local county government or city

25 government or school district, whoever it might be,


10

1 can turn off a grievance hearing if they find out that

2 that worker applied and filed a complaint with the

3 Civil Rights Commission. And the reason they say it

4 is, is because, "Well, we don't have to give it to you

5 because TWC can reinstate you," which we know under

6 this current case law that we're aware of is not

7 correct. So, two reasons why the Civil Rights

8 Commission Board and -- should be concerned, because

9 it takes away the power of the local counties, and the

10 local county governments and local city governments

11 and local school districts to have their own local

12 hearings to determine whether to reinstate the worker

13 or not.

14 Now, why is that somewhat concerting?

15 Because it flies in the face of the -- the exhaustion

16 of administrative remedies doctrine, which always has

17 taught us lawyers who do the labor law, is that you

18 have to exhaust your local remedies first before you

19 can go -- go to court.

20 CHAIRMAN ANDERSON: Mr. Shergold, could

21 you do -- please go ahead and wrap this up?

22 MR. SHERGOLD: Yes. And so, therefore,

23 we believe that this is not efficient and also it is

24 costly, because now it is holding -- holds in the

25 Court of Appeals. Then, workers are going to now --


11

1 to have to be filing complaints with the Civil Rights

2 Commission and not be able to rely on their local

3 policy, which says that they have a right to appeal

4 their terminations locally. So, therefore, we

5 appreciate you giving us the opportunity to speak on

6 this issue, because we believe it does have statewide

7 importance. And we are -- hopefully, asking and

8 hoping that the EEOC or the TWC will write an amicus

9 curiae brief to the Supreme Court on this issue

10 because it will have a dramatic impact we believe on

11 labor in the State of Texas and the way business is

12 conducted if the Court of Appeals' decision stands the

13 way it is.

14 With that, I thank you so much. It's so

15 nice to be in front of everybody this morning. I'm a

16 little bit nervous, because it's 32 degrees out there,

17 and my teeth are chattering.

18 (Laughter)

19 MR. SHERGOLD: But, anyway, thank you so

20 much, and we're not used to that -- to this cold

21 weather down in Brownsville. You know, I just picked

22 several grapefruits out of my backyard. I have a

23 grapefruit tree back there, and I was picking them

24 this morning. And I talked to my friend, Larry, over

25 here, Mr. Warner, I said, "Mr. Warner, I don't see any


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1 grapefruit trees here in Austin," and he said -- he

2 goes, "John, you made a point there."

3 (Laughter)

4 MR. SHERGOLD: All right. Y'all have a

5 nice day. Thank you very much.

6 CHAIRMAN ANDERSON: Thank you,

7 Mr. Shergold.

8 Mr. Larry Warner from Harlingen, and are

9 you going to talk on the same -- same situation, the

10 same case, Mr. Warner?

11 MR. WARNER: I have a solution to the

12 problem that my colleague has just brought to your

13 attention.

14 Mr. Chairman, Members, thank you for

15 your service. Always nice to meet people who get paid

16 less than state representatives do. When I was in

17 front of the Legislature, they gave me my check, and I

18 said, "Is this my Xerox reimbursement?" "No,

19 Representative, that's your check." Thank you for

20 your service.

21 Mr. Chairman, Members, there is a

22 solution to the problem that my college has just

23 brought to your attention. Here it is: The Court of

24 Appeals just got the law completely wrong. So, here's

25 what we're doing about it.


13

1 We are doing two things at one time. We

2 are filing a petition for review, which they could

3 grant if they want to, and we're filing a motion for

4 leave to file and an application for writ of mandamus.

5 Probably the second one is the one that they might

6 take up to just tell the Court of Appeals, "Listen,

7 Court of Appeals, we've looked at the Constitution and

8 we've looked at the law and we've looked at the cases,

9 and as of today -- and from the date that the Texas

10 Workforce was -- was brought into existence -- it has

11 never, and it does not now have, as the Court of

12 Appeals said, the power to reinstate a worker."

13 Period. Paragraph. Reversed.

14 Here's what we'd like for you to do. We

15 want to borrow your prestige. My colleague has a

16 good -- very good reputation as a labor lawyer. I

17 have managed in the last 40 years to have dealt with

18 some success with appeals.

19 But if you'll lend us your prestige and

20 join as a friend of the court and file a friend of the

21 court brief with us on our petition for review and our

22 motion for leave to file -- an application for writ of

23 mandamus and our application for writ of mandamus and

24 say, "We're the Texas Workforce Commission. We know

25 what power we have. We're the Commission on -- on


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1 Civil -- on Human Rights. We know what power we have.

2 We don't have now -- when we were the Texas Workforce

3 Commission, we didn't have the power to reinstate a

4 worker." The Court of Appeals got it wrong.

5 Now, why is that important? It will

6 help every worker. It will help every employer. It

7 will help the Commission if you will help us by

8 loaning us your prestige and the work of your -- your

9 counsel to join us as a friend of the court and even

10 to intervene as a party in both of these proceedings.

11 How come? Well, they're going to pay

12 attention if the Texas Workforce Commission and the

13 Commission on Human Rights, if they're on that motion

14 for leave to file, the application for writ of

15 mandamus, if your name is on that petition for review,

16 they're going to -- "This must be important." Has

17 this ever happened before? Well, yes, it has.

18 The Equal Employment Opportunity

19 Commission, kind of like what you do, before the

20 United States Court of Appeals for the 7th Circuit in

21 a case called Veprinsky said, "Wait, they got the

22 law -- they -- they didn't get it right. Wait a

23 minute." A post discharge action by an employer can

24 indeed be an adverse employment action.

25 Guess what? The -- the Court of Appeals


15

1 for the 7th Circuit, United States Court of Appeals

2 for the 7th Circuit, covers whole -- all over the

3 whole -- a group of states said, "Okay. Not only will

4 we let you file a friend of the court brief, you can

5 be a party," which is kind of different. It's a

6 lawyerly distinction, but "you can be in on this

7 lawsuit."

8 And then the 7th Circuit said, "We adopt

9 your position. You were right. You got the law --

10 you told us what the law was. Now, we're going to

11 tell everybody else what the law is."

12 That's what you ought to do here, and

13 here's how come. Right now employers don't -- if --

14 if this decision stands, employees will have no reason

15 to have their own resolutions at home with a

16 decision -- with a procedure for workers to resolve

17 those at home. And they're going to say, "Well, the

18 Texas Workforce Commission can reinstate you," but you

19 can't.

20 Article 1, Section 13 of the Texas

21 Constitution says everyone will have a right on due

22 course of law to -- for a wrong that's been committed

23 against them. Every right has to have a remedy.

24 Well, there's no remedy right now for those people in

25 the Court of Appeals district who get discharged


16

1 unfairly because they can't come to you and ask to be

2 replaced.

3 Here's what we ask you to do. I'll

4 close with this.

5 CHAIRMAN ANDERSON: Thank you.

6 MR. WARNER: Please tell your counsel,

7 "Okay. You can file a friend of the court brief with

8 Mr. Warner and Mr. Shergold on the petition for review

9 in the Supreme Court." Please tell your counsel, "We

10 want to intervene in that application for writ of

11 mandamus. We want the Supreme Court of Texas to say

12 the Workforce Commission can't reinstate workers."

13 That's what we'd like for you to do. Thank you for

14 your attention.

15 CHAIRMAN ANDERSON: Thank you,

16 Mr. Warner and Mr. Shergold, for coming up and

17 speaking.

18 We will -- does -- can we, Corra,

19 discuss this -- since it's not on the Agenda, can we

20 discuss this particular issue, or should we -- have to

21 wait for another meeting, which will not be until

22 April?

23 MS. DUNIGAN: I don't think we can

24 discuss it today. I think we're going to have to --

25 we would have to put it on the next Agenda and


17

1 probably discuss it in Executive Session. My esteem

2 colleague, Susanne Cutrone, is here, and she's

3 nodding. I want to make sure that I'm speaking

4 correctly.

5 CHAIRMAN ANDERSON: Can we talk in

6 generalities without talking about this specific case,

7 about the wisdom or the process for our be -- filing

8 friend of the court petitions under -- under the

9 current law.

10 MS. CUTRONE: Chair Anderson, Susanna

11 Cutrone, for the record. Are you referring to

12 discussing this currently in open session from the

13 dais, or are you referring to discussing this matter

14 in Executive Session today?

15 CHAIRMAN ANDERSON: Either -- either

16 forum, either closed or -- and open session, not this

17 particular case, but -- perhaps, but --

18 (Simultaneous discussion)

19 MS. CUTRONE: The policy issues

20 surrounding it.

21 CHAIRMAN ANDERSON: -- the policy issue.

22 MS. CUTRONE: The -- the discussion from

23 the dais would need to be posted for a future meeting.

24 From a consultative angle, discussing the issue with

25 your attorney in Executive Session, that could occur


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1 today. That is -- that is properly posted for

2 discussion today in Executive Session.

3 CHAIRMAN ANDERSON: Okay. Then, we

4 will -- we will do that in Executive Session. Thank

5 you.

6 Anything from the Commissioners?

7 (No response)

8 CHAIRMAN ANDERSON: And -- and for the

9 record, for those who are not attorneys, JNOV that you

10 kept referring to is -- go ahead.

11 MR. SHERGOLD: It's judgment

12 notwithstanding the verdict.

13 CHAIRMAN ANDERSON: Thank you.

14 MR. SHERGOLD: Thank you.

15 AGENDA ITEM NO. 3

16 CHAIRMAN ANDERSON: And No. 3 on the

17 Agenda, Jonathan.

18 MR. BABIAK: Good morning,

19 Commissioners. For the record, Jonathan Babiak,

20 Director, Civil Rights Division. We have been so busy

21 since the last meeting that it feels like the last

22 meeting was a week ago.

23 Some of my activities, I have

24 participated in numerous case staffing, sitting down

25 with investigators, the managers, supervisors, and


19

1 just reviewed investigative activities. We have spent

2 substantial time making revisions to our business

3 processes. In particular, I think yesterday we have

4 implemented some substantial changes to our processes

5 on the employment side, and let me describe them to

6 you.

7 The old way of doing business would be

8 that typically a customer would call. We would screen

9 the call by asking questions like, "Did this happen in

10 the last 180 days? Does the employer have 15 or more

11 employees? Did this happen in Fort Worth, Austin, or

12 Corpus? And have you already filed with the EEOC?"

13 If we clear those questions, we then

14 ask, "Was this action taken against you because of one

15 of the protected classes in the law?" At that point

16 we would mail an intake questionnaire form to the

17 individual. Not all of those intake questionnaires

18 would be completed and returned to us. For the ones

19 that were returned, we would draft a charge of

20 discrimination, mail it to the individual, and

21 instruct the individual to have it signed and

22 notarized, and then mail it back to us.

23 I think we looked at one recent month.

24 I think it was in August of 2012. During that month,

25 we mailed out 192 intake questionnaires. We didn't


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1 track those individual intake questionnaires for

2 return, but in that same month we received 46

3 perfected charges.

4 Here's what we do now. When we get a

5 call, we go through the initial screening in the

6 normal manner. At that point we ask the customer, "Do

7 you have e-mail?" If the customer has e-mail, we

8 draft the charge on the phone and e-mail it to the

9 individual and ask the individual to review it, and we

10 make any necessary corrections at that time.

11 Once we've got that charge ready to be

12 signed, based on an amendment to the Texas Civil

13 Practice and Remedies Code in the 2011 Session, the

14 requirement in Chapter 21 if a charge be in writing

15 and under oath can now be satisfied without having the

16 charge notarized. Chapter 132 of the Texas Civil

17 Practice and Remedies Code following the amendment

18 authorizes the use of what is known as an unsworn

19 declaration, and the statute provides the form of the

20 unsworn declaration. And we now use that unsworn

21 declaration on our charge. The individual does not

22 need to go find a notary.

23 So, once we have the charge perfected --

24 I'm sorry. Once we have the charge ready for a

25 signature, we then ask the customer, "Do you have a


21

1 printer?" If the customer has a printer, the customer

2 prints the charge, signs it, scans it, attaches it to

3 an e-mail, and returns it to us. And we collapse what

4 used to be a multistep process with four different

5 mailings into a single phone call.

6 Once we have the perfected charge, the

7 old process would be that every charge would -- we

8 would invite the parties to a mediation. We would

9 allow them 12 days to respond to that invitation. If

10 either party declined, we would then and only then

11 assign the case to an investigator to prepare a

12 request for information and position statement. We

13 would mail that to the respondent, await a return, and

14 then analyze the information and present the case for

15 closure.

