BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ALICE J. PEYTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

BOARD OF SUPERVISORS OF BUCHANAN COUNTY, Respondent.

CP # 01-90-19528

FINDINGS OF FACT:

I. Jurisdictional and Procedural Facts:

A. Subject Matter Jurisdiction:

1. The complainant alleges, and the record shows, that, throughout her employment in that position, she was paid substantially less as jail administrator than a male predecessor and a male successor. (Notice of Hearing - Complaint). See Findings of Facts Nos. 30-35. Her allegation that this discrepancy was due to her sex brings her complaint within the subject matter jurisdiction of the commission.

1A. Certain statutory prerequisites for hearing, such as filing and investigation of a verified complaint, probable cause finding, attempted conciliation, and determination to bypass conciliation have been met as admitted by Respondent. (Request for Admissions; Respondent's Motion for Leave to Amend Admission).

B. Timeliness:

1. Continuing Violation Alleged:

2. Alice Peyton filed her complaint alleging sex discrimination in pay on January 10, 1990. The dates of "most recent or continuing discrimination" given in the complaint are from "June 1984 through October 31, 1989." (Notice of Hearing-Complaint). From this language it is clear that Alice Peyton's complaint alleges a discriminatory practice or policy of a continuing nature which began in June of 1984 and terminated on October 31, 1989. Official notice is taken that January 10, 1990 is seventy-one days after October 31, 1989. Fairness to the parties does not require that they be given an opportunity to contest this fact.

3. Throughout her employment as jail administrator, Peyton's hourly rate was based on recommendations made by the sheriff which were considered by the Board of Supervisors. The ultimate determination of her hourly rate was made by the Board. (Tr. at 26-29, 81-82, 87-91, 296, 298, 195-97, 201, 207, 216-21, 209-14, 277-78, 282-83). The last of these determinations by the Board of Supervisors was made on June 19, 1989. (R. EX. S; Tr. at 29). Wage payments made to her based on these determinations continued through the end of her employment on October 31, 1989, which is less than 180 days prior to the filing of her complaint. (C. EX. 14; Tr. at 53). See Finding of Fact No. 2. Nonetheless, because the last determination of Complainant Peyton's salary by the board occurred more than 180 days prior to the filing of her complaint, the Respondent asserts that the complaint was not timely filed. (Respondent's Brief at 16).

2. Official Notice Taken That Equal Pay Violations Are Continuing in Nature:

4. Official notice is taken of the following facts which are within the specialized knowledge of this agency. Equal pay violations constitute a form of discrimination which is continuing in nature. Each time an employee, because of the employee's sex, receives a paycheck which is less than that a person of the opposite sex would receive, the payment constitutes an act which is a continuation of the original discriminatory pay practice or policy. Although discriminatory pay may be in accordance with past salary determinations, such pay is not merely an effect of the determination. Although the effects of discriminatory pay for an employee, such as a lower standard of living or fewer assets, may continue long after his or her employment with the employer has ended, each such payment during employment represents a present continuing violation. The violation is continuing from the time of initiation of the policy or practice until the time the practice is lawfully terminated or the affected employee, if there is only one employee affected, leaves his or her employment. These facts are not only within the specialized knowledge of this agency, but are also established as a matter of law. See Conclusions of Law Nos. 3-6. Therefore, fairness to the parties does not require that they be given an opportunity to contest these facts.

3. Relatedness of Allegedly Discriminatory Salary Determinations and Wage Payments Shown By the Subject Matter and Frequency of the Violations:

5. In determining whether a continuing violation exists, it is important to ascertain if the allegedly discriminatory wage payments made to the complainant and the hourly rate determinations by the Board are related to each other. An examination of the three factors of subject matter, frequency, and permanence will reveal whether these are related events. See Conclusion of Law No. 9. First, the wage payments made to complainant and the wage determinations are related because they involve the same subject matter or type of discrimination, i.e. unequal pay. Second, both the payments and salary determinations are recurring and not one- time events. They are not in the nature of isolated, complete employment decisions.

