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

vs.

HOWARD C. FLOOK, Respondent.

VI. Remedies:

A. Remedial Action:

15.

Violation of Iowa Code section [601A.8 (1991)] 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 § 216.15(8) (1993). 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.

Maxine Boomgarden, slip. op. at 88.

B. Compensatory Damages: Emotional Distress:

1. Legal Authority For and Purpose of Power to Award Damages for Emotional Distress:

16. In considering the question of emotional distress damages, it must be borne in mind that the Act is a "manifestation of a massive national drive to right wrongs prevailing in our social and economic structures for more than a century," Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971).

17. These words of the Iowa Supreme Court are a pale reflection of the sacrifice and struggle of those in the civil rights movement. Legislation was an end, not the beginning, of the Movement. Thousands of ordinary citizens, Black and White, risked all to end segregation and to ensure the passage of laws such as this Act. In the Movement, many marched, many were arrested, many were beaten, and far too many were murdered for their opposition to racism. By their sacrifice, the back of lawfully enforced segregation was broken. Nonetheless, "[b]igotry is again rearing its ugly head in this country." State v. McKnight, 511 N.W.2d 389 (Iowa 1994).

18. Racism, including race discrimination in housing, is a serious matter. It demands a substantial remedy. The Iowa Civil Rights Act was enacted, in part, to provide such a remedy. See Iowa Code SS 216.8, 216.15(8)(a)(8). To limit the remedy, in this case of blatant discrimination and proven emotional distress damage, to a mere "go and sin no more" injunction, is to belittle the sacrifice of thousands, to ignore the evidence, and to flout the will of the legislature.

19. By 1978, it became clear to the legislature that the extremely limited remedies originally enacted in 1965 were woefully inadequate to carry out the remedial purposes of the act. Therefore, the act was amended, effective January 1, 1979, to give the Commission the power to award "actual damages." 1978 Iowa Acts ch. 1179 § 16. These are synonymous with "compensatory damages". The purpose of such authority is not to remedy only out-of-pocket losses while ignoring proven emotional distress damages, but to "make whole" the victims of discrimination for all losses suffered as a result of discrimination. See Iowa Code § 216.15(8)(a)(8)(1993); Chauffers, Teamsters, and Helpers v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (Iowa 1986).

20. A victim of discrimination is to receive "a remedy for his or her complete injury," including damages for emotional distress. Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990). There is no "back pay" and often little or no out-of-pocket loss in housing discrimination cases. Therefore, denial of proven emotional distress damages in housing cases effectively deprives even the victims of the most blatant and damaging race discrimination of the compensation which is rightfully theirs.

21. The Iowa Supreme Court's observations on the emotional distress damages resulting from wrongful discharge are equally applicable to the distress resulting from housing discrimination:

[Such action] offends standards of fair conduct . . . the [victim of discrimination] may suffer mentally. "Humiliation, wounded pride and the like may cause very acute mental anguish." [citations omitted]. We know of no logical reason why . . . damages should be limited to out-of- pocket loss of income, when the [victim] also suffers causally connected emotional harm. . . . We believe that fairness alone justifies the allowance of a full recovery in this type of tort.

Niblo v. Parr Mfg. Co., 445 N.W.2d 351, 355 (Iowa 1989).

22. Other courts have also made observations which apply to this case:

Evidence of distress was received. That distress is not unknown when discrimination has occurred. . . . But as the trial progressed it became more apparent that the psychic harm which might accompany an act of discrimination might be greater than would first appear. . . . Discrimination is a vicious act. It may destroy hope and any trace of self-respect. That . . . is perhaps the injury which is felt the most and the one which is the greatest.

Belton, Remedies in Employment Discrimination Law 408 (1992)(quoting Humphrey v. Southwestern Portland Cement Company, 369 F. Supp. 832, 834 (W.D. Tex. 1973).

23.

Emotions are intangible but are no the less perceptible. The hurt done to feelings and to reputation by an invasion of [civil] rights is no less real and no less compensable than the cost of repairing a broken window pane or a damaged lock. Wounded psyche and soul are to be salved by damages as much as the property that can be replaced at the local hardware store.

