BEFORE THE IOWA CIVIL RIGHTS COMMISSION

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



VS.

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

RULINGS ON OBJECTIONS TO EVIDENCE

1. A number of objections were made to the admissibility of either testimony or exhibits. Many of these objections were simply noted in the record because evidence which would be excluded under the rules of evidence in a jury trial may be admitted in administrative hearings. Iowa code § 17A.14(l). When this procedure is followed, the objection, if it is found to be valid, may affect the weight given to the exhibit or testimony objected to, but the exhibit or testimony is admitted in the record and no ruling on the validity of the objection is made in the proposed decision.

2. Other testimony and exhibits were admitted subject to the objections with the understanding that the objections to them would be ruled upon in this decision. 161 IAC 4.2(5). This procedure is often followed when one of the objections is that the proffered evidence is irrelevant, immaterial, or unduly repetitious, all of which are grounds upon which the evidence should be excluded. See Iowa Code § 17A.14(l) (1991).

Respondents' Exhibit B:

3. Respondents' Exhibit B was admitted into the record subject to an objection on relevance. (Tr. at 150). The exhibit consists of a copy of a letter, dated March 12, 1991, from Emmet County Sheriff Larry Lamack to the Complainant's attorney's legal assistant which indicated that Complainant Montz did not achieve the minimum required score on an entry level test for the position of Deputy Sheriff in July of 1989. (R. EX. B). The exhibit was relevant at the time it was offered for two reasons: First, it was evidence of the existence of an incident which caused Complainant Montz some emotional distress. (Tr. at 153). Respondent could bring out this incident in an attempt to show that there were causes of Complainant's emotional distress which were independent of his treatment by Respondents. Second, at the time, Respondent argued that failure on this examination would demonstrate that Montz would have failed a written examination for Estherville police officer. Respondent subsequently waived this argument. (Tr. at 768-70). The objection is overruled based on the first rationale.

Complainant's Questions Concerning the Filling of Police Officer Positions After 1989:

4. The Respondents objected to the relevance of questions concerning the filling of police officer positions after 1989. They also asserted that inadequate notice was given as Montz' complaint focused on his rejection in 1989. (Tr. at 297). The questions were allowed subject to the objection. (Tr.at 299,315). The questions were.designed to establish whether the City continued to utilize the certified list established after Montz' application, whether it continued to enforce its maximum age hiring limit, and whether post 1989 vacancies were health related. All of these topics were relevant in determining whether the Respondents" policy constituted a continuing violation, as alleged in the complaint, and whether, in light of Respondents' assertion that its maximum hiring age was a bona fide occupational qualification, this policy was actually effective in maintaining a physically fit police force. The objection as to relevance is overruled.

5. With respect to inadequate notice, the complaint alleges that the "date most recent or continuing discrimination took place" is on "September 4-8,1989 and continuing." The Complaint's main allegation is that the Respondents have instituted "an age requirement that the age: must be no older than 33 years old." A fair reading of the complaint is that the 1. most recent or continuing discrimination" alleged is the maintenance of the hiring age limit.

6. In determining what issues are fairly pled by an administrative civil rights complaint taken to hearing, it should be borne in mind that this is:

an administrative proceeding foundationed upon a legislative enactment designed more to implement broad public policy than to adjudicate differences between private parties . . . [T]echnical rules of pleading have no application in an administrative proceeding. . . "[T]he key to pleading in an administrative process is nothing more nor less than opportunity to prepare and defend. And deficiencies in any pleading in that field may be cured by motion for more specific statement.

...

If [the individual] does not request [a continuance to meet the new issues] and elects instead to proceed with the hearing, he waives the claim of surprise. He may not subsequently challenge issues actually litigated; actual notice and adequate opportunity to cure surprise [by requesting a continuance] are all he is entitled to.

B. Schwartz, Administrative Law 285-86 § 6.5 (1984).

8. Neither a motion for more specific statement, as allowed by Iowa Code Section 17A.12(d), nor a motion for continuance was made by Respondents. The objection as to inadequate notice of the continuing violation is overruled.

Respondents' Exhibit AA:

9. The Complainant objected to the admission of the Commission's case summary and probable cause recommendation, Respondents' Exhibit AA, on the grounds of relevance. (Tr. at 668). The summary and recommendation is relevant for the purpose of establishing the bare facts that an investigation was conducted and that a recommendation was made by the investigator as required by law. See Iowa Code § 601A.15(3)(a). Although relevant for these purposes, it should be noted that neither the Commission nor the Administrative Law Judge are in any way bound to follow the recommendation, but are required to make their decision based on evidence in the record and matters officially noticed. See Iowa Code § 17A.12(8). The objection as to relevancy of Respondents' Exhibit AA is overruled.

