IN THE IOWA DISTRICT COURT
FOR LEE COUNTY AT KEOKUK
KEOKUK STEEL CASTING Division of Kast Metals
Corporation, Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION, Respondent.
NO. CL 925 (S) 0586
RULING ON PETITION FOR JUDICIAL REVIEW
(FOLLOWING REMAND)
Petitioner, Keokuk Steel
Casting, Division of Kast Metals Corporation, seeks judicial review
of the final agency action of Respondent, Iowa Civil Rights Commission,
pursuant to Iowa Code Sections 601A.17 (1) and 17A.19. The agency
action Petitioner seeks review of is a final decision of Repsondent
awarding back pay and punitive damages to Christy R. Johnson,
a former employee of Petitioner, based upon a finding of retaliatory
discharge under Iowa Code Section 601 A. 11.
Judicial review of final
civil rights commission action is governed by Iowa Code Section
17A.1 9 (8). See Iowa Code Section 601A.17 (1); Chauffeurs,
Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights
Commission, 394 N.W.2d 375, 379 (Iowa 1986). Therefore, in
order to successfully challenge the final agency action in this
case, petitioner must demonstrate prejudice to substantial rights
and the prejudice must result from agency action which falls within
one or more of the grounds enumerated in Iowa Code Section 17A.19
(8). See Mercy Health Center v. State Health Facilities,
360 N.W.2d 808, 811 (Iowa 1985).
In exercising the power
of judicial review conferred by Iowa Code Section 17A.19 (8),
this Court is required to act in an appellate capacity to review
agency action and correct errors of law. See Des Moines Independent
Community School District v. Department of Job Service, 376
N.W.2d 605, 610 (Iowa 1985); Peoples Memorial Hospital v. Iowa
Civil Rights Commission, 322 N W.2d 87, 91 (Iowa 1982). Review
of this contested case agency matter is at law, not de novo, and
is limited to the record agency matter is at law, not de novo,
and is limited to the record made before the agency. See Wiese
v. Iowa Department of Job Service, 389 N.W.2d 676,
681 (Iowa 1986); Taylor v. Iowa Department of Job Service,
362 N.W.2d 534,537 (Iowa 1985). On judicial review of agency action
courts have no original authority to weigh the evidence, make
findings of fact, or declare the parties' rights. See Ward
v. Iowa Department of Transporation, 304 N.W.2d 236, 237 (Iowa
1981); Wiese, 389 N.W.2d at 681; Taylor, 362 N.W.2d
at 537. A court is bound by an agency's fact findings if they
are supported by substantial evidence in the record made before
the agency when that record is viewed as a whole. Hussein v.
Tama Meat Packing Corporation, 394 N.W.2d 340, 341 (Iowa 1986);
Roberts v. Iowa Department of Job Service, 356 N.W.2d 218,
221 (Iowa 1984); Varied Enterprises, Inc. v. Sumner, 353
N.W.2d 407, 409 (Iowa 1984); Hawk v. Jim Hawk Chevrolet,
282 N.W.2d 84, 85 (Iowa 1979); Myers v. Iowa Department of
Job Service, 373 N.W.2d 507, 509 (Iowa App. 1985).
In reviewing agency action
courts must apply the "substantial evidence" rule of
Iowa Code section 17A.19 (8)(f) which requires that agency action
be supported by substantial evidence in the agency record when
that record is viewed as a whole. Iowa State Fairgrounds Security
v. Iowa Civil Rights Commission, 322 N.W.2d
293, 295 (Iowa 1982);
Peoples Memorial Hospital v. Iowa Civil Rights Commission,
322 N.W.2d 87,91 (Iowa 1982); King v. Iowa Civil Rights Commission,
334 N.W.2d 598, 602 (Iowa 1983); Iowa Civil Rights Commission
v. Woodbury County Community Action Agency, 304 N.W.2d
443, 446 (Iowa App. 1981). A petitioner may obtain relief from
administrative action if it is unsupported by substantial evidence
in the record made before the agency when that record is viewed
as a whole. See Woodbury County v. Iowa Civil Rights Commission,
335 N.W.2d 161, 164 (Iowa 1983); Iowa Health Systems Agency,
Inc., v. Wade, 327 N.W.2d 732, 733 (Iowa 1982).
The Iowa Supreme Court,
in discussing the "substantial evidence" rule, has pointed
out that the principles governing review of agency action must
be distinguished from those applicable to appellate review of
a jury verdict or findings of fact of a trial judge in a law action
tried to court where the reviewing court need only consider supporting
evidence. See City of Davenport v. Public Employment Relations
Board, 264 N.W.2d 307, 312 (Iowa 1978); Iowa Health Systems
Agency, Inc., v. Wade, 327 N.W.2d 732, 733 (Iowa 1982). Review
of an agency determination is distinguished from a review of a
verdict in that the reviewing court considers all of the evidence
including that which preponderates against the agency decision
as well as that which supports it. City of Davenport, 264
N.W.2d at 312; Iowa Health Systems Agency, Inc., 327 N.W.2d
at 733. Nevertheless, the Iowa Supreme Court has also pointed
out that the requirements of taking all the evidence into account
in reviewing administrative findings does not detract from the
duty of courts to grant appropriate deference to agency expertise.
City of Davenport, 264 N.W.2d 312; Iowa Health Systems
Agency, Inc., 327 N.W.2d at 733. Furthermore, reviewing courts
are required to construe agency fact findings broadly and liberally
to support rather than defeat the agency decision. Holmes v. Bruce
Motor Freight, Inc., 215 N.W.2d 296, 298 (Iowa 1974); Ward
v. Iowa Department of Transportation, 304 N.W.2d 236,237 (Iowa
1981).