4. Permanence: The Complainant Would Not Be Expected to Realize She Was Being Subjected to Sex Discrimination in Pay Until the Appointment of Mark Fettkether As Her Successor:

6. Third, these events are related because, under these facts, there is no degree of permanence evident in the failure to increase Complainant Peyton's wages to that of David Kuhn, her predecessor as jail administrator, which would alert Peyton that she was being subjected to continued sex discrimination. See Conclusion of Law No. 12. Peyton was aware of the lower pay, but was assured by Ralph Kremer, a member of the Board of Supervisors, that she was not being paid as much as Mr. Kuhn because Kuhn had been paid too much. (Tr. at 24, 59, 80). This exchange occurred in the fall of 1984. (Tr. at 80). This would give her no reason to suspect that sex discrimination was the reason for her continued low pay.

7. Peyton had also received her full-time lead jailer position, which was later denominated "jail administrator," as a result of the settlement of a sex discrimination complaint with the Iowa Civil Rights Commission. (R. EX. H; Tr. at 34-35, 87, 178, 183, 228). Ms. Peyton had written the Board in order to apply for a full-time jailer position. The Board informed her that she could not be hired for the position. She asked the supervisors why she could not be hired, since she was qualified due to her part-time employment at the jail. Supervisor Kremer told her, in the presence of the other supervisors, that she would not be hired as a full-time jailer because there were enough women in the jail. Ms. Peyton then filed a complaint with respect to the failure to hire. (Tr. at 18-19). The settlement took place in March or April of 1984. (R. EX. H; Tr. at 18, 73).

8. As part of the settlement, the Buchanan County Board of Supervisors promulgated a "Nondiscrimination Resolution" which was posted at county employee worksites. The Resolution stated, in part, "with respect to all employment. . . and all other terms and conditions of employment, Buchanan County, Iowa will not discriminate on the basis of . . . sex." (R. EX. H). Complainant Peyton was aware of these notices as well as the Equal Opportunity Employer statement in the jail manual. The settlement and the policy statements could reasonably lead Peyton to believe that she would not be subjected to further sex discrimination. (R. EX. H; C. EX. # 13 at 2250.00; Tr. at 20, 38-39).

9. Alice Peyton did not realize that she was being denied equal pay because of her sex until Mark Fettkether, a male, was given the position when she left. (Tr. at 64-65). Fettkether, a deputy sheriff, was already paid substantially more than Peyton. (Tr. at 114, 242). As part of Fettkether's assignment to the jail administrator position, he was promoted from sergeant to lieutenant. His pay was also increased to the equivalent of eighty-two and five- tenths percent of the sheriff's salary or $20,790 by Board action taken on November 6, 1989. This increase in salary and promotion was effective retroactive to October 20, 1989. (C. EX. # 15; Tr. at 59, 224, 262). The percentage of the sheriff's salary initially paid to Fettkether is seven and one half percent greater than the seventy-five percent initially requested for Kuhn on December 31, 1981. (R. EX. 6). It is two and five tenths percent greater than the percentage of the sheriff's salary paid to Kuhn after an increase to eighty percent approved by the Board on August 3, 1982. (C. EX. 6).

10. Given the inherent nature of equal pay violations, and the relatedness of the salary determinations and the wage payments received by Complainant Peyton, it is clear that the violation alleged here is a continuing equal pay violation. This violation did not terminate until the end of Complainant Peyton's employment on October 31, 1989, a date well within the statutory 180 day limitations period. See Finding of Fact No. 3.

C. Buchanan County is a Political Subdivision of the State of Iowa and is the "Employer" of Complainant Peyton:

11. On brief, Respondent Board of Supervisors of Buchanan County has argued that it was not Complainant Peyton's employer. Respondent argues that the charge should have been filed against the sheriff's department. (Respondent's Brief at 9-12). While much of this argument is legal, there are facts which shed light on this issue.

12. As previously noted, Complainant Peyton received her position as jail administrator as the result of a settlement of a discrimination complaint. See Finding of Fact No. 7. As part of that settlement, Gary Schweitzer, chairperson of the Board of Supervisors swore out an affidavit on April 24, 1984. This affidavit confirmed that "Alice Peyton is currently employed by Buchanan County at a rate of pay of $5.00 per hour and is working as lead jailer." (R. EX. H-emphasis added).

