ANN M. REDIES, Complainant,

VS.

BUMPER-TO-BUMPER and FAUSER OIL COMPANY, INC. Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Ann Redies complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (1985). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met, i.e.. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code S 601A.15 (1989). See Finding of Fact No. 2.

2. Ms. Redies complaint is also within the subject matter jurisdiction of the Commission as the allegation that the Respondents failed to promote her to the position of Assistant Manager due to her sex falls within the statutory prohibition against unfair employment practices. Iowa Code S 601A.6 (1985). "It shall be a ... discriminatory practice for any person to refuse to hire ... or to otherwise discriminate in employment against any applicant . . . or employee because of the ... sex ... of such applicant or employee." Id.

Order and Allocation of Proof:

3. The burden of proof or "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this proceeding is on the complainant to persuade the finder of fact that she was not promoted into the Assistant Manager position because of her sex. Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981).

4. Although Federal court decisions applying Federal anti- discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829,831 (Iowa 1978), they are often relied on as persuasive authority in these cases. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company V. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

5. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (11973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293 (Iowa 1982), is inapplicable. Price-Waterhouse v. Hopkins, U.S., 57 L.W. 4469, 4481 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

6. In this case, there is direct and circumstantial evidence in the record to the effect that the Complainant's and other cashier-clerks' sex was a factor in the decision to not hire within. See Findings of Fact Nos. 18-21, 24-25, 3337, 38-39. The inquiry, however, does not end there, for the defenses of the respondent must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25,105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

7. In this case there is also a finding that the customer relations criterion was also part of the reason for the decision to not hire within the Oelwein store. This criterion was found to be, in part, a legitimate motivating actor in the decision. See Findings of Fact 37, 41. "When . . . an employer considers both gender and legitimate factors at the time of making a decision, that decision was 'because of 'sex." Price-Waterhouse v. Hopkins, U.S. , 57 L.W. 4469, 4473 (1989). When such a legitimate factor is present, the employer may offer the defense, as the Respondents have here, that "even if (they) had not taken gender into account, (they) would have come to the same decision regarding a particular person." Id.

8. This defense is an affirmative defense. Id. at 4474. The Respondents bear the burden of persuading the finder of fact by a preponderance of the evidence that "it would have made the same decision even if it had not taken the plaintiff's gender into account." Id. & 4478. A finding of liability can be avoided by the Respondents only if they meet this burden of proof. Id. at 4478.

[T]he employer should be able to present some objective evidence as to its probable decision in the absence of an impermissible motive. Moreover, proving "that the same decision would have been justified ... is not the same as proving that the same decision would have been made." ... An employer may not, in other words prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision. Finally, an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated only in part by a legitimate reason. . . . The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.

Price-Waterhouse v. Hopkins, U.S. , 57 L.W. 4469, 4476 (1 989)(italics added).

9. The Findings of Fact demonstrate not only that the Respondent failed to meet it's burden of proof in regard to the one legitimate, in part, factor actually considered by the Respondents, customer relations, but the Respondents did not show that the decision would have been justified based on the factors of supervisory experience and the Cedar Falls incident. See Findings of Fact Nos. 41, 44-46, 51, 53. Even if those two factors had been shown to justify a decision to not promote the Complainant, the Respondent could not escape liability as they were not actually considered at the time the decision to not hire within the Oelwein store was made. Price- Waterhouse v. Hopkins, U.S. , 57 L.W. 4469, 4476 (1989).

Equal Pay:

10. In determining whether the Iowa Civil Rights Act's prohibition against discrimination on the basis of sex in employment has been violated through pay differentials based on sex, regulations promulgated and cases decided under the Equal Pay Act of 1963 may be cited as persuasive, but not controlling, authorities. Reference to such authorities has been made in at least one past Commission decision. Kathy Quakenbush, 2 Iowa Civil Rights Commission Case Reports 19, 22 (1978). One way for a Complainant to establish a prima facie case of sex discrimination in pay is to show "that an employer pays different wages to employees of opposite sexes for equal work on jobs requiring equal skill, effort, and responsibility and are performed under similar working conditions." 29 C.F.R. Section 1620.27(c).

