DOROTHY A. ABBAS, Complainant,
and
IOWA CIVIL RIGHTS COMMISSION
vs.
CITY OF HAMPTON, Respondent.
Findings of Fact continued:
Reason # 4: Abbas' Statement In Her Letter of May 29, 1987:
80. Herwig's letter of September 30, 1988 to Respondent's counsel states, in part:
Following is a direct quote from a letter dated May 29, 1987 from Dorothy Abbas sent to me to be presented to the City Council-(which I did)
"I do not expect that any consideration and/or compensation given to me to include or require any additional duties or responsibilities."
It is rather difficult to adjust work loads and direct the activities of an employee who will not accept any additional duties or responsibilities.
(R. EX. # 3).
81. Abbas' letter to Herwig is the one which requested that she be recognized and compensated as "Deputy Clerk." (CP. EX. # 1). The failure to respond favorably to that request directly led to the filing of her sex discrimination complaint. See Finding of Fact No. 5. The letter and its request are specifically mentioned in that complaint. (Complaint No. 16590 - Attachment to Request for Admissions).
82. The quote given in Herwig's letter to McManigal is only a fragment of the sentence from Abbas' letter and is taken completely out of context. In her letter, Abbas asks Herwig to petition the council to request that her title "Deputy Clerk" become recognized in the salary resolution and that she be compensated for that position in accordance with a local government salary survey. She states her belief that she has served as Deputy Clerk for eight years to Herwig's express satisfaction and requests the recognition and compensation which she believes is due her. (CP. EX. # 1).
83. The last two full paragraphs of her letter, a portion of which was quoted by Herwig, state:
I wish to continue handling the same duties and responsibilities in the future, as your assistant, as I have in the past, but I do not expect that any consideration and/or compensation given me to include or require any additional duties or responsibilities.
I respectfully await your prompt action on this request.
(CP. EX. # 1)(emphasis added). The sentence, when taken in context, is clearly intended to convey the idea that Abbas wished to receive increased compensation for the duties she was performing in May of 1987, without that compensation being tied to additional duties. It did not constitute a blanket refusal to take additional duties under any condition. (CP. EX. # 1; Tr. at 14). Abbas "meant that if they did recognize my job title and compensate me as deputy clerk, I didn't want to be dumped on. I didn't want them to load me down with work." (Tr. at 14).
84. Herwig never asked Abbas if she would accept additional duties or responsibilities, but assumed, based on his reading of the letter, that she would not. (Tr. at 255). The letter is directly and clearly linked to the original discrimination complaint. It is difficult to believe that, in the absence of a retaliatory motive, this unique interpretation would have been given the quoted statement in Abbas' letter. This reason stands as evidence of a retaliatory motive for the reduction in hours and not as a legitimate reason for the reduction.
Reason # 5: Complainant Abbas Was Doing Personal Work on City Time:
85. Herwig's letter of September 30, 1988 to Respondent's counsel states, in part:
When Mrs. Abbas is not busy doing City work she writes personal letters, reads books and magazines and studies Gregg shorthand.
(R. EX. # 3). Herwig's testimony also indicated that Abbas' doing personal work, as recorded in his log and on other occasions, was part of the reason for the reduction in her hours. (Tr. at 291, 293).
86. As set forth in detail in previous findings of fact, Abbas' performance of personal work during her city employment was done only as a response to the retaliatory reduction in her hours. See Findings of Fact Nos. 21-22, 26- 27, 31, 33. The log which was kept on these activities was also done for retaliatory purposes. See Findings of Fact Nos. 34-39. Under these circumstances, this does not constitute a legitimate reason for the reduction in her hours.
Credibility:
87. Dorothy Abbas was a credible witness. Her testimony on material issues was internally consistent and consistent with the greater weight of the evidence. City Clerk Herwig agreed that he would not question Abbas' integrity or work ethics. (Tr. at 186). Her testimony to the effect that City Clerk Herwig made repeated threats to sue her because of what she said in her complaint is, for example, not disputed. See Findings of Fact Nos. 12-15. Her testimony that Herwig told her that she was being reduced to part-time because of the "civil rights mess" is highly credible. At the point where Abbas began to testify about this statement, she started to cry and it was necessary to take a five minute recess. (Tr. at 30-31). That statement's intense emotional impact on her demonstrated its reality. This testimony is also plausible because it is consistent with Herwig's threats to inflict economic harm upon her through a lawsuit and with his other retaliatory actions. See Findings of Facts Nos. 12-15, 48.
