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:
M. The Exercise of the Veterans Preference Is Not Justified By Business Necessity As It Is Not Essential to the Safe and Efficient Operation of the Veterans Affairs Commission's Programs:
93. The exercise of the veteran's preference with respect to this position was only done because it was felt by local veterans organizations and others that veterans would prefer to deal with other veterans with respect to the functions of the Veterans Affairs Commission. (Respondents Brief at 9, 10-11, Tr. at 192, 274, 276-77, 334-35, 346, 355- 58, 387, 432, 434-35, 451-52, 462-63, D29, F11, F14). It is not asserted by Respondents that the preference was related to the emergency management coordinator function. (Respondents' Brief at 9, 10-12; EX. C-17; Tr. at 276, 343).
94. The greater weight of the evidence in the record clearly does not support any affirmative defense to the effect that there is an overriding legitimate business purpose served whereby having a veteran in this position is essential to the safe and efficient operation of the functions of the Veterans Affairs Commission. Such an affirmative defense, which must be proved in order for the Respondents to prevail once disparate impact has been shown with regard to a challenged employment practice, is not even claimed by Respondents. (Respondents' Brief; Respondents' Prehearing Conference Form, Response to Complaint). See Conclusions of Law Nos. 58-59, 64-65, 70.
95. The Respondents' own experts, Bennie Spain and Charles Poncy, repeatedly acknowledged, in effect, that status as a veteran was not essential to the safe and efficient performance of the Veterans Affairs Director's job. Bennie Spain has been full time Veterans Affairs Director of Black Hawk County for six years. (Tr. at 341). Spain was aware that there were nonveterans in these positions. He estimated that, based on the attendance of Veterans Affairs Director's state meetings, 55% of the directors were veterans, 15% were nonveterans, and it was unknown what percentage of the remaining 30% were or were not veterans. (Tr. at 363-64). Spain acknowledged that "[T]here are some [nonveteran Veterans Affairs Directors] who do excellent jobs." (Tr. at 364). He agreed that in 1986 a nonveteran who was qualified could be appointed to the position of Veterans Affairs Director. (Tr. at 364-65). When asked if he could "think of any reason that a person with the proper skills, background, and training who was a nonveteran could not perform the same functions as you do on a daily basis?", he replied, "I don't see why they couldn't." (Tr. at 365). He repeatedly acknowledged that nonveterans could successfully perform this job. (Tr. at 364-65, 367).
96. Charles Poncy, a legislator who is an active spokesperson for veterans, also testified. (Tr. at 426-28, 430). He acknowledged that, although veterans may prefer to deal with a veteran, a nonveteran with proper training could perform the Veterans Affairs Director duties. (Tr. at 434). He agreed that it would not be absolutely necessary to have a veteran in the Veterans Affairs Director position, as long as the person hired could provide the service. (Tr. at 435).
97. In addition to Spain and Poncy, the preferred candidate, David Roelfs, who has been Veterans Affairs Director since 1986, also acknowledged that a nonveteran could do the job. (Tr. at 421-22). Roelfs agreed that being a veteran was not a business necessity for the Veterans Affairs Director position. (Tr. at 422).
98. Supervisor Robert Fuller and VAC commissioner Merle Chaplin also agreed that a nonveteran could perform the functions of the Veterans Affairs Director position. Chaplin noted that, in his view, having a veteran in that position was not a necessity, but an advantage. (Tr. at 452, D29).
99. In this case, the use of the veterans preference was not required as David Roelfs was less qualified than the Complainant Maxine Boomgarden. In addition, the use of the veterans preference in employment has a severe disparate impact on women and is not justified by business necessity. The use of the veterans preference in this case constitutes sex discrimination against Maxine Boomgarden under the disparate impact theory.
N. Compensatory Damages:
100. In accordance with the well-established law of Iowa, it is necessary to consider what amounts of money should be awarded to compensate Complainant Boomgarden for the damage she suffered from the discriminatory actions of the Respondents. See Conclusion of Law No. 72.
1. Back Pay and Front Pay:
101. David Roelfs was hired at a combined salary of $13,000 per year effective July 1, 1986 for the positions of Director of Veterans Affairs ($6,500) and Coordinator of Emergency Management ($6,500). (EX. # C-20). His W-2s reveal he actually earned $6,624.12 through the end of calendar year 1986. (EX. # C-21). This is 51% of what would have been his salary of $13000, if he had been in the position the entire calendar year.
102. Complainant Boomgarden earned $11,478.12 from her position at HHAS for the entire year of 1986. (EX. # C-22). Fifty-one percent of that amount is $5853.84. Therefore, the amount of Back Pay she is due for 1986 is $6,624.12 -$5853.84 = $770.28.
