RALPH W. PHILLIPS, JR., COMPLAINANT

VS.

HEYL TRUCK LINES, INC., RESPONDENT

CONCLUSIONS OF LAW

1. The complaint, CP #03-85-12793, was timely filed, processed and the issues are properly before the Hearing Officer and ultimately before the Commission.

2. Heyl Truck Lines, Inc. is an "employer" and "person" as defined in Iowa Code §601A.2(2) and (5) (1985) and is therefore subject to Iowa Code §601A.6 and does not fall under any of the exceptions of §601A.6(5). The applicable statutory provision is as follows:

1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire ... for employment ... any applicant for employment ... because of the age of such applicant...

3. The United States Supreme Court set out the basic allocation of burden and order of presentation of proof in a case alleging discriminatory treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1093, 67 L.Ed. 2d 207, 215 (1981), the Court summarized that burden and order from McDonnell as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 5 FEP Cases, at 969. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804, 5 FEP Cases at 907.

This basic allocation of burdens and order of presentation of proof was adopted by the Iowa Supreme Court in Linn Cooperative Oil Co.v. Quigley, 305 N.W.2d 729, 733 (Iowa 1981).

4. The complainant carries the initial burden of offering evidence adequate to create an inference that actions by a respondent were based on a discriminatory criterion which is illegal under the law, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843 (1977). In evaluating the evidence to determine whether the complainant has succeeded in establishing that inference, which is referred to as a .prima facie" case, the Commission and the Iowa Court have relied on McDonnell Douglas. The criteria established in McDonnell Douglas, however, were specific to a qualified applicant of a protected class who applied for a job and was rejected despite the qualification. Since then the Supreme Court has made it clear that the McDonnell Douglas criteria were to be neither "rigid, mechanized, or ritualistic." Furnco Const. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943 (1978). Courts have been flexible in adopting the criteria to other types of cases.

5. In cases of failure to hire, a prima facie case can be established by proving the following:

a. Complainant was a member of a class protected under the statute;

b. complainant applied for and was qualified for an available position;

c. respondent failed to hire complainant despite the qualifications;

d. after the rejection, the position remained open and the employer continued to seek applicants with similar qualifications.

In the case at issue, Phillips was approximately 49 years of age and therefore a member of a protected class. He applied for the position of driver. He was not hired. Under "b" above, "qualified for the job" is a necessary element of the prima facie case. In the case at issue, Complainant has failed to prove that he was qualified. Even, if the record would now indicate that he was qualified in February 1985 when he applied for the position, Heyl Truck Lines could not have known that he was qualified by the information which Complainant provided on his application form.

If any element of the prima facie case fails, then the Complainant will not prevail under the disparate treatment theory of discrimination set out in McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 802 (1973).

It is noted that Heyl did, in fact, hire 7 employees, 4 of which were hired after Phillips was rejected. All four were younger, two had less verifiable experience:

Guenther, born in 1958, WIT certified.

Ginn, born in 1954, WIT certified.

All except one, Bryant, who had known experience, were hired in non-solo positions.

If Phillips was in fact qualified for a solo position with Heyl, the information provided on his application was inadequate for verification of that qualification. The fact that Heyl hired several younger applicants during the same time period does not in and of itself prove that they intentionally did not hire Phillips because of his age. It was not clear from the evidence that he was applying for a solo position. However, it can be so concluded since he had been driving solo for Illini. Those hired who were younger were placed in non-solo positions. Complainant's testimony on his driver's licenses, his residences, and his driving experience was confusing and less than credible. Although it is true that Heyl could have called Phillips in to question him on his background, there is no evidence that such would be ordinary procedure. There was no evidence that Heyl intentionally refused to hire Phillips because of his age. Heyl's reasons for not hiring Phillips were credible.

It is concluded that Complainant has failed to meet his burden of proof and this case should be dismissed.