IN THE DISTRICT COURT OF IOWA,
IN AND FOR WAPELLO COUNTY
UNITED PARCEL SERVICE, INC.,
Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION
and VICTORIA L. HAMER,
Respondents.
Cause No. CL 267-0389
VICTORIA L. HAMER,
Petitioner,
VS.
IOWA CIVIL RIGHTS COMMISSION
and UNITED PARCEL SERVICE,
Respondents.
Cause No. CL 263-0289
RULING ON PETITION FOR JUDICIAL REVIEW
Both parties, the United
Parcel Service, Inc., and Victoria L. Hamer, seek judicial review
of a final decision and order of the Iowa Civil Rights Commission
dated February 10, 1989. This decision found that United Parcel
Service, Inc., violated Iowa Code Section 601A.6 in the termination
of Victoria L. Hamer because of sex. It ordered that United Parcel
Service, hereinafter UPS, shall cease and desist, shall reinstate
Victoria L. Hamer, hereinafter Hamer, with retroactive seniority
and back pay in the amount of $43,678-00 for the years 1984 to
1987 plus interest. The final order further reserved jurisdiction
to determine additional wages to be awarded beginning January
1, 1988, through the date of reinstatement. It was further ordered
that United Parcel Service should reimburse Hamer for medical
expenses incurred in the amount of $407.25 and pay her $5,000.00
for emotional distress. In addition, Hamer was awarded $8,083.20
toward her attorney fees. The petition on behalf of UPS was filed
in this court on March 10, 1989. The petition on behalf of Hamer
was filed in this court on February 24, 1989. Briefs were filed,
and this matter was orally argued to the Court on October 23,
1989. This ruling is applicable to both cases.
UPS raises 13 grounds for its appeal. Hamer, both through her attorney and the attorney for the commission, raise the amount of back earnings awarded as the basis for her appeal. This Court finds no merit to any of the matters raised by UPS except as to the award of damages for emotional distress, which are not supported by substantial evidence. Except for that matter, the final order dated February 10, 1989, should be affirmed.
STATEMENT OF THE CASE
Hamer was terminated by UPS on March 21, 1984. On August 27, 1984, she filed her complaint with the Iowa Civil Rights Commission, alleging she had been discriminated against on the basis of sex in two particulars, i.e,. (1) a night washer porter's job became available and she was not considered, although more quualified for it than another person later hired, and (2) she was terminated for reasons attributable to her sex. On April 18, 1986, she amended her complaint, alleging that her medical condition was a factor in the alleged incidents, failure to hire, harassment, and termination. The complaint was duly answered by UPS, and the matter was investigated pursuant to statute and regulations of the Iowa Administrative Code. The case was assigned to an investigator in August of 1985, but it was not until July 27,1987, that a recommendation was made and approved to proceed to hearing. The hearing was set on November 9, 1987, in Des Moines, Iowa. At the request of UPS, the hearing date was continued until January 12, 1988. The place of hearing was transferred to Ottumwa, Iowa, and it commenced on January 12, 1988, and proceeded on January 13 and 14, Febuary 2 and 3, and concluded in Des Moines, Iowa, on March 8, 1988. The record was closed, briefs were submitted, and on July 7, 1988, the hearing office (now administrative law judge) filed her proposed decision. After the parties filed various affidavits and exceptions supported by briefs, the Iowa Civil Rights Commission met on August 26, 1988, and affirmed the administrative law judge's proposed decision as to items 1, 2, 3, and 6. The commission remanded back to the administrative law judge for determination of items 4, 5, and 7, which were back pay, medical costs, and attorney fees. On October 26, 1988, the hearing officer filed a proposed order on remand, and the matter was taken up before the Civil Rights Commission on January 27, 1989, and their final order as above recited was filed herein on February 10, 1989. These appeals to the district court followed.
CONCLUSIONS
"The district court's
review of agency findings under the Iowa Administrative Procedures
Act is at law, not de novo. Harlan v. Iowa Dept. of Job Service,
350 N.W.2d 192, 193 (Iowa 1984). The scope of review of the Court
under Iowa Code Section 17A.19(1989) is to correct errors of law
specified in Section 1 7A. 19(8).
