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 Continued

VII. Did the Board Articulate, Through the Production of Evidence, Legitimate Non-Discriminatory Reasons for the Difference in Pay Between Complainant Peyton and Lieutenant Mark Fettkether?:

1. Reasons Identified As Legitimate Non-Discriminatory Reasons Have Already Been Considered and Rejected:

109. On brief, Respondent identified several reasons which it described as legitimate, nondiscriminatory reasons for the failure to pay Complainant Peyton what it paid Mark Fettkether in the position of jail administrator. (Respondent's Brief at 7-8). Respondent's argument that these all should be viewed legitimate, nondiscriminatory reasons for the action was based on the erroneous premise that "the fact that [Peyton] was paid less than her male predecessor and her male successor" was, by itself, sufficient to establish a prima facie case. See Conclusion of Law No. 31, 33.

110. All, but the three reasons set forth below, dealt with asserted differences in authority and autonomy between Fettkether and Peyton. Such reasons were directed toward the elements of the prima facie case, i.e. did the jobs require substantially equal skill, effort, and responsibility? Those reasons have already been considered and rejected. See Findings of Fact Nos. 81-98.

2. Fettkether's Prior Salary History:

111. The first reason set forth by Respondent was that the Respondent took Fettkether's prior salary history into consideration in determining his salary. Respondent's Brief at 8. Sheriff Davis testified that Fettkether was given a raise and promotion to Lieutenant at the time of his assignment to jail administrator for two reasons. First, because these actions would ensure that the change in assignment from a road position to a jail position would not be seen as a demotion by the law enforcement community. Second, this change would help ensure that Fettkether would earn approximately as much as he would if he had remained a sergeant and under the bargaining agreement. (Tr. at 261- 62).

112. In a sense, therefore, this reason was articulated with respect to the sheriff through the production of evidence in the record. There is no evidence, however, that the Respondent Board of Supervisors relied on such salary history in approving Fettkether's promotion and salary increase.

113. For reasons discussed in the conclusions of law, prior salary history alone may not constitute a legitimate reason for a difference in pay. This is particularly true when the evidence indicates, as it does here, that a law enforcement background is not necessarily predictive of success as a jail administrator. See Findings of Fact Nos. 28, 84. See Conclusion of Law No. 57.

3. Recommendation By Complainant Peyton:

114. The second reason suggested by Respondent was that the selection of Fettkether and, by implication, his higher pay, was justified because he was recommended for the position by Peyton. (Respondent's Brief at 9). Peyton, at the request of the sheriff, recommended Fettkether and others for the position. See Finding of Fact No. 82. However, she made the recommendations without regard to the salaries currently earned by these individuals. (Tr. at 115). There is no evidence that she made any recommendation with respect to salaries of her possible successors. Again, there is no evidence that the Respondent Board relied on such recommendation in giving its approval.

4. Complaint Peyton's Pay Was Initially Set at an Hourly Rate As Part of the Settlement of Her Civil Rights Complaint:

115. The third reason set forth on brief is that Peyton's pay as jail administrator was initially set at an hourly rate as part of the settlement of her complaint alleging a discriminatory failure to hire. (Respondent's Brief at 9). For reasons set forth in the conclusions of law, this is not a legitimate reason for failure to provide equal pay. See Conclusion of Law No. 58. Also, this reason does not address the failure to provide Complainant Peyton with equal pay after her job became substantially equal to Kuhn's.

VIII. Ruling In the Alternative: Respondent's Salary History and Peyton Recommendation Reasons for the Difference in Pay Between Complainant Peyton and Lieutenant Mark Fettkether Are Pretexts for Discrimination:

116. For three separate and independent reasons, it appears that the Respondent's asserted reliance on Fettkether's past salary history and on Peyton's recommendation of Fettkether are pretexts for discrimination.

117. First, a strong inference of sex discrimination is created by the showing that a female was paid less than both her male predecessor and male successor for work which was substantially equal in skill, effort, and responsibility, and performed under similar conditions. This inference may still be relied upon in determining that the Respondent's reasons are pretexts for discrimination. See Conclusion of Law No. 63.

