This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-96-1246

D. Coleman Hollie,

Respondent,

vs.

Metropolitan Council Transit Operation,

(f/k/a Metropolitan Transit Commission),

Relator,

Minneapolis Commission on Civil Rights,

Respondent.

Filed December 24, 1996

Affirmed

Kalitowski, Judge

City of Minneapolis Commission on Civil Rights

Lawrence R. Altman, Altman & Kenas, P.L.L.P., 900 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Respondent Hollie)

Kevin P. Staunton, Craig W. Trepanier, Popham, Haik, Schnobrich & Kaufman, Ltd., Piper Jaffray Tower, Suite 3300, 222 South Ninth Street, Minneapolis, MN 55402 (for Relator)

Considered and decided by Parker, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Relator Metropolitan Council (Metropolitan) challenges: (1) the exercise of jurisdiction by the Minneapolis Commission on Civil Rights (Commission) over Metropolitan for alleged discriminatory employment practices; (2) the Commission's determination that Hollie has established a racial discrimination claim based on disparate disciplinary treatment; and (3) the Commission's award of attorney fees. We affirm.

D E C I S I O N

I.

Metropolitan argues the Commission "has no subject matter jurisdiction to order relief against another political subdivision such as the Metropolitan Council." We disagree. Subject matter jurisdiction refers to the power of a court to hear and determine the cause of action before it. Norris Grain Co. v. Nordaas, 232 Minn. 91, 111, 46 N.W.2d 94, 106 (1950). Hollie's claim of racial discrimination fell within the subject matter jurisdiction of the Commission, which is empowered by Minneapolis city ordinance section 141.50 to hear racial discrimination complaints.

Metropolitan's argument goes to the issue of personal jurisdiction, which involves "a court's power to decide the rights and interests of the parties in a lawsuit." H.A.W. v. Manuel, 524 N.W.2d 10, 12 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995). Because the requirement of personal jurisdiction represents an individual right, it may be waived. North Cent. Servs., Inc. v. Eastern Communications, Inc., 379 N.W.2d 708, 710 (Minn. App. 1986). Metropolitan did not raise the issue of jurisdiction until the Commission concluded its hearing. By not raising the issue in a timely fashion, Metropolitan waived its right to contest the personal jurisdiction of the Commission.

II.

Section 141.60 (b) of Minneapolis Code of Ordinances provides that judicial review of an agency decision in a contested case will be held in accordance with the Administrative Procedure Act. Under the Administrative Procedure Act, a reviewing court will not reverse an administrative agency decision unless the decision reflects an error of law, the determinations are arbitrary and capricious, or the findings are unsupported by substantial evidence. Minn. Stat. § 14.69 (d), (e), (f) (1996). Under the substantial evidence standard, the reviewing court will affirm the agency's decision if, in considering the entire record, it is supported by evidence that a reasonable mind might accept as adequate. Minneapolis Police Dep't, 425 N.W.2d at 239.

Because Hollie's claim of racial discrimination is based on disparate disciplinary treatment by his employer, it is governed by the three-part test established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under that test, an employee must first establish a prima facie case of discrimination by a preponderance of the evidence. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986). The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the action. Id. If the employer can meet this burden, the employee has an opportunity to demonstrate that the employer's articulated explanation is a mere pretext for discrimination. Id.

The Commission found Hollie established a prima facie case of discrimination by showing he is a member of a protected class, was discharged according to Metropolitan's policy, and other similarly situated nonminority employees were not discharged. Metropolitan asserts Hollie failed to establish a prima facie case of discrimination because he did not prove he was qualified to be a bus driver. To support its position, Metropolitan cites Villarreal v. Independent Sch. Dist. No. 659, 520 N.W.2d 735, 738 (Minn. 1994), where the supreme court stated that a prima facie claim of racial discrimination requires the discharged employee to prove that he is qualified for the position. Metropolitan's reliance on Villarreal is misplaced.