103. Although the Complainant's back wages for 1986 are not accurately calculated for 1986 in Exhibit C-27, since that exhibit erroneously assumes that she would have been in the position for that entire calendar year, it does accurately set forth the calculations of back pay for the years 1987-90:
Back Pay for 1987:
Pay for the Hardin County position: $13,740.48
- Actual earnings of Complainant: 11,699.85
Total Back Pay for 1987: $ 2,040.63
Back Pay for 1988:
Pay for the Hardin County position: $14,498.01
- Actual earnings of Complainant: 12,210.84
Total Back Pay for 1988: $ 2,287.17
Back Pay for 1989:
Pay for the Hardin County position: $15,500.08
-Actual earnings of Complainant: 12,823.89
Total Back Pay for 1989: $ 2,676.19
Back Pay for 1990:
Pay for the Hardin County position: $16,499.85
- Projected Pay of Complainant for the Entire Year Based on 7/31/90 Resignation From HHAS and Pay Through That Date of $8694.48: 14,904.00
Total Back Pay for 1990: $ 1,595.85
TOTAL BACK PAY JULY 1, 1986 TO DECEMBER 31, 1990 = $770.28 + $ 2,040.63 + $ 2,287.17 + $ 2,676.19 + $ 1,595.85 =
$9370.12 BACK PAY TO 12/31/90. (EX. C-21, C-22, C-27; Tr. at 68-69).
104. While there are estimates in the record of the back pay due Complainant Boomgarden for 1991 and 1992, and it would be possible to formulate an estimate for back pay to the date of this decision, the better practice would be to set forth a formula for back pay, whereby the greater of the amounts of Complainant's actual or potential earnings (if she had not left HHAS) and the greater of either the incumbent's actual earnings in the position with Hardin County or the amount determined to be the annual salary for that position, (which takes into account the possibility that the incumbent may leave the position) can be inserted into the formula. Such a formula can also be used annually to calculate front pay through the end of 1996. 1996 will be 10 years after the failure to hire Boomgarden and would represent a reasonable time to end front pay, as, over time, any method of estimation becomes less reliable. This formula will ensure that any back pay or front pay does not exceed the difference between the income Complainant Boomgarden would have received at the Hardin County position and the greater of the Complainant's actual earnings, or potential earnings if she had remained at HHAS. Once Complainant Boomgarden's actual or potential income equals or exceeds the income she would have earned in the Hardin County position, or the end of the calendar year 1996 arrives, any further back or front pay shall cease.
105. The formula for any given year can be set forth as follows:
[(The greater of the actual annual wages paid to the incumbent of the Hardin County Veterans Affairs Director and Emergency Management Coordinator position or the salary established for that year by Hardin County) - (The greater of the Complainant's actual annual earnings or her potential earnings if she had stayed at HHAS) = pay due for the given year].
106. Complainant's potential earnings at HHAS can be estimated by projecting an average annual increase in salary equivalent to that she obtained during the years 1986 to 1990. The average annual increase during this period can be determined as follows: (1.9% + 4.4% + 5.0% + 16.2%)/4 = 6.88% average annual increase. (EX. C-27). Therefore, her potential annual earnings for the years 1991-96, if she had remained at HHAS, and assuming an average 6.88% annual increase would be:
1991 $15929.40
1992 $17025.34
1993 $18196.68
1994 $19448.61
1995 $20786.67
1996 $22216.79
107. The record also reflects that the amount established as salary for the incumbent in the Hardin County position for the first half of the calendar year 1991 is $8,500 (based on an annual salary of $17,000 for fiscal year 1990-91). (EX. C-21).
2. Insurance Premiums:
108. There is not a preponderance of evidence in the record to support the award of $6,950.77 for the difference between "insurance benefits" received by Roelfs and Boomgarden from 1986 to 1991. The record does reflect what appears to be a total of $13,405.20 paid for Roelfs' insurance premiums during that time period. (EX. C-21; C- 27). (These appear to be premiums and not "benefits" because the same amount, $1971.60, appears for three consecutive years on the sheet summarizing Roelfs' salary and benefits. (EX. C-21). And, it is clear that life, health, and dental insurance premiums are paid by Hardin County for its full- time employees. (EX. C-13). But, there is no explanation for the $6,454.43 in "benefits" received by Boomgarden during that period as listed in Exhibit C-27. Boomgarden testified that she received no insurance from HHAS, therefore it is unknown what that figure represents. (Tr. at 52). Boomgarden should be compensated, however, based on the difference between insurance premiums paid for Roelfs by Hardin County and insurance premiums, if any, paid for by either HHAS or her business.
3. Employer Contributions to Iowa Public Employee Retirement System (IPERS):
109. Boomgarden was not eligible for IPERS or other retirement program in the HHAS position, which was in a private, nonprofit corporation. (Tr. at 52). She would have received it if hired for the Hardin County position. (EX. C- 13; Tr. at 52). Therefore, she is entitled to an amount equal to the full employer contribution to IPERS for David Roelfs from 1986 to 1991, which is $5,370.50. (EX. C-21, C- 27).
4. Employer Social Security Payments (FICA):
110. Due to the increased pay which Complainant Boomgarden would have received if hired, the employer contributions to social security would have been $2,821.37 higher than those actually paid in for the period from 1986- 1991. (EX. C-21, C-27). She is entitled to be compensated for that amount.
