MICHAEL BIGGLES (LOVELADY), Complainant,

VS.

BLACK HAWK COUNTY HEALTH CENTER

and

BLACK HAWK COUNTY BOARD OF SUPERVISORS,

Respondents.

 

CONCLUSIONS OF LAW

Jurisdiction:

1. Mr. Biggles' complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code 601 A.1 5(11) (1985). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code 601A.15 (1989). See Finding of Fact No. 1.

2. Mr. Biggles' complaint is also within the subject matter jurisdiction of the Commission as the allegation that the Respondent failed to hire him because of disability falls within the statutory prohibition against unfair employment practices. Iowa Code 601A.6 (1985). "It shall be a . . . discriminatory practice for any person to refuse to hire . . . any applicant for employment . . . because of the disability of such applicant." Id.


Complainant Biggles' Disability:

3. " 'Disability' means the physical . . . condition of a person which constitutes a substantial handicap." Iowa Code 601A.2(11) (1985). "Substantially handicapped person" includes "any person who has a physical or mental impairment which substantially limits one or more major life activities . . . or is regarded as having such impairment. 240 Iowa Admin. Code 6.1(1) (now at 161 Iowa Admin. Code 8.26(l)). "Impairment" includes "any physiological disorder or condition . . . affecting [the musculoskeletal] . . . body system." Id. at 6.1(2) (now at 161 Iowa Admin. Code 8.26(2)). "Working" is a "major life activit[y]." Id. at 6.1(3) (now at 161 Iowa Admin. Code 8.26(3)). The phrase "is regarded as having such impairment" encompasses the person who "has a physical ... impairment that does not substantially limit major activities but that is perceived as constituting such a limitation. Id. at 6.1(5) (now at 161 Iowa Admin. Code 8.26(5)(emphasis added)). The Iowa Supreme Court has recognized that a person who is perceived to be disabled 11 under commission rules 6.1 (1) and (5) .... is 'disabled' as that term is used in Iowa Code section 601 A.6." Frank V. American Freight Systems, Inc., 398 N.W.2d 797, 800 (Iowa 1987).

4. Complainant Biggles has a 'disability' as that term is used in Iowa Code sections 601 A.6 and 601 A.2(11) because he has a physical condition which constitutes a substantial handicap. Iowa Code 601A.2(11) (1985). The condition constitutes a substantial handicap under 240 Iowa Administrative Code section 6.1(1) because:

Order and Allocation of Proof Where There Is No Direct Evidence of Discrimination:

5. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of persuasion in this proceeding is on the complainant to persuade the finder of fact that the Respondents discriminated against the Complainant because of his disability when it failed to hire him for the Nurse Aide I position. Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981).

6. The burden of persuasion must be distinguished from what is known as "the burden of production" or the "burden of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).

7. In the typical discrimination case, which alleges disparate treatment on a prohibited basis, this burden of producing evidence shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence.'Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985)(emphasis added).

8. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). Once a prima facie case is established, a presumption of discrimination attaches. Id.

9. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non-discriminatory reason for its action. Id.; Linn Co-operative Oil Company V. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Once it has produced such evidence the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).

10. The introduction of evidence, by the Respondent, which would allow the finder of fact to rationally conclude that the challenged decision was not motivated by discriminatory animus is sufficient to rebut the prima facie case. Linn Co- operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981). The Respondent need not persuade the finder of fact that it was actually motivated by the proffered reasons. Id. Nonetheless, the nondiscriminatory reason proffered "must be specific and clear enough for the [Complainant] to address and legally sufficient to justify judgment for the [Respondent]." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988).

11. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175,178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089,1095, 67 L. Ed. 2d 207, 216 & n.1 0 (1981)).

12. This burden of production may be met through the introduction of evidence or by cross-examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at , 67 L. Ed. 2d at 21 7. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 718 (1983)(Blackmun, J. concurring).

Order and Allocation of Proof Where There Is Direct Evidence of Discrimination:

13. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (11973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 530 (Iowa 1985), is inapplicable. Price-Waterhouse v. Hopkins, 490 U.S., 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).

14. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is because:

[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by. That the employer's burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination.

Price-Waterhouse v. Hopkins, 490 U.S. , 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring).

