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



VS.

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



75. As noted above, the second alternative to age discrimination is "to develop testing criteria which would accurately measure intrinsic individual attributes related to the job, such as specific physical abilities required to do the job, and thereby test both applicants and incumbents to measure their ability to perform the job." See Finding of Fact No. 73. This alternative was suggested in the Avolio article, (R. EX. MM), in 1984. "In our estimation, such reliance on [functional age has resulted in the neglect of] appropriate assessment strategy-designing measures that assess 'intrinsic' attributes directly related to job performance." [T]he concept of functional level warrants some attention, but only if it is directly related to job performance." (R. EX. MM at 101).

76. Dr. Muchinsky agreed that "what the authors (of Respondents' Exhibit MM) are saying . . . is functional age has not been a useful approach. Therefore it is possible that one could look for intrinsic individual attributes to be used in the assessment of individuals' capacity to meet job performance criteria." Dr. Muchinsky agreed that the authors considered this approach to be preferable to either a functional age or chronological age surrogate. (Tr. at 876).

77. This approach is essentially what was followed in the 1987 Davis study relied on by Dr. Moe. Davis & Dotson at 180. As part of their test development, a criterion-related validity study, conducted in accordance with the federal Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et. seq., was performed to ensure that the tests developed and administered to law enforcement officers were job related tests. Id. As part of this validity study, a complete job analysis was done for the position of law enforcement officer. Id. This "entailed interviews of incumbents, observation of on-the-job behaviors, and in some instances, survey tools designed to elicit additional occupational information." Id. This analysis utilized what Professor Muchinsky characterized as the work oriented approach in that it focused on tasks performed on the job. Id. (Tr. at 880).

78. Official notice is taken of the facts set forth in those sections of the federal Uniform Guidelines on Employee Selection Procedures which are set forth below. Fairness to the parties does not require that they be giver the opportunity to contest these facts:

1. A criterion related validity study consists of "empirical data demonstrating that the selection procedure [i.e. test] is predictive of or significantly correlated with important elements of job performance." 29 C.F.R. §§ 1607.5.B; 1607.16.F.

2. In order to meet the standards set by the Guidelines, it was necessary for Dotson and Davis to demonstrate that the relationship between the selection procedure scores and criterion measures of job performance was statistically significant at the 0.05 level of significance, which means that it is sufficiently high as to have a probability of no more than one (1) in twenty (20) to have occurred by chance." 29 C.F.R. § 1607.14.B (3)(4). [Note: Dotson and Davis refer to this as a "0.95 confidence limit" in their article at 180.]

3. A job analysis is defined as "a detailed statement of work behaviors and other information relevant to the job." 29 C.F.R. § 1607.16.K. Required documentation for a job analysis conducted with reference to a criterion related validity study includes:

A description of the procedure used to analyze the job . . . or to review the job information should be provided. (Essential). Where a review of job information results in criteria which may be used without a full job analysis, the basis for the selection of these criteria should be provided. (Essential). Where a job analysis is required a complete description of the work behavior(s) or work outcome(s) and measures of their criticality or importance should be provided. (Essential). The report should describe the basis on which the behaviors) or outcome(s) were determined to be critical or important, such as the proportion of time spent on the respective behaviors, their level of difficulty, their frequency of performance, the consequences of error or other appropriate factors. (Essential).

29 C.F.R. § 1607.15.B (3). Similarly complex requirements are set forth for documentation of job analyses conducted for content and construct validity studies. 29 C.F.R. § 1607.15.C (3); 1607.15.D (4).

79. The tests developed by Davis and Dotson included, for applicants:

(a) such tests as: (a) "1.5 mile run, pull-ups, situps, a one-repetition-of-maximum bench press, and standing long jump; and (b) estimated body composition [percentage of fat] via skin fold caliper measurements." Davis & Dotson at 180.

80. Tests for incumbents included criterion tasks such as: "(a) lug wrench torque test; (b) body drag for 15.24 m[eters]; (c) full-size sedan push for 15.24 m; and (d) a foot pursuit course simulating a chase of a fleeing felon." Id. A 1.5 mile run was also included. Id. at 181. Over eighty percent of officers responding to a survey on these tests for incumbents agreed "that the test battery was a fair and accurate representation of the physical performance requirements of law enforcement." Id. at 180-81.

81. The tests developed by Davis and Dotson, as well as other physical tests, may be utilized to test for strength, flexibility and endurance required to perform the tasks listed in Finding of Fact No. 59. (CP. EX. # 78; Tr.. at 366-69, 382-84, 392-93). Other police tests which measure job related criteria include handgrip strength, bent-knee situps, obstacle courses, agility runs, seated stretch test, 100 pound drag-lift, automobile rescue and stretcher simulation tests . (CP. EX. 78; Tr. at 467-71). Complainant's Exhibit # 78 includes, in addition to the Davis and Dotson article, a medical journal article, and excerpts from a consultant's report, setting forth in detail the tests used by various police departments and their relatedness to the tasks set forth in Finding of Fact No. 59. See Klinzing, The Physical Fitness Status of Police Officers, 20 Journal of Sports Medicine 29196 (1980)(hereinafter referred to as "Klinzing"); Foss, Final Report: Recommended Job Related Physical Performance Tests for the State Police Trooper Class (Michigan) (1975)(hereinafter referred to as "Foss").

82. The preponderance of evidence in the record does not support the proposition that it is highly impractical to select qualified candidates over the age of 33 through the use of these tests. Indeed, the preponderance of the evidence demonstrates that, due to the general sedentary nature of police work, police work in itself will be inadequate to maintain the physical fitness necessary to perform the occasional strenuous physical demands required by the job. Davis & Dotson at 182-83; Klinzing at 29495; Foss at 7. The public safety will be best served not by age discrimination in hiring, but by a program of initial applicant testing, periodic incumbent testing, and physical fitness training for incumbent police officers. Davis & Dotson at 182-84; Klinzing at 294-95.

83. It should be noted that there is no credible evidence to suggest that the Respondents' maximum age hiring limitation has ever been subjected to the kind of analysis and validation studies which the police testing programs set forth above have been subjected to. Dr. Muchinsky neither conducted any such study or job analysis nor knew of anyone who did. (Tr. at 880-81). Commission Chairman Huntzinger's testimony, to the effect that a job analysis (which would be one step in a validation study under the Uniform Guidelines) was conducted of the police position based on the Civil Service Commission's own experience and knowledge and the input of the administration of the department, is not believable for two reasons. First, Huntzinger testified that this job analysis was a totally verbal, unwritten, and undocumented analysis. (Tr. at 1199-1200). No job analysis worthy of the name would be totally undocumented. See Findings of Fact Nos. 77-78. (Tr. at 880-81). Second, City Attorney Gordon Forsyth, who would certainly be expected to know of any such job analysis, was totally unaware of any formal job analysis of the police officer position by anyone during his entire 18 year term as City Attorney. (Tr. at 823).

