VICTORIA L. HAMER, Complainant,

VS.

UNITED PARCEL SERVICE, INC., Respondent.

REMEDIES

Iowa Code Section 601A. 15(8) (1983), provides as follows:

8. If upon taking into consideration all of the evidence at a hearing, the Commission determines that the Respondent has engaged in a discriminatory or unfair practice, the Commission shall ... issue an order requiring the Respondent to cease and desist from the discriminatory or unfair practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this chapter...

The purpose of awarding damages to Complainants injured by unlawfully discriminatory acts is to restore persons to the position they would have been in had the discriminatory act not occurred. Foods, Inc. v. Iowa Civil Rights Commission. 318 N.W.2d 162,171 (Iowa 1982). The Commission has followed the precedent established in Amos v. Prom, Inc., 115 F. Supp. 127 (D.C. Iowa 1953) as to theories on remedies. It has awarded damages for emotional distress in previous discrimination cases. See Wilder v. Wetherbee, 4 Iowa Civil Rights Commission Case Reports 162 (1979); Reece v. Sheraton Inn, #6515; Robinson v. Cunningham, #8629; and Kies v. Ramada Inn, #5780.

The purpose of Chapter 601A is remedial in nature and the Commission is granted a broad range of remedies. Section 601A. 15(8) includes the following provisions:

(1) .... reinstatement or upgrading of employees with or without pay...

(5) Extension to all individuals of the full and equal enjoyment of the advantages, facilities, privileges, and services of the Respondent denied to the Complainant because of the discriminatory or unfair practice.

(6) Reporting as to the manner of compliance.

(7) Posting notices in conspicuous places in the Respondent's place of business in form prescribed by the Commission and inclusion of notices in advertising material.

(8) Payment to the complainant of damages for an injury caused by the discriminatory or unfair practice which damages shall include but are not limited to actual damages, court costs and reasonable attorney fees.

Calculating the precise sum which is most appropriate to make complainant whole is difficult. The discretion to fix the amount of such damages is in the fact finder who has witnessed the demeanor of the parties. Seaton v. Sky Realty Company Inc., 491 F.2d 634,637 (7th Cir. 1974). The fact that it is difficult does not relieve the commission of its burden of fashioning a remedy which is commensurate with Complainant's emotional and mental injury. See Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836,845 (Iowa 1980).

In the case at issue, Hamer requests reinstatement to employment at UPS with retroactive seniority, including the right to bid into a route which she would have been able to bid into if she had not been illegally discriminated against, back pay, front pay until she is reinstated, and reimbursement for lost insurance benefits. She also requests reimbursement for attorney fees incurred at the Job Service Hearing, attorney fees for the civil rights complaint, and emotional distress damages.

REINSTATEMENT, BACK/FRONT PAY, MEDICAL COSTS

IT IS CONCLUDED that Hamer should be reinstated to employment with UPS-OTTUMWA with retroactive seniority including the right to bid into a route which she could have bid into had she not been terminated.

IT IS ALSO CONCLUDED that Hamer should be awarded back pay beginning March 20, 1984, and continuing until her reinstatement, as ordered, takes place. Unemployment received and interim earnings should be deducted from any back pay. The rate of back pay should be based on her own record in conjunction with White's record as projected during the subsequent years. Interest at the statutory rate from the date of filing the complaint until paid in full should be awarded.

IT IS FURTHER CONCLUDED that Hamer shall be reimbursed for insurance-covered actual costs paid and not reimbursed since termination.

Counsel are ordered to submit a stipulation as to back pay. Counsel shall also stipulate to reimbursed actual medical costs. The ordered stipulations are due in the office of the Hearing Officer 15 days prior to the Commission meeting at which this proposed decision will be considered.

ATTORNEY FEES

Attorney fees for the Job Service hearing are denied. The Commission should refrain from ordering attorney fees for work done before another governmental agency. Attorney fees for work on this case will be considered after the final Commission decision.

DAMAGES FOR EMOTIONAL DISTRESS

The authority for the award of damages for emotional distress is found in Iowa code section 601A.15(8) which empowers the Commission "to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this chapter." More specifically subsection 601A. 15(8)(a)(8) provides that "remedial action" includes but is not limited to:

Payment to the complainant of damages for an injury caused by the discriminatory or unfair practice which damages shall include but are not limited to actual damages, court costs and reasonable attorney fees.

Such damages are essential to restore an individual unlawfully RULINGS
discriminated against to the position in which that individual would have been had the discrimination not occurred, the "make whole" philosophy and policy of the Commission. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 171 (Iowa 1982). Emotional distress is an injury causing damage. Furthermore, Iowa Code section 60 IA. 18, provides that Chapter 601A shall be construed broadly to effectuate its purposes.

The definition of "actual damages" is "the amount awarded to a complainant in compensation for his [sic] actual and real loss or injury", according to Black's Law Dictionary 352 (5th ed. 1979). In Amos v. Prom, Inc. , 115 F. Supp. 127,132 (N.D.
Iowa 1953), a federal court interpreting Iowa law recognized emotional distress damages as compensatory. In 1986, the United States Court of Appeals, Eighth Circuit, upheld the award of damages for emotional distress under Iowa Code section 601A.15(8)(a)(8). Ridenour v. Montgomery Ward and Company 40 FEP 764, 786F.2d 867. In Chauffeurs, Loc. U. 238 v. Civil Rights Comm' 394 N.W. 2d 375, 382-383 (Iowa
1986), the Iowa Supreme Court agreed with those jurisdictions allowing the award of emotional distress damages by the civil rights commission or its equivalent. Massachusetts Commission Against Discrimination v. Franzaroli 357 Mass. 112, 115, 256 N.E.2d 311, 313 (1970); Zahorian , 62 N.J. at 416, 301 A.2d at 763; Batavia Lodge No. 196, 35 N.Y.2d at 146, 316 N.E.2d at 319-20, 359 N.Y.S.2d at 27; Speer, 29 N.Y.2d at 557, 272 N.E.2d at 884, 324 N.Y.S.2d at 297; Williams v. Joyce, 4 Or. App. at 504-05, 479 P.2d at 524. Contra Zamantakis v. Commonwealth, 10 Pa. Commw. 107, 117, 308 A.2d 612,616-17 (1973). The court stated that such a result "seems only natural because emotional distress is generally a compensable injury, and the language of the statute allows actual damages which are synonymous with compensatory damages". The Court also stated that allowing the award of emotional distress damages is also consistent with the commission's discretion in fashioning an appropriate remedy under section 601A.15(8)." Foods, Inc. 318 N.W. 2d at 171.

The Commission has awarded damages for emotional distress since 1979, with awards ranging from $500 to $25,000. The Commission and the Court require the discriminatory acts to be the basis for and connected with the emotional distress. In
the case at issue, Hamer was forced to give up her apartment into which she had just moved and to live for several months in her car. This was a direct result of her termination which was an intentional and discriminatory act by Respondent. It is easier
to determine an amount of damages for emotional distress when there is evidence of psychological harm by an expert witness, however, there are situations where it is reasonable to conclude that emotional distress has occurred just by the circumstances
and testimony of the complainant. There was no expert testimony as to Hamer's emotional distress, but because of the circumstance of her unexpected discharge it can reasonably be concluded that Hamer suffered emotional distress. Her demeanor and testimony on the witness stand indicated that she had and still was suffering from those circumstances. It is concluded Hamer should be awarded $5,000.00 in emotional
distress damages.