BEFORE THE IOWA CIVIL RIGHTS COMMISSION

MAXINE FAYE BOOMGARDEN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

v.

HARDIN COUNTY VETERANS' COMMISSION BOARD and HARDIN COUNTY BOARD OF SUPERVISORS, Respondents.

CP # 07-86-14926

FINDINGS OF FACT CONTINUED:

D. Complainant Boomgarden Was Qualified for the Combined Position of Director of Veterans Affairs and Coordinator of Emergency Management:

21. For reasons stated in the Conclusions of Law, the only inquiry made with respect to the qualifications in establishing the prima facie case is whether complainant met the minimum objective qualifications for the position. Comparison of qualifications with other applicants is, therefore not required under the prima facie analysis used in this case, which is set forth in detail in the conclusions of law. The only detailed sets of objective qualifications which were shown to be actually utilized during the hiring process were those set forth in the testimony of VAC commissioner Orville Gatton at hearing and his responses during the investigative interview and those set forth in the interview evaluation sheet used by the VAC. There were no established job descriptions or sets of objective criteria used by the Board of Supervisors.

Commissioner Orville Gatton's Criteria:

22. Commissioner Gatton agreed that in 1986 he was looking for a person who had the following qualifications:

I was looking for somebody that had some experience with public relations, in dealing with people, someone who could handle the administration work of the office, somebody that knew something about the proper forms for doing administration work, and somebody who wasn't afraid of pulling out forms. Because there are a lot of forms involved in any office anymore.

And, being the only commissioner who lives here locally, I wanted somebody who could take responsibility of the office and not be bothering me at work while they should be doing the work themselves at the office. I was looking for somebody that could handle it, that position.

(Tr. at 563).

23. Based on these criteria, his knowledge of the Complainant's work at Homemaker Health Aide Service providing assistance for elderly people, and other knowledge acquired from her application and the interview, Gatton concluded that Boomgarden conformed to his requirements and was qualified for the position. (Tr. at 564).

Interview Evaluation Form Objective Criteria:

24. The interview evaluation form, which was used only by the VAC, listed five objective and four subjective criteria. The objective criteria were (1) administrative experience (including "office management," "government budgeting/financing," "number of personnel work with currently" and "other"), (2) public relations experience (including "writing experience" and "public speaking experience"), (3) project/program development (including "size of project," "role of applicant," and "number of projects"), (4) experiences with governmental rules and regulations, and (5) disaster response experiences. (EX. # C-15). The subjective criteria were (1) Self starter? Motivated?, (2) Physical Composure, (3) Physical Appearance, and (4) Frankness and honesty during interview. (EX. # C- 15).

25. Although "disaster response experiences" is listed, the preponderance of the evidence does not support the proposition that this was viewed as a significant criterion by the VAC. According to VAC chairperson Arlo Ziebell, although the VAC was aware that the two positions were combined, the VAC was not actively involved in interviewing for the Coordinator of Emergency Management position. (Tr. at 212). Commissioner Orville Gatton testified that some questions were asked about emergency management by the VAC, but it was considered a "very minor" factor by them. (Tr. at 538). Commissioner Merle Chaplin did not mention such experience as being among the qualifications he looked for. (Tr. at D38, D45). It is perhaps significant that the "disaster services response" criterion is crossed out on the surviving blank interview evaluation form which constitutes Complainant's Exhibit C-15. (EX. C-15).

26. Complainant Boomgarden gave a detailed account of her experience and education during her interview with the VAC which lasted approximately one hour. (Tr. at 40-43, 70- 72).

27. Complainant's administrative experience included office experience since 1955 dealing with the public including a variety of ages and economic levels. (Tr. at 40). At the time of her application, and for nine years prior to it, she was employed with the Homemaker Health Aide Service (HHAS). (EX. C-2; C-4; Tr. at 70). The functions of the Homemaker Health Aide Service are described as follows:

These services provide a trained and supervised substitute homemaker when a household experiences stress or crisis precipitated by absence, incapacity, or limitations of the usual homemaker. These services focus on providing information and assistance, household management and learning experiences to enhance the capacity of the household members to attain or maintain the independence of the household. Components of the service include, but are not limited to: Essential shopping; housekeeping; meal preparation; child care; respite care; money management/consumer education; family management; personal care services; and transportation.

(R. EX. # 2).

