ROBERT E. SWANSON, Complainant

VS.

PROPOSED DECISION AND ORDER

LEE DAHL MOTORS, Respondent.

CONCLUSIONS OF LAW

Jurisdiction:

1. Robert Swanson's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (1983). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code S 601A.15 (1989). See Finding of Fact No. 2.

2. Mr. Swanson's complaint is also within the subject matter jurisdiction of the Commission as the allegations that the Respondent ran a newspaper advertisement specifying age as a qualification for employment, and subsequently failed to interview or hire him for the position of sales representative because of his age fall within the statutory prohibition against unfair employment practices. Iowa Code S 601A.6 (1983). "It shall be a . . . discriminatory practice for any employer . . . to directly or indirectly advertise ... that individuals of any particular age . . . are unwelcome, objectionable, not acceptable, or not solicited for employment ... unless based on the nature of the occupation. Id. "It shall be a ... discriminatory practice for any person to refuse to hire ... or to otherwise discriminate in employment against any applicant . . . or employee because of the ... sex ... of such applicant or employee." Id.

Motion To Amend Complaint to Include Retaliation:

3. The Commission's moved to amend the complaint to include the allegation that the Respondent retaliated against the Complainant for opposing the Respondent's discriminatory practices by failing to hire him because of his letters dated December 4, 1984 and December 6, 1984. This motion should be granted. The amendment of the complaint is timely under the Commission's administrative rules which permit amendment after commencement of the hearing "at the discretion of the hearing officer." 161 Iowa Admin. Code 3.7(l). Such amendment is also timely under analogous Federal case law under which "for time-limit purposes, an amendment is treated as if it were filed at the time the charge was filed." 45A AM. JUR. 2D Job Discrimination 1273 (1986).

4. The filing of a new complaint is not required under Commission rules, as the complaint may be amended to include additional material allegations in order to ,.prevent unnecessary litigation or duplication." 161 Iowa Admin. Code 3.7(1). "The complaint's main function is to trigger Commission investigation." Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 766 (Iowa 1971). To the extent that Respondent's objection to amendment may be characterized as a concern about inadequate notice, the rule is well-settled that "the individual is given actual notice of the new issues when evidence on them is introduced at hearing." Schwartz, Administrative Law 285 (1984). In this case, Respondent was well aware prior to the hearing that evidence on these issues would be introduced and, indeed, stipulated to such the admission of such evidence. See Finding of Fact No. 21. The Respondent also then knew or should have known that the issue of the legitimacy of these reasons for not hiring the Complainant would be litigated. See Finding of Fact No. 21.

Order and Allocation of Proof:

5. The burden of proof or "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this proceeding is on the complainant to persuade the finder of fact that the Respondent violated the Acts prohibition against age discriminatory advertising in employment and that the Complainant was neither interviewed nor hired into the sales representative position because of his age. Linn Co- operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981).

6. Although Federal court decisions applying Federal anti- discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829,831 (Iowa 1978), they are often relied on as persuasive authority in these cases. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

7. 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 (Iowa 1982), is inapplicable. Price-Waterhouse v. Hopkins, U.S., 57 L.W. 4469, 4481 (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).

Discriminatory Advertising:

8. In this case, there is uncontroverted direct evidence in the record of the Respondent's age discriminatory advertisement. See Findings of Fact No. 3, 4. The inquiry, however, does not end there, for the defenses of the respondent must be examined. Trans World Airlines v. Thurston. 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985). The one defense offered, inadvertence, has been found to be utterly unsupported by the evidence. See Findings of Fact Nos. 6, 7. Respondent has violated the Act's prohibition against discriminatory advertising on the basis of age. Iowa Code 601 A. 6(c) (11983).

Discriminatory Failure to Interview or Hire on the Basis of Age:

9. In this case, the credible direct and circumstantial evidence in the record shows that the Complainant's age was a motivating factor in the decisions to not interview or hire him. See Findings of Fact Nos. 13-15. Respondent asserted that no one was hired for the advertised position because it was never filled after being placed on hold. Respondent has also offered the Complainant's lack of automobile sales experience and a comparison of his sales experience to the preferred candidate's experience as reasons which were actually considered when the decisions were made to not interview or hire him. There was no credible evidence to support these contentions of the Respondent. See Findings of Fact Nos. 33-39.

