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:
H. The Assertion That David Roelfs Was Selected Over Complainant Boomgarden Because He Was A Democrat Who Had Assisted Robert Fuller In Political Campaigns Constitutes A Pretext For Discrimination:
48. There is evidence in the record indicating that political influence was a factor in the decision to select Roelfs for the position over Complainant Boomgarden. (Tr. at 270-71, 344, 453). However, this reason is a pretext as the greater weight of the evidence, as set forth below, demonstrates that (1) the testimony of the members of the Respondent Board of Supervisors, who stated this decision was based on party affiliation of or campaign support by David Roelfs, is unreliable, and (2) even if true, this reason was insufficient under these facts to motivate the challenged employment action.
49. On April 9, 1986, supervisor Linn Adams, who was a friend of Complainant Boomgarden, told her that he thought the hiring decision would probably be a political hiring. He did not give her, at this or any other time, any rationale or evidence to support this conclusion. (R. EX. 10; Tr. at 34- 36, 100-01, 102, 481-82). Adams was aware that Roelfs, like supervisors Fuller and Lloyd, was a Democrat. (Tr. at 260, 439, 499). Adams made this comment based solely on rumors he had heard even before he had taken his seat on the Board in January 1985. The "general talk" was that appointments were made on the basis of political affiliation. (Tr. at 480, 482-83). This is not a reliable basis for supporting the conclusion that politics played a role in this decision.
50. Nonetheless, because of this comment by Adams, Complainant Boomgarden became concerned because, in her words, "a politician I am not." (EX. C-25; Tr. at 45-46). Therefore, at her subsequent Veterans Affairs Commission interview, Boomgarden asked if the hiring decision was going to be political. The VAC members informed her that politics never had anything to do with their recommendation. (EX. C- 25; Tr. at 45-48, 190-91, D9). Politics did not enter into their recommendations. (Tr. at 191, 206-07, D46). The members of the VAC appeared to be so upset by her question that Boomgarden felt compelled to apologize for it. (EX. C- 25; Tr. at 47-48).
51. Millie Lloyd testified that the fact David Roelfs was a Democrat played a part in her individual decision to vote for his hire. (Tr. at 270, 344, 349) She also testified, however, that his being a veteran was "the main reason" for voting for his hire. (Tr. at 344). Her testimony with respect to the political affiliation issue was not credible because it was successfully impeached by her own prior inconsistent statements. In her interview with Karl Schilling, during the course of the investigation, she denied that politics was a factor in her decision:
Q. [By Schilling]: Okay. Do you recall the issue of political influence coming up?
A. [By Lloyd]: Not that I recall.
Q. [By Schilling]: Were you aware that Mr. Roelfs had worked in Mr. Fuller's campaign?
A. [By Lloyd]: I think--yeah, I think I remember that, yes.
Q. [By Schilling]: Okay. did it ever come up in the discussion?
A. [By Lloyd]: Not that I recall.
Q. [By Schilling]: Okay. Was this a concern of yours one way or another?
A. [By Lloyd]: No.
(EX. C-28-9; Tr. at 273-74).
52. Furthermore, Lloyd testified at hearing that although she was aware Roelfs was a Democrat, like her and Fuller, she did not know what Roelfs did to support Fuller in his political campaign. She had never discussed this topic with Fuller. (Tr. at 301, 302, 336).
53. Finally, although Boomgarden is a Republican, Lloyd did not know whether Complainant Boomgarden was a Democrat, a Republican, or an Independent. (Tr. at 113, 336, 343). The only reasons which Lloyd gave in her testimony for concluding Boomgarden was either a Republican or Independent were (1) Boomgarden was not active in the Democratic party and (2) Boomgarden often went to Linn Adams and not Fuller or Lloyd with various concerns. These reasons are not credible because those facts do not support the conclusion she claims to have drawn.