28. Complainant Boomgarden's position at HHAS was secretary-bookkeeper. (R. EX. # 2; EX. C-4). She therefore answered the telephone, scheduled appointments, and typed correspondence and other items. (R. EX. # 2; Tr. at 80-81). She was also experienced in the use of a variety of office machines. (EX. C-4; Tr. at 40).

29. However, throughout her employment for the nine year period from January 1977 to December 1985, to approximately one month before this position became open, she had performed administrative duties beyond those normally expected of a secretary-bookkeeper position and beyond those described in the official job description. (R. EX. # 2; EX. C-2; EX. C-4; Tr. at 76, 81-85, 132-33). See Finding of Fact No. 2. She did act as bookkeeper for the agency. (R. EX. # 2; Tr. at 71, 80). In addition, she prepared annual budgets, department budgets, records and reports. She did all banking and bank reconciliation. (EX. C-4; Tr. at 71, 135). She prepared all billing, and all monthly financial reports sent to the Board of Supervisors. The later included statistics for budget reports relating to billing, payroll tax and withholding reports. (EX. C-4; Tr. at 80). She also did all cost analysis for the purchase of service for the Department of Human Services, as well as preparing all financial record-keeping and documents for the Department of Health, which helped fund HHAS. (EX. C-4; Tr. at 41). She also maintained statistics relating to all clients of the agency. (Tr. at 80).

30. During this nine year period, Boomgarden's primary duties involved aiding clients who came to the office with claims for emergency assistance, or who were in economic or medical distress by referring them to appropriate agencies throughout the state. (EX. C-2; Tr. at 41). She worked with elected officials, county employees, and the general public every day. (Tr. at 71).

31. Prior to December 1985, Complainant also did client intake and case assessments when the director was absent or during periods between directors. (Tr. at 82-83, 130-32, 135-36). (The longest of three such absences was at least six months. The Complainant ran the agency during such absences). (EX. C-2; Tr. at 161-63, 168). This function involved obtaining financial and other information from clients of the agency in order to determine their needs and to prepare a program of assistance based on those needs. (Tr. at 82-83). She also counseled clients regarding disability. (Tr. at 136). After 1985, Complainant's client contact was limited to scheduling appointments, taking information for billing purposes and referring clients to other agencies. The complainant would help clients obtain needed equipment or refer them to the nursing service. (Tr. at 85-86).

32. With respect to project and program development prior to 1985, Complainant Boomgarden had worked on writing grants, including a grant through a program known as Elder Care. (Tr. at 41, 72, 136).

33. Given her extensive experience with respect to various aspects of the HHAS set forth above, it may be reasonably inferred that she had substantial experience in dealing with governmental rules and regulations to the degree that they affected, for example, the appropriate agency to which a client should be referred.

34. Complainant Boomgarden had no disaster response or civil defense experience and no inquiry was made of her with respect to such experience by either the VAC or the Board of Supervisors. (Tr. at 86, 129-30).

35. Complainant's educational experience included her high school secretarial training, refresher and bookkeeping classes. (Tr. at 72). In addition, Boomgarden had taken over 400 classroom hours in credit and money management, community resources, working with the elderly and handicapped and health. (EX. C-2; Tr. at 40, 72).

36. A portion of complainant's application is set forth in Complainant's Exhibit # 4. As noted above, it confirms some of the data to which complainant testified. This exhibit states "see attached" with respect to the inquiry on special training of the applicant, but the attachment is not included. (EX. C-4). The "attachment" is included as part of Complainant's Exhibit # 2 (EX. C-2). Official notice is taken that the attachment is included as part of her application in Respondents' Answers to Interrogatories of July 19, 1991, which were filed with the Commission. Fairness to the parties does not require that they be given the opportunity to contest this fact.

Determinations By Respondent Recommendation and Decision Makers That Complainant Boomgarden was Qualified:

37. The evidence also indicates that determinations were made by all of the Respondents' decision and recommendation makers at various points in the hiring process that the Complainant was qualified for the position as set forth here.

38. Prior to Boomgarden's interview with the VAC, VAC members Arlo Ziebell and Orville Gatton and Board of Supervisors member Millie Lloyd told her, on separate occasions, that they thought she was either qualified, very qualified, or an excellent person for the position whose chances of appointment would be good. (Tr. at 20, 29, 31, 522).