16 For the cases that both parties accepted

17 mediation, the mediators would begin discussions by

18 telephone with the parties, attempt to come to a

19 resolution. And only if the case could not be

20 resolved over the telephone would a conference then be

21 scheduled.

22 Here's some of the changes we've made.

23 At this point we will simultaneously invite all

24 parties to mediation and request the information from

25 the respondent and the charging party. We ask the


22

1 parties to respond immediately, if they will accept

2 mediation. When they accept mediation, the mediators

3 begin that discussion with a request to schedule the

4 mediation conference now.

5 We attempt to resolve it without needing

6 a mediation conference. And if we do that, we can

7 cancel that mediation conference. If the mediation

8 conference becomes necessary, we already have it

9 scheduled at the beginning.

10 In addition, the respondent is told in

11 the initial letter, "You have 21 days to provide us

12 with the information." If both parties accept

13 mediation, that deadline is suspended. If either

14 party declines, the deadline resumes, and we expect

15 the information by the deadline. We hope that a

16 substantial number of cases, if we can implement this

17 process and carry through on our plans, we can see a

18 30-day turnaround from initial contact to case

19 closure.

20 We've also been working on redesign of

21 our Internet content. Part of that content is our

22 employment discrimination intake questionnaire. While

23 we are finalizing the English version, we have put out

24 a purchase order for a certified court -- a court

25 certified English-Spanish interpreter.


23

1 From my work in the Unemployment

2 Insurance Division, I became aware of a program

3 administered by the Administrative Office of the

4 United States Federal Court system. The federal

5 courts certify interpreters. The Unemployment

6 Insurance Division uses at least four

7 English-Spanish -- uses only court certified

8 interpreters, and we have secured a purchase order

9 with one of the court certified interpreters. And

10 once our English intake questionnaire form is posted

11 to the Internet, we will be able to submit that

12 content for translation to the interpreter and get it

13 posted to the Website.

14 In addition, in the past a customer who

15 went to our Website and downloaded that form, had one

16 option: Print the form, and mail it to us. We've now

17 implemented an e-mail address to allow the person to

18 fill in the form electronically and submit it to us

19 immediately by e-mail.

20 The previous version of the form had a

21 space for a signature. That space for a signature is

22 not required by state law, and it is not required by

23 our work sharing agreement. However, if the intake

24 questionnaire is signed, we are required to input that

25 intake questionnaire into the database.


25

1 on workload, we will not mail an intake questionnaire

2 to that individual, wait for the individual to

3 complete it and return it by mail. We will

4 immediately attempt to draft the charge, and at that

5 point, if the customer does not have e-mail, the --

6 our only option is to mail that to the customer and

7 urge the customer to sign it and return it. Even if

8 the customer does not have e-mail, once we mail that

9 completed charge out for signature, the customer does

10 not have to go find a notary.

11 CHAIRMAN ANDERSON: If they have a

12 relative or a friend who has an e-mail address, is

13 that acceptable, or does it have to be something

14 related to the -- the individual who is filing?

15 MR. BABIAK: We'll accept it through any

16 e-mail address. In addition, individuals can go to

17 the nearest workforce center and use the fax machine

18 and fax that form to us.

19 CHAIRMAN ANDERSON: Are the procedures

20 or the process in place at the present time, and --

21 and what type of results are you getting? Or are

22 you -- or is it still in the pilot phase -- phase?

23 MR. BABIAK: This is -- this is

24 something that we implemented yesterday.

25 CHAIRMAN ANDERSON: Oh.


26

1 MR. BABIAK: I think we have mailed out,

2 I believe, approximately 20 perfected charges with the

3 new combined letter that is both the invitation to

4 mediation and the request for a position statement.

5 CHAIRMAN ANDERSON: Okay. So, this is

6 just employment. This is not extended into the

7 housing yet, or maybe it won't be. I don't know. The

8 housing process is a little bit different.

9 MR. BABIAK: The housing process is

10 different and really wouldn't lend itself to the --

11 the changes that we're implementing on the employment

12 side.

13 CHAIRMAN ANDERSON: Do any Commissioners

14 have any questions for Jonathan on these modified

15 procedures?

16 (No response)

17 CHAIRMAN ANDERSON: Okay.

18 COMMISSIONER GLOVER: No question, but

19 I -- oops. No question, but I do have a comment. I

20 think that reducing the lag time probably would give

21 both sides the knowledge, number one, that we're very

22 serious about doing whatever we can do to get that

23 resolution and also that -- that we -- we will be

24 moving forward as quickly as possible. And I think

25 that, again, will help bring the resolution to play


27

1 sooner. So, I think that's great.

2 MR. BABIAK: Thank you.

3 CHAIRMAN ANDERSON: Yeah, you and your

4 staff are to be commended on looking to determine more

5 streamlined approaches and -- and going into the 20th

6 century, 21st century, maybe.

7 MR. BABIAK: In addition, I should

8 mention -- and this is not in the memo, but I should

9 mention that, as an agency, the TWC is adopting

10 principles of Rapid Process Improvement, otherwise

11 referred to as RPI. And we are all undergoing

12 training on three different related theories under the

13 subject of Rapid Process Improvement, and those

14 theories are, one, the Theory of Constraints, two is a

15 theory referred to as Lean, and the third is the

16 theory referred to as Six Sigma. And we'll be sitting

17 down tomorrow with the newly-hired agency Director of

18 Rapid Process Improvement to discuss what

19 opportunities we may have in the Civil Rights Division

20 to implement those principles.

21 CHAIRMAN ANDERSON: On a related note,

22 has -- has Mr. Crump been replaced, or is that

23 position still open? Or has it even been posted?

24 MR. BABIAK: Mr. Temple did not replace

25 Mr. Crump in the role of Deputy Executive Director.


28

1 Mr. Temple has hired Mr. Luis Macias to serve as

2 Mr. Temple's Chief of Staff.

3 CHAIRMAN ANDERSON: Okay.

4 COMMISSIONER DIGGS: One quick question.

5 When we start tracking days, aged days of cases, when

6 do we start tracking that, and how will this affect

7 that aging process of our cases?

8 MR. BABIAK: Well, let me answer the --

9 the second question first. The -- the hope is that

10 the -- the cycle time is reduced and that the case

11 aging is also reduced. I believe that we track both

12 from the agency date and then a -- tracking from the

13 date that the case is assigned to staff on the chance

14 that it's not assigned on the same day that we receive

15 it.

16 COMMISSIONER DIGGS: Okay.

17 MR. BABIAK: Any other questions?

18 CHAIRMAN ANDERSON: We're still on

19 your -- the activities report. Right?

20 MR. BABIAK: Yes, sir.

21 CHAIRMAN ANDERSON: Okay.

22 MR. BABIAK: I've been working with the

23 Employment Manager to create new processes for the

24 complaints we receive under HB 1178, the amendments to

25 Government Code Chapter 431. We have struggled with


29

1 the concepts. We have had to learn military

2 terminology. We've had to gain an understanding of

3 how state military operations interact with the United

4 States Armed Forces.

5 Also, as a reminder, HB 1178 was the

6 amendment to Government Code Chapter 431 to add an

7 administrative complaint process for unlawful

8 employment practices against members of state military

9 forces. Before the amendment, a member of the state

10 military forces who suffered discrimination because of

11 being called to training or duty had a cause of action

12 and could take that cause of action directly to court.

13 There was no administrative complaint process for that

14 cause of action. The amendment created an

15 administrative complaint process similar to the

16 administrative complaint process under Chapter 21, and

17 we have received a small number of complaints, I

18 think, perhaps five or six.

19 One aspect of the cases that we've

20 seen -- in fact, one complaint that we have right now

21 involves an individual who was called to duty under

22 state law, otherwise referred to as state active duty.

23 While on state active duty, that individual was called

24 up under federal active duty. And upon returning from

25 federal active duty, returned to work and was not


30

1 allowed to return to the job.

2 When we first began analyzing this, we

3 incorrectly assumed that an individual would have to

4 make an election of remedies, because we're familiar

5 with that concept under Chapter 21. We believe that

6 an individual would have to choose between a remedy

7 under state law or under federal law. The federal law

8 protections are found in the Uniform Services

9 Employment and Reemployment Rights Act, otherwise

10 referred to as USERRA, U-S-E-R-R-A.

11 And at this time, certainly subject to

12 interpretation by the courts, my belief is that an

13 individual who is called to a succession of both state

14 active duty and federal active duty would be able to

15 file a complaint with the Civil Rights Division. And

16 we would not need to consider whether that individual

17 had any rights under federal law to determine whether

18 that individual could proceed through our process.

19 CHAIRMAN ANDERSON: Because of the --

20 because of H -- HB 1178?

21 MR. BABIAK: Exactly. Yes, there is --

22 there is nothing in state law that makes any reference

23 to rights under federal law that would limit the state

24 law rights based on our reading right now.

25 CHAIRMAN ANDERSON: So, they would only


31

1 have USERRA rights if they were called up to federal

2 active duty?

3 MR. BABIAK: Right now, we are not

4 considering whether an individual has any rights under

5 federal law. We are looking only at state law and

6 determining solely based on a reading of state law

7 whether an individual can proceed through our

8 complaint process. We do advise individuals that they

9 may have rights under USERRA, and we provide them with

10 information to contact both Employer Support of the

11 Guard and Reserve, which is a volunteer organization

12 under the Department of Defense and the United States

13 Department of Labor Veterans' Employment and Training

14 Services, who administers the complaints filed under

15 USERRA.

16 CHAIRMAN ANDERSON: But even if they're

17 on state -- I mean, they have orders -- orders are

18 issued; otherwise, there is no call to active duty on

19 either the state or federal level. So, why would

20 there be a question on their ability to file a claim?

21 I -- I don't -- I mean, you have orders that say you

22 shall report. If you don't report, you're in a heck

23 of a lot more trouble than not having a job anymore.

24 MR. BABIAK: When the -- when the bill

25 was going through the Legislature two years ago, I met


32

1 with the executive director at the time of the Texas

2 ESGR, a man named Dwain James, and he explained to me

3 that it's common for an individual to be called to

4 training or duty before the document actually is

5 created and that some individuals who serve struggle

6 to understand that they have to get that document to

7 support their complaint. At this point, part of the

8 intake process that we've had to develop is to ask

9 individuals, "Do you have orders?"

10 In speaking to the current executive

11 director of the Texas ESGR, a man named John Steele,

12 he has explained that the individual can obtain the

13 documented orders from -- and I'm working from memory

14 here. I think it's referred to as the unit orderly

15 room, the immediate supervisor, or the unit commander.

16 And, hopefully, by communicating to the customer in

17 the terms that they understand, they will be able to

18 find out are there documented orders. We have

19 received some complaints with where the complaint did

20 not clearly allege whether the duty was under state

21 law or federal law, and so we've had to get that

22 clarified. And -- and through that process we've --

23 we've gained an understanding of how these operations

24 take place.

25 CHAIRMAN ANDERSON: Frequently, orders


33

1 come into the whole unit, and the individual is not

2 named. They have to have a roster. As Vickie

3 probably knows, a roster supplements the order that

4 says Headquarters and Service Battalion of whatever

5 unit is -- is hereby ordered to active duty or

6 something like that. They don't have the names.

7 So, it's important that they get that.

8 Otherwise -- or some kind of record that indicates

9 that they were in that unit during that period of

10 time. Otherwise, there is no record, or there's

11 nothing that says that individual actually was called.

12 So --

13 MR. BABIAK: And the -- the ESGR is

14 available to individuals who serve to assist in

15 getting a copy of the orders to support the complaint.

16 CHAIRMAN ANDERSON: Right. They -- they

17 need to go to S1 or personnel for the orders,

18 generally, or the adjutant. That's -- that's where

19 it's going to be. Okay. Thanks.

20 MR. BABIAK: Any questions on our

21 military complaints?

22 (No response)

23 MR. BABIAK: Okay. Just some

24 highlights. Last week presented the biennial Equal

25 Employment Opportunity and Minority Hiring Practices


34

1 Report to the three-member Commission of the Texas

2 Workforce Commission. That report was issued on last

3 Friday.

4 Some quick highlights on legislation

5 that has been filed. A bill has been filed to amend

6 Chapter 21 to add sexual orientation and gender

7 identity or expression as a protected class or classes

8 under state law. This bill is similar and, perhaps,

9 identical to bills that have been filed in each of the

10 last two sessions, and we're analyzing that bill right

11 now. I'll probably speak more on that in the context

12 of the training under Agenda Item 10 when we get to

13 it.

