IN THE IOWA DISTRICT COURT FOR HENRY COUNTY

J & J MOTORS, an Iowa Corporation,

Petitioner,

VS.

THE IOWA CIVIL RIGHTS COMMISSION,

Respondent.

No. CL 1159-0988

RULING ON PETITION FOR JUDICIAL REVIEW

Petitioner, J & J Motors, an Iowa corporation, seeks judicial review of the final agency action of respondent, Iowa Civil Rights Commission, pursuant to Iowa Code Sections 601A.17(l) and 17A.19. The agency action petitioner seeks review of is a final decision of respondent awarding back pay to James Franklin, a former employee of petitioner, based upon a finding of age discrimination under Iowa Code Section 601A.6.

Judicial review of final civil rights commission action is governed by Iowa Code section 17A.19(8). See Iowa Code Section 601A.17(l); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 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 made before the agency. See Wiese v. Iowa Department of Job Service, 389 N.W.2d 676, 681 (Iowa 1986); Tayor 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 Transportation, 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 any 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 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 261, 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 proponderates 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 requirement 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 at 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 Rights Commmission, 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); Herring v. Iowa Law Enforcement Academy, 341 N.W.2d 65, 66-69 (Iowa App. 1983).

The question on judicial review is not whether there is sufficient evidence to warrant a decision the agency did not make, but rather whether 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.2d3O7, 312 (Iowa 1978).

At the same time, however, findings of fact and a reasoned decision by the agency are required by Iowa Code Section 1 7A. 16 and are essential for the purposes 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 Independent 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 on 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. James Franklin was hired and started working for petitioners as a mechanic on January 22,1979. Franklin's last day of employment with petitioner was December 31, 1981. Franklin was born September 30, 1935, and was age 46 in December of 1981.

On December 22, 1982, Franklin filed a complaint with the Iowa Civil Rights Commission alleging discrimination in employment by petitioner on the basis of age and physical disability. Petitioner denied the allegations and challenged the jurisdiction of the commission to address the complaint. Petitioner asserted and continues to assert that Franklin failed to comply with the provisions of Iowa Code Section 601 A. 15(12) by failing to file his complaint with the commission within 180 days after the alleged discriminatory or unfair practice occurred.

A contested case hearing was held before administrative Hearing Officer lone Shadduck on October 7,1986. Hearing Officer Shadduck thereafter filed her Proposed Findings of Fact, Conclusions of Law, Recommended Decision and Order dated December 30, 1986. J & J Motors filed its written Exceptions to Proposed Findings of Fact and Conclusions of Law on February 16, 1987. In a Final Order dated February 27, 1987, and filed March 4, 1987, the Iowa Civil Rights Commission adopted the hearing officer's December 30, 1986, proposed Findings of Fact, Conclusions of Law, Recommended Decision and Order as its own final Findings of Fact, Conclusions of Law, Decision and Order.

In the FINDINGS OF FACT portion of her December 30, 1986, Proposed Findings of Fact, Conclusions of Law, Recommended Decision and Order, the hearing officer made the following numbered finding of fact:

1. The Complainant, James Franklin, timely filed verified complaint CP# 12-82-9449, with the Iowa Civil Rights Commission on December 22, 1985, and an amendment on June 25, 1985, charging discrimination in employment on the basis of age and physical disability against J & J Motors. It was stipulated that the allegations referred to employment decisions of layoff and failure to recall occurring 12-31-81 and continuing. It was further stipulated that the amendment alleged discrimination on the basis of a disability of alcoholism.

2. The case was investigated, probable cause found, conciliation unsuccessfully attempted and the case proceeded to public hearing with notice issued.

3. Franklin was born 9-20-35 and was age 46 in December 1981 when he was laid off from J & J Motors. Franklin started work for respondent in January 1979, as a mechanic. He had approximately 20 years prior experience.

4. Franklin's primary job with respondent was predelivery bus work, although he also worked on cars and trucks.

5. Franklin is an admitted alcoholic. Although he did not drink on the job, he did miss work and physically suffer at times during work because he had been drinking. [Transcript pp.. 15-16]. He never received any warnings because of this problem.