13. Official notice is taken that Buchanan County is a political subdivision of the state of Iowa. Fairness to the parties does not require that they be given an opportunity to contest that fact.

14. The Buchanan County Board of Supervisors is the chief governing body of the county, i.e. it is "in charge of the county's operation". (Tr. at 194). The Board has a direct supervisory role over county government. (Tr. at 209).

15. As part of that role, the Board either approves or modifies the annual budget requests of departments, including the sheriff's department. (Tr. at 81-82, 208). A single line item in department budget requests encompasses an aggregate amount for all salaries to be paid by the department. (Tr. at 86-87, 203-04, 216).

16. In addition, the Board makes the ultimate determination with respect to specific salary changes for individual employees of the various departments. (R. EX. A, G, I, L-S; C. EX. 15; Tr. at 26-27, 29, 88-92, 99, 196-97, 203-04, 205-06, 213, 218-20, 221-22, 224-25, 262, 277-78, 261, 282). It has frequently rejected or reduced salary increase requests from the sheriff's department and other departments, including some requests made by or on behalf of Complainant Peyton. (R. EX. N, O; Tr. at 28-29, 90-91, 201, 205-06, 214, 219, 221-22, 277-78, 282-83, 296, 298).

17. The Board has also asked Peyton to conduct a salary survey. (Tr. at 28, 278-80). Complainant Peyton brought to the Board's attention that jailers under her supervision, who were covered by a union contract, would surpass her salary once contract raises came into effect. In response, the Board asked her to conduct a survey of jail administrator's salaries for counties of similar size, with jail populations of similar size, in the northeast section of the state. (Tr. at 28). Peyton conducted such a survey, of seven to nine counties, which found that the lowest paid jail administrator in these other counties earned $20,600. (Tr. at 29). The Board's response was to laugh and inform Peyton that there was no way they were going to pay her this much money. (Tr. at 28-29).

18. The Board also makes the final decision in regard to other employment matters such as hirings, promotions, and dismissals. (R. EX. H - Job Description for "lead jailer"; C. EX. 6; Tr. at 40-41, 195-96, 197, 217, 223, 224, 281). Department heads also obtain approval to fill positions from the Board prior to beginning the hiring process. (Tr. at 195). The Board made the final decision to place David Kuhn, Alice Peyton, and Mark Fettkether into the jail administrator position. (R. EX. A, H; Tr. at 197, 217, 223, 224, 262, 276). As previously noted, the Board also enacted an extensive nondiscrimination policy which was applicable to all officers and employees of Buchanan County. See Finding of Fact No. 8.

19. It is true that, with respect to salary changes, hirings and promotions, the Board's role is often a reactive one. That is, the department head recommends that action be taken and the Board makes the final decision. (R. EX. H -Job Description for "lead jailer"; Tr. at 40-41, 195-96, 197, 209-10, 217, 219, 221-24, 281, 296). Official notice is taken that it is a common practice among many large employers, both public and private, for such recommendations to be made by officers at one level of authority which are then ultimately considered, accepted, rejected or modified by those at a higher level of authority. Fairness to the parties does not require that they be given the opportunity to contest this fact. The fact that the Board makes the ultimate determination on these matters, as opposed to the initial recommendation, does not render it any less of an "employer."

20. The Board of Supervisors, as an entity which makes final decisions on hiring, promotions, and salary increases, and sets countywide nondiscrimination employment policies is an "employer." The Board, as the entity which (a) is in charge of the operations of the county, (b) admits Peyton was a county employee as jail administrator, (c) initially received, considered and rejected the application of Alice Peyton for full-time jailer, (d) made the final determination on hiring Alice Peyton as jail administrator, (e) requested, considered, and rejected the results of a salary survey by her on jail administrator positions while she was in that position, and (f) considered recommendations and made the ultimate determinations on her hourly wage, was Alice Peyton's employer. See Findings of Fact Nos. 7, 12, 14-19.