14 CHAIRMAN ANDERSON: There is nothing

15 under EEOC. The only thing they have under EEOC at

16 the present time are gender identity of sexual

17 orientation is -- is promulgated regulations from

18 EEOC. Correct? I mean, there is no law from -- at

19 the federal level addressing sexual orientation or

20 gender identity.

21 MR. BABIAK: Well, we -- we do have

22 the -- the recent decision in the case of Macy versus

23 Holder. The EEOC has communicated to us that the

24 decision in that case represents the interpretation

25 that the EEOC will apply in private sector


35

1 enforcement. And I hope Commissioner Michalka will

2 correct me if I'm speaking on behalf of the EEOC

3 incorrectly. And, in addition, the -- the EEOC

4 database has been updated to allow tracking of the

5 sexual orientation, gender identity, or expression

6 cases under traditional Title VII discrimination based

7 on sex or gender.

8 I -- I believe it was in October, I know

9 it's been since the -- the last time that this board

10 met that I -- I was invited to lead a round table

11 discussion at the monthly meeting of the Austin Human

12 Resource Management Association on the subject of

13 recent EEOC issued guidelines on the use of criminal

14 history information. I also gave a very brief

15 presentation to the general session during lunch on

16 some recent cases issued by the Texas Supreme Court

17 under Chapter 21.

18 The first was a case, I think, decided

19 in the month of June. The Court considered the

20 question of whether in an age discrimination case,

21 characterized as a simple replacement case, whether a

22 plaintiff has to plead that the replacement worker was

23 younger than the discharged worker. And the Court

24 answered that question, "Yes."

25 The case involved, I believe, an


36

1 employee of a school district, who was released. The

2 released employee was over 40 years of age. The

3 employee was replaced by another worker who was also

4 over 40 and, in addition, older than the worker who

5 was released. And the Texas Supreme Court said that,

6 based on those allegations, that does not satisfy

7 the -- the prima facie elements of the case.

8 The -- the other case, and in my opinion

9 a little bit more interesting case, was the case

10 involved Prairie View A&M University. The name of the

11 plaintiff in the case, I believe, is pronounced

12 Chatha. It's C-h-a-t-h-a. The plaintiff was a -- I

13 believe a professor at the university, filed a

14 complaint under Chapter 21 relating to a difference in

15 compensation based on sex or gender. And the question

16 before the Court of Appeals was whether the federal

17 Lilly Ledbetter Fair Pay Act amendments to Title VII

18 were automatically incorporated into Chapter 21.

19 And -- and, just as background,

20 Ms. Ledbetter worked for Goodyear Tire and Rubber

21 Company for a -- a number of years. I think it's been

22 described as decades. She learned that the -- her

23 male co-workers were paid more than she was.

24 She filed a complaint of discrimination,

25 and the United States Supreme Court ruled that the


37

1 harm occurred at the time the pay agreement was made

2 decades ago. Ms. Ledbetter argued that the harm

3 occurred each time she received a new paycheck. The

4 United States Supreme Court rejected that argument,

5 and Ms. Ledbetter lost. Congress superceded the

6 United States Supreme Court, expressly amended Title

7 VII to state that every new paycheck is a new harm and

8 begins a new running of the complaint time limit,

9 either 180 or 300 days, and also sets a two-year limit

10 going back in terms of recovery.

11 Before the Texas Supreme Court, the

12 Texas Supreme Court in addressing the question of

13 whether those amendments to Title VII are

14 automatically incorporated into Chapter 21, the Court

15 answered that question "No." And so, at this time,

16 there is a difference between when the harm occurs in

17 a case of compensation discrimination between federal

18 and state law. In the 2009 and 2011 Texas Legislative

19 Sessions, a bill was filed that would conform Texas

20 law to Title VII.

21 I have been monitoring the -- the

22 legislation as it's been filed, and I believe that so

23 far a -- a similar bill has not yet been filed in this

24 session.

25 CHAIRMAN ANDERSON: Does -- who -- who


38

1 does our tracking? And do we -- does -- TWC obviously

2 tracks bills that are specifically related to TWC.

3 Do -- does somebody separately track bills that apply

4 to CRD, or is that part of the tracking that is done

5 at TWC?

6 MR. BABIAK: In the TWC External

7 Relations Division, one department is Governmental

8 Relations. Staff and Governmental Relations actively

9 track all bills that would impact TWC, including the

10 Civil Rights Division. The Texas Legislature Online

11 Website has a -- a function that allows any individual

12 to create an account, create customized searches.

13 I've created two different searches in an attempt to

14 make sure that we're seeing every bill that might

15 impact our operations, and I run those searches

16 several times a week.

17 CHAIRMAN ANDERSON: And a number of --

18 obviously a number of bills have been prefiled. I

19 guess some of them have been filed now, because we're

20 in session -- they're in session.

21 MR. BABIAK: I think the filing began in

22 November, and we've been tracking them from the very

23 beginning. I will say that the -- the amendment in

24 the last session to the Civil Practice and Remedies

25 Code, with respect to the unsworn declaration, was not


39

1 one that we tracked. I happened to simply come across

2 it.

3 And so we -- we don't see everything

4 that impacts us. I -- I wish that we had known about

5 that one. I don't know if that's anybody's fault, but

6 the important thing is we've found it now and we're

7 able to take advantage of it.

8 CHAIRMAN ANDERSON: Any questions from

9 the Commissioners?

10 (No response)

11 CHAIRMAN ANDERSON: Okay.

12 MR. BABIAK: In October we hosted

13 training conducted by an attorney from the EEOC on the

14 subject of gender stereotyping as it relates to the

15 recent Commission decision of the Commission. It was

16 conducted in the form of a webinar. We were assisted

17 in this by staff in the TWC Training and Development

18 Department. We had both CRD staff and staff from the

19 City of Austin participating live.

20 We had a number of TWC attorney staff

21 participating through webinar. And, in addition, we

22 were able to connect in the local commissions in Fort

23 Worth and Corpus Christi, and they were able to

24 participate. And I -- I should mention that at the

25 annual training conference conducted by the EEOC last


40

1 may, I expressed a desire to the district director,

2 Ms. Elizondo, for more training. And the EEOC

3 responded by saying, "Sure. We'll do it. Can you

4 host it?" And the result was our -- our training in

5 October, and -- and we hope to do more of those in the

6 future.

7 And that's -- that's all of my remarks

8 on -- on at least the highlights of my activities.

9 Were there any questions on anything that I mentioned

10 or anything in the -- the memorandum that I didn't

11 touch on?

12 (No response)

13 CHAIRMAN ANDERSON: Seeing none, let's

14 move on.

15 MR. BABIAK: Okay. Should I announce

16 the next agenda item?

17 CHAIRMAN ANDERSON: Sure.

18 AGENDA ITEM NO. 4

19 MR. BABIAK: Okay. That brings us to

20 Item No. 4: Discussion, Consideration, and Possible

21 Action Regarding the Quarterly Report Concerning the

22 Texas Workforce Commission Civil Rights Division

23 Budget for the First Quarter of Fiscal Year 2013.

24 Joining me at the table is Daryl Steglich from the TWC

25 Budget area.


41

1 Commissioners, I want to apologize. We

2 had some errors in your slides. The slides on the

3 Power Point are corrected for the errors that we found

4 through yesterday. There may be one error that we

5 didn't find, and Becky has a hard copy version of the

6 corrections if you'd like a hard copy.

7 CHAIRMAN ANDERSON: Also, in October,

8 Daryl and Jonathan, there was a number of items

9 that -- that we requested concerning the budget

10 presentation. Are these incorporated into the

11 presentation today?

12 MR. BABIAK: Chair Anderson, forgive me.

13 We -- we have not implemented those. I talked to

14 Daryl yesterday, and we are going to take that for

15 action. And -- and we hope to have that implemented

16 before the April meeting.

17 CHAIRMAN ANDERSON: Okay.

18 MR. BABIAK: Okay. I'll begin with the

19 slide expenditures by category, fiscal year

20 comparisons 2011, '12, and '13 as of November 30.

21 Before the meeting, I received a -- a call from

22 Commissioner Diggs. Let me explain how we have

23 labeled this slide. The 2011 total column is just

24 that. That is the total for that year. The next two

25 columns, 2012 and 2013, are just first quarter --


42

1 September, October, November of 2012-2013 -- presented

2 for comparison.

3 And I know Commissioner Diggs wanted

4 percentages. Give me just a moment.

5 (Brief pause)

6 MR. BABIAK: At the end of the first

7 quarter we have expended about 25 percent of our

8 projected revenue for 2013. I don't want to go

9 through any painstaking detail on this slide. I did

10 want to mention just this morning Daryl brought to my

11 attention that the 2013 column at the line for

12 benefits, we believe that that number is not accurate.

13 We have implemented a new method in terms of

14 automation for tracking time.

15 Rather than tracking time, we are now

16 tracking -- well, we are -- we used to track by

17 project function code, which relates to a funding

18 source. We are now trying to track by task, and we

19 hope that that's actually simpler and easier to

20 understand for staff. Right now we do not know what

21 that number is. We're going to get you an accurate

22 number, and we can report it to you once we get it.

23 MR. STEGLICH: If I can, I'd -- I'd like

24 to elaborate a little bit more on that. For the

25 record, Daryl Steglich, Texas Workforce Commission


43

1 Finance Department.

2 The task system, what it is is if we

3 have different cost allocations -- again, what

4 Jonathan was talking about, the staff have the -- have

5 the ability to charge to specific program function

6 codes, which means they can charge to EEOC or HUD or

7 they can charge to GR or Training or Monitoring items.

8 One of the issues that we have is, since we're not

9 fully reimbursed for EEOC, if you charge your time

10 directly to EEOC, that's federal monies.

11 So, there's -- even though we will make

12 an adjustment later to offset some of those

13 expenditures, the presentation that we provide does

14 not include general revenue benefits. The general

15 revenue benefits are not appropriated to the state

16 agencies. They are what they are.

17 So, if we -- the purpose of excluding

18 them is, if we estimate your benefits to be a hundred

19 thousand dollars and you spend 50,000 of that, that

20 additional amount of money is not available for you to

21 expend. So, what we're trying to do is to pare this

22 down as closely as we possibly can to give you a -- a

23 more truer picture of where you are. Again, the --

24 the individuals can charge to E -- project function

25 codes. They can even charge to -- just the way that


44

1 that particular position is funded, and it could be

2 very different from the work that they're doing.

3 The task system will allow us to have

4 someone charging to EEOC, and that will automatically

5 be split between the federal portion and the state

6 portion. Does that -- does that make sense, or do you

7 have further questions on that?

8 CHAIRMAN ANDERSON: So -- so, those

9 employees, like Jonathan and the other managers --

10 well, I guess the other managers are -- are put in the

11 category of -- of either housing or employment.

12 Right? I mean, everybody else, other than you, maybe,

13 and Becky and the mediators are split between housing

14 and employment. Right? If it's housing, then that's

15 all going to come out of the housing funds, but if

16 it's employment, they're going to be split between GR

17 and -- and EEOC funding. Correct?

18 MR. STEGLICH: Correct. And Jonathan --

19 Jonathan and Becky and administrative staff, they have

20 some other people that are -- that are doing

21 different -- different functions, and what we're

22 trying to do is to streamline the process so that we

23 can get a little bit more accurate as to where

24 everything is without having to go back and make

25 adjustments after the fact.


45

1 CHAIRMAN ANDERSON: Right.

2 MR. STEGLICH: These are review -- we

3 review them on a monthly basis, but it's -- it's

4 the -- the information comes to us through the time

5 tracking -- the time tracking system. And going to a

6 task system made some sense in this particular area.

7 So, hopefully, the number will -- will be a little bit

8 more consistent from period to period, because we have

9 adjustments that, of course, we can't make them in the

10 period that just ends. We have to make it in the --

11 in the subsequent period.

12 CHAIRMAN ANDERSON: Okay.

13 MR. BABIAK: Any other questions on the

14 first slide?

15 (No response)

16 MR. BABIAK: Okay. Our next slide is

17 our cases. We've budgeted to close 385 housing cases

18 this year. During the first quarter, we closed 89,

19 and that is 23 percent of what we expected to do for

20 the year. It's also 92 percent of what we expected to

21 do in the first quarter.

