V. CERTAIN DEFENSES AND CLAIMS WERE WAIVED BY THE PARTIES:
A. Respondent's Failure to Raise the Mixed Motive or Same Decision
Defense on Brief or On It's Pleadings Waives the Defense:
48. Respondent has failed to raise the "mixed motive" or "same decision" defense on brief or on in its pleadings. This defense may arise "[w]here direct evidence [of discrimination] is presented and the employer suggests other factors [i.e. motives in addition to discrimination] influenced the decision." Landals v. George A. Rolfes Company, 454 N.W.2d 891 (Iowa 1990)(cited in Civil Service Commission v. Iowa Civil Rights Commission, 522 N.W.2d. 82, 88 (Iowa 1994). "[T]he employer [then] has the burden of proving by a preponderance of the evidence that it would have made the same decision even if it had not considered the improper factor." Id. For the reasons stated below, the failure of Respondent to raise this defense on brief or on pleadings constitutes either a waiver of the defense or an admission that it has no mixed motive defense and that the only defenses it has are those which are asserted on brief and in it's pleadings.
49. First, since the Respondent has asserted only certain defenses on brief or in its pleadings, it is limited to those defenses. Cf. Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991)(citing Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)(employer bound to reasons for termination set forth on brief). Larson was an unemployment insurance case. Id. The Court held that an employer was bound by the reasons for termination of an employee which were stated in its brief filed with the Employment Appeal Board. Id. Since the employer had stated that the employee was terminated for inability to do work, a reason which would not disqualify the employee for benefits, it was bound by this statement. Id. Based on this admission, benefits were granted, although the employer attempted to argue that the employee had been terminated for misconduct. Id.
50. Second, the Respondent's failure to urge a defense before the administrative law judge constitutes a waiver of that defense. See 161 IAC 4.3(15) (formerly 240 IAC 1.9(12)("Any objection not duly made before the hearing officer shall be deemed waived"). Cf. Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (Iowa 1986)(citing e.g. 240 IAC 1.9(12)(error not preserved at the Commission level is waived--issue must be raised before the agency).
51. Third, the defenses which are offered by Respondent are not consistent with the theory of a mixed motive case. When, as here, a complainant alleges discrimination and a respondent to a charge asserts there is "no discriminatory actuation," Callan v. Confederation of Oregon School Administrators, 317 P.2d 1252, 57 Fair Empl. Prac. 1696, 1698 (Ore. Ct. App. 1986), the case is "not a mixed motive case." Id.
B. Respondent Has Waived the Defense That Complainant Failed
to Mitigate Her Damages As Such Defense Is Not Discussed on Brief:
52. Although the affirmative defense that Complainant failed to mitigate her damages was raised in the Respondent's prehearing conference form, it was not addressed on brief by Respondent. Therefore, it has been waived. See Conclusions of Law Nos. 49-50.
C. Complainant Has Waived any Claim Based on the Theory That
Respondent Failed to Reasonably Accommodate Complainant Martin:
53. Although the claim that Respondent failed to reasonably accommodate the Complainant was raised in the Complainant's prehearing conference form, it was not addressed on brief by Complainant. Therefore, it has been waived. See Conclusions of Law Nos. 49-50.
53. Failure to make reasonable accommodation is recognized as a theory of employment discrimination which is separate and independent from disparate treatment theory. Rancour v. Detroit Edison Company, 388 N.W.2d 338, 341-42 & n.2 (Mich. App. 1986)(disability case distinguishing between 'failure to accommodate theory" and "discrimination theory"); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 1, 61-69, 81-87 (2nd ed. 1989)(discussion of reasonable accommodation and disparate treatment theories). The claim that Complainant Martin was subjected to disparate treatment was addressed in both the Complainant's and the Commission's briefs and will be considered.
