ORLANDO RAY DIAL, COMMISSIONER; CRISTEN HARMS, and MIKE DE VOLDER, Complainants,

and

IOWA CIVIL RIGHTS COMMISSION,

VS.


FRIEDMAN MOTORCARS, LTD., MIKE FRIEDMAN, TIM MANNING, GARY FRIEDMAN, SCOTT HENRY, PAT SULLIVAN and CHERYL RUBLE, Respondents.

CONCLUSIONS OF LAW CONTINUED

45. The dissent's suggested alternative in Rabidue is to "adopt the perspective of the reasonable victim [of sexual harassment)." Id. This standard asks, in effect, what would be a reasonable woman's reaction to the harassment, would she find it undesirable or offensive? See Id. This "reasonable victim" or "reasonable woman" standard, perhaps better defined as the standard of a reasonable person of the victim's sex, has now been adopted by several federal courts. Ellison v. Brady, 54 Fair Empl. Prac. Cas. 1346, 1353 (9th Cir. 1991); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3rd Cir. 1990); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 55 Empl. Prac. Dec. at 65760; Tindall v. Housing Authority, 55 Fair Empl. Prac. Cas. 22, 25-26 (W.D. Ark. 1991). Even a panel of the Sixth Circuit has now adopted the reasonable woman standard. Yates v. Avco Corp., 819 F.2d 630, 637 (6th Cir. 1987).

46.

A sex blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men....... Instead, a gender conscious examination of sexual harassment enables women to participate in the workplace on an equal footing with men.

Ellison v. Brady, 54 Fair Empl. Prac. Cas. 1346, 1353 (9th Cir. 1991). This standard, which also applies in evaluating whether harassing conduct is severe and pervasive enough to create an abusive working environment, requires consideration of differing views of men and women as to what conduct is acceptable in the workplace. Id. at 1352. Also:

[M]any women share common concerns which men do not necessarily share....... [B]ecause women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault.

Id. at 1352-53. The Commission adopts the standard of a reasonable person of the victim's sex for evaluating whether alleged sexually harassing conduct is reasonably considered to be undesirable or offensive and whether such conduct is severe and pervasive enough to create an abusive working environment.

Existence of A Hostile Working Environment:

47. "A hostile working environment is caused by discriminatory conduct or harassment which 'has the purpose or effect of unreasonably with an individual's work performance or creating an intimidating, hostile or offensive working environment." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990).

The existence of hostile or abusive working environment must be established by the totality of the circumstances Whether use of [sexual or racial] slurs is continuous, severe and pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact ...

It is well established that the "mere utterance of a [sexual], ethnic or racial epithet. which engenders offensive feelings in an employee" does not affect the terms, conditions and privileges of employment to a significant degree. . . . Discriminatory comments that are "merely part of casual conversation, are accidental or are sporadic do not trigger. . . sanctions." . . .

On the other hand, the determination of whether defendant's conduct is sufficiently severe and pervasive to constitute [sexual or racial) harassment does not turn solely on the number of incidents alleged by plaintiff.... The totality of the circumstances requires the factfinder to examine the severity, as well as the number, of the incidents of harassment....... In some situations the severity of the offensive conduct may lessen the need for sustained exposure. . . . "The prima facie showing in a hostile environment case is likely to consist of evidence of many or very few acts or statements by the defendant which, taken together, constitute harassment."

Vaughn) v. Ag Processing, Inc., 459 N.W.2d 627, 63334 (Iowa 1990)(citations omitted)(emphasis added).

48. The Equal Employment Opportunity Commission has also recognized that, while a hostile working environment claim usually requires a pattern of offensive conduct, "the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical." Fair Employment Practices (BNA) 405:6681, 405:6690-91 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990)(emphasis added). In unusually severe cases, a single incident of harassment may be enough. Id.

49.

More so than in the case of verbal advances or remarks, a single unwelcome physical advance can seriously poison the victim's working environment.... When the victim is the target of both verbal and non-intimate physical conduct, the hostility of the environment is exacerbated and a violation is more likely to be found.

Id.

50. In its policy guide on sexual harassment, the EEOC cited one of its decisions where "[a] violation was found where the harasser forcibly grabbed and kissed charging party while they were alone in a storeroom." Id. at n. 24. A more accurate description of this case would be that it concludes that a coworker forcibly grabbing and kissing an employee does constitute sexual harassment, but the employer was excused from liability because it took prompt remedial action. Commission Decision No. 83-1, CCH EEOC Decisions § 6834 (1983). Nonetheless, the conclusion is clear that the EEOC considers such activity as being sufficient to generate a hostile working environment.