First, the evidence here did not establish that assaulting a passenger made Hollie unqualified to be a driver. There was evidence that Metropolitan reinstated other discharged drivers who had committed assaults. Second, Villarreal had been abusive toward students and administrators for an extended period of time while this is the only incident involving a passenger in Hollie's 11 years of service at Metropolitan. Third, Villarreal involved a determination that Villarreal was collaterally estopped from relitigating the question of his qualification. Here, Hollie's qualification to drive has never been litigated.

Once an employee establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory basis for the termination. Here, Metropolitan claims it refused to reinstate Hollie because Hollie did not express remorse for assaulting a passenger and did not assure Metropolitan that he would not engage in such conduct in the future.

The burden, therefore, shifted back to Hollie to demonstrate, by a preponderance of the evidence, that these articulated reasons were merely a pretext for discrimination. Hollie may meet this burden by either persuading the trier of fact that it is more likely Metropolitan was racially motivated or that Metropolitan's proffered explanation is unworthy of credence. Shockency v. Jefferson Lines, 439 N.W.2d 715, 719 (Minn. 1989). Consistent with Hasnudeen v. Onan Corp., 531 N.W.2d 891, 894 (Minn. App. 1995), we decline to apply the more rigid federal standard established in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742 (1993) (requiring the employee to demonstrate both the falsity of the employer's reason and that discrimination was the real reason).

After examining all the evidence presented at the hearing, the Commission found Hollie sustained his burden of proving Metropolitan's articulated reason for his discharge was unworthy of credence. In doing so, the Commission specifically found that testimony offered by Metropolitan was not credible. The Commission further found Metropolitan's written policy does not require a discharged driver to promise Metropolitan prior to reinstatement that he would not repeat the prohibited conduct in the future and that the considerations for reinstatement were not equitably applied to Hollie. Because we must give due deference to the Commission's determination of witnesses' credibility and to the Commission's findings of fact, we conclude substantial evidence exists to support the Commission's determination that Metropolitan unlawfully discriminated against Hollie. See Prescott v. Moorhead State Univ., 457 N.W.2d 270, 272 (Minn. App. 1990) (stating the Commissioner's findings of fact are entitled to deference).

III.

Section 141.50 (m) of the Minneapolis Civil Rights Ordinance provides that a hearing committee may order the respondent to pay reasonable attorney fees to an aggrieved party who has suffered discrimination. Hollie's attorney sought to recover $52,714.50 in attorney fees, and the Commission awarded him $49,686.71. Metropolitan challenges the Commission's award of attorney fees.

In calculating the attorney fees, the Commission, following Specialized Tours, Inc. v. Hagen, 392 N.W.2d 520, 542 (Minn. 1986), multiplied the number of hours reasonably expended on the litigation by a reasonable rate. In establishing the reasonable rate, the Commission considered such factors as the novelty of the issues, the skill required, and the experience and reputation of the attorneys. Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993). In addition, the Commission considered the time and labor required, the value of the interest involved, and the results obtained. Bloomington Elec. Co. v. Freeman's, Inc., 394 N.W.2d 605, 608 (Minn. App. 1986).

Metropolitan contends Hollie's attorney fees were excessive and duplicative. The Commission noted Mark A. Greenman's affidavit, which states "those hours which are arguably excessive and redundant have been deleted from the hours for which payment is sought." The Commission gave credence to the supporting affidavit regarding Mr. Greenman's expertise in the area of employment law, and concluded "a considerable reduction in the requested attorney's fees would not be appropriate." However, the Commission did find the submitted statement of hours included some duplicative billings and reduced the requested attorney fees from $52,714.50 to $49,686.71. Under these facts, we cannot conclude the Commission abused its discretion in awarding attorney fees.

VI.

Finally, Metropolitan argues the three-member panel of the Commission was not an impartial body, and in contested employment discrimination hearings, independent hearing examiners should be appointed. The supreme court specifically addressed this issue and held that, because the Commission acts as judge, not prosecutor, it is an impartial body. Minneapolis Police Dep't, 425 N.W.2d at 241. The court further held that, in the absence of evidence demonstrating bias on the part of the three panel members, the appointment of an independent hearing examiner is not required. Id. Because Metropolitan did not present any evidence of bias on the part of the panel members, we cannot conclude the Commission was required to appoint an independent hearing examiner.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.