6. During his employment with respondent, Franklin pursued certification through Automotive Service Excellence (ASE) standards. In June 1980, he received certificaiton in the following automobile service areas: engine repair, automative transmission, manual transmission and rear axle, front end, brakes, electrical systems, engine tune-up. In December 1980, he became certified as a General Truck Mechanic in the areas of: gasoline engines, drive train, brakes, suspension and steering, electrical systems.

7. Respondent furnished Franklin with a car to take the tests which resulted in the above certifications. Respondent denies knowing that certification was awarded to Franklin.

8. On December 31, 1981, Franklin and a Ron Pitsinger were laid off. The reason given was that the work was slow. Pitsinger was approximately 51 at the time of the layoff. Three mechanics were retained: Gary Rummelhart, Ron Wagner, and Wayne Diers. Diers; had more seniority than Franklin and Pitsinger. All were younger than the two laid off. Rummelhart and Wagner were in their early twenties.

9. Several times subsequent to his layoff, Franklin stopped by J & J Motors to check on the possibility of recall. He was never recalled. Rospondent did hire two younger employees during this time.

10. Franklin was granted unemployment benefits. About a year later he took a job at McCormac's Ford Garage where he worked for about 3 months and was fired. He then got a job with McWhirter's Buick- Chevrolet where he was working at the time of hearing.

11. Franklin was late up to 2 hours 77 times during 1981 [Transcript p.30]. Several times he did not call in that he would not be in to work. Rummelhart was not only regularly tardy, but more consistently tardy than Franklin.

12. Watts also worked for respondent. He was about age 60 and worked primarily in the body shop. Franklin was not trained in that area of work. Evidence does not indicate whether or not Watts was still an employee. He was, however, hired after the layoff.

13. Sometime during his employment with respondent, Franklin injured his back and spent several weeks in the hospital and off work. He did return to work without restriction and continued to work for quite awhile after the injury. Specific dates are not in evidence. Any problems at work because of this injury are not in evidence.

14. J & J Motor is an Iowa Corporation owned by Jacob B. Schafer and Doris J. Shafer, located in Mt. Pleasant, Iowa. Jacob Schafer acted as general manager of the business and made the decisions as to hires, layoffs, and firing. During the time at issue, respondent was an American Motors dealer and worked under contract with International Motors to do the predelivery (P.D.) work on buses.

15. As a mechanic, Franklin worked on used cars and P.D. Rummelhart started in December 1979. He worked on trucks and buses. He had 2 years schooling at Lincoln Tech. Diers had been a general mechanic for J & J Motors since 1974. Wagner started originally in the body shop, but then moved to bus work. Pitsinger was a P.D. worker and for a short time the service manager.

16. In late fall of 1981, business suffered and respondent felt the need to reduce the number of employees. He selected Pitsinger and Franklin for layoff. In selecting who to lay-off, Schafer considered whether employees had a family to support, ability and formal schooling, willingness to work extra hours without complaining, tardiness, attitude with the public, and productivity.

17. Schafer knew Franklin was an alcoholic. When he hired him he was under driver's license suspension because of OMVUI.

18. Schafer stated that he terminated rather than laid off Franklin. Franklin understood he was laid-off because of slow business.

19. In August 1982, Schafer hired Mark Burnham, a young man, as a handyman and helper to the mechanics. Diers testified that Burnham was in his twenties, worked full time and worked on cars. Schafer also hired Tommy Piper. Piper was hired when J & J Motor took on Chrysler to work primarily on those products.

20. According to Pitsinger, Rummelhart and Wagner worked primarily on buses and their experience was limited - Wagner to body work and Rummelhart to training while in school. Schafer admits that Wagner was not completely certified.

21. Diers was the employee who worked primarily on automatic transmissions. He was certified with ASE and believed that he was the only mechanic so certified. Franklin was also certified by ASE as a General Truck Mechanic (12-31-80) and certain Automotive areas including automatic transmissions and electrical systems. (See Complainant's Exhibits 1 and 2). Diers certification of 7-31-82, was the same as Franklins with the addition of "heating & Air Conditioning." (See Respondent's Exhibit B).

