DOROTHY A. ABBAS, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION

vs.

CITY OF HAMPTON, Respondent.

Findings of Fact continued:

Retaliation Implemented Through Decreasing Complainant Abbas' Work Assignments:

Reduction of Various Duties:

21. Complainant Abbas' duties were reduced after filing her original complaint of sex discrimination. The various reductions, therefore, were effective throughout the same time as the lawsuit threats. Herwig no longer let Abbas help him with various duties or discuss work with her. (CP. EX. # 3; Tr. at 24-25). Although she had routinely answered such correspondence prior to filing the complaint, Herwig no longer allowed her to type or answer correspondence for him or the public works director. (Tr. at 25-26). (Tr. at 25). Herwig would not let the complainant make photocopies as often as he had before filing of the complaint. This was one of her regular duties prior to the filing of the complaint. (Tr. at 25). It may reasonably be inferred from this evidence that this reduction in duties was due to her filing of the complaint. Respondent offered no evidence to explain what happened or to contradict Complainant's testimony on these issues.

Elimination of Check-Signing Duties:

22. At no time after she filed her complaint, was Abbas allowed to sign checks. She had previously signed checks to pay claims, payroll and anything else required by city finances. She had also signed checks from the fund with HUD grant money in it. Ken Herwig signed them after the complaint was filed. (Tr. at 26). This practice was formalized when, on March 19, 1990, the signature cards for City of Hampton checking account funds at the Hampton State Bank and the First National Bank were replaced with new ones which only had Ken Herwig's signature. From June 29, 1984 to March 19, 1990, the signature cards had listed both Complainant Abbas' and Ken Herwig's signatures. (CP. EX. # 4; Tr. at 27, 77). It may reasonably be inferred from this evidence that the refusal to allow Abbas to sign checks was due to her filing the complaint.

23. Although it was suggested on cross-examination of Complainant Abbas by Respondent's counsel that the change in the signature cards was made in response to an auditor's recommendation, (Tr. at 77-78), there was no testimonial or other evidence to indicate that the change in signature cards or denial of check writing duties was done for that reason.

24. Furthermore, the first recommendation by the auditors which even touched on this area was made on February 8, 1989 in the report for year ending June 30, 1988. (R. Ex. # 6 at 54). The prior year's report, of March 7, 1988, for the year ending June 30, 1987 did not even mention this area. (R. EX. # 5). The elimination of Complainant Abbas' check writing duties occurred shortly after the Respondents' receipt of her original complaint, in September 1987, sixteen months prior to the auditor's first recommendation.

25. That auditor's report did not recommend that the number of persons eligible to sign checks for the city be reduced. It did suggest that there be a segregation of duties among employees "in the areas of check signing, check mailing, review of payrolls and certain bank reconciliation functions" and that countersignatures be required on all checks. (R. Ex. # 6 at 54). In any event, it is not clear from the record whether reduction of the number of employees eligible to sign checks to one would have been considered by the auditor to either have facilitated the goal of segregation of duties or to have obstructed the goal of requiring countersignatures.

Elimination of Opportunity to Be In Charge During Ken Herwig's Vacations:

26. Prior to the filing of Abbas' complaint, Ken Herwig and his wife would leave together on vacations and allow Abbas to run the office in their absence. After the filing of the complaint, Mr. and Mrs. Herwig would take separate vacations which left one of them in charge of the office. (Tr. at 26-27). For example, in 1989, Ken Herwig took vacation from June 9th through June 16th inclusive. Rozann Herwig took her vacation on June 22nd and 23rd. (CP. EX. # 9). Respondent provided no evidence concerning this change which, in effect, eliminated this responsibility for the Complainant. Given that this pattern was not followed prior to the Respondents' receipt of the complaint, it is reasonable to infer that it was a response to the complaint.

27. The not-so-subtle message communicated by the combination of the threats to sue Abbas, the silent treatment, and the reduction in her duties was that she would not be trusted or allowed to perform the full range of her former duties because she had filed the complaint.