51. In light of the totality of the circumstances set forth in the Findings of Fact, a reasonable person of Complainant Harms' sex "would perceive that an abusive working environment had been created." Robinson v. Jacksonville Shipyards, Inc., 5 EPD at 65760. See Findings of Fact Nos. 84-86. It is also sufficiently established in the record that Mike DeVoider was subjected to an abusive work environment due to race and sex discrimination against others. See Findings of Fact Nos. 102-05.

Employer Liability:

52. Employers are not "always automatically liable for..... harassment by their supervisors." Meritor Savings Bank v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408, 91 L.Ed.2d 49 (1986). Here, however, Complainant Harms has proven that Respondent Friedman Motorcars, Ltd., Gary Friedman, Mike Friedman, and Cheryl Ruble knew or should have known of the harassment by Mike Friedman. See Findings of Fact Nos. 66-83, 87-89A. Complainant Harms has also proven that Respondents Friedman Motorcars, Ltd., Gary Friedman, and Cheryl Ruble failed to take prompt remedial action. See Findings of Fact Nos. 96-101. Complainant DeVolder has proven that Respondents Friedman Motorcars, Ltd., Mike Friedman, Scott Henry and Pat Sullivan were aware of the discriminatory working environment. Complainant DeVolder has also proven that Respondents Friedman Motorcars, Ltd., Scott Henry, and Pat Sullivan failed to take prompt remedial action. Proof of these facts is one way to establish that an employer is liable for the discriminatory actions of coworkers and supervisors under the concept of respondeat superior. Katz v. Dole, 709 F.2d 251,255 (4th Cir. 1983). See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990)(harassment by supervisor); Lynch City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990)(harassment by coworkers).

53. "An employer cannot stand by and permit an employee to be harassed by his co-workers." Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990). "Where, as here, the employer's supervisory personnel manifested unmistakable acquiescence in ... the harassment [it is especially difficult for] the employer to avoid liability." Katz v. Dole, 709 F.2 251, 256 (4th Cir. 1983). The requirement for prompt remedial action imposes "a reasonable duty on an employer 'who is aware of discrimination in the workplace to take reasonable steps to remedy it.' Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa 1990). Factors considered here in determining whether this duty was met were "the gravity of the harm, the nature of the work environment, and the resources available to the employer." Id.

Constructive Discharge of Complainant Harms:

54. "Constructive discharge exists when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission, 315 N.W.2d 83, 87 (Iowa 1982)(citing e.g. Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975)). The Iowa Supreme Court has adopted an objective standard for determining when a constructive discharge has occurred: "To find constructive discharge, the fact finder must conclude that "working conditions would have been so difficult or so unpleasant" that a reasonable person in the employee's position would be compelled to resign." Id.(citing Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir. 1980)). It is not necessary to show that intolerable working conditions were imposed by the employer for the purpose of forcing the employee to quit. Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 6 (5th Cir. 1980)(explaining Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975)). It is sufficient to show that the employer knowingly allowed such intolerable conditions to occur. Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3rd Cir. 1984).

55. In accordance with this objective standard, a complainant may establish a discriminatory constructive discharge by showing:

(1) that a reasonable person in the [complainant's] position would have found the working conditions intolerable;

(2) that conduct which constituted a[n] [Iowa Civil Rights Act] violation against the [complainant) created the intolerable working conditions; and

(3) that [complainant's] involuntary resignation resulted from the intolerable working conditions.

See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 269 (2nd ed. 1989). The first element will be satisfied if the evidence demonstrates a hostile work environment sufficient to compel a reasonably prudent woman to leave her employment. Appeal of T&M Assoc., 56 Fair Empl. Prac. Cases 1250, 1253 (N.H. 1991). All three of these factors have been established by a preponderance of the evidence. See Findings of Fact Nos. 90-95.

Retaliatory Abuse of Complainant Mike DeVolder:

56. 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. § 20OOe-3(a)). The same would appear to be true under the Iowa Civil Rights Act. See Iowa Code § 601A.11 (2). 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). It would appear that internally complaining about discriminatory practices and assisting in official civil rights investigations, as done here, would constitute reasonable anti-discrimination activity which would not interfere with the lawful objective selection and control of personnel.

57. The principles previously outlined concerning the analysis used when proof of discrimination is made through circumstantial evidence also apply to proof of retaliation. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 n.6 (Iowa 1990).

58. A prima facie case of retaliation may be established by the Complainant by producing evidence which shows:

(1) he was engaged in statutorily protected activity, (2) he suffered adverse employment action, and (3) a causal connection between the
two.

Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989).

59.

The causal link in the formula [is not] the sort of logical connection that would justify a prescription that the protected participation prompted the adverse action....... [T]he 'causal link' element requires merely that the [complainant] establish that the protected activity and the adverse action were not wholly unrelated. -

Weaver v. Casa Gallardo, 55 Fair Empl. Prac. Cas. 27, 35 (1 1 th Cir. 1991).

60. Some ways in which a causal connection between the filing of the complaint and the adverse decision can be shown are (a) proximity in time of the filing and the adverse decision; (b) treating the complainant differently than employees who have not filed; (c) failing to follow established procedures and policies with regard to the action taken against the complainant; and (d) different treatment of complainant after the filing of the complaint than before the filing. Schlei & Grossman, Employment Discrimination Law 558-59 (2nd ed. 1983). By analogy, the same reasoning would apply to other lawful opposition to discrimination or assisting the Commission with an investigation.

61. A causal connection between the protected activity and the verbal and physical abuse of Complainant DeVolder was found. See Finding of Fact No. 106-13. The explanation that this was merely horseplay was found not to be credible in light of the increased severity and frequency of the abuse.

Discharge of Mike DeVolder - Issue Preclusion:

62. Respondents urge that the Commission is barred, under the doctrine of issue preclusion, from determining whether Complainant DeVolder's discharge was due to retaliation because the issue of whether DeVolder was discharged for misconduct was previously determined at a hearing of the Job Service of Iowa. Respondent's Brief at 48-50. See Finding of Fact No. 123.

63.

"Issue preclusion" is also referred to as "collateral estoppel." The doctrine of issue preclusion is concerned with determining under what circumstances issues resolved in previous litigation are precluded, i.e. may not be redetermined in subsequent litigation. Under Iowa law there are four requirements for issue preclusion:

(1) The issue concluded must be identical;

(2) The issue must have been raised and litigated in the prior action;

(3) The issue must have been material and relevant to the disposition of the prior action; and

(4) The determination made of the issue in the prior action must have been necessary and essential to the resulting judgment.

If the plaintiff in a subsequent case had a full and fair opportunity to litigate the issue in a prior action, a showing of the four requisites will allow the defensive use of issue preclusion.

Bohlken, The Iowa Law of Res Judicata and the Enforcement of Constitutional Rights Under 42 U.S.C. Section 1983, 37 Drake L. Rev. 457, 463-64 (198788)(emphasis added).

64. For several reasons, the doctrine of issue preclusion does not bar the litigation of the issue of whether Complainant DeVolder was discharged due to retaliation. First, the issue of misconduct is not identical with the issue of whether an employee was discharged as a result of illegal retaliation. The legal standards for proving retaliation have been set forth above. See Conclusions of Law No. 7, 56-61. The burden of persuasion on that issue is borne by the Complainant. See Conclusion of Law No. 18. "Misconduct," on the other hand, is "a deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment." 345 Iowa Admin. Code 4.32(l). The burden of proving misconduct is on the employer. Cosper v. Iowa Dept. of Job Service, 321 N.W.2d 6 (Iowa 1982).

65. Second, there is no evidence in the record which demonstrates that the issue of illegal retaliation was either raised or litigated at the Job Service hearing. Since Complainant DeVolder did not participate in the hearing, it is difficult to see why the Job Service decision should not be treated in the same manner as a default judgment. Issue preclusion "is usually not available in default cases." Lynch v. Lynch, 250 Iowa 407, 412, 94 N.W.2d 105 (1959).

66. Third, an exception to the issue preclusion doctrine arises when "two independent state administrative tribunals . . . may operate simultaneously in adjudicating different claims based on the same facts." Kjos v. City of Sioux City, 346 N.W.2d 25, 28 (Iowa 1984)(citing Restatement (Second) of Judgments § 83 (1982). In Kios, the Iowa Supreme Court held that a Job Service decision denying benefits for misconduct had no issue preclusion effect in the employee's civil service appeal of his discharge. Id. at 30. This was in part due to the different misconduct standards applied by the two agencies. Id. at 29. This holding was also reached because:

[B]y establishing one administrative remedy for challenging the discharge and a separate remedy for seeking unemployment compensation the legislature has provided a scheme of remedies in which adjudication of one claim will not bar the other. This case thus falls within the common scheme of remedies exception . . . . A similar conclusion was reached in Tipler v. E.I. duPont denemours and Co., 443 F.2d 125 (6th Cir. 1971), where two independent federal administrative agencies were involved. A discharged employee challenged his firing in a National Labor Relations Board proceeding and a civil rights case. A decision by the NLRB that the employee was discharged for cause was held not to preclude his civil rights action alleging that his discharge was racially motivated.