22. According to Schafer, only Diers was trained to work on Allison transmissions. (Transcript p. 94, lines 17-24.) Allison transmissions were transmission in the school buses. He noted that the fact that he spent money on schooling and certification for people was a factor in keeping these people. See transcript p. 84, 94). It should be noted that Schager sent Franklin for certification at least twice. Schafer also testified that Rummelhart was certified in the Allison transmission when he graduated from school. No evidence was submitted on that certification. (Transcript p. 97.) He then testified that there is a special school and special tests for Allison transmission and that he "sends his boys there". (Transcript p. 98)

23. In discussing the factors considered in laying- off Franklin, Schafer stated that he knew Franklin had children, that Franklin worked extra hours as did the others and was willing to do so, admitted Rummelhart was regularly late coming in to work. Schafer said he did not know that Franklin was certified by ASE. Schafer denies that Franklin's alcoholic problem was a factor in his being selected for layoff. Schafer knew Franklin had the problem when he hired him.

24. The "would have" earnings of Franklin with deductions for unemployment benefits and actual earnings were stipulated to be $5,087.39.

In the CONCLUSIONS OF LAW portion of her December 30, 1986, Proposed Findings of Fact, Conclusions of law, Recommended Decision and Order, the hearing officer made further conclusions with respect to the facts as follows:

Although there is some conflict as to whether or not Franklin was terminated or laid off, on the basis of the facts that the complaint filing date and allegation of continuing violation were not challenged it is concluded that Franklin was laid off and that after the lay off, he was not recalled.

He (Franklin was qualified for the job from which he was laid off and could have assumed other jobs.

At the time of layoff, the mechanics were:

Mechanic	Approximate Age
Ronald Pitsinger	51
James Franklin	46
Wayne Diers	40's
Gary Rummelhart	20's
Rodney Wagner	20's

The selection of the two oldest employees would infer that age was not treated neutrally.

Respondent (J & J Motors) in the case at issue considered whether employees had a family to support, their ability and formal schooling, willingness to work extra hours without complaining, tardiness, attitude with the public, and productivity. Respondent stated that Rummelhart had certification from the school he attended and that he did not know Franklin was certified; that he needed someone to work on the Allision transmissions; that there was reduced need for P.D. work.

The record is clear why Diers was not selected for layoff. He had been an employee of respondent for 17 years. He was the person skilled working on the special transmission in the buses and was called upon to perform the work other mnechanics were not able to do.

Why were Rummelhart and Wagner not selected? Both were in their 20's. Rummelhart had no experience, only schooling. Wagner had some experience in body work but minimal experience in mechanics. Franklin had 20 years experience as a mechanic and had been working with J & J Motors since January 1979. Both had been hired after Franklin: Rummelhart in December 1979 and Wagner sometime between October 1979 and December 1981. Mark Burnham, also in his 20's with no experience, was hired in 1982, during the time Franklin was expecting to be recalled. Tommy Piper was hired when J & J Motors took on Chrysler products. Respondent stated that he considered whether or not employees had a family to support. There is nothing in evidence that Rummelhart or Wagner had families to support. Respondent stated that Rummelhart was willing to work extra hours. It was admitted that Franklin was also willing to work extra hours. There was no evidence presented that the attitude with the public or productivity was any less favorable for Franklin than for Wagner or Rummelhart. The evidence indicates that the tardiness record of Rummelhart was worse than that of Franklin. The evidence clearly shows that Franklin was a certified mechanic; that although respondent stated he did not know of the certification, the record also shows he did not bother to check on that certification before selecting Franklin for layoff. The employer knew Franklin took the certification tests; he should have known whether or not he was subsequently certified if only to know what his employee was qualified to do as a mechanic. The fact that Franklin did P.D. work and that was the primary area of slow down does not in itself support the selection decision. The two younger and less senior employees also did P.D. work.

Based upon the fact findings set forth above, the hearing officer concluded that Franklin's complaint was timely filed, that the issues raised in Franklin's complaint were properly before the hearing officer, and that J & J Motors violated Iowa Code Section 601A.6 by discriminating against Franklin on the basis of age. The hearing officer concluded that allegations of disability discrimination should be dismissed. Based upon these conclusions the Iowa Civil Rights Commission, in its February 27, 1987, FINAL ORDER, awarded Franklin back pay in the amount of $5,087.39, plus interest at 10% per annum from December 22,1982.

