JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.

CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.

100. Although there is authority supporting the proposition that the Respondents' failure to have any monitoring or testing program for police officers, to measure their ongoing physical capabilities or to assess their risk of heart attack, automatically precludes any finding that such qualifications are reasonably necessary to the business, see EEOC v. Mississippi State Tax Commission, 873 F.2d 97, 49 Fair Empl. Prac. Cas. 1393,1394 (5th Cir. 1989)(citing e.g. EEOC v. Commonwealth of Pennsylvania, 829 F.2d 392, 395, 44 Fair Empl. Prac. Cas. 1470 (3rd Cir. 1987)), the more persuasive position is:

that physical fitness may be a job qualification despite the lack of formal standards. The weight to be given the-existence or absence of formal standards is for the fact finder to decide, with. its finding subject to appropriate appellate review on the entire record. The Criswell opinion emphasizes the importance of fact finding on a "case by case" basis under the ADEA structure.

Id. Once the Respondents established that these functions were actually performed, and were essential to the normal operations of the department, it followed that the physical ability and capability to perform these functions were qualifications reasonably necessary to the normal operation of the police department. The absence of formal standards with respect to monitoring and maintaining the health and physical fitness of police officers is of greater importance to the resolution of the second BFOQ test.

101. Once the first part of the BFOQ test has been established, the employer must show that its reliance on age as a proxy for job-related qualifications is more than fair, reasonable or convenient. Criswell at 414. The age requirement "must be 'reasonably necessary . . . to the particular business,' and this is only so when the employer is compelled to rely on age as a proxy for the safety-related job qualifications validated in the first [test]." Id. This showing required for the second part of the BFOQ test may be met in either of two ways: First, "[t]he employer could establish that it ... had reasonable cause to believe, that is, a factual basis for believing that all or substantially all (persons over the age qualification] would be unable to perform safely and efficiently the duties of the job involved." Id. Respondents did not establish that the age requirement was reasonably necessary through this method. See Findings of Facts Nos. 60-67. On brief, they did not even address the issue.

102. The second method for "establish[ing] that age was a legitimate proxy for the safety-related job qualifications [is] by proving that it is 'impossible or highly impractical' to deal with older employees on an individualized basis." Criswell at 414. It is at this point that the considerations set forth in Polk County Juvenile Home and the EEOC regulation cited in Criswell come into play. See Conclusions of Law Nos. 93-95. Respondents have failed to prove by a preponderance of the evidence each and all of the elements necessary to show, by this method, that the age requirement is reasonably necessary to the operation of the Estherville Police Department.

103. Respondents have failed to prove that the not-yet-age 33 at time of appointment maximum age hiring limit effectuates their public safety goals of ensuring that the police force will consist of physically fit police officers who are without an increased risk of heart or other chronic disease and are, therefore, physically able to perform the essential functions identified as reasons for the age cap. Criswell at 416 & n.24 (quoting 29 C.F.R. S 1625.6(b)). See Findings of Fact Nos. 6972, 78, 82-83, 84-98, 106. Important to the determination of whether the maximum age hiring limit is 11 I reasonably necessary' to safe operation of the [department]" is proof "establishing that a job [age] qualification has-been carefully formulated to respond to documented concerns for public safety," although risks need not and cannot be "establish[ed) to a certainty." Criswell at 419.(emphasis added). Such proof was lacking here. See Findings of Fact Nos. 83, 87-92.

104. Respondents have failed to prove there are no reasonably available acceptable alternatives to the age requirement. Polk County Juvenile Home at 916; Criswell at 416 & n-24 (quoting 29 C.F.R. S 1625.6(b)). See Findings of Fact Nos. 73-82, 99-106. It should be noted that, although cost-effective measures for monitoring and assessing physical capabilities and the risk of heart disease are mentioned in the findings of fact, it is well established law that "[e]conomic considerations cannot be a basis for a BFOQ-precisely those considerations were among the targets of the Act." EEOC v. County of Los Angeles, 706 F.2d 1039, 1042 (1983)(quoting Smallwood v. United Air Lines, Inc., 661 F.2d 303 (4th Cir. 1981)); H. Eglit, Age Discrimination, § 16.30A & n.7 (1992). "[A]dded expense [which] would be incurred by individualized dispositions of employment applications ... is insufficient to meet the employer's burden." Usery v. Tamiami Trail Tours, 531 F.2d 224, 235 n.26 (5th Cir. 1976). Cf. Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 180 (Iowa App. 1988)("Economic savings derived from discharging older employees cannot serve as a legitimate justification"). See Findings of Fact Nos. 79-81, 102.