Id. (quoting Foster v. MCI Telecommunications Corp., 773 F.2d 1116, 1120 (10th Cir. 1985)(quoting Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979)).

2. "Humiliation," "Wounded Pride," "Anger", "Hurt" and "Upset" Are All Forms of Compensable Emotional Distress:

24. Among the many forms of emotional distress which may be compensated are "anger," "upset," "hurt," Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981); 2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24- 29 (1982)(citing Fraser and 121-129 Broadway Realty v. New York Division of Human Rights, 49 A.D.2d 422, 376 N.Y.S.2d 17 (1975)), "humiliation, wounded pride, and the like." Niblo v. Parr Mfg. Co., 445 N.W.2d at 355. It is uncontradicted in the record that Larry and Tammy Collins suffered such distress due to race discrimination.

3. Lenient Proof Requirements for Emotional Distress Are Consistent With the Requirement That The Statute Is To Be Liberally Construed to Effectuate Its Purpose:

25. Emotional distress damages must be proven. Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980). These damages must be and have been proven here, as in any civil proceeding, by a preponderance or "greater weight" of the evidence. Iowa R. App. Pro. 14(f)(6). Race discrimination in housing violates:

not only a statute but a strong public policy underlying that statute. . . . [O]ur civil rights statute is to be liberally construed to eliminate unfair and discriminatory acts and practices. [Citation omitted]. We therefore hold a civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct.

Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990)(emphasis added).

4. Emotional Distress Caused by Discrimination is to Be Compensated:

26. The emotional distress sustained by the Collinses is severe. Since even mild emotional distress resulting from discrimination is to be compensated, it is obvious that compensation must be awarded here. Rachel Helkenn, 10 Iowa Civil Rights Commission Case Reports 62, 73 (1990); Robert E. Swanson, 10 Iowa Civil Rights Commission Case Reports 36, 45 (1989); Ann Redies, 10 Iowa Civil Rights Commission Case Reports 17, 28 (1989). See Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 525-26 (Iowa 1990)(citing Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 355 (Iowa 1989)(adopting reasoning that because public policy requires that employee who is victim of discrimination is to be given a remedy for his complete injury, employee need not show distress is severe in order to be compensated for it)).

5. Emotional Distress May Be Proven By Either Testimony of A Complainant Alone or Supported By the Testimony of a Spouse:

27. "The [complainants'] own testimony [in this case is] solely sufficient to establish humiliation or mental distress." Williams v. TransWorld Airlines, Inc., 660 F.2d 1267, 1273, 27 Fair Empl. Prac. Cases 487, 491 (8th Cir. 1981). See also Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 1977); Smith v. Anchor Building Corp., 536 F.2d 231, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N.D. Ill. 1981); Belton, Remedies in Employment Discrimination Law 415 (1992). Of course, testimony of a complainant's spouse may also be supportive of a finding of emotional distress, as it is here for both Mr. and Mrs. Collins. See Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980).

6. Evidence of Sleep Loss, Crying, and Counseling In This Case Helps Establish Emotional Distress Although Such Damages Can Be Awarded In the Absence of Evidence of Economic Loss or Physical or Mental Impairment:

28. In discrimination cases, an award of damages for emotional distress can be made in the absence of "evidence of economic or financial loss, or medical evidence of mental or emotional impairment." Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974). Nonetheless, the evidence of crying and difficulties in sleeping in this case, by both of the Collinses, may be considered when assessing the existence or extent of emotional distress. See Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980); Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988). Evidence of counseling for the distress resulting from discrimination also supports their claim. See Fellows at 676. See Findings of Fact Nos. 35, 39, 40.

7. Determining the Amount of Damages for Emotional Distress:

29.

[D]etermining the amount to be awarded for [emotional distress] is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages."

2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24-29 (1982)(quoting Randall v. Cowlitz Amusements, 76 P.2d 1017 (Wash. 1938)).

