VICTORIA L. HAMER, Complainant,

VS.

UNITED PARCEL SERVICE, INC., Respondent.

CONCLUSIONS OF LAW

1. The complaint was timely filed, processed and the issues in the complaint are properly before the hearing officer and ultimately before the Commission.

2. United Parcel Service, Inc. is an "employer' and %person" as defined in Iowa Code section 601A.2(2) and (5)(1983), and is, therefore, subject to Iowa Code §601A.6 and does not fall under any of the exceptions of §601A.6(5).

3. The applicable statutory provision is as follows:

601A.6 Unfair employment practices.
1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment, or to otherwise discriminate in employment against any applicant for employment or any employee because of the... sex .... of such applicant or employee, unless based upon the nature of the occupation...

4. The United States Supreme Court set out the basic allocation of burden and order of presentation of proof in a case alleging discriminatory treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In Texas Department o Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.CT 1089, 1093, 67 L.Ed. 2d 207, 215 (1981), the court summarizes that burden and order from McDonnell as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection, "Id. at 802, 5 FEP Cases, at 969. Third , should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804, FEP Cases at 907.

This basic allocation of burdens and order of presentation of proof was adopted by the Iowa Supreme Court in Linn Cooperative Oil Co. v. Quigley, 305 N.W.2d 729, 733 (Iowa 1981)

5. The Complainant carries this initial burden of offering evidence adequate to create an inference that actions by a respondent were based on a discriminatory criterion which is illegal under the law. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358,97 S.Ct.1843 (1977). In evaluating the evidence to determine whether the Complainant has succeeded in establishing that inference, which is referred to as a "prima facie" case, the Commission and the Iowa Court have relied on McDonnell Douglas. The criteria established in McDonnell Douglas, however, were specific to a qualified applicant of a protected class who applied for a job and was rejected despite the qualification. Since then the Supreme Court has made it clear that the McDonnell Douglas criteria were to be neither "rigid, mechanized, or ritualistic. "Furnco Const Corp. v. Waters, 438 U.S. 567,98 S.Ct.2943 (1978). Courts have been flexible in adopting the criteria to other types of cases. In the case at issue, the focus of the evidence centers around the charge of termination based on sex discrimination.

6. Hamer is a female and, therefore, a member of a protected class; she was qualified for her job and wished to continue in that job; she was nevertheless terminated from that job; and, was the only employee terminated for such reasons and treated in that specific way. Hamer has established a prima facie case.

7. The burden of persuasion remains with the Complainant. However, a prima facie case creates a .presumption" of discrimination which, if believed, will require a finding of discrimination. Burdine, 450 U.S.248, 101 S.Ct. 1089. If the employer desires to dispel this presumption, evidence must be produced showing "some legitimate, nondiscriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 803,93 S.Ct. at 1824,36 L.Ed.2d at 668. The employer need not persuade the trier of fact that it was action motivated by the proffered reason.

It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiffs rejection ... (footnotes omitted).

Burdin, 450 U.S.at 254,101 S.Ct. 1094.

8. Respondent terminated Hamer because they Called her as an "on-call" employee three days in a row and were unable to reach her. She was terminated for "no call/no show.

9. Where the Respondent has been successful in meeting the burden of production, the Complainant may then attempt to prove the reasons offered by Respondent were not its true reasons, but were a pretext for discrimination. Burdine, supra; and, McDonnell Douglas, supra at 804. As the Court noted in Burdin, the Complainant may succeed either directly by persuading the Commission that a discriminatory reason more likely motivated the Respondent or indirectly by showing that the employer's proffered explanation is unworthy of credence.

10. UPS did not have a written policy nor a contractual provision in the union contract requiring employees who were in the lower 10 % in seniority (utility drivers) to stand by their phones between 7-8 A.M. in case they were needed. It was assumed that if they wanted the work, they would make themselves available. If it was known that drivers were needed the following week, they would be scheduled on the previous Friday. On-call drivers were only called during the week if there were last minute absentees or additional work. If on-call employees not scheduled on Fridays did not receive a call during the week, they were considered on lay-off for purpose of unemployment benefits.

