January 16, 2013 - Texas Workforce Commission
January 16, 2013 - Texas Workforce Commission
January 16, 2013 - Texas Workforce Commission
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1<br />
1 TRANSCRIPT OF PROCEEDINGS<br />
BEFORE THE<br />
2 COMMISSION ON HUMAN RIGHTS<br />
(TEXAS WORKFORCE COMMISSION - CIVIL RIGHTS DIVISION)<br />
3 AUSTIN, TEXAS<br />
4 PUBLIC MEETING FOR THE )<br />
COMMISSION ON HUMAN RIGHTS )<br />
5 TEXAS WORKFORCE COMMISSION )<br />
CIVIL RIGHTS DIVISION )<br />
6<br />
7 COMMISSION MEETING<br />
8 WEDNESDAY, JANUARY <strong>16</strong>, <strong>2013</strong><br />
9<br />
10 BE IT REMEMBERED THAT at approximately<br />
11 9:00 a.m., Wednesday, the <strong>16</strong>th day of <strong>January</strong> <strong>2013</strong>,<br />
12 the above-entitled matters came on for hearing at the<br />
13 <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>, TWC Building, 101 East<br />
14 15th Street, Room 244, Austin, <strong>Texas</strong>, before CHAIRMAN<br />
15 ANDERSON and the COMMISSIONERS of the Human Rights<br />
<strong>16</strong> <strong>Commission</strong>, <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong> - Civil Rights<br />
17 Division; and the following proceedings were reported<br />
18 by Janis Simon, a Certified Shorthand Reporter, in the<br />
19 State of <strong>Texas</strong>.<br />
20<br />
21<br />
22<br />
23<br />
24<br />
25
2<br />
1 TABLE OF CONTENTS<br />
PAGE<br />
2<br />
AGENDA ITEM NOS. 1 & 2 .......................... 3<br />
3 Chairman Anderson<br />
4 AGENDA ITEM NO. 3 ............................... 18<br />
Jonathan Babiak<br />
5<br />
AGENDA ITEM NO. 4 ............................... 40<br />
6 Jonathan Babiak and Daryl Steglich<br />
7 AGENDA ITEM NO. 5 ............................... 58<br />
Jonathan Babiak<br />
8<br />
AGENDA ITEM NO. 6 ............................... 60<br />
9 Vickie Covington<br />
10 AGENDA ITEM NO. 7 ............................... 69<br />
Jonathan Babiak<br />
11<br />
AGENDA ITEM NO. 8 ............................... 75<br />
12 Chairman Anderson<br />
13 AGENDA ITEM NO. 9 ............................... 75<br />
Chairman Anderson<br />
14<br />
AGENDA ITEM NO. 10 .............................. 80<br />
15 Jonathan Babiak<br />
<strong>16</strong> AGENDA ITEM NO. 11 .............................. 100<br />
17 AGENDA ITEM NO. 12 .............................. 102<br />
18 REPORTER'S CERTIFICATE .......................... 103<br />
19<br />
20<br />
21<br />
22<br />
23<br />
24<br />
25
3<br />
1 P R O C E E D I N G S<br />
2 WEDNESDAY, JANUARY <strong>16</strong>, <strong>2013</strong><br />
3 (9:00 a.m.)<br />
4 AGENDA ITEM NOS. 1 and 2<br />
5 CHAIRMAN ANDERSON: Good morning,<br />
6 everyone, and welcome to the <strong>Commission</strong> on Human<br />
7 Rights <strong>January</strong> <strong>16</strong>th meeting. We welcome everybody,<br />
8 and Happy New Year. And we look for another good year<br />
9 from TWC-CRD, and I'm sure Jonathan will tell us how<br />
10 the CRD has gotten off to a great start this year.<br />
11 We, what, finished one quarter of the<br />
12 year --<br />
13 MR. BABIAK: Well --<br />
14 CHAIRMAN ANDERSON: -- the budget year?<br />
15 MR. BABIAK: Yes. We've -- the first<br />
<strong>16</strong> quarter is September, October, November.<br />
17 CHAIRMAN ANDERSON: Okay. Great.<br />
18 We do have some guests, and we have some<br />
19 speakers. First, Marilou Morrison, and she's from<br />
20 Austin. She'll talk on the budget and the quarterly<br />
21 results.<br />
22 Ms. Morrison.<br />
23 MS. MORRISON: Good morning and New<br />
24 Year -- Happy New Year. This is a new year, both new<br />
25 and old problems, though. Since TWC assumed
4<br />
1 responsibility for the TCHR, it has been an escalating<br />
2 nose-dive.<br />
3 I have been telling you for the last 10<br />
4 years that this is the direct consequences of inept<br />
5 management from the bottom to the top. You are on the<br />
6 third director, and things have never been worse,<br />
7 partly because <strong>Commission</strong>ers have consistently hired<br />
8 the unqualified and are those with clearly<br />
9 demonstrated bias toward common employees and<br />
10 complainants.<br />
11 The current director has the position as<br />
12 a -- a result of expressing his bias publicly and<br />
13 consequently being required to find other employment.<br />
14 Of three directors since 2003, lack the knowledge<br />
15 and/or ability and interest in properly complying with<br />
<strong>16</strong> HUD and EEOC contracts and rules or even the TCHR Act.<br />
17 What's going on? <strong>Commission</strong>ers hired them. What does<br />
18 this say about <strong>Commission</strong>ers' commitment to preventing<br />
19 discriminatory employment and housing practices in<br />
20 <strong>Texas</strong>?<br />
21 Neither the former director nor the<br />
22 current one really had much of a chance to succeed<br />
23 because they were forced to rely on a<br />
24 second-in-command manager with much less education,<br />
25 experience, or ability. Because of this manager's
5<br />
1 record in district court of unlawful discrimination<br />
2 and retaliation resulting in a nearly million dollar<br />
3 judgment and another lawsuit scheduled for trial later<br />
4 this year, TWC has been afraid that firing her would<br />
5 be an admission of guilt. Instead, this manager is<br />
6 allowed to continue to assure the other destruction of<br />
7 any integrity the CRD ever had.<br />
8 While the intake questionnaire is<br />
9 absolutely essential to maintaining sufficient<br />
10 inventory, it has been changed repeatedly and not for<br />
11 the better, and the Spanish version was entirely<br />
12 deleted. Complainants report being discouraged from<br />
13 filing. I suspect it is because investigators and<br />
14 their supervisors do not understand the law well<br />
15 enough to know what a legitimate complaint is, and<br />
<strong>16</strong> they're afraid to attempt to write one.<br />
17 And there is only one intake<br />
18 investigator, and this investigator is relatively new<br />
19 and inexperienced in employment discrimination<br />
20 matters. It should be obvious that one intake<br />
21 investigator cannot possibly take enough complaints to<br />
22 supply sufficient case inventory for all employment<br />
23 investigators. That -- that is a no-brainer.<br />
24 Housing management is even worse. HUD<br />
25 provided a hundred thousand dollars in additional
6<br />
1 funds to assist the CRD in resolving the backlog of<br />
2 very old cases. Unfortunately, the utilization of<br />
3 these projected funds for overtime to try to<br />
4 accomplish this has been a dismal failure, and the CRD<br />
5 is unlikely to ever collect that hundred thousand<br />
6 dollars.<br />
7 Again, this is a direct consequence of<br />
8 the investigators receiving no guidance from<br />
9 supervisors and because supervisors themselves do not<br />
10 understand the laws or requirements of EEOC and HUD.<br />
11 Review the original applications. Most of them are<br />
12 totally unqualified from the very beginning.<br />
13 The Comptroller's report reveals that<br />
14 the CRD is not receiving the funding previously<br />
15 received from state revenue. Why? Is this -- this<br />
<strong>16</strong> situation could easily be turned around. Why has<br />
17 this -- has nothing been done? If anyone just knew or<br />
18 cared about Civil Rights in <strong>Texas</strong> in housing or<br />
19 employment, you could do something, and this is the<br />
20 year to do it if you're ever going to do it. Thank<br />
21 you.<br />
22 CHAIRMAN ANDERSON: Well, unfortunately,<br />
23 it's a new year, same -- same old message.<br />
24 We now have two individuals from the<br />
25 Valley, one from Brownsville and one from Harlingen,
7<br />
1 who wish to speak.<br />
2 And Mr. John Shergold wants to talk<br />
3 about one of the cases.<br />
4 MR. SHERGOLD: Good morning, Honorable<br />
5 <strong>Commission</strong>. It's a distinct honor to be in front of<br />
6 this <strong>Commission</strong>. Many years ago, when I was a young<br />
7 lawyer out of law school, I worked across the street<br />
8 over here at the Capitol for then, State<br />
9 Representative Doyle Willis, who is now deceased. And<br />
10 I'm really honored to be back in Austin today with my<br />
11 colleague, Mr. Warner.<br />
12 The reason that we're here today is to<br />
13 alert the <strong>Commission</strong> about a specific case that<br />
14 Mr. Warner and Mr. Ruben Pena, who unfortunately<br />
15 couldn't be here today, have been working on with due<br />
<strong>16</strong> diligence. And it's a case involving a worker that<br />
17 had been employed with the County of Hidalgo. And the<br />
18 worker had been terminated, and we had filed a -- a<br />
19 charge of discrimination with Mr. Babiak and his fine<br />
20 staff, a civil rights complaint.<br />
21 The case is real simple, because what<br />
22 happened in the case we believe has an impact<br />
23 statewide because the Court of Appeals had affirmed<br />
24 the judgment notwithstanding the verdict. We had<br />
25 received a jury verdict in favor of my client of
8<br />
1 $100,000. The Trial Court had reason to do a JNOV.<br />
2 Then, we appealed to the Court of Appeals in the 13th<br />
3 Court, who affirmed the Trail Court's JNOV.<br />
4 The reason we're here today is to alert<br />
5 you of the rationale of that affirmation against<br />
6 our -- our jury verdict and the JNOV against our --<br />
7 our verdict, is because in the holding the Court has<br />
8 reasoned that the procedures of the TWC and EEOC are<br />
9 equivalent to those of a local governing body. What<br />
10 happened in this case real simply is: The worker who<br />
11 was terminated appealed through the local policy, a<br />
12 grievance policy there that the county had, asked for<br />
13 a hearing, and that policy had the authority to<br />
14 reinstate if so given a hearing. The county had<br />
15 decided to turn off the hearing process locally to<br />
<strong>16</strong> this client of ours and create a situation where his<br />
17 local hearing that he was bound to have in the policy<br />
18 book was turned off by his own county. So, therefore,<br />
19 he wasn't able to appeal locally.<br />
20 The Court reasoned that, since he filed<br />
21 a complaint with the TWC, vis-a-vis EEOC, that the<br />
22 procedures were equivalent. In other words, now this<br />
23 holding has said -- and I know this is strange, but<br />
24 this is what the holding means -- that if a worker<br />
25 files a complaint with the TWC, he's not harmed and
9<br />
1 he's not injured if the local county in this situation<br />
2 turned off his local grievance procedure. Now, this<br />
3 is a very -- a very frightening situation, because now<br />
4 we basically have created a situation where we don't<br />
5 have a local grievance procedure that a worker can<br />
6 have faith that he can apply to and get a hearing if<br />
7 he decides to file a complaint with Mr. Babiak and his<br />
8 department, a civil rights complaint.<br />
9 The Court reasoned that they were<br />
10 equivalent procedures, because a worker could be<br />
11 reinstated. The worker in the opinion says that the<br />
12 worker can be reinstated by Mr. Jonathan Babiak and<br />
13 his -- and his Civil Rights <strong>Commission</strong>. Now, I know<br />
14 he's a very powerful fellow. I know he's got a lot of<br />
15 responsibilities, but under -- there's no code,<br />
<strong>16</strong> statute, or constitutional provision that basically<br />
17 gives his agency or the EEOC the power to reinstate a<br />
18 worker in the State of <strong>Texas</strong>.<br />
19 So, therefore, if this decision holds<br />
20 the Court of Appeals, we plan to -- Mr. Warner is<br />
21 going to be talking in just a second, we plan to<br />
22 appeal this to the <strong>Texas</strong> Supreme Court, because we<br />
23 believe that every worker in the state now is at<br />
24 jeopardy because every local county government or city<br />
25 government or school district, whoever it might be,
10<br />
1 can turn off a grievance hearing if they find out that<br />
2 that worker applied and filed a complaint with the<br />
3 Civil Rights <strong>Commission</strong>. And the reason they say it<br />
4 is, is because, "Well, we don't have to give it to you<br />
5 because TWC can reinstate you," which we know under<br />
6 this current case law that we're aware of is not<br />
7 correct. So, two reasons why the Civil Rights<br />
8 <strong>Commission</strong> Board and -- should be concerned, because<br />
9 it takes away the power of the local counties, and the<br />
10 local county governments and local city governments<br />
11 and local school districts to have their own local<br />
12 hearings to determine whether to reinstate the worker<br />
13 or not.<br />
14 Now, why is that somewhat concerting?<br />
15 Because it flies in the face of the -- the exhaustion<br />
<strong>16</strong> of administrative remedies doctrine, which always has<br />
17 taught us lawyers who do the labor law, is that you<br />
18 have to exhaust your local remedies first before you<br />
19 can go -- go to court.<br />
20 CHAIRMAN ANDERSON: Mr. Shergold, could<br />
21 you do -- please go ahead and wrap this up?<br />
22 MR. SHERGOLD: Yes. And so, therefore,<br />
23 we believe that this is not efficient and also it is<br />
24 costly, because now it is holding -- holds in the<br />
25 Court of Appeals. Then, workers are going to now --
11<br />
1 to have to be filing complaints with the Civil Rights<br />
2 <strong>Commission</strong> and not be able to rely on their local<br />
3 policy, which says that they have a right to appeal<br />
4 their terminations locally. So, therefore, we<br />
5 appreciate you giving us the opportunity to speak on<br />
6 this issue, because we believe it does have statewide<br />
7 importance. And we are -- hopefully, asking and<br />
8 hoping that the EEOC or the TWC will write an amicus<br />
9 curiae brief to the Supreme Court on this issue<br />
10 because it will have a dramatic impact we believe on<br />
11 labor in the State of <strong>Texas</strong> and the way business is<br />
12 conducted if the Court of Appeals' decision stands the<br />
13 way it is.<br />
14 With that, I thank you so much. It's so<br />
15 nice to be in front of everybody this morning. I'm a<br />
<strong>16</strong> little bit nervous, because it's 32 degrees out there,<br />
17 and my teeth are chattering.<br />
18 (Laughter)<br />
19 MR. SHERGOLD: But, anyway, thank you so<br />
20 much, and we're not used to that -- to this cold<br />
21 weather down in Brownsville. You know, I just picked<br />
22 several grapefruits out of my backyard. I have a<br />
23 grapefruit tree back there, and I was picking them<br />
24 this morning. And I talked to my friend, Larry, over<br />
25 here, Mr. Warner, I said, "Mr. Warner, I don't see any
12<br />
1 grapefruit trees here in Austin," and he said -- he<br />
2 goes, "John, you made a point there."<br />
3 (Laughter)<br />
4 MR. SHERGOLD: All right. Y'all have a<br />
5 nice day. Thank you very much.<br />
6 CHAIRMAN ANDERSON: Thank you,<br />
7 Mr. Shergold.<br />
8 Mr. Larry Warner from Harlingen, and are<br />
9 you going to talk on the same -- same situation, the<br />
10 same case, Mr. Warner?<br />
11 MR. WARNER: I have a solution to the<br />
12 problem that my colleague has just brought to your<br />
13 attention.<br />
14 Mr. Chairman, Members, thank you for<br />
15 your service. Always nice to meet people who get paid<br />
<strong>16</strong> less than state representatives do. When I was in<br />
17 front of the Legislature, they gave me my check, and I<br />
18 said, "Is this my Xerox reimbursement?" "No,<br />
19 Representative, that's your check." Thank you for<br />
20 your service.<br />
21 Mr. Chairman, Members, there is a<br />
22 solution to the problem that my college has just<br />
23 brought to your attention. Here it is: The Court of<br />
24 Appeals just got the law completely wrong. So, here's<br />
25 what we're doing about it.
