DOROTHY A. ABBAS, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION

vs.

CITY OF HAMPTON, Respondent.

Findings of Fact contined:

Retaliation Implemented Through City Clerk Herwig's Threats to Sue the Complainant for Statements Made in Her Sex Discrimination Complaint:

Complainant Abbas' Original Complaint:

9. Ms. Abbas' original sex discrimination complaint, Complaint Number 16590, states, in part, that:

When Mr. Herwig suffered a mental breakdown in June 1984 and was hospitalized for many weeks, I was required to perform his duties as well as my own for several months in his absence.

(Complaint No. 16590 - Attachment to Request for Admissions).

10. When Complainant Abbas filed that complaint with the Commission on August 18, 1987, and afterwards, she fully expected it would not be made public. (Tr. at 16, 157). Of course, she knew the city council was aware of it as the mayor and members of the council were named as respondents.

11. Ken Herwig, the mayor, and council members received their copies of the first complaint on or about September 3, 1987. (Request for Admissions; Tr. at 249-50, 288). The city council met on September 9, 1987. At that time, the Mayor unilaterally decided to publicly read aloud the entire complaint. (Tr. at 249-50, 288, 320-21). Mr. Herwig was present at the meeting and was upset by the reference to him allegedly having a "mental breakdown." (Tr. at 249-50, 290, 301). He was "very shocked" by the filing of the complaint. (CP. EX. # 28 at 16). He felt that the Complainant had betrayed their friendship through the use of this term. (Tr. at 289). Mr. Herwig was actually admitted to the hospital in an exhaustive and hypertensive condition after undergoing considerable stress at city hall. This stress appears to have been due to a councilman whose repeated inquiries made it difficult for Mr. Herwig to keep up with his daily work. (CP. EX. # 28 at 15; Tr. at 187).

Direct Evidence of Retaliation Though Threats of Litigation:

12. After a radio correspondent asked him at the meeting if he was going to sue Ms. Abbas, Mr. Herwig replied that "maybe I should." (Tr. at 290). Ms. Abbas subsequently heard, on a radio broadcast the next morning, that Herwig was angry and considering suing her. (Tr. at 18, 70).

13. After the council meeting, on more than six occasions during the period from 1987 to 1989, City Clerk Herwig threatened, in conversations with Complainant Abbas during working hours at the office, to sue her because of what she had said in the complaint. (CP. EX. # 28 at 15; Tr. at 19, 70-72, 290, 299, 301, 332). Herwig threatened to economically destroy Complainant Abbas and her husband through such a lawsuit, i.e. "He said that he would sue me for what I said and he was going to take everything that Bud [complainant's husband] and I had worked for all of our lives." (Tr. at 19-20). He also made other comments indicating he did not like what was said in the complaint. (Tr. at 19). He also informed her that she had ruined his and the council's Labor Day weekend by filing the complaint. (Tr. at 71).

14. It is undisputed, for example, that Herwig threatened to sue the complainant on October 18, 1988, when he discussed her reduction from a full-time to a part-time employee. (Tr. at 30-32, 299, 301). At that time, Herwig stated there were four specific things that she said in the complaint "that he would sue me [Abbas] over and win." (Tr. at 31-32). He would not identify all four statements which he felt were actionable, but Complainant was made aware that the reference to him having a "mental breakdown" was one of the things which upset him. (Tr. at 32, 72, 301).

15. It should be noted that this complaint is concerned with retaliation through threats by Ken Herwig at the worksite to sue Complainant Abbas and not with retaliation through actual implementation of the lawsuit. After his initial comment to the radio station indicating he was considering suing Complainant Abbas, Mr. Herwig sought and received legal advice indicating that, in his attorney's opinion, he had a reasonable basis to commence a lawsuit based on libel, defamation or other cause of action. (Tr. at 301, 307-08, 332-33). Mr. Herwig, however, elected to not proceed with such a lawsuit as he felt it was not worth the money and trouble. (Tr. at 301, 307-08).

16. It should be noted that the Complainant apologized to Mr. Herwig in September of 1987 for making the "mental breakdown" remark in her complaint. She told him that she did not wish to make him angry or sick as a result of that comment, as he was acting sick. At that time, he responded by saying, "O.K., I'm all right." (Tr. at 32, 72, 76). Nonetheless, as set forth above, he continued to make threats to sue her after September of 1987.

17. It is clear that Complainant Abbas' reference to a "mental breakdown" was made because she sincerely believed that was the nature of Herwig's illness. (Tr. at 73, 76). The reference was not malicious. (Tr. at 147). The reference bears some relevance to the case as it was simply a way of identifying when Mr. Herwig was absent, by referring to an event as well as a date, i.e. "a period of time when he was absent from city hall and that's how I meant it to be. It was when he was ill in 1984." (Tr. at 75).

Retaliation Implemented Through Refraining from Speaking with Complainant Abbas and Withholding Information From Her Which She Required to Do Her Work:

18. After Complainant Abbas filed her complaint, her working environment changed. Ken Herwig and his wife, Rozann, would not speak to Abbas when she came to work in the morning. (Tr. at 20). As reflected by Complainant Abbas diary excerpts and testimony, she, in effect, got the "silent treatment" in the form of being ignored most of the time or hardly spoken to by Mr. and Mrs. Herwig, who were the only other employees in the city clerk's office. (CP. EX. # 3; Tr. at 20-21). See Finding of Fact No. 8.

19. Mr. and Mrs. Herwig would not tell her what was going on so she could do her day's work. (Tr. at 20). Abbas needed to know what other departments were doing so, if she answered the telephone, she could inform the caller of what was happening. (Tr. at 20-21). They would also not give her messages and mail to Complainant Abbas. Prior to her filing the complaint, Herwig and his wife would talk to the complainant about what was going on that day with respect to the business of the city clerk's office. (Tr. at 21).

20. It may reasonably be inferred from the timing of Herwig's receipt of the complaint, the contemporaneous threats to sue Abbas, and the onset of this behavior that Complainant Abbas was treated in this manner in retaliation for filing her complaint. The Respondent offered no evidence to explain what happened or to contradict Complainant's testimony on these issues.