DOROTHY A. ABBAS, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION

vs.

CITY OF HAMPTON, Respondent.

Findings of Fact continued:

Retaliation Implemented Through the Reduction of Complainant Abbas From a Full-Time to a Part-Time Employee:

The Process Leading to the Reduction to Part-Time:

41. The reduction of Complainant Abbas' position from full-time to part-time first began to be considered in December of 1987. This was after the filing of Abbas' complaint and the subsequent retaliatory reduction in her duties, and at approximately the same time the retaliatory log on her personal work activities began to be kept. (Tr. at 291, 293). See Findings of Facts Nos. 31, 33-34. Ken Herwig had decided to recommend the reduction of the complainant to part-time at some time before January 26, 1988. At that time, Complainant Abbas overheard Ken Herwig tell Mayor Howard Werner that when the city clerk's office went part-time, the city would be saving some additional money. (CP. EX. # 3; Tr. at 21-22). While Abbas did not overhear Herwig name any particular person who would be reduced, it was the city's practice to reduce the least senior employee. In the city clerk's office, that would be Abbas. (CP. EX. # 3; Tr. at 21-22, 96-98).

42. On January 20, 1988, Herwig reported to the council that, due to a property valuation decrease, there would be a decrease in the General Fund available for the 87-88 year of approximately 11% or $66,520.00. The council decided that the finance committee should meet with department heads to work out possible budget adjustments. (R. EX. # 12). By April of 1988, Herwig had discussed reducing Abbas' position with the city's finance committee. (Tr. at 256-57). He continued to make recommendations to the committee on this matter as the time approached for the city council to formulate the salary resolution effective July 1, 1988. (Tr. at 256). Although it is clear the finance committee did not act with retaliatory intent, the committee, as noted by its chairman Keith Miller, essentially relied on Herwig's recommendation when deciding that the City Clerk's office could be operated with less than two full-time secretaries. (Tr. at 335, 340, 342).

43. The finance committee incorporated Herwig's advice favoring the reduction of Abbas' position to half-time in its recommendation to the Hampton city council on the salary resolution. (Tr. at 257). The finance committee gave Herwig the guidelines to present the salary resolution and he presented a verbal report on their behalf to the city council at its meeting on June 8, 1988. (R. EX. # 12; Tr. at 257, 351).

44. The city council adopted the salary resolution on that date. (R. EX. # 12; Tr. at 257). Although it is clear the council did not act with retaliatory intent in adopting the resolution, the council, as demonstrated by the testimony of Mayor Howard Werner, and council members Don Springer, Denny Edwards, Keith Miller, and Kathy Cooper, based its decision on the recommendations of Herwig and the finance committee. (Tr. at 270, 312, 315-16, 317, 327-29, 340, 342, 351, 358). Paul Sensor also testified concerning the reduction, but he was not on the council until July 1988, after the resolution was passed. (R. EX. # 12; 371, 373-74).

45. After the resolution was adopted, Herwig had, effective July 1, 1988, the discretion to implement Abbas' reduction to part-time. (Tr. at 257-59). He did not immediately exercise this authority because of the heavy workload in the City Clerk's office from July to October due to the end of the fiscal year and the reporting of road use tax. (Tr. at 259). In September 1988, the council requested that Herwig consult with Respondent's counsel about the reduction. (Tr. at 259). Near the end of September, Herwig telephoned Respondent's counsel, Charles McManigal. (Tr. at 217, 258). At that time, McManigal advised Herwig that reduction of the position would be appropriate if financially responsible, that is if cuts were also being made in other areas of the city's budget. (Tr. at 217). He asked Herwig if retaliation for filing the civil rights complaint was the reason for the reduction. (Tr. at 217-18). Herwig had been aware since the fall of 1987 that retaliation was illegal. (Tr. at 254). Herwig falsely stated to McManigal, and falsely reiterated under oath at the hearing, that it was not. (Tr. at 217-19, 302). McManigal requested that the reasons be reduced to writing. (Tr. at 218). Herwig's listed reasons in his letter of September 30, 1988 to McManigal did not include retaliation. (R. EX. # 3; Tr. at 218).

46. On October 13, 1988, Herwig gave Abbas a letter informing her that, effective "October 31, 1988 your status as an employee of the City of Hampton will be reduced from a full-time employee to a part-time employee." (CP. EX. # 5; Tr. at 29).

Direct Evidence That Retaliation Was A Motive For the Reduction of Complainant Abbas to a Part-Time Employee:

47. On October 18, 1988, Complainant Abbas met with Ken Herwig to discuss his letter of October 13th. Abbas asked Herwig who reduced her from full-time to part-time. Herwig stated that he and the council had. (Tr. at 30). When Complainant Abbas asked Herwig why she was reduced he replied that he "didn't like that civil rights mess hanging over his head." (Tr. at 31-32).