105. In determining whether employers have established that it is highly impractical to test employees on an individualized basis, it is not required that any alternative tests be perfect, e.g. that they effectively screen out all persons with heart disease. EEOC v. County of Los Angeles, 706 F.2d 1039, 1043 (1983). The employer must demonstrate not that the alternative tests are imperfect, or fail to screen out a small percentage of unqualified persons, but that they fail to make a "practical reliable differentiation of the unqualified from the qualified applicant." Id. In this case, the employer has failed to generate the quantum of credible evidence necessary to support such a conclusion. See Findings of Fact Nos. 88-92, 102.

106. Respondents have failed to demonstrate that the reasonably available acceptable alternatives to the maximum age hiring cap neither better advance Respondents' public safety goals nor equally advance them with less discriminatory impact. Polk County Juvenile Home at 916 ("less restrictive alternative); Criswell at 416 & n.24 (citing 29 C.F.R. S 1625.6(b)). See Findings of Fact Nos. 66, 75-83, 88-102.

107. Based solely on the objective evidence, and disregarding any evidence of Respondents' subjective intent in creating the age cap, Respondents have failed to establish a BFOQ for their maximum age hiring limit. See Conclusion of Law No. 81. See Findings of Fact Nos. 59-106.

EEOC v. Missouri State Highway Patrol Is Neither Governing Nor Persuasive Authority In This Case:

108. On brief, Respondents rely heavily on a pre Criswell Eighth Circuit case EEOC v. Missouri State Highway Patrol, 748 F.2d 447 (8th Cir. 1984) which upheld a 32 age cap for state troopers as a BFOQ under the ADEA. Respondents Brief at 20-25. Despite Respondents' assertion to the contrary, this case is not "governing law here" for the reasons set forth in Conclusion of Law No. 4. Respondents Reply Brief at 6. In addition, the Iowa Supreme Court has held that, "a U.S. circuit court's interpretation of federal law is, of course, binding on neither an Iowa agency nor this court. Such opinions can, however, provide very persuasive authority on questions in controversy. . .. . [The agency relied on a Seventh Circuit opinion.] The fact that the authority came from the Seventh Circuit, instead of the Eighth, is immaterial." Boswell v. Iowa Board of Veterinary Medicine, 477 N.W.2d 366, 370 (Iowa 1991).

109. EEOC v. Missouri State Highway Patrol is also not persuasive authority in this case. The case was heard by a three judge panel with one judge filing a separate decision which concurred in part and dissented in part. Missouri at 448, 457 (McMillian, J, dissenting). The majority's opinion in Missouri State Highway Patrol has been subjected to justified criticism. The Fifth Circuit noted that its analysis is confusing because of the Eighth Circuit's simultaneous treatment of both parts of the BFOQ test. EEOC v. Mississippi State Tax Commission, 873 F.2d 97, 49 Fair Empl. Prac. Cas. 1393, 1395 (5th Cir. 1989). This treatment is contrary to the analytical framework subsequently explicated in Criswell and followed here.

110. The majority opinion was also criticized by the dissent because of the Court's excessive reliance on principles of federalism and deference to the state legislatures' judgment. Id. at 457-58 (McMillian, J, dissenting). It should be noted, however, that principles of federalism do not concern us here. Also, the legislative judgments in this case are in opposition to, not support of the hiring cap. Iowa Code §§ 400.17; 601A.6. The Eighth Circuit also found mandatory retirement and hiring age limits established by Congress for federal law enforcement positions to be persuasive without evidence that Congress established them as BFOQS, a position rejected by other circuits, as noted in the dissent, Missouri at 458, and ultimately repudiated by the United States Supreme Court. Johnson v. Mayor of Baltimore, 472 U.S. 353, 37 Fair Empl. Prac. Cas. 1839, 1845-46 (1985).