Respondents Have Proven Neither An Increased Risk That Individuals Between the Ages of 33 and 40 Would Sustain Heart Disease or A Heart Attack Nor That It Would Be Highly Impractical to Detect, Assess, and Control Any Such Increased Risk After the Age of
40 Through Individual Testing:

84. The argument of Respondents (to the extent it is concerned with ability to do the job) is essentially that, as people age past 40, heart and other chronic diseases begin to make their appearance. There is, therefore, an increased risk that police officers past 40 will develop these diseases, particularly, heart disease. It is impossible to predict through any single medical test or even the best physical examination which officers will contract heart disease or which will have heart attacks. Aging will also cause a reduction in cardiac output, lung capacity and aerobic capacity. Police officers may need to rely on a sudden burst of aerobic capacity when performing such duties as rescuing citizens or combatting criminals. This combination of an increased risk of heart disease and of lowered capacity may result in a heart attack or other disability which would prevent an officer from carrying out these duties and would thereby endanger the public safety. Since the only acceptable risk of such an event occurring is zero, ("the absolute public safety factor") the Respondents' mandatory hiring age limit is justified. Respondents' Post Trial Brief at 910, 22-25.

85. There are three errors in Respondents' argument. First, Respondents have not established an increased risk of heart disease, heart attack or other chronic disease for individuals between the ages of 33 and 40. Second, Respondents have not proven that the age 33 hiring limit actually effectuates the goal of reducing the risk of heart disease, heart attack, or other chronic illness on the Estherville police force. Third, Respondents have not established that the increased risk of heart disease, heart attack, or other chronic disease cannot be reliably and practically detected, assessed and controlled through individual testing.

86. In order to ascertain whether the Respondents have established a BFOQ defense, it is necessary to determine (1) whether there is an increased risk of heart disease, heart attack, or other chronic disease among those excluded by the maximum age hiring limit as compared to those not excluded, and, if so, (2) whether it is highly impractical for this increased risk of heart disease, heart attack, or other chronic disease to be detected or controlled through individual testing. See Conclusions of Law Nos. 93,102-03.

87. In order to ascertain whether it is highly impractical to detect, assess and control this risk through testing, it is necessary for the Respondents to show that their practices (the maximum age hiring limit and retention of officers beyond this age) either control or reduce the risk of heart disease, heart attack, or other chronic disease in the police force. Therefore, it is necessary to determine (A) what is the incidence or probability of heart diseases, heart attack or other chronic disease resulting in the police force if the maximum age hiring limit is retained without any collateral changes; and (B) what is the incidence or probability of these illnesses if the maximum age hiring limit is eliminated and no other changes are made. If Respondents have proven that the incidence or probability of these illnesses presented in (B) is greater than the extent of the risk presented in (A), then Respondents must also prove that there is no practical, reliable way to detect, assess, and control the risk of heart disease or other chronic disease through testing which is at least as effective as the maximum age hiring limit. See Conclusions of Law Nos. 93,102-03.

88. There is no evidence in the record demonstrating any increased risk for heart disease, heart attack or other chronic disease for persons between the maximum hiring cutoff age of 33 and age 40. There is no evidence of the incidence of heart disease, heart attack or other chronic disease at any point within or throughout this age range. Nor is there evidence of the percentages of those persons within that age range who have heart disease which is (a) detectable through the presence of symptoms, (b) which is asymptomatic and is detectable through testing, or (c) which is undetectable. Thus, insofar as the maximum age hiring limit excludes candidates aged from 33 to 40, a group for which there is no evidence that its members possess the trait of an increased risk of heart disease, heart attack or other chronic disease, Respondents have not established any BFOQ defense based on such increased risk in these candidates.

89. It is established that "[f]or most men, chronic diseases [including heart disease] start appearing in and after the fourth decade of life, meaning between 40 and 50 they start showing up."(Tr.at 551). However, because of the paucity of statistical evidence in the record on this issue, it is impossible to make the necessary comparisons of the incidence or probability of heart disease, heart attack, or other chronic disease in the police force with and without the maximum age hiring limit. There is no evidence in the record of when such disease appears in females. There is no evidence in the record of the incidence of heart disease or other chronic disease in the general population at any point within or throughout the age range from 40 to 60.

90. It has been shown that fifty percent of all people who die past age 60 do have evidence of ischemic heart disease. (Tr. at 550). This population, however, undoubtedly includes many people older than the endpoint for the normal occupational life span (and, in Iowa, the mandatory retirement age) for police officers of age 65. See Finding of Fact No. 72. This statistic also provides no guidance as to what proportion of this population had heart disease prior to age 65.

91. Nor is there evidence in the record of the percentages of those persons, within the age range of 40 to 65, who have heart disease or other chronic disease which is (a) detectable through the presence of symptoms, (b) which is asymptomatic and is detectable through testing, or (c) which is undetectable.

92. Although it is undisputed that "law enforcement personnel have a higher than expected incidence of heart disease and resulting mortality," Klinzing at 201, the record reflects neither the incidence of heart disease and resulting mortality among police officers nor the incidence of heart disease and resulting mortality among the general population in the age range which would encompass the normal occupational life span of a police officer,

93. What evidence there is suggests that the Respondents' hiring and retention policies, which prohibit the hiring of candidates of age 33 or over, while permitting police officers to continue to work not only to age 55, but to the mandatory retirement age of 65, cannot yield the minimum risk sought by Respondents:

One issue that has been raised regarding Bona Fide Occupational Qualification for any specific age is the incidence and probability of cardiovascular disease and the occurrence a morbid event in that specific particular age group. To establish a nearly absolute minimum risk, insuring that no fire fighter or police officer will succumb to a heart attack, a mandatory retirement age of 35 would be required. On the basis of data reported by the National Fire Protection Agency for deaths in the fire service, no other age restriction would guarantee that any particular age group or classification is immune from this disease.

Davis & Dotson at 183. See Findings of Fact Nos. 26, 46, 63.

94. The failure of the maximum age hiring limit to reduce or control the risk of heart disease or other chronic disease in the Estherville police force is demonstrated by Respondent's experience with respect to such disabilities. In the ten year period from May 1, 1981 to May 1, 1991, five police officers had to take disability retirement, while zero officers retired under the voluntary retirement provisions of Iowa Code 411.6(l)(a), i.e. 22 years of service and attainment of age 55. (R. EX. K; L; Tr. at 499, 501). No officer has taken regular retirement since July 6, 1979. (R. EX. K). By way of comparison, during the same ten year period, the remaining departments within the city had four individuals who retired early or terminated their employment due to disability,while thirteen employees took regular retirement. (R. EX. K; Tr. at 502).