15. In this case, there is direct evidence in the record, and an admission on brief, that the Complainant's perceived disability, i.e. his past back injury and surgery, was the Respondents' sole reason for failing to hire him. See Finding of Fact No 16; Respondent's Brief at 5-6. Given the presence of direct evidence and this admission, the authorities cited above would indicate that the next logical step in the inquiry would be to examine the affirmative defenses of the respondent. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

16. There is, however, a problem. In Frank v. American Freight Systems, Inc., 398 N.W.2d 797 (Iowa 1987), a case in which the employer admitted it failed to hire the plaintiff for a truck driving position due to a back injury, the Iowa Supreme Court indicated that the McDonnell Douglas order and allocation of proof would apply. Frank v. American Freight Systems, Inc., 398 N.W.2d at 800. In Frank, the Court did not, however, address the question of whether the Respondent bears a burden of persuasion in regard to its defenses when there is direct evidence or admission of discrimination. Given the past deference shown by the Iowa Supreme Court to United States Supreme Court decisions interpreting analogous Federal anti- discrimination laws, it is reasonable to conclude that the Iowa Supreme Court will adopt the order and allocation of proof set forth in Thurston in cases where direct evidence of intentional discrimination is present.


17. Since the Thurston analysis has not yet been adopted by the Iowa Supreme Court, both the Thurston and Frank analyses shall be applied. Like the plaintiff in Frank, Complainant Biggles has established a prima facie case of disability discrimination in employment by showing:

1 . He is a member of the protected class "disabled" as defined by the Iowa Code and the Commission's administrative rules.
2. He applied for an available position.
3. The Respondents admit that he was rejected due to his disability.

See id. at 799-801. See Conclusions of Law Nos. 3-4, 15. See Findings of Fact Nos. 6, 14, 16.

18. Even under the most traditional McDonnell Douglas analysis, Complainant Biggles has established a prima facie case by showing:

1 . He is a member of the protected class "disabled" as defined by the Iowa Code and the Commission's administrative rules.
2. He applied for an available position.
3. He was objectively qualified for the position.
4. He was rejected for the position.
5. Other applicants, without his disability, were hired.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L.Ed. 2d 668, 677 (1973); Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 165 (Iowa 1983). See Conclusions of Law Nos. 3-4. See Findings of Fact Nos. 6, 14, 16, 20.


"Nature of the Occupation" Defense:

19. The Respondents, like the employer in Frank, rely on the statutory defense which allows different treatment on the basis of disability in the area of employment if it is "based on the nature of the occupation." Iowa Code 601A.6(l)(a) (1985). This defense is not available "[i]f a disabled person is qualified to perform a particular occupation, by reason of training or experience." Id.

20. Under this defense, the employer bears the burden of persuading the finder of fact that "an overriding, legitimate business purpose for the rule" exists. See Frank v. American Freight Systems, Inc., 398 N.W.2d at 802-03. That a burden of persuasion is required is shown by the language of the decision:

[T]he burden of showing a business necessity for the discrimination is upon the potential employer . . . . The 'nature of the occupation' defense . . . has been established . . . by showing an overriding legitimate business purpose for the rule.... American Freight did sustain its burden of showing a reasonable business necessity for its rule. Id.

21. This defense clearly requires more of the Respondents than the McDonnell Douglas rebuttal of the prima facie case through the production of evidence by which the employer can articulate some legitimate, nondiscriminatory reason for its action. Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Given that this particular defense is proffered, the Respondents bear a burden of persuasion, under the analysis set forth in Frank, just as they would if this defense were considered under the analysis set forth in Thurston recognizing that the Respondent bears a burden of persuasion in establishing its defenses once direct evidence of intentional discrimination has been shown.

22. In order to persuade a fact finder that its rule requiring the automatic disqualification of all applicants with prior back surgery or injury for the Nurses Aide I and approximately 28 other positions is "based upon the nature of the occupation," Respondents must prove the rule meets a "business necessity" standard. They must show:

[T]here exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any [discriminatory] impact; the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential [discriminatory] impact.

Frank v. American Freight Systems, Inc., 398 N.W.2d at 802.

23. In considering whether this broad automatic disqualification rule meets this test, it should be remembered that:

[I]n most discrimination cases based on disability, individualized consideration must be given to the job and to the applicant's particular circumstances both as they bear on the employer's 'nature of the occupation' defense and the complainant's claim of special training or experience. The nature and extent of a disability, the needs of a particular job, and the impact of disability on a person's ability to perform that job, are too diverse to permit generalized application of such rules. . . . This would not be true in every disability case of course, because the nature of the disability and the job might in some cases be so incompatible that generalized rules could be applied. A rule prohibiting employment of a blind person as a driver would be an obvious example.

