TAMMY R. COLLINS and LARRY W. COLLINS, Complainants, and IOWA CIVIL RIGHTS COMMISSION,

vs.

HOWARD C. FLOOK, Respondent.

CONCLUSIONS OF LAW:

I. Jurisdiction and Procedure:

A. Subject Matter Jurisdiction:

1. Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). The Collinses' complaint is within the subject matter jurisdiction of the Commission as the allegations that Respondent Flook failed to rent to the Complainants due to race falls within the statutory prohibitions against unfair housing practices which the Commission has the power to hear and determine. Iowa Code SS 601A.8, .15 (now SS 216.8, .15).

2. Specifically, this case falls within the prohibitions of the following code sections:

It shall be an unfair or discriminatory practice for any owner . . . of rights to housing . . .:

1. To refuse to . . . rent, lease . . . any . . . housing accommodation . . . to any person because of the race, color . . . of such person.

. . .

3. To directly . . . in any . . . manner indicate . . . that the rental, lease, . . . of any housing accommodation . . . by persons of any particular race, color, . . . is unwelcome, objectionable, not acceptable, or not solicited.

4. To discriminate against the [prospective] lessee of any . . . housing accommodation . . . because of the race, color . . . of persons who may from time to time be present in or on the lessee's or owner's premises for lawful purposes at the invitation of the lessee as . . . relatives or in any similar capacity.

Iowa Code Section 601A.8 (1991).

B. Standing of the Complainants:

3. As this Commission has previously held: The Act allows "any person claiming to be aggrieved by a discriminatory or unfair practice" to file a complaint. Iowa Code § 601A.15. An aggrieved person is one who has "suffered loss or injury;. . . one who is injured in a legal sense, one who has suffered an injury to person or property," In Re Vetter's Estate, 297 N.W. 554, 556 (Neb. 1941)(cited in Ironworkers [Local No. 67 v. Hart, 191 N.W.2d 758 (Iowa 1971)] at 767); or whose "legal right is invaded by the act complained of." American Surety Co. v. Jones, 51 N.E.2d 122, 125 (Ill. 1943)(cited in Ironworkers at 767).Cristen Harms, 10 Iowa Civil Rights Commission Case Reports 89, 120 (1992).

4. As noted in the findings of facts, both Complainants have alleged and proven that they have standing as "aggrieved" parties, i.e. they have suffered loss and damage due to race discrimination in housing. See e.g. Findings of Facts Nos. 1, 8-12, 21A, 28-42. Complainants need only show that they are aggrieved due to race discrimination against themselves or others, it need not be discrimination due to that particular complainant's race. See Cristen Harms, 10 Iowa Civil Rights Commission Case Reports 89, 120 (1992)(citing Ironworkers Local No. 67 v. Hart, 191 N.W.2d 758, 766-67 (Iowa 1971)). The courts "consistently recogniz[e] [fair housing discrimination] standing in spouses . . . and other whites who were denied housing because they lived with blacks." R. Schwemm, Housing Discrimination Law, § 27.4(3), p. 27-36 (1990).

II. Effect of Admissions:

A. Admissions in Response to Requests for Admissions:

5. Requests for admissions are a discovery tool whereby one party submits a list of facts which it wants admitted by another party to a proceeding. See Iowa R. Civ. P. 127. The answering party responds serving written answers or objections upon the inquiring party. Id.

6. Any matter admitted is "conclusively established." Iowa R. Civ. P. 128. However, "[a] request for admissions, once admitted, only binds the party making the admission. The party requesting is free to prove facts in addition to, or contrary to, the admission." Poulsen v. Russell, 300 N.W.2d 289, 298 (Iowa 1981). This is why the admissions made by Respondent as to the truth and accuracy of the investigation interview transcript are conclusive only as to Flook's admissions that he discriminated against the Complainants due to their interracial status, and not as to other statements of fact which may be contested by the Commission or the complainant. See Findings of Fact Nos. 10-12.

B. Admissions on Brief:

7.

When an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded, it binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991).

Maxine Boomgarden, CP # 07-86-14926, slip. op. at 59 (Iowa Civil Rights Comm'n October 12, 1993).

8. Under the above principles, the Commission must take as true the Respondent's admission, on brief, that Complainants Tammy and Larry Collins are married. See Finding of Fact No. 13.

III. Official Notice:

9. Official notice was taken of several facts. See Findings of Fact Nos. 27, 29.

Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code § 17A.14(4). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).

Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 160 (1992).

10. The specialized knowledge which was noticed concerned the initial effects of overt discrimination on the victim. See Finding of Fact No. 29. The knowledge capable of certain verification which was noticed were the weather reports. See Finding of Fact No. 27. Such an impartial compilation of statistical data may be officially noticed. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 769 (Iowa 1971).