22 On the employment side -- and let me

23 stop for a moment. I'm sorry. Commissioner Diggs did

24 have some questions for me about this presentation. I

25 want to make sure I explain it so it's -- it's clear.


46

1 Let's first look at just the month of

2 September for housing. That target of 32 is

3 one-twelfth of the annual total, which is how we

4 derive that number 32. Once we complete the month of

5 September and we learn that we have closed only 20,

6 that makes our target in October all 32 that we would

7 originally expect to close in October, plus the 12

8 shortfall from the month of September, which is why

9 October then becomes 44.

10 In October we actually closed 36, which

11 is four more than we would normally hope to close in a

12 month. So, we are now at November where we expect to

13 do 32 for November, plus 8 of the 12 from September

14 that we didn't get closed in October for a total of

15 40. Does that make sense?

16 COMMISSIONER GLOVER: Somewhat. Let me

17 ask you -- let me ask you this, too. So, what -- I

18 can never make this thing --

19 CHAIRMAN ANDERSON: In the middle.

20 COMMISSIONER GLOVER: Anyway, I'm loud

21 enough. So, my question is that you have -- so you

22 have completed 92 percent of what was originally

23 anticipated that would happen within this first

24 quarter. Did I understand you to say that correctly?

25 MR. BABIAK: Give me just a moment.


47

1 (Brief pause)

2 MR. BABIAK: We expected to close 96

3 cases in the first quarter. We actually closed 89,

4 and 89 is 92 percent of the 96. And so we are behind,

5 and we will be taking actions to get caught up.

6 Any other questions?

7 (No response)

8 MR. BABIAK: Okay. Let's look at the

9 employment side. Give me just a moment. Okay. In

10 the first quarter we expected to close 224 cases. We

11 actually closed 176. So, we closed only 80 percent of

12 what we expected to close.

13 In terms of the whole year, with a

14 quarter of year gone, we've completed only 20 percent

15 of the cases we expected to close. That means we are

16 behind, and the changes we've implemented in our

17 employment processes are done with the intent of

18 getting caught up.

19 CHAIRMAN ANDERSON: You've passed --

20 you've had employees work Saturdays. Is that

21 something you're going to plan for this year?

22 MR. BABIAK: We implemented overtime on

23 the employment side starting last week. The nominal

24 schedule right now is 45 hours a week. The housing

25 staff have been in overtime since, I believe,


48

1 approximately March of last year.

2 CHAIRMAN ANDERSON: And budget-wise

3 we've got the money to cover this --

4 (Simultaneous discussion)

5 MR. STEGLICH: Yes, sir.

6 CHAIRMAN ANDERSON: Okay.

7 MR. BABIAK: Okay. Moving to the next

8 slide. Budget Year 2013 total revenue versus

9 expenditure. Again, this encompasses the entire Civil

10 Rights Program, both CRD and the administrative

11 support functions from the Texas Workforce Commission.

12 I'll come out and say it; this

13 presentation, I think, is better than what existed

14 when I arrived. And it's not as good as what we hope

15 to present to you in April. I think we're trying to

16 present too many different dimensions in one slide.

17 Slides are virtually free. So, we'll try to break

18 down this information into more slides in the future.

19 The original budget for revenue was

20 2,813,611.

21 (Brief pause)

22 MR. BABIAK: At this point our actual

23 revenue -- and you don't have this on your slide. The

24 actual revenue amount for the first quarter is

25 653,352. We used that actual amount to project out on


49

1 a straight-line basis and arrive at our projection of

2 2,613,411, which is on your slide. And that

3 represents 23 percent of the budgeted revenue that we

4 actually earned in the first quarter.

5 Our total expenditure is in the next

6 column, and that's an actual amount, the 649,000. The

7 number below -- directly below that is the projection.

8 It's simply four times the actual, the 2,598,000, and

9 right now we project to expend 99.4 percent of our

10 revenue. Hopefully, by catching up, we will result in

11 a little more of a favorable variance between our

12 expected revenue and expenditures. But at this point

13 we are on course to our meet our budget.

14 Any questions on that slide? And --

15 and, more importantly, if you can, tell us what you

16 would prefer to see that we're not showing you in this

17 first overall big picture. What information would you

18 like us to report to you? How would you like it

19 presented?

20 (No response)

21 MR. BABIAK: And if all you can say

22 right now is, "We don't know. Just make it better."

23 Then, that's certainly reasonable, and we will go make

24 it better and -- and bring back something and -- and

25 hope to make it better.


50

1 COMMISSIONER DIGGS: As you and I

2 discussed earlier this week, I'll follow up with you

3 afterwards on some suggestions.

4 MR. BABIAK: Thank you.

5 Let's move to our next slide. Again,

6 just as -- a quick review. Moving from the total we

7 will now break out our operations into two major

8 sections, our operations that we do not support with

9 general -- general revenue, which is our housing

10 cases, and then the operations that we do support with

11 general revenue. Our original budgeted revenue for

12 our housing cases was 1.2 million. So far we have

13 actually earned $284,007, and the projection of the

14 1,136,000 is simply four times that amount. And that

15 284,000 represents that we have earned 23 percent of

16 our budgeted revenue upon completion of the first

17 quarter.

18 In the first quarter we expended 348,000

19 on our housing cases. The number directly below that,

20 again, is a straight-line projection of that actual

21 expenditure, and it represents expending 28 -- or

22 almost 29 percent of the budgeted amount and would

23 represent spending 123 percent of what we project in

24 revenue. The plan right now is to get caught up in

25 the housing cases so that the revenue exceeds the


51

1 expenditures by the end of the year.

2 Any questions before we move onto the

3 activities supported by general revenue?

4 (No response)

5 MR. BABIAK: Okay. First, is the slide

6 that represents all of our activities supported by

7 general revenue. We will break this out further in

8 the following slides, but first is that our original

9 budget was approximately $1.6 million. To date, or at

10 last through the end of the first quarter, November

11 30, we actually spent 300 and -- I'm sorry, we

12 actually earned $369,346. That represents about 24

13 percent of the budgeted revenue, and we project that

14 out to a year-end number of about $1,477,000.

15 Expenditures through November 30,

16 $301,000, a straight-line projection through the end

17 of the year. Based on that amount is the 1.2 million.

18 We have expended about 19 percent of the budgeted

19 revenue, and our projection is to come in under budget

20 on the activities supported by general revenue.

21 Certainly by going into overtime, we will be spending

22 to produce that revenue.

23 Any questions before the next slide?

24 CHAIRMAN ANDERSON: Obviously --

25 obvious -- obviously, the -- the -- the overtime is --


52

1 is generating sufficient revenue to -- to account for

2 the -- the overtime. I mean, we're -- we're getting

3 additional cases processed and additional billing to

4 EEOC or --

5 MR. BABIAK: On -- on the housing side,

6 we applied for and received a grant from HUD in the

7 amount of approximately $113,000 to pay for the

8 overtime on the housing side. We have had a vacancy

9 in intake on the employment side that we're attempting

10 to fill. And by what we refer to here at the TWC as

11 salary lapse, we have the funds to pay for the

12 overtime on the employment side.

13 Okay. Next, is the employment cases.

14 We had budgeted $583,900 of revenue. So far, we've

15 actually earned $114,775. That's 20 percent of our

16 budget and corresponds to the 20 percent of the case

17 closures that we actually achieved in the first

18 quarter.

19 Our actually -- actual expenditures on

20 employment cases is approximately $192,000. That

21 projects out on a straight-line basis to $768,000 by

22 the end of the year, which would represent expending

23 167 percent of the budgeted amount of revenue.

24 However, please keep in mind that this slide presents

25 only the reimbursement from EEOC.


53

1 We always expect to spend more closing

2 the employment cases than the reimbursement amount.

3 The expectation to expend 167 percent of the

4 reimbursement amount is not out of the ordinary.

5 That's well within what we normally expect to see.

6 And, finally, the next slide represents

7 our training and monitoring. We budgeted revenue of

8 about $106,000. So -- and through the first quarter,

9 we have actually earned about $26,500, projects out to

10 the budgeted amount. We have expended about $8,000.

11 We have had the staff -- one of the -- the reviewer

12 has been working on housing cases, and as a result has

13 not been charging time to the monitoring while I've

14 been reviewing the monitoring processes.

15 We've pretty much got that complete, and

16 we'll have that individual back full-time in

17 monitoring and expect the expenditures to get caught

18 up. As you can see, through the end of the first

19 quarter, the expenditures were only $8,000, projects

20 out the $32,000. Again, as I -- as I just stated, we

21 expect that to increase throughout the -- the

22 remainder of the year.

23 And then, finally, the -- the remainder

24 of the general revenue, this simply represents or

25 presents the general revenue on its own without


54

1 referring to the specific activities. I will tell you

2 that, despite how many times Daryl has explained this

3 to me and how many times I've come to an understanding

4 of it, I don't understand it right now. And so, if I

5 can get it to a point where I understand it, hopefully

6 I can also explain it to you. And I'll -- I'll just

7 stop and let -- let Daryl rescue me here.

8 MR. STEGLICH: From a practical

9 standpoint, we're appropriated a certain amount of

10 general revenue in any given year. There -- the

11 purpose of that, again, is just -- is to provide

12 additional funding for EEO cases, training and things

13 of that sort, that are not -- we don't do -- get full

14 cost recovery on. And the dollars that are here, even

15 though it shows that we're below expenditure levels,

16 we'll use some of those dollars that will offset the

17 EEO expenditures so that -- that percentage at the end

18 of the year will be closer to 100 percent of the -- of

19 the reimbursements that we receive.

20 So -- and that's the purpose of that.

21 It is a supplemental amount to provide funding for

22 which activities are not otherwise reimbursed to

23 the -- to the Commission. Does that make a little

24 sense?

25 MR. BABIAK: And, again, let me follow


55

1 up and renew my request. And really, Commissioners,

2 let me say this. At -- at -- at any time, please

3 contact me. Let me know, "This is what I want to see.

4 This is the information. This is how I want to see it

5 presented. This is how I understand. Present it to

6 me the way I understand things."

7 You know, you can communicate with me at

8 any time, not just during these quarterly meetings.

9 Any other questions on Agenda Item No. 4, our budget?

10 CHAIRMAN ANDERSON: So, the April

11 meeting will get us on track or close to track as far

12 as finances? I mean, based on the fact that you're

13 running overtime and you're going to be closing

14 additional cases, since we're on piecework type of

15 funding anyway.

16 MR. BABIAK: Well, at the -- at the

17 April meeting we'll be reporting to you on what we

18 have closed through the end of February. I don't know

19 if we will see substantial results by then.

20 Certainly, what we -- what we report to you in April

21 will be second quarter. That includes December 1

22 through February 28.

23 Of course, we will have -- we may or may

24 not have the March tentative results to report to you

25 in April. Typically, staff in Budget is able to get


56

1 our month closed out and report it back to us normally

2 by about the -- the middle of the month. So, we may

3 or may not know March results by the time we come back

4 in April.

5 CHAIRMAN ANDERSON: Okay. Any other

6 questions or comments for Daryl and Jonathan

7 concerning the finances?

8 (No response)

9 MR. BABIAK: Thank you, Daryl.

10 I guess that --

11 CHAIRMAN ANDERSON: They did have a

12 surplus this past fiscal year.

13 MR. BABIAK: There -- there was an

14 action item from the -- from the last meeting on

15 carryforward. If --

16 CHAIRMAN ANDERSON: Yes.

17 MR. BABIAK: -- if you'd like I can

18 address that now.

19 When we have carryforward, Daryl has

20 explained to me, number one, that although the fiscal

21 year ends on August 31, when we come to work on

22 September 1st, we don't have the fiscal year closed

23 out. Right now we don't have Fiscal Year 2012 closed

24 out, and that's not extraordinary. When we do have a

25 carryforward, that is the first thing that we expend


57

1 at the beginning of the following fiscal year.

2 CHAIRMAN ANDERSON: Okay.

3 MR. BABIAK: And I've -- I've asked

4 Daryl to see if he can pull up what our carryforward

5 was both a year ago and two years ago simply to know

6 what was that amount. Like I -- I mentioned a moment

7 ago, I don't think that we do have '12 finally closed

8 out to be able to report what the 2012 carryforward

9 would be.

10 CHAIRMAN ANDERSON: And do we categorize

11 it by general revenue or the specific -- you know, HUD

12 or EEOC?