Respondents' Exhibit CC:

10. The Complainant objected to the admission of Respondents' Exhibit CC, which consists of the transcript of the investigator's taped interviews with James Montz, Vaughn Brua, Gordon Forsyth, Paul Farber and Ben Yarrington, on the grounds of relevance. (Tr. at 677). The Respondents initially argued that Exhibit CC was relevant because it demonstrated that "Mr. Montz did not level with Ms. Hall during her investigation of this case and that because of that... her recommendation of probable cause is flawed..... it [also] goes to [Mr. Montz' credibility." (Tr. at 678). The Respondents subsequently decided that "the value of examining the factual accuracy of Ms. Hall's case summary and recommendation would be limited and I'm not going to do it." The Respondents also elected not to pursue questioning of Ms. Hall with respect to Mr. Montz' credibility. (Tr. at 680). Nonetheless, these interviews contain information relevant to the hiring process, liability, and the Respondents' bona fide occupational qualification defense. Under these circumstances, therefore, the objection as to relevancy is overruled.

Respondents' Exhibits BB and FF.

11. The Complainant also objected to Respondents' Exhibits BB and FF on the grounds of relevancy. (Tr. at 682, 806). Exhibit BB is a form which verifies that this case was cross filed with the Equal Opportunity Employment Commission, the agency which enforces the Age Discrimination in Employment Act (ADEA). This exhibit was offered solely as a predicate to Respondents" Exhibit FF. (Tr. at 683). Therefore, its relevancy is tied to the relevancy of Exhibit FF. If Exhibit FF is not relevant to this case, neither is Exhibit BB.

12. Exhibit FF is an Equal Opportunity Employment Commission (EEOC) post-investigation determination, dated April 20,1991, indicating that "the evidence obtained during the investigation does not establish a violation of the [federal Age Discrimination in Employment Act]." Respondents asserted that Exhibit FF was offered with respect to their bona fide occupational qualification defense and the analytical framework for determining whether an age qualification is a BFOQ for a particular position. (Tr. at 683, 807).

13. Exhibit FF makes no mention, however, of any BFOQ analysis. It simply states that "[i]t is not unlawful under the ADEA for an employer which is a State..... (or) an agency or instrumentality of a State to fail or refuse to hire any individual because of age when such action is taken with respect to employment as a law enforcement officer." This statement paraphrases a specific, temporary, statutory exemption, 29 U.S.C. § 623(i), in the ADEA for law enforcement officer positions which was enacted in 1986. Age Discrimination in Employment Act Amendments of 1096, Pub. L. No. 99-592, § 3(a), 100 Stat. 3342 (cited in 4 H. Eglit, Age Discrimination, App F-8 n.7 (1992). The provision will be automatically repealed on December 31, 1993. Id. at § 7(a).

14. Given this specific exemption for law enforcement officers, there was no reason for the EEOC to analyze Estherville's age requirement under the ADEA's BFOQ exemption which is set forth at 29 U.S.C. Section 623 (f)(1). It should be noted that the ADEA's temporary exemption for law enforcement officer positions does not control the result under the Iowa Civil Rights Act as the ADEA does not pre-empt the Act or other state laws which offer greater protection against age discrimination than is offered by the AEA. Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989); 3 H. Eglit, Age Discrimination § 17.15 (1992).

15. Exhibits BB and FF do not have "any tendency to make the existence of any fact that is of consequence to the determination of th[is] action more probable or less probable than it would be without this evidence." Iowa R. Evid. 401 (Definition of "relevant evidence"). The objection is sustained. These exhibits are not relevant evidence and are stricken from the record.

Complainant's Questions Concerning Whether the Respondents Had Waived Minimum Requirements for Applicants:

16. Respondents objected to a line of questions on whether or not Robert Burdorf, (who was eventually hired from the certified list which resulted from the competitive process which Complainant Montz was not permitted to participate in), was allowed to participate in the testing process despite his failure to possess a valid Iowa driver's license at the time he applied. (Tr. at 1099, 1101). These questions were relevant to determining whether, and under what conditions, Respondents were willing to waive or delay fulfillment of the established minimum qualifications by applicants for the police officer position. This information is relevant because Respondents asserted that Complainant Montz failure to meet other minimum requirements, i.e. an Associate of the Arts degree in law enforcement or ILEA certification or the equivalent, were either reasons for not permitting him to compete at the time of his rejection or would have resulted in his rejection in the event he had not been rejected due to his age. Respondents' objection as to relevancy is overruled.

Respondents' Exhibit PP.

17. Respondents' Exhibit PP is a summary of a 1975 case decided by the Florida Supreme Court upholding a maximum age hiring limit established by the Florida Highway Patrol. The plaintiff, an applicant excluded by this limit, asserted he was thereby denied the equal protection of the laws guaranteed by the 14th amendment to the Constitution of the United States. The exhibit was not offered for the validity of the legal opinions stated therein, (Tr. at 1148), but simply to show that the Respondents relied on legal advice and analysis given by the city attorney, which included this summary. (Tr. at 1147, 1148). It is relevant for this limited purpose. The objection is overruled. It should be noted that the question, of whether reliance on legal advice constitutes a valid defense to a discrimination claim under the Iowa Civil Rights Act, will be considered in the conclusions of law.