BEFORE THE IOWA CIVIL RIGHTS COMMISSION

RUTH MILLER (CLAY), Complainant,

VS.

PAGE COUNTY SHERIFF'S DEPT., PAGE COUNTY BOARD OF SUPERVISORS, PAGE COUNTY GRIEVANCE REVIEW BOARD, and RON FRANKS, SHERIFF, Respondents.

CONCLUSIONS OF LAW

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. Gas. 29, 35 n.6 (lst Cir. 1979). The focus, however, is on the employer's motivation and not its business judgment. Id.

32. Pretext maybe shown by the employer providing inconsistent reasons, for the same adverse employment action, to the Complainant and other sources. See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 266 & n.35 (2nd ed. 1989). The failure to conduct a thorough investigation prior to discipline, including an investigation of Complainant's version of the events leading to the discipline, may demonstrate pretext. See Id. at 266 & nn.34-35.

33. After application of these principles and those set forth in Conclusions of Law Numbers 11 and 12 above, it was determined the Complainant was not able to show that Respondents' reasons for their actions were pretexts for discrimination in regard to the reprimand on absence issued on August 23, 1985; failure to assign the J-1 number; and being required to rotate weekends with other jailers. See Findings of Fact Nos. 90, 102, and 109.

34. Through application of the same principles, Respondents' reasons were found to be shown to be pretextual in regard to denial of a rotating shift in May 1985; the reprimand of June 24, 1985; refusal of the day shift jailer position; and the Complainant's termination. See Findings of Fact Nos. 65-75, 80, 95, 118-23, 126, 128, 130-31. The Complainant has met her burden of persuasion with regard to these employment actions which are found to be sex discrimination in violation of the Act

Hostile Working Environment Sexual Harassment Theory:

35. "Maintenance of a sexually hostile work environment through sexual harassment is a form of illegal sex discrimination under section 601A.6(l)(a) of the Iowa Civil Rights Act." Lynch v. City of Des Moines, 454 N.W.2d 827, 833 (Iowa 1990). "Where sexual harassment in the workplace is so pervasive and severe that it creates a hostile or abusive work environment, so that the plaintiff must endure an unreasonably offensive environment or quit working, the sexual harassment affects a condition of employment." Id. at 834.

36. While not deciding this issue, the Iowa Supreme Court has questioned whether it is appropriate or necessary to utilize the burden shifting analysis applicable to quid pro quo sexual harassment cases in hostile work environment cases. Id. at 834 n.6. When the Court made this comment, it cited the Fourth Circuit's decision in Katz v. Dole, a decision which offers an alternative analysis. Id. (citing Katz v. Dole, 709 F.2d 251, 255-56 (4th Cir. T9-83).

37. A two step analysis was set forth in Katz v. Doyle:

First, the plaintiff must make a prima facie showing that sexually harassing actions took place, and if this is done, the employer may rebut the showing directly, by proving the events did not take place, or indirectly, by showing that the, were genuinely isolated or trivial. Second, the plaintiff must show that the employer knew or should have known of the harassment, and took no effectual action to correct the situation. This showing can also be rebutted by the employer directly, or by pointing to prompt remedial action reasonably calculated to end the harassment. . .. When ... the employer's supervisory personnel manifested unmistakable acquiescence in or approval of the harassment, the burden on the employer seeking to avoid liability is especially heavy.

Id.

Showing A Hostile Working Environment:

38. It has been established that sexually harassing actions took place. See Findings of Fact Nos. 32-35. The Respondents have suggested on brief that the alleged incidents of sexual harassment were not pervasive and therefore do not demonstrate a sexually harassing environment. Respondents Brief at 14.

39. It is well established that there must be proof that the sexual harassment was:

"sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment."' Vinson, 106 S. Ct. at 2406 (quoting Henson, 682 F.2d at 904). This test may be satisfied by a showing that the sexual harassment was sufficiently severe or persistent "to affect seriously [the victim's] psychological well being." Henson, 682 F.2d at 904.

Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1561 (llth Cir. 1987) (emphasis added).

40.

The existence of hostile or abusive working environment must be established by the totality of the circumstances.

...

[T]he determination of whether defendant's conduct is sufficiently severe and pervasive to constitute ... 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., No. 89-183, slip op. at 11-12 (Iowa July 18, 1990)(citations omitted).

41. 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.

42.