13<br />
1 We are doing two things at one time. We<br />
2 are filing a petition for review, which they could<br />
3 grant if they want to, and we're filing a motion for<br />
4 leave to file and an application for writ of mandamus.<br />
5 Probably the second one is the one that they might<br />
6 take up to just tell the Court of Appeals, "Listen,<br />
7 Court of Appeals, we've looked at the Constitution and<br />
8 we've looked at the law and we've looked at the cases,<br />
9 and as of today -- and from the date that the <strong>Texas</strong><br />
10 <strong>Workforce</strong> was -- was brought into existence -- it has<br />
11 never, and it does not now have, as the Court of<br />
12 Appeals said, the power to reinstate a worker."<br />
13 Period. Paragraph. Reversed.<br />
14 Here's what we'd like for you to do. We<br />
15 want to borrow your prestige. My colleague has a<br />
<strong>16</strong> good -- very good reputation as a labor lawyer. I<br />
17 have managed in the last 40 years to have dealt with<br />
18 some success with appeals.<br />
19 But if you'll lend us your prestige and<br />
20 join as a friend of the court and file a friend of the<br />
21 court brief with us on our petition for review and our<br />
22 motion for leave to file -- an application for writ of<br />
23 mandamus and our application for writ of mandamus and<br />
24 say, "We're the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>. We know<br />
25 what power we have. We're the <strong>Commission</strong> on -- on
14<br />
1 Civil -- on Human Rights. We know what power we have.<br />
2 We don't have now -- when we were the <strong>Texas</strong> <strong>Workforce</strong><br />
3 <strong>Commission</strong>, we didn't have the power to reinstate a<br />
4 worker." The Court of Appeals got it wrong.<br />
5 Now, why is that important? It will<br />
6 help every worker. It will help every employer. It<br />
7 will help the <strong>Commission</strong> if you will help us by<br />
8 loaning us your prestige and the work of your -- your<br />
9 counsel to join us as a friend of the court and even<br />
10 to intervene as a party in both of these proceedings.<br />
11 How come? Well, they're going to pay<br />
12 attention if the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong> and the<br />
13 <strong>Commission</strong> on Human Rights, if they're on that motion<br />
14 for leave to file, the application for writ of<br />
15 mandamus, if your name is on that petition for review,<br />
<strong>16</strong> they're going to -- "This must be important." Has<br />
17 this ever happened before? Well, yes, it has.<br />
18 The Equal Employment Opportunity<br />
19 <strong>Commission</strong>, kind of like what you do, before the<br />
20 United States Court of Appeals for the 7th Circuit in<br />
21 a case called Veprinsky said, "Wait, they got the<br />
22 law -- they -- they didn't get it right. Wait a<br />
23 minute." A post discharge action by an employer can<br />
24 indeed be an adverse employment action.<br />
25 Guess what? The -- the Court of Appeals
15<br />
1 for the 7th Circuit, United States Court of Appeals<br />
2 for the 7th Circuit, covers whole -- all over the<br />
3 whole -- a group of states said, "Okay. Not only will<br />
4 we let you file a friend of the court brief, you can<br />
5 be a party," which is kind of different. It's a<br />
6 lawyerly distinction, but "you can be in on this<br />
7 lawsuit."<br />
8 And then the 7th Circuit said, "We adopt<br />
9 your position. You were right. You got the law --<br />
10 you told us what the law was. Now, we're going to<br />
11 tell everybody else what the law is."<br />
12 That's what you ought to do here, and<br />
13 here's how come. Right now employers don't -- if --<br />
14 if this decision stands, employees will have no reason<br />
15 to have their own resolutions at home with a<br />
<strong>16</strong> decision -- with a procedure for workers to resolve<br />
17 those at home. And they're going to say, "Well, the<br />
18 <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong> can reinstate you," but you<br />
19 can't.<br />
20 Article 1, Section 13 of the <strong>Texas</strong><br />
21 Constitution says everyone will have a right on due<br />
22 course of law to -- for a wrong that's been committed<br />
23 against them. Every right has to have a remedy.<br />
24 Well, there's no remedy right now for those people in<br />
25 the Court of Appeals district who get discharged
<strong>16</strong><br />
1 unfairly because they can't come to you and ask to be<br />
2 replaced.<br />
3 Here's what we ask you to do. I'll<br />
4 close with this.<br />
5 CHAIRMAN ANDERSON: Thank you.<br />
6 MR. WARNER: Please tell your counsel,<br />
7 "Okay. You can file a friend of the court brief with<br />
8 Mr. Warner and Mr. Shergold on the petition for review<br />
9 in the Supreme Court." Please tell your counsel, "We<br />
10 want to intervene in that application for writ of<br />
11 mandamus. We want the Supreme Court of <strong>Texas</strong> to say<br />
12 the <strong>Workforce</strong> <strong>Commission</strong> can't reinstate workers."<br />
13 That's what we'd like for you to do. Thank you for<br />
14 your attention.<br />
15 CHAIRMAN ANDERSON: Thank you,<br />
<strong>16</strong> Mr. Warner and Mr. Shergold, for coming up and<br />
17 speaking.<br />
18 We will -- does -- can we, Corra,<br />
19 discuss this -- since it's not on the Agenda, can we<br />
20 discuss this particular issue, or should we -- have to<br />
21 wait for another meeting, which will not be until<br />
22 April?<br />
23 MS. DUNIGAN: I don't think we can<br />
24 discuss it today. I think we're going to have to --<br />
25 we would have to put it on the next Agenda and
17<br />
1 probably discuss it in Executive Session. My esteem<br />
2 colleague, Susanne Cutrone, is here, and she's<br />
3 nodding. I want to make sure that I'm speaking<br />
4 correctly.<br />
5 CHAIRMAN ANDERSON: Can we talk in<br />
6 generalities without talking about this specific case,<br />
7 about the wisdom or the process for our be -- filing<br />
8 friend of the court petitions under -- under the<br />
9 current law.<br />
10 MS. CUTRONE: Chair Anderson, Susanna<br />
11 Cutrone, for the record. Are you referring to<br />
12 discussing this currently in open session from the<br />
13 dais, or are you referring to discussing this matter<br />
14 in Executive Session today?<br />
15 CHAIRMAN ANDERSON: Either -- either<br />
<strong>16</strong> forum, either closed or -- and open session, not this<br />
17 particular case, but -- perhaps, but --<br />
18 (Simultaneous discussion)<br />
19 MS. CUTRONE: The policy issues<br />
20 surrounding it.<br />
21 CHAIRMAN ANDERSON: -- the policy issue.<br />
22 MS. CUTRONE: The -- the discussion from<br />
23 the dais would need to be posted for a future meeting.<br />
24 From a consultative angle, discussing the issue with<br />
25 your attorney in Executive Session, that could occur
18<br />
1 today. That is -- that is properly posted for<br />
2 discussion today in Executive Session.<br />
3 CHAIRMAN ANDERSON: Okay. Then, we<br />
4 will -- we will do that in Executive Session. Thank<br />
5 you.<br />
6 Anything from the <strong>Commission</strong>ers?<br />
7 (No response)<br />
8 CHAIRMAN ANDERSON: And -- and for the<br />
9 record, for those who are not attorneys, JNOV that you<br />
10 kept referring to is -- go ahead.<br />
11 MR. SHERGOLD: It's judgment<br />
12 notwithstanding the verdict.<br />
13 CHAIRMAN ANDERSON: Thank you.<br />
14 MR. SHERGOLD: Thank you.<br />
15 AGENDA ITEM NO. 3<br />
<strong>16</strong> CHAIRMAN ANDERSON: And No. 3 on the<br />
17 Agenda, Jonathan.<br />
18 MR. BABIAK: Good morning,<br />
19 <strong>Commission</strong>ers. For the record, Jonathan Babiak,<br />
20 Director, Civil Rights Division. We have been so busy<br />
21 since the last meeting that it feels like the last<br />
22 meeting was a week ago.<br />
23 Some of my activities, I have<br />
24 participated in numerous case staffing, sitting down<br />
25 with investigators, the managers, supervisors, and
19<br />
1 just reviewed investigative activities. We have spent<br />
2 substantial time making revisions to our business<br />
3 processes. In particular, I think yesterday we have<br />
4 implemented some substantial changes to our processes<br />
5 on the employment side, and let me describe them to<br />
6 you.<br />
7 The old way of doing business would be<br />
8 that typically a customer would call. We would screen<br />
9 the call by asking questions like, "Did this happen in<br />
10 the last 180 days? Does the employer have 15 or more<br />
11 employees? Did this happen in Fort Worth, Austin, or<br />
12 Corpus? And have you already filed with the EEOC?"<br />
13 If we clear those questions, we then<br />
14 ask, "Was this action taken against you because of one<br />
15 of the protected classes in the law?" At that point<br />
<strong>16</strong> we would mail an intake questionnaire form to the<br />
17 individual. Not all of those intake questionnaires<br />
18 would be completed and returned to us. For the ones<br />
19 that were returned, we would draft a charge of<br />
20 discrimination, mail it to the individual, and<br />
21 instruct the individual to have it signed and<br />
22 notarized, and then mail it back to us.<br />
23 I think we looked at one recent month.<br />
24 I think it was in August of 2012. During that month,<br />
25 we mailed out 192 intake questionnaires. We didn't
20<br />
1 track those individual intake questionnaires for<br />
2 return, but in that same month we received 46<br />
3 perfected charges.<br />
4 Here's what we do now. When we get a<br />
5 call, we go through the initial screening in the<br />
6 normal manner. At that point we ask the customer, "Do<br />
7 you have e-mail?" If the customer has e-mail, we<br />
8 draft the charge on the phone and e-mail it to the<br />
9 individual and ask the individual to review it, and we<br />
10 make any necessary corrections at that time.<br />
11 Once we've got that charge ready to be<br />
12 signed, based on an amendment to the <strong>Texas</strong> Civil<br />
13 Practice and Remedies Code in the 2011 Session, the<br />
14 requirement in Chapter 21 if a charge be in writing<br />
15 and under oath can now be satisfied without having the<br />
<strong>16</strong> charge notarized. Chapter 132 of the <strong>Texas</strong> Civil<br />
17 Practice and Remedies Code following the amendment<br />
18 authorizes the use of what is known as an unsworn<br />
19 declaration, and the statute provides the form of the<br />
20 unsworn declaration. And we now use that unsworn<br />
21 declaration on our charge. The individual does not<br />
22 need to go find a notary.<br />
23 So, once we have the charge perfected --<br />
24 I'm sorry. Once we have the charge ready for a<br />
25 signature, we then ask the customer, "Do you have a
21<br />
1 printer?" If the customer has a printer, the customer<br />
2 prints the charge, signs it, scans it, attaches it to<br />
3 an e-mail, and returns it to us. And we collapse what<br />
4 used to be a multistep process with four different<br />
5 mailings into a single phone call.<br />
6 Once we have the perfected charge, the<br />
7 old process would be that every charge would -- we<br />
8 would invite the parties to a mediation. We would<br />
9 allow them 12 days to respond to that invitation. If<br />
10 either party declined, we would then and only then<br />
11 assign the case to an investigator to prepare a<br />
12 request for information and position statement. We<br />
13 would mail that to the respondent, await a return, and<br />
14 then analyze the information and present the case for<br />
15 closure.<br />
<strong>16</strong> For the cases that both parties accepted<br />
17 mediation, the mediators would begin discussions by<br />
18 telephone with the parties, attempt to come to a<br />
19 resolution. And only if the case could not be<br />
20 resolved over the telephone would a conference then be<br />
21 scheduled.<br />
22 Here's some of the changes we've made.<br />
23 At this point we will simultaneously invite all<br />
24 parties to mediation and request the information from<br />
25 the respondent and the charging party. We ask the
22<br />
1 parties to respond immediately, if they will accept<br />
2 mediation. When they accept mediation, the mediators<br />
3 begin that discussion with a request to schedule the<br />
4 mediation conference now.<br />
5 We attempt to resolve it without needing<br />
6 a mediation conference. And if we do that, we can<br />
7 cancel that mediation conference. If the mediation<br />
8 conference becomes necessary, we already have it<br />
9 scheduled at the beginning.<br />
10 In addition, the respondent is told in<br />
11 the initial letter, "You have 21 days to provide us<br />
12 with the information." If both parties accept<br />
13 mediation, that deadline is suspended. If either<br />
14 party declines, the deadline resumes, and we expect<br />
15 the information by the deadline. We hope that a<br />
<strong>16</strong> substantial number of cases, if we can implement this<br />
17 process and carry through on our plans, we can see a<br />
18 30-day turnaround from initial contact to case<br />
19 closure.<br />
20 We've also been working on redesign of<br />
21 our Internet content. Part of that content is our<br />
22 employment discrimination intake questionnaire. While<br />
23 we are finalizing the English version, we have put out<br />
24 a purchase order for a certified court -- a court<br />
25 certified English-Spanish interpreter.
23<br />
1 From my work in the Unemployment<br />
2 Insurance Division, I became aware of a program<br />
3 administered by the Administrative Office of the<br />
4 United States Federal Court system. The federal<br />
5 courts certify interpreters. The Unemployment<br />
6 Insurance Division uses at least four<br />
7 English-Spanish -- uses only court certified<br />
8 interpreters, and we have secured a purchase order<br />
9 with one of the court certified interpreters. And<br />
10 once our English intake questionnaire form is posted<br />
11 to the Internet, we will be able to submit that<br />
12 content for translation to the interpreter and get it<br />
13 posted to the Website.<br />
14 In addition, in the past a customer who<br />
15 went to our Website and downloaded that form, had one<br />
<strong>16</strong> option: Print the form, and mail it to us. We've now<br />
17 implemented an e-mail address to allow the person to<br />
18 fill in the form electronically and submit it to us<br />
19 immediately by e-mail.<br />
20 The previous version of the form had a<br />
21 space for a signature. That space for a signature is<br />
22 not required by state law, and it is not required by<br />
23 our work sharing agreement. However, if the intake<br />
24 questionnaire is signed, we are required to input that<br />
25 intake questionnaire into the database.