The Herwigs' Work Overtime to Perform Abbas' Former Duties:

28. After Ken Herwig reduced Complainant Abbas' job duties, he and his wife worked extra hours to perform her former duties. (Tr. at 32). Prior to her filing of the complaint, the Herwigs and Abbas would leave work together at 5:00 p.m. After filing her complaint, the Herwigs would stay behind and work after Abbas left at 5:00 p.m. (Tr. at 32- 33).

29. Complainant Abbas recorded in her diary numerous, but not all, instances when she found the Herwigs were working late. (CP. EX. # 7, 8, 9; Tr. at 33-35, 37). The first instance recorded was on December 22, 1987. At 8:15 p.m., Complainant Abbas went to the office to obtain some personal envelopes which she had in her desk drawer. The lights in the office were off. When she opened the door, she noticed Rozann Herwig's coat on the railing and that the computer was running. Rozann "came through the door by my desk from the council chambers. I asked her why there were no lights on, and her face got red and she went into the computer room and did not answer me. I got my envelopes and left, and left the lights ON." (CP. EX. # 8).

30. There were over 25 days in 1988 and 1989, particularly after she was reduced to part-time effective October 13, 1988, for which Complainant Abbas recorded either of her or others' direct observations of the Herwig's working after hours, of the Herwig's vehicle being parked at City Hall after working hours, or when she was told by Rozann Herwig that she had worked late. (Tr. at 29, 34, 37, 64, 66; CP. EX. # 5, 7, 8, 9). Not all such incidents were recorded. (Tr. at 66; CP. EX. # 8). This was not a systematic, round-the-clock tracking of the Herwigs or of after hours work at City Hall. These documents are a partial reflection of those times the Complainant became aware that Ken or Rozann Herwig, or both of them, were working after hours. (Tr. at 34-35, 98; CP. EX. # 7, 8, 9).

Retaliation Implemented Through Increased Scrutiny of Complainant Abbas' Work:

After Her Duties Were Reduced, Complainant Abbas Did Some Personal Work on City Time:

31. After Ken Herwig reduced her job duties, which were then performed by him and Rozann Herwig through work beyond their regular hours, Complainant Abbas was, on some days, left with insufficient work to fill her time. On those days, she would spend up to one-half of a day performing personal work, such as studying shorthand, reading, or, on one occasion, doing a picture scrapbook for her grandson. (Tr. at 94-96). There is no credible evidence that such personal work was done prior to the reduction of her duties. Ken Herwig's testimony that council member Norman Cole had complained about Abbas cutting out pictures for a scrapbook for her grandson prior to July 1, 1987 is not credible, as it is contradicted by Cole's own statement to the effect that he observed this activity in late 1987 or early 1988 and by Complainant Abbas' testimony to the effect that this occurred after the reduction of her duties. (R. EX. # 2; Tr. at 94- 95, 212-13).

32. During the course of the investigation, Ken Herwig acknowledged that Complainant Abbas was not being given sufficient city work to keep her busy. Her assigned work was being done. Her personal work was not seen as misconduct so much as evidence that there was not sufficent work for her to do. Ken Herwig did not acknowledge, however, that her former duties were being performed by him and Rozann. (CP. EX. # 28 at 13-14).

33. After Herwig retaliated against Complainant Abbas by reducing her duties, and after she responded to this by doing personal work when she was left with nothing to do in the way of her official duties, Herwig mentioned to city councilman Don Springer that Abbas was doing personal work on city time. (Tr. at 269-70). Herwig also heard complaints about the Complainant performing personal work from council member Norman Cole and water and sewer department foreman James Hagerty. Cole commented that perhaps Complainant Abbas should be placed on a part-time basis. (R. EX. # 2, 14; Tr. at 216).