11.

What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. [T]he broad remedial purpose of the law must be taken into consideration. The terms constitute separate tests, each of which must be met in order for the equal pay standard to apply. It should be kept in mind that "equal" does not mean "identical." Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. On the other hand, substantial differences, such as those customarily associated with differences in wage levels when the jobs are performed by persons of one sex only, will ordinarily demonstrate an inequality as between the jobs justifying differences in pay.

29 C.F.R. Section 1620.14.

12. "Responsibility is concerned with degree of accountability required in the performance of the job, with emphasis on the importance of job obligation." 29 C.F.R. Section 1620.17. An example of a situation where difference in responsibility may justify a pay differential occurs where a sales clerk, who is "authorized and required to determine whether to accept payment for purchases by personal checks of customers," is given higher pay than other sales clerks who do not have this responsibility. Id.

13. In accordance with the example cited above, the Assistant Manager's additional duties in regard to refunds and customer complaints or problems may indicate a significant difference in responsibility between him and the cashier-clerks. As noted in the findings of fact, there is not sufficient evidence in the record to show whether or not these duties, as well the sales route duties, are significantly different in terms of responsibility than those performed by the Complainant. See Findings of Fact No. 61-63. Under these circumstances, the Complainant did not establish a prima facie case of sex discrimination in pay

Remedies:

14. Violation of Iowa Code section 601 A.6 having been established, and no affirmative defense having been shown, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 601A.15(8) (1989). In formulating these measures, the Commission does not merely provide a remedy for this specific dispute, but corrects broader patterns of behavior which constitute the practice of discrimination. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). "An appropriate remedial order should close off 'untraveled roads' to the illicit end and not "only the worn one."' Id. at 771.

Damages for Emotional Distress:

15. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages for emotional distress. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code S 601 A. 15(8)).

16. In this context, where emotional distress is "an item of damage," damages for emotional distress are treated as a component of actual damages. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983); See Blessum v. Howard County Board, 245 N.W.2d 836, 844-45 (Iowa 1980). Therefore, the requirements for proof of damages for emotional distress here should not be confused with proof of the elements of the cause of action for intentional infliction of emotional distress, e.g. outrageous conduct, distress must be severe. Niblo v. Parr Manufacturing, Inc., No. 88-1531, slip op. at 14-15 (Iowa August 16, 1989); Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983).

17. In discrimination cases, an award of damages for emotional distress can be made in the absence of "evidence of economic or financial loss, or medical evidence of mental or emotional impairment." Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974)(housing discrimination case). "Humiliation can be inferred from the circumstances as well as established by the testimony." Id. (quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836,845 (Iowa 1980)). Even slight testimony of emotional distress, when combined with evidence of circumstances which would be expected to result in emotional distress, can be sufficient 0)). sufficient to show the existence of distress. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983). While these cases did not arise under the Iowa Civil Rights Act, it would be anomalous to mandate more stringent requirements for proof of emotional distress in cases under the Act than is required in the usual case where emotional distress is an item of damage. Also, such stringent requirements would violate the legislative command that the Act "be construed broadly to effectuate its purposes." Iowa Code S 601 A. 18 (1989).

18. When the evidence demonstrates that the complainant has suffered emotional distress proximately caused by discrimination, an award of damages to compensate for this distress is appropriate. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1 984)(citing Nichols, Iowa's Law Prohibiting Disability Discrimination in Employment: An Overview, 32 Drake L. Rev. 273, 301 (1982- 83)). In this case, the testimony of the complainant and the evidence of the surrounding circumstances, particularly her leaving her employment in response to the discriminatory failure to promote her, demonstrate that the Complainant did suffer some compensable emotional distress. See Findings of Fact Nos. 64-65.

19. Because compensatory damage awards for mental distress are designed to compensate a victim of discrimination for an intangible injury, determining the amount to be awarded for that injury is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages." . - .