118. Second, the hire of Fettkether was not consistent with the averred policy of the Respondent Board of Supervisors throughout the Complainant's employment. This policy was that the Buchanan County jail administrator position was worth neither what Kuhn had been paid or what the salary survey indicated was paid jail administrators in similar counties. See Findings of Fact Nos. 17, 33, 102. The Board rejected the sheriff's proposed raises for Peyton which would have resulted in salaries far smaller than those given to Kuhn or Fettkether. See Finding of Fact No. 33. There is no evidence that the value of the position to the county had increased at the time of Fettkether's assignment to the position. Yet, it approved a promotion and salary increase for Fettkether upon his taking the position. See Finding of Fact No. 9. If the Board actually made its decisions based on the value of the position to the county, as it had communicated to Peyton, and there was no sex discrimination involved, it seems unlikely that it would approve the placement of Fettkether in the position at the salary he was given simply because of his prior salary history.

119. The record suggests an alternative may have been available. The evidence in the record suggests that, when Buchanan County hired its first jail administrator, Mr. Kuhn, it had accepted applications for the position, considered them, and made a selection. (R. EX. F; Tr. at 170). During the interim after Kuhn's resignation, Deputy Hansel was assigned to administer the jail. See Finding of Fact No. 28. It may have been possible to temporarily assign Fettkether to the jail, while seeking a new jail administrator at Peyton's salary. This assumes, of course, that someone with adequate experience and training could be found to take the position at Peyton's salary.

120. Third, it has already been noted that there is no evidence that the Board relied on Peyton's recommendation of Fettkether in making its salary decision with respect to him. In any event, the assertion that the Board would give significant weight to Peyton's recommendation in approving Fettkether's salary, when it gave no weight to her prior salary survey recommendation, is implausible.

120A. In light of the strong inferences of sex discrimination shown by the prima facie case, the failure to articulate some reasons asserted on brief, the illegitimate or discriminatory nature of other reasons, and the disbelief of yet other reasons, Peyton and the Commission have established sex discrimination in pay with respect to the complainant.

IX. Remedies:

A. Back Pay:

121. The highest paid comparable employee should be used when determining back pay. See Conclusion of Law No. 67. Therefore, back pay should be determined by subtracting Complainant's combined regular pay and overtime for the period from July 1, 1985 (when her duties became substantially equal to Kuhn's) to October 31, 1989 (her date of termination) from what she would have earned if she had been paid 82.5% of the sheriff's salary during that period:

* Takes into account only Buchanan county earnings and 82.5% of sheriff's salary for 10 months of the year.

** Difference will vary from results in Complainant's Exhibit 17 which failed to subtract both her regular and overtime earnings. The subtraction of gross earnings was what was intended to be shown. (Tr. at 63-64). This will also vary from what is shown in Finding of Fact No. 35 as here the pay is established at 82.5% of the sheriff's salary, not 80%. Also, back pay is provided for only one-half of 1985.

(C. EX. # 16, 17). See Finding of Fact No. 35.

122. The TOTAL NET BACK PAY due Complainant Peyton for the period from July 1, 1985, by which time her job had become substantially equal to that of Kuhn, until October 31, 1985, the end of her employment, is: [$3582.68 + $7442.88 + $4711.03 + $4817.14 + $2580.64] = $23134.37.

123. The back pay ends as of the date of Complainant's last day of employment here as Complainant has not alleged or proven that she was constructively discharged. See Conclusion of Law No. 69. The Commission and Respondent have stipulated that constructive discharge is not an issue here. (Prehearing Conference Order).

B. Emotional Distress:

124. All of the evidence in the record on the issue of emotional distress in this case supports the conclusion that Complainant Peyton suffered emotional distress as a result of the sex discrimination in pay practiced against her. There is absolutely no evidence to the contrary. Peyton is only required to show that she suffered emotional distress by the greater weight of the evidence. See Conclusion of Law No. 83. Reasonable minds confronted with this evidence, however, could only reach the conclusion that emotional distress had been sustained by Complainant Peyton.