Under the "substantial
evidence" rule, evidence is substantial if a reasonable person
would accept it as adequate or find it sufficient to reach a given
conclusion or decision, even if a reviewing court might draw a
contrary inference. Chauffeurs, Teamsters and Helpers, Local
Union No. 238 v. Iowa Civil Right Commission, 394 N.W.2d 375,
379 (Iowa 1986); Mercy Health Center v. State Health Facilities
Council, 360 N.W.2d 808, 811-12 (Iowa 1982). It need not be
a preponderance, but a mere scintilla will not suffice. Elliot
v. Iowa Department of Transportation, 377 N.W.2d 250, 256
(Iowa App. 1985); Heering v. Iowa Law Enforcement Academy,
341 N.W.2d 65, 66-69 (Iowa App. 1983).
The question of judicial
review is not whether there is sufficient evidence to warrant
a decision the agency did not make, but rather there is substantial
evidence to warrant the decision it did make. Peoples Memorial
Hospital v. Iowa Civil Rights Commission, 322 N.W.2d 87, 91
(Iowa 1982). The possibility that the record would support another
conclusion does not permit a reviewing court to make a finding
inconsistent with the agency findings so long as there is substantial
evidence to support it. Peoples Memorial Hospital, 322
N.W.2d at 91. While the substantiality of evidence must take into
account whatever in the record fairly detracts from its weight,
the possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's finding from
being supported by substantial evidence. Peoples Memorial Hospital,
322 N.W.2d at 91. The substantial evidence test accords respect
to the expertise of the administrative tribunal and helps promote
uniform application of the law. City of Davenport v. Public
Employment Relations Board, 264 N.W.2d 307, 312 (Iowa 1978).
At the same time, however,
findings of fact and a reasoned decision by the agency are required
by Iowa Code section 17A.16 and are essential for the purpose
of judicial review. Taylor v. Iowa Department of Job Service,
362 N.W.2d 534, 537 (Iowa 1985); Ward v. Iowa Department of
Transportation, 304 N.W.2d 236, 238 (Iowa 1981); see Wiese
v. Iowa Department of Job Service, 389 N.W.2d 676, 681 (Iowa
1986). As noted earlier, courts have no original authority to
make findings of fact and declare the parties rights on judicial
review. Wiese, 389 N.W.2d at 681; Taylor, 362 N.W.2d
at 537. Therefore, if the agency ruling does not clearly disclose
a sound factual and legal basis for its decision, a reviewing
court must remand for further specific findings. Des Moines
Independet Community School District v. Department of Job Service,
376 N.W.2d 605, 610-611 (Iowa 1985); Wiese, 389 N.W.2d
at 681; Taylor, 362 N.W.2d at 537. Further, while it is
true that courts are bound by agency fact findings which are supported
by substantial evidence and have no original authority to make
findings of fact and declare the parties' rights orY judicial
review of agency action, courts are not bound by the agency's
legal conclusions and can correct misapplications of the law.
Quenot v. Iowa Department of Job Service, 339 N.W.2d 624,
626 (Iowa App. 1983); Roberts v. Iowa Department of Job Service,
356 N.W.2d 218, 221 (Iowa 1984). In order to correct errors of
law which are dispositive of the case, a court may remand a matter
to the agency for final appropriate disposition. See Des Moines
Independent Community School District v. Department of Job Service,
376 N.W.2d 605, 611 (Iowa 1985). In any event, if the Court does
not affirm the agency action, the appropriate course is to remand
to the agency for further proceedings. See Des Moines Independent
Community School District, 376 N.W.2d at 610.
Governed by the above-stated
principles, the Court now turns to the case at hand. Christy R.
Johnson filed an informal complaint with the Iowa Civil Rights
Commission on or about September 12, 1979, alleging that she had
been denied a job with Petitioner on the basis of sex. Ms Johnson
and Petitioner entered into a predetermination settlement agreement
on December 10, 1979, under which Petitioner agreed to hire
Ms. Johnson for the next available laborer position.
Pursuant to the settlement
agreement, Petitioner hired Ms. Johnson as a laborer on March
4, 1981. At the time of her hiring, Ms. Johnson began a sixty
day probationary period during which she did not have the right
to use the grievance procedure under the existing labor agreement.
After thirty days she had the right to join the union but did
not join. Ms. Johnson was terminated from employment with Petitioner
on April 24, 1981, after 37 working days.
On May 7,1981, Ms. Johnson
filed a verified complaint with the Iowa Civil Rights Commission
alleging Petitioner violated Iowa Code Chapter 610A by subjecting
her to different terms and conditions of employment and by terminating
her from employment in retaliation for having filed the prior
September 12, 1979, informal complaint with the Commission. The
Commission investigated Ms. Johnson's May 7, 1981, complaint and
issued a probable cause determination on April 19, 1983. Conciliation
was attempted unsuccessfully and a contested case proceeding ensued,
The matter was heard by
Hearing Officer lone G. Shadduck on October 16 and 17, 1985, and
on March 10, 1986, Hearing Officer Shadduck issued a Proposed
Findings of Fact, Conclusions of Law, Rulings, Recommended Decision
and Order (hereinafter referred to as Proposed Decision). The
Hearing Officer's Proposed Decision contained twenty Findings
of Fact and fifteen Conclusions of Law and is attached to Petitioner's
Petition as Exhibit "B". In the Proposed Decision the
Hearing Officer found that Petitioner violated Iowa Code Section
601 A.1 1 (2) in terminating Ms. Johnson on April 24,1981, and
awarded Ms. Johnson backpay at the hourly rate of $5.69 from April
24, 1981, through May 27, 1981, and $6.39 per hour from May 28,
1981, through December 18, 1981, and from March 1, 1982, through
April 5, 1982, based on an eight hour day and forty hour week,
less amounts received in unemployment compensation chargeable
to Petitioner. Petitioner was also ordered to pay Ms. Johnson
$410.61 for heat bonus, a fringe benefit Ms. Johnson would have
earned had she remained remployed by Petitioner for the relevant
periods listed above.
