Case of the Month: April 2010

Mining company Unimin Corp. to pay $42,000 to settle charge of discrimination by employee of Mexican origin

CASE # 52368, Closed 3-22-10

Charging Party

Joseph Martinez
Mankato, MN


Unimin Corp.
258 Elm St.
New Canaan, CT 06840

The following information is a summary of the department's findings and contains excerpts from other public documents relevant to this case.

Factual Basis of the Allegations—What the Charging Party Alleged

Joseph Martinez had worked at Unimin Corp.'s office in Kasota, MN for more than two years, most recently as a maintenance worker. During that time, he was subjected to harassment and differential treatment because of his Mexican origin. On many occasions, his supervisor would call him "little Mexican." One day he found a note from his supervisor in his time-card slot, addressed to "Mexican." He complained about national origin harassment to the plant manager and another supervisor, showing them the note. "It's not a big deal," and the note was not meant for him, he was told. He also raised the issue with a company division manager, who said he had already spoken to the plant manager about the matter. "Leave it alone," the division manager advised him. Although Martinez did not work with the supervisor who had harassed him on a regular basis, when their schedules coincided, the supervisor continued to call him "little Mexican," and to check up on him frequently and question his work. He did not treat white employees in this manner.

About two months after the time-card slot incident, Martinez complained to several supervisors that he was being treated differently than white employees over attendance issues. He had received a written warning from a supervisor—to whom he had previously complained about the note—for being late. Yet white employees who had been late many more times had not received warnings. It was unfair that he was being punished for the same things white employees do, and discriminatory, Martinez told the division manager. The manager told him he was being punished because he was tardy more often and took more sick days than anyone else, which was not true.

One day in May 2008, Martinez asked the plant manager if he could take a particular Friday off, several weeks in the future. The plant manger told him the absence would be unexcused and he would lose a bonus, but approved the absence. After Martinez took the day off, he received another warning for being a no-show on the day in question. When he complained that white employers are frequently given excused absences for future dates when they request them, the plant manager only laughed.

On August 19, 2008, the company told Martinez he was fired, because he had been late to work again.

Martinez filed a charge with the Minnesota Department of Human Rights, alleging that he had been harassed because of his Mexican national origin, and that his employer had engaged in reprisal by disciplining him for attendance issues, because he had complained about discrimination.

Summary of the Commissioner's Memorandum—What the Department's Investigation Found

In answering the charge, the company argued that Martinez had been excessively absent, and that he had been disciplined, from the initial warnings up to and including his termination, according to the terms of a collective bargaining agreement.

The Department of Human Rights interviewed witnesses at the Kasota, MN office of this Connecticut-based mining company, and reviewed the absences and disciplinary actions taken for 26 other employees.

With respect to Martinez's claim that his supervisor had harassed him verbally and in writing because of his national origin, the department did not find probable cause to support the harassment claim. When the company received Martinez's complaint, it investigated promptly. The company determined that the offending note was not meant for Martinez and had reached him only accidentally; nonetheless, it disciplined the offending supervisor and took steps to prevent future occurrences.

However, the department found probable cause to believe that Martinez had been treated differently than coworkers with regard to discipline for tardiness and time off for illness, and that the differences were more likely than not motivated by Martinez's national origin. Evidence showed that supervisors treated coworkers more leniently than they did the charge party in regard to the number of times tardy or absent that would trigger a disciplinary action. In addition, evidence showed that coworkers were given more consideration for medical conditions.

The department determined that while jokes and other behavior mocking the charging party's national origin did not rise to the level of illegal harassment under the Minnesota Human Rights Act, there was sufficient evidence to conclude that the Martinez's national origin influenced supervisors to be less lenient toward him than toward similarly situated peers who were not of his national origin.

There was not sufficient evidence to support Martinez's claim of illegal reprisal, the department determined. The company had already given Martinez a second written warning over attendance issues before he raised the issue of harassment and discrimination, the department noted. Because this adverse action began before Martinez made his complaint, it was not possible to show that there was a connection, and it was not reasonable to conclude that reprisal had occurred.

The company appealed the department's finding that it had engaged in illegal discrimination by disciplining Martinez more harshly than other employees who were not of his national origin. After reviewing the evidence, the department affirmed its original determination.

Terms of Settlement

In a negotiated settlement, Unimin Corp. agreed to pay Joseph Martinez $42,000, to affirm its commitment to comply with the Minnesota Human Rights Act, and to provide its Minnesota managers, supervisors and human resources personnel with at least one hour of training on the fair employment provisions of the Act. Martinez agreed that he will not seek or apply for future employment with Unimin, and that the company will not rehire him should he reapply.

The Department of Human Rights publishes information about selected cases and settlement agreements, including its "Case of the Month," as part of its mandate under the Human Rights Act to "educate to eliminate" discrimination. Settlement agreements do not constitute an admission of any liability, an admission of a violation of the Minnesota Human Rights Act or any other law, or an admission of wrongdoing by the respondents.