25<br />
1 on workload, we will not mail an intake questionnaire<br />
2 to that individual, wait for the individual to<br />
3 complete it and return it by mail. We will<br />
4 immediately attempt to draft the charge, and at that<br />
5 point, if the customer does not have e-mail, the --<br />
6 our only option is to mail that to the customer and<br />
7 urge the customer to sign it and return it. Even if<br />
8 the customer does not have e-mail, once we mail that<br />
9 completed charge out for signature, the customer does<br />
10 not have to go find a notary.<br />
11 CHAIRMAN ANDERSON: If they have a<br />
12 relative or a friend who has an e-mail address, is<br />
13 that acceptable, or does it have to be something<br />
14 related to the -- the individual who is filing?<br />
15 MR. BABIAK: We'll accept it through any<br />
<strong>16</strong> e-mail address. In addition, individuals can go to<br />
17 the nearest workforce center and use the fax machine<br />
18 and fax that form to us.<br />
19 CHAIRMAN ANDERSON: Are the procedures<br />
20 or the process in place at the present time, and --<br />
21 and what type of results are you getting? Or are<br />
22 you -- or is it still in the pilot phase -- phase?<br />
23 MR. BABIAK: This is -- this is<br />
24 something that we implemented yesterday.<br />
25 CHAIRMAN ANDERSON: Oh.
26<br />
1 MR. BABIAK: I think we have mailed out,<br />
2 I believe, approximately 20 perfected charges with the<br />
3 new combined letter that is both the invitation to<br />
4 mediation and the request for a position statement.<br />
5 CHAIRMAN ANDERSON: Okay. So, this is<br />
6 just employment. This is not extended into the<br />
7 housing yet, or maybe it won't be. I don't know. The<br />
8 housing process is a little bit different.<br />
9 MR. BABIAK: The housing process is<br />
10 different and really wouldn't lend itself to the --<br />
11 the changes that we're implementing on the employment<br />
12 side.<br />
13 CHAIRMAN ANDERSON: Do any <strong>Commission</strong>ers<br />
14 have any questions for Jonathan on these modified<br />
15 procedures?<br />
<strong>16</strong> (No response)<br />
17 CHAIRMAN ANDERSON: Okay.<br />
18 COMMISSIONER GLOVER: No question, but<br />
19 I -- oops. No question, but I do have a comment. I<br />
20 think that reducing the lag time probably would give<br />
21 both sides the knowledge, number one, that we're very<br />
22 serious about doing whatever we can do to get that<br />
23 resolution and also that -- that we -- we will be<br />
24 moving forward as quickly as possible. And I think<br />
25 that, again, will help bring the resolution to play
27<br />
1 sooner. So, I think that's great.<br />
2 MR. BABIAK: Thank you.<br />
3 CHAIRMAN ANDERSON: Yeah, you and your<br />
4 staff are to be commended on looking to determine more<br />
5 streamlined approaches and -- and going into the 20th<br />
6 century, 21st century, maybe.<br />
7 MR. BABIAK: In addition, I should<br />
8 mention -- and this is not in the memo, but I should<br />
9 mention that, as an agency, the TWC is adopting<br />
10 principles of Rapid Process Improvement, otherwise<br />
11 referred to as RPI. And we are all undergoing<br />
12 training on three different related theories under the<br />
13 subject of Rapid Process Improvement, and those<br />
14 theories are, one, the Theory of Constraints, two is a<br />
15 theory referred to as Lean, and the third is the<br />
<strong>16</strong> theory referred to as Six Sigma. And we'll be sitting<br />
17 down tomorrow with the newly-hired agency Director of<br />
18 Rapid Process Improvement to discuss what<br />
19 opportunities we may have in the Civil Rights Division<br />
20 to implement those principles.<br />
21 CHAIRMAN ANDERSON: On a related note,<br />
22 has -- has Mr. Crump been replaced, or is that<br />
23 position still open? Or has it even been posted?<br />
24 MR. BABIAK: Mr. Temple did not replace<br />
25 Mr. Crump in the role of Deputy Executive Director.
28<br />
1 Mr. Temple has hired Mr. Luis Macias to serve as<br />
2 Mr. Temple's Chief of Staff.<br />
3 CHAIRMAN ANDERSON: Okay.<br />
4 COMMISSIONER DIGGS: One quick question.<br />
5 When we start tracking days, aged days of cases, when<br />
6 do we start tracking that, and how will this affect<br />
7 that aging process of our cases?<br />
8 MR. BABIAK: Well, let me answer the --<br />
9 the second question first. The -- the hope is that<br />
10 the -- the cycle time is reduced and that the case<br />
11 aging is also reduced. I believe that we track both<br />
12 from the agency date and then a -- tracking from the<br />
13 date that the case is assigned to staff on the chance<br />
14 that it's not assigned on the same day that we receive<br />
15 it.<br />
<strong>16</strong> COMMISSIONER DIGGS: Okay.<br />
17 MR. BABIAK: Any other questions?<br />
18 CHAIRMAN ANDERSON: We're still on<br />
19 your -- the activities report. Right?<br />
20 MR. BABIAK: Yes, sir.<br />
21 CHAIRMAN ANDERSON: Okay.<br />
22 MR. BABIAK: I've been working with the<br />
23 Employment Manager to create new processes for the<br />
24 complaints we receive under HB 1178, the amendments to<br />
25 Government Code Chapter 431. We have struggled with
29<br />
1 the concepts. We have had to learn military<br />
2 terminology. We've had to gain an understanding of<br />
3 how state military operations interact with the United<br />
4 States Armed Forces.<br />
5 Also, as a reminder, HB 1178 was the<br />
6 amendment to Government Code Chapter 431 to add an<br />
7 administrative complaint process for unlawful<br />
8 employment practices against members of state military<br />
9 forces. Before the amendment, a member of the state<br />
10 military forces who suffered discrimination because of<br />
11 being called to training or duty had a cause of action<br />
12 and could take that cause of action directly to court.<br />
13 There was no administrative complaint process for that<br />
14 cause of action. The amendment created an<br />
15 administrative complaint process similar to the<br />
<strong>16</strong> administrative complaint process under Chapter 21, and<br />
17 we have received a small number of complaints, I<br />
18 think, perhaps five or six.<br />
19 One aspect of the cases that we've<br />
20 seen -- in fact, one complaint that we have right now<br />
21 involves an individual who was called to duty under<br />
22 state law, otherwise referred to as state active duty.<br />
23 While on state active duty, that individual was called<br />
24 up under federal active duty. And upon returning from<br />
25 federal active duty, returned to work and was not
30<br />
1 allowed to return to the job.<br />
2 When we first began analyzing this, we<br />
3 incorrectly assumed that an individual would have to<br />
4 make an election of remedies, because we're familiar<br />
5 with that concept under Chapter 21. We believe that<br />
6 an individual would have to choose between a remedy<br />
7 under state law or under federal law. The federal law<br />
8 protections are found in the Uniform Services<br />
9 Employment and Reemployment Rights Act, otherwise<br />
10 referred to as USERRA, U-S-E-R-R-A.<br />
11 And at this time, certainly subject to<br />
12 interpretation by the courts, my belief is that an<br />
13 individual who is called to a succession of both state<br />
14 active duty and federal active duty would be able to<br />
15 file a complaint with the Civil Rights Division. And<br />
<strong>16</strong> we would not need to consider whether that individual<br />
17 had any rights under federal law to determine whether<br />
18 that individual could proceed through our process.<br />
19 CHAIRMAN ANDERSON: Because of the --<br />
20 because of H -- HB 1178?<br />
21 MR. BABIAK: Exactly. Yes, there is --<br />
22 there is nothing in state law that makes any reference<br />
23 to rights under federal law that would limit the state<br />
24 law rights based on our reading right now.<br />
25 CHAIRMAN ANDERSON: So, they would only
31<br />
1 have USERRA rights if they were called up to federal<br />
2 active duty?<br />
3 MR. BABIAK: Right now, we are not<br />
4 considering whether an individual has any rights under<br />
5 federal law. We are looking only at state law and<br />
6 determining solely based on a reading of state law<br />
7 whether an individual can proceed through our<br />
8 complaint process. We do advise individuals that they<br />
9 may have rights under USERRA, and we provide them with<br />
10 information to contact both Employer Support of the<br />
11 Guard and Reserve, which is a volunteer organization<br />
12 under the Department of Defense and the United States<br />
13 Department of Labor Veterans' Employment and Training<br />
14 Services, who administers the complaints filed under<br />
15 USERRA.<br />
<strong>16</strong> CHAIRMAN ANDERSON: But even if they're<br />
17 on state -- I mean, they have orders -- orders are<br />
18 issued; otherwise, there is no call to active duty on<br />
19 either the state or federal level. So, why would<br />
20 there be a question on their ability to file a claim?<br />
21 I -- I don't -- I mean, you have orders that say you<br />
22 shall report. If you don't report, you're in a heck<br />
23 of a lot more trouble than not having a job anymore.<br />
24 MR. BABIAK: When the -- when the bill<br />
25 was going through the Legislature two years ago, I met
32<br />
1 with the executive director at the time of the <strong>Texas</strong><br />
2 ESGR, a man named Dwain James, and he explained to me<br />
3 that it's common for an individual to be called to<br />
4 training or duty before the document actually is<br />
5 created and that some individuals who serve struggle<br />
6 to understand that they have to get that document to<br />
7 support their complaint. At this point, part of the<br />
8 intake process that we've had to develop is to ask<br />
9 individuals, "Do you have orders?"<br />
10 In speaking to the current executive<br />
11 director of the <strong>Texas</strong> ESGR, a man named John Steele,<br />
12 he has explained that the individual can obtain the<br />
13 documented orders from -- and I'm working from memory<br />
14 here. I think it's referred to as the unit orderly<br />
15 room, the immediate supervisor, or the unit commander.<br />
<strong>16</strong> And, hopefully, by communicating to the customer in<br />
17 the terms that they understand, they will be able to<br />
18 find out are there documented orders. We have<br />
19 received some complaints with where the complaint did<br />
20 not clearly allege whether the duty was under state<br />
21 law or federal law, and so we've had to get that<br />
22 clarified. And -- and through that process we've --<br />
23 we've gained an understanding of how these operations<br />
24 take place.<br />
25 CHAIRMAN ANDERSON: Frequently, orders
33<br />
1 come into the whole unit, and the individual is not<br />
2 named. They have to have a roster. As Vickie<br />
3 probably knows, a roster supplements the order that<br />
4 says Headquarters and Service Battalion of whatever<br />
5 unit is -- is hereby ordered to active duty or<br />
6 something like that. They don't have the names.<br />
7 So, it's important that they get that.<br />
8 Otherwise -- or some kind of record that indicates<br />
9 that they were in that unit during that period of<br />
10 time. Otherwise, there is no record, or there's<br />
11 nothing that says that individual actually was called.<br />
12 So --<br />
13 MR. BABIAK: And the -- the ESGR is<br />
14 available to individuals who serve to assist in<br />
15 getting a copy of the orders to support the complaint.<br />
<strong>16</strong> CHAIRMAN ANDERSON: Right. They -- they<br />
17 need to go to S1 or personnel for the orders,<br />
18 generally, or the adjutant. That's -- that's where<br />
19 it's going to be. Okay. Thanks.<br />
20 MR. BABIAK: Any questions on our<br />
21 military complaints?<br />
22 (No response)<br />
23 MR. BABIAK: Okay. Just some<br />
24 highlights. Last week presented the biennial Equal<br />
25 Employment Opportunity and Minority Hiring Practices
34<br />
1 Report to the three-member <strong>Commission</strong> of the <strong>Texas</strong><br />
2 <strong>Workforce</strong> <strong>Commission</strong>. That report was issued on last<br />
3 Friday.<br />
4 Some quick highlights on legislation<br />
5 that has been filed. A bill has been filed to amend<br />
6 Chapter 21 to add sexual orientation and gender<br />
7 identity or expression as a protected class or classes<br />
8 under state law. This bill is similar and, perhaps,<br />
9 identical to bills that have been filed in each of the<br />
10 last two sessions, and we're analyzing that bill right<br />
11 now. I'll probably speak more on that in the context<br />
12 of the training under Agenda Item 10 when we get to<br />
13 it.<br />
14 CHAIRMAN ANDERSON: There is nothing<br />
15 under EEOC. The only thing they have under EEOC at<br />
<strong>16</strong> the present time are gender identity of sexual<br />
17 orientation is -- is promulgated regulations from<br />
18 EEOC. Correct? I mean, there is no law from -- at<br />
19 the federal level addressing sexual orientation or<br />
20 gender identity.<br />
21 MR. BABIAK: Well, we -- we do have<br />
22 the -- the recent decision in the case of Macy versus<br />
23 Holder. The EEOC has communicated to us that the<br />
24 decision in that case represents the interpretation<br />
25 that the EEOC will apply in private sector
35<br />
1 enforcement. And I hope <strong>Commission</strong>er Michalka will<br />
2 correct me if I'm speaking on behalf of the EEOC<br />
3 incorrectly. And, in addition, the -- the EEOC<br />
4 database has been updated to allow tracking of the<br />
5 sexual orientation, gender identity, or expression<br />
6 cases under traditional Title VII discrimination based<br />
7 on sex or gender.<br />
8 I -- I believe it was in October, I know<br />
9 it's been since the -- the last time that this board<br />
10 met that I -- I was invited to lead a round table<br />
11 discussion at the monthly meeting of the Austin Human<br />
12 Resource Management Association on the subject of<br />
13 recent EEOC issued guidelines on the use of criminal<br />
14 history information. I also gave a very brief<br />
15 presentation to the general session during lunch on<br />
<strong>16</strong> some recent cases issued by the <strong>Texas</strong> Supreme Court<br />
17 under Chapter 21.<br />
18 The first was a case, I think, decided<br />
19 in the month of June. The Court considered the<br />
20 question of whether in an age discrimination case,<br />
21 characterized as a simple replacement case, whether a<br />
22 plaintiff has to plead that the replacement worker was<br />
23 younger than the discharged worker. And the Court<br />
24 answered that question, "Yes."<br />
25 The case involved, I believe, an
36<br />
1 employee of a school district, who was released. The<br />
2 released employee was over 40 years of age. The<br />
3 employee was replaced by another worker who was also<br />
4 over 40 and, in addition, older than the worker who<br />
5 was released. And the <strong>Texas</strong> Supreme Court said that,<br />
6 based on those allegations, that does not satisfy<br />
7 the -- the prima facie elements of the case.<br />
8 The -- the other case, and in my opinion<br />
9 a little bit more interesting case, was the case<br />
10 involved Prairie View A&M University. The name of the<br />
11 plaintiff in the case, I believe, is pronounced<br />
12 Chatha. It's C-h-a-t-h-a. The plaintiff was a -- I<br />
13 believe a professor at the university, filed a<br />
14 complaint under Chapter 21 relating to a difference in<br />
15 compensation based on sex or gender. And the question<br />
<strong>16</strong> before the Court of Appeals was whether the federal<br />
17 Lilly Ledbetter Fair Pay Act amendments to Title VII<br />
18 were automatically incorporated into Chapter 21.<br />
19 And -- and, just as background,<br />
20 Ms. Ledbetter worked for Goodyear Tire and Rubber<br />
21 Company for a -- a number of years. I think it's been<br />
22 described as decades. She learned that the -- her<br />
23 male co-workers were paid more than she was.<br />
24 She filed a complaint of discrimination,<br />
25 and the United States Supreme Court ruled that the
37<br />
1 harm occurred at the time the pay agreement was made<br />
2 decades ago. Ms. Ledbetter argued that the harm<br />
3 occurred each time she received a new paycheck. The<br />
4 United States Supreme Court rejected that argument,<br />
5 and Ms. Ledbetter lost. Congress superceded the<br />
6 United States Supreme Court, expressly amended Title<br />
7 VII to state that every new paycheck is a new harm and<br />
8 begins a new running of the complaint time limit,<br />
9 either 180 or 300 days, and also sets a two-year limit<br />
10 going back in terms of recovery.<br />
11 Before the <strong>Texas</strong> Supreme Court, the<br />
12 <strong>Texas</strong> Supreme Court in addressing the question of<br />
13 whether those amendments to Title VII are<br />
14 automatically incorporated into Chapter 21, the Court<br />
15 answered that question "No." And so, at this time,<br />
<strong>16</strong> there is a difference between when the harm occurs in<br />
17 a case of compensation discrimination between federal<br />
18 and state law. In the 2009 and 2011 <strong>Texas</strong> Legislative<br />
19 Sessions, a bill was filed that would conform <strong>Texas</strong><br />
20 law to Title VII.<br />
21 I have been monitoring the -- the<br />
22 legislation as it's been filed, and I believe that so<br />
23 far a -- a similar bill has not yet been filed in this<br />
24 session.<br />
25 CHAIRMAN ANDERSON: Does -- who -- who
38<br />
1 does our tracking? And do we -- does -- TWC obviously<br />
2 tracks bills that are specifically related to TWC.<br />
3 Do -- does somebody separately track bills that apply<br />
4 to CRD, or is that part of the tracking that is done<br />
5 at TWC?<br />
6 MR. BABIAK: In the TWC External<br />
7 Relations Division, one department is Governmental<br />
8 Relations. Staff and Governmental Relations actively<br />
9 track all bills that would impact TWC, including the<br />
10 Civil Rights Division. The <strong>Texas</strong> Legislature Online<br />
11 Website has a -- a function that allows any individual<br />
12 to create an account, create customized searches.<br />
13 I've created two different searches in an attempt to<br />
14 make sure that we're seeing every bill that might<br />
15 impact our operations, and I run those searches<br />
<strong>16</strong> several times a week.<br />
17 CHAIRMAN ANDERSON: And a number of --<br />
18 obviously a number of bills have been prefiled. I<br />
19 guess some of them have been filed now, because we're<br />
20 in session -- they're in session.<br />
21 MR. BABIAK: I think the filing began in<br />
22 November, and we've been tracking them from the very<br />
23 beginning. I will say that the -- the amendment in<br />
24 the last session to the Civil Practice and Remedies<br />
25 Code, with respect to the unsworn declaration, was not
39<br />
1 one that we tracked. I happened to simply come across<br />
2 it.<br />
3 And so we -- we don't see everything<br />
4 that impacts us. I -- I wish that we had known about<br />
5 that one. I don't know if that's anybody's fault, but<br />
6 the important thing is we've found it now and we're<br />
7 able to take advantage of it.<br />
8 CHAIRMAN ANDERSON: Any questions from<br />
9 the <strong>Commission</strong>ers?<br />
10 (No response)<br />
11 CHAIRMAN ANDERSON: Okay.<br />
12 MR. BABIAK: In October we hosted<br />
13 training conducted by an attorney from the EEOC on the<br />
14 subject of gender stereotyping as it relates to the<br />
15 recent <strong>Commission</strong> decision of the <strong>Commission</strong>. It was<br />
<strong>16</strong> conducted in the form of a webinar. We were assisted<br />
17 in this by staff in the TWC Training and Development<br />
18 Department. We had both CRD staff and staff from the<br />
19 City of Austin participating live.<br />
20 We had a number of TWC attorney staff<br />
21 participating through webinar. And, in addition, we<br />
22 were able to connect in the local commissions in Fort<br />
23 Worth and Corpus Christi, and they were able to<br />
24 participate. And I -- I should mention that at the<br />
25 annual training conference conducted by the EEOC last
40<br />
1 may, I expressed a desire to the district director,<br />
2 Ms. Elizondo, for more training. And the EEOC<br />
3 responded by saying, "Sure. We'll do it. Can you<br />
4 host it?" And the result was our -- our training in<br />
5 October, and -- and we hope to do more of those in the<br />
6 future.<br />
7 And that's -- that's all of my remarks<br />
8 on -- on at least the highlights of my activities.<br />
9 Were there any questions on anything that I mentioned<br />
10 or anything in the -- the memorandum that I didn't<br />
11 touch on?<br />
12 (No response)<br />
13 CHAIRMAN ANDERSON: Seeing none, let's<br />
14 move on.<br />
15 MR. BABIAK: Okay. Should I announce<br />
<strong>16</strong> the next agenda item?<br />
17 CHAIRMAN ANDERSON: Sure.<br />
18 AGENDA ITEM NO. 4<br />
19 MR. BABIAK: Okay. That brings us to<br />
20 Item No. 4: Discussion, Consideration, and Possible<br />
21 Action Regarding the Quarterly Report Concerning the<br />
22 <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong> Civil Rights Division<br />