IV. Order and Allocation of Proof in Housing Discrimination Cases Under the Disparate Treatment Theory:

11. This case involves allegations of disparate treatment on the basis of race in housing:

4. The same orders and allocations of proof utilized in disparate treatment employment discrimination cases are also utilized in housing discrimination cases under the disparate treatment theory. R. Schwemm, Housing Discrimination Law and Litigation § 10.1 (1993); Pinchback v. Armistead Homes Corp., 907 F.2d 1447, Fair Hous. Fair Lend. (Looseleaf) § 15638 at p. 16273-74 (4th Cir. 1990). Disparate treatment theory focuses on whether the Complainant has been "intentionally singled out for adverse treatment on the basis of a prohibited criterion." Henson v. City of Dundee, 682 F.2d at 903.

5. Disparate treatment is shown when:The employer [or landlord in housing cases] . . . treats some people less favorably than others because of their race [or sex]. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.

Teamsters v. United States, 431 U.S. 324, 335- 36 n.15 (1977).

Darrell Harvey, CP # 04-90-19797, slip. op. at 34-35 (Iowa Civil Rights Comm'n January 28, 1994).

V. Order and Allocation of Proof Where Complainant Relies on Direct Evidence of Discrimination:

12. This case relies on the "direct evidence" order and allocation of proof:

6. "Direct evidence" is that "evidence, which if believed, proves existence of [the] fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect". BLACK'S LAW DICTIONARY 413-14 (1979).

7. Direct evidence that a protected class status, such as sex, is a motivating factor in housing policies and practices concerning tenants [or prospective tenants] would include comments by decisionmakers expressing either a preference for or an aversion to tenants [or prospective tenants] who are members of a particular protected class. See Dorene Polton, XI Iowa Civil Rights Commission Case Reports 152, 161 (1992)(apartment manager expressed hostility toward blacks as tenants and a preference for white tenants). C.f. Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (11th Cir. 1985)(supervisor's statements of surprise at longevity of staff members, of need for "new blood," of intent to recruit younger employees, and comment on plaintiff's "advanced age" causing stress was direct evidence of age discriminatory intent in discharge); Miles v. M.N.C. Corp., 750 F.2d 867, 36 Fair Empl. Prac. Cas. 1289, 1294-96 (11th Cir. 1985)(hiring official's statement that he had no black employees because they "weren't worth a sh--" was direct evidence of discrimination in failure to recall from layoff); Jackson v. Wakula Springs & Lodge, 33 Fair Empl. Prac. Cas. 1301, 1307 (N.D. Fla. 1983)(use of racial slurs by individual responsible for discharge is direct evidence of racial animus in termination); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 2nd ed. 1989)(Either policies which on their face call for consideration of a prohibited factor or statements by relevant managers reflecting bias constitute direct evidence of discrimination).

8. 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 (1973), 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. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 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); Pinchback v. Armistead Homes Corp., 907 F.2d 1447, Fair Hous. Fair Lend. (Looseleaf) § 15638 at p. 16274-75 (4th Cir. 1990)(housing discrimination case); R. Schwemm, Housing Discrimination Law and Litigation § 10.2 n.15 (1993).

9. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the Respondent's defenses are then treated as affirmative defenses, i.e. the Respondent 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 [Respondent'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. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); R. Schwemm, Housing Discrimination Law and Litigation § 10.2 n.16 (1993)(direct evidence rarely available).

Darrell Harvey at 35-37.

13. In this case the direct evidence, of (a) statements by Respondent Flook to the effect that Tammy Collins would not be rented the apartment because of "her nigger husband and nigger kids," and (b) of admissions of discrimination against the Complainants by Flook are sufficiently probative to prove violations of the Act under the previously cited subsections of Iowa Code section 601A.8 (1991). See Conclusion of Law No. 2. See Findings of Fact Nos. 8-12, 21A.

14. The affirmative defenses of the Respondent, with respect to alleged unmarried status of Mr. and Mrs. Collins and to family size, have been considered and rejected. See Findings of Fact Nos. 14-21. Respondent failed to meet its burden of persuasion, which, under the direct evidence order and allocation of proof, requires it to prove by a preponderance of the evidence: (1) that it was actually motivated, in part, by the averred legal reasons at the time of the discrimination, Sabree v. Carpenters and Joiners, 921 F.2d 396, 54 Fair Empl. Prac. Cas. 1070, 1075 (1st Cir. 1990(citing Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1791 (1989)); and, (2) "that it would have made the same decision even if it had not considered the improper factor." Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990). Illegal discrimination under Iowa Code section 601A.8 has occurred. See Conclusion of Law No. 2. See Finding of Fact No. 21A.