VI. Remedies:

A. Backpay and Benefits:

81. The parties stipulated to the following facts:

5. As of April 24, 1991, Complainant was paid $21,000.00 per year.

6. While off work, Complainant received $10,800.00 in unemployment compensation.

Stipulations Nos. 5-6.

1. Backpay:

82. According to an Application for Funding for the fiscal year July 1, 1991 to June 30, 1992, Complainant Martin was to receive a salary of $22,250.00 for that period. (R. EX. 20). The accuracy of this application was certified by Respondent McIvor on March 1, 1991 and by the Chairperson of the NEIMHC Board of Directors on April 2, 1991. This document is attached to a Contract Award from the Iowa Department of Public Health. (R. EX. 20). Given this certification, this figure is probably a more accurate indication of the increase Complainant Martin would have received, if she had not gone on leave, than the handwritten note on her evaluation. The March 1991 evaluation indicates a raise to $22,050.00 (CP. EX. 1; R. EX. 20; Tr. at 61-62).

 

83. Complainant Martin received her first salary increase, from $19,000.00 per year to $21,000.00 per year, six months after her hire on March 12, 1990. (R. EX. 9).

84. Complainant Martin was rehired on August 25, 1992 at the rate of $21,000.00 per year. Six months later, on February 25, 1993, her annual salary was increased to $21,800.00. Nine months after that, on November 24, 1993, her annual salary was increased to $22,454.00. This is her last salary raise reflected in the record. (R. EX. 9).

85. The evidence does not indicate what the date or amount of Complainant's next salary raise after June 30, 1992 would have been if she had not been terminated. Therefore, her front pay should end when her annual salary exceeds $22,250.00. This would be on November 24, 1993. (R. EX. 9).

86. Complainant's back pay for the period from August 19, 1991 to November 24, 1993 is computed as follows:

(a). Gross back pay prior to the deduction of unemployment insurance and interim earnings: = (Gross annual salary earnings for the two year period of August 19, 1991 to August 19, 1993) + (Gross annual salary earnings for the 14 week period from August 19, 1993 to November 24, 1993) = (2 years X $22,250.00 annual salary) + (14 weeks X $427.88 per week) = ($44500.00 + $5990.32) = $50490.32.

(b). Unemployment Insurance and Interim Earnings = [($10,800.00 U.I.) + (annual salary earnings for the 26 week period from 8/25/92 to 2/25/93) + (annual salary earnings for the 39 week period from 2/26/93 to 11/24/93)] = [($10,800.00) + (26 weeks X $403.85/wk) + (39 weeks X $419.23/wk)] = [$10,800.00 + $10,500.10 + $16349.97] = $37650.07.

(c). Complainant's Total Back Pay After Deduction of Unemployment Insurance and Interim Earnings: = (a) - (b) = $50490.32 - $37650.07 = $12,840.25.

2. Benefits: Retirement Plan:

87. Complainant participated in the NEIMHC retirement plan wherein NEIMHC contributed an amount equal to 10 per cent of her salary. (CP. EX. 6; Tr. at 65). She should be compensated for the contributions not made while she was unemployed and for reduced contributions made while she was employed at a lower salary than she would have had if she had never been terminated. This is an amount equal to ten percent of the backpay or $1,284.03.

3. Benefits: Health Insurance Premiums:

88. Complainant Martin is due a total of $2289.58 for health insurance premiums paid by her which would have been paid by Respondent NEIMHC if she had not been terminated. (Tr. at 64, 68).

4. Benefits: Education Reimbursement Program:

89. "While employed, Complainant was allowed $500.00 per year to spend towards professional education and development." (Stip. No. 7). In 1992, Complainant Martin attended such a conference. She should be reimbursed for her expenses of $420.00. (Tr. at 68-69).

5. Seniority, Vacation, and Sick Leave Benefits:

90. Complainant's seniority should be restored. Her personnel records will indicate that Complainant's hire date is March 12, 1990. Complainant shall receive one additional day of personal leave, 15 days of accured vacation leave, and 12 days of accrued sick leave or permanent disability leave (up to the limits indicated in the personnel policy) to reflect the year (8/91-8/92) she was off work. (CP. EX. 6). Her vacation shall accrue under the personnel policy as if she had been continuously employed since March 12, 1990.

B. Emotional Distress:

91. There is no doubt, based on this record, that Complainant Kathrine Martin suffered serious and substantial emotional distress due to her termination and replacement by Respondents. Her testimony of distress is supported not only by her adult son and daughter, a mental health professional, but by Respondent McIvor. (CP. EX. 1; Tr. at 47, 56-57, 69-70, 133-37, 152-159).

92. When Complainant Martin was told in the telephone call, on August 2, 1991, that she had been replaced, she was hit with feelings of sadness, as if she had done something wrong. After having successfully gone through the surgery and radiation treatment for cancer, she felt defeated by this event. (Tr. at 47, 69-70). Her job was important to her. (Tr. at 70). She felt that McIvor's comment about cancer returning in two months or two years wasn't fair. "We had just talked about my prognosis, my recovery, how well this had gone and the fact that I could talk again. And then it was like he dropped this on me and I felt real bad about it." (Tr. at 47).