111. Finally, much unlike the instant case, the plaintiffs in Missouri made "efforts, which at best can be described as minimal, to rebut the patrol's..... [BFOQ] showing." Missouri at 457. Missouri is not persuasive authority.

Laches:

112. Respondents assert, on brief, that they are entitled to judgment on the basis of laches. Respondents' Brief at 60-61. As a matter of law, Respondents have waived any laches defense or other defense based on any alleged delay by the Commission because they failed to raise the issue until after the evidentiary hearing was completed. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 169-70 (Iowa 1982). See Finding of Fact No. 107.

113. In any event, "the equitable doctrine of lachee relates to delay in the assertion or prosecution of a claim, working to the disadvantage or prejudice of another. The doctrine is applied only where it would be inequitable to allow a person making a belated claim to prevail .... Laches consists of unreasonable delay in asserting rights which cause another undue prejudice. Mere passage of time is not enough to establish laches. Each case is governed chiefly by its own circumstances." Brewer v. State 446 N.W.2d 803, 805 (Iowa 1989)(emphasis added)(citations omitted). "[It] is an affirmative defense which must be established by clear, convincing, and satisfactory proof.... It is available only when delay has harmed the claimant or caused material prejudice." Chicago, Rock Island, and Pacific Railroad Company v. City of Iowa City, 288 N.W.2d 536, 541 (Iowa 1980).

114. Prejudice is one of the elements of laches which must be shown by evidence in the record. C.O.P.E.C. v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990). See 27 Am. Jur. 2d Equity 162 (1966). "Prejudice must be shown.... Prejudice 'cannot be inferred merely from the passage of time."' C.O.P.E.C. v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990)(quoting with approval Cullinan v. Cullinan, 226 N.W.2d 33,36 (Iowa 1976)). See e.g. Brewer v. State, 446 N.W.2d 803, 805 (Iowa 1989)(mere passage of time does not demonstrate unreasonable delay in asserting rights which cause another prejudice).

115. Respondents have introduced no evidence to support these arguments. Argument by counsel on brief is no substitute for evidence in the record. See 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)(burden of production of evidence cannot be met through argument of counsel). Given the failure of Respondents to show prejudice, they have failed to prove any laches defense.

116. It should be noted that the Eighth Circuit case cited by Respondents for the proposition that agencies have a duty to decide issues within a reasonable time is concerned with a specific federal statutory provision, governing federal administrative agencies, which has no state counterpart. EEOC v. Liberty Loan Corp., 584 F.2d 853, 854 (8th Cir. 1978).

Business Necessity:

117. Respondents attempted to articulate a business necessity defense for their facially discriminatory policy. Respondents' Brief at 17. An explicit age-based discriminatory policy is analyzed under the disparate treatment theory of discrimination and not the disparate impact theory. Therefore, the business necessity defense does not apply to this case. Auto Workers v. Johnson Controls, __ U.S.__ 55 Fair Empl. Prac. Cas. 365, 371- 72 (1991). See Conclusion of Law Nos. 33-34.

Remedies:

118. Violation of Iowa Code section 601 A.6 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.

Compensatory Damages:

119. The Iowa Civil Rights Act gives the Commission the authority to award actual or compensatory damages, which are designed to make whole the complainant for any actual or real losses he suffered as a result of discrimination by Respondents. Iowa Code S 601A.15(8)(a)(8)(1991). See Chauffers, Teamsters and Helpers v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (Iowa 1986). This would include the loss on sale of Complainant Montz house and moving expenses. See Finding of Fact Nos. 145, 147.

Mitigation of Backpay Damages:

120. The Respondent 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). "Mitigation is based upon the complainant's receipt of unemployment benefits and other earned income after the wrongful termination." Children's Home v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). In order to meet its burden of proving that Complainant failed to mitigate his damages, Respondent must establish:

(1) that the damage suffered by [the employee] could have been avoided, i.e. that there were suitable positions which [the employee] could have discovered and for which he was qualified; and (2) that [the employee) failed to use reasonable care and diligence in seeking such a position.