Id. at 801.

24. The Respondents acknowledge that the rejection Of Complainant Biggles was based solely on the automatic disqualification due to back surgery and injury and not on any individualized consideration of the job and the applicant as set forth in the above quotation from Frank. See Findings of Fact Nos. 12, 15-16; Respondent's Brief at 6-8. Such an individualized assessment would have shown that Complainant Biggles was (a) qualified to perform the Nurses Aide position by virtue of specialized training in the Nurse Aide position and by extensive past experience involving heavy physical labor, including the repetitive lifting of weights in excess of 50 pounds, (b) the disability had caused him no difficulty with lifting since the surgery in 1973, (c) the only medical assessments available indicated his spine was suitably flexible to do the work and that he was capable of performing heavy lifting, and (d) that there was no medical opinion or other reliable evidence indicating that future injury or costs to the employer resulting from his disability were likely to occur. See Findings of Fact Nos. 3-6, 15-16.

25. In the absence of any individualized consideration, the Respondents must show that the "nature of the disability and the job [are] so incompatible that [this] generalized rule could be applied." Frank v. American Freight Systems, Inc., 398 N.W.2d at 801. In Frank, the employer, a trucking company, successfully made this showing for its rule through (a) expert medical testimony demonstrating that the likelihood of future back pain and disability for the plaintiff truck driver, who had a different back disability than the Complainant here, to be "greater than fifty percent, possibly greater than seventy-five percent"; and (b) orthopedic and workers compensation studies showing the occupational relationship between back injury and increased risk to truck drivers. Id. at 801-03. No countervailing medical testimony was introduced. Id. at 802.

26. The employer was found to have established a reasonable business necessity for its rule because it had shown that there was a substantial likelihood that Frank's condition would result in future harm to him to the extent that it would interfere with his job performance and interrupt the employer's business. Id. It is implicit in the decision that the anticipated harm to the disabled applicant, the interference with his job performance, and the interruption of the employer's business were not minor harm, interference, or interruptions but were so great as to render the rule "necessary to the safe and efficient operation of the business." Id.

27. A similar standard has been expressed in decisions under federal and state laws prohibiting discrimination against the handicapped in employment where courts have held that the employer must show a reasonable probability of substantial harm to the disabled applicant or others in order to enforce a blanket rule excluding him from employment opportunities on the basis of possible future injury. See e.g. Mantolete v. Bolger, 767 F.2d 1416, 1422-23 (9th Cir. 1985); Bentivegna v. U.S. Department of Labor, 694 F.2d 619, 621- 622 (9th Cir. 1982); Rozanski v. A-P-A Transport, Inc., 512 A.2d 335, 340 (Me. 1986); Pacific Motor Trucking Co. v. Bureau of Labor and Industries, 668 P.2d 446, 450 (Or. App. 1983); BucyrusErie Corp. v. Wisconsin DLHR, 90 Wis. 2d 408, 280 N.W.2d 142 149-150 (Wis. 1979). A showing of a reasonable probability of substantial harm "cannot be based merely on an employer's subjective evaluation or, except in cases of a most apparent nature, merely on medical reports. [The question must be resolved] in light of the individual's work history and medical history." Mantolete v. Bolger, 767 F.2d 1416, 1422 (9th Cir. 1985).

28. The underlying rationale given for this standard, which would apply equally well to the business necessity standard set forth in Frank, is that:

Any qualification based on the risk of future injury must be examined with special care if the . . . Act is not to be circumvented easily, since almost al I handicapped persons are at a greater risk from work- related injuries. . . . [A]Ilowing remote concerns to legitimize discrimination against the handicapped would vitiate the effectiveness of the ... act.

Mantolete v. Bolger, 767 F.2d at 1422 (quoting Bentivegna v. U.S. Department of Labor, 694 F.2d at 622, 623).

29. In this case, the only evidence offered to show either (a) that there was a substantial likelihood of future harm to the Complainant which would interfere with his job performance or interrupt the employer's business to the extent that exclusion of the Complainant would be necessary to the safe and efficient operation of the business, or (b) that there was a reasonable probability of substantial harm to the Complainant or others by his employment as a Nurse Aide 1, were the medical reports showing the Complainant's disability and the subjective evaluation of the employer that hiring applicants with prior back injuries or surgery posed an unreasonable risk of future injury to the applicant. See Findings of Fact Nos. 9-12, 15-16.