Maintenance of Log of Complainant's Personal Work Activities:

34. Herwig established a log to document Complainant Abbas activities at the office when she was not doing city work. (CP. EX. # 26; Tr. at 291, 293). The log ultimately was used to justify Complainant Abbas' reduction in hours, which was at least recognized as a possiblity from the start of the maintenance of the log. (R. EX. # 3; Tr. at 291, 293). While it is clear that this log was partially a response to Herwig's observations and others' comments about her doing personal work on city time, (CP. EX. # 28 at 14; R. EX. # 3; Tr. at 291), it must be borne in mind that Abbas began doing such personal work only as a response to the retaliatory reduction of her work duties. Also, on or before January 26, 1988, Herwig had already decided to recommend that Complainant Abbas be reduced to part-time. (CP. EX. # 3; Tr. at 21-22). See Finding of Fact No. 41. The log thus became an instrument to provide documentation for a decision that had already been reached. There is also evidence which indicates that the maintenance of this log was more directly linked to the filing of the complaint.

35. Log entry dates correspond to activity concerning the complaint. The log was maintained in a desk diary. On December 16, 1987, the Commission mailed a letter to the Respondents notifying them that the sex discrimination was in line for investigation and that information was being requested. This information included a request for a summary of the duties performed and the qualifications of the four highest paid employees in each department. (Request for Admissions and attachments; Tr. at 294). On December 21, 1987, Herwig submitted a written request to the complainant for such information "because of a complaint that has been filed by Dorothy Abbas." (CP. EX. # 27; Tr. at 296). The first entry is for the next day, December 22, 1987. (CP. EX. # 26; Tr. at 295-296).

36. The diary is then blank for a month and a half until February 10, 1988. (CP. EX. # 26; Tr. at 296). The previous day, February 9th, Ken Herwig had consulted with counsel for the Respondent concerning this case. (Tr. at 298). (The Commission does not imply that counsel had any role in retaliating against Complainant Abbas. He advised against retaliation.) After February 11th, the log is blank for approximately one month until March 9, 1988. (CP. EX. # 26; Tr. at 296). Six days prior to this, on March 3, 1988, the Commission's investigator had conducted an interview with Ken Herwig in the presence of his counsel. (Request for Admissions). There are six more entries in March. (CP. EX. # 26).

37. There are no further entries for five and one-half months until September 13th, the second Tuesday in September of 1988, approximately one year after September 9, 1987, the second Wednesday in September of 1987, the date when Abbas' complaint was read aloud at the city council meeting. There are five more entries in September. (CP. EX. # 26; Tr. at 296). See Finding of Fact No. 11.

38. The last entry is for October 10, 1989, three days before Herwig's letter to Complainant Abbas informing her that he was reducing her to a part-time employee. (CP. EX. # 5, 26). That log entry, states, in part: "Asked her if she had lawyer help her with filing complaint to Civil Rights Commission. She said 'no.' Just Bud [her husband] and Shelly [her daughter] read it." (CP. EX. # 26; Tr. at 8).

39. In light of the close relationship between complaint activity and the maintenance of the log, the continuing threats to sue Abbas, the last entry demonstrating an explicit continuing concern with the "filing [of the] complaint," and the underlying fact that Abbas would not have been performing personal work if it were not for the retaliatory reduction of her duties, this log constitutes a manifestation of retaliation and not any legitimate personnel function of the Respondent.

Maintenance of A Correspondence File:

40. Ken Herwig also maintained personnel files on five city employees including Complainant Abbas. These were the only employees on whom personnel files were maintained at the time. (Tr. at 40). Although Abbas asserted that these files were maintained only on "troublemakers," persons who caused personnel problems for the city, the Respondent was able to produce evidence to the effect that all five of these files were correspondence files initiated in response to correspondence from outside sources and maintained as records of the correspondence. (Tr. at 41, 78-79, 80, 175-183, 219- 20). This evidence was not rebutted. Although Abbas testified that persons with such files were referred to as "troublemakers," her testimony does not specify who used such an appellation. (Tr. at 183). There appears to have been no harm to Abbas through the mere collection of correspondence relating to her case in a file. Under these facts, the maintenance of such personnel or correspondence files does not constitute retaliation.