23 Budget for the First Quarter of Fiscal Year <strong>2013</strong>.<br />
24 Joining me at the table is Daryl Steglich from the TWC<br />
25 Budget area.
41<br />
1 <strong>Commission</strong>ers, I want to apologize. We<br />
2 had some errors in your slides. The slides on the<br />
3 Power Point are corrected for the errors that we found<br />
4 through yesterday. There may be one error that we<br />
5 didn't find, and Becky has a hard copy version of the<br />
6 corrections if you'd like a hard copy.<br />
7 CHAIRMAN ANDERSON: Also, in October,<br />
8 Daryl and Jonathan, there was a number of items<br />
9 that -- that we requested concerning the budget<br />
10 presentation. Are these incorporated into the<br />
11 presentation today?<br />
12 MR. BABIAK: Chair Anderson, forgive me.<br />
13 We -- we have not implemented those. I talked to<br />
14 Daryl yesterday, and we are going to take that for<br />
15 action. And -- and we hope to have that implemented<br />
<strong>16</strong> before the April meeting.<br />
17 CHAIRMAN ANDERSON: Okay.<br />
18 MR. BABIAK: Okay. I'll begin with the<br />
19 slide expenditures by category, fiscal year<br />
20 comparisons 2011, '12, and '13 as of November 30.<br />
21 Before the meeting, I received a -- a call from<br />
22 <strong>Commission</strong>er Diggs. Let me explain how we have<br />
23 labeled this slide. The 2011 total column is just<br />
24 that. That is the total for that year. The next two<br />
25 columns, 2012 and <strong>2013</strong>, are just first quarter --
42<br />
1 September, October, November of 2012-<strong>2013</strong> -- presented<br />
2 for comparison.<br />
3 And I know <strong>Commission</strong>er Diggs wanted<br />
4 percentages. Give me just a moment.<br />
5 (Brief pause)<br />
6 MR. BABIAK: At the end of the first<br />
7 quarter we have expended about 25 percent of our<br />
8 projected revenue for <strong>2013</strong>. I don't want to go<br />
9 through any painstaking detail on this slide. I did<br />
10 want to mention just this morning Daryl brought to my<br />
11 attention that the <strong>2013</strong> column at the line for<br />
12 benefits, we believe that that number is not accurate.<br />
13 We have implemented a new method in terms of<br />
14 automation for tracking time.<br />
15 Rather than tracking time, we are now<br />
<strong>16</strong> tracking -- well, we are -- we used to track by<br />
17 project function code, which relates to a funding<br />
18 source. We are now trying to track by task, and we<br />
19 hope that that's actually simpler and easier to<br />
20 understand for staff. Right now we do not know what<br />
21 that number is. We're going to get you an accurate<br />
22 number, and we can report it to you once we get it.<br />
23 MR. STEGLICH: If I can, I'd -- I'd like<br />
24 to elaborate a little bit more on that. For the<br />
25 record, Daryl Steglich, <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>
43<br />
1 Finance Department.<br />
2 The task system, what it is is if we<br />
3 have different cost allocations -- again, what<br />
4 Jonathan was talking about, the staff have the -- have<br />
5 the ability to charge to specific program function<br />
6 codes, which means they can charge to EEOC or HUD or<br />
7 they can charge to GR or Training or Monitoring items.<br />
8 One of the issues that we have is, since we're not<br />
9 fully reimbursed for EEOC, if you charge your time<br />
10 directly to EEOC, that's federal monies.<br />
11 So, there's -- even though we will make<br />
12 an adjustment later to offset some of those<br />
13 expenditures, the presentation that we provide does<br />
14 not include general revenue benefits. The general<br />
15 revenue benefits are not appropriated to the state<br />
<strong>16</strong> agencies. They are what they are.<br />
17 So, if we -- the purpose of excluding<br />
18 them is, if we estimate your benefits to be a hundred<br />
19 thousand dollars and you spend 50,000 of that, that<br />
20 additional amount of money is not available for you to<br />
21 expend. So, what we're trying to do is to pare this<br />
22 down as closely as we possibly can to give you a -- a<br />
23 more truer picture of where you are. Again, the --<br />
24 the individuals can charge to E -- project function<br />
25 codes. They can even charge to -- just the way that
44<br />
1 that particular position is funded, and it could be<br />
2 very different from the work that they're doing.<br />
3 The task system will allow us to have<br />
4 someone charging to EEOC, and that will automatically<br />
5 be split between the federal portion and the state<br />
6 portion. Does that -- does that make sense, or do you<br />
7 have further questions on that?<br />
8 CHAIRMAN ANDERSON: So -- so, those<br />
9 employees, like Jonathan and the other managers --<br />
10 well, I guess the other managers are -- are put in the<br />
11 category of -- of either housing or employment.<br />
12 Right? I mean, everybody else, other than you, maybe,<br />
13 and Becky and the mediators are split between housing<br />
14 and employment. Right? If it's housing, then that's<br />
15 all going to come out of the housing funds, but if<br />
<strong>16</strong> it's employment, they're going to be split between GR<br />
17 and -- and EEOC funding. Correct?<br />
18 MR. STEGLICH: Correct. And Jonathan --<br />
19 Jonathan and Becky and administrative staff, they have<br />
20 some other people that are -- that are doing<br />
21 different -- different functions, and what we're<br />
22 trying to do is to streamline the process so that we<br />
23 can get a little bit more accurate as to where<br />
24 everything is without having to go back and make<br />
25 adjustments after the fact.
45<br />
1 CHAIRMAN ANDERSON: Right.<br />
2 MR. STEGLICH: These are review -- we<br />
3 review them on a monthly basis, but it's -- it's<br />
4 the -- the information comes to us through the time<br />
5 tracking -- the time tracking system. And going to a<br />
6 task system made some sense in this particular area.<br />
7 So, hopefully, the number will -- will be a little bit<br />
8 more consistent from period to period, because we have<br />
9 adjustments that, of course, we can't make them in the<br />
10 period that just ends. We have to make it in the --<br />
11 in the subsequent period.<br />
12 CHAIRMAN ANDERSON: Okay.<br />
13 MR. BABIAK: Any other questions on the<br />
14 first slide?<br />
15 (No response)<br />
<strong>16</strong> MR. BABIAK: Okay. Our next slide is<br />
17 our cases. We've budgeted to close 385 housing cases<br />
18 this year. During the first quarter, we closed 89,<br />
19 and that is 23 percent of what we expected to do for<br />
20 the year. It's also 92 percent of what we expected to<br />
21 do in the first quarter.<br />
22 On the employment side -- and let me<br />
23 stop for a moment. I'm sorry. <strong>Commission</strong>er Diggs did<br />
24 have some questions for me about this presentation. I<br />
25 want to make sure I explain it so it's -- it's clear.
46<br />
1 Let's first look at just the month of<br />
2 September for housing. That target of 32 is<br />
3 one-twelfth of the annual total, which is how we<br />
4 derive that number 32. Once we complete the month of<br />
5 September and we learn that we have closed only 20,<br />
6 that makes our target in October all 32 that we would<br />
7 originally expect to close in October, plus the 12<br />
8 shortfall from the month of September, which is why<br />
9 October then becomes 44.<br />
10 In October we actually closed 36, which<br />
11 is four more than we would normally hope to close in a<br />
12 month. So, we are now at November where we expect to<br />
13 do 32 for November, plus 8 of the 12 from September<br />
14 that we didn't get closed in October for a total of<br />
15 40. Does that make sense?<br />
<strong>16</strong> COMMISSIONER GLOVER: Somewhat. Let me<br />
17 ask you -- let me ask you this, too. So, what -- I<br />
18 can never make this thing --<br />
19 CHAIRMAN ANDERSON: In the middle.<br />
20 COMMISSIONER GLOVER: Anyway, I'm loud<br />
21 enough. So, my question is that you have -- so you<br />
22 have completed 92 percent of what was originally<br />
23 anticipated that would happen within this first<br />
24 quarter. Did I understand you to say that correctly?<br />
25 MR. BABIAK: Give me just a moment.
47<br />
1 (Brief pause)<br />
2 MR. BABIAK: We expected to close 96<br />
3 cases in the first quarter. We actually closed 89,<br />
4 and 89 is 92 percent of the 96. And so we are behind,<br />
5 and we will be taking actions to get caught up.<br />
6 Any other questions?<br />
7 (No response)<br />
8 MR. BABIAK: Okay. Let's look at the<br />
9 employment side. Give me just a moment. Okay. In<br />
10 the first quarter we expected to close 224 cases. We<br />
11 actually closed 176. So, we closed only 80 percent of<br />
12 what we expected to close.<br />
13 In terms of the whole year, with a<br />
14 quarter of year gone, we've completed only 20 percent<br />
15 of the cases we expected to close. That means we are<br />
<strong>16</strong> behind, and the changes we've implemented in our<br />
17 employment processes are done with the intent of<br />
18 getting caught up.<br />
19 CHAIRMAN ANDERSON: You've passed --<br />
20 you've had employees work Saturdays. Is that<br />
21 something you're going to plan for this year?<br />
22 MR. BABIAK: We implemented overtime on<br />
23 the employment side starting last week. The nominal<br />
24 schedule right now is 45 hours a week. The housing<br />
25 staff have been in overtime since, I believe,
48<br />
1 approximately March of last year.<br />
2 CHAIRMAN ANDERSON: And budget-wise<br />
3 we've got the money to cover this --<br />
4 (Simultaneous discussion)<br />
5 MR. STEGLICH: Yes, sir.<br />
6 CHAIRMAN ANDERSON: Okay.<br />
7 MR. BABIAK: Okay. Moving to the next<br />
8 slide. Budget Year <strong>2013</strong> total revenue versus<br />
9 expenditure. Again, this encompasses the entire Civil<br />
10 Rights Program, both CRD and the administrative<br />
11 support functions from the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>.<br />
12 I'll come out and say it; this<br />
13 presentation, I think, is better than what existed<br />
14 when I arrived. And it's not as good as what we hope<br />
15 to present to you in April. I think we're trying to<br />
<strong>16</strong> present too many different dimensions in one slide.<br />
17 Slides are virtually free. So, we'll try to break<br />
18 down this information into more slides in the future.<br />
19 The original budget for revenue was<br />
20 2,813,611.<br />
21 (Brief pause)<br />
22 MR. BABIAK: At this point our actual<br />
23 revenue -- and you don't have this on your slide. The<br />
24 actual revenue amount for the first quarter is<br />
25 653,352. We used that actual amount to project out on
49<br />
1 a straight-line basis and arrive at our projection of<br />
2 2,613,411, which is on your slide. And that<br />
3 represents 23 percent of the budgeted revenue that we<br />
4 actually earned in the first quarter.<br />
5 Our total expenditure is in the next<br />
6 column, and that's an actual amount, the 649,000. The<br />
7 number below -- directly below that is the projection.<br />
8 It's simply four times the actual, the 2,598,000, and<br />
9 right now we project to expend 99.4 percent of our<br />
10 revenue. Hopefully, by catching up, we will result in<br />
11 a little more of a favorable variance between our<br />
12 expected revenue and expenditures. But at this point<br />
13 we are on course to our meet our budget.<br />
14 Any questions on that slide? And --<br />
15 and, more importantly, if you can, tell us what you<br />
<strong>16</strong> would prefer to see that we're not showing you in this<br />
17 first overall big picture. What information would you<br />
18 like us to report to you? How would you like it<br />
19 presented?<br />
20 (No response)<br />
21 MR. BABIAK: And if all you can say<br />
22 right now is, "We don't know. Just make it better."<br />
23 Then, that's certainly reasonable, and we will go make<br />
24 it better and -- and bring back something and -- and<br />
25 hope to make it better.
50<br />
1 COMMISSIONER DIGGS: As you and I<br />
2 discussed earlier this week, I'll follow up with you<br />
3 afterwards on some suggestions.<br />
4 MR. BABIAK: Thank you.<br />
5 Let's move to our next slide. Again,<br />
6 just as -- a quick review. Moving from the total we<br />
7 will now break out our operations into two major<br />
8 sections, our operations that we do not support with<br />
9 general -- general revenue, which is our housing<br />
10 cases, and then the operations that we do support with<br />
11 general revenue. Our original budgeted revenue for<br />
12 our housing cases was 1.2 million. So far we have<br />
13 actually earned $284,007, and the projection of the<br />
14 1,136,000 is simply four times that amount. And that<br />
15 284,000 represents that we have earned 23 percent of<br />
<strong>16</strong> our budgeted revenue upon completion of the first<br />
17 quarter.<br />
18 In the first quarter we expended 348,000<br />
19 on our housing cases. The number directly below that,<br />
20 again, is a straight-line projection of that actual<br />
21 expenditure, and it represents expending 28 -- or<br />
22 almost 29 percent of the budgeted amount and would<br />
23 represent spending 123 percent of what we project in<br />
24 revenue. The plan right now is to get caught up in<br />
25 the housing cases so that the revenue exceeds the
51<br />
1 expenditures by the end of the year.<br />
2 Any questions before we move onto the<br />
3 activities supported by general revenue?<br />
4 (No response)<br />
5 MR. BABIAK: Okay. First, is the slide<br />
6 that represents all of our activities supported by<br />
7 general revenue. We will break this out further in<br />
8 the following slides, but first is that our original<br />
9 budget was approximately $1.6 million. To date, or at<br />
10 last through the end of the first quarter, November<br />
11 30, we actually spent 300 and -- I'm sorry, we<br />
12 actually earned $369,346. That represents about 24<br />
13 percent of the budgeted revenue, and we project that<br />
14 out to a year-end number of about $1,477,000.<br />
15 Expenditures through November 30,<br />
<strong>16</strong> $301,000, a straight-line projection through the end<br />
17 of the year. Based on that amount is the 1.2 million.<br />
18 We have expended about 19 percent of the budgeted<br />
19 revenue, and our projection is to come in under budget<br />
20 on the activities supported by general revenue.<br />
21 Certainly by going into overtime, we will be spending<br />
22 to produce that revenue.<br />
23 Any questions before the next slide?<br />
24 CHAIRMAN ANDERSON: Obviously --<br />
25 obvious -- obviously, the -- the -- the overtime is --
52<br />
1 is generating sufficient revenue to -- to account for<br />
2 the -- the overtime. I mean, we're -- we're getting<br />
3 additional cases processed and additional billing to<br />
4 EEOC or --<br />
5 MR. BABIAK: On -- on the housing side,<br />
6 we applied for and received a grant from HUD in the<br />
7 amount of approximately $113,000 to pay for the<br />
8 overtime on the housing side. We have had a vacancy<br />
9 in intake on the employment side that we're attempting<br />
10 to fill. And by what we refer to here at the TWC as<br />
11 salary lapse, we have the funds to pay for the<br />
12 overtime on the employment side.<br />
13 Okay. Next, is the employment cases.<br />
14 We had budgeted $583,900 of revenue. So far, we've<br />
15 actually earned $114,775. That's 20 percent of our<br />
<strong>16</strong> budget and corresponds to the 20 percent of the case<br />
17 closures that we actually achieved in the first<br />
18 quarter.<br />
19 Our actually -- actual expenditures on<br />
20 employment cases is approximately $192,000. That<br />
21 projects out on a straight-line basis to $768,000 by<br />
22 the end of the year, which would represent expending<br />
23 <strong>16</strong>7 percent of the budgeted amount of revenue.<br />
24 However, please keep in mind that this slide presents<br />
25 only the reimbursement from EEOC.