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 con. duct, the hostility of the environment is exacerbated and a violation is more likely to be found.

Id.

43. 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.

44. In light of the above principles, it is concluded that the unwelcome advances sustained by Complainant Miller were sufficiently severe to create, and did create, a hostile working environment for her. See Findings of Facts Nos. 32- 35 and 133. This conclusion of law is also adopted as a Finding of Fact.

Employer Liability:

45. The second part of the Katz test involves determining whether the employer is liable for hostile work environment harassment. Katz v. Dole, 709 F.2d 251, 255-56 (4th Cir. 1983). Liability will be automatic when the harasser is "a proprietor, partner or corporate officer" of a business. Id. at 255. It is not necessary to decide whether Sheriff-f Franks, as head of the Page County Sheriff's Department, falls within an equivalent category. For it has been established that Respondents had "actual or constructive knowledge of the existence of a sexually hostile working environment and took no prompt and adequate remedial action." Id. See Finding of Fact No. 35. This establishes employer liability. Id. The Complainant has met her burden of persuasion with regard to the establishment of a sexually hostile working environment which is found to be sex
discrimination in violation of the Act.

Order and Allocation of Proof Where Complainant, Relies on Direct Evidence of Retaliation:

46. Direct evidence of retaliation was found in regard to the failure of Respondents to place Complainant Miller in the day shift position. See Finding of Fact No. 96. The proper analytical approach in a case with direct evidence of discrimination or retaliation 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); cf. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 230-31 (2nd ed. 1989)(suggested that if complainant shows by direct evidence that lawful opposition of discrimination is a factor in employment decision, then employer must show by preponderance of evidence that decision would have been made even in absence of this factor). 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., 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor,J.concurring);TransWorldAirlines 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).

47. The reason why the McDonnell Douglas 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. ___, 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).

48. All of the above steps were followed with regard to this allegation albeit not in the. precise order stated above. See Findings of Fact Nos. 91-96. The Complainant has met her burden of persuasion with regard to proving that she was denied the day shift jailer position because she filed a discrimination complaint. This denial is found to be retaliation in violation of the Act. The same outcome would have resulted from application of the burden shifting analysis.

Retaliation - Burden Shifting Analysis:

49. 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). See Conclusions of Law Nos. 7-12, 25-26, 29-32.

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

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

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

51. 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)

52. Applying these principles, prima facie cases of retaliation were established with regard to the reprimand on absence issued on August 23, 1985; refusal of the day shift jailer position; failure to assign the J-1 number; being required to rotate weekends with other jailers; and termination. See Findings of Fact Nos. 1-2, 84, 91-93, 99-100, 106, 110-111, 120. Of these, the reasons articulated by Respondents for the refusal of the day shift jailer position and for termination of Complainant were found to be pretexts for retaliation. See Findings of Fact Nos. 95, 118-23, 126,128,130-31. The Complainant has met her burden of persuasion with regard to showing her discharge was retaliation in violation of the Act. The denial of the day shift jailer position has already been found to be a violation.

Credibility and Testimony:

53. 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:

54. Violation of Iowa Code sections 601A.6 and 601A.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) (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. 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 sexual harassment. Lynch v. City of Des Moines, 454 N.W.2d 827, 835-36 (Iowa 1990).

Damages for Emotional Distress:

55. 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 § 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.

56. "[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. lowa 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)).

57. 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 231, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N.D. 111. 1981).

58. 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 or extent of emotional distress. See Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988).

59. 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 substantial and serious emotional distress resulting from discrimination and retaliation.

60.

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)).

61. 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 concluded 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 C Reports 27, 29 (1984).

63. A wrongdoer takes the person he injures as finds him..McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975). A previously disabled person injured by acts of a wrongdoer "is entitled to such increased damages as are the natural and proximate result the wrongful act." Id. at 46; Keeton, Prosser Keeton on the Law of Torts 292 (1984). This principle applies to psychological and emotional injuries McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975).

64. On the other hand, the wrongdoer is not required to pay damages for emotional distress resulting from sources completely independent of its conduct. See Keeton, Prosser and Keeton on the Law of Torts 292, 345, 348-50 (1984). Cf. Lynch v. City of Des Moines, 454 N.W.2d 827, 836 (Iowa 1990) (upholding award of emotional distress damages in sexual harassment case against appeal of damages as inadequate - noting some distress due to other turmoil in complainant's life unrelated to discriminatory actions of employer). With items such as pain and suffering where the extent of the harm is almost incapable of definite proof, the factfinder is granted wide latitude in determining what amount of damage is attributable to the wrongdoer despite the absence of specific proof. Keeton, Prosser and Keeton on the Law of Torts 348- 350 & nn.47, 49 (1984).