On April 22, 1986, the Iowa
Civil Rights Commission issued an Order which adopted the Hearing
Officer's Proposed Decision with modifications. The Commission
modified the Proposed Decision to allow exemplary damages in the
amount of $5,000.00 in addition to the award of backpay. The April
22, 1986, Order of the Iowa Civil Rights Commission is attached
to Petitioner's Petition as Exhibit "A".
After exhausting available
administrative remedies, Petitioner filed its Petition for Judicial
Review in Lee County Iowa District Court on May 20, 1986. Petitioner
sought judicial review of the final agency action of the Iowa
Civil Rights Commission awarding Ms. Johnson backpay and exemplary
damages based upon a finding of retaliatory discharge under Iowa
Code Section 601A.11(2). Petitioner also challenged the action
of the agency hearing officer in allowing Ms. Johnson to testify
by telephone at the administrative hearing below.
The parties filed written
briefs and presented oral arguments, and on March 9, 1988, the
Court filed its initial Ruling on Petition for Judicial Review
in this case. In its March 9, 1988, Ruling on Petition for Judicial
Review, the Court remanded this case to the Commission to make
new findings consistent with the Ruling as to whether Keokuk Steel
Casting had produced evidence of legitimate, nonretaliatory reasons
for discharging Christy R. Johnson. The Court also requested the
Commission to make additional findings regarding whether Ms. Johnson
had established, by a preponderance of the evidence, that proffered
nonretaliatory reasons for her discharge were merely pretextual
and whether MS. Johnson had carried her utlimate burden of persuasion.
The Court directed the Commission to make specific findings with
respect to the credibility of witnesses and whether Ms. Johnson
had carried her burden of proving a causal connection between
Ms. Johnson's participation in protected activities and her subsequent
discharge. The Court instructed the Commission to consider the
whole agency record in making the requested additional findings.
After remand, Administrative
Law Judge lone G. Shadduck prepared and submitted to the Commission
a Proposed Decision on Remand, dated September 14, 1988. The September
14, 1988, Porposed Decision on Remand set forth the new and additional
findings requested in the Court's March 9, 1988, Ruling on Petition
for Judicial Review, and again concluded that Petitioner violated
Iowa Code section 601 A. 11 when it terminated Ms. Johnson. In
a Decision on Remand, dated October 4, 1988, the Iowa Civil Rights
Commission adopted the September 14,1988, Proposed Decision on
Remand and ordered that the Proposed Decision, attached as the
Commission's Decision on Remand, be submitted to the Iowa District
Court for Lee County.
On October 7,1988, the Commission's
October 4,1988, Decision on Remand together with the administrative
law judge's Proposed Decision on Remand were filed in Lee County
Iowa District Court. The Court permitted the parties to file additional
briefs and after the parties presented oral arguments to the Court
on September 25, 1989, this cas was again submitted to the Court
for ruling on Petitioner's Petition for Judicial Review.
Based upon the agency record below and having considered the briefs and arguments of the parties, the Court makes the following:
RULING ON JUDICIAL REVIEW
The Court concludes that
the FINDINGS OF FACT as set forth in the Commission Hearing Officer's
March 10, 1986, PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW,
RULINGS, RECOMMENDED DECI SION AND ORDER (hereinafter referred
to as March 10, 1986, Porposed Decision) and the FACTS as set
forth in the agency's September 14, 1988, PROPOSED DECISION ON
REMAND are supported by substantial
evidence in the agency
record when that record is viewed as a whole. The Court is therefore
bound by the agency's fact findings and by this reference adopts
and incorporates said fact findings in this ruling as background
information.
Christy R. Johnson brought
her action before the Iowa Civil Rights Commission under Iowa
Code Chapter 601 A and the Commission has determined that Petitioner
discriminated against Ms. Johnson in violation of Iowa Code Section
601 A. 11 (2) by discharging her in retaliation for filing a prior
sex discrimination complaint. The general question in this case
is whether the Commission's decision is justified as a matter
of law.
Iowa Code Section 601 A.1
1 (2) makes it an "unfair or discriminatory practice"
for any person to "discriminate against another person in
any of the rights protected against discrimination on the basis
of ... sex ... because such person has lawfully opposed any practice
forbidden ... or has filed a complaint ... under this chapter
(601 A)." The Court has not found Iowa cases address actions
grounded on allegations of retaliatory discharge under Iowa Code
Section 601A.11(2). However, a cause of action under Iowa Code
Section 601A.11(2) is substantively congruent to a retaliatory
discharge case under Section 704 (a) of Title VII of the Civil
Rights Act of 1964, as amended. 42 U.S.C. Section 2000e-3 (a).
Therefore the Court finds that the selection of the proper analytical
frawework for this case should be guided by federal case law.