. . .

"[R]easonable care and diligence [does not mean] that the... employee is required to make every effort to find employment. A claimant is only required to make every reasonable effort to mitigate damages and is not held to the highest standard of diligence. (citations omitted).

Moreover, a finding of diligence is not a condition precedent to an award of back pay. It is [the employer] not [the employee] who bears the burden of establishing that the claimant willfully failed to mitigate damages and this burden is not met merely by showing that further actions could have been taken in the pursuit of employment. "Rather, the [employer] must show that the course of conduct (employee] actually followed was so deficient as to constitute an unreasonable failure to seek employment." (citation omitted).

In summary, diligence in mitigating damages within the employment discrimination context does not require every effort and it is [the employer], not a claimant, who has the burden of establishing, that the claimant failed to make an honest, good faith effort to secure employment.

Id.

121. Respondent failed to establish that Complainant Montz did not make an "honest, good faith effort" to obtain work. Id. Complainant Montz was not required to seek work outside the City of Estherville, which was intended to be his permanent community, where his wife worked, and where he cared for his ill mother, in order to mitigate his damages. Coleman v. City of Omaha, 714 F.2d 804, 33 Fair Empl. Prac. Cas. 1462, 1464 (8th Cir. 1983)(former police chief not required to leave community to take out-of-town police chief jobs to mitigate damages); Hegler v. Board of Education, 447 F.2d 1078, 1081, 3 Fair Empl. Prac. Cas. 1212, 1214 (8th Cir. 1971)(plaintiff not required to abandon community where spouse worked and seek employment in another state). See Findings of Fact Nos. 131-32.

Backpay Compensation:

122. 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. Kalfir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.Y. 1976), affd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). Backpay may include compensation for life, health and other employer paid insurance. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 536 (2nd ed. 1989). This the Complainant has done. See Findings of Fact No. 139-42.

123. 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)). See Findings of Fact Nos. 143-44. "The back pay period may... be terminated when the [complainant] ceases to look for.alternative employment." Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 531 (2nd ed. 1989)(emphasis added). There is no evidence of any such cessation of a reasonable work search here. See Findings of Fact Nos. 131-33, 135-37. "[A] back pay period terminates when the [complainant] obtains comparable employment." Id. This period has been terminated at that point. See Finding of Fact No. 138.

124. 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.

125. "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:

126. 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:

127. "[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)).

128. 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. S 15388 (N.D. Ill. 1981).

129. 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).

130. On brief, Respondents argued that "the Iowa Supreme Court has held that the Respondent's action must not only be causation in fact, but be the proximate cause of that claimed emotional distress" and that Complainant Montz had not proven that his distress was proximately caused by the discrimination he suffered. Respondents Brief at 65 (citing Hy-Vee Food Stores v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990)). "Any injury or damage is proximately caused by an act, or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission." BLACK'S LAW DICTIONARY 1103 (5th ed. 1979).

131. In Hy-Vee, the Court relied, in part, on complainant's testimony that "[s]he was upset, felt bad, and had headaches. At one point she described her reaction to the stress she was experiencing: 'I would like to have a bag to beat it up, punch it in."' Hy-Vee at 526. In light of the standards set forth above, and of Complainant Montz' testimony and other credible evidence of emotional distress, it is-clear that any proximate causation standard implied by Hy-Vee has been met. See Findings of Fact Nos. 148-56.

Determining the Amount of Damages for Emotional Distress:

132.

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)).

133. 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).