Interest:

65. Post-judgment interest is usually awarded upon almost all money judgments, including judgments for emotional distress damages. Dobbs, Hornbook on Remedies 164 (1973). Only post-judgment interest on awarded because emotional distress damages are not ascertainable before a final judgment. Id. at 165.

Procedural Due Process:

66. On brief and in their answer Respondents alleged that this action should be dismissed because the Respondents' rights to procedural due process guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article 1, Section 9 of the Constitution of Iowa were violated because "[u]nder the administrative rules, the Respondents rights to discovery and prepare for hearing cannot commence until receipt of this notice. Iowa Administrative Code 161-4.1." Respondent's Brief at 42. Respondents concluded that "Due process of law precludes the Iowa Civil Rights Commission from allowing a three to four year period from passing between the filing of the Complaint or Charge of Discrimination and the Respondent's first opportunity to discovery and confrontation of witnesses." Respondent's Brief at 44.

67. The rule which actually makes reference to the relationship between discovery and the notice of hearing states, in relevant part: "Subsequent to issuance of the notice of hearing, the office of the attorney general and counsel for the parties and the parties may employ preheating discovery measures set forth in Iowa Code Chapter 17A." 161 Iowa Admin.
Code § 161-4.2(2).

68. The Commission rules, however, only track the statutory authorities which, when read together, provide that discovery procedures are available as a matter of right only after the issuance of the notice of hearing. This authority is found at Iowa Code section 17A.13(l), which provides that "[d]iscovery procedures ... are available to all parties in contested cases before an agency," and Iowa Code section 17A.12 which provides that, "[de]livery of the notice [of hearing] . . . shall constitute commencement of the contested case proceeding."

69. These statutes are the true source of the limitation on discovery rights which are the subject of the Respondents' constitutional due process attack. No administrative agency, including this Commission, has the legal authority to rule on the constitutional validity of a statute and the Commission must decline the invitation to do so. Salsbury Laboratories v. Iowa Department of Environmental Quality, 276 N.W.2d 830, 836 (Iowa 1979).

70. Respondents brief and answer also imply that delay in the holding of the hearing violates their due process rights to be heard "at a meaningful time" and "in a meaningful manner." Respondent's Brief at 4445 (citing e.g. Hedges v. Iowa Dept. of Job Service, 368 N.W.2d 862 (Iowa Ct. App. 1985)).

71. The focus of Respondents discussion on brief seems to be on the meaningful time requirement. Respondents do not specify how they were deprived of the opportunity to be heard in a "meaningful manner." In this regard, it is helpful to remember that nonconstitutional procedural rights and due process rights must be distinguished. Schwartz, B., Administrative Law §5.2 (1984). The federal courts, for example, have held that there is no due process guarantee of any rights to discovery in proceedings before administrative agencies. Id. at § 6.6 (citing Silverman v. CFTC, 549 F.2d 28 (7t-h Cir. 1977)). The full panoply of due process rights required before administrative agencies, including the rights to notice, to present evidence, to rebut adverse evidence, to be represented by counsel, to have a decision based on evidence in the record, and to have a complete record, were all provided here. Id. at § 6.6

72. When applied to property rights, the due process right to be heard at a meaningful time refers to the time between the hearing and either the temporary or permanent deprivation of a property interest. When the hearing is held, as this one was, prior to any temporary or final deprivation of the property, the highest requirements of due process in regard to time have been met. See e.g. Mathews v. Eldridge, 424 U.S. 319, 333, 340-42; Goldberg v. Kelly, 397 U.S. 254, 26671 (1970); 16A AM. JUR.2D Constitutional Law § 844 (1979); Schwartz, B., Administrative Law §§ 5.24-5.25 (1984). To the extent that there is a concern with the time between the issuance of the notice and the date of the hearing, due process requires that there be sufficient time between the notice of hearing and the hearing date to allow preparation. Schwartz, B., Administrative Law § 6.4 (1984). Sufficient time was given here. See Finding of Fact No. 3.