95. Four out of the five police officers who took disability retirement were under the age of 33 at time of hire. (R. EX. L). Four out of these five officers were disabled due to lung or heart disabilities. (Tr. at 929, 931, 934, 935, 936). Three of these four were under 33 at time of hire. One was 35. (Tr. at 930, 933, 934, 936, 937). The following chart shows the age of police officers at hire, their age at time of disability retirement, and the nature of their disability for this ten year period:

(R. EX. K, L, N, 0, P, Q, R, T; Tr. at 929-31, 933-37).

96. On August 26, 1989, over ten years after the initiation of the Respondents' maximum age hiring limit, and within a week after the last of. the five disability retirements listed above had taken place, the Civil Service Commission noted that "the incidence [of Estherville Policemen being retired under disability benefits] appears higher than normal." (R. EX. L, S).

97. There is no evidence in the record which would support a conclusion that any increased risk of heart disease which may exist for male police officers past the age of 40 will not equally affect male police officers in that age range who were initially hired prior to the age of 33. Therefore, it would appear that whatever threat to the public safety is presented by this increased risk of heart or other chronic disease in these officers will not be diminished by Respondents' maximum hiring age limit. A police officer hired before the age of 33 may choose to not retire until sometime between the date he is eligible to receive his fully vested retirement pension (which could not be earlier than age 55 for any police officer) and the mandatory retirement age of 65. Therefore, officers who make this choice will be serving with the increased risk of heart or other chronic disease for a period of 15 to 25 years. Whatever threat is presented to the public safety by this increased risk will also be present throughout this period. The Respondents' maximum age hiring limit will have no effect on the increased risk of heart disease or other chronic disease among these officers or on the concomitant threat to public safety.

98. At the same time the Civil Service Commission recognized that the Estherville police force had a high incidence of disability retirements, it also unanimously voted to require medical examinations of police officer candidates prior to appointment and periodic physical examinations of incumbent police officers by doctors designated by the City. (R. EX. S). Although police candidates are examined, the decision to have periodic physical examinations of police officers has not been implemented. (Tr. at 547,1082). The present policies and practices of the City of Estherville provide for no monitoring or testing of the health or fitness of incumbent police officers. The Respondents have no fitness program and rely on no means of detecting health or fitness problems which may affect police officers and the public safety other than the visual observations of the police chief. (Tr. at 1082, 1114-15).

99. Articles in refereed authoritative medical journals which have advocated individual testing and fitness programs have recognized the same public safety concerns which are offered as a rationale by Respondents for the maximum age hiring limit. Their advocacy of testing is based on their conclusion that these concerns are best met through testing. Davis & Dotson at 183-84. Klinzing at 291.

100.

Citizen safety may at times depend upon the physical fitness of police officers. Not only is the citizen better protected by well-conditioned police officers, but the officer's personal well-being will often depend upon his physical capabilities. A trend toward reduced sick and disability time has been shown when police officers are physically fit. When an officer pursues a suspect or runs to assist a victim, the ability to successfully accomplish this task demands adequate cardiorespiratory endurance, speed and agility. The stress placed upon the cardiovascular and respiratory systems can be severe.

Klinzing at 291.

102.

Evidence suggest that the incidence of heart disease in public safety personnel is a mirror of the population-that they serve. [F]ire and police personnel possess a number of the readily identifiable risk factors that predispose one to accelerated cardiovascular disease.

Cigarette smoking ... was claimed as a habit of the majority of fire fighters, while in the population at large, less than half of adult men smoke. Risk factors have been isolated that accurately predict the likelihood of developing a disease. Effort should be directed to controlling these risk factors through lifestyle intervention programs and adequate screening.

If municipalities were truly interested in the issue of safety, programs of these types would have long since been employed. When the issue of Bona Fide Occupational Qualification is raised as a defense, numerous test data are displayed to show the general decline in performance with advancing age. Should not the same tests used to show changes in physiological characteristics be employed to determine who is capable of performing a job at any age?

Through periodic medical examinations and multi-phasic screening employing blood pressure measurement and control, blood chemistry serum analysis and other cost effective measures, significant mechanisms exist for the early detection and correction of risk factors for cardiovascular disease. The use of a graded exercise treadmill has been shown to be a powerful predictor of cardiovascular disease. These tests need not be administered to everyone, but may be used judiciously on those individuals presenting primary risk factors.Aging alone does not cause coronary artery disease, just as advancing age does not imply the loss of requisite levels of physical fitness.

Davis & Dotson at 183-84. See also Hagberg & Yerg, Pulmonary Function In Young and Older Athletes and Untrained Men, 65 Journal of Applied Physiology 101, 103 (1988)(hereinafter "Hagberg & Yerg")(vital capacity a "strong predictor of cardiovascular . . . mortality and cardiac failure.")(CP. EX. 78).

103. The five major risk factors for heart disease are smoking, elevated blood pressure, diabetes, elevated cholesterol, and family history of heart disease.(Tr.at 185).Other factors are age,overweight, diet, alcohol intake and environmental factors. (Tr. at 384, 550, 588-90).

104. While Dr. Hranac's testimony emphasized the relationship between the diminishment with age in heart and lung function, the need for short bursts of aerobic capacity in police work, and heart disease, evidence in the record indicates that the rate of diminishment of heart and lung function and aerobic capacity can be reduced by almost one half through a fitness program of regular exercise. (CP. EX. 78; Tr. at 549-50, 554-557, 562, 373-74, 380,384-85). Davis & Dotson at 181, 183. Hagberg & Yerg at 103. Pollock, Effect of Age and Training on Aerobic Capacity of Master Athletes, 62 Journal of Applied Physiology 725 (1987).

105. With respect to testing per se, Dr. Hranac's emphasis is on the inability of tests to accurately and reliably predict either heart disease or heart attack. (Tr. at 573). There are two problems with this position. First, this opinion is clearly contrary to that expressed in the medical journals cited above. See Finding of Fact No. 102. On the one hand, Dr. Hranac is not board certified in any specialty, and has been selected by the City of Estherville to conduct police candidate medical examinations. (R. EX. S; Tr. at 547, 584). On the other hand, the medical journals are refereed, i.e. articles submitted are reviewed by others with recognized medical expertise in the field discussed by the article prior to allowing their publication. (Tr. at 437-38). There is nothing to indicate that the authors have any connection with the parties. The articles were also relied on by Dr. Moe, who has a Ph.D. in exercise physiology and is board certified in the practice of general internal medicine (Tr. at 361). Although there are legitimate differences of opinion in medicine, it is very difficult to believe that these journals would refer to methods for predicting heart disease unless there were such predictors and, therefore, the journals' position has been adopted as a finding of fact.

