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