13 MR. STEGLICH: It would be federal funds

14 only. There -- the general revenue funding is

15 specific to a -- a singular year. And as a -- as a

16 general rule, there are sufficient -- sufficient

17 expenditures that are allowable under the rules for

18 the general revenue to expend those funds from a --

19 from a programmatic standpoint.

20 CHAIRMAN ANDERSON: Yeah, you almost

21 have to spend it in employment almost -- most of it in

22 employment and the training and monitoring --

23 MR. STEGLICH: Employment and training

24 and monitoring, yes, sir.

25 CHAIRMAN ANDERSON: Okay. If there are


58

1 no further questions, we'll go to Item No. 5,

2 Jonathan.

3 AGENDA ITEM NO. 5

4 MR. BABIAK: Discussion, Consideration,

5 and Possible Action Regarding the Quarterly Report

6 Concerning the Texas Workforce Commission Civil Rights

7 Division Employment Enforcement and Training and

8 Monitoring Activities for the First Quarter of Fiscal

9 Year 2013.

10 (Brief pause)

11 MR. BABIAK: As you can see in your

12 packets, case closures in September, October,

13 November -- I hope they correspond to what we've

14 already presented to you. Yes, 62, 52, and 62

15 respectively.

16 CHAIRMAN ANDERSON: What number are you

17 looking at?

18 MR. BABIAK: Well, if we look at the

19 first report status on employment cases current month

20 September 2012, it's on Line 19 that you see the

21 number of cases closed. Also, you can see from Line 1

22 to Line 20 the -- for the month of September the

23 inventory has dropped. If we move forward to October,

24 we closed 52 cases and inventories rose. And then

25 moving to November --


59

1 CHAIRMAN ANDERSON: This is on the

2 Employment Tab. Right?

3 MR. BABIAK: Yes, sir.

4 CHAIRMAN ANDERSON: Okay. Under the

5 Employment Tab.

6 MR. BABIAK: And then moving to

7 November, closed 62 cases and inventories fell. And,

8 hopefully, with the changes we're in the process of

9 implementing, of course, the first step is to get the

10 inventories up. And then the second step is to get

11 those cases closed.

12 CHAIRMAN ANDERSON: The EEOC is sending

13 you all the cases that you want or need?

14 MR. BABIAK: Normally, we will

15 investigate the cases on which we do the intake.

16 CHAIRMAN ANDERSON: Yeah, but -- but a

17 basic question: Are the EEOC sending you any cases

18 or --

19 MR. BABIAK: No.

20 CHAIRMAN ANDERSON: Okay.

21 MR. BABIAK: We've given you a couple of

22 employment scenarios. I don't have any other prepared

23 remarks. Did you have any questions for me on this

24 item?

25 (Brief pause)


60

1 CHAIRMAN ANDERSON: Seeing none.

2 AGENDA ITEM NO. 6

3 MR. BABIAK: Okay. That brings us to

4 No. 6: Discussion, Consideration, and Possible Action

5 Regarding the Quarterly Report Concerning the Texas

6 Workforce Commission Civil Rights Division Housing

7 Enforcement Alternative Dispute Resolution and

8 Outreach Activities for the First Quarter of Fiscal

9 Year 2013. And for this item, I think Vickie

10 Covington will be coming to the podium.

11 MS. COVINGTON: Good morning, Chair,

12 Commissioners, TWC staff, and guests. For the record,

13 my name is Vickie Covington. I'm the Manager of ADR

14 Housing Enforcement -- ADR and Housing Enforcement.

15 Our employment investigators and

16 mediators recovered more than $270,000 in relief for

17 complainants. In addition, people have also received

18 nonmonetary relief, such as change in their discharge

19 status from termination or -- from discharge to

20 resignation. During the -- the first quarter of the

21 fiscal year there were also several approvals of a

22 request for a reasonable accomodation and public

23 interest -- interest relief in the form of training

24 for respondents. Nearly three out of four mediation

25 conferences held resulted in successful resolutions,


61

1 and we've shared two ADR scenarios with you in your

2 booklets. And they can be found behind the ADR Tabs.

3 Are there any questions?

4 CHAIRMAN ANDERSON: I think one of the

5 questions or the discussion was -- one of the action

6 items was contingency plans. You've only got two

7 mediators, and one of them quit or -- was out for an

8 extended period of time. How would you handle

9 mediations going forward?

10 MR. BABIAK: We -- we do have the -- the

11 staff member who performs the policy reviews, has

12 received federal government training on mediation.

13 With the retirement of the supervisor in ADR, I've

14 been working with Vickie on benchmarking the existing

15 mediation processes and looking for any opportunities

16 we can find to improve those processes. Part of that

17 plan is to have the policy reviewer sit in with the

18 mediators and observe those processes and be prepared

19 to step in if a need for more mediation arises.

20 CHAIRMAN ANDERSON: Do you see a need

21 for an additional mediator, or do you have sufficient

22 caseload for mediation? Or what's the status there?

23 MR. BABIAK: Right now our -- our

24 biggest challenge on the employment side is that we

25 don't have sufficient intake. We don't have


62

1 sufficient inventory, and right now the -- the

2 mediators have excess capacity. Both the -- the

3 mediators and the investigators, all of them are

4 asking for more cases.

5 MS. COVINGTON: I did want to make one

6 correction. In the category of NFS the number 6

7 should actually be 35. So, if you would make that

8 pen-and-ink change.

9 COMMISSIONER GLOVER: Should actually be

10 what?

11 MS. COVINGTON: 35.

12 As far as our housing case inventory,

13 over the past few years we've experienced significant

14 increases in complaints received at intake. We're now

15 seeing a decrease in the number of cases we're

16 receiving at intake, and we received information from

17 HUD that -- and this is due in part in their change in

18 their intake procedures. HUD is now requiring

19 complaints to be signed before they are considered

20 filed, and we anticipate that there would be a period

21 where intakes would continue to be down as HUD

22 implements the new procedures, assess the new

23 procedures impact on its customers, and make any

24 necessary adjustments.

25 Are there any questions?


63

1 COMMISSIONER DIGGS: One quick question.

2 Based on that new policy, is HUD seeing a reduction as

3 well in the number of cases that they considered

4 filed?

5 MS. COVINGTON: I spoke with someone at

6 HUD on -- yesterday, and they did indicate that they

7 have seen a drop since they've implemented the new

8 procedures, at least in Region 6. And so we've not

9 received anything in writing regarding the new

10 procedures, and so yesterday we made a request that

11 they send us something in writing regarding the new

12 procedures.

13 Are there any other questions?

14 (No response)

15 MS. COVINGTON: The majority of our

16 cases still result in favorable resolutions to

17 complainants. Withdrawal with settlement and

18 conciliations are considered to be favorable

19 resolutions. Complainants received more than 17,000

20 in monetary relief. They also received nonmonetary

21 relief and public interest relief. Two case scenarios

22 are shared with you in your booklets behind the

23 Housing Tab.

24 Are there any questions?

25 (No response)


64

1 MS. COVINGTON: As you can see, our aged

2 cases have increased significantly, and we've

3 developed an aggressive plan to reverse this trend.

4 Our goal is to reduce the pending inventory over --

5 the inventory as you see it reflected now that's over

6 a hundred days down to 35 percent, and we're working

7 to do this by the end of the third quarter or sooner.

8 We would prefer sooner but no later than the third

9 quarter.

10 I would like to let you know that if we

11 continue to see the trend downward in intakes, that

12 will affect our plan because we'll be getting fewer

13 cases in, and we're focusing now strictly on the older

14 cases. And so the new -- the newer cases, if we're

15 not getting very many in, they would have a tendency

16 to age as well. And so, our -- our challenge is to

17 close the cases that are under a hundred days, as well

18 as the cases that have aged and to try to keep that

19 balance.

20 Are there any questions?

21 CHAIRMAN ANDERSON: Are you at the point

22 that the overtime is almost a fact of life in the CRD

23 based on our caseload and staffing levels?

24 MR. BABIAK: Commissioner -- Chair

25 Anderson, the -- the grant was for the purpose of


65

1 closing the aged cases. So, the -- the plan is for

2 the overtime to address the aged cases. And when the

3 aged cases are gone, the grant will be spent, and the

4 overtime will end. And that's our plan.

5 CHAIRMAN ANDERSON: It -- it just seems

6 like from, you know, previous meetings and previous

7 discussions that if we don't do the overtime, our

8 case -- aged cases go up. And when we do do the

9 overtime, they drop back down to, you know, a normal

10 or acceptable range.

11 MR. BABIAK: I think that we're

12 increasing the amount of guidance and direction we're

13 giving to the investigators in setting priorities on

14 specific cases and, in particular, the aged cases.

15 CHAIRMAN ANDERSON: Okay.

16 COMMISSIONER DIGGS: Can I ask for one

17 bit of clarification? You said with reduced intake

18 that the newer cases and an emphasis on reducing the

19 age of the cases that some of the newer cases may

20 become -- may have longer times associated with them.

21 The logic didn't work in my head. So, can you just

22 reexplain that?

23 MS. COVINGTON: The percentage of aged

24 cases right now is at 65 percent, and on average our

25 investigators are closing between three to five cases


66

1 per month in each individual inventory. The

2 individual inventories right now is somewhere between

3 50 percent aged inventory and up. And so if we're not

4 getting newer cases in and we're only focusing on

5 the -- on the older cases, then the newer cases will

6 tend to age as well, simply because of the sheer

7 numbers in the inventory.

8 But it's good news/bad news that we're

9 getting fewer cases in. Because we're getting fewer

10 cases in, I believe we will be more successful at

11 reducing the inventory down. And then, once the

12 receipts pick up, we should be able to maintain that.

13 COMMISSIONER DIGGS: Okay.

14 CHAIRMAN ANDERSON: Are we seeing any

15 trends in the cases? I mean, the -- the -- building

16 and construction, as opposed to familial situations

17 or -- or --

18 MS. COVINGTON: I would say the most

19 challenging cases are the -- the cases that are filed

20 based on disability and the issues, reasonable

21 accomodation, reasonable modification. We do have

22 several design and construction cases in our

23 inventory, and those are -- are challenging as well,

24 as well as mortgage lending.

25 CHAIRMAN ANDERSON: Which is -- which is


67

1 my point I was trying to make is that the -- the

2 trends or the types of cases, which some of them are

3 more -- would be more complex would take longer to

4 investigate and to come to a resolution, as opposed to

5 a familial case, which is much -- I would believe much

6 less complex and could be resolved much quicker. So,

7 if you're having more building construction, mortgage

8 lending, that type of thing, then that's going to tend

9 to go towards the aging -- more aging than -- than the

10 other cases.

11 MS. COVINGTON: What I can prepare for

12 the next meeting is to look at the cases and see the

13 trends by age of the case and have that information at

14 the next Commission Meeting.

15 CHAIRMAN ANDERSON: Great.

16 So, that would be an action item, Becky.

17 Any other questions or comments for --

18 for Ms. Covington?

19 MS. COVINGTON: I -- I did have one

20 other item on a housing update and housing outreach.

21 We continue to send staff to the National Fair Housing

22 Training Academy, also known as NFHTA. I would like

23 to tell you that during the first quarter two staff

24 completed Week 1, three staff completed Week 2, and

25 three staff completed Week 5. We now have four staff


68

1 who have completed the prescribed five-week Fair

2 Housing Assistance Program Investigator Course, and

3 I'm one of them.

4 Thank you very much.

5 CHAIRMAN ANDERSON: How many

6 investigators do we have?

7 MS. COVINGTON: How many investigators?

8 We have 12 fair housing investigators.

9 Are there anymore questions?

10 (No response)

11 MS. COVINGTON: Thank you.

12 CHAIRMAN ANDERSON: Okay.

13 COMMISSIONER DIGGS: Can I go back and

14 ask one quick question about housing -- not housing,

15 I'm sorry, about employment? You made the comment

16 that we're not receiving new referrals from EEOC.

17 Can -- can you explain that just a bit more for me?

18 MR. BABIAK: The -- the process, as I

19 understand it, is that we investigate the cases that

20 are filed with us, and EEOC investigates the cases

21 that are filed with EEOC.

22 COMMISSIONER DIGGS: I thought we -- we

23 used to receive referrals from them. Is that new

24 or -- or different?

25 MR. BABIAK: Okay. Well, I see Becky


69

1 nodding, "yes," which means we did, and -- and I'm --

2 I'm not prepared to -- to address that question. But

3 I can -- I can find out and -- and see what we used to

4 do and what's available now.

