Edward A. Johnson, Respondent, vs. Plasma Alliance, Relator, Minneapolis Commission on Civil Rights, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-99-1261

 

 

Edward A. Johnson,

Respondent,

 

vs.

 

Plasma Alliance,

Relator,

 

Minneapolis Commission on Civil Rights,

Respondent.

 

 

Filed May 23, 2000

Reversed

Schumacher, Judge

Concurring specially, Anderson, Judge

 

     Minneapolis Commission on Civil Rights

File No. 94116PA9

 

Scott E. Korzenowski, Christopher H. Yetka, Christopher L. Lynch, Lindquist & Vennum P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Johnson)

 

Elizabeth Misiaveg-Patel, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-3901 (for relator)

 

Jay M. Heffern, Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402-2453 (for respondent Minneapolis Commission on Civil Rights)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

SCHUMACHER, Judge

Relator Plasma Alliance challenges a decision of the Minneapolis Commission on Civil Rights (the commission).  The commission held that Plasma Alliance discriminated against respondent Edward A. Johnson based on his affectional preference.  Because the commission's decision is unsupported by factual findings or substantial evidence, we reverse.

FACTS

In 1989, Johnson attempted to donate plasma at the Plasma Alliance center in St. Paul.  As part of the intake procedure, Johnson was asked if he had had sex with another man since 1977.  Johnson answered yes to this question and was told that he would not be permitted to donate.  In 1993, Johnson attempted to donate plasma at Plasma Alliance's Minneapolis center.  The Minneapolis center refused to allow Johnson to donate because he was listed as a permanently-rejected donor. 

            In 1994, Johnson filed discrimination charges with the Minnesota Department of Human Rights and the Minneapolis Department of Civil Rights.  Johnson claimed that Plasma Alliance rejected him as a plasma donor because Plasma Alliance personnel perceived him to be a homosexual.  Johnson asserted that Plasma Alliance's rejection was discrimination based on his affectional preference.  Plasma Alliance denied the charges, maintaining that Johnson was disqualified from donating plasma because he was a high-risk individual under criteria promulgated by the Food and Drug Administration (FDA), specifically, men who have had sex with other men at least once since 1977. 

In 1995, the Minnesota Department of Human Rights dismissed Johnson's complaint.  The Minneapolis Department of Civil Rights made a probable-cause determination and referred the case to the commission for a hearing.  The commission later concluded that Plasma Alliance had refused to allow Johnson to donate plasma based on his affectional preference and awarded him $31,474.16 in damages and $20,757.84 in costs, disbursements, and attorney fees.

D E C I S I O N

            Minneapolis, Minn., Code of Ordinances § 141.60(b) (Supp. 1999) provides that judicial review of a final decision in a contested case is available in accordance with Chapter 14 of Minnesota Statutes, the Administrative Procedure Act.  Under the Act, a reviewing court may reverse an agency decision if the agency's findings, conclusions, or decisions are:  (1) in violation of constitutional provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) legally erroneous; (5) unsupported by substantial evidence; or (6) arbitrary and capricious.   Minn. Stat. § 14.69 (1998).  This court independently reviews all agency decisions on questions of law or statutory interpretation.  In re Dougherty, 482 N.W.2d 485, 488 (Minn. App. 1992), review denied (Minn. June 10, 1992).

Johnson claims that Plasma Alliance perceived him to be homosexual and rejected him as donor on that basis in violation of the Minneapolis civil rights ordinance prohibiting any public accommodation within the City of Minneapolis from discriminating against any person based on that person's affectional  preference.  Minneapolis, Minn., Code of Ordinances, Title 7, § 139.40(i) (1990).  Affectional preference is defined as "[h]aving or manifesting an emotional or physical attachment to another consenting person or persons, or having or manifesting a preference for such attachment, or having or projecting a self-image not associated with one's biological maleness or one's biological femaleness."  Minneapolis, Minn., Code of Ordinances, Title 7, § 139.20 (1990).

The commission found that Plasma Alliance discriminated against Johnson based on his affectional preference in violation of the ordinance.  Plasma Alliance argues that the commission's decision should be reversed because it is both arbitrary and capricious and unsupported by substantial evidence.  We agree the decision should be reversed because it is arbitrary and capricious.

An agency's decision is arbitrary and capricious if it represents the agency's will rather than its judgment, or if based on whim or devoid of articulated reasons.  Mammenga v. State Dep't of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989); Markwardt v. State Water Resources Bd., 254 N.W.2d 371, 374 (Minn. 1977).  The commission's order does not contain any findings of fact.  The commission's order stated:

This commission, after listening to the arguments and testimony offered * * * finds that Plasma Alliance did, in fact, discriminate against Complainant on the basis of his affectional preference.