See King v. Iowa Civil Rights Commission, 334 N.W.2d 598,
601 (Iowa 1983); Iowa State Fairgrounds Security v. Iowa Civil
Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982); Woodbury
County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 165
(Iowa 1983); see also Foods, Inc. v. Iowa Civil Rights Commission,
318 N.W.2d 162 (Iowa 1982); First Judicial District Department
of Correctional Services v. Iowa Civil Rights Commission,
315 N.W.2d 83 (Iowa 1982); Linn Co-op Oil Co. v. Quigley,
305 N.W.2d 729 (Iowa 1981).
The general approach to
allocation of burden and order of proof in Title VII suits as
set forth in the United States Supreme Court cases of McDonnell-Douglas
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668
(1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct., 1089, 67 L.Ed.2d
(1981) has been adopted
by the Iowa Supreme Court and Court of Appeals in other employment
discrimination cases under Chapter 601A. Linn Co-operative
Oil Co. v. Quigley, 305 N.W.2d 729, 733 (Iowa 1981) (sex discrimination);
Iowa State Fairgrounds Security v. Iowa Civil Rights Commission,
322 N.W.2d 293, 296 (Iowa 1982) (sex discrimination); Woodbury
County v. Iowa Civil Rights Commission, 355 N.W.2d 161 (Iowa
1983) (race discrimination); Iowa Civil Rights Commission v.
Woodbury County Community Action Agency, 304 N.W.2d 443 (Iowa
App. 1981) (race discrimination); King v. Iowa Civil Rights
Commission, 334 N.W.2d 598, 601 602 (Iowa 1983) (religious
discrimination); see also Peoples Memorial Hospital v. Iowa
Civil Rights Commission, 322 N.W.2d 87, 92, ftn. 5, (Iowa
1982) (sex discrimination). The sequence of proof and burdens
prescribed by the McDonnellDouglas v. Green and Texas Department
of Community Affairs v. Burdine cases is also
applicable to retaliation
claims. Womack v. Munson, 619 F. 2d 1292 (8th Cir. 1980),
cert. denied 450 U.S. 979, 101 S. Ct. 1513, 67 L.Ed. 2d 814 (1981);
Donnellon v. Fruehauf Corp., 794 F.2d 598 (11th Cir. 1986);
Burris v. United Telephone Co. of Kansas Inc., 683 F.2d
339 (10th Cir. 1982); Grant v. Bethlehem Steel Corp., 622
F. 2d 43 (2nd Cir. 1980); Ross v. Communications Satellite
Corporation, 759 F. 2d 355 (4th Cir. 1985). See also
Hubbard v. United Press International, 330 N.W.2d 428 (Minn.
1983); Harris v. Misty Lounge Inc., 371 N.W.2d 688 (Neb.
1985); State Div. of Human Rights v. Miller, 349 N.W.2d
42 (S.D. 1984); Wiedower v. ACF Industries, Inc., 715 S.W.2d
303 (Mo. App. 1986).
Under the McDonnell-Douglas
framework the employee is initially required to establish
a prima facie case of retaliation. Such a prima facie case in
a retaliatory discharge case consists of three elements: 1 ) the
employee engaged in statutorily protected activity (i.e. opposition
to discrimination or participation in a Title VII proceeding);
2) the employer took adverse employment action (i.e. employee
was disadvantaged by an action of his or her employer subsequent
to or contemporaneously with participation in protected activity);
and 3) a causal connection existed between the protected activity
and the adverse action. Johnson v. Legal Services of Arkansas,
Inc., 813 F. 2d 893, 899 (8th Cir. 1987); Womack v. Munson,
619 F. 2d 1292,1296 (8th Cir. 1980), cert. denied 450 U.S. 979,
101 S.Ct. 1513, 67 L.Ed.2d 814 (1981); Donnellon v. Fruehauf
Corp., 794 F. 2d 598, 600-601 (111 th Cir. 1986); Burris
v. United Telephone Co. of Kansas Inc., 683 F.2d 339, 343
(1 Oth Cir. 1982); Grant v. Bethlehem Steel Corp., 622
F. 2d 43, 46 (2nd Cir. 1980); Ross v. Communications Satellite
Corporation, 759 F. 2d 355, 365 (4th Cir. 1985). See also
Hubbard v. United Press International, 330 N.W.2d 428,
444 (Minn. 1983); State Div. of Human Rights v. Miller,
349 N.W.2d 42, 45 (S.D. 1984). An employer's knowledge that an
employee has engaged in protected conduct is not really a distinct
element as suggested by some courts, see e.g. Grant v. Bethlehem
Steel Corp., 622 F.2d 43, 46 (2nd Cir. 1980), but is necessarily
subsumed in the requirement of a causal connection, for if an
employer did not know of the protected activity, a causal connection
to the adverse action could not be established. Ross v. Communications
Satellite Corporation, 759 F.2d 355,365, ftn. 9 (4th Cir.
1985). It is the employee's burden to first establish the prima
facie case of disrimination by a preponderance of the evidence.
See Woodbury County v. Iowa Civil Rights Commission, 335
N.W.2d 161, 165 (Iowa 1983); Wing v. Iowa Lutheran Hospital,
426 N.W.2d 17.5,177 (Iowa App. 1988).
If a prima facie case is
established, then a rebuttable presumption arises that the employer
unlawfully discriminated against the employee, and the burden
of production shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse action. Womack v.