Id.

67. Fourth, and finally, issue preclusion does not apply because:

[A]ccording preclusive effect to determination of the issue would be incompatible with a legislative policy that:

. . .

(b) The tribunal in which the issue subsequently arises be free to make an independent determination of the issue in question.

Id. at 28 (quoting Restatement (Second) of Judgments § 83 (4)(b) (1982). Iowa Code section 601A.16(l), requiring all complainants alleging violation of the Iowa Civil Rights Act to initially file a complaint with the Commission, demonstrates that the civil rights act is exclusive. Northrup v. Farmland Industries, 372 N.W.2d 193, 197 (Iowa 1985). As such, it "evinces a legislative policy that the commission ... be free to make an independent determination of the issue in question.... [This] case thus also comes within the legislative policy exception." Kjos at 30.

Retaliatory Discharge of Complainant Mike DeVolder:

68. The order and allocation of proof, and the elements necessary to establish a prima facie case of retaliation were set forth above. See Conclusions of Law 57-60. The Complainant was able to establish all three elements of the prima facie case. See Findings of Fact Nos. 103, 106-122. It should be noted that he established a causal link between his protests against discrimination and his discharge by demonstrating the two were not wholly unrelated. See Conclusion of Law No. 59. See Findings of Fact Nos. 116-122.

69. The Respondents introduced evidence of three legitimate non-discriminatory and non-retaliatory reasons for Complainant DeVoider's termination. See Findings of Facts Nos. 118-19.

70. A complainant may meet his burden of producing evidence sufficient to show that Respondent's articulated reasons for employment actions are pretexts for retaliation or discrimination in a variety of ways. See La Montagne v. American Convenience Products, Inc., 750 F.2d 1405,1409, 36 Fair Empl. Prac. Cas. 913, 9T2 n.6 (7th Cir. 1984). Two of the reasons given for the discharge in this case were shown to be pretextual as they differed from those given to the Complainant and other sources prior to hearing. See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 266 & n.35 (2nd ed. 1989). See Finding of Fact No. 119.

71. The third reason articulated for the discharge, that DeVolder lied to his employer, was found to be conduct that resulted directly from the retaliation inflicted on DeVolder by his employer and from the discriminatory working environment for which the employer was responsible. See Findings of Fact Nos. 120-23. This is sufficient to establish that this reason is ultimately "not legitimate because the Defendant employer created the problem initially." Lamb v. Smith International, Inc., 32 Empl. Prac. Dec. § 33770 at 30712, 30713, 32 Fair Empl. Prac. Cas. 105 (S.D. Tex. 1983)(discharge for poor work performance resulting from sexual harassment). This reasoning has been applied not only to situations where discriminatory or retaliatory practices have resulted in poor work performance, but also to cases where such practices have resulted in various forms of misconduct. See Ruth Miller, CP # 08-85-13343, slip op. at 70-71 (Iowa Civil Rights Commission October 28,1990) (discharge of jailer for sleeping on the job found to be pretext where stress from discrimination and retaliation and discriminatory denial of shift change from midnight shift resulted in sleep loss); DeGrace v. Rumsfield, 21 Fair Empl. Prac. Cas. 1444, 1449 (lst Cir. 1980)(discharge for absenteeism resulting from racially hostile working environment); EEOC Decision No. 71-720, EEOC Decisions (CCH) § 6179 (1970)(discharge due to physical assault on supervisor resulting from racial harassment by supervisor). See also NLRB v. Vought Corporation, 788 F.2d 1378, (8th Cir. 1986)(discharge due to abusive language to supervisor resulting from warning given to employee who informed blacks that a white employee was being groomed to supervise a newly promoted black employee); Trustees v. NLRB, 548 F.2d 391, 393-94 (lst Cir. 1977)(discharge for repeated offensive behavior, including at one time brandishing scissors, where misconduct a response to employer hostility to employee's union activities); NLRB v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974)(discharge for abusive outburst at supervisor on receiving suspension resulting from employer's anti-union bias); and NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965)(failure to rehire employee due to outburst of anger resulting from layoff due to union activities).

72. Under application of these principles and those set forth in Conclusions of Law Numbers 30 and 31 above, Respondents' reasons for the discharge of Complainant DeVolder were shown to be pretextual. The complainant has met his burden of persuasion.