The court may modify agency
findings of fact in a contested case if they are "unsupported
by substantial evidence made before the agency when the record
is viewed as a whole." Iowa Code Section 17A.19(8)(f) (1989).
Evidence is substantiated if a reasonable person would find it
to be adequate to reach the given conclusion, even if a reviewing
court might draw a contrary inference. Messina v. Iowa Dept.
of Job Service, 341 N.W.2d 52, 59 (Iowa 1983). Findings
of the commission are binding unless a contrary result is demanded
as a matter of law. Ward v. Iowa Dept. of Job Service,
304 N.W.2d 236, 238 (Iowa 1981; Chauffeurs Teamsters, and Helpers
Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d
375, 379 (Iowa 1986).
In a case involving sex
discrimination, the burden of proof is upon the complainant to
establish a prima facie case of discrimination. Once this has
been established, the employer may produce admissible evidence
which would allow the trier of fact rationally to conclude that
the employment decision has not been motivated by discriminatory
animus. The complainant retains the burden of persuasion and now
has the opportunity to demonstrate that the proffered reason was
not the true reason for the employment decision. This burden merges
with the ultimate burden of persuading the trier of fact that
she has been the victim of intentional discrimination. She may
succeed in this by either directly persuading the Court that a
discriminatory reason more likely motivated the employer or indirectly
by showing that the employer's proppered explanation is unworthy
of credence. Linn Cooperative Oil Co. v. Quigley, Iowa,
305 N.W.2d 729, 733 (1981).
Hamer sustains her claim
of sexual discrimination by virtue of her testimony and the testimony
of the former center manager, Aaron Ver Steeg. This testimony
presents ongoing incidents of sexual harassment, misconduct by
male employees toward female employees, and bias upon the part
of management. The evidence is disputed, denied, and explained
by current employees of UPS and either former or current management
personnel of UPS. Much of the determination as to a factual finding
will necessarily involve the credibility of witnesses. They were
observed by the hearing officer, and only she has the benefit
of first- hand impression. UPS urges that witness Ver Steeg is
a disgruntled former employee who was terminated by UPS on grounds
of fidelity. His motive and candor must be closely examined. Without
exception, each witness called on behalf of UPS denies the claim
or charges. Much of the evidence revolves around the three days
in question, March 19, 20, and 21. As to those events, the hearing
office replaced more credibility with the complainant's version.
This was also true as to the events of harassment.
We now reach what is determined
to be the key and crucial piece of evidence in this detemination.
It is respondent's Exhibit GG, the start time sheets for the Ottumwa
employees for the weeks ending February 4, February 11, February
18, February 25, March 3, March 10,and March 17,1984. It is the
document for the following week that now becomes crucial to the
respondent's case. Although required to produce it, it was not
forthcoming for the reason that it was now unavailable. It can
hardly be termed an "obscure document." This is the
very document which could have afforded the necessary proof for
UPS. This document is the very foundation of proof for the need
during that week for the services of Vicky Hamer. The hearing
officer determined that it would be hard to conceive of the preservation
of the various exhibits offered, Respondent's Exhibits B through
Z, excluding A, H, and Y, and yet fail to preserve the start time
record for the week ending March 24, 1984. The issue is not what
this Court would have done upon hearing that evidence; the question
is, could a reasonable person now find it adequate in light of
the missing document, the explanation given by UPS, and the surrounding
evidence and circumstances of the case. This Court concludes that
that matter goes to failure of admissible evidence which would
allow the trier of fact to rationally conclude that the employment
was terminated for a discriminatory reason. Reasonable minds could
conclude that the finding of termination based upon sex was supported
by substantial evidence.
Other claimed errors have
been reviewed. Except as to the claims of participation, emotional
damages, backpay, attorney fees, and denial of a transcript, they
involve questions of credibility of the witness and findings of
fact by the administrative law judge. The conclusions in the prededing
paragraphs are applicable thereto. As to the constructive participation
of the investigating official in the deliberations of the commission,
this Court finds no error. As pointed out in the brief of the
Iowa Civil Rights Commission, at page 16, there is no showing
that the commissioner improperly; had or used the results of the
investigator's summary at the time of hearing. More than a year
elapsed between the July 27, 1987, letter on page 51 of respondent's
appendix to the time of hearing on August 26, 1988. It cannot
be concluded that the investigating official participated by virtue
of Commissioner Cothorn's possible awareness more than a year
prior. Section 601 A. 15(6).