106. The second problem with Dr. Hranac's emphasis on prediction, arises out of his testimony implying that the test or examination can be given only once and should be capable of predicting whether a person without the disease process will contract it in two, five, or ten years. (Tr.at 573). Neither this testimony nor other evidence demonstrates that present policies of (1) initial candidate testing, (2) enforcing the maximum age hiring limit and (3) doing essentially nothing to prevent or detect or assess the risk of heart disease, among incumbent police officers over age 40, are superior, with respect to protecting the public, to an alternative where (1) initial screening tests or examinations are given to candidates in order to detect or to assess the risk of (not predict) heart or other chronic disease; (2) fitness (or lifestyle intervention) programs are instituted to maintain the aerobic capacity and health of police officers; and (3) periodic examinations and appropriate tests are given to police officers to detect or assess the risk of heart or other chronic disease. Based on the evidence, it would appear the latter program would better serve Respondents' public safety goals than their present practices. See Findings of Fact Nos. 93106.

Laches:

107. Respondents did not raise this issue until the filing of their brief. Respondents Brief at 59-61. Although there has been a passage of time since the filing of the complaint, Respondents have established neither an unreasonable delay in the processing of this complaint, nor any prejudice to Respondents arising from such delay.

Damages: Respondents Have Not Proven That, If Complainant Montz Had Not Been Rejected Due to His Age, He Ultimately Would Have Been Rejected Due to His Failure to Have Qualifications Equivalent to an Associate of the Arts Degree in Law Enforcement.

108. As previously noted, one of the Respondents' affirmative defenses in this case is that Complainant Montz would not have been hired because he lacks ILEA certification, an Associate of the Arts degree in Law Enforcement or the equivalent. See Findings of Fact Nos. 22, 31.

109. The phrase "or equivalent" in Respondent's minimum standard requiring certification by the ILEA or having "a two year Associate Degree in Law Enforcement or equivalent" refers to the equivalent of the Associate of Arts degree in law enforcement, and not to the equivalent of ILEA certification. (CP. EX. 55; R. EX. J; Tr. at 971, 1133). This is so because, although the contrary is implied in Respondents' "Initial Application," there is no equivalent of ILEA certification. (CP. EX. 53; R. EX. CC -Interview with Brua, Forsyth and Farber at 19; Tr. at 199-201, 20406, 333, 971, 1133). Therefore, in order to be qualified for the position of Estherville police officer, Complainant Wontz must either have an ILEA certification, or an Associate of Arts degree in law enforcement or the equivalent of an Associate of Arts degree in law enforcement.

110. It is undisputed that Complainant Montz had neither an ILEA certification nor an Associate of the Arts degree in law enforcement. (CP. EX. # 53; Tr. at 182-84, 196). The only question remaining then is whether the Respondents have proven that he did not have the equivalent of an Associate of Arts degree in law enforcement.

111. Newly hired police officers without ILEA certification must be sent to either a 10 week ILEA course, an ILEA five week short course or be given a written test to obtain certification. (CP. EX. # 84; Tr. at 282-84, 334, 773, 970-71, 970,1028,1067,1069).

112. A key reason why Respondents seek candidates with ILEA certification or AA degree or equivalent is cost. (Tr. at 283, 1008-09). The cost of ILEA training is not incurred with candidates who are already certified. Those who have an AA degree in police science or criminal justice or who have completed law enforcement training which is commensurate with the basic training required in Iowa are eligible to take the 5 week short course, as opposed to the 10 week course. (R. EX. DD; Tr. at 205, 773, 970). The savings to the City of Estherville resulting from taking the short course is in the $4,000 to $5,000 range. (Tr. at 1008-009).

113. Even greater savings are possible with respect to those who, like the complainant, have out-of-state certification. The City would save another $4,000 to $5000 by hiring Montz, who would be eligible to achieve certification through taking and passing a written examination within one year of their hire. (R. EX. DD at § 3.1, 3.9; Tr. at 205, 970, 1008-09, 1070). Even if Complainant Montz had failed part of the examination, he would only have been required to "attend and satisfactorily complete academy training covering those areas of deficiency within one year of hire." (R. EX. DD at § 3.9). Thus, insofar as cost savings are concerned, it is clear that certification at an out-of-state law enforcement academy is not only the equivalent of, but is superior to an AA degree.

114. Respondents have no written standards defining what constitutes the equivalent of an AA degree. (Tr. at 333). In at least one case, however, Respondents have treated certification at an out-of state law enforcement academy as being equivalent to an AA degree. The Respondents stated their position on this matter in their response of March 14, 1991 to the Commission's interrogatories, which were sworn to by Vaughn Brua:

One individual who graduated from the Atlanta Police Academy was allowed to test in February, 1988. The Atlanta Police Academy's course was deemed equivalent because it extended twenty seven full weeks and the Iowa Law Enforcement Academy's program is ten weeks in duration.

(CP. EX. # 84).

115. Mr. Brua, who is Estherville City Clerk as well as Civil Service Commission Secretary, was initially called to testify by the Iowa Civil Rights Commission's representative on May 15, 1991, the second day of the hearing. (CP. EX. # 84; Tr. at 256). At that time, he testified that Charles Molienhour was permitted, in 1988, to proceed to Civil Service Commission testing, although he possessed neither ILEA certification nor a degree in police science or criminal justice, because he had the equivalent in the form of certification by the law enforcement academy in Atlanta, Georgia. (Tr. at 285-87). This admission is consistent with the answers to interrogatories and is accepted as a credible and accurate statement of the facts.

116. Due to scheduling difficulties with other witnesses, Mr. Brua was not called for examination by the Respondents until the next day, May 16th. (Tr. at 359-60, 478). Mr. Brua was reminded that he was still under oath. (Tr. at 478). In the space of a day, a dramatic transformation occurred in Respondents' position. Suddenly, there is no longer a determination that Molienhour's out-of- state certification is the equivalent of.the Respondent's AA degree or ILEA requirements. Rather, he, has failed to meet those exact standards. Molienhour becomes "the only one individual who did not meet the standards" and was allowed to test during all the years that Brua was city clerk and secretary to the Civil Service Commission. (Tr. at. 482). When asked by counsel for Respondents, "How did that happen?", Brua responded:

I have no explanation for why it happened. A mistake is what it amounts to. It just slipped through, I guess. I wish it hadn't happened, but it didn't-or it did happen.

(Tr. at 482).

117. This patently false testimony casts serious doubt not only on Mr. Brua's credibility, but also on what remaining evidence there is (all of it testimonial) which might support Respondents' position that complainant's out-of-state certification is not the equivalent of an AA degree in law enforcement.