10. It is important to understand that this is not a case involving the actual presence of both illegal and legitimate motives for the failure to interview or hire the Complainant at the time these decisions were made, i.e. it is not a "mixed motives" case. Price-Waterhouse v. Hopkins, U.S. , 57 L.W. 4469, 4473 (1989). When such a legitimate factor is present, the employer may offer the defense that "even if (they) had not taken [age] into account, (they) would have come to the same decision regarding a particular person." Id. However, "[t]he very premise of a mixed motives case is that a legitimate reason was present." Id. at 4476. None was here. See Findings of Fact Nos. 33-39.

11 . Even if this were properly characterized as a mixed-motives case, the Respondent would not prevail, for:

proving "that the same decision would have been justified ... is not the same as proving that the same decision would have been made." . . . An employer may not, in other words prevail in a mixed- motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision.

Price-Waterhouse v. Hopkins, U.S. . 57 L.W. 4469, 4476 (1 989)(italics added).

12. Respondent Lee Dahl Motors has violated the Act's prohibition against failing to hire or otherwise discriminating against a person in employment on the basis of age by failing to interview or hire the Complainant on that basis. Iowa Code 601 A.6(11)(a) (1983).

Discriminatory Failure to Interview or Hire on the Basis of Lawful Opposition to Discriminatory Practices:

13. Respondent has been found to admit that the Complainant's letters of December 3rd and 6th were part of its reason for not hiring him. See Finding of Fact No. 18. The Respondent's position seems to be that Complainant's activities are not entitled to protection as lawful opposition because he threatened to sue the Respondent and requested the remedies of a job and six months pay in escrow as a protection against retaliation. See Finding of Fact No. 18.

14. In Title VII cases, the courts have noted that Congress provided no definitive standards concerning what does and does not fall within the category of protected activity. E.g. Hochstadt v. Worcester Foundation, 545 F.2d 222 (1976)(interpreting 42 U.S.C. 2000e3(a)). The same would appear to be true under the Iowa Civil Rights Act. See Iowa Code 601 A.1 1 (2) (1983). In Title VII cases one suggested test has been to "balance the purpose of the Act to protect persons engaging reasonably in activities opposing . . . discrimination, against Congress equally manifest desire not to tie the hands of employers in the objective selection and control of personnel." Hochstadt v. Worcester Foundation, 545 F.2d 222 (1976).

15. Complainant's activities were reasonable. See Finding of Fact No. 19. They were not directed toward and did not impinge on any objective selection process of Respondent Lee Dahl Motors. See Findings of Fact Nos. 16-19. Certainly, if the actual filing of a complaint, and thereby seeking remedies through the complaint process, is statutorily protected, as it is, Iowa Code 601A.1 1(2), then the threat of filing a complaint or lawsuit coupled with a request for remedies is in accordance with the intent to protect persons who engage in reasonable lawful opposition to discrimination. Complainant's activities, as reasonable, lawful opposition to discrimination, are protected by the act.

16. Respondent Lee Dahl Motors has violated the Act's prohibition against retaliation by failing to interview or hire Complainant Swanson because of his lawful opposition to discrimination in employment. Iowa Code 601 A.1 1(2) (1983).

Credibility and Testimony:

17. Credibility findings have played an important role in the determination of this case. In addition to the factors mentioned in the section entitled "Course of Proceedings" and in the findings on credibility in the Findings of Fact, the Administrative Law Judge has been guided by the following two principles: First, "[w]hen the trier of fact ' . . finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2d 383, 388 (Iowa 1975). 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).

Remedies:

18. Violation of Iowa Code sections 601A.6 and 601A.11 having been established, and no affirmative defense having been shown, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 601A.15(8) (1989). 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.

Compensation:

19. The Commission has the authority to make awards of backpay. Iowa Code 601 A. 1 5(8)(a)(1) (1989). In making such awards, interim earnings and unemployment compensation received during the backpay period are to be deducted. Id. The Complainant bears the burden of proof in establishing her damages. Diane Humburd, CP # 03-85- 12695, slip op. at 32-33, (Iowa Civil Rights Comm'n Sept. 28, 1989). The Complainant may meet that burden of proof by establishing the gross backpay due him for the period for which backpay is sought. Id. at 37. This the Complainant has done. See Finding of Fact No. 40. The burden of proof for establishing interim earnings of the Complainant rests with the Respondent. Id. at 35-37. There was no evidence of interim earnings during the backpay period in the record. See Finding of Fact No. 41.