53<br />
1 We always expect to spend more closing<br />
2 the employment cases than the reimbursement amount.<br />
3 The expectation to expend <strong>16</strong>7 percent of the<br />
4 reimbursement amount is not out of the ordinary.<br />
5 That's well within what we normally expect to see.<br />
6 And, finally, the next slide represents<br />
7 our training and monitoring. We budgeted revenue of<br />
8 about $106,000. So -- and through the first quarter,<br />
9 we have actually earned about $26,500, projects out to<br />
10 the budgeted amount. We have expended about $8,000.<br />
11 We have had the staff -- one of the -- the reviewer<br />
12 has been working on housing cases, and as a result has<br />
13 not been charging time to the monitoring while I've<br />
14 been reviewing the monitoring processes.<br />
15 We've pretty much got that complete, and<br />
<strong>16</strong> we'll have that individual back full-time in<br />
17 monitoring and expect the expenditures to get caught<br />
18 up. As you can see, through the end of the first<br />
19 quarter, the expenditures were only $8,000, projects<br />
20 out the $32,000. Again, as I -- as I just stated, we<br />
21 expect that to increase throughout the -- the<br />
22 remainder of the year.<br />
23 And then, finally, the -- the remainder<br />
24 of the general revenue, this simply represents or<br />
25 presents the general revenue on its own without
54<br />
1 referring to the specific activities. I will tell you<br />
2 that, despite how many times Daryl has explained this<br />
3 to me and how many times I've come to an understanding<br />
4 of it, I don't understand it right now. And so, if I<br />
5 can get it to a point where I understand it, hopefully<br />
6 I can also explain it to you. And I'll -- I'll just<br />
7 stop and let -- let Daryl rescue me here.<br />
8 MR. STEGLICH: From a practical<br />
9 standpoint, we're appropriated a certain amount of<br />
10 general revenue in any given year. There -- the<br />
11 purpose of that, again, is just -- is to provide<br />
12 additional funding for EEO cases, training and things<br />
13 of that sort, that are not -- we don't do -- get full<br />
14 cost recovery on. And the dollars that are here, even<br />
15 though it shows that we're below expenditure levels,<br />
<strong>16</strong> we'll use some of those dollars that will offset the<br />
17 EEO expenditures so that -- that percentage at the end<br />
18 of the year will be closer to 100 percent of the -- of<br />
19 the reimbursements that we receive.<br />
20 So -- and that's the purpose of that.<br />
21 It is a supplemental amount to provide funding for<br />
22 which activities are not otherwise reimbursed to<br />
23 the -- to the <strong>Commission</strong>. Does that make a little<br />
24 sense?<br />
25 MR. BABIAK: And, again, let me follow
55<br />
1 up and renew my request. And really, <strong>Commission</strong>ers,<br />
2 let me say this. At -- at -- at any time, please<br />
3 contact me. Let me know, "This is what I want to see.<br />
4 This is the information. This is how I want to see it<br />
5 presented. This is how I understand. Present it to<br />
6 me the way I understand things."<br />
7 You know, you can communicate with me at<br />
8 any time, not just during these quarterly meetings.<br />
9 Any other questions on Agenda Item No. 4, our budget?<br />
10 CHAIRMAN ANDERSON: So, the April<br />
11 meeting will get us on track or close to track as far<br />
12 as finances? I mean, based on the fact that you're<br />
13 running overtime and you're going to be closing<br />
14 additional cases, since we're on piecework type of<br />
15 funding anyway.<br />
<strong>16</strong> MR. BABIAK: Well, at the -- at the<br />
17 April meeting we'll be reporting to you on what we<br />
18 have closed through the end of February. I don't know<br />
19 if we will see substantial results by then.<br />
20 Certainly, what we -- what we report to you in April<br />
21 will be second quarter. That includes December 1<br />
22 through February 28.<br />
23 Of course, we will have -- we may or may<br />
24 not have the March tentative results to report to you<br />
25 in April. Typically, staff in Budget is able to get
56<br />
1 our month closed out and report it back to us normally<br />
2 by about the -- the middle of the month. So, we may<br />
3 or may not know March results by the time we come back<br />
4 in April.<br />
5 CHAIRMAN ANDERSON: Okay. Any other<br />
6 questions or comments for Daryl and Jonathan<br />
7 concerning the finances?<br />
8 (No response)<br />
9 MR. BABIAK: Thank you, Daryl.<br />
10 I guess that --<br />
11 CHAIRMAN ANDERSON: They did have a<br />
12 surplus this past fiscal year.<br />
13 MR. BABIAK: There -- there was an<br />
14 action item from the -- from the last meeting on<br />
15 carryforward. If --<br />
<strong>16</strong> CHAIRMAN ANDERSON: Yes.<br />
17 MR. BABIAK: -- if you'd like I can<br />
18 address that now.<br />
19 When we have carryforward, Daryl has<br />
20 explained to me, number one, that although the fiscal<br />
21 year ends on August 31, when we come to work on<br />
22 September 1st, we don't have the fiscal year closed<br />
23 out. Right now we don't have Fiscal Year 2012 closed<br />
24 out, and that's not extraordinary. When we do have a<br />
25 carryforward, that is the first thing that we expend
57<br />
1 at the beginning of the following fiscal year.<br />
2 CHAIRMAN ANDERSON: Okay.<br />
3 MR. BABIAK: And I've -- I've asked<br />
4 Daryl to see if he can pull up what our carryforward<br />
5 was both a year ago and two years ago simply to know<br />
6 what was that amount. Like I -- I mentioned a moment<br />
7 ago, I don't think that we do have '12 finally closed<br />
8 out to be able to report what the 2012 carryforward<br />
9 would be.<br />
10 CHAIRMAN ANDERSON: And do we categorize<br />
11 it by general revenue or the specific -- you know, HUD<br />
12 or EEOC?<br />
13 MR. STEGLICH: It would be federal funds<br />
14 only. There -- the general revenue funding is<br />
15 specific to a -- a singular year. And as a -- as a<br />
<strong>16</strong> general rule, there are sufficient -- sufficient<br />
17 expenditures that are allowable under the rules for<br />
18 the general revenue to expend those funds from a --<br />
19 from a programmatic standpoint.<br />
20 CHAIRMAN ANDERSON: Yeah, you almost<br />
21 have to spend it in employment almost -- most of it in<br />
22 employment and the training and monitoring --<br />
23 MR. STEGLICH: Employment and training<br />
24 and monitoring, yes, sir.<br />
25 CHAIRMAN ANDERSON: Okay. If there are
58<br />
1 no further questions, we'll go to Item No. 5,<br />
2 Jonathan.<br />
3 AGENDA ITEM NO. 5<br />
4 MR. BABIAK: Discussion, Consideration,<br />
5 and Possible Action Regarding the Quarterly Report<br />
6 Concerning the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong> Civil Rights<br />
7 Division Employment Enforcement and Training and<br />
8 Monitoring Activities for the First Quarter of Fiscal<br />
9 Year <strong>2013</strong>.<br />
10 (Brief pause)<br />
11 MR. BABIAK: As you can see in your<br />
12 packets, case closures in September, October,<br />
13 November -- I hope they correspond to what we've<br />
14 already presented to you. Yes, 62, 52, and 62<br />
15 respectively.<br />
<strong>16</strong> CHAIRMAN ANDERSON: What number are you<br />
17 looking at?<br />
18 MR. BABIAK: Well, if we look at the<br />
19 first report status on employment cases current month<br />
20 September 2012, it's on Line 19 that you see the<br />
21 number of cases closed. Also, you can see from Line 1<br />
22 to Line 20 the -- for the month of September the<br />
23 inventory has dropped. If we move forward to October,<br />
24 we closed 52 cases and inventories rose. And then<br />
25 moving to November --
59<br />
1 CHAIRMAN ANDERSON: This is on the<br />
2 Employment Tab. Right?<br />
3 MR. BABIAK: Yes, sir.<br />
4 CHAIRMAN ANDERSON: Okay. Under the<br />
5 Employment Tab.<br />
6 MR. BABIAK: And then moving to<br />
7 November, closed 62 cases and inventories fell. And,<br />
8 hopefully, with the changes we're in the process of<br />
9 implementing, of course, the first step is to get the<br />
10 inventories up. And then the second step is to get<br />
11 those cases closed.<br />
12 CHAIRMAN ANDERSON: The EEOC is sending<br />
13 you all the cases that you want or need?<br />
14 MR. BABIAK: Normally, we will<br />
15 investigate the cases on which we do the intake.<br />
<strong>16</strong> CHAIRMAN ANDERSON: Yeah, but -- but a<br />
17 basic question: Are the EEOC sending you any cases<br />
18 or --<br />
19 MR. BABIAK: No.<br />
20 CHAIRMAN ANDERSON: Okay.<br />
21 MR. BABIAK: We've given you a couple of<br />
22 employment scenarios. I don't have any other prepared<br />
23 remarks. Did you have any questions for me on this<br />
24 item?<br />
25 (Brief pause)
60<br />
1 CHAIRMAN ANDERSON: Seeing none.<br />
2 AGENDA ITEM NO. 6<br />
3 MR. BABIAK: Okay. That brings us to<br />
4 No. 6: Discussion, Consideration, and Possible Action<br />
5 Regarding the Quarterly Report Concerning the <strong>Texas</strong><br />
6 <strong>Workforce</strong> <strong>Commission</strong> Civil Rights Division Housing<br />
