SANDRA J. WHALEY, Complainant,
and
IOWA CIVIL RIGHTS COMMISSION,
vs.
CITY OF DES MOINES, Respondent.
CONCLUSIONS OF LAW
lI. Jurisdiction and Procedure:
A. Timeliness:
1. Complainant Sandra Whaley's complaint was timelyfiled within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (now 216.15(11)). See Finding of Fact No. 3. All the statutory prerequisites 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 (now 216.15). See Finding of Fact No. 4.
B. Subject Matter Jurisdiction:
2. Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). Ms. Whaley's complaint is within the subject matter jurisdiction of the Commission as the allegation that the Respondent failed to hire her for the position of Recreation Supervisor because of her sex falls within the statutory prohibition against unfair employment practices which the Commission has the power to hear and determine. Iowa Code SS 601A.6, .15 (now SS 216.6, .15).
II. Official Notice:
3. Official notice was taken of specific facts. See Findings of Fact Nos. 51, 77.
10. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code § 17A.14(4) (1991). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).
Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 160 (1992). Judicial notice may be taken of impartial census statistics. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 769 (Iowa 1971).
III. Stipulations:
4. There are numerous stipulations of fact in this case. A "stipulation" is a "voluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate [the] need for proof." BLACK'S LAW DICTIONARY 1269 (5th ed. 1979). Stipulations as to fact are binding on a court, commission or other adjudicative body when, as in this case, there is an absence of proof that the stipulation was the result of fraud, wrongdoing, misrepresentation or was not in accord with the intent of the parties. In Re Clark's Estate, 131 N.W.2d 138, 142 (Iowa 1970); Burnett v. Poage, 239 Iowa 31, 38, 29 N.W.2d 431 (1948).
IV. Admissions on Brief:
5. There are several allegations made on brief by a party which are binding on the Commission because such allegations are adverse to the party making them. See Findings of Fact Nos. 19, 48-49.
6. When an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded, it binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991).
Maxine Boomgarden, CP # 07-86-14926, slip. op. at 59 (Iowa Civil Rights Comm'n October 12, 1993). Thus, the Commission is bound to take as true the facts admitted by the Respondent which established a prima facie case under the pretext method of proof. See Finding of Fact No. 19.
6. Furthermore:
[T]he Commission must take as true . . . that . . . respondents assert, and are therefore limited to, only the . . . reasons cited on their brief as being their legitimate, non-discriminatory reasons for [their actions toward complainant].
7. This does not mean that any respondent to a charge of discrimination articulates a legitimate non-discriminatory reason merely by identifying it on brief. That must be done through the production of evidence which, assuming it were believed, would set forth a lawful, non-discriminatory reason for the action alleged to be due to discrimination. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 517 (Iowa 1990). Rather, the Respondents' legitimate non- discriminatory reasons are limited to those set forth on brief, because by identifying only certain reasons on brief, the Respondents have admitted that those are the only reasons they may have articulated. The Respondents are bound by that admission. See Larson at 572. This admission is binding on the Commission in its adjudicative capacity and it may, therefore, consider only those reasons so identified on brief. See Id.; Grantham, 257 Iowa at 230-31.
Id., slip. op. at 59-60.
7. Under the above principles, the Commission must take as true that only the reasons set forth on brief are those being offered by Respondent as legitimate, nondiscriminatory reasons for the failure to hire Whaley. This does not mean that such reasons are the true reasons or that merely setting forth such reasons on brief is sufficient to rebut the prima facie case. Rather, under these principles, when using the pretext method of analysis, the Commission is limited to determining whether the Respondent has produced sufficient evidence for the nondiscriminatory reasons given on brief to rebut the prima facie case. The Commission may not speculate as to other possible legitimate, nondiscriminatory reasons not mentioned on brief. See Findings of Fact Nos. 48-49.
V. Respondent's Failure to Raise the Mixed Motive or Same Decision
Defense on Brief or On It's Pleadings Waives the Defense:
8. Respondent has failed to raise the "mixed motive" or "same decision" defense on brief or on in its pleadings. See Findings of Fact Nos. 46-47. This defense may arise "[w]here direct evidence [of discrimination] is presented and the employer suggests other factors [i.e. motives in addition to discrimination] influenced the decision." Landals v. George A. Rolfes Company, 454 N.W.2d 891 (Iowa 1990)(cited in Civil Service Commission v. Iowa Civil Rights Commission, 522 N.W.2d. 82, 88 (Iowa 1994). "[T]he employer [then] has the burden of proving by a preponderance of the evidence that it would have made the same decision even if it had not considered the improper factor." Id. For the reasons stated below, the failure of Respondent to raise this defense on brief or on pleadings constitutes either a waiver of the defense or an admission that it has no mixed motive defense and that the only defenses it has are those which are asserted on brief and in it's pleadings.
9. First, since the Respondent has asserted only certain defenses on brief or in its pleadings, it is limited to those defenses. Cf. Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991)(citing Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)(employer bound to reasons for termination set forth on brief). Larson was an unemployment insurance case. Id. The Court held that an employer was bound by the reasons for termination of an employee which were stated in its brief filed with the Employment Appeal Board. Id. Since the employer had stated that the employee was terminated for inability to do work, a reason which would not disqualify the employee for benefits, it was bound by this statement. Id. Based on this admission, benefits were granted, although the employer attempted to argue that the employee had been terminated for misconduct. Id.
10. Second, the Respondent's failure to urge a defense before the administrative law judge constitutes a waiver of that defense. See 161 IAC 4.3(15) (formerly 240 IAC 1.9(12)("Any objection not duly made before the hearing officer shall be deemed waived"). Cf. Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (Iowa 1986)(citing e.g. 240 IAC 1.9(12)(error not preserved at the Commission level is waived--issue must be raised before the agency).
11. Third, the defenses which are offered by Respondent are not consistent with the theory of a mixed motive case. When, as here, a complainant alleges discrimination and a respondent to a charge asserts there is "no discriminatory actuation," Callan v. Confederation of Oregon School Administrators, 317 P.2d 1252, 57 Fair Empl. Prac. 1696, 1698 (Ore. Ct. App. 1986), the case is "not a mixed motive case." Id. See Findings of Fact Nos. 46-47.
VI. Order and Allocation of Proof - The Burden of Persuasion:
12. The "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 was on the Commission and the complainant to persuade the finder of fact that sex discrimination has been proven. See Iowa Code S 216.15(7)(burden of proof on Commission); Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981)(burden of proof on complainant). Of course, in discrimination cases as in all civil cases, the burden of persuasion is "measured by the test of preponderance of the evidence," Iowa R. App. Pro. 14(f)(6), and not by proof beyond a reasonable doubt or other standards.
13. The burden of persuasion must be distinguished from what is known as "the burden of production" or the "burden of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).