Digest of Commission Decisions July 1, 1992 - June 30, 1993

James A. Montz and Iowa Civil Rights Commission v. Civil Service Commission and City of Esterville, Iowa,

James A. Montz, a 43-year old applicant for the position of police officer with Respondents, a city and its civil service conunission, alleges that Respondents failed to consider or hire him for the position of police officer due to a written policy specifying a maximum age requirement whereby the applicant must not be older that 33 years of age at the at the time of appointment to be considered for the position. During the five-day hearing, the Respondents, while admitting the age-based policy, failed to prove a plethora of affirmative defenses, including bona-fide occupational qualification (BFOQ), the mixed motive defense, and reliance on various other statutory provisions and legal defenses. In a 159-page decision, the Commission rejected the defenses and held that the preponderance of the evidence had shown that the employer (1) had indicated that individuals age 33 or over were not acceptable for employment and (2) had refused to hire Montz due to his age.

Remedies awarded included $11,963.00 in back pay; $10,000 for emotional distress; $1,544.71 moving expenses; $9,000.00 for loss on sale of house; interest on all of the above; an order to cease and desist from any further use of the age hiring cap; posting of equal opportunity notices; changes,in job advertising and recruitment practices; and the compilation and reporting of applicant flow information.

This decision was reversed by the Iowa District Court for Emmett County on June 25, 1993. The case is now on appeal to the Iowa Supreme Court where reinstatement of the Commission's decision is sought by the Commission.

James A. Montz and Iowa Civil Rights Commission v. Civil Service Commission and City of Estherville, Iowa

This is the attorney's fees decision in this case. The Commission adopted a proposed decision which awarded attorney's fees in the amount of $40,000 and litigation expenses in the amount of $4,102.85 for the period ending September 24, 1992. The parties had stipulated to these amounts which shall only be paid in the event the Commission and complainant should ultimately prevail on the appeal of this case. As previously noted, this case is on appeal before the Iowa Supreme Court.

Mike DeVolder and Iowa Civil Rights Commission v. Friedman Motor Cars, Ltd., Mike Friedman, Scott Henry and Pat Sullivan,

This is the attorney's fees decision in this case. Complainant DeVolder claimed and was awarded attorney's fees in this case of $28,505.43 and litigation expenses in the amount of $237.51, all to be paid by Respondents. The complainant's attorney took the case on a contingency fee basis. Therefore, these fees include a 10% enhancement to compensate for the delay in payment from the time the case was taken until the attorney received the fees from the respondent. Such an award is made because: Clearly compensation received several years after the services were rendered--as is frequently the case with complex civil rights litigation-is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings... Jf no compensation were providedfor delay in payment, the prospect of such hardship could well deter otherwise willing attorneys from accepting complex civil rights cases that might offer great benefit to society at large. Missouri v. Jenkins, 491 U.S. 274, 284 & n.6 (1989).

In addition, a very modest 5% enhancement was also made for the risk of nonpayment, i.e. the contingent risk that the complainant's attorney may have recovered nothing if the complainant had not prevailed. In so doing, the Commission rejected the holding of a recent United States Supreme Court decision barring enhancement of attorney fee awards under feeshifting statutes for risk of nonpayment. Burlington v. Dague, 120 L. Ed. 2d 449, 459 (1992). This holding was not persuasive because it was (a) violative of the controlling Iowa authority requiring liberal interpretation and construction of the Iowa Civil Rights Act and requiring that the contingent risk of nonpayment be taken into account with respect to other fee statutes; and (b) contrary to the greater weight of authority in other state courts and prior holdings of federal circuits which allowed such enhancements.

This case was appealed to the Iowa District Court for Polk County, but was settled for the full amount of damages and attorneys fees prior to any ruling by the court.

Dorothy A. Abbas and Iowa Civil Rights Commission v. City of Hampton.

Complainant Abbas' complaint originally named the City of Hampton, Kenneth Herwig (City Clerk), and the Mayor and City Council of the City of Hampton as Respondents. In exchange for the City of Hampton's agreement to waive "any argument that the City of Hampton is not legally responsible for the actions of the entities and/or persons dismissed," the complaint was voluntarily dismissed with prejudice with respect to Respondents Herwig, the Mayor, and the City Council of the City of Hampton.

Abbas alleged that she was subjected to retaliation for filing a prior complaint through harassment and reduction of her position to a part-time status which also resulted in a reduction of her hourly wage. Acts of alleged harassment included reduction of her work assignments, increased scrutiny of her work, and threats of a lawsuit. By a three to two vote, the Commission reversed the proposed decision which found retaliation, struck all findings of fact in the proposed decision, and made no findings of fact with respect to the reversal. At a subsequent meeting, the Commission came to a two to two tie vote on Complainant's application for rehearing.

The complainant has filed an appeal in the District Court for Polk County.

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