7 Enforcement Alternative Dispute Resolution and<br />
8 Outreach Activities for the First Quarter of Fiscal<br />
9 Year <strong>2013</strong>. And for this item, I think Vickie<br />
10 Covington will be coming to the podium.<br />
11 MS. COVINGTON: Good morning, Chair,<br />
12 <strong>Commission</strong>ers, TWC staff, and guests. For the record,<br />
13 my name is Vickie Covington. I'm the Manager of ADR<br />
14 Housing Enforcement -- ADR and Housing Enforcement.<br />
15 Our employment investigators and<br />
<strong>16</strong> mediators recovered more than $270,000 in relief for<br />
17 complainants. In addition, people have also received<br />
18 nonmonetary relief, such as change in their discharge<br />
19 status from termination or -- from discharge to<br />
20 resignation. During the -- the first quarter of the<br />
21 fiscal year there were also several approvals of a<br />
22 request for a reasonable accomodation and public<br />
23 interest -- interest relief in the form of training<br />
24 for respondents. Nearly three out of four mediation<br />
25 conferences held resulted in successful resolutions,
61<br />
1 and we've shared two ADR scenarios with you in your<br />
2 booklets. And they can be found behind the ADR Tabs.<br />
3 Are there any questions?<br />
4 CHAIRMAN ANDERSON: I think one of the<br />
5 questions or the discussion was -- one of the action<br />
6 items was contingency plans. You've only got two<br />
7 mediators, and one of them quit or -- was out for an<br />
8 extended period of time. How would you handle<br />
9 mediations going forward?<br />
10 MR. BABIAK: We -- we do have the -- the<br />
11 staff member who performs the policy reviews, has<br />
12 received federal government training on mediation.<br />
13 With the retirement of the supervisor in ADR, I've<br />
14 been working with Vickie on benchmarking the existing<br />
15 mediation processes and looking for any opportunities<br />
<strong>16</strong> we can find to improve those processes. Part of that<br />
17 plan is to have the policy reviewer sit in with the<br />
18 mediators and observe those processes and be prepared<br />
19 to step in if a need for more mediation arises.<br />
20 CHAIRMAN ANDERSON: Do you see a need<br />
21 for an additional mediator, or do you have sufficient<br />
22 caseload for mediation? Or what's the status there?<br />
23 MR. BABIAK: Right now our -- our<br />
24 biggest challenge on the employment side is that we<br />
25 don't have sufficient intake. We don't have
62<br />
1 sufficient inventory, and right now the -- the<br />
2 mediators have excess capacity. Both the -- the<br />
3 mediators and the investigators, all of them are<br />
4 asking for more cases.<br />
5 MS. COVINGTON: I did want to make one<br />
6 correction. In the category of NFS the number 6<br />
7 should actually be 35. So, if you would make that<br />
8 pen-and-ink change.<br />
9 COMMISSIONER GLOVER: Should actually be<br />
10 what?<br />
11 MS. COVINGTON: 35.<br />
12 As far as our housing case inventory,<br />
13 over the past few years we've experienced significant<br />
14 increases in complaints received at intake. We're now<br />
15 seeing a decrease in the number of cases we're<br />
<strong>16</strong> receiving at intake, and we received information from<br />
17 HUD that -- and this is due in part in their change in<br />
18 their intake procedures. HUD is now requiring<br />
19 complaints to be signed before they are considered<br />
20 filed, and we anticipate that there would be a period<br />
21 where intakes would continue to be down as HUD<br />
22 implements the new procedures, assess the new<br />
23 procedures impact on its customers, and make any<br />
24 necessary adjustments.<br />
25 Are there any questions?
63<br />
1 COMMISSIONER DIGGS: One quick question.<br />
2 Based on that new policy, is HUD seeing a reduction as<br />
3 well in the number of cases that they considered<br />
4 filed?<br />
5 MS. COVINGTON: I spoke with someone at<br />
6 HUD on -- yesterday, and they did indicate that they<br />
7 have seen a drop since they've implemented the new<br />
8 procedures, at least in Region 6. And so we've not<br />
9 received anything in writing regarding the new<br />
10 procedures, and so yesterday we made a request that<br />
11 they send us something in writing regarding the new<br />
12 procedures.<br />
13 Are there any other questions?<br />
14 (No response)<br />
15 MS. COVINGTON: The majority of our<br />
<strong>16</strong> cases still result in favorable resolutions to<br />
17 complainants. Withdrawal with settlement and<br />
18 conciliations are considered to be favorable<br />
19 resolutions. Complainants received more than 17,000<br />
20 in monetary relief. They also received nonmonetary<br />
21 relief and public interest relief. Two case scenarios<br />
22 are shared with you in your booklets behind the<br />
23 Housing Tab.<br />
24 Are there any questions?<br />
25 (No response)