 

This statement alone without findings is insufficient to support the commission's order that Plasma Alliance discriminated against Johnson based on his affectional preference.  On this basis, we conclude the commission's order is arbitrary and capricious because it is devoid of articulate reasons.  See Mammenga, 442 N.W.2d at 789.

Minnesota has adopted the three-step test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973) for resolving discrimination cases based upon claims of disparate treatment.  Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983); see also Potter v. LaSalle Court Sports & Health Club, 384 N.W.2d 873, 875 (Minn. 1986) (Title VII analysis is applicable to claims under Minneapolis civil rights ordinance).  The McDonnell Douglas test requires that (1) the plaintiff must prove a prima facie case of discrimination, (2) then the defendant must offer legitimate, nondiscriminatory reasons for its actions, and (3) the plaintiff must then prove that the reasons given were merely a pretext for discrimination.  McDonnell Douglas, 411 U.S. at 802-04, 93 S. Ct. at 1824-25.

Johnson claims that he was rejected on the basis of his "perceived" homosexuality based on the following facts: (1) that Plasma Alliance personnel told him that he could not donate plasma because they believed that he was a homosexual; (2) medical personnel testified that Plasma Alliance may take a person's mannerisms into account when determining if someone is truthfully answering medical screening questions; (3) the words "suspect male homosexual" appeared on his donor screening card; and (4) he was not permitted to donate plasma in 1993 at the Minneapolis plasma center because his donor file stated that he was permanently rejected because he was in a high-risk group, "suspect male homosexual."  Plasma Alliance argues that despite these facts, Johnson's claim fails because he did not make a prima facie case of discrimination.

In order for Johnson to prevail on his claim of discrimination, he is required to present a prima facie case of discrimination.  If he is unable to do so, then his discrimination claim fails as a matter of law, and no amount of evidence can support the commission's decision.

In adopting the McDonnell Douglas formula for discrimination claims, the Minnesota Supreme Court recognized that the prima facie elements vary from case to case because of different factual circumstances.  Danz v. Jones, 263 N.W.2d 395, 399 (Minn. 1978).  Generally an individual claiming discrimination based on disparate treatment must show that he or she is a member of a protected class and is eligible for benefits otherwise available to other members of the class.  See Kepler v. Kordel, Inc., 542 N.W.2d 645, 648 (Minn. App. 1996) (adopting generalized McDonnell Douglas prima facie case requirements in marital-status discrimination case), review denied (Minn. Mar. 19, 1996); Miller v. Centennial State Bank, 472 N.W.2d 349, 352-53(Minn. App. 1991) (requiring that claimant show she was qualified for position in order to establish prima facie case of disability discrimination).

Johnson's claim that Plasma Alliance perceived him to be a homosexual satisfies the requirement of membership in a protected class.  Neither party disputes that the Minneapolis civil rights ordinance prohibits discrimination based on affectional preference.  But Johnson is unable to show that he was otherwise qualified to give plasma.  On the contrary, Johnson is specifically disqualified from donating plasma.  Johnson admits that he has had sex with another man at least once since 1977.   By federal mandate, men who have had sex with other men since 1977 are not eligible for plasma donation.

Plasma Alliance's donor-screening questionnaire conforms to federal Human Immunodeficiency Virus (HIV) prevention criteria meant to protect the nation's blood and plasma supply.  Plasma centers, including Plasma Alliance, are licensed by the United States Secretary of Health and Human Services and are subject to federal supervision under the Public Health Services Act, 42 U.S.C. § 262(a) (1998).  The Secretary of Health and Human Services has charged the FDA with establishing standards for collecting blood and plasma.  21 C.F.R. § 5.10(a)(5) (1998).  The FDA has established minimum standards for the collection of plasma and for donor eligibility.  21 C.F.R. §§ 640.60-.76 (1998).   For example, a licensed physician or an individual under a physician's supervision must determine the suitability of a donor based on medical history questions, tests, and a physical examination.  21 C.F.R. § 640.63(a) (1998).

Since 1983, the FDA has disseminated criteria to blood and plasma centers designed to prevent the transmission of HIV.  General Biological Standards, Additional Standards for Human Blood and Blood Products, 51 Fed. Reg. 6362, 6362 (1986).   These criteria exclude individuals who are at increased risk for HIV from donating plasma.  Office of Biologics Research and Review, FDA, Additional Recommendations for Reducing Further the Number of Units of Blood and Plasma Donated for Transfusion or for Further Manufacture by Persons at Increased Risk of HTLV-III/LAV Infection, 1 (1986) (hereinafter 1986 Recommendations); Center for Biologics Evaluation and Research, [FDA] Revised Recommendations for the Prevention of Human Immunodeficiency Virus (HIV) Transmission by Blood and Blood Products, 7 (1992) (hereinafter 1992 Recommendations).