30. Unlike the Frank case, there was no medical expert testimony demonstrating any specific probability of risk of future injury or any medical reports demonstrating a substantial linkage between prior back injury and surgery and any risk of future injuries to Nurse Aides. Nor is there evidence that either this rule or this particular disqualification was based on medical advice or that the rule resulted in a reduction of medical injuries. The available medical evidence is to the contrary. See Conclusion of Law No. 24. Findings of Fact Nos. 12,15,16. The evidence set forth by Respondents is simply not sufficient to establish a business necessity for the automatic disqualification rule or to show a reasonable probability of substantial harm if the Complainant was hired.

31. Even if the employer's burden with regard to the "nature of the occupation" defense was no more than a burden of production, this burden, to the degree it has been met, has been effectively rebutted by evidence of the Complainant's specialized training and experience as well as the evidence of his medical and work history which demonstrates he was qualified to do the work, including the lifting duties. See Findings of Fact Nos. 3-6, 15-16. Frank, 398 N.W.2d at 800. Any showing made of potential future injury was effectively rebutted by the physician's report approving of the Complainant's spinal flexibility and heavy lifting abilities and testimony demonstrating the physicians were either not willing or not able to predict any future degeneration of the Complainant's spine. See Finding of Fact No. 16.


Reasonable Accommodation:

32. Since Respondents have failed to establish the nature of the occupation defense, it is not necessary to address the question of reasonable accommodation. Frank, 398 N.W.2d at 802. No accommodation of the Complainant's disability is necessary nor was any considered prior to his rejection. See Finding of Fact No. 17. It should be noted, however, that offers to the Complainant to re-apply for non- Nurse Aide I positions, which were made after the rejection of the Complainant and on condition that the case be settled, do not constitute a reasonable accommodation of Complainant Biggles' disability. Cf. Toledo v. Nobel-Sysco, F.2d, 51 Fair Empl. Cas. 1147, 1151-52 (10th Cir. 1989)(post- rejection offer of employment conditioned on settlement is not a reasonable accommodation).

33. Under either the Thurston or Frank analyses, and regardless of whether Respondents' burden in regard to the "nature of the occupation" defense is one of persuasion or of production, it has been established that Respondents' failure to hire Complainant Biggles for the Nurse Aide I position constituted disability discrimination in employment in violation of Iowa Code section 601 A.6(a) (1985).


Remedies:

34. Violation of Iowa Code section 601A.6(a) having been established, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 601A.15(8) (1989). In formulating these measures, the Commission does not merely provide a remedy for this specific dispute, but corrects broader patterns of behavior which constitute the practice of discrimination. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). "An appropriate remedial order should close off 'untraveled roads' to the illicit end and not 'only the worn one."' Id. at 771.


Compensation:

35. The Commission has the authority to make awards of backpay. Iowa Code 601 A.15(8)(a)(1) (1989). In making such awards, interim earnings and unemployment compensation received during the backpay period are to be deducted. Id. The Complainant bears the burden of proof in establishing his damages. Diane Humburd, CP # 03-85- 12695, slip op. at 32-33, (Iowa Civil Rights Comm'n Sept. 28, 1989)(citing Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981)). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Id. at 34-35, 37 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. NA. 1976), aff'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainant has done. See Findings of Fact Nos. 18-24. The burden of proof for establishing either the interim earnings of the Complainant or any failure to mitigate damages rests with the Respondent, although the Complainant may, as the Complainant has done here, choose to provide evidence of the interim earnings he is willing to concede. Diane Humburd, CP # 03-85-12695, slip op. at 35-37, (Iowa Civil Rights Comm'n Sept. 28, 1989)(citing e.g. Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). See Finding of Fact No. 32.

36. The award of backpay in employment discrimination cases serves two purposes. First, "the reasonably certain prospect of a backpay award ... provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate [employment discrimination]." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, backpay serves to "make persons whole for injuries suffered on account of unlawful employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of backpay in the present case.