5 COMMISSIONER DIGGS: Okay.

6 (Brief pause)

7 CHAIRMAN ANDERSON: I would agree. I

8 mean, I -- I don't -- the other Commissioners, but it

9 was -- it was -- I don't know what the percentage was,

10 but we received a percentage of -- of our caseload

11 every month was from EEOC referrals, cases that --

12 that for one reason or another they either couldn't

13 handle or didn't want to handle or maybe it's from

14 another state or something.

15 MR. BABIAK: Okay. Any other questions

16 before we move on?

17 (No response)

18 AGENDA ITEM NO. 7

19 MR. BABIAK: Okay. That brings us to

20 Item No. 7: Discussion, Consideration, and Possible

21 Action Regarding the Annual Report Pursuant to Texas

22 Labor Code Sections 21.504 and 301.156. Becky will

23 distribute the -- the draft to you, and I hope she

24 brought a copy for me.

25 Commissioners, while Becky is handing


70

1 that out, this report includes both data on cases

2 worked by the Civil Rights Division and data

3 statewide, which would include cases worked by the

4 EEOC and the local commissions in Fort Worth, Austin,

5 and Corpus Christi. The EEOC has attempted and as yet

6 not been able to provide us with all of the data that

7 we need to complete the report.

8 Now, I've been advised by General

9 Counsel that you can approve the report as it's

10 drafted, and when we receive the data, we insert the

11 data and -- and finish the report. Some of the

12 text -- in fact, if you look at the draft at the

13 bottom of Page 3 and at the top of Page 4, we normally

14 describe the data in terms of the -- each of the basis

15 and the issue that represented the largest percentage

16 of the cases and then the remaining bases and issues

17 in -- in rank order. Without having the data, we

18 can't tell you right now which basis represented the

19 largest percentage.

20 As I mentioned, you can approve this

21 report. We can drop in the data when we receive it.

22 You can also tell us that you want to see all of the

23 data before you issue the report, and that would

24 require that we delay this until the April meeting or,

25 in the alternative, schedule a meeting off the regular


71

1 schedule for you to come in and consider the report.

2 CHAIRMAN ANDERSON: General Counsel.

3 MS. DUNIGAN: Good morning, Corra

4 Dunigan for the record.

5 Jonathan brought this to my attention on

6 Monday. And after having consulted with -- with other

7 staff in my office, we believe that -- that as -- as

8 Jonathan stated, you can approve it now. It's -- I --

9 I suppose we could defer it to your preference. I --

10 I believe waiting until April that that is a bit late

11 if we set it for the next Commission Meeting waiting

12 on -- on the data from the EEOC, assuming we get the

13 data from the EEOC by then.

14 As -- as Jonathan also stated, we

15 could -- we could set a special session. But with --

16 with your calendars, I imagine that would probably be

17 very difficult. So, that said, there is -- I -- I

18 couldn't find anything that would suggest that it

19 couldn't be approved today, even though you don't

20 have -- we don't have the data and the exact numbers.

21 So, if -- if any of you had a problem with that, we

22 could -- we could go to the other alternatives or --

23 of a special session, a meeting, or delaying it until

24 April. But, ideally, it would be -- it -- it can be

25 and would be approved today with the caveat that we're


72

1 still waiting on the data.

2 COMMISSIONER DIGGS: Does it have to be

3 done within a -- a full meeting, or can it be mailed?

4 MS. DUNIGAN: Can -- oh, the approval?

5 I believe it would have to be done during an open

6 meeting. I -- I would have to double-check on that.

7 But, again, that would delay -- but -- but I think it

8 has to be done like -- like anything else, during an

9 open meeting.

10 MR. BABIAK: And -- and, Corra, I've --

11 I've asked --

12 MS. DUNIGAN: Oh, okay.

13 MR. BABIAK: -- that question in the

14 past. And the answer I've gotten in the past is that

15 it would have to be in a meeting.

16 COMMISSIONER DIGGS: Thank you.

17 CHAIRMAN ANDERSON: I don't think

18 there's any -- I'm looking both directions. I don't

19 believe there's any -- any interest in a special

20 session or a special meeting just to come in and

21 approve this.

22 Is there -- I'll entertain a motion, if

23 somebody wants to recommend approval or postponement

24 for the approval of the Commission on Human Rights

25 Annual Report for Fiscal Year 2012.


73

1 COMMISSIONER OSTERHOUT: I make a motion

2 we approve the -- the annual report.

3 When -- when does this have to be to the

4 Governor's Office?

5 MR. BABIAK: I believe that the

6 statutory deadline has always been December 31. We

7 are already past the deadline.

8 COMMISSIONER OSTERHOUT: Okay.

9 Okay. I make a motion we go ahead and

10 accept the Annual Report and pass it onto the

11 Governor's Office.

12 CHAIRMAN ANDERSON: With the data

13 included once we receive it from the EEOC.

14 COMMISSIONER OSTERHOUT: Right.

15 CHAIRMAN ANDERSON: Is that acceptable?

16 COMMISSIONER GLOVER: Second.

17 CHAIRMAN ANDERSON: It's moved and

18 seconded.

19 All in favor, say, "aye."

20 (Those in favor of the motion so

21 responded)

22 CHAIRMAN ANDERSON: Or indicate -- so

23 indicate affirmative -- affirmatively.

24 (Commissioners indicating)

25 CHAIRMAN ANDERSON: Yes?


74

1 COMMISSIONER STIDVENT: Aye.

2 CHAIRMAN ANDERSON: Michelle?

3 COMMISSIONER DIGGS: Aye.

4 CHAIRMAN ANDERSON: Reluctantly. It's

5 unanimous, reluctantly, but unanimously. So --

6 MR. BABIAK: We will finalize the report

7 and issue it.

8 CHAIRMAN ANDERSON: And notify us by

9 electronic means of when the data is received so --

10 and then once -- and then the report is submitted.

11 COMMISSIONER MICHALKA: Do y'all have

12 our signatures on file?

13 MS. SMITH: (Nodding)

14 COMMISSIONER MICHALKA: Okay.

15 CHAIRMAN ANDERSON: Can we sign the --

16 can we sign the cover page now?

17 MR. BABIAK: We will -- we'll use your

18 electronic signatures.

19 CHAIRMAN ANDERSON: Okay.

20 COMMISSIONER DIGGS: And can you notify

21 us prior to sending it so we get a chance to review it

22 and acknowledge that we've reviewed it before it gets

23 sent out?

24 MR. BABIAK: Absolutely.

25 COMMISSIONER DIGGS: Thank you.


75

1 AGENDA ITEM NO. 8

2 CHAIRMAN ANDERSON: Okay. Onto No. 8,

3 please.

4 MR. BABIAK: Discussion, Consideration,

5 and Possible Action Regarding the Commission on Human

6 Rights Duties, Roles, and Responsibilities Concerning

7 Agenda Development Procedures.

8 CHAIRMAN ANDERSON: And that's me, and I

9 don't have anything to add to that at the present

10 time.

11 Do any of the Commissioners have any

12 suggestions for the agenda and how we -- how we

13 conduct the meetings or how the meetings are

14 processed?

15 (No response)

16 AGENDA ITEM NO. 9

17 CHAIRMAN ANDERSON: Okay. No. 9.

18 MR. BABIAK: Discussion, Consideration,

19 and Possible Action Regarding Future Meetings of the

20 Commission on Human Rights. Chair Anderson.

21 CHAIRMAN ANDERSON: We -- right now we

22 have scheduled April 17th, July 17th, and October

23 16th. Does anybody wish to make changes to those

24 dates?

25 COMMISSIONER DIGGS: I actually have a


76

1 suggestion that we move the meeting so that we can

2 have the latest numbers.

3 So, based on your statement, if we moved

4 it back a week or so, we would have the information

5 all the way up through March potentially versus only

6 reporting December through February. And because

7 we're behind, it might be prudent for us to look at

8 adjusting that date.

9 MR. BABIAK: I can -- I can -- well,

10 I -- I don't know what other priorities our partners

11 in Budget have.

12 COMMISSIONER DIGGS: Uh-huh?

13 MR. BABIAK: And -- yeah, I -- I --

14 well, I can certainly request that they make it a

15 priority, at least in the months that this Commission

16 meets, to get those numbers to us so that they are

17 available. And, in addition, if you decide to move

18 the meeting later, then there's a greater chance that

19 we'll have that information for you.

20 CHAIRMAN ANDERSON: If Commissioner

21 Diggs is okay with it, let's keep the April 17th

22 meeting, and we'll hold on July 17th and the 16th

23 until we find out if you can provide the -- the

24 numbers and will it be in the -- in our book? Will

25 you have time to put the numbers in the book, or are


77

1 we going to get it at the meeting itself?

2 MR. BABIAK: Well, let me discuss it

3 with Daryl and -- and the staff in Budget, explain the

4 request, and see if four times a year if our work

5 can't be moved earlier in -- in their overall

6 processes and find out what we can do. I think one of

7 the challenges that we have is that for the employment

8 and housing cases, we have a -- a number of days at

9 the beginning of the each month to submit the cases

10 that are considered closed in the previous month. And

11 so first we have to do our work of getting the cases

12 closed in the system before we provide that data to

13 the folks in Budget that they use to prepare our

14 financials.

15 Certainly, we can simply implement an

16 internal procedure that we cut off on the 1st and

17 submit our information to the folks in Budget. There

18 may be a -- a one-time reported loss in production by

19 moving your cut-off date earlier. Certainly, that

20 would be reflected in the next period where the

21 following period you would pick up the cases that

22 would have normally been reported, you know, say

23 through the 4th or 5th day of the month. So, that's

24 certainly one option for us.

25 CHAIRMAN ANDERSON: Well, Commissioner


78

1 Diggs has -- has a recommendation. So, what's -- what

2 do the rest of the Commissioners -- what's your --

3 your feeling? Certainly, getting all the -- I mean,

4 we come four times a year. Certainly, getting the

5 financial -- accurate up-to-date financial is -- is

6 one of our primary responsibilities.

7 COMMISSIONER GLOVER: I agree. I

8 absolutely agree.

9 CHAIRMAN ANDERSON: So, want to move it?

10 It would be on the 24th, April 24th, if we did move it

11 for April. Does anybody have a scheduling issue, or

12 are you going to have to go back and -- to your office

13 and check to see if those are going to be --

14 COMMISSIONER STIDVENT: I have to check

15 back.

16 COMMISSIONER MICHALKA: I have to check.

17 COMMISSIONER STIDVENT: Yeah, but I

18 agree. I think we should try and make the most of the

19 meetings so that we have the accurate data. But I'll

20 check on that date.

21 CHAIRMAN ANDERSON: So, let's go ahead

22 with what we -- what we said, if Commissioner Diggs

23 agrees, and we'll do it on the 17th of April. And

24 then we'll decide on what we want to do. But based on

25 the fact that we've got some numbers that are not as


79

1 positive as -- as you would like them and we would

2 like them, we -- we do want to make sure that -- that

3 we have a chance to review it. So, if there's any

4 suggestions or recommendations that we make them to

5 you in a timely manner.

6 And you're going to work with Budget to

7 see if you can't get up-to-date information for the

8 meeting on the 17th. If that works out, then that

9 will be the process going forward. If it doesn't,

10 then we're going to need to look at changing the date

11 of the last two meetings for this year.

12 Are all the Commissioners in agreement

13 with that long-winded discussion?

14 THE COMMISSIONERS: (Nodding)

15 COMMISSIONER DIGGS: Yeah.

16 CHAIRMAN ANDERSON: Okay.

17 COMMISSIONER MICHALKA: So, we're

18 keeping April the 17th --

19 CHAIRMAN ANDERSON: April 17th will

20 stay. July 17th and October 16th may be changed.

21 So, that will probably be an action

22 item, too, Becky.

23 CHAIRMAN ANDERSON: No. 9. Oh, we've

24 already talked about the future meetings.

25


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1 AGENDA ITEM NO. 10

2 CHAIRMAN ANDERSON: No. 10.

3 MR. BABIAK: No. 10: Training on Recent

4 Developments in EEOC's Interpretation of

5 Discrimination Because of Sex Under Title VII. I'll

6 be presenting this item, and I'll ask Becky to help me

7 with some handouts for you.

