IN THE IOWA DISTRICT COURT FOR LUCAS COUNTY
HY-VEE FOOD STORES, INC.,
Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION,
Respondent.
LAW NO. 21550
RULING AND ORDER ON REMAND
On October 12, 1989, the
Iowa Supreme court entered an Order for Limited Remand ordering
this Court to remand this case to the Iowa Civil Rights Commission
for consideration of the statute of limitations. The Supreme Court
ordered this court to review the Commission's decision on the
statute of limitations issue and a back pay issue previously overlooked
by this Court. Pursuant to the October 12, 1989 Order of Remand
issued by this Court, the Commission decided the statute of limitations
issue. Both parties filed supplemental briefs on the issues now
before this Court.
Counsel of record orally argued the pending questions by telephonic conference call. After reviewing the entire record and after hearing the arguments of counsel and being fully advised, the Court states the following Ruling and Order:
RULING
A. Stature of Limitations.
Pursuant to the October
12, 1989 Order of Remand issued by this Court, the Iowa Civil
Rights Commission expanded its earlier decision regarding the
issue of whether Hoa Thi Blood's complaint was timely filed pursuant
to Iowa Code Section 601 A.1 5(12). (See, Finding of Fact No.
1 and Conclusions of Law No. 1 of the April 11, 1986 Proposed
Decision adopted by the Commission by an Order dated July 8, 1986.)
In an Order dated November
6, 1989, the commission adopted the exhaustive analysis contained
in the October 21, 1989 Proposed Decision of Administrative Law
Judge Donald W. Bohlken. The Commission properly decided Hy-Vee's
national origin discrimination in the assignment of working hours
and in promotion are both of a continuing nature because each
constitutes a series of related acts, and the last act occurred
within 180 days of the filing of the complaint. The Commission
also properly decided Hy-Vee's sex discriminatory promotion policies
and practices are of a continuing nature constituting a systematic
policy of discrimination in effect within 180 days of the filing
of the conmplaint. The Commission properly ruled the complaint
was timely filed under Iowa Code Section 601 A., 15(12). See,
Annear v. State, 419 N.W.2d 377 (Iowa 1977); 161 IAC 3.3(2) (1989)
(formerly 240 IAC 1.3(3)(B) (1983). The Commission properly overruled
Hy-Vee's Exception No. 7.
The Court has had an opportunity to review the entire record concerning the statute of limitations issues. Again, the Court concludes the agency applied the correct legal analysis under Iowa Code Section 601A.15(l). The findings and conclusions of the agency are supported by substantial evidence. The November 6, 1989 Order of the Iowa Civil Rights Commission should be affirmed.
B. Back Pay.
In its October 12, 1986
Order For Limited Remand, the Iowa Supreme Court found this Court
did not rule on the issue of back pay because it incorrectly assumed
the Iowa Civil Rights Commission rejected the hearing officer's
proposed decision on that issue. On Remand, the Court will consider
the back pay award stated in the hearing officer's proposed Order
No. 6, as adopted by the Commission.
Blood clearly demonstrated
Hy-Vee discriminated against her on the basis of sex under the
disparate impact theory. Back pay is a proper remedy for sex discrimination
established under the disparate impact theory. Albermarle v.
Moody, 422 U.S. 405 (1975); Code of Iowa Section 601 A. 15(8)
(1989). The issue before the Court is whether the Commission's
decision to award back pay to Blood based upon the difference
between what she actually received beginning Decmber 1, 1977,
and what she would have earned as full-time employee is supported
by substantial evidence in the record viewed as a whole.
There is record evidence demonstrating that in the 10 Cedar Rapids Hy-Vee stores in 1980, only 32 of 309 female employees had full-time status while 185 of 601 male employees worked full time. In 1985, 41 of 473 females were full-time employees while 137 of 655 males had full-time status. (Ex. 38, Tr. p. 254). There are no statistics for 1977 in the record. But, there is evidence demonstrating that a white male employee named Wichman hired five months before Blood in 1977 became full time in July of 1977, while Blood, despite repeated requests for more hours, never did achieve full-time status. (Ex. 34; Proposed Finding No. 18) While the Court might draw a contrary conclusion, the record evidence is sufficient to support a finding that Blood would have achieved full-time status in 1977 but for the sex discriminatory practices of Hy-Vee. The evidence presents a judgment call which must be left to the sound discretion of the agency. Morrison v. Century Engineering, 434 N.W.2d 874, 876 (Iowa 1989). The Commission's back pay award to 1977 is supported by substantial evidence. Heatherly v. Iowa Department of Job Service, 397 N.W.2d 670 (Iowa 1986). The Commission's decision should be affirmed on this issue.
ORDER
NOW THEREFORE IT IS HEREBY
ORDERED, ADJUDGED AND DECREED:
1. The decision of the Iowa Civil Rights Commission on the statute of limitations and back pay issues is affirmed. Petitioner Hy-Vee Food Stores, Inc. shall pay the court costs on remand, if any.
2. The Clerk of the Lucas County Iowa District Court shall immediately
certify a copy of this Ruling and Order on Remand to the Clerk
of the Iowa Supreme Court along with copies of any papers filed
with the Clerk since the record was last transmitted to the Supreme
Court.
3. This Court will deliver
the court file, record and exhibits to the Clerk of the Iowa Supreeme
Court.
Dated this 1 st day of December, 1989.
ARTHUR E. GAMBLE, JUDGE
COPIES TO:
Steven Meyer
106 N. Grand Box 678
Chariton, IA 50049
Rick Autry
Assistant Iowa Attorney General
Civil Rights Division
211 E. Maple, 2nd Floor
Des Moines, IA 50319
Note: This decision was affirmed by the Iowa Supreme Court on
January 24, 1990. That decision is included in this volume of
the Case Reports.