118. Civil Service Commission chairman Huntzinger, for example, testified that, after taking the tests, Mollenhour was not selected for the certified list due to failure to meet the ILEA and AA degree requirements. (Tr. at 1162, 1174-75). There is no other testimony and no documentation confirming that this was the reason Mollenhour was not placed on the certified list. He also testified that Montz did not meet the AA degree equivalency requirements. (Tr. at 1 135). Huntzinger's erratic, inconsistent, and less than credible testimony, on the closely related issue of whether Respondents actually relied on the asserted failure to meet ILEA certification and AA degree equivalency requirements at the time of his rejection, has already been noted. See Findings of Fact Nos. 33, 39-41. Huntzinger's testimony on the issues of AA degree equivalency with respect to Molienhour and Montz is also not credible.

119. While testifying that Montz was not qualified for the position of patrol officer because he did not have ILEA certification or an Associate of Arts degree, Chief Farber also acknowledged that he did not investigate to determine whether Montz had the equivalent of them. (Tr. at 967, 969). He also acknowledged that he had no access to Complainant Montz' medical records, professional references, educational background, or his certification and training. (Tr. at 968). Under these circumstances Farber's testimony is entitled to little weight.

120. Farber also suggested that the two year AA degree equivalency would not be met by the combination of certification at an out of state, three years of police officer experience and training courses in the military. (Tr. at 976). This testimony is difficult to credit in light of the equivalency assigned to Mr. Molienhour based on his out-of-state law enforcement academy certification. See Findings of Fact Nos. 114115. It is also difficult to credit with respect to the previously cited ILEA rule which recognizes the equivalency of AA degrees in police science or criminal justice and satisfactory completion of training at other states' law enforcement academies when determining eligibility for the ILEA short course. See Finding of Fact No. 113. (R. EX. DD - 501 I.A.C. § 3.4.).

122. Respondent suggests on brief that "It would be absurd, of course, for anyone to argue that work experience or courses taken outside the academic confines of a college or university constitute the equivalent of a college degree when applying for a job. If that were the case, virtually everyone in our society could make such an equivalency claim and render such a standard meaningless." Respondents' Brief at 3.

123. There are at least two flaws in this argument. First, is not true that "virtually everyone in our society" could make a credible claim to work experience equivalency to an AA degree in criminal justice or police science. Respondents concede on brief that Lee Hollatz and Robert Burdorf were hired from the certified register for which Montz applied. Respondents' Brief at 4. Now if Hollatz did not have his associate of arts degree in criminal justice, and relied on his work experience of 2 1/2 years as a cabinetmaker and 3 1/2 years as a part-time game umpire, he would not have a credible claim to AA degree equivalency. (CP. EX. # 3). If Burdorf did not have his Bachelor of Arts degree in criminal justice, and relied on his paid employment experience of three months as a cook, one year as a lifeguard, and four summers as a doorman, he also would not have a credible claim to such equivalency. (CP. EX. # 4). Complainant Montz, on the other hand, with three years of experience in actually doing the job, would have a credible claim to such equivalency based on work experience alone.

124. Second, it is not "absurd..... to argue that work experience or courses taken outside... a college or university constitute the equivalent of a college degree when applying for a job." It is within the specialized knowledge of this agency, which is exposed to and knowledgeable of the personnel practices of many employers, that this is a common personnel practice, particularly among state government agencies. Official notice is taken of this fact. Fairness to the parties does not require that they be given the opportunity to contest this fact.

125. Complainant Montz' overall qualifications clearly exceed those of Lee Hollatz, who was hired in November of 1989. (Tr. at 981). With an equivalence to Hollatz' AA degree in criminal justice established by Montz' out of state law enforcement certification, Complainant Montz' work experience is obviously more job related than Hollatz. See Findings of Fact Nos.5-6, 8-11, 113-115, 123. There is no evidence of Hollatz having taken any continuing in-service training courses similar to those undertaken by Complainant Montz. See Finding of Fact No. 9. (CP. EX. 3, 53). These include a 40 hour First Responder course which provided instruction for police officers, who are often the first at accident scenes, on how to render medical aid to victims. (Tr. at 88). This function is also performed by the Estherville police. (Tr. at 1000). Neither Montz nor Hollatz had ILEA certification. (Tr. at 1067). See Finding of Fact No. 110.

126. The reasons given by Chief Farber for wanting an AA degree or the equivalent include professionalism, ability to handle course work, better people and communication skills. (Tr. at 981-82). As demonstrated by his experience, references, and his successful completion of numerous courses, Complainant Montz already had these skills and professionalism. (CP. EX. 53).

127. Police Chief Farber also suggested that the only equivalent to an Associate of Arts degree in criminal justice or police science was a Bachelor of Arts or Master of Arts degree in the same subjects. (Tr. at 975). Bachelor of Arts and Master of Arts degrees are not equivalent but higher degrees than the Associate of Arts degree. This testimony does not counter the established fact that the Civil Service Commission found Mollenhour's out of state law enforcement certification to be equivalent. See Finding of Fact Nos. 114-15. Farber agreed that his standards on equivalency were the Civil Service Commission standards. (Tr. at 1071-72).

129. Based on the above findings of fact, the Respondents have not established that Complainant Montz would have been rejected because his qualifications were not equivalent to an Associates of Arts degree in criminal justice or police science.

Compensatory Damages:
Mitigation of Damages and Back Pay:
Mitigation of Damages:

130. Respondents have failed to prove that there were suitable positions which Complainant Montz could have discovered and for which he was qualified. They have also not established that Montz failed to use reasonable care and diligence in searching for a position.

131. Complainant Montz' work search was reason-ably limited to the local area in and around Estherville for several reasons. He initially returned to Estherville, in the summer preceding what he later anticipated would be his permanent move to that city, in order to see his father who was dying from terminal cancer. He promised his father he would return and take care of his mother who was ill with Alzheimer's disease. (Tr. at 51, 236). He moved to Iowa for that specific reason. (Tr. at 229). Prior to his move to Estherville, he had a telephone job interview with the police department in Emmetsburg, Iowa. (Tr. at 54-55, 233). He withdrew his application when he was informed that their department had a residence requirement which mandated that he live within that city. (Tr. at 54-55). It is common for police departments to have such requirements. (Tr. at 234). He withdrew as it was necessary for him to live in Estherville so his mother could be maintained in her own house. Due to her illness, it was necessary that she be kept in familiar surroundings. (Tr. at 230, 233). This situation continued throughout Montz' time in Iowa. (Tr. at 7071).

132. After he moved to Estherville, he had additional reasons for limiting his search to the local area. His wife was employed as a nurses aide at Rosewood Manor and, before that, with Kimberly Health Care as a home health aide. (Tr. at 222, 228). He had also obtained a home and had to maintain it and had his children in school in the area. (Tr. at 236). Neither he nor his wife had ever resided in Minnesota or any other part of Iowa. (Tr. at 228).

133. Complainant Montz did obtain a local job as a stock clerk at Stalls Farm and Home which he stayed in from September 1989 until his return to employment at the Bath, Maine police department in March of 1991. He was still employed at the Bath position as of the date of the hearing. (R. EX. F; Tr. at 1 1).