8 (Brief pause)

9 MR. BABIAK: First, let me say that I

10 will attempt to refrain from expressing any opinion

11 during this presentation. However, any opinion that I

12 express is entirely my own and does not represent the

13 policy interpretation of the Texas Workforce

14 Commission Civil Rights Division, the Texas Commission

15 on Human Rights, the Texas Workforce Commission, or

16 the State of Texas. In addition, anything presented

17 in this training is not to be construed as legal

18 advice.

19 The --

20 CHAIRMAN ANDERSON: -- advice of

21 Counsel? Was -- was that disclaimer on the advice of

22 Counsel? (Laughter)

23 MR. BABIAK: Yes, sir. This is intended

24 only as information about recent developments in the

25 law and is not to be considered as any specific legal


81

1 advice for any individual.

2 The subject of discrimination because of

3 sex, which by the courts has been extended to mean

4 discrimination because of sex or gender, has in the

5 past been and I expect will continue to be one that

6 evokes strong emotions from many individuals. In

7 April of 2012 the commission of the -- the commission

8 members of the Equal Employment Opportunity Commission

9 decided the case of Mia Macy versus Eric Holder, and

10 I've given you a copy of the opinion in that case.

11 A brief overview of the facts of the

12 case. Mia Macy was an applicant for employment with

13 the Department of Justice Bureau of Alcohol, Tobacco,

14 Firearms, and Explosives. During the application

15 process, she proceeded to the point of a background

16 check. At which time she contacted the employer to

17 notify them that she was in the process of

18 transitioning from being a man to being a woman.

19 The application process ceased at that

20 time. I believe she was told that the -- the vacancy

21 had been canceled. In fact, another individual was

22 selected for the position, and Ms. Macy filed a

23 federal sector discrimination complaint. I believe

24 that the process in the federal government is that

25 those complaints are processed by the agency and can


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1 be appealed to the commission members of the EEOC.

2 The agency dismissed a portion of the

3 complaint because they interpreted the complaint as

4 being filed -- and I think you'll find this on Page 5

5 at the bottom -- alternatively described by the

6 complainant as sex stereotyping, gender

7 transition/change of sex, and gender identity. The

8 EEOC reversed the decision of the agency and reasoned

9 that the case falls within the scope of the 1989

10 United States Supreme Court decision Price Water --

11 Price Waterhouse versus Hopkins, which established the

12 principle that stereotypes because of sex or gender

13 constitute discrimination because of sex or gender and

14 that -- well, let me stop and first explain the

15 principle -- principle of stereotype because of sex or

16 gender.

17 I will say, in my opinion, the Price

18 Waterhouse versus Hopkins opinion is -- is difficult

19 to read. We gave this to staff to read and sat them

20 down, and without warning them we were going to ask

21 this question, asked the question, "Well, who won?"

22 And I encourage you to -- to read the opinion and --

23 and think about that question as you read it.

24 The decision -- the -- the opinion was

25 a -- a split decision. Four justices joined, I think


83

1 it was Justice Brennan, in writing the opinion. Two

2 justices filed concurring opinions, and three justices

3 dissented.

4 The ultimate question that the Supreme

5 Court faced was the question of whether the Court of

6 Appeals committed error in affirming a ruling by the

7 Trial Court that Price Waterhouse had to present clear

8 and convincing evidence that sex or gender was not a

9 motivating factor in the decision not to offer

10 partnership to Ms. Hopkins, and the Supreme Court

11 ruled that the clear and convincing standard of

12 evidence was too high a standard and remanded the case

13 so that the preponderance standard could be used.

14 When you look up this case on Westlaw, Westlaw reports

15 out this case as being superceded by statute, that

16 statute being the 1991 Civil Rights Act. The portion

17 of the decision that establishes the proposition that

18 stereotyping because of sex or gender is

19 discrimination because of sex or gender prohibited by

20 Title VII is not within the scope of what was

21 overruled by statute. So, that part of the decision

22 is still good law.

23 And although -- for your convenience,

24 I've given you all 53 pages of the opinion. Most of

25 the discussion on sex stereotyping begins on Page 24,


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1 and I wanted to find -- give me just a moment.

2 (Brief pause)

3 MR. BABIAK: Well, I have to paraphrase

4 from memory, but I believe that the opinion states

5 that Ms. Hopkins would be denied partnership if she

6 acted like a woman and she would be denied partnership

7 if she acted like a man. And it is because she was

8 working in an industry where, to become partner, you

9 are expected to behave in a manner that was tough.

10 And she was denied partnership because -- and the --

11 the famous quote from the case that you'll see, both

12 in this opinion and in the Macy versus Holder opinion

13 and I see it in the Macy versus Holder opinion on Page

14 7 in the first full paragraph, the famous quote is

15 that Ms. Hopkins would improve her chances for

16 partnership if she would, quote, "walk more

17 femininely, talk more femininely, dress more

18 femininely, wear makeup, have her hair styled, and

19 wear jewelry." And this is the essence of the -- the

20 theory of sex stereotyping.

21 The partners at Price Waterhouse had

22 stereotypes on how women should behave. Ms. Hopkins

23 did not behave the way they -- she did not behave to

24 fit their stereotype, and because of that, she was

25 denied partnership. And that's the principle that the


85

1 EEOC applied in this opinion. The stereotype is that

2 an individual, be it a man or a woman, should not

3 expect to change to the opposite sex through the

4 transgender procedure. And by applying that

5 stereotype and then acting on that stereotype in an

6 employment action in this case against an applicant

7 for employment constitutes discrimination because of

8 sex.

9 I did want to point out what I thought

10 was a very interesting part of the rationale in the

11 EEOC opinion, and this is at the top of Page 12,

12 "Gender is no different from religion. Assume that an

13 employee considers herself Christian and identifies as

14 such but assume that an employer finds out the

15 employee's parents are Muslim believes that the

16 employee should therefore be Muslim and terminates the

17 employee on that basis. No one would doubt that such

18 an employer discriminated on the basis of religion.

19 There would be no need for the employee who

20 experienced the adverse employment action to

21 demonstrate that the employer acted on the basis of

22 some religious stereotype. Although clearly

23 discomfort with the choice made by the employee with

24 regard to religion would presumably be at the route of

25 employer's actions, but for purposes of establishing a


86

1 prima facie case that Title VII has been violated, the

2 employee simply must demonstrate that the employer

3 impermissibly used religion in making its employment

4 decision."

5 And then the Commission quotes a Federal

6 District Court in the case of Schroer, "Imagine that

7 an employee is fired because she converts from

8 Christianity to Judaism. Imagine too that her

9 employer testifies that he harbors no bias toward

10 either Christians or Jews but only converts. That

11 would be a clear case of discrimination because of

12 religion. No court would take seriously the notion

13 that converts are not covered by the statute.

14 Discrimination, because of religion, easily

15 encompasses discrimination because of a change of

16 religion. Applying Title VII in this manner does not

17 create a new class of people covered under Title VII.

18 For example, the class of people who have converted

19 from Islam to Christianity or from Christianity to

20 Judaism. Rather, it would simply be the result of

21 applying the plain language of the statute prohibiting

22 discrimination on the basis of religion to practical

23 situations in which such characteristics are

24 unlawfully taken into account."

25 And the conclusion is that for an


87

1 individual to -- and quoting from the opinion,

2 "convert from being a man to being a woman is entitled

3 to the same protection that would be afforded to an

4 individual who converts from one religion to another."

5 All of this is against the existing backdrop of what

6 we see in the area of dress codes, and in the area of

7 dress codes the long-standing principle is that

8 employers can create rules and policies that apply

9 widely-accepted social norms. For example, I believe

10 there is a case from the 6th Circuit of an employer's

11 policy that forbid men from wearing makeup and

12 simultaneously required women to wear makeup. Neither

13 men nor women had a choice when it came to makeup. A

14 woman who did not wear makeup was fired, and the Court

15 in that case said that that circumstance does not

16 constitute discrimination because of sex.

17 In an 11th Circuit case, a retailer had

18 a rule that required men to have short hair and

19 allowed women the choice of short hair or long hair.

20 And in that case the Court ruled that a man who was

21 not allowed to have long hair was not subjected to

22 discrimination. Now, on one level those cases seem

23 different because, in the first case, neither gender

24 had a choice when it came to makeup, and that was not

25 discrimination. But in the second case, women did


88

1 have a choice, while men didn't.

2 And on that simplistic level the cases

3 seem to be different. My opinion is that it misses

4 the mark, and the -- the more important concept is the

5 one of widely-accepted social norms. In a

6 professional environment, I believe there's a norm

7 that women may have short hair or long and that men

8 are expected to have short hair. The employer was

9 merely applying that norm, and that was upheld in the

10 case.

11 We will be accepting cases under this

12 theory of discrimination. I believe since April we

13 have already closed two cases on the theory of sex

14 stereotyping applied to individuals who are lesbian,

15 gay, bisexual, or transgendered. I haven't looked at

16 either of the cases. I have seen them listed on a --

17 a report of cases by basis and issue.

18 At this point I believe that in this

19 area there are more questions than answers. As I

20 mentioned earlier in the meeting, there is a bill

21 pending before the Texas Legislature right now that

22 would amend Texas law. In my opinion, the difference

23 between a new protected class and the theory of sex

24 stereotyping under existing law is that requiring an

25 individual to prove a case under existing law requires


89

1 two different components of state of mind.

2 And the first is proof that the

3 respondent holds or -- or adheres to a stereotype.

4 The second component is proving the state of mind that

5 the respondent acted on the basis of that stereotype

6 and simultaneously a real or perceived failure to

7 conform to that stereotype. If a new protected class

8 is added, the individual would simply allege that "I

9 am in the protected class," would not be required to

10 prove state of mind on the part of the respondent with

11 respect to that protected class, and then only be

12 required to prove that an action was taken because of

13 the protected class status.

14 COMMISSIONER STIDVENT: Can I -- can I

15 ask you a question? You mentioned you would be taking

16 cases on the basis of lesbian, gay, bisexual, or

17 transgender. So, are you interpreting Macy to apply

18 more broadly than just to transgender status and -- or

19 change -- and change of sex?

20 MR. BABIAK: We are taking cases based

21 on existing sex or gender discrimination on a theory

22 of stereotyping because of sex or gender and that

23 encompasses individuals who are lesbian, gay,

24 bisexual, and transgender. We are not taking cases on

25 the basis of sexual orientation --


90

1 COMMISSIONER STIDVENT: Okay.

2 MR. BABIAK: -- gender identity, or

3 expression.

4 COMMISSIONER STIDVENT: Okay. Got it.

5 CHAIRMAN ANDERSON: It's the federal --

6 it's the EEOC that's made this interpretation. Are --

7 is the C -- the Civil Rights Division the TWC-CRD

8 making an interpretation that is not specified by laws

9 based on the fact that there are bills pending? So,

10 are you making the determination, the agency making

11 the determination on its own, that this is a cause of

12 action for which we can pursue? Is that clear or --

13 is that clear or I --

14 MR. BABIAK: I have found no reported

15 cases under Chapter 21 related to this subject. I've

16 found no reported cases that apply the sex

17 stereotyping principles of Price Waterhouse under

18 Texas law. I've found no reported cases of

19 individuals who assert and attempt to make a claim

20 because of sexual orientation, gender identity, or

21 expression.

22 We are merely applying the theories as

23 stated in Price Waterhouse, and I would mention that

24 the Price Waterhouse opinion makes no mention of

25 sexual orientation, gender identity, or expression and


91

1 is based solely on the behaviors of the individual and

2 the proven stereotypes adhered to by the employer. I

3 would also say that the Price Waterhouse case had

4 strong evidence to establish that there was a

5 stereotype. The statement attributed to the partner

6 that I quoted earlier.

7 CHAIRMAN ANDERSON: Are we looking for

8 the same type of evidence, facts -- facts in the case

9 to -- to make that -- to make that case on behalf of

10 the claimant?

11 MR. BABIAK: Yes. We are looking for

12 evidence to -- to establish both components: One,

13 the -- one, the stereotype and, two, an adverse action

14 linking that stereotype to a failure to conform to the

15 stereotype that's either real or perceived on the part

16 of the complainant.

17 CHAIRMAN ANDERSON: Is this something

18 that the Commissioners need to bless, or is it the

19 administration -- administrative prerogative to extend

20 or to interpret, rather, this -- the Price Waterhouse

21 into these -- the -- these type of cases?

22 MR. BABIAK: We can certainly put it on

23 the agenda and present it to you and take guidance.

24 COMMISSIONER STIDVENT: I think -- I

25 think Price Waterhouse has been extended in a couple


92

1 of these cases, and the lawyers can probably correct

2 me if I'm wrong, in a couple of these type of cases.