125. Complainant Peyton credibly testified as to her reaction upon finding out her male successor was to be paid at an annual salary of $20,790 or 82.5% of the sheriff's salary:

I was very angry. I felt I'd been slapped in the face by the supervisors, had been made a laughingstock. They paid my--the administrator prior to me being a male, had paid him a considerable amount more than what I was getting in wages. And when I asked them, you know, why I couldn't be paid that much, they said they were paying him too much. They couldn't see it, through all the years I worked for them, to give me a raise, my qualifications and the expertise job I was doing in the jail, and they bring someone in who is another male and pay him twice what I was making, I was just devastated by it.

(Tr. at 59).

126. Ms. Peyton also described how she felt when she was filing the complaint:

I was very upset. I was mad. I felt that the board had made a laughingstock out of me. That they had gotten away with it because they paid me what they wanted to pay me. I did an excellent job in the jail. I gave it 100 percent every time, and I just felt that they were laughing at me.

(Tr. at 65).

127. Complainant Peyton's tone of voice and demeanor at the time of testifying about her feelings also demonstrated that she had been angered and upset by the discrimination inflicted upon her. This supported the credibility of her testimony. Her testimony on this issue was credible, plausible, and internally consistent.

128. It should be noted that, earlier in her employment, Peyton had become convinced that it was futile to ask that her salary be made a percentage of the sheriff's, as Kuhn's was, because the Respondent Board of Supervisors had told her that she would not be paid as much as Kuhn because he had been paid too much. (Tr. at 25). The Board had laughed at her when she gave them the jail administrator salary survey which they had requested. See Finding of Fact No. 17.

129. It is within the specialized knowledge of this Commission that, while it is not presumed to occur, emotional distress resulting from discrimination is often suffered by the victims of discrimination. It is hardly surprising that persons who discover they have been denied equal pay or other employment benefits due to discrimination suffer upset or anger or other forms of emotional distress as a consequence. Official notice is taken of these facts. Fairness to the parties does not require that they be given the opportunity to contest these facts.

130. The economic loss suffered by Peyton due to sex discrimination has already been noted. See Finding of Fact No. 122. Such loss is often seen as circumstantial evidence of emotional distress. See Conclusion of Law No. 86.

131. The Complainant here suffered emotional distress. Although her testimony was in the past tense, her demeanor made it clear that some of the upset and anger resulting from the discrimination were still present at the time of hearing, two and one half years after she realized that she had been denied equal pay due to her sex. Given the duration and intensity of the distress, an award in the sum of two thousand dollars ($2000.00) is full, reasonable, and adequate compensation for the distress sustained by Complainant Peyton.

X. Credibility:

132. On the whole, Complainant Peyton's testimony was credible, plausible, internally consistent and consistent with the greater weight of the evidence with respect to material issues in the case. Her demeanor was appropriate throughout the hearing. Her recollection on certain issues, such as who she recommended to replace her to Sheriff Davis, seemed to be clearer than that of other witnesses.

133. John McSweeney was an employee of the Iowa Department of Corrections with approximately 21 years of experience. He had inspected jails for the eight year period of 1984 through most of 1991 inclusive. (Tr. at 117-18). From 1986 to 1991, he inspected the Buchanan County jail. (Tr. at 118, 119). He came to know Complainant Peyton in her capacity as jail administrator. (Tr. at 119). His experience, knowledge, and expertise concerning jail administration and his inspections of the Buchanan County jail established that his testimony was credible.

134. Paul Pint, Brian Jackson, Jack Straw, and Sheriff Davis were credible witnesses. Complainant Peyton's clearer recollection with respect to her recommendations as to her replacement has already been noted.

135. Former sheriff Joel Dryer was a credible witness with respect to events that occurred while he was sheriff. The controversy in his testimony with respect to Kuhn's authority under Sheriff Herrick has already been noted in the record. See Findings of Fact No. 44-47. It appears that the discrepancy between Dryer's testimony that physical renovation of the jail ended under Kuhn and Peyton's supervision of further renovation simply reflects his lack of knowledge of the further renovations. See Finding of Fact No. 58.

136. The testimony in some respects of supervisors Ralph Kremer, Leo Donnelly and Gary Schweitzer is questionable due to their poor memories of various events, particularly the failure to recall Peyton's inquiry as to why she was not paid in the same amount or manner as Kuhn. (Tr. at 199-200, 213, 219-20). Their testimony that sex played no role in their determination of Peyton's salary is contrary to the greater weight of the evidence. See Finding of Fact No. 100.