134. Lee Hollatz was hired as a police officer by the City of Estherville from the certified list for which Montz was not permitted to compete on November 8,1989. (R. EX. F at 17; CP. EX. 85).

135. Complainant Montz continuously looked for local law enforcement jobs, and other jobs that paid better than the position at Stalls, throughout his time in Estherville. There were very limited opportunities. (Tr. at 70, 113-14, 142, 234-35). On March 29, 1990, Complainant Montz applied for the Director of Veterans Affairs position for Emmet County. (R. EX. 1; Tr. at 113). He became one of the final two candidates, but was not hired. (Tr. at 113).

136. Montz also applied for the position of jailer with Emmet County, but was not hired. (Tr. at 235, 699).

137. There is no evidence in the record indicating any other police positions, or any higher paying jobs than Stalls, that were open in the local area between November 1, 1989 and March 1991.

Gross Back Pay and Benefits:

138. The back pay period runs from November 8, 1989, the day Lee Hollatz was hired as an Estherville police officer, to March 1991, when Complainant Montz returned to a higher paying position as police officer in Bath, Maine. Medical and other benefits were comparable to those in Estherville. (Tr. at 127-28). See Findings of Fact Nos. 133-34.

139. The gross back pay for this period, including paid vacation, sick leave, bereavement leave, personal leave, an all other paid leave benefits extended by the City of Estherville is $26,919.07. (CP. EX. # 85).

140. The total of health, life, accident and disability insurance premiums paid by the city for this period are $2302.98. (CP. EX. # 85).

141. The total of other benefits from the city for this period are $373.78. (CP. EX. # 85).

142. The total of gross back pay, premiums and other benefits is $26919.07 + $2302.98 + $373.78 = $29595.83.

Interim Earnings:

143. From November 6, 1989 to July 10, 1990, Complainant Montz earned $9017.30 at Stalls. (R. EX. Z). Over that 35 week period, this would constitute an average of $257.64 per week. On or about December 15,1990,Complainant had a pay raise from $5.10 to $5.30 per hour, a four per cent increase. (R. EX. F; Tr. at 81-82). The interim earnings for the 22 week period from July 10, 1990 to December 15, 1990 are ($257.64 X 22 weeks) = $5668.08. With the four percent increase, the weekly earnings are increased to $267.95 for the 1 1 week period from December 15, 1990 to March 1, 1991. Therefore the earnings for that period are ($267.95 X 1 1 weeks) = $2947.45. Total interim earnings = $9017.30 + $5668.08 + $2947.45 $17,632.83.

144. The net back pay due Complainant Montz is: Gross Back Pay - Interim earnings = Net Back Pay. $29595.83 - $17,632.83 = $11963.00. NET BACK PAY.

Moving Expenses:

145. Moving expenses for the Complainant's return to the police officer position in Bath, Maine are as follows:

(CP. EX. 69; Tr. at 107, 176).

146. It should be noted that the above figure does not include air fare costs of $278.00 for the Complainant's return for the public hearing. These are not moving costs.

Loss on Sale of House:

147. On moving to Estherville, Complainant Montz purchased a house for his family to live in. The house was located next to his mother's residence in order to facilitate taking care of her. Complainant Montz had to do a great deal of interior remodeling in order to make the house fit the needs of his family. (Tr. at 107-08, 231-32). Montz had every intention of living permanently in the house and would have done so if he had been hired as a police officer by the City of Estherville. (Tr. at 109, 233). Because of the Respondents' failure to hire him, he ultimately had to return to his position in Maine. It was therefore necessary for him to sell the house at a loss of $9,000.00. (CP. EX. 69; Tr. at 108-110). But for the Respondents' failure to hire him, he would not have incurred this loss and should be compensated for it.

Emotional Distress:

148. Complainant Montz suffered substantial and serious emotional distress directly as a result of Respondents' refusal to permit him to compete for and ultimate failure to hire him for the position of police officer in Estherville. The distress continued from his rejection on September 22, 1989 until early March of 1991. (Tr. at 68, 70, 622,133).

149. Montz was angered by the rejection letter from Brua, which was received the day after Montz applied. (Tr. at 70, 622). He felt, accurately, that his past police experience, training, military experience and all his other qualifications were ignored due to his age. (Tr. at 70). The rejection was like a slap in the face to Complainant Montz. He just could not believe that these type of practices still existed. (Tr. at 613-14, 622).

150. Complainant Montz was also frustrated, disappointed, and distressed because the rejection meant that, for the foreseeable future in order to support his family, he would still have to perform meaningless, simplistic, menial work with little responsibility, that he hated. (Tr. at 114-115, 614). This was like being:

slapped back in grammar school down in first or second grade, that you had to work for an employer that was right behind you and says, well, basically, for you how to close this door or where to put this piece or thing or how to check this piece of freight in. [A]fter being . . . responsible enough to go out and enforce the laws in Maine and have enough common knowledge and discretion to do that, and then be forced to have to work out there, where your every move was supposedly dictated because they figured you didn't have enough brains to . . . find out where to put this certain box, or being a go-fer because he didn't want to walk out to his truck and put a bag of stuff that he purchased, you would have to take that out and stick it in his truck.

(Tr. at 1 1 4-1 5).

151. Complainant Montz was a dedicated, professional police officer who loved police work. (CP. EX. # 53; Tr. at 117, 607, 615-16). After the rejection, he would see a police officer on the street in Estherville and felt, "it's like somebody wants to--they rip out that part of you." (Tr. at 117).

152. Complainant Montz also went into a period of depression due to his rejection by the City of Estherville. (Tr. at 123,126, 615). This continued until early March of 1991, when he was talking to the Bath Maine police chief mentioning that they had an opening, which was like somebody "open[ing] up the sky and let[ing] sunshine in." (Tr. at 126, 133).

153. Montz' depression manifested itself in a variety of ways. He began drinking more. (Tr. at 123). He would tell his wife, "I hope you aren't disappointed in me." (Tr. at 617). He lost interest in activities such as boy scouts, fishing, hunting and skeet shooting. (Tr. at 123, 623). Before his rejection by Respondents, one of James Montz' favorite activities after work was to go out in their yard with his wife and do yard work together. After the rejection, he did not want to do anything, except talk about how disappointed he was in not getting a position as police officer. (Tr. at 61516).

154. The rejection of Montz also adversely affected his relationship with his son. (Tr. at 238). His son lost respect for him. (Tr. at 238, 252, 617). He would say, "Well, Dad is just a go-fer here" or "works for Bob Stall out there." (Tr. at 116, 616). Although the first problem with the son manifested itself in the summer of 1989, the son's behavior after the rejection included staying out until 1:00 a.m. and being involved with drinking and driving. (Tr. at 115, 140). His son knew that Montz was continuing to try to obtain a law enforcement position and would taunt Montz by pointing out that, if he physically disciplined him, he would report him for child abuse and thus damage his chances for a career. (Tr. at 116, 238, 618). After Montz was rehired as a police officer in Bath, Maine, and the family returned there, his son's behavior and lack of respect ended. (Tr. at 172, 239).