64<br />
1 MS. COVINGTON: As you can see, our aged<br />
2 cases have increased significantly, and we've<br />
3 developed an aggressive plan to reverse this trend.<br />
4 Our goal is to reduce the pending inventory over --<br />
5 the inventory as you see it reflected now that's over<br />
6 a hundred days down to 35 percent, and we're working<br />
7 to do this by the end of the third quarter or sooner.<br />
8 We would prefer sooner but no later than the third<br />
9 quarter.<br />
10 I would like to let you know that if we<br />
11 continue to see the trend downward in intakes, that<br />
12 will affect our plan because we'll be getting fewer<br />
13 cases in, and we're focusing now strictly on the older<br />
14 cases. And so the new -- the newer cases, if we're<br />
15 not getting very many in, they would have a tendency<br />
<strong>16</strong> to age as well. And so, our -- our challenge is to<br />
17 close the cases that are under a hundred days, as well<br />
18 as the cases that have aged and to try to keep that<br />
19 balance.<br />
20 Are there any questions?<br />
21 CHAIRMAN ANDERSON: Are you at the point<br />
22 that the overtime is almost a fact of life in the CRD<br />
23 based on our caseload and staffing levels?<br />
24 MR. BABIAK: <strong>Commission</strong>er -- Chair<br />
25 Anderson, the -- the grant was for the purpose of
65<br />
1 closing the aged cases. So, the -- the plan is for<br />
2 the overtime to address the aged cases. And when the<br />
3 aged cases are gone, the grant will be spent, and the<br />
4 overtime will end. And that's our plan.<br />
5 CHAIRMAN ANDERSON: It -- it just seems<br />
6 like from, you know, previous meetings and previous<br />
7 discussions that if we don't do the overtime, our<br />
8 case -- aged cases go up. And when we do do the<br />
9 overtime, they drop back down to, you know, a normal<br />
10 or acceptable range.<br />
11 MR. BABIAK: I think that we're<br />
12 increasing the amount of guidance and direction we're<br />
13 giving to the investigators in setting priorities on<br />
14 specific cases and, in particular, the aged cases.<br />
15 CHAIRMAN ANDERSON: Okay.<br />
<strong>16</strong> COMMISSIONER DIGGS: Can I ask for one<br />
17 bit of clarification? You said with reduced intake<br />
18 that the newer cases and an emphasis on reducing the<br />
19 age of the cases that some of the newer cases may<br />
20 become -- may have longer times associated with them.<br />
21 The logic didn't work in my head. So, can you just<br />
22 reexplain that?<br />
23 MS. COVINGTON: The percentage of aged<br />
24 cases right now is at 65 percent, and on average our<br />
25 investigators are closing between three to five cases
66<br />
1 per month in each individual inventory. The<br />
2 individual inventories right now is somewhere between<br />
3 50 percent aged inventory and up. And so if we're not<br />
4 getting newer cases in and we're only focusing on<br />
5 the -- on the older cases, then the newer cases will<br />
6 tend to age as well, simply because of the sheer<br />
7 numbers in the inventory.<br />
8 But it's good news/bad news that we're<br />
9 getting fewer cases in. Because we're getting fewer<br />
10 cases in, I believe we will be more successful at<br />
11 reducing the inventory down. And then, once the<br />
12 receipts pick up, we should be able to maintain that.<br />
13 COMMISSIONER DIGGS: Okay.<br />
14 CHAIRMAN ANDERSON: Are we seeing any<br />
15 trends in the cases? I mean, the -- the -- building<br />
<strong>16</strong> and construction, as opposed to familial situations<br />
17 or -- or --<br />
18 MS. COVINGTON: I would say the most<br />
19 challenging cases are the -- the cases that are filed<br />
20 based on disability and the issues, reasonable<br />
21 accomodation, reasonable modification. We do have<br />
22 several design and construction cases in our<br />
23 inventory, and those are -- are challenging as well,<br />
24 as well as mortgage lending.<br />
25 CHAIRMAN ANDERSON: Which is -- which is
67<br />
1 my point I was trying to make is that the -- the<br />
2 trends or the types of cases, which some of them are<br />
3 more -- would be more complex would take longer to<br />
4 investigate and to come to a resolution, as opposed to<br />
5 a familial case, which is much -- I would believe much<br />
6 less complex and could be resolved much quicker. So,<br />
7 if you're having more building construction, mortgage<br />
8 lending, that type of thing, then that's going to tend<br />
9 to go towards the aging -- more aging than -- than the<br />
10 other cases.<br />
11 MS. COVINGTON: What I can prepare for<br />
12 the next meeting is to look at the cases and see the<br />
13 trends by age of the case and have that information at<br />
14 the next <strong>Commission</strong> Meeting.<br />
15 CHAIRMAN ANDERSON: Great.<br />
<strong>16</strong> So, that would be an action item, Becky.<br />
17 Any other questions or comments for --<br />
18 for Ms. Covington?<br />
19 MS. COVINGTON: I -- I did have one<br />
20 other item on a housing update and housing outreach.<br />
21 We continue to send staff to the National Fair Housing<br />
22 Training Academy, also known as NFHTA. I would like<br />
23 to tell you that during the first quarter two staff<br />
24 completed Week 1, three staff completed Week 2, and<br />
25 three staff completed Week 5. We now have four staff
68<br />
1 who have completed the prescribed five-week Fair<br />
2 Housing Assistance Program Investigator Course, and<br />
3 I'm one of them.<br />
4 Thank you very much.<br />
5 CHAIRMAN ANDERSON: How many<br />
6 investigators do we have?<br />
7 MS. COVINGTON: How many investigators?<br />
8 We have 12 fair housing investigators.<br />
9 Are there anymore questions?<br />
10 (No response)<br />
11 MS. COVINGTON: Thank you.<br />
12 CHAIRMAN ANDERSON: Okay.<br />
13 COMMISSIONER DIGGS: Can I go back and<br />
14 ask one quick question about housing -- not housing,<br />
15 I'm sorry, about employment? You made the comment<br />
<strong>16</strong> that we're not receiving new referrals from EEOC.<br />
17 Can -- can you explain that just a bit more for me?<br />
18 MR. BABIAK: The -- the process, as I<br />
19 understand it, is that we investigate the cases that<br />
20 are filed with us, and EEOC investigates the cases<br />
21 that are filed with EEOC.<br />
22 COMMISSIONER DIGGS: I thought we -- we<br />
23 used to receive referrals from them. Is that new<br />
24 or -- or different?<br />
25 MR. BABIAK: Okay. Well, I see Becky
69<br />
1 nodding, "yes," which means we did, and -- and I'm --<br />
2 I'm not prepared to -- to address that question. But<br />
3 I can -- I can find out and -- and see what we used to<br />
4 do and what's available now.<br />
5 COMMISSIONER DIGGS: Okay.<br />
6 (Brief pause)<br />
7 CHAIRMAN ANDERSON: I would agree. I<br />
8 mean, I -- I don't -- the other <strong>Commission</strong>ers, but it<br />
9 was -- it was -- I don't know what the percentage was,<br />
10 but we received a percentage of -- of our caseload<br />
11 every month was from EEOC referrals, cases that --<br />
12 that for one reason or another they either couldn't<br />
13 handle or didn't want to handle or maybe it's from<br />
14 another state or something.<br />
15 MR. BABIAK: Okay. Any other questions<br />
<strong>16</strong> before we move on?<br />
17 (No response)<br />
18 AGENDA ITEM NO. 7<br />
19 MR. BABIAK: Okay. That brings us to<br />
20 Item No. 7: Discussion, Consideration, and Possible<br />
21 Action Regarding the Annual Report Pursuant to <strong>Texas</strong><br />
22 Labor Code Sections 21.504 and 301.156. Becky will<br />
23 distribute the -- the draft to you, and I hope she<br />
24 brought a copy for me.<br />
25 <strong>Commission</strong>ers, while Becky is handing
70<br />
1 that out, this report includes both data on cases<br />
2 worked by the Civil Rights Division and data<br />
3 statewide, which would include cases worked by the<br />
4 EEOC and the local commissions in Fort Worth, Austin,<br />
5 and Corpus Christi. The EEOC has attempted and as yet<br />
6 not been able to provide us with all of the data that<br />
7 we need to complete the report.<br />
8 Now, I've been advised by General<br />
9 Counsel that you can approve the report as it's<br />
10 drafted, and when we receive the data, we insert the<br />
11 data and -- and finish the report. Some of the<br />
12 text -- in fact, if you look at the draft at the<br />
13 bottom of Page 3 and at the top of Page 4, we normally<br />
14 describe the data in terms of the -- each of the basis<br />
15 and the issue that represented the largest percentage<br />
<strong>16</strong> of the cases and then the remaining bases and issues<br />
17 in -- in rank order. Without having the data, we<br />
18 can't tell you right now which basis represented the<br />
19 largest percentage.<br />
20 As I mentioned, you can approve this<br />
21 report. We can drop in the data when we receive it.<br />
22 You can also tell us that you want to see all of the<br />
23 data before you issue the report, and that would<br />
24 require that we delay this until the April meeting or,<br />
25 in the alternative, schedule a meeting off the regular
71<br />
1 schedule for you to come in and consider the report.<br />
2 CHAIRMAN ANDERSON: General Counsel.<br />
3 MS. DUNIGAN: Good morning, Corra<br />
4 Dunigan for the record.<br />
5 Jonathan brought this to my attention on<br />
6 Monday. And after having consulted with -- with other<br />
7 staff in my office, we believe that -- that as -- as<br />
8 Jonathan stated, you can approve it now. It's -- I --<br />
9 I suppose we could defer it to your preference. I --<br />
10 I believe waiting until April that that is a bit late<br />
11 if we set it for the next <strong>Commission</strong> Meeting waiting<br />
12 on -- on the data from the EEOC, assuming we get the<br />
13 data from the EEOC by then.<br />
14 As -- as Jonathan also stated, we<br />
15 could -- we could set a special session. But with --<br />
<strong>16</strong> with your calendars, I imagine that would probably be<br />
17 very difficult. So, that said, there is -- I -- I<br />
18 couldn't find anything that would suggest that it<br />
19 couldn't be approved today, even though you don't<br />
20 have -- we don't have the data and the exact numbers.<br />
21 So, if -- if any of you had a problem with that, we<br />
22 could -- we could go to the other alternatives or --<br />
23 of a special session, a meeting, or delaying it until<br />
24 April. But, ideally, it would be -- it -- it can be<br />
25 and would be approved today with the caveat that we're
72<br />
1 still waiting on the data.<br />
2 COMMISSIONER DIGGS: Does it have to be<br />
3 done within a -- a full meeting, or can it be mailed?<br />
4 MS. DUNIGAN: Can -- oh, the approval?<br />
5 I believe it would have to be done during an open<br />
6 meeting. I -- I would have to double-check on that.<br />
7 But, again, that would delay -- but -- but I think it<br />
8 has to be done like -- like anything else, during an<br />
9 open meeting.<br />
10 MR. BABIAK: And -- and, Corra, I've --<br />
11 I've asked --<br />
12 MS. DUNIGAN: Oh, okay.<br />
13 MR. BABIAK: -- that question in the<br />
14 past. And the answer I've gotten in the past is that<br />
15 it would have to be in a meeting.<br />
<strong>16</strong> COMMISSIONER DIGGS: Thank you.<br />
17 CHAIRMAN ANDERSON: I don't think<br />
18 there's any -- I'm looking both directions. I don't<br />
19 believe there's any -- any interest in a special<br />
20 session or a special meeting just to come in and<br />
21 approve this.<br />
22 Is there -- I'll entertain a motion, if<br />
23 somebody wants to recommend approval or postponement<br />
24 for the approval of the <strong>Commission</strong> on Human Rights<br />
25 Annual Report for Fiscal Year 2012.
73<br />
1 COMMISSIONER OSTERHOUT: I make a motion<br />
2 we approve the -- the annual report.<br />
3 When -- when does this have to be to the<br />
4 Governor's Office?<br />
5 MR. BABIAK: I believe that the<br />
6 statutory deadline has always been December 31. We<br />
7 are already past the deadline.<br />
8 COMMISSIONER OSTERHOUT: Okay.<br />
9 Okay. I make a motion we go ahead and<br />
10 accept the Annual Report and pass it onto the<br />
11 Governor's Office.<br />
12 CHAIRMAN ANDERSON: With the data<br />
13 included once we receive it from the EEOC.<br />
14 COMMISSIONER OSTERHOUT: Right.<br />
15 CHAIRMAN ANDERSON: Is that acceptable?<br />
<strong>16</strong> COMMISSIONER GLOVER: Second.<br />
17 CHAIRMAN ANDERSON: It's moved and<br />
18 seconded.<br />
19 All in favor, say, "aye."<br />
20 (Those in favor of the motion so<br />
21 responded)<br />
22 CHAIRMAN ANDERSON: Or indicate -- so<br />
23 indicate affirmative -- affirmatively.<br />
24 (<strong>Commission</strong>ers indicating)<br />
25 CHAIRMAN ANDERSON: Yes?
74<br />
1 COMMISSIONER STIDVENT: Aye.<br />
2 CHAIRMAN ANDERSON: Michelle?<br />
3 COMMISSIONER DIGGS: Aye.<br />
4 CHAIRMAN ANDERSON: Reluctantly. It's<br />
5 unanimous, reluctantly, but unanimously. So --<br />
6 MR. BABIAK: We will finalize the report<br />
7 and issue it.<br />
8 CHAIRMAN ANDERSON: And notify us by<br />
9 electronic means of when the data is received so --<br />
10 and then once -- and then the report is submitted.<br />
11 COMMISSIONER MICHALKA: Do y'all have<br />
12 our signatures on file?<br />
13 MS. SMITH: (Nodding)<br />
14 COMMISSIONER MICHALKA: Okay.<br />
15 CHAIRMAN ANDERSON: Can we sign the --<br />
<strong>16</strong> can we sign the cover page now?<br />
17 MR. BABIAK: We will -- we'll use your<br />
18 electronic signatures.<br />
19 CHAIRMAN ANDERSON: Okay.<br />
20 COMMISSIONER DIGGS: And can you notify<br />
21 us prior to sending it so we get a chance to review it<br />
22 and acknowledge that we've reviewed it before it gets<br />
23 sent out?<br />
24 MR. BABIAK: Absolutely.<br />
25 COMMISSIONER DIGGS: Thank you.
75<br />
1 AGENDA ITEM NO. 8<br />
2 CHAIRMAN ANDERSON: Okay. Onto No. 8,<br />
3 please.<br />
4 MR. BABIAK: Discussion, Consideration,<br />
5 and Possible Action Regarding the <strong>Commission</strong> on Human<br />
6 Rights Duties, Roles, and Responsibilities Concerning<br />
7 Agenda Development Procedures.<br />
8 CHAIRMAN ANDERSON: And that's me, and I<br />
9 don't have anything to add to that at the present<br />
10 time.<br />
11 Do any of the <strong>Commission</strong>ers have any<br />
12 suggestions for the agenda and how we -- how we<br />
13 conduct the meetings or how the meetings are<br />
14 processed?<br />
15 (No response)<br />
<strong>16</strong> AGENDA ITEM NO. 9<br />
17 CHAIRMAN ANDERSON: Okay. No. 9.<br />
18 MR. BABIAK: Discussion, Consideration,<br />
19 and Possible Action Regarding Future Meetings of the<br />
20 <strong>Commission</strong> on Human Rights. Chair Anderson.<br />
21 CHAIRMAN ANDERSON: We -- right now we<br />
22 have scheduled April 17th, July 17th, and October<br />
23 <strong>16</strong>th. Does anybody wish to make changes to those<br />
24 dates?<br />
25 COMMISSIONER DIGGS: I actually have a
76<br />
1 suggestion that we move the meeting so that we can<br />
2 have the latest numbers.<br />
3 So, based on your statement, if we moved<br />
4 it back a week or so, we would have the information<br />
5 all the way up through March potentially versus only<br />
6 reporting December through February. And because<br />
7 we're behind, it might be prudent for us to look at<br />
8 adjusting that date.<br />
9 MR. BABIAK: I can -- I can -- well,<br />
10 I -- I don't know what other priorities our partners<br />
11 in Budget have.<br />
12 COMMISSIONER DIGGS: Uh-huh?<br />
13 MR. BABIAK: And -- yeah, I -- I --<br />
14 well, I can certainly request that they make it a<br />
15 priority, at least in the months that this <strong>Commission</strong><br />
<strong>16</strong> meets, to get those numbers to us so that they are<br />
17 available. And, in addition, if you decide to move<br />
18 the meeting later, then there's a greater chance that<br />
19 we'll have that information for you.<br />
20 CHAIRMAN ANDERSON: If <strong>Commission</strong>er<br />
21 Diggs is okay with it, let's keep the April 17th<br />
22 meeting, and we'll hold on July 17th and the <strong>16</strong>th<br />
23 until we find out if you can provide the -- the<br />
24 numbers and will it be in the -- in our book? Will<br />
25 you have time to put the numbers in the book, or are
77<br />
1 we going to get it at the meeting itself?<br />
2 MR. BABIAK: Well, let me discuss it<br />
3 with Daryl and -- and the staff in Budget, explain the<br />
4 request, and see if four times a year if our work<br />
5 can't be moved earlier in -- in their overall<br />
6 processes and find out what we can do. I think one of<br />
7 the challenges that we have is that for the employment<br />
8 and housing cases, we have a -- a number of days at<br />
9 the beginning of the each month to submit the cases<br />
10 that are considered closed in the previous month. And<br />
11 so first we have to do our work of getting the cases<br />
12 closed in the system before we provide that data to<br />
13 the folks in Budget that they use to prepare our<br />
14 financials.<br />
15 Certainly, we can simply implement an<br />
<strong>16</strong> internal procedure that we cut off on the 1st and<br />
17 submit our information to the folks in Budget. There<br />
18 may be a -- a one-time reported loss in production by<br />
19 moving your cut-off date earlier. Certainly, that<br />
20 would be reflected in the next period where the<br />
21 following period you would pick up the cases that<br />
22 would have normally been reported, you know, say<br />
23 through the 4th or 5th day of the month. So, that's<br />
24 certainly one option for us.<br />
25 CHAIRMAN ANDERSON: Well, <strong>Commission</strong>er
78<br />
1 Diggs has -- has a recommendation. So, what's -- what<br />
2 do the rest of the <strong>Commission</strong>ers -- what's your --<br />
3 your feeling? Certainly, getting all the -- I mean,<br />
4 we come four times a year. Certainly, getting the<br />
5 financial -- accurate up-to-date financial is -- is<br />
6 one of our primary responsibilities.<br />
7 COMMISSIONER GLOVER: I agree. I<br />
8 absolutely agree.<br />
9 CHAIRMAN ANDERSON: So, want to move it?<br />
10 It would be on the 24th, April 24th, if we did move it<br />
11 for April. Does anybody have a scheduling issue, or<br />
12 are you going to have to go back and -- to your office<br />
13 and check to see if those are going to be --<br />
14 COMMISSIONER STIDVENT: I have to check<br />
15 back.<br />
<strong>16</strong> COMMISSIONER MICHALKA: I have to check.<br />
17 COMMISSIONER STIDVENT: Yeah, but I<br />
18 agree. I think we should try and make the most of the<br />
19 meetings so that we have the accurate data. But I'll<br />
20 check on that date.<br />
21 CHAIRMAN ANDERSON: So, let's go ahead<br />
22 with what we -- what we said, if <strong>Commission</strong>er Diggs<br />
23 agrees, and we'll do it on the 17th of April. And<br />
24 then we'll decide on what we want to do. But based on<br />
25 the fact that we've got some numbers that are not as
79<br />
1 positive as -- as you would like them and we would<br />
2 like them, we -- we do want to make sure that -- that<br />
3 we have a chance to review it. So, if there's any<br />
4 suggestions or recommendations that we make them to<br />
5 you in a timely manner.<br />
6 And you're going to work with Budget to<br />
7 see if you can't get up-to-date information for the<br />
8 meeting on the 17th. If that works out, then that<br />
9 will be the process going forward. If it doesn't,<br />
10 then we're going to need to look at changing the date<br />
11 of the last two meetings for this year.<br />
12 Are all the <strong>Commission</strong>ers in agreement<br />
13 with that long-winded discussion?<br />
14 THE COMMISSIONERS: (Nodding)<br />
15 COMMISSIONER DIGGS: Yeah.<br />
<strong>16</strong> CHAIRMAN ANDERSON: Okay.<br />
17 COMMISSIONER MICHALKA: So, we're<br />
18 keeping April the 17th --<br />
19 CHAIRMAN ANDERSON: April 17th will<br />
20 stay. July 17th and October <strong>16</strong>th may be changed.<br />
21 So, that will probably be an action<br />
22 item, too, Becky.<br />
23 CHAIRMAN ANDERSON: No. 9. Oh, we've<br />
24 already talked about the future meetings.<br />
25
80<br />
1 AGENDA ITEM NO. 10<br />
2 CHAIRMAN ANDERSON: No. 10.<br />
3 MR. BABIAK: No. 10: Training on Recent<br />
4 Developments in EEOC's Interpretation of<br />
5 Discrimination Because of Sex Under Title VII. I'll<br />
6 be presenting this item, and I'll ask Becky to help me<br />
7 with some handouts for you.<br />
8 (Brief pause)<br />
9 MR. BABIAK: First, let me say that I<br />
10 will attempt to refrain from expressing any opinion<br />
11 during this presentation. However, any opinion that I<br />
12 express is entirely my own and does not represent the<br />
13 policy interpretation of the <strong>Texas</strong> <strong>Workforce</strong><br />
14 <strong>Commission</strong> Civil Rights Division, the <strong>Texas</strong> <strong>Commission</strong><br />
15 on Human Rights, the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>, or<br />
<strong>16</strong> the State of <strong>Texas</strong>. In addition, anything presented<br />
17 in this training is not to be construed as legal<br />
18 advice.<br />
19 The --<br />
20 CHAIRMAN ANDERSON: -- advice of<br />
21 Counsel? Was -- was that disclaimer on the advice of<br />
22 Counsel? (Laughter)<br />
23 MR. BABIAK: Yes, sir. This is intended<br />
24 only as information about recent developments in the<br />
25 law and is not to be considered as any specific legal
81<br />
1 advice for any individual.<br />
2 The subject of discrimination because of<br />
3 sex, which by the courts has been extended to mean<br />
4 discrimination because of sex or gender, has in the<br />
5 past been and I expect will continue to be one that<br />
6 evokes strong emotions from many individuals. In<br />
7 April of 2012 the commission of the -- the commission<br />
8 members of the Equal Employment Opportunity <strong>Commission</strong><br />
9 decided the case of Mia Macy versus Eric Holder, and<br />
10 I've given you a copy of the opinion in that case.<br />
11 A brief overview of the facts of the<br />
12 case. Mia Macy was an applicant for employment with<br />
13 the Department of Justice Bureau of Alcohol, Tobacco,<br />
14 Firearms, and Explosives. During the application<br />
15 process, she proceeded to the point of a background<br />
<strong>16</strong> check. At which time she contacted the employer to<br />
17 notify them that she was in the process of<br />
18 transitioning from being a man to being a woman.<br />
19 The application process ceased at that<br />
20 time. I believe she was told that the -- the vacancy<br />
21 had been canceled. In fact, another individual was<br />
22 selected for the position, and Ms. Macy filed a<br />
23 federal sector discrimination complaint. I believe<br />
24 that the process in the federal government is that<br />
25 those complaints are processed by the agency and can
82<br />
1 be appealed to the commission members of the EEOC.<br />
2 The agency dismissed a portion of the<br />
3 complaint because they interpreted the complaint as<br />
4 being filed -- and I think you'll find this on Page 5<br />
5 at the bottom -- alternatively described by the<br />
6 complainant as sex stereotyping, gender<br />
7 transition/change of sex, and gender identity. The<br />
8 EEOC reversed the decision of the agency and reasoned<br />
9 that the case falls within the scope of the 1989<br />
10 United States Supreme Court decision Price Water --<br />
11 Price Waterhouse versus Hopkins, which established the<br />
12 principle that stereotypes because of sex or gender<br />
13 constitute discrimination because of sex or gender and<br />
14 that -- well, let me stop and first explain the<br />
15 principle -- principle of stereotype because of sex or<br />
<strong>16</strong> gender.<br />
17 I will say, in my opinion, the Price<br />
18 Waterhouse versus Hopkins opinion is -- is difficult<br />
19 to read. We gave this to staff to read and sat them<br />
20 down, and without warning them we were going to ask<br />
21 this question, asked the question, "Well, who won?"<br />
22 And I encourage you to -- to read the opinion and --<br />
23 and think about that question as you read it.<br />
24 The decision -- the -- the opinion was<br />
25 a -- a split decision. Four justices joined, I think
83<br />
1 it was Justice Brennan, in writing the opinion. Two<br />
2 justices filed concurring opinions, and three justices<br />
3 dissented.<br />
4 The ultimate question that the Supreme<br />
5 Court faced was the question of whether the Court of<br />
6 Appeals committed error in affirming a ruling by the<br />
7 Trial Court that Price Waterhouse had to present clear<br />
8 and convincing evidence that sex or gender was not a<br />
9 motivating factor in the decision not to offer<br />
10 partnership to Ms. Hopkins, and the Supreme Court<br />
11 ruled that the clear and convincing standard of<br />
12 evidence was too high a standard and remanded the case<br />
13 so that the preponderance standard could be used.<br />
14 When you look up this case on Westlaw, Westlaw reports<br />
15 out this case as being superceded by statute, that<br />
<strong>16</strong> statute being the 1991 Civil Rights Act. The portion<br />
17 of the decision that establishes the proposition that<br />
18 stereotyping because of sex or gender is<br />
19 discrimination because of sex or gender prohibited by<br />
20 Title VII is not within the scope of what was<br />
21 overruled by statute. So, that part of the decision<br />
22 is still good law.<br />
23 And although -- for your convenience,<br />
24 I've given you all 53 pages of the opinion. Most of<br />
25 the discussion on sex stereotyping begins on Page 24,
84<br />
1 and I wanted to find -- give me just a moment.<br />
2 (Brief pause)<br />
3 MR. BABIAK: Well, I have to paraphrase<br />
4 from memory, but I believe that the opinion states<br />
5 that Ms. Hopkins would be denied partnership if she<br />
6 acted like a woman and she would be denied partnership<br />
7 if she acted like a man. And it is because she was<br />
8 working in an industry where, to become partner, you<br />
9 are expected to behave in a manner that was tough.<br />
