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.