Munson, 619 F.2d 1292, 1296 (8th Cir. 1980), cert. denied,
450 U.S. 979, 101 S. Ct. 1513, 67 L.Ed 2d 814 (1981); Burris
v. United Telephone Co. of Kansas Inc., 683 F2d 339, 343 (10th
Cir. 1982); see Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 254, 101 S.Ct. 1089,1094,67 L.Ed.2d. 207,216 (1981);
McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-803,
93 S.Ct. 1817, 1824, 36 L.Ed 2d 668, 678 (1973). The employer
need not prove the absence of retaliatory motive, but only produce
evidence that would dispel the inference of retaliation by establishing
the existence of a legitimate reason. Womack, 619 F.2d at 1296;
Burris, 683 F.2d at 343; see Burdine, 450 U.S. at
254-55, 101 S.Ct. at 1094, 67 L.Ed. 2d at 216; Furnco Construction
Corp. v. Waters, 438 U.S. 567, 577-78, 9-8 S.Ct. 2943,
2949-50, 57 L. Ed.2d 957, 968 (1978); see also Linn Co-op v. Quigley,
305 N.W.2d 729, 733 (Iowa 1981); Peoples Memorial Hospital
v. Iowa Civil Rights Commission, 322 N.W.2d 87, 92, ftn. 5
(Iowa 1982). The employer need not persuade the trier of fact
that it was actually motivated by the proffered reasons and it
is sufficient if the employer's evidence raises a genuine issue
of fact as to whether it discriminated against the employee. Burdine,
450 U.S. at 254, 101 S. Ct. at 1094, 67 L.Ed.2d at 216; Ross
v. Communications Satellite Corporation, 759 F.2d 355, 365
(4th Cir. 1985); see Woodbury County v. Iowa Civil Rights Commission,
335 N.W.2d 161, 165 (Iowa 1983). In Texas Department of Community
Affairs v. Burdine, the United States Supreme Court stated:
"We have stated consistently that the employee's prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decilson had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employmerit action was lawful. This exceeds what properly can be demanded to satisfy a burden of production.
The court placed the burden of persuasion on the defendant apparently because it feared that '[i]f an employer need only articulate - not prove - a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions.' Turner v. Texas Instruments, Inc., supra, at 1255 (emphasis in original). We do not believe, however, that limiting the defendant's evidentiary obligation to a burden of production will unduly hinder the plaintiff."
450 U.S. at 257-258, 101
S.Ct. at 1096, 67 L.Ed.2d at 218. In rebutting the presumption,
however, the employer's nondiscriminatory reasons must be specific
and clear enough for the employee to address and legally sufficient
to justify judgment for the employer. See Wing v. Iowa Lutheran
Hospital, 426 N.W.2d 175,178 (Iowa App. 1988).
Finally, if the employer
carries its burden of production and produces admissible evidence
of a legitimate nonretaliatory reason for the adverse employment
action, then the presumption raised by the employee's prima facie
case is rebutted, and the factual inquiry proceeds to a new level
of specificity. Burdine, 450 U.S. at 255, 101 S.Ct. at
1094-1095, 67 L.Ed.2d at 216. The burden (of production) returns
to the employee, who is given an opportunity to demonstrate that
the employer's proffered reasons are a mere pretext for discrimination
taken in retaliation for participation in protected activities.
Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980),
cert, denied 450 U.S. 979, 101 S.Ct. 1513, 67 L.Ed.2d 814 (1981);
Grant v. Bethlehem Steel Corporation, 622 F.2d 43, 46 (2nd
Cir. 1980); Ross v. Communication Satellite Corp., 659
F.2d 355, 365 (4th Cir. 1985). The employee must prove that the
proffered legitimate reasons are
pretextual by a preponderance of the evidence. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct.
1089, 1093, 67 L.Ed.2d 207, 215
(1981); see Johnson v. Legal Services of Arkansas, Inc.,
813 F.2d 893, 896 (8th Cir. 1987). This burden merges with the
employee's ultimate burden of persuading the
court that he or she has been the victim of intentional discrimination.
Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d
at 217. The overall burden of persuasion
remains on the employee throughout. Burdine, 450 U.S. at
252-260, 101 S.Ct. at 1093-1097; 67 L.Ed.2d at 215-219; Womack,
619 F.2d at 1296; Burris v. United
Telephone Co. of Kansas, Inc., 683 F.2d 339 (10th Cir. 1982);
see Linn Co-op Oil Co. v. Quigley 305 N.W.2d 729 (Iowa
1981); Peoples Memorial Hospital v. Iowa Civil
Rights Commission, 322 N.W.2d 87, 92-93, ftn. 5 (Iowa 1982);
Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d
161, 165-168 (Iowa 1983).
To establish that an employer's
proffered justification for adverse action is pretextual and in
order to ultimately prevail, a complaining employee must prove
either that a discriminatory reason more likely motivated the
employer or that the employer's proffered explanation is unworthy
of credence. See Woodbury County v. Iowa Civil Rights Commission,
335 N.W.2d 161, 166 (Iowa 1983); Wing v. Iowa Lutheran Hospital,
426 N.W.2d 175, 178 (Iowa App. 1988); Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct
1089, 1095, 67 L.Ed.2d 207, 217 (1981). The discriminatory reason
need only be a determining factor in the adverse action against
the employee, it need not be the sole determining factor. See
Wing, 426 N.W.2d at 178.
The Iowa Civil Rights Commission
in its April 22, 1986, Order, as well as in its October 4, 1988,
Decision on Remand, determined that Christy R. Johnson had established
a prima facie case of discrimination based on retaliatory discharge.