VI. THE ANALYSIS SET FORTH IN BOELMAN V. MANSON STATE BANK
IS NOT APPROPRIATE FOR THIS CASE:
54. It is undisputed that Complainant Martin's absence was due to cancer experienced by her in 1991. See Finding of Fact No. 41. If the claim had been made that this cancer was an actual disability, then the fact McIvor told Complainant Martin that she was replaced due to her absence would be sufficient to establish a prima facie case under the analysis set forth in the Boelman case. See Boelman v. Manson State Bank, 522 N.W.2d 73, 77 (Iowa 1994). Since the termination would be based on conduct (the absence) causally connected to Complainant's disability, it would be considered to be based on the disability. See id.; Teahan v. Metro-North Commuter RR. Co., 951 F.2d 511, 517 (2nd Cir. 1991). But the claim is not made here that the cancer in 1991 was an actual disability or that such actual disability was relied on by Respondents. The claim here is that the future occurrence of the cancer constituted a perceived disability. See Finding of Fact No. 21. Although shown by the evidence, reliance on future recurrence of cancer is not admitted as a reason for Complainant's termination or replacement by the Respondents. See Trial Brief and Reply Brief. Because this case focuses on the claim of whether "the plaintiff was discharged because of [her perceived] disability" and not "whether the plaintiff's disability and its consequences make the plaintiff unqualified for the position," the Boelman analysis is not appropriate for this case. Boelman v. Manson State Bank, 73, 79 (Iowa 1994).
55. The two methods of analysis which are appropriate for proving disparate treatment in this case, the direct evidence method and the McDonnell-Douglas method are utilized as set forth below.
VII. THE DIRECT EVIDENCE METHOD OF PROVING DISPARATE TREATMENT:
56. "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). 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. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 (2nd ed. 1989).
57. Examples of direct evidence that a protected class status is a motivating factor in an employment decision include comments by decisionmakers expressing a preference for employees who are members of a particular protected class or comments indicating that stereotypes of members of a particular protected class played a role in the challenged decision or practice. See e.g. Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 288 (1989)(promotion); Barbano v. Madison County, 922 F.2d 139, 143, 54 Fair Empl. Prac. Cas. 1287, 1290, 1292 (2nd Cir. 1990)(hiring); Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (11th Cir. 1985)(discharge); Storey v. City of Sparta Police Department, 667 F. Supp. 1164, 45 Fair Empl. Prac. Cas. 1546, 1551 (M.D. Tenn. 1987)(hiring).
58. 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)(evidence sufficiently probative as policy was facially discriminatory; practice discriminated on basis of age; affirmative defenses rejected; violation of ADEA found). 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); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).
59. The reason why the McDonnell Douglas or "pretext" or "circumstantial evidence" order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer 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 employer'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).
60. In this case, there is direct evidence in the record that perceived disability of cancer which would occur or recur in the future was the motivating factor in Respondents' termination and replacement of the Complainant. See Findings of Fact Nos. 28, 30, 40.
61. After careful examination, this direct evidence has been found to be sufficiently probative to establish the alleged perceived disability discrimination. See Findings of Fact Nos. 230, 43. The statements about the Complainant's cancer were "'[c]omments which . . . demonstrate a discriminatory animus in the decisional process' [and] were uttered by [an individual] closely involved in employment decisions." Radabaugh v. Zip Feed Mills, 997 F.2d 444, 62 Fair Empl. Prac. 438, 441 (8th Cir. 1993)(quoting Price-Waterhouse, 490 U.S. at 278 (O'Connor, J. concurring). They could hardly be characterized as "'stray remarks in the workplace,' 'statements by non- decisionmakers', or 'statements by decisionmakers unrelated to the decisional process.' Id. These remarks represent a myth or stereotype involving victims of cancer, i.e. the myth that the cancer will necessarily return. See Conclusions of Law Nos. 39-40.
62.. The inquiry, however, does not end there, for the affirmative defenses of the Respondent, if any, 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). Examples of possible affirmative defenses which address direct evidence of discrimination include (a) that the protected class status (e.g. perceived disability in this case) is a bona fide occupational qualification (BFOQ) for the position, see e.g. id., 469 U.S. at 124, 105 S. Ct. at ___, 83 L.Ed. 2d at 535; or, (b) the "mixed motive" or "same decision" defense. See Conclusion of Law No. 48. Since the Respondent failed to raise any such affirmative defense, it's liability for discrimination is established. This reasoning accounts for the main ruling on liability in this case.