20. The award of backpay in employment discrimination cases serves two purposes. First, "the reasonably certain prospect of a backpay award ... provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate [employment discrimination]." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, backpay serves to "make persons whole for injuries suffered on account of unlawful employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of backpay in the present case.

Damages for Emotional Distress:

21. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages for emotional distress. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code S 601A.15(8)). The following principles were applied in determining whether an award of damages for emotional distress should be made and the amount of such award.

22. In this context, where emotional distress is "an item of damage," damages for emotional distress are treated as a component of actual damages. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983); See Blessum v. Howard County Board, 245 N.W.2d 836, 844-45 (Iowa 1980). Therefore, the requirements for proof of damages for emotional distress here should not be confused with proof of the elements of the cause of action for intentional infliction of emotional distress, e.g. outrageous conduct, distress must be severe. Niblo v. Parr Manufacturing, Inc., No. 88-1531, slip op. at 14-15 (Iowa August 16, 1989); Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983).

23. 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)(housing discrimination case). "Humiliation can be inferred from the circumstances as well as established by the testimony." Id. (quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836,845 (Iowa 1980)). Even slight testimony of emotional distress, when combined with evidence of circumstances which would be expected to result in emotional distress, can be sufficient to show the existence of distress. Dickerson v. Young, 332 N.W.2d 93,98-99 (Iowa 1983). While these cases did not arise under the Iowa Civil Rights Act, it would be anomalous to mandate more stringent requirements for proof of emotional distress in cases under the Act than is required in the usual case where emotional distress is an item of damage. Also, such stringent requirements would violate the legislative command that the Act "be construed broadly to effectuate its purposes.' Iowa Code S 601A.18 (1989).

24. When the evidence demonstrates that the complainant has suffered emotional distress proximately caused by discrimination, an award of damages to compensate for this distress is appropriate. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984)(citing Nichols, Iowa's Law Prohibiting Disability Discrimination in Employment: An Overview, 32 Drake L. Rev. 273, 301 (1982- 83)). The Complainant did suffer some compensable emotional distress. See Findings of Fact Nos. 42-43.

25. Because compensatory damage awards for mental distress are designed to compensate a victim of discrimination for an intangible injury, determining the amount to be awarded for that injury 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."

... Computing the dollar amount to be awarded is a function of the finder of fact. Juries and judges have been making such decisions for years without minimums or maximums, based on the facts of the case [and] the evidence presented on the issue of mental distress.

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)).

26. The amount of damages for emotional distress will depend on the facts and circumstances of each individual case. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Past Commission decisions have referred to the consideration of various factors in awarding damages for emotional distress. Id. Upon examination of the Commission's cases, and the authorities cited therein, it is clear that the two primary determinants of the amount awarded for damages of emotional distress are the severity of the distress and the duration of the distress. See Cheri Dacy, 7 Iowa Civil Rights Commission Case Reports 17, 24- 25 (1985); Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Even mild emotional distress can and should be compensated. See Niblo v. Parr Manufacturing, Inc., No. 88-1531, slip op. at 14 (Iowa August 16, 1989).

Interest:

27. Interest begins to run on an award of damages from the date of the commencement of the action at the rate of ten percent per annum. Iowa Code S 535.3 (1989). In this case, interest should be paid on damages from the time of the filing of the complaint on April 9, 1985.

Attorneys Fees:

28. The Complainant having prevailed, he is entitled to an award of reasonable attorney's fees. Iowa Code S 601 A.1 5(8)(1989). If the parties cannot stipulate to the amount of these fees, they should be determined at a separate hearing. Ayala v. Center Line, Inc., 415 N.W.2d 603, 606 (Iowa 1987). The Commission must expressly retain jurisdiction of the case in order to determine the actual amount of attorney's fees to which Complainant Swanson is entitled to under this order and to enter a subsequent order awarding these fees. City of Des Moines Police Department v. Iowa Civil Rights Commission, 343 N.W.2d 836, 839 (Iowa 1984).