37. "Iowa Code section 601 A. 15(8) gives the commission considerable discretion in fashioning an appropriate remedy that will accomplish the purposes of chapter 601A." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, No. 88- 934, slip op. at 47 (Iowa January 24, 1990). The Iowa Supreme Court has approved two basic principles to be followed in computing awards in discrimination cases: "First, an unrealistic exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Id. at 45. "It suffices for the [agency] to determine the amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id.


Use of Comparable Employees for Gross Back Pay:

38. The Commission may "calculate awards [based] on the experience of comparable employees outside of the claimant's protected class." Id. at 47. In selecting between the two comparable employees in this case, the Commission has elected to use the one with the greatest gross wages as opposed to using the lowest paid employee or an average of their wages. See Finding of Fact No. 24. This was done based on the previously stated principle that uncertainties about what the Complainant would have earned should be resolved against the employer. Under these facts, the only certain way to determine exactly what the Complainant would have earned would have been for the Respondent to have hired him in 1986 and let events take their course. See Findings of Fact Nos. 18-19. Since this was not done solely because of the Respondents' discriminatory practice, use of the highest paid comparable employee is appropriate to resolve any doubts under the principles set forth in the Hy- Vee decision. See Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, No. 88-934, slip op. at 45-47, 49 (citing with approval two cases where the highest paid comparable was selected under these principles- Stallworth v. Shuler, 777 F.2d 1431, 1434-35 (11 th Cir. 1985); Grimes v. Athens Newspaper, Inc., 604 F. Supp. 1166 (M.D. Ga. 1985)).


Termination of the Back Pay Period at December 31,1988:

39. The determination that the back pay period should end on December 31, 1988 is based on the principle that the period ends "if the plaintiff ceases to suffer the adverse economic effects of discrimination, as when plaintiff acquires a higher-paying job and his earnings exceed his losses." Shlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 529 (2nd ed. 1989). The Respondent's proposed termination date of December 31, 1986 was rejected because Respondent did not meet its burden of proving that the back pay period should terminate as of that date. Id. See Findings of Fact Nos. 25-31.


Mitigation of Damages:

40. In order to meet their burden of proving that Complainant Biggles failed to mitigate his damages, Respondents must establish:

(1) that the damages suffered by the [complainant] could have been avoided, i.e. that there were suitable positions which [complainant) could have discovered and for which he was qualified; and (2) that [complainant] failed to use reasonable care and diligence in seeking a position.


EEOC v. Sandia Corp., 639 F.2d 600,627 (10th Cir. 1980).

41. The Respondents contend that Complainant Biggles failure to accept offers to apply for positions, as distinguished from offers for the positions themselves, which were made in anticipation of and on condition that Complainant Biggles settle the case, constitutes a failure to mitigate damages. See Finding of Fact No. 33.

42. If Complainant Biggles had rejected an unconditional offer of employment his back pay would end at the time of his rejection of the unconditional offer. Ford Motor Company v. EEOC, 458 U.S. 219, 232-34 & n. 18 (1982). However, a mere offer to apply for a position, even if it were expressed in terms indicating the offer was unconditional, does not constitute an unconditional offer of employment within the holding of Ford Motor Company v. EEOC. Kilgo v. Bowman Transportation, Inc., 789 F.2d 859, 879 (11 th Cir. 1986)(citing Rasimas v. Michigan Department of Mental Health, 714 F.2d 614, 625 (6th Cir. 1983)(interview letter is not an unconditional offer of employment)).

43. Furthermore, the offers to Complainant Biggles to apply were not even unconditional on their face, as they were a part of settlement negotiations and clearly conditioned on Complainant Biggles settling the case. Under these circumstances, even the rejection of the offer of a job, as opposed to an offer to apply, would not suffice to show that Complainant Biggles failed to mitigate his damages:


The claimant's obligation to minimize damages in order to retain his right to compensation does not require him to settle his claim against the employer, in whole or in part. Thus, an applicant or discharged employee is not required to accept a job offered by the employer on the condition that his claims against the employer be compromised.

Ford Motor Company v. EEOC, 458 U.S. at n.18. When the facts are viewed in light of the above authorities, it is clear that Respondents have not met their burden of proving that Complainant Biggles failed to mitigate his damages.


Interest:

44. Interest begins to accrue on an award of damages from the date of the commencement of the action at the rate of ten percent per annum. Iowa Code S 535.3 (1989). In this case, interest should be paid on damages from the time of the filing of the complaint on April 7, 1986.

Biggles Main Page