3 I think this may be the first instance in which EEOC

4 addresses it directly, but there are -- but there are

5 cases that address gender stereotyping in this way.

6 In fact, I know of one that's in sexual orientation.

7 And so it doesn't -- as Jonathan points

8 out, it doesn't create a protected class. It's just

9 about sexual stereotyping or gender stereotyping. So,

10 the question in my mind is it is a difficult

11 distinction sometimes particularly for nonlawyers.

12 And I know when I taught these materials in my class

13 it's difficult to grasp when you said that you asked

14 their staff who won, and in my many cases where the

15 precedent is set, it's not about picking winners or

16 losers or a ruling on a point of law.

17 And so my question more broadly is, how

18 are you training the staff? Do you have the tools to

19 train nonlawyers on these points of law where it -- it

20 may not -- where you have a case and it may not be

21 about -- the holding is not about who wins or loses;

22 it's about a point of law and then how that's applied

23 into future cases? What is the mechanism for training

24 your staff on an EEOC decision or new case law or how

25 that may apply going forward? Is that something that


93

1 we need to think about, how do we provide that

2 training?

3 So that -- I mean, the distinction

4 between what is a protected class and what is the

5 holding in Price Waterhouse and Macy applied to a

6 particular community that's -- can be -- that sets out

7 very different parameters. And so how do we train the

8 staff to make sure that they understand that?

9 MR. BABIAK: Right now, I -- I don't

10 even know how -- what was the closure status of the

11 two cases that we have. I did tell the employment

12 manager, "Bring to my attention any case that's out of

13 the ordinary." And so -- and I -- and I guess my

14 first remark relates to I don't know if we even

15 investigated the two cases that we closed. They may

16 have closed in mediation. I would have to go look at

17 those two cases to see exactly how they progressed.

18 If they did not close in mediation, then

19 the case may have been a routine case where we request

20 the position statement from the respondent. The

21 respondent provides us with proof of a

22 nondiscriminatory reason for the employment action,

23 and we close the case as no cause.

24 COMMISSIONER STIDVENT: Well, I'm just

25 even thinking at the very level of intake, if someone


94

1 were to call -- call and say, "I think I was

2 discriminated against for some -- for this particular

3 reason." And you look at the protected classes and

4 say, "Well, that's not a protected class." It's

5 actually a fact question that goes deeper. "Well, I

6 think I was discriminated because I was dating someone

7 of the same sex, and my employer thought that that,

8 you know, was a stereotype" or -- I mean, you have to

9 parse that out further.

10 And I just worry about -- I mean, this

11 presents a trickier issue that's not easily put into a

12 checklist for an intake form and things like that.

13 And so I just wonder if we need some additional

14 training of the staff given the EEOC holding and

15 potentially further holdings. I mean, I think this is

16 a signal of what's to come. And so the question is:

17 How do you train the staff to get those fine point

18 distinctions?

19 MR. BABIAK: We -- we did include the

20 intake investigator on the reading of the opinions.

21 The intake investigator was included in the training

22 in October presented by EEOC, and I will follow up

23 with the Employment Manager to see -- you know, one, I

24 want to go look at the two cases we've had, see what

25 sort of fact settings they presented and probably have


95

1 some refresh -- refresher with our intake investigator

2 just to make sure we know how to get the allegations

3 so that they are within the existing sex stereotyping

4 theories because, yes, we cannot take a complaint

5 based on sexual orientation, gender identity, or

6 expression.

7 CHAIRMAN ANDERSON: That -- oh, I'm

8 sorry.

9 COMMISSIONER STIDVENT: So, who is

10 providing that training? Is it EEOC who is providing

11 that specific case-based or opinion-based training?

12 MR. BABIAK: Well, we -- we did have

13 some by EEOC and then myself working with the

14 Employment Manager. We're training our intake

15 investigator.

16 CHAIRMAN ANDERSON: Well, along the same

17 lines -- which were great follow-ups by

18 Commissioner -- how is that -- have you thought about

19 how that's -- you're going to convey that to the

20 claimant when they think they have a viable claim and

21 it's not gender stereotyping, it is the identification

22 issues?

23 MR. BABIAK: Well, let me -- let me use

24 an example. A -- an individual calls and states, "I

25 was fired when we employer found out I'm a lesbian."


96

1 Okay? We would ask questions to find out, one, "What

2 did you do or say that you think made your employer

3 believe you are a lesbian?" Number one, and number two

4 "What did the employer do or say to make you believe

5 that the reason for your discharge was because you are

6 a lesbian?" And I can imagine a situation where the

7 individual would say, "I don't need to tell you that.

8 I'm telling you I'm a lesbian, and I'm protected

9 because I am a lesbian."

10 We would tell that individual we cannot

11 take the complaint on that basis. If the individual

12 insisted, we would take the complaint and dismiss it

13 because it is nonjurisdictional. If the individual

14 will not give us allegations that would allow us to

15 characterize the case as within stereotype because of

16 sex or gender and insisted that the complaint be taken

17 under the basis of sexual orientation, gender

18 identity, or expression, we would not take the

19 complaint. Or if the customer insisted, we would take

20 the complaint and dismiss it as nonjurisdictional.

21 CHAIRMAN ANDERSON: So, all those cases

22 are going -- all those type of cases -- and there are

23 not many based on what you're telling us -- would come

24 to you for a review and determination?

25 MR. BABIAK: If they were out of the


97

1 ordinary. And by out of the -- by out of the

2 ordinary, what I've explained to the Employment

3 Manager is that if the employer cannot prove a

4 nondiscriminatory reason, bring the case to me.

5 CHAIRMAN ANDERSON: Well -- and,

6 similarly, the -- the example you gave about the

7 lesbian, will that -- will that case come to you,

8 also, that -- that intake come to you?

9 MR. BABIAK: We haven't expressly

10 discussed that. I know that the Employment Manager

11 knows, understands what is stereotyping because of sex

12 or gender. She knows that sexual orientation, gender

13 identity, or expression, those are nonjurisdictional.

14 But I can have that discussion with her.

15 CHAIRMAN ANDERSON: Okay. It's -- any

16 additional questions for Mr. Babiak concerning this --

17 this particular legal issue, I guess?

18 (No response)

19 CHAIRMAN ANDERSON: Seeing none, the

20 action items that were on the list, Becky, for today,

21 the three -- the first three dealing with the budget

22 will go to the 17th.

23 Did we talk about the number of

24 personnel policy procedural reviews conducted for

25 2012?


98

1 MR. BABIAK: I've inquired of staff how

2 the -- the schedule and the six-year cycle was

3 created. There is nobody remaining at -- at CRD who

4 was employed when that schedule was created, and the

5 belief among remaining staff is that all of the

6 organizations subject to review, which includes state

7 agencies and institutions of higher education were

8 simply compiled into one big list, divided into six

9 portions, and that's how the schedule was created.

10 One of our challenges right now is to

11 track agencies that are abolished and agencies that

12 are created. I believe that the Texas Department of

13 Motor Vehicles was created in 2009, and just last year

14 we incorporated them into the schedule. And I have

15 communicated with Governmental Relations staff to make

16 them aware that, in addition to everything else that

17 they track when they are tracking bills, an additional

18 item that needs to be tracked is state agencies being

19 created and state agencies being abolished. I don't

20 think that they knew why that would matter to us in

21 our policy review work, and I've explained it to them.

22 And it is something that they track now.

23 CHAIRMAN ANDERSON: I -- I go on with

24 that, and I think the other Commissioners do, too. I

25 think there needs to be a review or at least an


99

1 evaluation by the CRD. I mean, we -- we are the

2 product of one of those mergers into another agency,

3 abolishment and merger into another agency. So, if

4 somebody was tracking saying that the CRD needs to

5 be -- their policies and procedures need to be

6 evaluated, we no -- essentially no longer exist; we're

7 part of TWC now.

8 So, I think we need to take a look at

9 that schedule to make sure that all the agencies,

10 including the new ones, are on it, and particularly if

11 they're new and they've never been evaluated, that --

12 that we need to maybe move them up to the top of the

13 list. I'm not sure how you come up with that list.

14 MR. BABIAK: I know that about a year

15 ago one agency, who was subject to review -- and

16 understand that the agencies reviewed last year were,

17 in what I'll refer to as Year 6, meaning that as of

18 last year every agency has been reviewed twice. And

19 this particular agency had already been subjected to

20 review one time. And when they were selected last

21 year, they contacted us to say that "We are exempt

22 from review."

23 And I looked in the law and saw that the

24 definition of employer includes state agencies and

25 that the law also provides a definition of state


100

1 agency, and the definition of state agency includes an

2 agency in the executive branch, an agency in the

3 judicial branch, and the State Bar of Texas. And so,

4 by omission, you'll notice that the agencies in the

5 legislative branch are not covered by Chapter 21. And

6 that error was -- did not come to light the first time

7 we reviewed that agency, at this point, seven years

8 ago.

9 CHAIRMAN ANDERSON: Maybe it was done on

10 purpose by the Legislature.

11 Becky, do you -- can you -- do you have

12 a list of the new action items for next time?

13 (Brief pause)

14 CHAIRMAN ANDERSON: Or we can read it

15 into the record when we reconvene after the Executive

16 Session. Do you want some time to --

17 MS. SMITH: Yeah.

18 CHAIRMAN ANDERSON: -- look at it?

19 Okay.

20 AGENDA ITEM NO. 11

21 CHAIRMAN ANDERSON: We are -- if there's

22 nothing else, we are going to adjourn and go into

23 Executive Session and consider Item (a) Government

24 Code Section 551.074, the Appointment, Employment,

25 Evaluation, Reassignment, Duties, Discipline,


101

1 Dismissal, Accomplishment, Performance, Goals, and

2 Responsibilities of the Texas Workforce Commission

3 Civil Rights Division Director and Other Personnel;

4 Item (b) Government Code Section 551.071(1)

5 Contemplated Litigation or Pending Litigation of Texas

6 Commission on Human Rights, Texas Workforce

7 Commission, David Powell and Robert Gomez versus

8 Marilou Morrison; John Benavides, et al. Versus Texas

9 Commission on Human Rights; Rodolfo Martinez versus

10 Texas Workforce Commission-Civil Rights Division;

11 Texas Workforce Commission-Civil Rights

12 Division/Raymond Henshaw and Mark Henshaw; Texas

13 Workforce Commission-Civil Rights Division on behalf

14 of Gregory Collins versus Saratoga Property Owners

15 Association, et al; Leslie -- Lester Taylor versus TWC

16 Cause No. D-1-GN-12-003645; and, finally, Government

17 Code Section 551.071(2) All Matters Identified in This

18 Agency Where the Commissioners Seek the Advice of

19 Their Attorney as Privileged Communications.

20 And the time now is 11:45.

21 (Executive Session: 11:45 a.m. to

22 12:41 p.m.)

23 CHAIRMAN ANDERSON: Okay. The

24 Commissioners concluded their Executive Session at

25 12:40. We're back on the record and back in


102

1 session -- open session at 12:41. There was no action

2 taken, but we will ask that the TWC General Counsel

3 review the transcripts of the gentlemen from South

4 Texas' comments and for them to take appropriate

5 action as they deem -- as they deem necessary.

6 Anything else from the Commissioners?

7 (No response)

8 AGENDA ITEM NO. 12

9 CHAIRMAN ANDERSON: Okay. Without

10 objection, this meeting is adjourned.

11 (Meeting adjourned: 12:42 p.m.)

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103

1 C E R T I F I C A T E

2

STATE OF TEXAS )

3 COUNTY OF TRAVIS )

4

5 I, Janis Simon, a Certified Shorthand

6 Reporter in and for the State of Texas, do hereby

7 certify that the above-mentioned matter occurred as

8 hereinbefore set out.

9 I FURTHER CERTIFY THAT the proceedings

10 of such were reported by me or under my supervision,

11 later reduced to typewritten form under my supervision

12 and control and that the foregoing pages are a full,

13 true, and correct transcription of the original notes.

14 IN WITNESS WHEREOF, I have hereunto set

15 my hand and seal this 24th day of January 2013.

16

17

18

19 ________________________________

20 Janis Simon

Certified Shorthand Reporter

21 CSR No. 7076 - Expires 12/31/13

Firm Registration No. 276

22 Kennedy Reporting Service, Inc.

1016 La Posada Drive, Suite 294

23 Austin, Texas 78752

24

25 Job No. 106334

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