The Court in its March 9, 1988, Ruling on Petition for Judicial
Review concluded that this finding was supported by substantial
evidence and justified as a matter of law. The Court again makes
this conclusion.
As noted earlier, to establish
her prima facie case, Ms. Johnson had to show: 1) that she engaged
in statutorily protected activity; 2) that her employer, Petitioner
herein, took adverse action against her; and 3) that the adverse
employment action by Petitioner was the result of or caused by
her participation in the protected activity. Johnson v. Legal
Services of Arkansas, Inc., 813 F.2d 893, 899 (8th Cir. 1987);
Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980),
cert. denied, 450 U.S. 979, 101 S-Ct. 1513, 67 L.Ed 2d 814 (1981);
Ross v. Communications Satellite Corporation, 759 F.2d 355, 365 (4th Cir. 1985).
With regard to the first
element, a conclusion that Ms. Johnson engaged in protected activity
is clearly supported in the agency record. The Commission Hearing
Officer's findings that Ms. Johnson had filed an informal sex
discrimination complaint against Petitioner on or about September
12, 1979, that the parties thereafter entered into a predetermination
settlement agreement on December 10, 1979, which promised Ms.
Johnson the next available laborer job, and that Ms. Johnson commenced
work with Petitioner pursuant to this agreement on March 4, 1981,
are all supported by substantial evidence in the agency record.
The filing of the September 12,1979, sex discrimination complaint
and the subsequent settlement of the complaint, by Ms. Johnson,
in exchange for an employment opportunity are protected activities
under Iowa Code Section 601 A. 11 (2).
The second element of Ms.
Johnson's prima facie case is also clearly supported in the agency
record. The Commission Hearing Officer's finding that Ms. Johnson's
employment with Petitioner was terminated on April 24, 1981, is
supported by substantial evidence. Discharge from employment constitutes
adverse employment action.
The third element of Ms. Johnson's prima facie case, a causal connection between her participation in protected activity and subsequent adverse employment action, presents a more difficult question. The only direct evidence in the agency record supporting a causal connection between Ms. Johnson's discharge and her protected activity was Ms. Johnson's testimony concerning statements that her first supervisor, James Mallory, allegedly made to her when she began working for Petitioner. When asked on direct examination if there was anything else that she could recall about her conversation with Mr. Mallory concerning what was expected of her, Ms. Johnson testified:
That I was to be at my best, because if they could find any way possible to get rid of me, they would.
(Transcript p. 17). Petitioner's counsel objected on hearsay grounds and the Hearing Officer noted the objection. The following direct examination of Ms. Johnson occurred without objection:
Q Christy, did you inform anyone of your prior civil rights complaint?
A No, I did not. I felt that it was no one else's business but mine.
Q Did it ever come to your attention that people in the plant did know of that complaint?
A Yes.
Q How did that come to your attention?
A Mr. Mallory informed me that he knew about the complaint; that prior to me being hired, the supervisors were called to the office--I don't know whether it was personnel office or whether it was the supervisor's office--and that they were informed of my complaint.Q Did Mr. Mallory ever say anything more about your prior civil rights complaint?
A Just that he knew about my complaint and to be aware that they knew it and that they weren't too happy with it, and if they could find any way to get rid of me, they would, and that was the extent of it.
(Transcript pp. 18, 19).
On direct examination James Mallory testified that his immediate
supervisor, Roger Courtney, informed him and other floor supervisors
that Ms. Johnson was coming to work for Petitioner and that she
had filed a civil rights complaint. This occurred at a daily meeting
(Transcript p. 81). However, Mr. Mallory was unable to recall
any specific conversations that he may have had with Ms. Johnson
concerning her civil rights complaint (Transcript pp. 83, 85).
James Mallory quit and on or about March 23, 1981, Gail Schmitz
became Ms. Johnson's immediate supervisor.
The Commission Hearing Officer,
relying on circumstantial evidence, concluded that a retaliatory
motive was a determining factor in the adverse employment action
taken against Ms. Johnson (see Hearing Officer's March 10, 1986,
Proposed Decision pp. 8, 9, 10, 11; Hearing Officer's September
14, 1988, Proposed Decision on remand pp. 8, 9, 10). In support
of this conclusion, the Commission Hearing Officer found that
Ms. Johnson's direct supervisors, James Mallory and Gail Schmitz,
as well as their supervisor, Roger Courtney, and George Adams,
personnel manager for Keokuk Steel Casting, were all aware that
Ms. Johnson had been hired pursuant to resolution of a civil rights
complaint (see March 10, 1986, Proposed Decision p.3; September
14, 1988, Proposed Decision on Remand p.3). This finding is supported
by substantial evidence in the record (see Administrative Hearing
Transcript pp. 18, 19, 81, 154, 155,115,163,309, 310). The Commission
Hearing Officer also found that Ms. Johnson was treated differently
than other similarly situated nonprotected employees in that she
was not allowed to receive assistance from co-workers which was
routinely allowed to other employees, that she was not given sufficient
training time or counselling to understand and perform the birnell
operation, that she was not given an opportunity to explain the
circumstances that led to her termination on April 24, 1981, and
that she was fired without consideration of surrounding circumstances
or an actual check as to whether she had done the required number
of casting on the burnell station or whether she had done them
correctly (see March 10, 1986, Proposed Decision pp. 9-11; September
14, 1988, Proposed Decision on Remand pp. 9- 10). The Commission
Hearing Officer also noted that Ms. Johnson was assigned to a
technical inspection job to which a probationary laborer such
as Ms. Johnson would not typically be assigned (see March 10,
1986), Proposed Decision p. 9; September 14, 1988, Proposed Decision
on Remand p. 6) Finally, the Commission Hearing Officer found
that Ms. Johnson was fired on April 24, 1981, after being on a
new job for only two hours and that according to Phil Meyers,
Gail Schmitz's supervisor, it was unusual to fire an employee
for reasons of poor quality and quantity of work after only two
hours on a new job (see September 14, 1988, Proposed Decision
on Remand, p. 6). There is substantial evidence in the record
to support the Commission Hearing Officer's finding that Ms. Johnson
was subjected to treatment different from that normally afforded
nonprotected employees (see Transcript pp. 18, 19, 24-26, 29-33,
34-38, 67, 79, 80, 114, 115, 122, 123, 161, 200, 215, 216, 223-226,
232, 238, 241, 242, 244, 246-247, 249-256, 279, 280', 281, 282,
283, 284', 294*, 298*, 302-303).
