IN THE IOWA DISTRICT COURT IN AND FOR LINN COUNTY


FRANK ROMAN, Petitioner,

vs.

IOWA CIVIL RIGHTS COMMISSION, Respondent.

No. LA 21805

RULING

This matter is before the Court on Petition for Judicial Review. Hearing was held before the undersigned on December 1, 1992. Petitioner Frank Roman was represented by attorney Gregory J. Epping; Assistant Attorney General Teresa Baustian represented Respondent Iowa Civil Rights Commission (the "Commission"). Having considered the record and arguments of counsel, the Court makes the following ruling.

STATEMENT OF THE CASE

Roman appeals from the Commission's decision that Dorene Polton was subjected to racial discrimination in housing by John Abeln, Roman's apartment manager. Roman owned the apartment building where Polton lived and employed Abeln as apartment manager. The Commission determined that Polton had been subjected to discriminatory treatment because of the race of her daughter's boyfriend who sometimes visited their apartment.

The ALJ concluded that Roman was liable for the discriminatory acts of Abeln under the doctrine of respondeat superior. Roman challenges this conclusion as an error of law. He argues that he may not be held liable for Abeln's acts unless he had knowledge of the prohibited conduct and failed to alleviate it. He also asserts that statutory construction of Iowa Code sec. 601A.8 requires the conclusion that either Abeln or Roman may be liable for Abeln's conduct, but not both. The Commission asserts that the ALJ's conclusion finding Roman liable is correct as a matter of law.

CONCLUSIONS OF LAW

The familiar principle of respondeat superior holds that a master is liable for the negligent acts of a servant. Brosamillie v. Mapco Gas Products, Inc., 427 N.W.2d 473,475 (Iowa 1988). At common law in Iowa, the master and servant may each and both be liable for a servant's tort committed in the course of employment. Wiedenfeld v. Chicago & N.W.Transp. Co., 252 N.W.2d 691, 695 (Iowa 1977). The liability of the master stands by operation of law on the same footing as the liability of the servant. Graham v. Worthington, 259 Iowa 845, 146 N.W.2d 626, 640 (1966).

Federal courts have applied the doctrine of respondeat superior to hold landlords liable for discriminatory conduct by their housing agents under federal laws. In cases of racial discrimination in housing under both 42 U.S.C. sec. 1982 and sec. 3604, courts impute the wrongful acts of a rental agent to the property owner, holding both liable. Cato v. Jilek, 779 F. Supp. 937, 946 (N.D. 111. 1991), citing Coates v. Bechtel, 811 F.2d 1045, 1051 (7th Cir. 1987). The landlord is liable where a rental agent's discriminatory acts are within the scope of the agent's apparent authority. Hamilton v. Svatik, 779 F.2d 383, 388 (7th Cir. 1985). The duty of the owner of a motel, apartment complex or other public housing facility to obey the laws relating to racial discrimination is non-delegable. Phiffer v. Proud Parrot Motor Hotel, Inc., G48 F.2d 548, 552 (9th Cir. 1980).

The question in the instant case is whether the doctrine of respondeat superior applies to conduct proscribed by sec. 601A.8. The Iowa Supreme Court appears to apply the doctrine in a case brought under sec. 601A.6(l). In Chauffeurs, Teamsters and Helpers, LocalUnion v. Iowa Civil Rights Comm'n, 394 N.W.2d 375, 380 (Iowa 1986), the court discussed the discriminatory conduct of Rod Hanson, a union steward, toward a black worker, Michael Daniels.

Since Hanson was an agent of the Union and there was substantial evidence to support the conclusion that he acted discriminatorily toward Daniels, we uphold the agency and district court's conclusions of union responsibility for his acts.

Id. The court then discussed the union's liability for Tiscriminatory acts not attributed to Hanson. Id. As totheseacts, the courtstated that "[t]o hold thed-nion responsible it may be necessary to show it had knowledge of the acts and failed to take action to alleviate the discrimination." Id. at 381.

The language in 601A.6(l)(b) parallels that in 601A.8 in listing the persons or entities prohibited from discriminatory practices. "Labor organizations or the employes, agents or members thereof" in sec. 601A.6(l)(b) is comparable to "any owner, or person acting for an owner" in sec. 601A.8. The position held by Roman's property manager is analogous to that held by the union steward in Chauffeurs, Teamsters. Underthe reasoning of Chauffeurs,Teamsters, Roman is responsible for Abeln's acts because Abeln was Roman's agent when he acted discriminatorily toward Polton.

Interpreting sec. 601A.8 to impose liability on Roman under the doctrine of respondent superior complies with the rule of construction that Chapter 601A should be construed broadly to effectuate its purposes. Iowa Code § 601A.18; Polk County v. Iowa Civil Rights Comm'n, 468 N.W.2d 811,816 (Iowa 1991). The legislative goal of chapter 601A is to correct a broad pattern of behavior rather than merely afford a remedy in a specific dispute. Iron Workers Local v. Hart, 191 N.W.2d 758,770 (Iowa 1971).

The Court concludes that it is appropriate to follow the lead of the cases applying federal fair housing laws. Roman's duty to obey laws relating to racial discrimination is non-delegable. Compare Phiffer, 648 F.2d at 552, with Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 382 (realty company had non-delegable duty to monitor agent's activities to avoid breach of fiduciary duty and fraud). Chauffeurs,Teamsters appears to approve the imposition of liability for racial discrimination under respondent superior principles. The Commission's application of the doctrine of respondent superior better promotes the legislative goals of chapter 601A. Its conclusion that Roman is liable for Abeln's discriminatory acts was not an error of law.

Roman's second argument is that the statutory language, "any owner, or person acting for an owner", allows either the owner or the agent to be found liable, but not both. Iowa Code § 601A.8 (emphasis added). Generally, when the word "or" is used in a statute, it is presumed to be disjunctive unless a contrary legislative intent appears. In re Marriage of Anderson, 451 N.W.2d 187, 190 (Iowa App. 1989). However, this rule is not ironclad.

It is well-known rule of statutory construction that the courts will construe disjunctive words as conjunctive, and vice versa, and will disregard technical rules of grammar and punctuation, when necessary to arrive at the intent of the legislative body.

Green v. City of Mt. Pleasant, 256 Iowa 1184, 131 N.W.2d 65, 23 (1964). The word "or" may be used or construed in the conjunctive sense to avoid an absurd or unreasonable result. Lahn v. Incorporated Town of Primghar, 225 Iowa 686, 281 N.W. 214, 216 (1938).

Sec. 601A.8 prohibits discriminatory conduct by a property owner or a person acting for the owner. It does not delineate who is responsible or liable for such conduct. To construe the statite to place responsibility on only one individual is unreasonable in light of the rule that chapter 6OlA must be construed broadly. The common law doctrine of respondeat superior in Iowa allows that the master and servant may each and both be liable for the servant's acts. See Wiedenfeld, 252 N.W.2d at 695. This doctrine should be followed in applying sec. 601A.8. The Commission did not commit an error of law in finding both Roman and Abeln liable for Abeln's discriminatory conduct.

RULING

IT IS, THEREFORE, THE RULING of this court that
the Petition for Judicial Review is DENIED.

IT IS, FURTHER, THE RULING of this Court that the decision of the Iowa Civil Rights Commission is AFFIRMED.


Clerk to notify.

Costs to be taxed to Petitioner.

Dated this 22nd day of December, 1992,



THOMAS M. HORAN, District Judge Sixth Judicial District of Iowa