54. With respect to the first reason, it is a matter of common knowledge that there are many members of the major political parties who are not active in party politics. Official notice is taken of that fact. Fairness to the parties does not require they be given the opportunity to contest this fact. In other words, it would have been quite possible for Boomgarden to have been a Democrat while not being active in Democratic party politics.
55. With respect to the second reason, the bare fact that Boomgarden often went to Linn Adams with her concerns is hardly conclusive or indicative of political party membership. Her long-term friendship with him and his family could provide one obvious, alternate explanation. (Tr. at 34).
56. Robert Fuller testified at hearing that David Roelfs' political affiliation probably helped his candidacy for the position. (Tr. at 453). However, this testimony was contradicted by his own prior inconsistent statement made to Karl Schilling during the course of the investigation:
Q. [By Schilling]: [W]as there, in your mind, any advantage given to Mr. Roelfs because of listing your name as a reference or any political connection?
A. [By Fuller]: No, I am sure there wasn't.
(EX. C-28-10; Tr. at 453-54).
57. Also, the campaign assistance provided Robert Fuller by David Roelfs was minimal. For this reason it may be reasonably inferred either that the work was insufficient to motivate the vote for hire or was unlikely to have been the whole cause for the action, if Roelfs' campaign work actually did play a role in Fuller's decision. Roelfs was just one of dozens of people who assisted Fuller in 7 campaigns over a 15 year period. (Tr. at 443-44). During the course of the investigation, the following exchange occurred between Fuller and investigator Schilling:
Q. [By Schilling]: Okay. Now Mr. Roelfs listed you as one of his references. Did he talk to you about doing that?
A. [By Fuller]: He asked me if he could put his [sic] name down for a reference.
Q. [By Schilling]: Okay. How had you known him before?
A. [By Fuller]: Vaguely, just knew who he was and had run across him, maybe on just a few occasions. By being in Ackley, at some functions, I think I ran into him and, I think that's maybe how that I got to know, vaguely, who he was.
Q. [By Schilling]: Had he ever worked in your campaigns?
A. [By Fuller]: No, not really. I think that he was a person that supported me, but as far as working on the campaign, I - I'm not whether he went out and door knocked and things like that, ___ if you're referred to, not to my knowledge, no.
(EX. C-28-10; Tr. at 443).
58. The campaign support of Roelfs, which Fuller became cognizant of after reviewing his scrapbook approximately one to two months before the hearing, consisted of the presence of Roelfs' name in a 1982 full page newspaper ad listing well over 150 supporters and his name's presence on campaign committees in 1976 and 1980. (EX. R-7; R-8; Tr. at 444-45, 472-74).
59. David Roelfs did not know Fuller before working on his county supervisor campaign in 1976. Roelfs' campaign work was to talk to people and hand out brochures in Ackley. He also attended a total of two meetings at Fuller's house that year. (Tr. at 371-72). Those two 1976 meetings were the only times that he actually had contact with Fuller during the ten years from 1976 to 1986, until the day he asked him to be a reference. (Tr. at 372-73, 376). While his name was on the campaign committee in 1980, Roelfs attended no meetings. (Tr. at 372). His campaign work was limited to handing out bumper stickers and brochures. (Tr. at 373).
60. In summary, the testimony of the members of the Board with respect to the political affiliation reason is unreliable for the reasons stated above. Furthermore, neither Lloyd nor Fuller asserted that political affiliation or support was the primary reason for their action in voting for Roelfs. (Nor does any of their testimony support the theory that former Republican supervisor Jerry Pence's support of Boomgarden actually played any role in their decision.) With the elimination of this and the veterans preference as legitimate, nondiscriminatory reasons, there remains no other legitimate, non-discriminatory reason identified in the Respondents' brief as having been articulated by Respondents. (For reasons stated in the conclusions of law, Respondents are limited to the legitimate, non-discriminatory reasons identified on brief). In the absence of credible evidence supporting such identified and articulated reasons, and given the inference of discrimination initially drawn from the establishment of the prima facie case, it may be and is concluded that Complainant Boomgarden was subjected to different treatment on the basis of her sex by the Respondents in their failure to hire her.