The Court concludes that
the Commission Hearing Officer's findings that Ms. Johnson's supervisors
had knowledge of her participation in protected activities, that
Ms. Johnson was subjected to treatment different from that afforded
others who had not engaged in protected activities, and that Ms.
Johnson's discharge occurred in relatively close proximity to
the time her supervisors had knowledge of her participation in
protected activities, taken together, are sufficient as a matter
of law to justify a finding that Ms. Johnson established, prima
facie, a causal link between her protected activity and subsequent
discharge. (In fact, a strong argument can be made that Petitioner's
knowledge of Ms. Johnson's protected activity together with only
the close proximity between her hiring as a result of protected
activities and her subsequent discharge justify an inference of
a retaliatory motive for purposes of finding a prima facie case.
See Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980);
Balicao v. University of Minnesota, 737 F.2d 747, 748-749
(8th Cir. 1984).) The proximity of Ms. Johnson's discrimination
complaint and hiring and her termination established a prima facie
case of retaliatory discharge. See Balicao, 737 F.2d at 748-749;
Womack, 619 F.2d at 1296. The burden of establishing a prima facie
case of retaliatory discharge is not onnerous. See Balicao,
737 F.2d at 748-749; Womack, 619 F.2d at 1296; cf. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248,
253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207, 215 (1981).
For the reasons stated above
the Court concludes that the Commission's finding that Ms. Johnson
established her prima facie case of retaliatory discharge is supported
by; substantial, albeit circumstantial, evidence in the record
and is justified as a matter of law.
After determining that Ms.
Johnson had established her prima facie case, the Commission Hearing
Officer, in her September 14,1988, Proposed Decision on Remand,
then concluded that Keokuk Steel Castings had produced evidence
of legitimate nondiscriminatory reasons for Ms. Johnson's discharge
sufficient to raise a genuine issue of fact as to whether it discriminated
against Mr. Johnson (see September 14, 1988, Proposed Decision
on remand p. 13). This conclusion is supported by substantial
evidence and justified as a matter of law (see Transcript pp.
22, 23, 37, 57, 60, 63, 64, 67, 70-73, 95-105, 115-117, 127, 145-148,
178, 180-187, 189, 191, 196, 197, 199-201, 204-206, 214-218, 220.
221, 223, 232-234, 240, 241, 250-251, 253-254, 259-262, 295, 296,
315; Exhibits A, B, C, D, and E presented at administrative hearing).
The Commission Hearing Officer
then found that the legitimate non-retaliatory reasons proffered
by Keokuk Steel Castings lacked credence and that Ms. Johnson
had proven by a preponderance of the evidence that the proffered
reasons for her discharge were a mere pretext for discrimination
taken in retaliation for participation in protected activities
(see September 14, 1988, Proposed Decision on Remand pp. 17-18).
Although not clearly stated, it appears that the Commission Hearing
Officer also determined that a retaliatory reason more likely
motivated Keokuk Steel and was a determining factor in the adverse
action taken toward Ms. Johnson (see September 14, 1988, Proposed
Decision on Remand pp. 10, 18). Upon reviewing the entire record,
the court is unable to conclude that the Commission's determination
that Keokuk Steel's proffered reasons were pretextual is unsupported
by substantial evidence. There is substantial, albeit circumstantial,
evidence to support a finding that Keokuk Steel's reasons for
terminating Ms. Johnson were pretextual. In finding that they
lacked credibility, the Commission Hearing Officer noted several
inconsistencies in the record with regard to the reasons proffered
by Keokuk Steel for Ms. Johnson's discharge (see September 14,
1988, Proposed Decision on Remand pp 13-17). These inconsistencies
are born out by the agency record (see Transcript pp. 17, 19,
24-26, 32-37, 58-60, 65-66, 67, 80,114-117, 122-123,180, 196-199,
200, 201, 204-206, 213-217, 219, 220*, 221, 222, 223*, 224, 225,
227,232-235,236-238,241,242*, 246-247,248-249,250-253, 254, 255-257,
259-260, 279-283, 284*, 294, 298*, 302*-303; Administrative Hearing
Exhibits D and E, Affidavit of Bradford K. Picton).