5. Vacation Pay
111. If Boomgarden had been hired, she would have received the dollar equivalent in accumulated vacation which would have exceeded the vacation she did accrue at HHAS by the amount of $1122.74. (EX. # C-21, C-27; Tr. at 52). She should be compensated for that amount.
6. Mitigation of Back Pay Damages:
112. The Respondents did not meet their burden of proving that Complainant Boomgarden willfully failed to mitigate her damages with respect to back pay and benefits. The record shows that Boomgarden did mitigate her back pay and benefit damages by continuing in her employment at HHAS until July 31, 1990 and subsequently starting a business. (Tr. at 68, 152). It also shows that she made application for two higher paying positions after being rejected for the Hardin County position. (Tr. at 125-26). There is no evidence in the record that there were other higher paying positions available for which she was qualified and could have applied or that she failed to use reasonable diligence in seeking such positions.
7. Emotional Distress Damages:
113. Complainant Boomgarden suffered substantial emotional distress due to the failure of Respondents to hire her. After learning she did not get the job she "went home and cried my eyes out." The newspaper had indicated, based on the second list furnished the Board by the VAC, that candidate Steven Ball had withdrawn, leaving David Roelfs as the only candidate. (EX. C-20; Tr. at 66-67). This had, understandably, given her son the impression that she had not even been considered qualified, which added to her distress. This was particularly stressful because she had been told by supervisors Lloyd, Fuller, and the members of the VAC that she was qualified. (Tr. at 67). See Findings of Fact Nos. 38-40, 42.
114. She has been upset and bothered by this decision since the day it happened, and was still bothered as of the hearing. (Tr. at 67). The first year was the worst as far as the emotional strain caused her by the discrimination she suffered in this case. (Tr. at 146). Complainant Boomgarden felt betrayed and angered by the discrimination inflicted upon her. (Tr. at 158). She was also embarrassed because the appearance had been given publicly that she was not even qualified for a position for which she is so obviously qualified based on her past experience. (Tr. at 67, 147).
115. Complainant Boomgarden did mention this case to a doctor as a source of emotional distress, although she did not seek out treatment specifically for the distress caused by this problem. (Tr. at 126-27). Complainant Boomgarden did, however, lose sleep over her treatment and would wake up at 3:00 A.M. thinking about what had happened to her. (Tr. at 146).
116. Complainant Boomgarden also suffered a substantial loss of income due to discrimination. See Findings of Fact Nos. 101-111. It can be reasonably inferred that such loss of income would cause emotional distress.
117. Complainant Boomgarden has asked for twelve thousand dollars ($12,000.00) in emotional distress damages. (EX. C-27). In light of the evidence set forth above, an award of nine thousand dollars ($9,000.00) would be full, reasonable, and appropriate compensation for the distress resulting from discrimination.
O. Credibility Findings:
118. Complainant Maxine Boomgarden, Ralph Boomgarden, Jacqueline Carman, Jerry Pence, Steven K. Ball, Marlene Ziesman, David Roelfs, Linn Adams, Bennie Spain, Charles Poncy, Marion Munsinger, and Ruth Donner were credible witnesses.
119. The credibility of Millie Lloyd and Robert Fuller is questionable as indicated by their being impeached with prior inconsistent statements on the "politics" issue. Their testimony on this issue was also incredible for other reasons. [Their testimony can be contrasted with that of Adams, whose testimony was not unreliable because of prior inconsistent statements, but because it did not have an adequate factual basis.] See Findings of Facts Nos. 49, 51- 60.
120. Fuller and Lloyd also testified to two mutually exclusive facts, i.e. (1) that, by submitting the second list, which did not name Boomgarden, the VAC eliminated her, Shugar, and Mensing from further consideration by the Board, leaving only two veterans, Ball and Roelfs, from which to choose, and (2) the veterans preference, which is exercised only when the choice is between a veteran and nonveteran, was used in their selection of Roelfs. (Tr. at 277-81, 290, 298, 310, 333-34, 337-38, 459-61). [This testimony can be contrasted with that of Linn Adams, who thought Complainant Boomgarden was the best qualified candidate, but also felt he could not vote for her as she had been eliminated by the VAC's second list. (Tr. at 488-89). He understood that, if that were true, the Board did not need to concern itself with the veterans preference, as both remaining candidates were veterans. (Tr.at 489-90)]. It should be noted that the VAC's position is that the second list was intended to supplement the first, although Roelfs' name is repeated. (Tr. at 201, 546-47, D24-25)]. In light of the above, Fuller's and Lloyd's testimony is primarily relied upon for background information or when corroborated by other reliable evidence or other indicia of reliability.
121. In many respects, the testimony of VAC Commissioners Ziebell, Gatton, and Chaplin appears to be reliable. However, as previously noted, Ziebell's testimony with respect to having made discriminatory comments in jest and not having relayed those comments to the other board members is not credible. See Finding of Fact No. 64. The VAC Commissioners inability to provide a plausible reason for again naming Roelfs to the second list also adversely affects their credibility.