DOROTHY A. ABBAS, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION

vs.

CITY OF HAMPTON, Respondent.

CONCLUSIONS OF LAW

Jurisdiction:

1. Complainant Abbas' complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (1987). See Finding of Fact No. 2. All the statutory perquisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15 (1987). See Finding of Fact No. 3.

2. Ms. Abbas' complaint is also within the subject

matter jurisdiction of the Commission as the allegation that the Respondent City of Hampton retaliated against her because she filed a complaint falls within the statutory prohibition against unfair employment practices. Iowa Code S 601A.11 (1987).

3.

It shall be an unfair or discriminatory practice for:

. . .

(2) Any person to discriminate against another person in any of the rights protected against discrimination on the basis of age, race, creed, color, sex, national origin, religion or disability by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.

Id.

Official Notice:

4. Official notice may be taken of all facts of which judicial notice may be taken and of matters within the specialized knowledge of the agency. Iowa Code § 17A.14(4). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980). Judicial notice may be taken of all papers properly issued or filed or returned in the case then before the adjudicator. Slater v. Roche, 148 Iowa 413, 418, 126 N.W. 921, 927 (1910). See also C. McCormick, McCormick on Evidence 927 (2nd ed. 1984).

Persuasive Value of Opinions From Other Jurisdictions:

5. Federal court decisions applying Federal anti-discrimination laws are not controlling or governing authority in cases arising under the Iowa Civil Rights Act. E.g. Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978). Nonetheless, they are often relied on as persuasive authority in these cases. E.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Although even decisions of the United States Supreme Court have been rejected as persuasive authority when their reasoning is inconsistent with the broad remedial purposes of the Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d at 831; Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866-67 (Iowa 1978), its opinions are often entitled to great deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission at 866.

6. In determining the persuasive value of any Federal decision, or decision of another state, or other legal authority, it must be borne in mind that the Act is a "manifestation of a massive national drive to right wrongs prevailing in our social and economic structures of our country," Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971).

7. Decisions from other jurisdictions should be rejected as persuasive authority when violative of the controlling authority requiring liberal interpretation and construction of the Iowa Civil Rights Act. When determining the sense and meaning of the written text of a statute providing regulations conducive to public good or welfare, the statute is liberally interpreted. State ex. rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 629 (Iowa 1971). When determining the legal effect of its provisions, the Iowa Civil Rights Act "shall be broadly construed to effectuate its purposes," Iowa Code S 601A.18 (1991), and "liberally construed with a view to promote its objects and assist the parties in obtaining justice." Iowa Code S 4.2. "In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it." Monroe Community School District v. Marion County Board of Education, 251 Iowa 992, 998, 103 N.W.2d 746 (1960); Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 832 (Iowa 1978). Therefore, constructions of the statute which "effectively defeat the remedial purpose of Chapter 601A [the Iowa Civil Rights Act]." should be rejected. See Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 167 (Iowa 1982).

Repeated Threats By Her Supervisor at Work to Sue Complainant For Libel Because of Statements Made In Her Complaint Constitute Illegal Retaliation Under the Iowa Civil Rights Act:

8. The anti-retaliation language of the Iowa Civil Rights Act protects an employee against adverse employment action due to his or her filing of a complaint. Iowa Code S 601A.11. It is beyond cavil that the protection against illegal employment practices encompasses threats or other harassing activities at the worksite. See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986). In other words, it is just as illegal for an employer or an employer's agent or supervisor to threaten an employee at work because she has filed a complaint as it would be to threaten her at work because of her race, sex or other protected characteristic. Cf. e.g. Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 379-80 (Iowa 1986)(union liable for discriminatory racial threats at the worksite by union steward).

9. On brief, Respondent asserts that Herwig's threats of a lawsuit based on defamation, slander, and libel should not be considered retaliatory for two reasons. First, Respondent argues that the threats were based on the erroneous statement made in the complaint concerning Herwig's mental health and not on her filing of the complaint. Second, "suits having a reasonable basis in law and fact and filed in good faith may be brought by the person suffering from the alleged libel." Respondents' Brief at 7-8.

10. Respondent's arguments are not persuasive. The threats made at work by Abbas' supervisor to sue her constituted employment activity affecting her working environment. To permit a distinction between retaliatory employment activity undertaken because of what was said in the complaint, on the one hand, and such activity undertaken because of the filing of the complaint, on the other, would effectively nullify the protection against retaliation provided by the Act. An employer would, through this distinction, be able to justify virtually any retaliatory activity within its power, e.g. "'I did not fire the complainant because he filed a race discrimination complaint. I discharged him because he said in his complaint that I used racially derogatory language' or 'I did not threaten, at work, to sue the complainant because she filed a complaint, I threatened to sue her because in the complaint she falsely stated I had a mental illness.'" To adopt such a woodenly literal construction of the prohibition against retaliation "because such person has . . . filed a complaint," Iowa Code S 601A.11, would obstruct, evade, circumvent, and frustrate the purposes of the Act. It must be rejected as it is inconsistent with the duty to liberally construe the act to effectuate its purposes. Iowa Code S 601A.18. See Conclusion of Law No. 7.