Petitioner complains that
the Commission's findings represented a disproportionate weighting
of the evidence. The Court concludes that this assertion is not
sufficient to justify reversal of the Commission's decision. There
is nothing in the record to indicate that the agency below abused
its discretion in weighing the evidence or determining the credibility
of witnesses. The agency is charged with the authoritative responsibility
to determine what the evidence means under the governing statute
and deference is due to the agency's decisions concerning issues
of credibility of witnesses. See Peoples Memorial Hospital
v. Iowa Civil Rights Commission, 322 N.W.2d 87, 92 (Iowa 1982);
Iowa State Fairgrounds Security v. Iowa Civil Rights Commission,
322 N.W.2d 293,295 (Iowa 1982).
For all of the reasons state
above, the Court concludes that the Commission's finding that
Petitioner violated Iowa Code Section 601A.11 is supported by
substantial evidence and justified as a matter of law.
With regard to the issue
of back pay, the Court finds that there is substantial evidence
in the record to support an award of backpay in this case. As
a general rule, a discriminatee is not entitled to back pay where
he or she fails to make a good faith effort to find work. Baggett
v. Program Resources, Inc., 806 F.2d 178, 182 (8th Cir. 1986).
However nothing in the record indicates that Ms. Johnson did not
make a good faith effort to look for work. Petitioner presented
no evidence to establish that Ms. Johnson's damages could have
been avoided, that there were suitable positions available which
she could have discovered and for which she was qualified, and
that she failed to use reasonable care and diligence in seeking
positions. The burden of proving failure to mitigate damages lies
with party seeking to assert that defense. See Disalvo v. Chamber
of Commerce, 568 R.2d 593 (8th Cir. 1985); see also Knaus
v. City of Des Moines, 357 N.W.2d 573, 577 (Iowa 1984); R.E.T.
Corp. v. Frank Paxton Co., Inc., 329 N.W.2d 416, 422 (Iowa
1983). Therefore, Petitioner's argument under its initial Brief
Point III is without merit. See Baggett v. Program Resources,
Inc., 806 F.2d 178 (8th Cir. 1986); Griffin v. Michigan
Dept. of Corrections, 654 F. Supp 690 (E.D. Mich. 1982).
The Court concludes that
the Commission's $5000.00 award to Ms. Johnson for exemplary damages
should be reversed under Iowa Code Section 17A.19 (8) (b) because
the Commission had no authority to award punitive damages to a
civil rights complainant. See Chauffers, Teamsters and Helpers,
Local Union No. 238 v. Iowa Civil Rights Commission, 394 n.W.22d
375, 384 (Iowa 1986).
Finally, the Court concludes
that substantial rights of the Petitioner have not been prejudiced
under Iowa Code 17A.19 (8) (a) because the Hearing Officer allowed
Ms. Johnson to testify by telephone at the administrative hearing
below. While the United States Supreme Court has stated that the
right to confront and cross-examine witnesses is a fundamental
aspect of procedural due process, see Jenkins v. McKeithan,
395 U.S. 411 89 S.Ct. 1843, 23 L.Ed 2d 404 (1969), Willner
v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct.
1175, 10 L.Ed. 2d 224 (1963), Greene v. McElroy, 360 U.S.
474, 79 S.Ct. 1400, 3 L.Ed. 2d 1377 (1959), it is not apparent
that Petitioner has been denied constitutionally guaranteed due
process of law or that it has suffered the prejudice required
by Iowa Code Section 17A.19 (8). Ms. Johnson was placed under
oath and Petitioner was given an opportunity to and did cross-examine
her quite extensively. It is true that the parties and the Hearing
Officer were not able to visually observe Ms. Johnson's demeanor.
They were, however, able to hear her, and had Petitioner felt
it necessary for the Hearing Officer to visually observe Ms. Johnson's
demeanor under examination, Petitioner could have requested to
subpoena Ms. Johnson, just as it did with the witness, Bradford
Picton. There is nothing in the record to indicate that Petitioner
requested to subpoena Ms. Johnson or that the Hearing Officer
denied Petitioner an opportunity to subpoena Ms. Johnson.
For all of the reasons stated above, the Court concludes that, with the exception of the award of $5,000 in exemplary damages, the final decision of the Iowa Civil Rights Commission as set forth in the Commission's April 22, 1986, Order and October 4, 1988, Decision on Remand should be affirmed in all respects. The Commission's award of $5,000 to Christy R. Johnson for exemplary damages should be reversed.
Based upon the foregoing, the court makes the following:
ORDER
IT IS ACCORDINGLY ORDERED,
in accordance with the provisions of Iowa Code Section 1 7A. 19,
that, except for the award of exemplary damages, the final decision
of the Iowa Civil Rights Commission as reflected in the Commission's
April 22,1986, Order and October 4,1988, Decision on Remand shall
be and hereby is affirmed.
IT IS FURTHER ORDERED That
the Commission's award of $5,000 to Christy R. Johnson for exemplary
damages shall be and is hereby reversed.
IT IS FURTHER ORDERED That
this matter be and is hereby remanded to the Iowa Civil Rights
Commission for such further proceedings as are consistent with
and necessary to implement its previous orders and rulings, as
modified by the Court's orders and rulings on judicial review.
(See, i.e., the Commission's directions for a factual stipulation
as set forth in Conclusion of Law #15 in the Hearing Officer's
March 10, 1986, Proposed Decision.)
IT IS FURHTER ORDERED That the costs of this action accruing after the Court's March 9, 1988, Ruling on Petition for Judicial Review shall be assessed against the Petitioner and judgment entered for such costs.
Dated this 29th day of November, 1989.
JUDGE, EIGHTH JUDICIAL DISTRICT
OF IOWA
Copies to:
Counsel of Record
Patrick M. Roby
Mark L. Zalger
Teresa Baustian
Cit. Adm.