IX. Ruling In the Alternative # 1: Mixed Motive Analysis:
30. In addition to the main ruling, alternative rulings were made with respect to the mixed motive analysis, which was discussed in the Commission's brief and the pretext analysis, which was discussed in both the Commission's and the Respondent's brief. (Commission's Brief at 17-29; Respondent's Brief at 6-28). (Since the Commission and Respondent file simultaneous post-hearing briefs, the Commission could not have known the mixed motive defense would not be raised on Respondent's brief). While discussing the mixed motive analysis, however, the Commission did not admit in its discussion of facts that there actually was a mixture of legitimate and illegitimate motives. It only referred to "several conceivable reasons for preferring Carey's qualifications [which] appear in the record." (Commission's Brief at 13)(italics in original).
31. "Where direct evidence is presented and the employer suggests other factors influenced the decision, the employer 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." Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990)(citing Price- Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 293)(emphasis added). "When . . . an employer considers both sex and legitimate factors at the time of making a decision, that decision was 'because of' sex." Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed. 2d 268, 282 (1989)(emphasis added).
32. This defense is an affirmative defense. Id. 104 L.Ed. 2d at 289. The Respondent bears 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 sex into account." Id. & 293. With the 1991 amendments to Title VII of the Civil Rights Act of 1964, Congress rejected the Supreme Court's holding that this showing could effect a complete defense. Now, only a limitation of damages, but not a complete defense, can be effected by the Respondent if it meets this burden of proof. See Washington v. Garrett, 10 F.3d 1421, 1432 n.15 (9th Cir. 1993). Compare Price-Waterhouse, 104 L.Ed. 2d at 293 (complete defense to liability effected if Respondent meets burden of proof) with 42 U.S.C. SS 2000e-2(m); 2000e- 5(g)(2)(B) (limitation on remedies). The persuasive effect of this change in Title VII on Iowa law has not yet been determined. The Commission finds this statutory change to be persuasive as it better effectuates the "principal purpose" of the act, which is to eliminate illegal employment discrimination. See Iowa Code S 216.18 (statute to be liberally construed to effectuate its purposes); Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982)(elimination of employment discrimination a "principal purpose" of the Act).
33. To establish this defense:
[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, 104 L.Ed.2d at 289. (emphasis added).
33. Although objective evidence must be presented, the Respondent's ultimate burden is one of persuasion and not mere production of objective evidence. Id. "The employer has not yet been shown to be a violator, but neither is it entitled to the . . . presumption of good faith concerning its employment decisions. [A]t this point the employer may be required to convince the factfinder that, despite the smoke, there is no fire." Price Waterhouse, 104 L. Ed. 2d at 297-98 (O'Connor, J., concurring).
34. The ultimate question is one of human motivation, i.e. "what motivated someone and what the person would have done absent that motivation," an issue that involves many credibility and other evaluative choices. Ayers v. Western Line Consolidation School District, 555 F.2d 1309, 18 Fair Empl. Prac. Cas. 1407, 1411 (5th Cir. 1977).
35. The Respondent did not meet its burden of persuasion because it's evidence came from a source which was not credible and for other reasons set forth in the findings of fact. See Findings of Fact Nos. 65, 100.
36. Among the other factors weighed in determining that Respondent did not meet it's "same decision" burden were the comparative qualifications of Complainant Whaley and Jack Carey. It is permissible to use such comparisons when deciding whether or not an employer has proven that it would have made the same hiring decision in a nondiscriminatory process. See Barbano v. Madison County, 922 F.2d 139, 145, 146, 54 Fair Empl. Prac. Cas. 1287 (2nd Cir. 1990).
37. The Barbano case involved the failure to hire a woman, Maureen Barbano, for the position of Director of a Veterans Service Agency due to her sex. Id., 922 F.2d at 141. In considering whether the Board of Supervisors had proven that it would not have hired Barbano in the absence of discrimination, the trial judge found that two of the Board's four reasons for preferring the male hired over Barbano were supported by the record. Id., 922 F.2d at 145.
38. These two reasons were the preferred applicant's interest in veteran's affairs and military experience. Id. The trial court noted, however, that neither of these were listed as requirements in the job description. Id. The trial court "found that given Barbano's 'education and experience in social services,' [the defendants] failed to carry their burden of proving by a preponderance of the evidence that absent discrimination, they would not have hired Barbano." Id.
39. On appeal, the Second Circuit Court of Appeals affirmed the trial court and rejected the argument that the trial court "'impermissibly substituted its own opinion on the matter' in rejecting their reasons for not hiring Barbano." Id.:
This is a curious argument for [the defendants] to offer, since [the trial judge] as the trier of fact was required to have an opinion-- more precisely, to make a finding--on whether the asserted reasons for the [failure to hire] sustained [the defendant's] burden of proving that they would not have hired Barbano absent discrimination. In any event, our review of the record indicates that the district judge did not commit error.
. . .
[The appellate court then set forth Barbano'sand the preferred applicant's qualifications in detail.]
. . .
To be sure, both candidates were qualified for the Director's position, and it is not our job--nor was it the district court's--to decide which one was preferable. However there is nothing to indicate that [the trial judge] misconceived his function in this phase of the case, which was to decide whether [defendants] failed to prove by a preponderance of the evidence that they would not have hired Barbano even if they had not discriminated against her. The judge found that defendants had not met that burden. We must decide whether that finding was clearly erroneous and we cannot say that it was.
Id., 922 F.2d at 145-46.
40. Care was also taken in this case to ensure that the focus in determining whether the Respondent met its burden was "not who the fact finder thinks the employer should have hired, but who the employer would have hired had it not considered [sex]." Civil Service Commission v. Iowa Civil Rights Commission, 522 N.W.2d 82, 89 (Iowa 1994). Therefore, like the court in Barbano, the comparative qualifications here were measured by the employer's standards, such as the job description, Barbano, 922 F.2d at 145, job requirements that were stipulated to by the parties and reflected in the testimony, and the reasons set forth in the testimony of the Recreation Superintendent, Robert Eldredge (even though this testimony was not believed). See Findings of Fact Nos. 50- 100. Like the employer in Barbano, the Respondent has failed to meet its burden of persuasion.
41. Also considered with respect to how the "ambition" reason would have been resolved in a non-discriminatory process under the employer's averred standards, were the differences between the interview procedures set forth by Eldredge in his testimony and those actually applied to the Complainant. See Findings of Fact Nos. 55-56, 58, 59, 62. The Respondent failed to show how, in a nondiscriminatory process where Complaint Whaley would have been asked why she wanted the job, the Respondent would have evaluated her answer. See Finding of Fact No. 64. Thus, the Respondent has failed to "carry the burden of separating out the impermissible motives from the permissible." Hopkins v. Price-Waterhouse, 920 F.2d 967, 973 (D.C. Cir. 1990)(citing Price-Waterhouse, 109 S.Ct. at 1804 (O'Connor, J. concurring). "[T]he decision must go to the employee should the employer fail to carry this burden." Id.