11. Even if the filing of a lawsuit based on statements made in the complaint were permissible as a matter of law, it does not follow that repeated threats at work to initiate such a lawsuit, or to thereby take away all of a complainant's possessions, are lawful. A distinction must be drawn between the commencement of such a lawsuit and the infliction on a complainant of repeated, retaliatory threats at a worksite by a supervisor to commence such a lawsuit. As previously noted, such threats constitute prohibited retaliatory employment activity. A lawsuit, on the other hand, would be initiated and prosecuted at locations other than the complainant's working environment. The ultimate outcome for the complainant defending such a lawsuit, assuming such a lawsuit is permissible, would be determined by the court and not by the employer. See Womack v. Munson, 619 F.2d 1292 (8th Cir. 1980)("administrative and judicial mechanisms determine the truth, falsity, . . . or maliciousness of an EEOC charge. . . . [E]mployer retaliation even against those whose charges are unwarranted cannot be sanctioned"); Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1 Fair Empl. Prac. 752, 758 (5th Cir. 1969)("the employer may not take it upon itself to determine the correctness or consequences of [a discrimination complaint]").

12. The Commission is also not persuaded that suits for defamation, libel, or slander directly based upon the contents of an administrative civil rights complaint are permissible. The cases cited by Respondent involve libel suits based on non-complaint defamatory statements made to third parties or published by the complainant outside of the complaint process. See Bill Johnson's Restaurant, Inc. v. NLRB, 461 U.S. 731, 113 LRRM 2647, 2649 (1983)(leaflets); EEOC v. Levi Straus & Co., 515 F. Supp. 640, 27 Fair Empl. Prac. Cas. 346, 349 (N.D. Ill 1981)(oral statements to employees and subordinates). For the reasons set forth below, defamatory statements made in administrative complaints filed with the Iowa Civil Rights Commission are absolutely privileged and may not be the subject of such a suit.

13. "Neither a lawyer nor a party is liable in Iowa for defamation in statements that have some relation to issues in a judicial proceeding. (citations omitted). The purpose of this immunity is to encourage the open resolution of disputes by removing the cloud of later civil suits from statements made in judicial proceedings." Beeck v. Kapalis, 302 N.W.2d 90, 97 (Iowa 1981). The public interest in conferring such immunity is even stronger in administrative proceedings where the purpose is not merely to resolve a private dispute, but to determine whether statutes enacted in the public interest are being violated. Rainer's Diaries v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d 889, 892-93 (1955); See Iron Worker's Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971)(Act designed to address the practice of discrimination, not merely to resolve a private dispute). "A matter that is reasonably pertinent to the issues is absolutely privileged whether contained in pleadings, affidavits, statements made by witnesses to counsel before a tribunal or made in open court." Tallman v. Hanssen, 427 N.W.2d 868, 869 (Iowa 1988)(emphasis added).

14.The "judicial proceeding" to which the immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function. . . . It extends also to the proceedings of many administrative officers, such as boards and commissions so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or "quasi-judicial," in character.

. . .

The immunity extends to every step in the proceeding until final disposition.

W. Keeton, Prosser and Keeton on the Law of Torts S 114 (1984)(emphasis added). "Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions." Restatement (Second) of Torts S 587 comment f (1977).

15. The Iowa Supreme Court has recognized that "a worker's compensation proceeding is a judicial proceeding" based upon "Iowa Code chapters 85 and 86 (1987), [which] in conjunction with Iowa Code chapter 17A, the Iowa Administrative Procedure Act, provide a tribunal in which the rights of injured employees are recognized and protected. The proceeding is confrontational and judicial in nature." Tallman v. Hanssen, 427 N.W.2d 868, 870 (Iowa 1988). The Court held that defamatory statements in a brief filed before the Iowa industrial commissioner were privileged. Id.

16. Similarly, Iowa Code Chapters 601A and 17A operate together to establish a tribunal in which the rights of persons to be free from employment discrimination and retaliation are recognized and protected. The public hearing is confrontational and judicial in nature and is, therefore, a judicial or quasi-judicial proceeding. See Id. Proceedings before other anti-discrimination administrative enforcement agencies have also been held to be judicial or quasi-judicial proceedings. Thomas v. Petrulis, 465 N.E.2d 1059, 1063, 1065 (Ill. App. 1984)(EEOC is a quasi-judicial body); Id. at 1062 (citing Silver v. Mohasco, 94 A.D.2d 820, 462 N.Y.S.2d 917 (1983)(State Division of Human rights a quasi-judicial body). Defamatory statements in complaints and other proceedings before such agencies have been held to be absolutely privileged. Id.

17. The filing of the complaint is the first step in the process leading to a public hearing. Iowa Code S 601A.15(1). Therefore, statements in the complaint which bear some relationship to the issues in the complaint are absolutely privileged. See Conclusions of Law Nos. 13-14. This relationship is determined by a good faith standard which does not require that the statement be relevant or material to the issues before the adjudicator. It merely "must have some reference to the subject of the inquiry." Restatement (Second) of Torts S 587 comment c (1977). This good faith standard requires only that "the statement have some reasonable relation or reference to the subject of inquiry or be one that 'may possibly be pertinent,' with all doubts resolved in favor of the [alleged defamer]." W. Keeton, Prosser and Keeton on the Law of Torts S 114 (1984). An honest belief that the statement is pertinent is enough. Id. at n. 31. Complainant Abbas' statements meet this standard. See Finding of Fact No. 17.