30. Although awards in other cases have little value in determining the amount an award should be in another specific case, Lynch v. City of Des Moines, 454 N.W.2d 827, 836-37 (Iowa 1990), there are many examples of such awards, ranging from $500 to $150,000, for emotional distress in discrimination cases. See e.g. Belton, Remedies in Employment Discrimination Law 416 n.78 (1992)(listing awards in 19 cases; 17 of which were for $10,000 or over). The Iowa District Court for Polk County recently awarded eighty thousand dollars ($80,000) to a sex discrimination plaintiff for emotional distress. Pamela Farren v. Super Valu Stores, Inc., Law No. Cl100-57791, slip op. at 22 (Polk Co. Dist. Ct. March 4, 1994). While any award should be tailored to the particular case, one commentator has noted that "a $750 award for mental distress is 'chump change.' Awards must be made which are large enough to compensate the victim of discrimination adequately for the injury suffered." 2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 60-61 (1982).

31. Like back pay, the reasonably certain prospect of an emotional distress damages award, when such damages are proven, serves to encourage employers to evaluate their own employment processes to ensure they are nondiscriminatory. The consistent failure to award such proven damages will remove this incentive and may encourage discriminatory practices. See id. at 61. Cf. Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975)(back pay).

32.

45. The two primary determinants of the amount awarded for damages for emotional distress are the severity of the distress and the duration of the distress. Bean v. Best, 93 N.W.2d 403, 408 (S.D. 1958)(citing Restatement of Torts § 905). "'In determining this, all relevant circumstances are considered, including sex, age, condition of life, and any other fact indicating the susceptibility of the injured person to this type of harm.' And continuing 'The extent and duration of emotional distress produced by the tortious conduct depend upon the sensitiveness of the injured person.'" Id. (quoting Restatement of Torts § 905). [See also Restatement (Second) of Torts § 905 (comment i).]

Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 166 (1992).

33. Respondent has suggested, on brief, that certain facts about its financial status should be weighed when considering the amount of damages to be awarded. See Finding of Fact No. 43. Facts averred on brief, unless they militate against that party's position, are mere argument and not evidence in the record. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207, 216 n.9 (1981). See Conclusion of Law Nos. 7- 8. These alleged facts cannot even be considered by the Commission for two reasons. First, there is no evidence in the record to prove these supposed facts. See Iowa Code § 17A.12(8). Second, the ability of a party to pay damages is never an appropriate consideration in determining compensatory damages; this factor applies only to punitive damages. See e.g. Belton, Remedies in Employment Discrimination Law 450 & n.151 (1992). Consideration of these facts would be clear legal error. There are, in any event, many protections in the law, effective on enforcement in district court, which guard against the impoverishment of a judgment debtor. See e.g. Iowa Code Chapter 627 (exemptions).

34. Based on these principles, an award of $15,000.00 for Tammy Collins and $15,000.00 for Larry Collins constitutes reasonable compensation for the distress suffered.

8. The Commission Shall State Its Reasons For Any Denial or Modification of An Award of Emotional Distress Damages In the Form of Findings of Fact and Conclusions of Law:

35. The Iowa Administrative Procedures Act requires the Commission, as well other administrative agencies, to set forth the reasons for its decisions in the form of written findings of fact and conclusions of law. Iowa Code § 17A.16(1)(1993). See Ward v. Iowa Dept. of Transportation, 304 N.W.2d 236, 238 (Iowa 1981)(emphasizing the "crucial importance" of the requirement for findings of fact and conclusions of law.).

36. It shall be the policy of the Commission from thisdate forward to abide by the legal requirement to state the reasons for any modifications or denial of emotional distress damage awards in the form of findings of fact and conclusions of law. The necessity for this is shown by the Fellows decision. In that case, the Iowa Supreme Court held that an extreme change in an emotional distress damage award by this Commission was unreasonable and arbitrary action justifying reversal because there was no stated reason given by the Commission for the change. Fellows v. Iowa Civil Rights Commission, 426 N.W.2d 671, 675 (Iowa 1988). Striking the findings of fact and conclusions of law and entering a denial of an award are not sufficient to meet this requirement. The Commission has authority to adopt this policy by means of this decision. Lenning v. IDOT, 368 N.W.2d 98, 102 (Iowa 1985).