I. Evidence That a Discriminatory Reason More Likely Motivated the Respondents in The Hiring Process:
61. The evidence previously discussed has been sufficient to establish a circumstantial case of different treatment on the basis of sex in the failure to hire Complainant Boomgarden, as the averred legitimate non- discriminatory reasons set forth by Respondents are either illegitimate and discriminatory or unworthy of credence. In addition to this, there is evidence of statements by the Chairpersons of the VAC and the Board of Supervisors which reflect a discriminatory bias against hiring a woman for this position. Such statements are further evidence that the reasons given by Respondents are pretexts for discrimination.
1. Statements by Arlo Ziebell, Chairperson of the Veterans Affairs Commission:
62. On or about January 24, 1986, after Complainant Boomgarden had submitted her application for the position, she telephoned Arlo Ziebell, Chairperson of the VAC. (EX. C-2; Tr. at 30-31, 172, D39). Ziebell stated that he had received the application and that it certainly looked like she was qualified. When Complainant Boomgarden asked if any further references she could give to him, he indicated no. Ziebell then stated "Well, I think you're certainly qualified, but we're just not ready for a woman in that position to be telling us what to do." (Tr. at 31, 137). Boomgarden replied that she did not understand his comment as she thought it would be the other way around because the VAC would be telling whomever they hired what to do. Ziebell responded that "Well, if we had a woman in there, we would certainly have to change our way of doing things." (Tr. at 31). He expressed a concern about the relaxed way in which the VAC meetings were run and the presence of off-color language. (Tr. at 32). Ziebell admitted making these remarks. (Tr. at 172-74, 209). Respondent in its Response to Complaint admitted that Ziebell "made a remark in jest, which was not appropriate to the occasion." (Response to Complaint).
63. Ziebell also stated "We just don't want to get involved in any damn lawsuit here. We have to be careful who we hire." The Complainant's response was that, she did not understand this concern about a lawsuit and that this was the second time she had heard it. (Tr. at 32). (She had earlier heard the same concern about a lawsuit, along with an acknowledgment of her being qualified, expressed by VAC member Orville Gatton and later heard Board of Supervisors chairperson Robert Fuller make similar statements at her interview with the Board of Supervisors). (Tr. at 29, 50). She commented that "if you hire the best qualified, that ought to be good enough." (Tr. at 32).
64. Although Ziebell testified that his statements were made in jest, the Complainant did not believe this, as his explanation for the remark, i.e. the need to change the relaxed nature of the meetings if a woman were hired, was given as a serious explanation. (Tr. at 33, 99, 172-73, 209). Ziebell also testified he did not mention this conversation at the VAC meetings and had only made the comment when he talked to the Complainant. (Tr. at 214-15). Orville Gatton and Merle Chaplin testified, however, that Ziebell did tell them about his statements to Boomgarden. (Tr. at 561, D39). Ziebell's testimony to the effect that his comments were made in jest and indicating that he did not repeat these comments to others is not credible.
2. The Significance of Ziebell's Statements:
65. Although the statements made by Chairperson Ziebell are of the type normally considered to be direct evidence of discriminatory intent, it must be remembered that the VAC did name Boomgarden to the first list of four applicants recommended to the Board of Supervisors. See Finding of Fact No. 13. In the Respondent's answers to interrogatories, Ziebell's expected testimony was summarized in response to interrogatory number 4. The answer stated, in part, "Mr. Ziebell felt that at least one woman should be so included [on the initial list of 4], and proposed that Complainant's name be recommended to the Supervisors, even though she was not a veteran." (Answers to Complainant's Interrogatories). When asked about this response, Ziebell claimed that he felt that a woman should be on the list of four applicants. (Tr. at 217). When asked why he wanted a woman on the list, he testified that he felt naming a female was proper as Boomgarden was "the only lady that was most qualified on her application of any of the rest of them." (Tr. at 218). He also testified that he had taken the lead in getting Boomgarden on the list of four, although he did not know the reason why. (Tr. at 210, 218).