Hamer was a utility driver. She was not scheduled on Friday for driving the week of March 19, 1984. Employees on lay- off are employees for whom no work is anticipated for the following week. The on-call employees are most likely the ones to be called. During the seven prior weeks, of the seven utility drivers, Hamer was the only employee on-call for all of those weeks. (R's Exh. GG) Actually, Hamer was on lay-off March 12 and 14. She drove on March 13, 15, and 16. The 16th was the Friday before the series of calls to which there was no response. (R's Exh. NN) As a matter of fact, the record indicates that Hamer worked all of the prior week ending March 10.

It is noted that Respondent submitted the work schedules into evidence for weeks ending 2-4-84 through 3-17-84, but either refused or failed to produce the record for the week ending 3-24-84, the week in issue, even though directly ordered to do so by the Hearing Officer. (See letter dated February 10, 1988, from Attorney Harvey) 240 Iowa Admin. Code 1.3(5) clearly requires the preservation of records by a respondent until a complaint has been finally adjudicated. The fact that the record for the critical week has not been produced into evidence leaves open the possibility that work was not available on the dates Hamer was called. The reason for termination was that she was not available for work which UPS had available (R's Exh. V) The conclusion is that the record requested would have been adverse to UPS.

11. There is conflicting evidence by UPS as to whether or not the 1982 termination/reinstatement was considered in the 1984 termination. The union contract requires at least one written warning notice prior to termination. The contract also Provides that such a warning notice shall not remain in effect for more than nine months. Hamer received a "final warning letter" dated September 7, 1982. Since March 21, 1984, the date of Hamer's termination, was more than nine months after receipt of the final warning notice, the warning notice should not have been considered in the 1984 termination. UPS argues that the letter of agreement of 1982 reinstating Hamer was not a final warning letter. It is agreed, however, the letter of agreement is specifically based on acceptance of a final warning letter. UPS argues further that the provision in the letter, i.e., "I understand that under the letter [final warning letter] the company can discharge me immediately for the same offense, " negates the contractual provision that a warning notice *shall not remain in effect for a period of more than nine (9) months from date of said warning notice." Such an argument is not reasonable under the terms of the contract. Even RICHARDSON, UPS personnel manager, admits there was nothing in the letter of reinstatement that extends the nine month period. (T 756, 834) Termination could certainly occur for the same offense without further warning if it occurred within the 9 months. The interpretation given the letter of agreement by UPS would mean Hamer could have a perfect record for 20 years and then be terminated for the Sam offense committed back in 1982 without another warning notice. That is not credible. The 1982 incident should have no bearing on the 1984 incident. As a matter of fact, Hamer's record had been good since the 1982 incident and no additional warnings had been issued, a requirement prior to termination. Neither procedure, that of issuing a final warning notice before termination under the contract, nor the 4-step discipline procedure as set forth by Carnahan was followed in this situation. Furthermore, Section 1, Article 6, of the contract, specifically provides that the "Employer agrees not to enter into any agreement or contract with their employees ... which in any way conflicts with the terms and provisions of this agreement. Any such agreement shall be null and void." (R's Exh. LL)

It is difficult to reconcile Articles 3 and 17 of the contract. Article 3 - Seniority, Section 3 (d) provides for broken seniority and termination, inter alia, the employee fails to report to work for 3 consecutive days and does not properly notify the employer at the beginning of starting time on the 3rd day. Article 17 Discharge or Suspensions, provides for notice prior to discharge or suspension with noted exceptions which do not include the failure to report for 3 consecutive days without proper notification. It is noted that Article 17 provides that there are other offenses of extreme seriousness[emphasis added] that may result in discharge without a warning letter. If an employee fails to appear for work three days in row and that employee is scheduled to be there, such a failure could be considered extremely serious. If someone is not scheduled to work, they cannot fail to appear for work. The worst Hamer could have been accused of is failure to be by the phone during the call period on Monday. But there is no rule, contract, or written policy that "on call* employees are to be by their phones during the call period. She had been by her phone the prior six weeks. The record shows her on-call and also that she worked.