Computing the dollar amount to be awarded is a function of the finder of fact. Juries and judges have been making such decisions for years without minimuns or maximums, based on the facts of the case [and] the evidence presented on the issue of mental distress.

2 Kentucky Commission on Human Rights, Damages for Embarassment and Humiliation in Discrimination Cases 24- 29 (1982)(quoting Randall v. Cowlitz Amusements, 76 P.2d 1017 (Wash. 1938)).

20. The amount of damages for emotional distress will depend on the facts and circumstances of each individual case. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Past Commission decisions have referred to the consideration of various factors in awarding damages for emotional distress. Id. Upon examination of the Commission's cases, and the authorities cited therein, that the two primary determinants of the amount awarded for damages of emotional distress are the severity of the distress and the duration of the distress. See Cheri Dacy, 7 Iowa Civil Rights Commission Case Reports 17,24- 25 (1985); Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984).

21. The testimony and circumstances set forth in the record show that the Complainant suffered mild to moderate emotional distress for a short period of time. See Findings of Fact Nos. 64-65. Even mild emotional distress can and should be compensated. See Niblo v. Parr Manufacturing, Inc., No. 88-1531, slip op. at 14 (Iowa August 16, 1989). Given the severity and duration of the distress shown by the record, the Commission concludes that an award of seven hundred fifty dollars ($750.00) in damages for emotional distress is full, reasonable, and appropriate compensation for her loss.

Back Pay:

22. For the time she was still employed with the Respondents, the Complainant should receive back pay based on the amount she would have received if she had been promoted into the Assistant Manager position less the amount she actually earned during that period. Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975)(reproduced at B. Schlei & P. Grossman, Employment Discrimination Law 613 (2nd ed. 1983)); See Iowa Code S 601A.15(8)(a)(1) (1989). Unless the Complainant is constructively discharged, the back pay period terminates when the Complainant leaves her employment and is no longer eligible for promotion. Muller v. United States Steel Cor ., 509 F.2d 923 (10 Cir. 1975)(reproduced at B. Schlei & P. Grossman, Employment Discrimination Law 613 (2nd ed. 1983)). See B. Schlei & P. Grossman, Employment Discrimination Law 1432-33 (2nd ed. 1983).

23. Constructive discharge exists when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation. . . to find constructive discharge the fact finder must conclude that "working conditions would have been so difficult or unpleasant" that a reasonable person in the employee's position would be compelled to resign.

First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission, 315 N-W.2d 83, 87 (Iowa 1982).

23A. "Evidence of purposeful discrimination alone does not suffice to prove constructive discharge. Consequently, failure to promote, in and of itself, does not establish constructive discharge." B. Schlei & P. Grossman, Employment Discrimination Law: 1983-85 Cumulative Supplement 161 (1987). See Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975)(reproduced at B. Schlei & P. Grossman, Employment Discrimination Law 613 (2nd ed. 1983)). This rule would appear to have the approval of the Iowa Supreme Court. First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission, 315 N.W.2d 83, 88 (Iowa 1982)(citing with approval three cases, including Muller, where no constructive discharge was found where there was a failure to promote). In light of the authorities cited, the Complainant was not constructively discharged and the back pay period ends as of her last day of employment.

Interest:

24. Interest begins to run on an award of damages from the date of the commencement of the action at the rate of ten percent per annum. Iowa Code S 535.3 (1989). In this case, interest should be paid on damages from the time of the filing of the complaint on May 21, 1987.

Attorneys Fees:

25. The Complainant having prevailed, she is entitled to an award of reasonable attorney's fees. Iowa Code S 601 A. 15(8)(1989). If the parties cannot stipulate to the amount of these fees, they should be determined at a seperate hearing. Ayala v. Center Line, Inc., 415 N.W.2d 603, 606 (Iowa 1987). The Commission must expressly retain jurisdiction of the case in order to determine the actual amount of attorney's fees to which Complainant Redies is entitled to under this order and to enter a subsequent order awarding these fees. City of Des Moines Police Department v. Iowa Civil Rights Commission, 343 N.W.2d 836, 839 (Iowa 1984).