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

135. 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:

Pre-Judgment Interest:

136. The Iowa Civil Rights Act allows an award of actual damages to persons injured by discriminatory practices. Iowa Code 601A.15(8)(a)(8). Pre-judgment 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 (Iowa 1990). Prejudgment interest is properly awarded on an ascertainable claim. Dobbs, Hornbook on Remedies 16667 (1973). Because the amount of back pay due Complainant at any given time has been an ascertainable claim since he was denied-employment, prejudgment 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.,

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

Attorneys Fees:

138. The Complainant 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).

139. Respondents have suggested that Complainant be denied an award of attorney's fees because of the conduct of his counsel at hearing. Respondents' Brief at 72. Whatever impact his counsel's behavior might or might not have on the award of fees to the Complainant should be determined after the evidentiary hearing on fees required by Ayala. However, both Respondents' and Complainant's counsel are reminded of the following provisions of the Code of Professional Responsibility, which apply to administrative hearings under EC 7-15, and are admonished to follow them during the course of any future evidentiary hearing before this agency:

A. Disciplinary Rule 7-106 Trial Conduct.

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:
. . .
(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.
. . .
(6) Engage in undignified or discourteous conduct which is degrading to a tribunal.

B. Ethical Consideration 7-36.

Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and aboveboard in his relations with a judge or hearing officer before whom he appears.

C. Ethical Consideration 7-37.

[I]11 feeling [between clients] should not influence a lawyer in his conduct, demeanor, and attitude towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.

D. Ethical Consideration 7-38.

A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client.

E. Ethical Consideration 7-10.

The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.

Iowa Code of Professional Responsibility for Lawyers. Credibility, Testimony, and Expert Opinions:

140. 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 Steamship 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).

141. In Iowa, expert opinion evidence may be accepted as conclusive by the trier of fact either "in whole, in part, or not at all." State v. Nunn, 356 N.W.2d 601, 604 (Iowa Ct. App. 1984).

142.

The acceptance or rejection of opinion evidence does not depend upon the expert's abstract qualifications alone. Bernal v. Berhardt, 180 N.W..2d 437 (Iowa 1970). Such an opinion must necessarily be tested by the specific facts upon which it is based, stated by the witness or stated in a hypothetical question. Albrecht v. Rausch, 193 N.W.2d 492 (Iowa 1972). We have said an expert's opinion rises no higher than the level of evidence and logic on which it is predicated. In re Springer's Estate, 252 Iowa 1220, 110 N.W.2d 380 (1961). Even if uncontroverted, expert opinion testimony is not binding on the trier of fact; it may be accepted in whole, in part, or not at all. Olson v. Katz, 201 N.W.2d 478 (Iowa 1972).

Wilson-Sinclair Co. v. Griggs, 211 N.W.2d 133, 142 (Iowa 1973).

143. In Wilson-Sinclair, the opinion of an expert witness, an industrial psychologist, as to the discriminatory impact of a test was rejected by the court, in part, because he "advanced no empirical studies or experiences involving this standard test to substantiate his opinion as it related to the case before us." Id. In this case, Dr. Moe's opinions and conclusions were found to be credible, in part, because they were well-supported by refereed empirical medical studies. See Finding of Fact No. 163. Such studies may be relied on by a finder of fact when they are admitted in evidence. See Id. at 141. Some of Dr. Hranac's and Dr. Muchinsky's opinions, on the other hand, lacked sufficient supporting data. See Findings of Fact Nos. 169, 171, 175.

144. Other factors which may be considered when determining the credibility of expert witnesses include, but are certainly not limited to, failure to perform analyses normally performed by an expert to achieve a reliable opinion, board certification (or the lack of it), and financial interest. See e.g. Mauet, Fundamentals of Trial Techniques, 289-90 (1980).

145. The United States Supreme Court rejected the proposition that "where qualified experts disagree as to whether persons over a certain age can be dealt on an individual basis, an employer must be allowed to resolve that controversy in a conservative manner." Criswell at 423. "This argument incorrectly assumes that all expert opinion is entitled to equal weight, and virtually ignores the function of the trier of fact in evaluating conflicting testimony." Id. Such a rule would "give free reign to the stereotype of older workers." Id. In the light of the evidence in the record of reasonably available, less restrictive, practical alternatives to age discrimination, "[any] attempt to justify [the employer's] decision on the basis of the contrary opinion of experts-solicited for the purpose of litigation-is hardly convincing on any objective standard short of complete deference [to the employer's decision]. Even in cases of public safety, [such deference is] not permit[ed]." Id.