Petitioner thereafter filed its Petition for Review in Henry County Iowa District Court on March 16, 1987. Following argument before the Court on January 26, 1988, on the issue of jurisdiction under Iowa Code Section 601A.15(12), the Court concluded that the issue of compliance with Section 601A.15(12) was not sufficiently addressed by the hearing officer for the Court to determine whether or not Franklin's complaint was timely filed. On February 1, 1988, the Court filed a Remand Order requesting specific findings of fact on the issue of whether Franklin was terminated or laid off.

Pursuant to the Court's February 1, 1988, Remand Order, the hearing officer filed a Proposed Decision on Remand, dated August 5, 1988, which was adopted by the Iowa Civil Rights Commission in a Final Decision on Remand, dated September 14, 1988. In her Proposed Decision on Remand, the hearing officer made the following findings of fact:

1. There was general agreement that in December 1981, the time Franklin left respondent, the work had become slow. Transcript pages 24, 32, 38, 57, 60, 71, 81-82,

2. Franklin believed that he was laid off indefinitely because the work was slow. The fact that Pitsinger received a different impression of the conservation does not negate what Franklin believed. Transcript pages 24, 39, 57, 60, 61, 66, 67, 87, lines 10-11

3. Franklin left his tool box at respondent's place of business and returned there several times to ask about being recalled. Respondent admits the tool box was there almost a year. Transcript pages 26, 66-67, 87, lines 12-15, 103, lines 17-25, 104, line 1.

4. It wasn't until late in the fall (1982) that Franklin became aware that he would not be recalled. He became aware that Respondent was remodeling , was taking on another franchise and workers were being hired. One worker, a younger person, was hired in August 1982, which is within the 180 day time requirement. Transcript pages 28, 41-42, 28, 67, 87, lines 20-23.

5. The term "laid off" was consistently used and accepted at the Hearing except for one instance when respondent stated that Franklin was terminated. However, respondent later admitted he didn't know which words he used when he talked with Franklin in December 1981. Transcript pages 66, 83-84, 85, 87, 103, lines 5-8,105.

6. Any incident which occurred on or after June 27, 1982, would be within the 180 day period.

7. The complaint filed December 1982, when memories were fresh, alleged that Franklin was laid off for economic reasons and would be called back in June 1982. It was also alleged in the complaint that Franklin visited with respondent from May through August 1982, inquiring about getting called back. Franklin was still inquiring about being called back in December of 1982, the month he filed the complaint. Four years later, at the public hearing, memories were fuzzy on dates but essentially the dates were the same as stated in the complaint.

Based upon these findings, the commission concluded that J & J Motors was guilty of a continuing violation based on a day off and failure to recall after December 31, 1981, that Franklin's December 22, 1982, complaint was timely filed, and that the commission had jurisdiction of the case.

This case came back before the Court on September 21, 1988, when petitioner filed its Petition for Review of Proposed Decision on Remand. Oral argument on petitioner's petition for judicial review was set for July 24, 1989, and the parties presented written briefs and oral arguments. Based upon the agency record below and having considered the briefs and arguments of the parties, the Court makes the following;

CONCLUSIONS OF LAW

The general legal questions posed by this case are whether the agency below had jurisdiction under Iowa Code Section 601A.15(12) to address James Franklin's discrimination complaint and whether the agency's finding that petitioner violated Iowa Code Section 601A.6 by discriminating against James Franklin on the basis of age is supported by substantial evidence and justified as a matter of law.

The Court first will address the jurisdictional question. James Franklin's last day of employment with petitioner was December 31, 1981. Franklin did not file his discrimination complaint with the Iowa Civil Rights Commission until December 22,1982. Iowa Code Section 601 A. 15(12) provides as follows:

A claim under this chapter shall not be maintained unless a complaint is filed with the commission within one hundred eighty days after the alleged discriminatory or unfair practice occurred.

It appears that failure to comply with the time requirements of Iowa Code Section 601A(12) would not only deprive the Iowa Civil Rights Commission of authority to consider the substantive issues in this case, but would also deprive this Court of jurisdiction to consider the case upon a petition for judicial review. See Annear v. State, 419 N.W.2d 377, 378-379 (Iowa 19 ); Messina v. Iowa Department of Job Service, 341 N.W.2d 52,55 (Iowa 1983); Franklin v. Iowa Department of Job Service, 277 N.W.2d 877, 881 (Iowa 1979); see also Ball v. Iowa Department of Job Service, 308 N.W.2d 54, SS (Iowa 1981).