39. Immediately after Complainant Boomgarden's interview with the VAC, its members commented that she was qualified and certainly had the experience for the job. (Tr. at 43). The next day Orville Gatton told her that the VAC was very impressed with her interview and thought she was an excellent candidate. (Tr. at 47). The complainant was considered to be well qualified for the job by the VAC. (Tr. at 186, 192-94, 196, 199, 522, 528, 535-36, 563-64). The Respondent has conceded on brief that "all three members [of the VAC] felt that Complainant had good qualifications for Veterans Affairs Director." Respondents Brief at 2.

40. By recommending four names to the Board of Supervisors, the members of the VAC were signifying to the Board that all four persons named, including Complainant Boomgarden, were considered to be best qualified for the position. (Tr. at 186, 193-94, 196, 199, 264, 535-36, D11). The names were listed in alphabetical order as the VAC made no attempt to list them in order of their respective qualifications. (EX. C-16; Tr. at 186-89, 201-02).

41. Supervisor Lloyd concluded that all four candidates on the list recommended by the VAC were qualified to perform the Veterans AffairsDirector position. (Tr. at 264). Given Complainant Boomgarden's experience, Lloyd concluded she was qualified. (Tr. at 265).

42. Supervisor Robert Fuller concluded that all of the candidates recommended by the VAC, including Boomgarden, were good candidates. (Tr. at 449). He had the opportunity to work with the Complainant in her role at the Homemaker Health Aide Service and found her to be a competent and hard worker who could bring her skills to the position if appointed. (Tr. at 463-64). On May 6th, the day after her interview with the Board, Fuller informed Boomgarden in the presence of Jacqueline Carman, a coworker, that things were looking good and that the selection was down to her and 2 other applicants. (R. EX. # 10; Tr. at 49, 61, 121-22, 156-57, 162-63).

43. Supervisor Linn Adams felt that Complainant Boomgarden was well qualified for the position. (Tr. at 488, 493-494, 496, 507). Just as had happened during her interview with the VAC, the members of the Board of Supervisors mentioned during or immediately after Complainant Boomgarden's interview that they felt she had the qualifications and experience. (Tr. at 43, 50, 51, 134).

E. Despite Her Qualifications, Complainant Was Rejected For the Position, Which Was Filled By a Male:

44. The Board selected David Roelfs, a male, for the position. By selecting Mr. Roelfs, the Board simultaneously rejected Complainant Boomgarden. She was informed of her rejection by Hardin County supervisor Linn Adams. See Finding of Fact No. 19. (Tr. at 56, 493).

F. Respondents' Articulated Reasons for the Failure to Hire Complainant Boomgarden for the Position:

45. On brief, Respondents identified only two reasons as being legitimate, non-discriminatory reasons for the failure to hire Maxine Boomgarden which it had articulated through the production of evidence. The reasons so identified on brief are (1) that Complainant was not hired because she, unlike David Roelfs, was not a veteran, and (2) that she was not hired because Roelfs was a Democrat who had assisted supervisor Fuller during previous political campaigns. (Respondents' Brief at 10, 12).

46. It should be noted that Respondents did not state on brief that the relative qualifications of Roelfs and Boomgarden constituted a legitimate nondiscriminatory reason for the failure to hire Boomgarden. In their defenses listed in Response to Complaint ( a response to the Notice of Hearing) Respondents asserted, with respect to qualifications, only that the Board believed it was required to hire a qualified veteran. (Response to Complaint). In their prehearing conference form, Respondents asserted, with respect to qualifications, only that they hired a qualified person. (Respondents' Prehearing Conference Form).

G. The Veteran's Preference: A Reason Which is Neither Legitimate nor Nondiscriminatory on the Basis of Sex Under the Facts of this Case:

47. Under the facts of this case, for reasons set forth at length in the Findings of Fact and Conclusions of Law dealing with the application of the disparate impact theory to this case, the veterans' preference reason does not constitute a legitimate non-discriminatory reason for the failure to hire Complainant Boomgarden. In summary, the utilization of the veterans preference in this case is neither legal nor non-discriminatory because all of the following are true:

a. The county was not legally required to use the veteran's preference in this instance because David Roelfs was not as qualified as Complainant Boomgarden; and

b. The use of the veteran's preference in employment has a severe disparate impact on women; and

c. The use of the veteran's preference is not justified by business necessity.

See Findings No. 84-99 and Conclusions of Law No.32-70.