UPS complains that they
were denied a transcript prior to the hearing's completion. Assuming
for the sake of argument that the administrative law judge was
incorrect in denying a transcript prior to final submission, it
is not of sufficient magnitude to require a reversal at this time.
The rule applied to both parties. Both parties were represented
by skilled trial counsel who are used to working from courtroom
notes and in the general trial practice do not always have transcript
available to them for use in the preparation of briefs. As a matter
of fact, having the complete transcript for the preparation of
the initial brief and argument to the trier of fact would be the
exception rather than the rule. There is no merit to the argument
that this requires reversal.
The Court does not find
the award of damages for emotional distress to be supported by
substantial evidence. Considering the complainant's reaction,
participation, and demeanor, she has failed to show proof of emotional
distress from the claimed harassment. This is true even though
it is merely an item of damages without the additional burden
of proving intentional infliction. The administrative law judge
concluded from the transcript, at page 87, line 20,
"Q. When you found out that you have been terminated -- or at least that you were no longer employed by United Parcel Service on that Wednesday afternoon, March 21, 1984, what was your response at that time? What was your reaction?"
"A. Total shock, terror."
"Q. Why do you say terror?"
"A. I couldn't understand what happened. I was just -I was just in total shock, confusion."
that damages from emotional
distress likely followed. This was corroborated by the witness's
appearance, demeanor, and testimony. The loss of property and
the disruption of living conditions were noted. A review of the
entire record reveals that after a period of time, the complainant
was able to obtain employment. She received unemployment benefits
during the interim period. Her medical record was placed in evidence,
and nothing therein suggests a complaint of or treatment of emotional
distress. She did have numerous other medical problems which were
unfortunate but which could not be attributed to the termination
by UPS. As to the situation of lost property, some of the vehicles
were racing cars in which she had an interest. She was able to
recoup some of the loss of property after a court hearing in 1986.
The Supreme Court has indicated that there may be recovery of
damages for emotional distress in this type of case in Chauffeurs,
Teamsters, and Helpers Local Union No. 238 v. Iowa Civil Rights
Commission, 394 N.W.2d 375, 383. That particular case upheld
the award of those damages after a blatant case of race discrimination.
The impact in this case was sudden and not one of a prolonged
period, as in Chauffeurs (ten months). Also, the conduct
in this case s not rise to the level of the conduct in Chauffeurs.
Here, there was no proof of a medical condition or of any evidence
other than the initial reaction to the firing. Not to minimize
the event, termination is serious and traumatic. This case, however,
does not have substantial evidence to justify the award of $5,000.00
for emotional distress.
We now come to the claim
that the final order improperly fixed the amount of back pay for
the years 1984, 1985, 1986, and 1987. Section 601A.15(8)(a)(1)
allows reinstatement with or without pay, excluding earned income
and unemployment compensation. Both of complainant's attorneys
urged the commission erred in mitigating the award by $6,968.00
in 1985 and 1986. The brief of the Iowa Civil Rights Commission
correctly states the rule that UPS had the burden and further
argues that it did not fulfill it. Complainant's private attorney
adopts this position. From the record, the commission concluded
complainant did not in fact mitigate, even though it stated "The
law is clear respondent has the burden of proving failure to mitigate,
it did not do so." The record supports the conclusion that
the complainant did not mitigate, even though respondent did not
offer this evidence. As respondent pointed out in its reply brief
filed August 31, 1989, page 21, the matter was discretionary with
the commission. The computation set forth in respondent's reply
brief, pages 18 and 19, appears to be supported by substantial
evidence in the record and should be affirmed.
The commission may award attorney fees pursuant to Section 60A.15(8)(a)(8). It has done so, and the Court finds no error.
ORDER
IT IS THEREFORE ORDERED that the final order of the Iowa Civil Rights Commission dated February 10, 1989, shall be and is hereby approved and confirmed except for paragraph 6 thereof, which is hereby stricken; otherwise, it is hereby approved. The costs of this proceeding shall be assessed one half to the complainant, Victoria L. Hamer, and one half to the respondent, United Parcel Service, Inc.
Signed this 11 th day of January, 1990.
JUDGE, EIGHTH JUDICIAL DISTRICT