155. There were other stressors in Complainant Montz' life during this time. His father's death affected him. His mother's continuing affliction with Alzheimer's disease was also distressing. (Tr. at 51, 116, 134-139, 625). In the summer of 1989, the absence of his wife, and his failure to obtain a position with the Emmet County Sheriff's Department in the summer of 1989 also caused some distress, but it should be noted that these events, like the death of his father, occurred before his rejection by the Respondents. (R. EX. B; Tr. at 51, 236, 153, 170, 253, 626).

156. It should also be noted that Montz did not miss work or require medical treatment due to his emotional .distress. (Tr. at 164, 166, 172). Evidence was introduced to the effect that he was, in July of 1990, willing to settle for $2000.00 in emotional distress damages. (R. EX. Z; Tr. at 644). This offer was rejected by Respondents. (Tr. at 646). The Commission is in no way bound to awarding this figure which was reached at a time Montz was apparently not represented by counsel. (R. EX. Z). As a lay person without exposure to civil rights law and cases, he would not be expected to have any idea of what would constitute a fair and appropriate amount for his distress. Also, the distress continued for eight months beyond the date of the offer. (Tr. at 126, 133).

157. The Complainant is seeking $70,000 in emotional distress damages. This is far too high under this record. In light of the severity and duration of the distress suffered by Complainant Montz due to the age discrimination which was inflicted upon him by Respondents, an award of ten thousand dollars ($10,000) would be full, reasonable, and appropriate compensation. In making this award, care has been taken to ensure that no award is made for damage caused solely by other sources of distress.

Credibility and Expert Opinions:

158. Based on his calm and credible demeanor and his testimony, which was internally consistent and consistent with the greater weight of the credible evidence on all material issues, Complainant Montz was a credible witness. Respondents made one attack on brief on Complainant's credibility. Respondents asserted that he lied when he told the Commission, during the course of the investigation, that he was qualified for the position as he possessed the equivalent of ILEA certification or an AA degree in law enforcement. Respondents' Brief at 6-7. At one point in the hearing, Respondent conceded that inquiry into this question was not worth pursuing. (Tr. at 680). Nonetheless, since it has been found that Montz was, in fact, qualified, this attack has been defeated. See Finding of Fact No. 125. Furthermore, at the time Montz talked to the investigator he had no reason to believe that Respondents would later claim that he was not qualified. He reasonably believed, based on the Respondents' "Initial Application," which clearly implied, in questions 28 through 30, that there were equivalents to both ILEA certification and the AA degree in law enforcement, that he possessed such equivalents in light of his certification from the Maine State Criminal Justice Academy, his three years as a full time law enforcement officer, his two years as a reserve deputy sheriff and other qualifications. (CP. EX. # 53).

159. Based on their demeanor and internally consistent testimony, Charleen Montz, Carol Leach, and Sheriff Larry Lamack were also credible witnesses. Murlean Hall, who testified by telephone, was also a credible witness.

160. Vaughn Brua's credibility was questionable. At times, he had to be reminded to speak up and to pay close attention to the questions and answers. (Tr. at 479, 493, 494, 538). His demeanor at times was such that he gave the impression that he was either under pressure or wasn't sure of what he was talking about. Also, as previously noted, his testimony of May 16th on associate of the arts degree equivalency was absolutely incredible in light of his prior inconsistent statements and testimony. See Finding of Fact No. 116. Nonetheless, other testimony of his seemed to be credible and was relied on in light of its consistency with the greater weight of the credible evidence or where it constituted an admission.

161. Barry Huntzinger was not a credible witness. Mr. Huntzinger was the one witness who gave the impression that he would say just about anything to win. His testimony is not only erratic and internally inconsistent, it is not consistent with the greater weight of the evidence. See Findings of Fact Nos. 33, 39-41, 83, 118. With few exceptions, his testimony is only relied on when it is background information or is supported by other credible evidence or other indicia of reliability.

162. City Attorney Gordon Forsyth was a credible witness, with some exceptions. His assertion to the effect that he relied on the Bona Fide Occupational Qualification exception in formulating the Respondents' maximum age hiring limit is difficult to credit in light of his repeated admissions that the formulation of this standard is not tied to ability to the job. (R. EX. CC; Tr. at 788, 799-800, 822-23). But this appears to be an error of law rather than evasive testimony. Attorney Forsyth's opinion testimony on legal matters is entitled to no weight as his testimony on legal matters was not offered as expert testimony on age or other discrimination or police matters, but solely to illustrate the Respondents' decision-making process. (Tr. at 828, 830, 831).

163. Dr. Richard Moe was a credible expert witness, whose opinions are entitled to significant weight. Dr. Moe is board certified in the practice of general internal medicine. He also has a Ph.D. in Exercise Physiology. (CP. EX. 70). Exercise physiology is concerned with the effects of exercise or the lack of it on the human body. (Tr. at 364). Since 1985, Dr. Moe has been employed as an independent contractor with the Iowa Methodist Medical Center and is in charge of their executive fitness program. In that program, he works entirely with a clientele who are still in the workforce, administers tests to determine their state of wellness, and makes suggestions on how to improve their fitness. (Tr. at 362-63). He also is medical director for the Maytag Company. Of especial interest for this case is Dr. Moe's work with the Ames Police Department. He does repeated treadmill testing for incumbent officers in order to determine their present fitness level and to ascertain whether or not there is evidence of heart problems. He has also familiarized himself with the physiological demands of police work through reading the literature. (Tr. at 363, 391). His testimony was amply supported by data set forth in empirical studies from the medical literature. (CP. EX. 78).

164. It is simply not significant that, until shortly before the hearing, Dr. Moe was not familiar with the term Bona Fide Occupational Qualification as his testimony was not given as an expert with respect to that term. (Tr. at 434). Respondents' Brief at 47. He ultimately familiarized himself with it and offered, from his medical perspective, an opinion that the Respondent's not-yet-33 hiring limit is not a BFOQ. His opinion on this matter was elicited by respondents and not offered by Complainant or the Commission. (Tr. at 427). His opinion testimony was primarily medical testimony relating to the medical or physiological usefulness and rationality of the Respondents' employment practice and alternatives to such practice. The determination as to whether Respondents has proven that their maximum hiring age limit is a BFOQ is largely a legal question which will be ultimately determined by this Commission, and not by any witness.