Any man who has had sex with another man even once since 1977 is considered a high-risk donor and should not donate plasma. 1986 Recommendations at 1; 1992 Recommendations at 3.  This criterion, with many others, was created to protect the nation's blood supply. 1986 Recommendations at 1; 1992 Recommendations at 1.  Plasma Alliance based its medical history screening questions on these and other FDA criteria.  See 21 C.F.R. § 640.63 (1998); 1992 Recommendations at 7; 1986 Recommendations at 1.  Because of Johnson's answers to Plasma Alliance's questions based on FDA criteria, Johnson is not qualified to donate plasma.

Johnson characterizes this case as involving a "perceived" stereotype and speculates that Plasma Alliance may have refused to allow him to donate plasma based on his mannerisms and perceived homosexuality.  The record shows, however, that Johnson was not allowed to donate in 1993 based on a computer entry that indicated he was permanently excluded from plasma donation because he was a high-risk donor.  Johnson admits that no one at the Minneapolis facility attempted to judge his sexual preferences.

This is not a case in which a heterosexual man was wrongly labeled because of his mannerisms, nor a case involving a celibate homosexual man who was not allowed to donate plasma because of his homosexuality.  Johnson was not qualified to donate plasma because of his sexual activity, not because of his affectional preference.  Neither his affectional preference nor his "perceived" homosexuality, alone, would have disqualified Johnson from plasma donation.  Regardless of any perception of Johnson's sexual orientation, the record establishes that he admitted to conduct disqualifying him under FDA mandates and therefore he was not qualified to donate plasma.  Johnson has not presented a prima facie case of discrimination.

Plasma Alliance also seeks costs for the initial litigation and for this appeal.  We decline to review any request for costs incurred before the commission because Plasma Alliance did not submit information on the amounts sought.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (an issue not briefed on appeal is waived).   Any request for costs incurred on appeal must be served and filed in accordance with Minn. R. Civ. App. P. 139.03.

The commission's failure to articulate adequate reasons for its decision leads us to conclude that the finding of discrimination is arbitrary and capricious.  We conclude as a matter of law that Johnson cannot establish a prima facie case of discrimination because he is not qualified to be a plasma donor.  Accordingly, we reverse the commission's decision.  We also reverse the commission's award of costs, disbursements, and attorney fees.

            Reversed.

 

 

 

ANDERSON, Judge (concurring specially)

            While I join in the majority opinion, I write separately to note the outrageous disregard of the rights of relator Plasma Alliance by the Minneapolis Commission on Civil Rights (commission).[1]

            It is difficult to fully catalog the deficiencies in the proceedings before the commission.  Among other things, although the majority opinion reaches the result here on other grounds, the commission took ten months to decide a summary judgment motion without ever ruling on a key issuedo federal guidelines designed to protect public health preempt the jurisdiction of the commission?  For that matter, the commission never addressed the merits of the arguments of the parties. The commission's March 30, 1998, order compelling discovery did not list the potential sanctions for noncompliance nor set a date for compliance.  See Beal v. Reinertson, 298 Minn. 542, 544, 215 N.W.2d 57, 58-59 (Minn. 1974) (dismissal should not be imposed when the court does not specify a date for compliance or warn of potential sanctions).  The commission's June 21, 1999, order does not contain any findings of fact.  See Mammenga v. Department of Human Servs., 442 N.W.2d 786, 789 (Minn. 1989) (an agency decision may be arbitrary and capricious when it is devoid of articulated reasons).

            Finally, the commission's award of $31,474.16 in damages is not supported by any findings and was apparently arrived at by calculating the maximum number of donations respondent could make through the year 2011, despite respondent's own testimony that he never planned to donate plasma more than a few times per year.  Further, the commission mysteriously ignored respondent's own admission that he was a disqualified donor by virtue of federal guidelines designed to protect the blood supply and public health.

            The actions of the commission, when examined in total, add up to a disregard of basic principles of due process, objectivity and fairness.  Given the approach adopted by the commission in this case, an independent hearing examiner would have been advisable.  See Shockency v. Jefferson Lines, 439 N.W.2d 715, 717 (Minn. 1989).

[1] Counsel for respondent Edward Johnson, to whom fell the difficult chore of defending the actions of the commission in this case, accurately noted the failure of relator Plasma Alliance to respond to discovery. This special concurrence should not be viewed as an endorsement of relator's refusal to turn over discovery materials pursuant to commission order.  That issue could have been routinely dealt with by prohibiting the use of those materials at the hearing and, indeed, at one point there was a commission order to this effect.  That discovery dispute, incidentally, centered around whether or not a protective order should be issued by the commission allowing persons other than counsel for respondent Johnson to review procedural manuals. There is little in the record to indicate that the commission ever considered the merits of relator's argument.