48. It is undisputed that, during this same conversation about the letter informing Abbas that she was being reduced to part-time, Herwig again threatened to sue her because of what she said in the complaint. The serious economic harm sustained by Abbas through her reduction to part-time is consistent with the harm Herwig explicitly threatened to inflict upon her through a retaliatory lawsuit. See Findings of Fact Nos. 13-14.

Respondent's Retaliatory Actions Against Complainant Abbas Created A Hostile Work Environment for Her:

49. The combination of repeated threats at work to sue Complainant Abbas because of statements she made in the complaint, the silent treatment, the refusal to tell her the information she needed to do her work, the reduction in her duties, and informing her that she was being reduced to part- time because of the "civil rights mess" constituted a pattern of retaliatory actions which created a continuously hostile working environment for Complainant Abbas. While the emotional impact of Respondent's retaliatory acts shall be set forth in detail in the findings on emotional distress, the environment was sufficiently hostile to result in Complainant Abbas dreading going to work. (Tr. at 151). This was a reasonable response to these acts. Given the pervasiveness and severity of these events, any reasonable person would perceive that a hostile work environment had been created.

Respondent Has Failed to Prove by the Greater Weight of the Evidence That It Would Have Reduced Complainant Abbas to Part-Time Even if Retaliation Had Not Been a Factor In the Decision:

50. Respondent City of Hampton has failed to prove by the greater weight of the credible evidence that the City's legitimate reasons for reducing Complainant Abbas to part- time, standing alone, would have induced it to make the same decision in the absence of a retaliatory motive. The prime mover for the City of Hampton in the process leading to Complainant Abbas' reduction to part-time was City Clerk Ken Herwig. There is no question that retaliation was the predominant motivating factor in his recommendations to reduce Abbas' position and that these recommendations were determinative in the City's final decision. It is not sufficient for the Respondent to have demonstrated that legitimate reasons played a part in the reduction or that the reduction would have been justified under the facts as they existed at that time. See Conclusions of Law. For the reasons set forth below, the Respondent has not proven by a preponderance of the evidence that, in the absence of the retaliatory motivation, Ken Herwig's recommendation to reduce Complainant Abbas' position to part-time would have been the same. Without such proof, it cannot be said that the city's final decision would have been the same.

Respondent's Other Reasons for Reduction of Complainant Abbas' Hours:

51. On brief, the Respondent argues, based on Respondent's Exhibit # 3, that three legitimate reasons were given for Complainant Abbas' reduction. (Respondent's Brief at 10). This exhibit was the September 30, 1988 letter from Ken Herwig to Respondent's counsel setting forth reasons for Complainant's reduction. (R. EX. # 3). See Finding of Fact No. 45. These three reasons were also reiterated in Herwig's letter to Abbas of October 10, 1988 informing her of the reduction. (CP. EX. # 5). Three of the reasons given are:

1. Reduction in workload due to the completion of the Community Block Grant Program.

2. Reduction in workload due to the implementation of the City's new computer system.

3. The poor economic condition of the City and the reduction of property tax valuations. (Respondent's Brief at 10, 11, 12). An examination of Respondent's Exhibit # 3 reveals two more reasons for the reduction. First, Herwig asserted, based on a statement made in Abbas' May 29, 1987 letter to the city council requesting that she be given appropriate compensation for the deputy city clerk position, that Abbas would not accept any additional duties or responsibilities. (R. EX. # 3; CP. EX, # 1). See Finding of Fact No. 5. Second, Herwig noted Complainant Abbas was doing personal work on city time. (R. EX. # 3). These fourth and fifth reasons were not mentioned in the letter to Abbas. (CP. EX. # 5).

Reason # 1: Reduction in Workload Due to the Completion of the Community Development Block Grant Program:

52. Herwig's letter of September 30, 1988 to Respondent's counsel states, in part:

In June of 1987, the City completed a three-year Community Block Grant Program in which the housing rehabilitation project created substantial paper work. The City does not anticipate having any further grant program which will involve extensive paper work and office time.

(R. EX. # 3)(emphasis added).

53. in either 1980 or 1981, the first Community Development Block Grant (CDBG) was given to the City of Hampton through the Department of Housing and Urban Development (HUD) for housing rehabilitation and sewer work. Another three grants were issued in the years 1983 through 1985 for housing rehabilitation, streets, and building demolition work. The grants were administered through the City in cooperation with the North Iowa Area Council of Governments (NIACOG). Approximately 2/3 of grant budget and disbursements for the last grant were for housing rehabilitation. The work funded by all these grants was completed in 1986. (R. EX. # 5 at p. 51; Tr. at 275, 280).

54. As suggested by Herwig's letter of September 30th, the extensive paper work and office time expended on HUD grants at the City Clerk's office were related to the housing rehabilitation program. (R. Ex. # 3; Tr. at 278). The rehabilitation program requirements involved four time consuming functions: (1) general record keeping (2) financial record keeping (3) coordination and communication with NIACOG, and (4) dealing with problems raised by the property owners. (Tr. at 275-78).

