VII. Retaliatory Discharge:
A. Summary of the Order and Allocation of Proof In Retaliation Cases Where the McDonnell-Douglas Analysis is Used:
48. The analysis used when proof of discrimination is made through circumstantial evidence also applies to proof of retaliation through circumstantial evidence. Lynch v. City of Des Moines, 454 N.W.2d 827, 834 n.6 (Iowa 1990). This order and allocation of proof, known as the "pretext," or "McDonnell-Douglas" method of proof, was described in the Dorene Polton case. Although the cases refer to the complainant's burdens of establishing a prima facie case and pretext, those burdens are borne here by the Commission as this proceeding is before this agency and not a court. Iowa Code S 216.15(6):
25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burden of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence." Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed. 2d 523, 533 (1985).
26. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). This showing is not the equivalent of an ultimate factual finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 579 (1978). Once a prima facie case is established, a presumption of discrimination arises. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).
27. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non- discriminatory reason for its action. Id.; Linn Co-operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). If the Respondent does nothing in the face of the presumption of discrimination which arises from the establishment of a prima facie case, judgment must be entered for Complainant as no issue of fact remains. Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). If Respondent does produce evidence of a legitimate non-discriminatory reason for its actions, the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).
28. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981)).
29. This burden of production may be met through the introduction of evidence or by cross- examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10.
Dorene Polton, 11 Iowa Civil Rights Commission Case Reports 152, 162 (1992)(emphasis added).
B. The Commission Established a Prima Facie Case of Retaliation:
49. A prima facie case of retaliation may be established by the Complainant by producing evidence which shows:
(1) [s]he was engaged in statutorily protected activity, (2) [s]he suffered adverse employment action, and (3) a causal connection between the two.
Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989). The Commission established a prima facie case under this standard. See Finding of Fact No. 63.
50. Some ways in which a causal connection between the filing of the complaint and the adverse action can be shown are (a) proximity in time of the filing and the adverse action; (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); Lindeman & Kadue, Sexual Harassment in Employment Law 284-85 (1992). See Walters v. United States Gypsum Co., 537 N.W.2d 708, 712 (Iowa 1995)(summary judgment for employer denied on retaliatiory discharge claim where employee produced evidence that she had never been previously disciplined for any of the reasons given for her discharge and no employee had ever been discharged for one of those reasons). See Finding of Fact No. 62.
51. A causal connection may be shown by "[e]mployer attempts to conceal that the person who decided on the adverse action knew at that time that the employee had engaged in protected . . . opposition" to discrimination. Lindeman & Kadue, Sexual Harassment in Employment Law 284-85 (1992). See Macey v. World Airways, 14 Fair Empl. Prac. Cases 1426 (N.D. Cal. 1977)(Determination that manager falsely testified on deposition that he was not aware of EEOC charge at the time Complainant was discharged was a factor which compelled the conclusion that discharge was at least partially due to retaliation). See Findings of Fact No. 63. A causal connection may also be shown when the person opposing discrimination is a victim of sexual harassment which the employer was aware of and failed to remedy prior to the adverse action taken against her. Cf. Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259, 263 (Iowa 1991)(Evidence of prior acts of discrimination may show employer motive with respect to subsequent acts); Hawkins v. Hennepin Technical Center, 900 F.2d 153, 156, 52 Fair Empl. Prac. 885 (8th Cir. 1985)("An atmosphere of condoned sexual harassment in a workplace increases the likelihood of retaliation for complaints in individual cases."). See Finding of Fact No. 61. By analogy, the methods for showing a causal link apply not only to a link between the filing of a complaint and subsequent employment action, but also to a link between any other lawful opposition to discrimination and subsequent employment action.
52. It should be noted that establishing a causal connection through proximity in time is not contrary to the following rule:
[T]he mere fact that an adverse employment decision occurs after a charge of discrimination is not, standing alone, sufficient to support a finding that the adverse employment decision was in retaliation to the discrimination claim.
Walters v. United States Gypsum Co., 537 N.W.2d 708, 712 (Iowa 1995)(quoting Hulme v. Barrett, 480 N.W.2d 40, 43 (Iowa 1992)).
53. Merely showing that an adverse employment action was taken at some point, perhaps years later, after a complaint is filed does not show proximity in time. In Hulme, for instance, the plaintiff's discharge did not occur until six months after her civil rights complaint was filed. Hulme at 43. The plaintiff's discharge did occur, however, immediately after she 'defiantly' objected to a new no smoking policy and told the store manager that he would have to fire her if he wanted to be rid of her. Id. at 42. Since the court held there was no evidence to connect the complaint and the employer's response to the plaintiff's objections to the policy, it is implicit that, under those facts, the filing and the action were not close enough in time to connect the two events. See id. In contrast to Hulme, in the instant case, the proximity in time between the Complainant's "blow-up" with Respondent Lopez, which was her last act of continuing resistance to sexual harassment, and her discharge is much closer than the events in Hulme. See Finding of Fact No. 61.