93. In order to help her cope with her job loss, Dr. Vega, her radiation oncologist, recommended that Martin do volunteer work because, "no matter how you're feeling, it isn't good for your recovery to keep feeling bad." (Vega dep. at 3; Tr. at 56). She followed up on this advice by volunteering to do counseling for such organizations as Goodwill, Parent Share & Support, or the Family Center. (Tr. at 57, 136). She also tried to stay busy doing such tasks as yard and lawn work or walking for exercise. (Tr. at 136). These tasks were undertaken because not working had an adverse emotional impact on her. (Tr. at 136-37).

94. In Respondent McIvor's notes concerning the telephone call of August 2, 1991, he stated:

Kathy Martin contacted me by phone . . . and wondered when she would start back to work. I informed her that I didn't quite know because there is no business. She felt that there would be a job available for her. She felt very hurt and rejected as well as angry because she is worried about her employment and medical costs. She feels she is ready for work and has completed her chemotherapy. I told her we would meet on August 12 and discuss it further.

(CP. EX. 1).

95. McIvor also stated in his notes of their August 12, 1991 conversation that Complainant Martin was "very disappointed that her job was not available to her after her recovery from cancer;" that she found her treatment to be "unfair," and "was not very satisfied and wonders if this the policy of the agency to dismiss people who are suffering from cancer." (CP. EX. 1).

96. On April 21, 1992, eight months after she was told she was replaced, McIvor talked to her about her application for the second counselor position there. He noted that "[s]he still feels a little angry and bitter that she was treated unfairly." (R. EX. 7). Her feelings were serious enough that he decided to offer her the new position only as a probationary employee because he wondered if she could to the work without feeling negative about the place. (Tr. at 309-10).

A year before, in March of 1991, he had evaluated her as an employee "who gets along well with other staff members at the Oelwein office. . . . conduct[ed] her practice in a professional, independent, and ethical manner. . . . is usually polite and conducts herself in a professional manner. . . .has been able to function quite well independently." (CP. EX 1).

97. The Complainant's son, Steve Martin, moved back to Oelwein in the spring of 1991. He saw her every day after she was diagnosed with cancer. Her number one goal in that time was to get back to work following her treatments. (Tr. at 133).

98. Throughout the rigors of Kathrine Martin's cancer treatment, her son noted she had a good attitude despite the pain resulting from the radiation treatments. She was working toward her goal of getting back to work. (Tr. at 134). Then, in August, he noticed a change: "After . . . the phone call and the conference, you could tell it just took a little bit of air out of her, so to speak . . . because now she couldn't go back to work.. . . . [I]t was out of reach for her . . . and she didn't like that at all." (Tr. at 134-35). His mother had been financially independent and she found it difficult to go on unemployment insurance given her strong work ethic and her enjoyment of her job. He is certain that the decision to terminate and replace the Complainant had a "very detrimental" emotional effect on her. (Tr. at 135). He observed that it still affected her as of the date of the hearing. (Tr. at 136).

99. Laura Martin, the Complainant's daughter, is a mental health counselor with the chronic mentally ill. (Tr. at 153, 154). In June of 1991, Laura came home an average of once a week. Every other weekend, she had a three day weekend and would visit home then. She then moved in with her mother from the end of August 1991 until October 31, 1991. (Tr. at 153-54). In July and August of 1991, she came home every other day and also every other weekend. (Tr. at 154).

100. Laura observed that her mother dealt with the cancer in a positive fashion. She underwent surgery and an aggressive radiation treatment soon after the diagnosis was made. (Tr. at 155). Despite the difficulties, she was as positive as possible until August of 1991. Returning to work was the most important goal for her. (Tr. at 155). She missed the contact with clients and enjoyed her work. (Tr. at 156).

101. Laura also observed the effect that losing her job had on her mother. Complainant Martin became depressed. "I don't think 'sad' does it just cause. She was tearful at times. It was a sock to her self-esteem. She put so much identity in her work that, when she was told she wouldn't be able to return, her self-esteem or self-worth was just shot." (Tr. at 156). Due to her success with the cancer, her mother had been "on an upbeat" before being informed she no longer had a job in August 1991. (Tr. at 156-57). Although the Complainant was determined to get a job, "at times it was difficult because she was having these emotions that she was being punished for something she didn't have control of." (Tr. at 157). These emotions still affect her. (Tr. at 158). The complainant had feelings "where its her fault of getting cancer. [T]hroughout the years, I've seen her struggle with her self-esteem and trying to rebuild it, and that doesn't happen overnight." (Tr. at 158). The complainant is still working on this process. (Tr. at 158).

102. Given the duration and severity of Complainant Martin's emotional distress due to discrimination, an award of fifteen thousand dollars ($15,000.00) in emotional distress damages would be full, reasonable and appropriate compensation.