55. General record keeping involved maintaining files on 67 homeowners in the three year 1983-85 grants program. (Tr. at 275). Financial record keeping involved processing pay estimates (for payments to the contractors) each month, posting the entries onto a ledger sheet, writing out the checks and delivering them to the contractor. Coordination and communication with NIACOG involved telephone calls, mailings, exchanges of information and making certain the City of Hampton and NIACOG agreed on what amounts had been disbursed and what remained to be spent. (Tr. at 276). Problems with property owners included contractor-homeowner conflicts, answering questions, and taking initial homeowner applications. (Tr. at 277).

56. Although Respondent suggests on brief that Abbas "spent somewhere between twenty and twenty-four hours per month on the HUD grants until concluded sometime in late 1987 or the first part of 1988," this conclusion is contradicted by the greater weight of the evidence, including Herwig's own statement, quoted above, which indicates that this project was completed by June of 1987. (Respondent's Brief at R. EX. # 3). A more accurate statement would be that this project was completed during the fiscal year ending June 30, 1987. According to the auditor's report for the year ending June 30, 1987, all but $157.00 of the Community Development Block Grant funds for all CDBG programs, including housing rehabilitation, were expended by November 30, 1986, which was the end of the contract period for the last grant. (R. EX. # 5 at p. 51). The total financial activity concerning this grant in the next fiscal year ending June 30, 1988 was the receipt of $49.00, the disbursement of $156.00 on administration of the program, with a zero balance at the end of the year. (R. EX. # 6 at p. 33). The entire $156.00 disbursement on administration that year may have consisted of the return of monies that were received in excess of the grant agreement, as recommended by the previous year's audit. (R. EX. # 5 at p. 64). An excerpt from the city budget reflected no expectation of CDBG revenues for that year. (R. EX. # 8; Tr. at 192). This grant wasn't even mentioned in the audit for the fiscal year ending June 30, 1989. (R. EX. # 7). In summary, there was no significant financial activity with respect to this program during the entire 23 month period from November 30, 1986, the end date of the last grant, to October 31, 1988, the effective date of Abbas' reduction. 57. In light of the above evidence, it is clear that the most credible testimony on the length of the grant and paperwork on the grant is that of Marsha Cory, the Deputy Director of NIACOG from 1979 to 1985. (Tr. at 273). She testified that the work would have been completed about the end of 1986, which conforms to the contract end date, with some closeout and audit extending into 1987. (Tr. at 280).

58. Respondent suggested, on brief, that Complainant Abbas' testimony indicates the grant ended in 1988. (Respondent's brief at 10). Abbas did not have a clear recollection of the dates or extent of the grants. (Tr. at 136-37, 138). Also, her initial testimony, like Herwig's letter, referred to the grants as a three year program. (Tr. at 137). Only later was there an affirmative answer by her, elicited on cross-examination, to the question of "if they take three years to complete the one in '85 [would have been done] in '88?" (Tr. at 137, 138). Given the contract end date, the other information from the auditor's reports discussed above, and Cory's testimony, Abbas' testimony is not sufficient to establish that work on the grants continued into late 1987 or early 1988.

59. The financial record keeping functions of processing payments to contractors and dealing with homeowner problems were ended by November 30, 1986. No further contractor payments or rehabilitation work were being done or could have been done with the remaining balance of $157.00, given the small amount of money, the contract end date of November 30th, and the requirement to return monies back to NIACOG. These financial record keeping functions were the functions performed by Abbas. (Tr. at 139-141). The remaining paperwork functions would have been severely reduced or eliminated on or shortly after that date.

60. Abbas did not work on the CDBG grants every week. (Tr. at 169). When she did, they would account for 3 to 5 hours of work in that week. (Tr. at 170). Marsha Cory agreed that the hours spent on the grants would be sporadic and vary. (Tr. at 278). Ms. Cory's observations of the handling of grants in Hampton would have ended in late 1985, a year with heavy grant activity as two or more of the grants would have been administered due to overlapping time periods. Based on these observations, she estimated that the clerk's office overall would have required an average of 10 hours per week or more to handle the grants. (Tr. at 273, 279-80).

61. Whatever impact the ending of the CBDG grants had on the City Clerk's and Abbas' workload should have been evident by late 1986 or early 1987. Yet, there was no effective reduction in Abbas' workload until the retaliatory reduction of her duties after the filing of her complaint in August 1987. The Herwigs worked overtime to make up the shortfall after the retaliatory reduction of her duties. See Findings of Facts Nos. 1, 21, 28-30. There would be no need for such overtime if the end of the CDBG grant resulted in an overall 20 to 50 hour per month workload reduction in the Clerk's office. Nor was there any proposal to reduce her to part-time until after the complaint was filed. Finally, the Clerk's office had a full-time staff of the clerk and two secretaries from at least 1975, five years prior to the first grant, until October 31, 1988, almost two years after the last grant ended. See Findings of Fact Nos. 4, 8, 41, 56. The Commission is not persuaded that Herwig would have recommended Complainant Abbas' reduction to part-time in 1988, based on the completion of the CBDG grants in 1986, in the absence of a retaliatory motive.