C. Respondents' Articulation, Through the Production of Evidence, of A Legitimate Non-Discriminatory Reason for Complainant's Discharge:
54. In order to rebut the Complainant's prima facie case, a Respondent must introduce admissible evidence which would allow the finder of fact to rationally conclude that the challenged decision was not motivated by retaliatory animus. Linn Co-operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981). The Respondent need not persuade the finder of fact that it was actually motivated by the proffered reasons. Id. Nonetheless, the Respondent must produce evidence that the action taken with respect to the Complainant was implemented "for a legitimate, nondiscriminatory reason." Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). This burden cannot be met "merely through an answer to the complaint or through argument of counsel." 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)). The Respondent in this case rebutted the prima facie case under these standards. See Finding of Fact No. 64.
D. Respondent's Reason Shown to Be A Pretext for Retaliation:
55. There are a variety of ways in which it may be shown that Respondent's articulated reasons are pretexts for retaliation, not all of which are enumerated below. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 578 (1978); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Cas. 913, 922 n.6 (7th Cir. 1984).
56.
30. [Pretext may be proven] by evidence showing:
(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the [challenged employment action], or (3) that the proffered reasons were insufficient to motivate the [challenged employment action].
Bechold v. IGW Systems, Inc., 817 F.2d 1282, 43 Fair Empl. Prac. Cas. 1512, 1515 (7th Cir. 1987).
Ruth Miller, 11 Iowa Civil Rights Commission Case Reports 26, 48 (1990). Pretext in the instant case was demonstrated by findings of fact indicating that the reasons articulated by Respondent did not actually motivate the discharge or were insufficient to motivate the termination under the circumstances. See Finding of Fact Nos. 82-88, 90, 91, 97.
57.
31. In addition, "[t]he reasonableness of the employer's reasons may . . . be probative of whether they are pretexts. The more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as a pretext." Loeb v. Textron, Inc., 600 F.2d 1003, 1012, 20 Fair Empl. Prac. Cas. 29, 35 n.6 (1st Cir. 1979). The focus, however, is on the employer's motivation and not its business judgment. Id.
Ruth Miller at 48-49. In light of the circumstances, including the actual past practices of the Respondent Mama Lacona's West, its averred procedures for dealing with customer service complaints against employees, and the inconsistent and illogical reasons given for discharging complainant, it would appear the reason given for her termination is not reasonable. See Findings of Fact Nos. 75-76, 81-88.
58. In a pretext case, the"factfinder's rejection of some of the defendant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons even if no evidence undermining those remaining rationales in particular is available." Fuentes v. Perskie, 32 F.3d 759, 65 Fair Empl. Cas. 890, 894 n.7 (3rd Cir. 1994). In addition, "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action" may support the conclusion that such reasons are "unworthy of credence" and therefore pretexts for retaliation. Id. at 894. The testimony of the employer's top management in this case is filled with implausibilities, inconsistencies, incoherencies, or contradictions concerning the proffered legitimate reasons for its actions and related events. See Findings of Fact Nos. 72-90. The employer's inconsistent statements or actions (e.g. giving differing reasons for the discharge) may be probative on the issue of pretext. See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 266 & nn.34-35 (2nd ed. 1989). See Findings of Fact Nos. 80-88.
59. An ultimate finding of retaliation, as made in this case, may be supported by:
the combination of (1) the inference (not the presumption) of [retaliation] established by the evidence which demonstrated a prima facie case and (2) a determination that the employer's articulated reasons are false or "unworthy of credence". . ..
Maxine Boomgarden, 12 Iowa Civil Rights Case Reports 31, 50 (1993) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed. 2d 407, 418-19 (1993)).
60. Under Hicks "a factfinder . . . is entitled to infer [retaliation] from plaintiff's proof of a prima facie case and showing of pretext without anything more." Washington v. Garrett, 10 F.3d 1421, 1433, 63 Fair Empl. Prac. Cas. 540, 549 (9th Cir. 1993). See also Anderson v. Baxter Healthcare Center, 13 F.3d 1120, 63 Fair Empl. Prac. Cas. 1016, 1019 & n.3 (7th Cir. 1994)(rejecting as dicta language in Hicks indicating that anything more than a prima facie case and disbelief of employer's reasons is required to show discrimination).
61. In pretext cases, "the rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional [retaliation], and the Court of Appeals was correct, when it noted that, upon such rejection, 'no other proof of [retaliation] is required.' 970 F.2d at 493." St. Mary's Honor Center v. Hicks, 509 U.S. 702, 113 S.Ct. 2742, 125 L.Ed. 2d 407, 418-19 (1993) While this Commission is not legally compelled to find retaliation when the employer's reasons are disbelieved, it may do so, see id. at 419, and has done so in this case. See Finding of Fact No. 90.
62. Thus, under the McDonnell-Douglas analysis, the Commission has met its burden of persuasion with regard to establishing retaliation in violation of Iowa Code section 216.11.