66. The impression left by Ziebell's testimony is that Boomgarden, in his view, should be and was named to the original list of four as a "token female." As indicated by Ziebell's comment indicating that Boomgarden was the best qualified female, such an approach tends to obscure the qualifications of highly qualified female applicants as they are compared only or primarily to other female applicants and not to male applicants. There may be a tendency to draw a distinction between the "token" female and the "real" male candidates, with only the latter being given serious consideration. In this case, as will be set forth in detail later, Complainant Boomgarden was certainly better qualified than David Roelfs, especially when an emphasis is placed on the Director of Veterans Affairs position, which was the primary concern of the VAC.
67. If the actions of the VAC in the hiring process had been limited to naming the initial list of four, the action of naming Boomgarden to that list would logically have been persuasive enough to rebut the evidence of discrimination provided by Ziebell's statements. It must be remembered, however, that the VAC was subsequently asked by the Board of Supervisors to submit additional names. It submitted the name of Steven Ball and resubmitted the name of David Roelfs. See Finding No. 18.
68. Ball's name was submitted for the first time on the second list because he had been previously interviewed and the VAC did not desire to conduct further interviews. (Tr. at 214). The testimony of members of the VAC provides no credible, persuasive reason, however, for resubmitting only the name of Roelfs while not resubmitting the names of Boomgarden or the other previously named applicants. Chairperson Ziebell could provide no reason for the resubmission of Roelfs' name. (Tr. at 203). Orville Gatton did not know how they came up with Roelfs' name a second time, but suggested he was selected because he was a veteran. (Tr. at 544-45). This does not explain, however, why the names of other veterans, i.e. Alvin Mensing and Gary Shugar, which were originally submitted, were not resubmitted on the second list. (EX. C-10; C-16). Merle Chaplin offered three reasons: not having to reinterview, trying to find a qualified veteran, and his assumption that the VAC decided Dave Roelfs was probably better qualified as possible reasons. The first does not explain why any of the other previously named candidates were not again listed. The second does not explain why the other previously named veterans were not resubmitted. The third is offered as an unsupported assumption which is not plausible in light of Boomgarden's better qualifications and of the previously cited testimony of other members of the VAC to the effect they did not know of a reason. Therefore, Ziebell's statements remain as unrebutted evidence that sex discrimination played a role in the VAC's final act in the selection process.
69. If the testimony of members of the Board of Supervisors, to the effect that they believed they were limited in their choice to the two names on the second list, were credible, then this act had the effect of eliminating Boomgarden from further consideration. (Tr. at 279-81, 290, 298, 310-11, 337, 459, 488, 490). If the testimony of the Board on this point is not believed, the resubmission of Roelfs' name at least had the potential to have been seen as a further endorsement of Roelfs which was denied to the Complainant.
3. Statement by Robert Fuller, Chairperson of the Veterans Affairs Commission:
70. During the course of the hearing, Chairperson Robert Fuller had testified that he was looking for someone who had the qualifications and was the right age. (Tr. at 449). When asked to expand on that testimony, Fuller noted that Gene Foster had the position for many years and noted that, "My thinking was that if we could find a young man that would fit in the job, then it would be--he could have that job for several years." (Tr. at 464). Fuller later denied that the fact Complainant was a woman had any bearing on his decision. (Tr. at 466-67). Although Fuller's quoted statement might be characterized as a slip of the tongue, it is a slip which conveys a message, i.e. Fuller perceived this position as a position which had been and would continue to be held by a man. His denial is not credible in light of the quoted statement and in light of repeated incidents of less- than-credible testimony by Fuller and Millie Lloyd which are more fully set forth in the findings on credibility.