37. The law requires findings of fact and conclusions of law on the issues for sound reasons:

There are three principal reasons for the findings requirement. The most obvious today is the overriding policy against government operating in secret. Acts of agencies should be open, subject to comment and criticism. Unexplained decisions leave the public in the dark on the reasons that led to them. More important, permitting them is an open invitation to arbitrary action. The obligation to give a reasoned decision is a substantial check upon misuse of power. A decision supported by specific findings is much less likely to be a product of caprice or careless consideration. Requiring articulation of the reasoning process evokes care on the part of the decider.

. . .

In the second place, a losing party has a right to know why the case was lost. The requirement of findings meets the elementary demand of those injured by an agency decision to be told "the reason why." Findings serve as an explanation to the parties as to the basis. Thirdly, and the reason most frequently emphasized, is the role of the findings requirement in facilitating judicial review; without them a court cannot adequately perform its review function. . . . [Judicial] review . . . requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." Schwartz, Administrative Law § 7.29 at 455-57 (1991)(emphasis added).

38. A fourth reason for meeting this legal requirement is to avoid the unfortunate misimpression that the Commission may be engaged in nullifying the legislature's intent that the victims of discrimination be fully compensated for whatever emotional distress they suffer. Nullification of the law occurs whenever an adjudicator, whether it be a judge, jury, or administrative tribunal, deliberately acts contrary to the law, thereby rendering it void. See BLACK'S LAW DICTIONARY 963 (5th ed. 1979). The decision to nullify the law may be based on a philosophical aversion to the law, a reluctance to apply it, or some other reason.

39. It is especially important for this Commission to avoid this misimpression because nullification of the law has a peculiarly ugly history with respect to civil rights. In his famous "I Have A Dream" speech, for example, Martin Luther King, Jr. referred to the "governor [of Alabama] having his lips dripping with the words of interposition and nullification . . ." From this point onward, therefore, reasons for modifying or denying emotional distress damage awards shall be stated in the form of findings of fact and conclusions of law.

VII. Credibility and Testimony:

40.

27. In addition to the factors in the findings on credibility . . . , the Administrative Law Judge has been guided by the following principles: First, . . . "[I]n the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next." NLRB. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949) (rejecting proposition that consistently crediting witnesses of one party and discrediting those of the other indicates bias). Second, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses. Stated otherwise, the trier of facts . . . is not bound to accept testimony as true because it is not contradicted. In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972).

28. Furthermore, the ultimate determination of the finder of fact "is not dependent on the number of witnesses. The weight of the testimony is the important factor." Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957). In determining the credibility of a witness and what weight is to be given to testimony, the factfinder may consider the witness' "conduct and demeanor. . . [including] the frankness, or lack thereof, and the general demeanor of witnesses," In Re Moffatt, 279 N.W.2d 15, 17-18 (Iowa 1979); Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957), as well as "the plausibility of the evidence. The [factfinder] may use its good judgment as to the details of the occurrence . . . and all proper and reasonable deductions to be drawn from the evidence." Wiese v. Hoffman, 249 Iowa 416, 424-25, 86 N.W.2d 861 (1957).

29.

Evidence on an issue of fact is not necessarily in equilibrium because the witnesses who testify to the existence of the fact are directly contradicted by the same number of witnesses, even though there is but a single witness on each side and their testimony is in direct conflict.

. . .

Numerical preponderance of the witnesses does not necessarily constitute a preponderance of the evidence so as to require a contested question of fact to be decided in accordance therewith. . . . [T]he intelligence, fairness, and means of observation of the witnesses, and various other recognized factors in determining the weight of the evidence . . . should be taken into consideration. . . . It is, of course, well recognized that the preponderance of the evidence does not depend upon the number of witnesses.

Id., 249 Iowa at 425, 86 N.W.2d 861.

Darrell Harvey, CP # 04-90-19797, slip. op. at 44-45 (January 28, 1994).