165. Nor does the surface contradiction between Dr. Moe's testimony that "one of the minor risk factors is age" and the quotation from the medical text The Heart, which states, in part, "age is the most important Risk-factor for manifest ischemic heart disease," impugn Dr. Moe's credibility. (Tr. at 384, 439). Respondents' Brief at 47. When Dr. Moe's full opinion on age as a risk factor, (Tr. at 384,462-63); Dr. Hranac's full opinion on the same topic, (Tr. at 594-95); and the full quotation are examined, (Tr. at 439), the same ultimate message results: to speak of age as a risk factor is to recognize that if you live long enough, eventually you should die of heart disease. In this context, as Dr. Hranac's testimony indicates, age as a risk factor for a 70 year old person is very important when the 70 year old is compared to a 50 year old. But there is no appreciable difference between the risk for a 35 year old versus a 30 year old, or a 40 year old vs. a 35 year old. (Tr. at 594- 95).

166. Finally, it should be noted that it is not Dr. Moe's testimony that Respondents must look for the physically exceptional, the "Nolan Ryans" of the world. (Tr. at 467). Respondents' Brief at 48. Due to the wide variation in physical ability, which gets wider as people age, Respondents maximum hiring age limit will predictably screen out many physically qualified candidates who are not Nolan Ryans. See Findings of Fact Nos. 70-71.

167. Dr. Robert S. Hranac has been in family practice since 1975, and has been located in Estherville since 1978. He has twice served as chief of the medical staff of the local hospital. (Tr. at 547). He also is selected by Respondents to administer physical examinations to police officer candidates and has done so many times. (R. EX. S; Tr. at 547). He takes approximately 50 hours per year of required continuing education courses, a significant portion of which deal with arthritis, lung, and heart disease. (Tr. at 548). He is not board certified in any specialty. (Tr. at 584).

168. Approximately 40-50% of Dr. Hranac's patient., are elderly, i.e. at age 60 or above, which places many of them at an age greater than the endpoint (age 65) of the occupational life span for police officers in general and certainly beyond the endpoint (age 53) for the police officers leaving the force in Estherville during the decade ending in 1989. (Tr. at 586). See Findings of Fact Nos. 72, 90, 94-96. A significant proportion of his practice consists of consulting to nursing homes. (Tr. at 586). His service to the caretakers of the elderly and extreme aged is recognized by his receipt of the Physician of the Year Award from the Nursing Home Association of Iowa. (Tr. at 547).

169. While much of Dr. Hranac's opinion testimony is credible and entitled to weight, some of it, as has already been noted, is not. See Findings of Fact Nos. 105-06. Dr. Hranac's testimony with respect to aerobic capacity, police work and heart disease and public safety is also reflected in empirical studies submitted by the Complainant. See Findings of Fact Nos. 100, 104. Dr. Hranac's ultimate conclusions with respect to the efficacy of testing program alternatives and favoring the necessity of Respondents' maximum age hiring limit is supported by scant statistical data and no studies and are not accepted. See Findings of Fact Nos. 89-92. Finally, Dr. Hranac's opinion that most people as they age become more rigid in their lifestyle, rigid in their opinions, and more inflexible in their ability to deal with different situations and stresses is not accepted. He cited no data nor specific experiences to support this conclusion and it is, therefore, entitled to no weight. (Tr. at 552).

170. Dr. Paul Muchinsky is a highly qualified industrial psychologist. Industrial psychology is concerned with the application of industrial psychology to the world of work. Dr. Muchinsky's full qualifications are set ' forth in Respondents' Exhibit HH. Dr. Paul Muchinsky possesses a Ph.D. degree in Industrial/Organizational Psychology. He has been a Professor of Industrial and Organizational Psychology at Iowa State University since 1976. He is a Fellow in the American Psychological Association and American Psychological Society and an Accredited Personnel Diplomate with the American Society of Personnel Administration. He is the author of numerous articles in his field and of the best selling undergraduate text on industrial psychology. (R. EX. HH). He has advised police and fire departments, including the Des Moines Fire Department on personnel matters. (Tr. at 841-42). Dr. Muchinsky was paid $1500.00 per 10 hour day for his testimonial services by Respondents. (Tr. at 869).

171. It should be noted that, although Dr. Muchinsky had some familiarity with the hiring criteria and the Estherville Police Department, he neither conducted a job analysis of the patrol officer position nor was aware of one. (Tr. at 844, 880-81). Such a study by an industrial psychologist would normally be undertaken in order to identify actual criteria which are as close as possible to the ultimate criteria as defined below. (Tr. at 880). This deficiency seriously undercuts Muchinsky's opinion that being under the age of 33, a criterion which was not identified as being closely related to ultimate criteria through job analysis, is based on the nature of the occupation. (Tr. at 845).

172. It would be fair to say that Dr. Muchinsky, nonetheless, gave credible opinions on other issues which were helpful to both sides. See Findings of Fact Nos. 62, 74, 76.

173. Some opinions of Dr. Muchinsky are not, however, accepted. Dr. Muchinsky repeatedly opined that setting an upper age limit for patrol officers or one within the age range of 30 to 35 was "reasonable." (Tr. at 845, 846, 855). He also testified that "it is totally fair and reasonable for them to do it the way they are doing it." (Tr. at 862). He further opined that the 33 maximum age cutoff was fair and reasonable. (Tr. at 897).

174. Leaving aside the legal question of whether mere fairness or reasonableness can ever establish a BFOQ, these opinions were substantially undercut on cross-examination. See Conclusions of Law No. 84-86, 101. He explained that in his field the phrase ultimate criterion" applies to "the person's actual capacity to perform the job. . . ." or the ability to do the job in a theoretical state. (Tr. at 878). "Deficient criterion" is defined as "the degree to which the actual criteria used in selecting job applicants, for example, are deficient in representing the ultimate criteria." (Tr. at 878-79). "Error" refers to the extent to which the actual criteria are not related to anything at all. "Bias" .refers to the extent to which something other than the ultimate criteria is being measured. (Tr. at 87879). Dr. Muchinsky then admitted that he did not believe the age of 33 in and of itself was a fair, unbiased, and non erroneous surrogate for other criteria. (Tr. at 891-92).

175. His opinion that a hiring limit somewhere in the age range of 33 to 35 is essential to the safe and efficient performance of the duties of patrol officers in the City of Estherville given the conditions and job structure is also seriously undercut by the lack of any job analysis and is rejected. (Tr. at 898). In addition, it is clear from his testimony that, based on the 1984 Avolio article (R. EX. MM), he believed the only existing alternative to the age hiring limit was a purely functional age measure which had several problems. See Finding of Fact No. 74. The Avolio article recommended a different approach, to look for intrinsic individual attributes to be used in the assessment of individual capacity to meet the job. See Finding of Fact No. 76. There is nothing in the record to indicate that he was aware that Davis & Dotson had, in fact, devised job related tests by 1987 based on this approach. See Finding of Fact No. 77. His lack of awareness of this professionally validated alternative renders this opinion untenable.