Even though Franklin's complaint was filed well over 180 days after his last day of employment with petitioner, the agency below found that Franklin's complaint was timely filed and that it had jurisdiction over the case in issue. In making these findings, the agency relied on a "continuing violation" theory. The Iowa Supreme Court, in addressing the procedural requirements of Iowa Code Section 601A.15(12), has permitted the use of the "continuing violation" theory in connection with claimed violations of Iowa Code Section 601A.6. See Annear v. State, 419 N.W.2d 377, 380 (Iowa 1988).

Under a "continuing violation" theory an employee who charges an employer with continuously maintaining an illegal employment practice may file a charge of discrimination until 180 days after the last instance of that practice. Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988). The emphasis is not on mere continuity; the critical question is whether any present violation exists. Annear. 419 N.W.2d at 379.

A severing of the employment relationship ordinarily concludes a discrimination against the severed employee and activates the time period for filing charges with the commission. Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988). However, the Iowa Supreme Court has noted that this principle cannot be summarily applied where it is disputed whether a discharge has occurred. Annear, 419 N.W.2d 379. Such a dispute exists in the case at bar. Petitioner contends that Franklin was terminated with no mention of recall or rehire. The hearing officer found and respondent herein contends that Franklin was given to believe by petitioner that he was being laid off temporarily, rather than being terminated permanently, and that he would be recalled,

In considering whether the "continuing violation" theory applies in a situation where it is disputed whether a discharge has occurred, the Iowa Supreme Court has noted that courts are not really concerned with continuity as much as they are with assessing the employment situation from the layperson's viewpoint. The focus is on what event, in fairness and logic, should have alerted the average layperson to act to protect his rights, or when he should have perceived that discrimination was occurring. Annear v. State, 419 N.W.2d 377, 380 (Iowa 1988). In the situation where it is disrupted whether a discharge has occurred the 180 day limitation period of Iowa Code Section 601A.15(12) runs only from the date on which the employee, as and average layperson, should have perceived that discrimination was occurring. Annear,419 N.W.2d at 380.

The focus in this case is on what event, in fairness and logic, should have alerted Franklin, as the hypothetical average layperson, to act to protect his rights. The critical factual question is when Franklin, as an average layperson, should have perceived that discriminating was occurring. The hearing officer below found that Franklin was given to believe by petitioner that he was laid off in December, 1981, because work had substantially slowed down and that when things picked up again he would be able to return to work. The hearing officer further found that it was not until late in the Fall of 1982 that Franklin became aware that he would not be recalled. The hearing officer also found that petitioner had hired a younger person in August, 1982, which was within the 180 day period immediately preceeding Franklin's December 22, 1982, discrimination complaint. The Court concludes that these fact findings are supported by substantial evidence in the agency record when that record is viewed as a whole (see administrative hearing transcript at pages 24, 25, 26, 27, 28, 39, 40, 66, 67*, 87, 103) and are sufficient as a matter of law to support a finding that Franklin's complaint was filed within the 180 day time limit of lowa Code Section 601A.1 5(12) under a "continuing violation" theory. See Annear v. State, 419 N.W.2d 377 (Iowa 1988). The Court further concludes that the Iowa Civil Rights Commission had jurisdiction to address the substantive issues in this case and that the Court now has jurisdiction to address this case upon judicial review under Iowa Code Chapter 17A.

The substantive issue in this case is whether the agency's determination that petitioner violated Iowa Code Section 601A.6 by discrimination against James Franklin of the basis of age is supported by a substantial evidence and justified as a matter of law.

The hearing officer below concluded that Franklin was laid off and that after the lay off he was not recalled. Franklin had the burden to first establish a prima facie case of age discrimination by a preponderance of the evidence by showing:

1) that he belonged to a group protected by Iowa Code Chapter 601 A; 2) that he was qualified for the job from which he was laid off and subsequently not rehired for; 3) that, despite his qualifications, he was laid off and subsequently not rehired; and 4) that, after his layoff and the employer's failure to rehire him, the employer subsequently hired a person not in Franklin's protected class or retained persons with comparable or lesser qualifications who were not in the protected class. See Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 177 (Iowa App. 1988); Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986); Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161,165 (Iowa 1983); Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982).