II. Background:

21. Complainant Peyton's employment at the jail began on September 29, 1982 when she was asked to serve as a parttime on-call matron so a female inmate could be searched. (C. EX. # 1, 14; Tr. at 7-8). At this time, Peyton's hours would vary from week to week as she only worked when there were female prisoners. (Tr. at 8, 69, 180). Her wage was $4.00 per hour. (Tr. at 10).

22. Peyton began her service as a jail employee under David Kuhn, the first jail administrator for Buchanan County. (Tr. at 7-8, 167-68, 170). Kuhn's employment with the county had been recommended by Sheriff David L. Herrick and approved by the Board of Supervisors by January 1982. (R. EX. 6; Tr. at 170). Herrick resigned effective January 1, 1984. (Tr. at 180). He was replaced by Sheriff Joel Dryer, who held the office from January 19, 1984 to November 1984. (Tr. at 165). Dryer was sheriff at the time Complainant Peyton became jail administrator. (Tr. at 25). Sheriff Dryer was succeeded by Sheriff Leonard Davis, in 1984, who was still sheriff as of the date of hearing. (Tr. at 256).

23. Complainant Peyton applied for two new full-time jailer positions which were filled in March of 1983. Although she was not hired, a male, Mike Donohoe, and a female, Sandy Briggs, were. (Tr. at 16, 178-79).

24. Peyton continued to work on an on-call basis until Mike Donohoe was terminated approximately two to four weeks after his hire. (Tr. at 16, 69-70). At that time, Complainant Peyton began to work full-time, by taking over the hours of Mr. Donohoe. (Tr. at 69, 71). She again applied for the full-time jailer position. (Tr. at 18). It was at this time she was told by the Board that she could not have the position because there were enough women in the jail. See Finding of Fact No. 7.

25. As previously noted, Ms. Peyton filed a sex discrimination complaint concerning this failure to hire which was settled in March 1984. See Finding of Fact No. 7. After she filed this complaint, her hours were reduced from 40 hours per week to one day (8 hours) per week allegedly in retaliation for filing of the complaint. Therefore, she also filed a retaliation complaint. (Tr. at 19). This complaint was also settled. (Tr. at 20).

26. David Kuhn, the jail administrator, was terminated in August 1983, allegedly because he assisted Complainant Peyton with her sex discrimination complaint. (Tr. at 19, 71, 76, 146-47, 178). This termination led to a successful effort by the Commission and Kuhn to obtain a court injunction against the Buchanan County Board of Supervisors and Sheriff David L. Herrick. A settlement was subsequently effected. Through these means, Kuhn obtained back pay and reinstatement in his position. (R. EX. A; Tr. at 19-20, 76, 180). Kuhn subsequently resigned in February or March of 1984 and took other employment. (Tr. at 20, 181).

27. Alice Peyton became "lead jailer" or "jail administrator" in March or April of 1984. See Finding of Fact No. 7. During the course of her employment in the position formerly held by David Kuhn, Peyton's title changed from "lead jailer" or "head jailer" to "chief jailer" to "jail administrator." The title change was made from "lead jailer" or "head jailer" to "chief jailer" because the complainant was teased about the other title. (Tr. at 21, 87-88). The title change from "chief jailer" to "jail administrator", effective August 1, 1986, reflected that Peyton was an administrator, with the same responsibilities she had as "chief jailer". (R. EX. A, P). To avoid confusion, her title will be referred to as "jail administrator" for the entire time in that position.

28. For a period from David Kuhn's resignation until shortly after Alice Peyton's assignment to the jail administrator position, sheriff's deputy Hansel was assigned to perform the jail administrative duties. This period did not exceed two months. In actuality, many of these duties were performed by or with the assistance of Peyton. Hansel's time in this position was not successful. He was eventually reassigned to road patrol where he could do less harm. (Tr. at 74, 78, 181-83).

29. Peyton left her employment effective October 31, 1989 to take a higher paying position as dispatcher in Black Hawk County. (C. EX. 14; Tr. at 53). As previously noted, deputy sheriff Mark Fettkether was assigned to her former position as jail administrator. See Finding of Fact No. 9.