Remedies:

73. Violation of Iowa Code sections 601A.6, .7 and .11 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 § 601A.15(8). 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. In addition to the illustrative examples of remedial action enumerated under Iowa Code section 601A.15(8)(a) the Commission has the authority to require Respondents to develop and implement an educational program to prevent future instances of harassment Lynch v. City of Des Moines, 454 N.W.2d 827, 835-36 (Iowa 1990).

Compensation:

74. The Commission has the authority to make awards of backpay. Iowa Code § 601A.15(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 his or her damages. Diane Humburd, 10 Iowa Civil Rights Commission Case Rpts. 1, 9 (1989)(citing Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981)). See Children's Home v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Diane Humburd at 10 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.Y. 1976), aff'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainants have done. See Findings of Fact No. 131, 135.

75. The burden of proof for establishing the interim earnings, including unemployment insurance payments, of the Complainant rests with the Respondent. Diane Humburd at 10 (citing Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). The Respondent also bears the burden of proof for establishing any failure of the Complainant to mitigate damages. Children's Home of Cedar Rapids v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478,481 (Iowa Ct. App. 1990). The Complainant may, as Complainant Harms has done here, choose to provide evidence of interim earnings she is willing to concede. Diane Humburd at 10. See Finding of Fact No. 133.

76. 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 selfevaluate 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.

77. "Iowa Code section 601A.15(8) gives the Commission considerable discretion in fashioning an appropriate remedy that will accomplish the purposes of chapter 601A." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 531 (Iowa 1990). The Iowa Supreme Court has approved two basic principles to be followed in computing awards in discrimination cases: "First, an unrealistic exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Id. at 530-531. "It suffices for the [agency] to determine the amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id. at 531 (Quoting with approval Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973)).

Damages for Emotional Distress:

78. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages as compensation for emotional distress sustained as a result of discrimination. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code § 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.

Proof of Emotional Distress:

79. "[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). "Humiliation can be inferred from the circumstances as well as established by the testimony." Seaton v. Sky Realty, 491 F.2d at 636 (quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836, 845 (Iowa 1980)).

80. 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. See Dickerson v. Young, 332 N.W.2d 93,98-99 (Iowa 1983). Testimony of the complainant alone may be sufficient to prove emotional distress damages in discrimination cases. See Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 1977; Smith v. Anchor Building Corp., 536 F.2d 23i, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N..D. Ill. 1981).

81. 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, such evidence in the record may be considered when assessing the existence o., extent of emotional distress. See Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988).

Determining the Amount of Damages for Emotional Distress:

82.

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)).

83. 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).

Attorneys Fees:

84. Complainant DeVoider having prevailed, he is entitled to an award of reasonable attorney's fees. Iowa Code § 601A.15(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 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).

Interest:

Pre-Judgment Interest:

85. The Iowa Civil Rights Act allows an award of actual damages to persons injured by discriminatory practices. Iowa Code § 601A.15(8)(a)(8). Prejudgment interest is a form of damages. Dobbs, Hornbook on Remedies 164 (1973). It "is allowed to repay the lost value of the use of the money awarded and to prevent persons obligated to pay money to another from profiting through delay in litigation." Landals v. Rolfes Company, 454 N.W.2d 891, 898(lowa 1990). Pre- judgment interest is properly awarded on an ascertainable claim. Dobbs, Hornbook on Remedies 166-67 (1973). Because the amount of back pay due Complainants at any given time has been an ascertainable claim since the time their employment ended, pre-judgment interest should be awarded on the back pay. Such interest should run from the date on which back pay would have been paid if there were no discrimination. Hunter v. Allis Chalmers Corp., 797 F.2d 1417, 1425-26 (7th Cir. 1986)(common law rule). The method of computing pre- judgment interest is left to the reasonable discretion of the Commission. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 543 (2nd ed. 1989). No pre-judgment interest is awarded on emotional distress damages because these are not ascertainable before a final judgment. See Dobbs, Hornbook on Remedies 165 (1973).

Post-Judgment Interest:

86. Post-judgment interest is usually awarded upon almost all money judgments, including judgments for emotional distress damages. Dobbs, Hornbook on Remedies 164 (1973).

Credibility and Testimony:

87. 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). "[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 Steamshjp 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).

Constitutionality of the Iowa Civil Rights Act:

88. The Respondents assert that the Iowa Civil Rights Act is overly broad and vague and thus violates First Amendment protections of speech and Fourteenth Amendment Due Process. Since no administrative agency has the legal authority to rule on the constitutionality of its enabling statute, the Commission must decline to rule on these issues. Salsbury Laboratories v. Iowa Department of Environmental Quality, 276 N.W.2d 830,836 (Iowa 1979).