The hearing officer found that Franklin established a prima facie case of age discrimination and this finding is supported by substantial evidence in the record. At the time Franklin left petitioner's employ he was 46 years old. It is clear that Franklin belonged to a protected age group (age 40-70). See Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 179 (Iowa App. 1988). There is substantial evidence indicating that Franklin was qualified for the job from which he was laid off (see administrative hearing transcript pages 9, 17-23, 54, 55 Complainant's Exhibits 1 and 2). Likewise, there is substantial evidence that, despite his qualifications, Franklin was laid off and subsequently not rehired by petitioner (see administrative hearing transcript pages 24, 26, 27, 28, 87, 103). Finally, there is substantial evidence that petitioner retained two persons not in Franklin's protected age class (age 40 to 70) who had comparable or lesser qualifications (see administrative hearing transcript pages 9, 12, 13, 17-23, 25, 26, 52, 54, 55, 58) and, subsequent to Franklin's lay off, hired at least one such person not in the protected age class (see administrative hearing transcript pages 27, 67, 68, 87).

Once a complainant establishes his prima facie case a presumption of discrimination arises and the burden of going forward with evidence shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action. sEe Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa 1988). In rebutting this presumption of discrimination, the employer's nondiscriminatory reasons must be specific and clear enough to the employee to address and legally sufficient to justify judgment for the employer. Wing, 426 N.W.2d at 178.

If the employer carries this burden of production, then the presumption of discrimination drops and the complaining employee must prove that the employer's proffered justification for the challenged action was pretextual. Wing, 426 N.W.2d at 178. Despite the shifting burden of protection of discrimination cases, the complaining employee bears the ultimate burden of persuasion of intentional discrimination and that the burden never shifts to the employer. Wing, 426 N.W.2d at 178. To prove that the employer's proffered justification for the adverse action was pretextual and in order to ultimately prevail, a complaining employee must convince the decision makes that (1) a discriminatory reason more likely motivated the employer or (2) the employer's proffered explanation is unworthy of credence. Wing, 426 N.W.2d at 178. Age discrimination need only be a determining factor in the adverse action against the employee, it need not be the sole determining factor. Wing, 426 N.W.2d at 178.

In the case at bar, the agency record reflects that the hearing officer recognized that petitioner was confronted with a slow down of business in December, 1981, and that petitioner's owner, Jacob Schafer, proffered various nondiscriminatory considerations that were allegedly used in selecting Franklin for layoff including employees' willingness to work extra hours without complaining, employees' tardiness, employees' attitude with the public, and whether employees had a family to support. In comparing Franklin's situation and qualifications with the situations and qualifications of the younger employees who were retained after Franklin's December 31, 1981, lay off, the hearing officer found several factual inconsistencies in the employer's application of the various considerations listed above. These inconsistencies are born out by the agency record (see administrative hearing transcript pages 9, 10, 12, 13-16, 17-24, 25-26, 39, 40, 48, 52-56, 58, 68-69, 80, 81, 82, 83, 90-97, 98-102, 105-106, and 107-110). It is apparent from the agency record that the hearing officer found that the proffered reasons for Franklin's release lacked credence and were pretextual. The Court concludes that this finding is supported by substantial evidence when the record is viewed as a whole. The hearing officer also found that age was a determining factor in petitioner's decision to release and not rehire Franklin. The Court concludes that this finding is likewise supported by substantial evidence (see administrative hearing transcript pages 25, 27, 29, 46, 47, 50-57, 58 68 69-70, 98, 106).

The Court concludes that the agency decision in this case is supported by substantial evidence and justified as a matter of law and should therefore be affirmed. See Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175 (Iowa 1988).

Therefore, in accordance with the provisions of Iowa Code section 17A.19. IT IS ORDERED That the final decision of the Iowa Civil Rights Commission awarding James Franklin back pay with interest shall be and the same hereby is affirmed with costs of this proceeding for judicial review assessed to petitioner.

Dated and signed this 18th day of October, 1989.

JUDGE, EIGHTH JUDICIAL DISTRICT

COPIES TO:
Counsel of Record