10 And she was denied partnership because -- and the --<br />
11 the famous quote from the case that you'll see, both<br />
12 in this opinion and in the Macy versus Holder opinion<br />
13 and I see it in the Macy versus Holder opinion on Page<br />
14 7 in the first full paragraph, the famous quote is<br />
15 that Ms. Hopkins would improve her chances for<br />
<strong>16</strong> partnership if she would, quote, "walk more<br />
17 femininely, talk more femininely, dress more<br />
18 femininely, wear makeup, have her hair styled, and<br />
19 wear jewelry." And this is the essence of the -- the<br />
20 theory of sex stereotyping.<br />
21 The partners at Price Waterhouse had<br />
22 stereotypes on how women should behave. Ms. Hopkins<br />
23 did not behave the way they -- she did not behave to<br />
24 fit their stereotype, and because of that, she was<br />
25 denied partnership. And that's the principle that the
85<br />
1 EEOC applied in this opinion. The stereotype is that<br />
2 an individual, be it a man or a woman, should not<br />
3 expect to change to the opposite sex through the<br />
4 transgender procedure. And by applying that<br />
5 stereotype and then acting on that stereotype in an<br />
6 employment action in this case against an applicant<br />
7 for employment constitutes discrimination because of<br />
8 sex.<br />
9 I did want to point out what I thought<br />
10 was a very interesting part of the rationale in the<br />
11 EEOC opinion, and this is at the top of Page 12,<br />
12 "Gender is no different from religion. Assume that an<br />
13 employee considers herself Christian and identifies as<br />
14 such but assume that an employer finds out the<br />
15 employee's parents are Muslim believes that the<br />
<strong>16</strong> employee should therefore be Muslim and terminates the<br />
17 employee on that basis. No one would doubt that such<br />
18 an employer discriminated on the basis of religion.<br />
19 There would be no need for the employee who<br />
20 experienced the adverse employment action to<br />
21 demonstrate that the employer acted on the basis of<br />
22 some religious stereotype. Although clearly<br />
23 discomfort with the choice made by the employee with<br />
24 regard to religion would presumably be at the route of<br />
25 employer's actions, but for purposes of establishing a
86<br />
1 prima facie case that Title VII has been violated, the<br />
2 employee simply must demonstrate that the employer<br />
3 impermissibly used religion in making its employment<br />
4 decision."<br />
5 And then the <strong>Commission</strong> quotes a Federal<br />
6 District Court in the case of Schroer, "Imagine that<br />
7 an employee is fired because she converts from<br />
8 Christianity to Judaism. Imagine too that her<br />
9 employer testifies that he harbors no bias toward<br />
10 either Christians or Jews but only converts. That<br />
11 would be a clear case of discrimination because of<br />
12 religion. No court would take seriously the notion<br />
13 that converts are not covered by the statute.<br />
14 Discrimination, because of religion, easily<br />
15 encompasses discrimination because of a change of<br />
<strong>16</strong> religion. Applying Title VII in this manner does not<br />
17 create a new class of people covered under Title VII.<br />
18 For example, the class of people who have converted<br />
19 from Islam to Christianity or from Christianity to<br />
20 Judaism. Rather, it would simply be the result of<br />
21 applying the plain language of the statute prohibiting<br />
22 discrimination on the basis of religion to practical<br />
23 situations in which such characteristics are<br />
24 unlawfully taken into account."<br />
25 And the conclusion is that for an
87<br />
1 individual to -- and quoting from the opinion,<br />
2 "convert from being a man to being a woman is entitled<br />
3 to the same protection that would be afforded to an<br />
4 individual who converts from one religion to another."<br />
5 All of this is against the existing backdrop of what<br />
6 we see in the area of dress codes, and in the area of<br />
7 dress codes the long-standing principle is that<br />
8 employers can create rules and policies that apply<br />
9 widely-accepted social norms. For example, I believe<br />
10 there is a case from the 6th Circuit of an employer's<br />
11 policy that forbid men from wearing makeup and<br />
12 simultaneously required women to wear makeup. Neither<br />
13 men nor women had a choice when it came to makeup. A<br />
14 woman who did not wear makeup was fired, and the Court<br />
15 in that case said that that circumstance does not<br />
<strong>16</strong> constitute discrimination because of sex.<br />
17 In an 11th Circuit case, a retailer had<br />
18 a rule that required men to have short hair and<br />
19 allowed women the choice of short hair or long hair.<br />
20 And in that case the Court ruled that a man who was<br />
21 not allowed to have long hair was not subjected to<br />
22 discrimination. Now, on one level those cases seem<br />
23 different because, in the first case, neither gender<br />
24 had a choice when it came to makeup, and that was not<br />
25 discrimination. But in the second case, women did
88<br />
1 have a choice, while men didn't.<br />
2 And on that simplistic level the cases<br />
3 seem to be different. My opinion is that it misses<br />
4 the mark, and the -- the more important concept is the<br />
5 one of widely-accepted social norms. In a<br />
6 professional environment, I believe there's a norm<br />
7 that women may have short hair or long and that men<br />
8 are expected to have short hair. The employer was<br />
9 merely applying that norm, and that was upheld in the<br />
10 case.<br />
11 We will be accepting cases under this<br />
12 theory of discrimination. I believe since April we<br />
13 have already closed two cases on the theory of sex<br />
14 stereotyping applied to individuals who are lesbian,<br />
15 gay, bisexual, or transgendered. I haven't looked at<br />
<strong>16</strong> either of the cases. I have seen them listed on a --<br />
17 a report of cases by basis and issue.<br />
18 At this point I believe that in this<br />
19 area there are more questions than answers. As I<br />
20 mentioned earlier in the meeting, there is a bill<br />
21 pending before the <strong>Texas</strong> Legislature right now that<br />
22 would amend <strong>Texas</strong> law. In my opinion, the difference<br />
23 between a new protected class and the theory of sex<br />
24 stereotyping under existing law is that requiring an<br />
25 individual to prove a case under existing law requires
89<br />
1 two different components of state of mind.<br />
2 And the first is proof that the<br />
3 respondent holds or -- or adheres to a stereotype.<br />
4 The second component is proving the state of mind that<br />
5 the respondent acted on the basis of that stereotype<br />
6 and simultaneously a real or perceived failure to<br />
7 conform to that stereotype. If a new protected class<br />
8 is added, the individual would simply allege that "I<br />
9 am in the protected class," would not be required to<br />
10 prove state of mind on the part of the respondent with<br />
11 respect to that protected class, and then only be<br />
12 required to prove that an action was taken because of<br />
13 the protected class status.<br />
14 COMMISSIONER STIDVENT: Can I -- can I<br />
15 ask you a question? You mentioned you would be taking<br />
<strong>16</strong> cases on the basis of lesbian, gay, bisexual, or<br />
17 transgender. So, are you interpreting Macy to apply<br />
18 more broadly than just to transgender status and -- or<br />
19 change -- and change of sex?<br />
20 MR. BABIAK: We are taking cases based<br />
21 on existing sex or gender discrimination on a theory<br />
22 of stereotyping because of sex or gender and that<br />
23 encompasses individuals who are lesbian, gay,<br />
24 bisexual, and transgender. We are not taking cases on<br />
25 the basis of sexual orientation --
90<br />
1 COMMISSIONER STIDVENT: Okay.<br />
2 MR. BABIAK: -- gender identity, or<br />
3 expression.<br />
4 COMMISSIONER STIDVENT: Okay. Got it.<br />
5 CHAIRMAN ANDERSON: It's the federal --<br />
6 it's the EEOC that's made this interpretation. Are --<br />
7 is the C -- the Civil Rights Division the TWC-CRD<br />
8 making an interpretation that is not specified by laws<br />
9 based on the fact that there are bills pending? So,<br />
10 are you making the determination, the agency making<br />
11 the determination on its own, that this is a cause of<br />
12 action for which we can pursue? Is that clear or --<br />
13 is that clear or I --<br />
14 MR. BABIAK: I have found no reported<br />
15 cases under Chapter 21 related to this subject. I've<br />
<strong>16</strong> found no reported cases that apply the sex<br />
17 stereotyping principles of Price Waterhouse under<br />
18 <strong>Texas</strong> law. I've found no reported cases of<br />
19 individuals who assert and attempt to make a claim<br />
20 because of sexual orientation, gender identity, or<br />
21 expression.<br />
22 We are merely applying the theories as<br />
23 stated in Price Waterhouse, and I would mention that<br />
24 the Price Waterhouse opinion makes no mention of<br />
25 sexual orientation, gender identity, or expression and
91<br />
1 is based solely on the behaviors of the individual and<br />
2 the proven stereotypes adhered to by the employer. I<br />
3 would also say that the Price Waterhouse case had<br />
4 strong evidence to establish that there was a<br />
5 stereotype. The statement attributed to the partner<br />
6 that I quoted earlier.<br />
7 CHAIRMAN ANDERSON: Are we looking for<br />
8 the same type of evidence, facts -- facts in the case<br />
9 to -- to make that -- to make that case on behalf of<br />
10 the claimant?<br />
11 MR. BABIAK: Yes. We are looking for<br />
12 evidence to -- to establish both components: One,<br />
13 the -- one, the stereotype and, two, an adverse action<br />
14 linking that stereotype to a failure to conform to the<br />
15 stereotype that's either real or perceived on the part<br />
<strong>16</strong> of the complainant.<br />
17 CHAIRMAN ANDERSON: Is this something<br />
18 that the <strong>Commission</strong>ers need to bless, or is it the<br />
19 administration -- administrative prerogative to extend<br />
20 or to interpret, rather, this -- the Price Waterhouse<br />
21 into these -- the -- these type of cases?<br />
22 MR. BABIAK: We can certainly put it on<br />
23 the agenda and present it to you and take guidance.<br />
24 COMMISSIONER STIDVENT: I think -- I<br />
25 think Price Waterhouse has been extended in a couple
92<br />
1 of these cases, and the lawyers can probably correct<br />
2 me if I'm wrong, in a couple of these type of cases.<br />
3 I think this may be the first instance in which EEOC<br />
4 addresses it directly, but there are -- but there are<br />
5 cases that address gender stereotyping in this way.<br />
6 In fact, I know of one that's in sexual orientation.<br />
7 And so it doesn't -- as Jonathan points<br />
8 out, it doesn't create a protected class. It's just<br />
9 about sexual stereotyping or gender stereotyping. So,<br />
10 the question in my mind is it is a difficult<br />
11 distinction sometimes particularly for nonlawyers.<br />
12 And I know when I taught these materials in my class<br />
13 it's difficult to grasp when you said that you asked<br />
14 their staff who won, and in my many cases where the<br />
15 precedent is set, it's not about picking winners or<br />
<strong>16</strong> losers or a ruling on a point of law.<br />
17 And so my question more broadly is, how<br />
18 are you training the staff? Do you have the tools to<br />
19 train nonlawyers on these points of law where it -- it<br />
20 may not -- where you have a case and it may not be<br />
21 about -- the holding is not about who wins or loses;<br />
22 it's about a point of law and then how that's applied<br />
23 into future cases? What is the mechanism for training<br />
24 your staff on an EEOC decision or new case law or how<br />
25 that may apply going forward? Is that something that
93<br />
1 we need to think about, how do we provide that<br />
2 training?<br />
3 So that -- I mean, the distinction<br />
4 between what is a protected class and what is the<br />
5 holding in Price Waterhouse and Macy applied to a<br />
6 particular community that's -- can be -- that sets out<br />
7 very different parameters. And so how do we train the<br />
8 staff to make sure that they understand that?<br />
9 MR. BABIAK: Right now, I -- I don't<br />
10 even know how -- what was the closure status of the<br />
11 two cases that we have. I did tell the employment<br />
12 manager, "Bring to my attention any case that's out of<br />
13 the ordinary." And so -- and I -- and I guess my<br />
14 first remark relates to I don't know if we even<br />
15 investigated the two cases that we closed. They may<br />
<strong>16</strong> have closed in mediation. I would have to go look at<br />
17 those two cases to see exactly how they progressed.<br />
18 If they did not close in mediation, then<br />
19 the case may have been a routine case where we request<br />
20 the position statement from the respondent. The<br />
21 respondent provides us with proof of a<br />
22 nondiscriminatory reason for the employment action,<br />
23 and we close the case as no cause.<br />
24 COMMISSIONER STIDVENT: Well, I'm just<br />
25 even thinking at the very level of intake, if someone
94<br />
1 were to call -- call and say, "I think I was<br />
2 discriminated against for some -- for this particular<br />
3 reason." And you look at the protected classes and<br />
4 say, "Well, that's not a protected class." It's<br />
5 actually a fact question that goes deeper. "Well, I<br />
6 think I was discriminated because I was dating someone<br />
7 of the same sex, and my employer thought that that,<br />
8 you know, was a stereotype" or -- I mean, you have to<br />
9 parse that out further.<br />
10 And I just worry about -- I mean, this<br />
11 presents a trickier issue that's not easily put into a<br />
12 checklist for an intake form and things like that.<br />
13 And so I just wonder if we need some additional<br />
14 training of the staff given the EEOC holding and<br />
15 potentially further holdings. I mean, I think this is<br />
<strong>16</strong> a signal of what's to come. And so the question is:<br />
17 How do you train the staff to get those fine point<br />
18 distinctions?<br />
19 MR. BABIAK: We -- we did include the<br />
20 intake investigator on the reading of the opinions.<br />
21 The intake investigator was included in the training<br />
22 in October presented by EEOC, and I will follow up<br />
23 with the Employment Manager to see -- you know, one, I<br />
24 want to go look at the two cases we've had, see what<br />
25 sort of fact settings they presented and probably have
95<br />
1 some refresh -- refresher with our intake investigator<br />
2 just to make sure we know how to get the allegations<br />
3 so that they are within the existing sex stereotyping<br />
4 theories because, yes, we cannot take a complaint<br />
5 based on sexual orientation, gender identity, or<br />
6 expression.<br />
7 CHAIRMAN ANDERSON: That -- oh, I'm<br />
8 sorry.<br />
9 COMMISSIONER STIDVENT: So, who is<br />
10 providing that training? Is it EEOC who is providing<br />
11 that specific case-based or opinion-based training?<br />
12 MR. BABIAK: Well, we -- we did have<br />
13 some by EEOC and then myself working with the<br />
14 Employment Manager. We're training our intake<br />
15 investigator.<br />
<strong>16</strong> CHAIRMAN ANDERSON: Well, along the same<br />
17 lines -- which were great follow-ups by<br />
18 <strong>Commission</strong>er -- how is that -- have you thought about<br />
19 how that's -- you're going to convey that to the<br />
20 claimant when they think they have a viable claim and<br />
21 it's not gender stereotyping, it is the identification<br />
22 issues?<br />
23 MR. BABIAK: Well, let me -- let me use<br />
24 an example. A -- an individual calls and states, "I<br />
25 was fired when we employer found out I'm a lesbian."
96<br />
1 Okay? We would ask questions to find out, one, "What<br />
2 did you do or say that you think made your employer<br />
3 believe you are a lesbian?" Number one, and number two<br />
4 "What did the employer do or say to make you believe<br />
5 that the reason for your discharge was because you are<br />
6 a lesbian?" And I can imagine a situation where the<br />
7 individual would say, "I don't need to tell you that.<br />
8 I'm telling you I'm a lesbian, and I'm protected<br />
9 because I am a lesbian."<br />
10 We would tell that individual we cannot<br />
11 take the complaint on that basis. If the individual<br />
12 insisted, we would take the complaint and dismiss it<br />
13 because it is nonjurisdictional. If the individual<br />
14 will not give us allegations that would allow us to<br />
15 characterize the case as within stereotype because of<br />
<strong>16</strong> sex or gender and insisted that the complaint be taken<br />
17 under the basis of sexual orientation, gender<br />
18 identity, or expression, we would not take the<br />
19 complaint. Or if the customer insisted, we would take<br />
20 the complaint and dismiss it as nonjurisdictional.<br />
21 CHAIRMAN ANDERSON: So, all those cases<br />
22 are going -- all those type of cases -- and there are<br />
23 not many based on what you're telling us -- would come<br />
24 to you for a review and determination?<br />
25 MR. BABIAK: If they were out of the
97<br />
1 ordinary. And by out of the -- by out of the<br />
2 ordinary, what I've explained to the Employment<br />
3 Manager is that if the employer cannot prove a<br />
4 nondiscriminatory reason, bring the case to me.<br />
5 CHAIRMAN ANDERSON: Well -- and,<br />
6 similarly, the -- the example you gave about the<br />
7 lesbian, will that -- will that case come to you,<br />
8 also, that -- that intake come to you?<br />
9 MR. BABIAK: We haven't expressly<br />
10 discussed that. I know that the Employment Manager<br />
11 knows, understands what is stereotyping because of sex<br />
12 or gender. She knows that sexual orientation, gender<br />
13 identity, or expression, those are nonjurisdictional.<br />
14 But I can have that discussion with her.<br />
15 CHAIRMAN ANDERSON: Okay. It's -- any<br />
<strong>16</strong> additional questions for Mr. Babiak concerning this --<br />
17 this particular legal issue, I guess?<br />
18 (No response)<br />
19 CHAIRMAN ANDERSON: Seeing none, the<br />
20 action items that were on the list, Becky, for today,<br />
21 the three -- the first three dealing with the budget<br />
22 will go to the 17th.<br />
23 Did we talk about the number of<br />
24 personnel policy procedural reviews conducted for<br />
25 2012?
98<br />
1 MR. BABIAK: I've inquired of staff how<br />
2 the -- the schedule and the six-year cycle was<br />
3 created. There is nobody remaining at -- at CRD who<br />
4 was employed when that schedule was created, and the<br />
5 belief among remaining staff is that all of the<br />
6 organizations subject to review, which includes state<br />
7 agencies and institutions of higher education were<br />
8 simply compiled into one big list, divided into six<br />
9 portions, and that's how the schedule was created.<br />
10 One of our challenges right now is to<br />
11 track agencies that are abolished and agencies that<br />
12 are created. I believe that the <strong>Texas</strong> Department of<br />
13 Motor Vehicles was created in 2009, and just last year<br />
14 we incorporated them into the schedule. And I have<br />
15 communicated with Governmental Relations staff to make<br />
<strong>16</strong> them aware that, in addition to everything else that<br />
17 they track when they are tracking bills, an additional<br />
18 item that needs to be tracked is state agencies being<br />
19 created and state agencies being abolished. I don't<br />
20 think that they knew why that would matter to us in<br />
21 our policy review work, and I've explained it to them.<br />
22 And it is something that they track now.<br />
23 CHAIRMAN ANDERSON: I -- I go on with<br />
24 that, and I think the other <strong>Commission</strong>ers do, too. I<br />
25 think there needs to be a review or at least an
99<br />
1 evaluation by the CRD. I mean, we -- we are the<br />
2 product of one of those mergers into another agency,<br />
3 abolishment and merger into another agency. So, if<br />
4 somebody was tracking saying that the CRD needs to<br />
5 be -- their policies and procedures need to be<br />
6 evaluated, we no -- essentially no longer exist; we're<br />
7 part of TWC now.<br />
8 So, I think we need to take a look at<br />
9 that schedule to make sure that all the agencies,<br />
10 including the new ones, are on it, and particularly if<br />
11 they're new and they've never been evaluated, that --<br />
12 that we need to maybe move them up to the top of the<br />
13 list. I'm not sure how you come up with that list.<br />
14 MR. BABIAK: I know that about a year<br />
15 ago one agency, who was subject to review -- and<br />
<strong>16</strong> understand that the agencies reviewed last year were,<br />
17 in what I'll refer to as Year 6, meaning that as of<br />
18 last year every agency has been reviewed twice. And<br />
19 this particular agency had already been subjected to<br />
20 review one time. And when they were selected last<br />
21 year, they contacted us to say that "We are exempt<br />
22 from review."<br />
23 And I looked in the law and saw that the<br />
24 definition of employer includes state agencies and<br />
25 that the law also provides a definition of state
100<br />
1 agency, and the definition of state agency includes an<br />
2 agency in the executive branch, an agency in the<br />
3 judicial branch, and the State Bar of <strong>Texas</strong>. And so,<br />
4 by omission, you'll notice that the agencies in the<br />
5 legislative branch are not covered by Chapter 21. And<br />
6 that error was -- did not come to light the first time<br />
7 we reviewed that agency, at this point, seven years<br />
8 ago.<br />
9 CHAIRMAN ANDERSON: Maybe it was done on<br />
10 purpose by the Legislature.<br />
11 Becky, do you -- can you -- do you have<br />
12 a list of the new action items for next time?<br />
13 (Brief pause)<br />
14 CHAIRMAN ANDERSON: Or we can read it<br />
15 into the record when we reconvene after the Executive<br />
<strong>16</strong> Session. Do you want some time to --<br />
17 MS. SMITH: Yeah.<br />
18 CHAIRMAN ANDERSON: -- look at it?<br />
19 Okay.<br />
20 AGENDA ITEM NO. 11<br />
21 CHAIRMAN ANDERSON: We are -- if there's<br />
22 nothing else, we are going to adjourn and go into<br />
23 Executive Session and consider Item (a) Government<br />
24 Code Section 551.074, the Appointment, Employment,<br />
25 Evaluation, Reassignment, Duties, Discipline,
101<br />
1 Dismissal, Accomplishment, Performance, Goals, and<br />
2 Responsibilities of the <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong><br />
3 Civil Rights Division Director and Other Personnel;<br />
4 Item (b) Government Code Section 551.071(1)<br />
5 Contemplated Litigation or Pending Litigation of <strong>Texas</strong><br />
6 <strong>Commission</strong> on Human Rights, <strong>Texas</strong> <strong>Workforce</strong><br />
7 <strong>Commission</strong>, David Powell and Robert Gomez versus<br />
8 Marilou Morrison; John Benavides, et al. Versus <strong>Texas</strong><br />
9 <strong>Commission</strong> on Human Rights; Rodolfo Martinez versus<br />
10 <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>-Civil Rights Division;<br />
11 <strong>Texas</strong> <strong>Workforce</strong> <strong>Commission</strong>-Civil Rights<br />
12 Division/Raymond Henshaw and Mark Henshaw; <strong>Texas</strong><br />
13 <strong>Workforce</strong> <strong>Commission</strong>-Civil Rights Division on behalf<br />
14 of Gregory Collins versus Saratoga Property Owners<br />
15 Association, et al; Leslie -- Lester Taylor versus TWC<br />
<strong>16</strong> Cause No. D-1-GN-12-003645; and, finally, Government<br />
17 Code Section 551.071(2) All Matters Identified in This<br />
18 Agency Where the <strong>Commission</strong>ers Seek the Advice of<br />
19 Their Attorney as Privileged Communications.<br />
20 And the time now is 11:45.<br />
21 (Executive Session: 11:45 a.m. to<br />
22 12:41 p.m.)<br />
23 CHAIRMAN ANDERSON: Okay. The<br />
24 <strong>Commission</strong>ers concluded their Executive Session at<br />
25 12:40. We're back on the record and back in
102<br />
1 session -- open session at 12:41. There was no action<br />
2 taken, but we will ask that the TWC General Counsel<br />
3 review the transcripts of the gentlemen from South<br />
4 <strong>Texas</strong>' comments and for them to take appropriate<br />
5 action as they deem -- as they deem necessary.<br />
6 Anything else from the <strong>Commission</strong>ers?<br />
7 (No response)<br />
8 AGENDA ITEM NO. 12<br />
9 CHAIRMAN ANDERSON: Okay. Without<br />
10 objection, this meeting is adjourned.<br />
11 (Meeting adjourned: 12:42 p.m.)<br />
12<br />
13<br />
14<br />
15<br />
<strong>16</strong><br />
17<br />
18<br />
19<br />
20<br />
21<br />
22<br />
23<br />
24<br />
25
103<br />
1 C E R T I F I C A T E<br />
2<br />
STATE OF TEXAS )<br />
3 COUNTY OF TRAVIS )<br />
4<br />
5 I, Janis Simon, a Certified Shorthand<br />
6 Reporter in and for the State of <strong>Texas</strong>, do hereby<br />
7 certify that the above-mentioned matter occurred as<br />
8 hereinbefore set out.<br />
9 I FURTHER CERTIFY THAT the proceedings<br />
10 of such were reported by me or under my supervision,<br />
11 later reduced to typewritten form under my supervision<br />
12 and control and that the foregoing pages are a full,<br />
13 true, and correct transcription of the original notes.<br />
14 IN WITNESS WHEREOF, I have hereunto set<br />
15 my hand and seal this 24th day of <strong>January</strong> <strong>2013</strong>.<br />
<strong>16</strong><br />
17<br />
18<br />
19 ________________________________<br />
20 Janis Simon<br />
Certified Shorthand Reporter<br />
21 CSR No. 7076 - Expires 12/31/13<br />
Firm Registration No. 276<br />
22 Kennedy Reporting Service, Inc.<br />
10<strong>16</strong> La Posada Drive, Suite 294<br />
23 Austin, <strong>Texas</strong> 78752<br />
24<br />
25 Job No. 106334