Digest of Commission Decisions July
1, 1992 - June 30, 1993
James A. Montz and Iowa Civil Rights Commission v. Civil Service Commission
and City of Esterville, Iowa,
James A. Montz, a 43-year old applicant for the position of police officer
with Respondents, a city and its civil service conunission, alleges that
Respondents failed to consider or hire him for the position of police officer
due to a written policy specifying a maximum age requirement whereby the
applicant must not be older that 33 years of age at the at the time of appointment
to be considered for the position. During the five-day hearing, the Respondents,
while admitting the age-based policy, failed to prove a plethora of affirmative
defenses, including bona-fide occupational qualification (BFOQ), the mixed
motive defense, and reliance on various other statutory provisions and legal
defenses. In a 159-page decision, the Commission rejected the defenses and
held that the preponderance of the evidence had shown that the employer
(1) had indicated that individuals age 33 or over were not acceptable for
employment and (2) had refused to hire Montz due to his age.
Remedies awarded included $11,963.00 in back pay; $10,000 for emotional
distress; $1,544.71 moving expenses; $9,000.00 for loss on sale of house;
interest on all of the above; an order to cease and desist from any further
use of the age hiring cap; posting of equal opportunity notices; changes,in
job advertising and recruitment practices; and the compilation and reporting
of applicant flow information.
This decision was reversed by the Iowa District Court for Emmett County on June 25, 1993. The case is now on appeal to the Iowa Supreme Court where reinstatement of the Commission's decision is sought by the Commission.
James A. Montz and Iowa Civil Rights Commission
v. Civil Service Commission and City of Estherville, Iowa
This is the attorney's fees decision in this case. The Commission adopted
a proposed decision which awarded attorney's fees in the amount of $40,000
and litigation expenses in the amount of $4,102.85 for the period ending
September 24, 1992. The parties had stipulated to these amounts which shall
only be paid in the event the Commission and complainant should ultimately
prevail on the appeal of this case. As previously noted, this case is on
appeal before the Iowa Supreme Court.
Mike DeVolder and Iowa Civil Rights Commission v. Friedman Motor Cars, Ltd.,
Mike Friedman, Scott Henry and Pat Sullivan,
This is the attorney's fees decision in this case. Complainant DeVolder
claimed and was awarded attorney's fees in this case of $28,505.43 and litigation
expenses in the amount of $237.51, all to be paid by Respondents. The complainant's
attorney took the case on a contingency fee basis. Therefore, these fees
include a 10% enhancement to compensate for the delay in payment from the
time the case was taken until the attorney received the fees from the respondent.
Such an award is made because: Clearly compensation received several
years after the services were rendered--as is frequently the case
with complex civil rights litigation-is not equivalent to the same
dollar amount received reasonably promptly as the legal services
are performed, as would normally be the case with private billings...
Jf no compensation were providedfor delay in payment, the prospect
of such hardship could well deter otherwise willing attorneys from
accepting complex civil rights cases that might offer great benefit to
society at large. Missouri v. Jenkins, 491 U.S. 274, 284 & n.6
(1989).
In addition, a very modest 5% enhancement was also made for the risk of
nonpayment, i.e. the contingent risk that the complainant's attorney may
have recovered nothing if the complainant had not prevailed. In so doing,
the Commission rejected the holding of a recent United States Supreme Court
decision barring enhancement of attorney fee awards under feeshifting statutes
for risk of nonpayment. Burlington v. Dague, 120 L. Ed. 2d 449, 459 (1992).
This holding was not persuasive because it was (a) violative of the controlling
Iowa authority requiring liberal interpretation and construction of the
Iowa Civil Rights Act and requiring that the contingent risk of nonpayment
be taken into account with respect to other fee statutes; and (b) contrary
to the greater weight of authority in other state courts and prior holdings
of federal circuits which allowed such enhancements.
This case was appealed to the Iowa District Court for Polk County, but was
settled for the full amount of damages and attorneys fees prior to any ruling
by the court.
Dorothy A. Abbas and Iowa Civil Rights Commission v. City of Hampton.
Complainant Abbas' complaint originally named the City of Hampton, Kenneth
Herwig (City Clerk), and the Mayor and City Council of the City of Hampton
as Respondents. In exchange for the City of Hampton's agreement to waive
"any argument that the City of Hampton is not legally responsible for
the actions of the entities and/or persons dismissed," the complaint
was voluntarily dismissed with prejudice with respect to Respondents Herwig,
the Mayor, and the City Council of the City of Hampton.
Abbas alleged that she was subjected to retaliation for filing a prior complaint
through harassment and reduction of her position to a part-time status which
also resulted in a reduction of her hourly wage. Acts of alleged harassment
included reduction of her work assignments, increased scrutiny of her work,
and threats of a lawsuit. By a three to two vote, the Commission reversed
the proposed decision which found retaliation, struck all findings of fact
in the proposed decision, and made no findings of fact with respect to the
reversal. At a subsequent meeting, the Commission came to a two to two tie
vote on Complainant's application for rehearing.
The complainant has filed an appeal in the District Court for Polk County.