88. It should be noted that, as previously discussed, Abbas' memory was not clear with respect to the length of the CDBG grants and when paperwork on the grants ended. See Finding of Fact No. 58. Also, although Abbas initially estimated, while being deposed, that she had worked an average of 30 hours per week in 1991, she readily admitted her error when confronted with Bruce Slagle's calculations showing she had worked an average of 23.32 hours per week. (R. EX. # 1; Tr. at 172-74). This time covered 13 two week pay periods when her hours varied from 40 to 71.5 hours. (R. EX. # 1). Given that there is no reason to believe she ever testified that her estimate was an exact calculation, her willingness to admit her erroneous estimate and to accept the accuracy of Slagle's calculations bolsters and does not detract from her credibility. In any event, her hours worked in 1991 are not material to determining whether, in 1988, Herwig would have recommended her reduction to part-time in the absence of a retaliatory motive.
89. Ken Herwig's credibility is highly questionable. Herwig repeatedly gave willfully false testimony on a material issue when he stated that retaliation did not play any part in his decision to recommend the reduction of Complainant Abbas' position to half-time. (Tr. at 217-19, 302). His testimony with respect to whether he told Abbas that he reduced her hours due to the complaint (i.e. "the civil rights mess") was:
Q. And you told her that day that you were tired of the civil rights mess hanging over your head, is that right?
A. I don't recall saying those exact words.
Q. Something to that effect?
A. I don't recall.
(Tr. at 300). This is not a convincing response. Herwig's denials to the effect that retaliation played no role in the reduction of hours are incredible in light of his admission that, in this same conversation, he again threatened Complainant Abbas with a lawsuit; his testimony concerning how upset he was over the filing of the complaint; Complainant Abbas' highly credible testimony on the "civil rights mess" statement; and the variety of other retaliatory acts demonstrated by the evidence. See Findings of Facts Nos. 11, 14, 20-22, 26-27, 48, 87.
90. Herwig's testimony to the effect Norman Cole complained about Abbas' personal work before July 1, 1987 has already been found to not be credible. See Finding of Fact No. 31. Some of Herwig's testimony is relied on when it constitutes an admission or is supported by other credible evidence. While it might be thought that his admissions of threatening to sue Complainant Abbas enhance his testimony, he had expressed this sentiment to a newsman, and his feelings on this issue had literally been broadcast on the radio, prior to the filing of the retaliation complaint. He could hardly deny it. All of his testimony, therefore, should be viewed with a great deal of caution.
91. Caryle Merritt's testimony was credible in many respects, but his estimate of time saved by the 1986 computer system was not believable for the reasons stated, in part, in Finding of Fact Number 67. In addition, Merritt's testimony may have been influenced by his substantial business with the city and an overoptimistic view of the effectiveness of his products resulting in a very high estimate of overall time savings. See Findings of Fact Nos. 66-67.
92. Michelle Craighton, Bob Davies, Jr., Don Springer, Marsha Cory, Lawrence Gilchrist, Howard Werner, Denny Edwards, Keith Miller, Kathy Cooper, Bruce Slagle, and Paul Sensor were all credible witnesses.
Remedies - Reinstatement and Front Pay:
93. Complainant Abbas is seeking reinstatement to a full-time 40 hour per week position with a salary, medical insurance, and all other benefits currently received by a full-time employee of the City of Hampton. (See Int. # 4). Since Respondent has failed to prove by the greater weight of the evidence that Ms. Abbas would have been reduced in the absence of retaliation, such a compensatory remedy would be appropriate. Front pay in an amount equal to the difference between her current salary and benefits and those of a full- time position as secretary, including an amount equal to that expended by the city for medical insurance and other benefits for a full time position, should be awarded from the date of the final decision and order in this case (which may come about by vote of the Commission or by operation of law) until the date such reinstatement is effected.