The second day, Tuesday, she was by the phone and UPS chose to call a different number, one not provided to them by Hamer. The testimony on Tuesday's phone call is not credible, however, since the alleged calls were made prior to 8 A.M. and the telephone company said the phone number would not have been available until 9:00 A.M. Tuesday. There would be no logical reason to request the new phone number on Monday, since they did not know whether Hamer would be needed Tuesday until Tuesday morning.

It is not possible to deduce what really happened on Wednesday morning except that UPS, by their own admittance, called a number not provided them by Hamer. The failure in this instance is merely failure to provide a current phone number hardly an act of extreme seriousness which would result in termination without warning. Hamer voluntarily called UPS on Wednesday afternoon without knowing UPS had tried to reach her that morning and Tuesday morning.

11. On March 19, 1984, after the first attempt to call Hamer, Carnahan wrote a memo to Taylor, labor relations manager, to inform him of his failure to reach Hamer. [Emphasis added]

On March 20, 1984, after the second attempt to reach Hamer, Carnahan wrote a memo to Millard, the center manager, documenting that call. (R's Exh WW) On March 21, 1984, Millard wrote a memo to Taylor, notifying him that an attempt was made to reach Hamer Wednesday A.M. (RIs Exh. PP)

On March 21, 1984, Carnahan wrote another memo to Millard documenting his conversation with Hamer as a result of her call to him on Wednesday afternoon. (R's Exh U)

The uniqueness of this series of memos is that they were signed, witnessed and notarized. The witnesses, however, did not sign before the notary. In 1982, Carnahan wrote a similar series of signed, witnessed and notarized documents reporting on Hamer's absences. It was agreed generally that such procedure was not customary at UPS and had never been used with any other employee.

The explanation of Hamer's termination as proffered by UPS in not credible. It is concluded that the decision to terminate Hamer was made on or before March 19, 1984, and phone calls were structured in such a way that UPS would have documentation to justify that termination.

12. The next question to be addressed is whether or not that termination was because Victoria Hamer is female. No males were terminated for absenteeism except for the male terminated in January 1988, the time of this Hearing. That termination is not considered comparable under such circumstances. Ver Steeg, management for about 12 years, admitted being biased against female employees. He didn't want them hired and didn't want them to be given pregnancy leaves. There were only 3 female drivers at UPS - Ottumwa: Connie Moss, Cheryl Sandifer and Hamer. Moss acknowledged the sexual remarks by the male drivers but did not consider them offensive. For the most part she would handle such incidents on her own. Sandifer said only Ver Steeg commented on her pregnancy. She did acknowledge one incident of sexual invitation by Overturf and had heard wolf whistles. She was not offended and considered such acts as just teasing.

Employees recognized among the group of "teasers," were Overturf, Popelka, Haas, Bates and Buckley. Witnesses Buckley, Popelka, and Haas were very nervous during the Hearing and less than credible witnesses. Overturf was not a credible witness. Management did not consider complaints by the women as serious and allowed an atmosphere where women could be treated primarily as sex objects, certainly not considered with equality. Moss was given a behind-her-back nickname which was disrespectful. Sandifer was allowed time off whenever she wanted as long as there was a junior male driver available. Hamer and Janice Smith, a part time employee, had both been thrown into a storage closet and held there against their wills. Although Moss, Sandifer and Smith were generally not offended by such acts, Hamer was offended. When Hamer was teased, she became angry and quite vocal. Even when Ver Steeg was aware of incidents, he only talked with the guys but didn't consider the talk as disciplinary nor their actions as problems. Carnahan admitted that there may have been complaints by the women, but "what do you do?" Millard, the other member of management was one of the persons who harassed Hamer. Although many specific acts occurred prior to the statutory 180 days, some acts were continuing and the general atmosphere of sexual harassment did not change until after the filing of Hamer's complaint.

It is concluded that sex was a determining factor in Hamer's termination and that UPS violated Iowa Code Chapter 601A in that termination.