BEFORE THE IOWA CIVIL RIGHTS COMMISSION

DARRELL HARVEY, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

SANDY CALDWELL, Respondent.

Conclusions of Law Continued

Complainant Demonstrated That Respondent Caldwell's Reason Was a Pretext for Discrimination:

24. The Complainant may meet his burden of producing evidence sufficient to show that Respondent's articulated reason for its failure to renew his lease is a pretext for discrimination in a variety of ways, and these comments are not intended to enumerate all the ways in which pretext may be shown. See La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Cas. 913, 922 n.6 (7th Cir. 1984).

25. Reasons articulated for a challenged action may be shown to be a pretext for discrimination by evidence showing:

Bechold v. IGW Systems, Inc., 817 F.2d 1282, 43 Fair Empl. Prac. Cas. 1512, 1515 (7th Cir. 1987). Here it was determined that the proffered reason did not actually motivate the failure to renew Harvey's lease. See Findings of Fact Nos. 42-44.

26. After application of these principles and those set forth in Conclusions of Law Numbers 16, 17, and 24 above, it was determined the Complainant was able to show that Respondent's reason for its failure to renew his lease was a pretext for sex discrimination. See Findings of Fact Nos. 41-44.

Credibility and Testimony:

27. In addition to the factors in the findings on credibility in the Findings of Fact, the Commission has been guided by the following principles: First, "[w]hen the trier of fact . . . finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2d 383, 388 (Iowa 1975). "[I]n the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next." NLRB. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949) (rejecting proposition that consistently crediting witnesses of one party and discrediting those of the other indicates bias). Second, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses. Stated otherwise, the trier of facts . . . is not bound to accept testimony as true because it is not contradicted. In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972).

28. Furthermore, the ultimate determination of the finder of fact "is not dependent on the number of witnesses. The weight of the testimony is the important factor." Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957). In determining the credibility of a witness and what weight is to be given to testimony, the factfinder may consider the witness' "conduct and demeanor. . . [including] the frankness, or lack thereof, and the general demeanor of witnesses," In Re Moffatt, 279 N.W.2d 15, 17-18 (Iowa 1979); Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957), as well as "the plausibility of the evidence. The [factfinder] may use its good judgment as to the details of the occurrence . . . and all proper and reasonable deductions to be drawn from the evidence." Wiese v. Hoffman, 249 Iowa 416, 424-25, 86 N.W.2d 861 (1957).

29.

Id., 249 Iowa at 425, 86 N.W.2d 861.

30. Finally, it has been recognized that, when all other witnesses have a relationship with one or the other of the parties which might color their testimony, the testimony of the sole disinterested witness will often be entitled to the greatest weight. See generally, Lareau & Sacks, Assessing Credibility in Labor Arbitration, 5 The Labor Lawyer 151, 178-79 (1989). However, this is not an absolute rule. Such disinterested witnesses are, of course, as subject to lapses of memory or a failure to observe events happening in their immediate vicinity as any other witness. Such factors must be taken into account in evaluating their testimony.

Remedies:

31. Violation of Iowa Code sections 601A.8(1) and 601A.8(3) having been established the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 216.15(8) (1993). 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.

Compensatory Damages:

32. The Iowa Civil Rights Act was amended effective January 1, 1979 to allow the award of "actual damages." 1978 Iowa Acts, ch. 1179, S 16. It is beyond question that, since that time, the Commission has had the power to award "actual damages," which are synonymous with "compensatory damages," for the purpose of "making whole" complainants for any losses suffered as a result of discrimination. Iowa Code S 216.15(8)(a)(8) (1993); Chauffers, Teamsters and Helpers v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (1986). There is no legal authority, however, for damages to be awarded to make whole others, such as roommates, who have not filed discrimination complaints.

33. Damages which may be awarded include compensation for increased rental costs, lost wages, and other economic and noneconomic losses. See Dorene Polton, XI Iowa Civil Rights Commission Case Reports 152, 165 (1992); Diane Humburd, X Iowa Civil Rights Commission Case Reports 1, 9 (1989); Belton, Remedies in Employment Discrimination Law 406-08 (1992). In this case, which is a housing and not an employment discrimination case, lost wages or back pay may be considered to be special damages because such damages, unlike emotional distress, do not ordinarily or generally result from the discriminatory denial of housing. See Diane Humburd, X Iowa Civil Rights Commission Case Reports 1, 9 (1989)(citing Kirchner v. Incorporated Town of Larchwood, 120 Iowa 578, 582, 95 N.W. 184, 186 (1903)); Belton, Remedies in Employment Discrimination Law 406 (1992); Dobbs, Remedies 138-39, 528-32 & n.13 (1973). Loss of time is also recoverable as an item of special damages. Dobbs, Remedies at 531.

34. Special damages must be proved to a reasonable certainty. Dobbs, Remedies at 139. What is necessary to prove reasonable certainty varies, however, from one kind of case to another. Id. at 152. "[T]he degree of acceptable uncertainty may vary with the strength of the substantive law policy." Id. at 153. When there is a strong public policy underlying the claim, as there is in civil rights cases, "the more willing a court may be to accept pretty incomplete evidence on the damages issue." Id. at 152.

35. This is consistent with the two basic principles to be followed in computing awards in discrimination cases set forth by the Iowa Supreme Court: "First, an unrealistic exactitude is not required. Second, uncertainties . . . should be resolved against the [discriminator]." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 530-31 (Iowa 1990). "It suffices for the [agency] to determine the amount . . . as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id. at 531.

Damages for Emotional Distress Are Awardable As Actual or Compensatory Damages:

36. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages as compensation for emotional distress sustained as a result of discrimination. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code S 601A.15(8), now S 216.15(8)).

37.

Belton, Remedies in Employment Discrimination Law 408 (1992)(quoting Foster v. MCI Telecommunications Corp., 773 F.2d 1116, 1120 (10th Cir. 1985)(quoting Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979)). The following principles were applied in determining whether an award of damages for emotional distress should be made and the amount of such award.

Proof Requirements for Emotional Distress Must Be Consistent With Requirement That The Statute Is To Be Liberally Construed to Effectuate Its Purpose:

38.

Violations of the Iowa Civil Rights Act:

violate not only a statute but a strong public policy underlying that statute. . . . [O]ur civil rights statute is to be liberally construed to eliminate unfair and discriminatory acts and practices. [Citation omitted]. We therefore hold a civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct.

Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990)(emphasis added).

Even Mild Emotional Distress Should Be Compensated:

39. Even mild emotional distress resulting from discrimination is to be compensated. Rachel Helkenn, X Iowa Civil Rights Commission Case Reports 62, 73 (1990); Robert E. Swanson, X Iowa Civil Rights Commission Case Reports 36, 45 (1989); Ann M. Redies, X Iowa Civil Rights Commission Case Reports 17, 28 (1989). See Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 525-26 (Iowa 1990)(citing Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 355 (Iowa 1989)(adopting reasoning that because public policy requires that employee who is victim of discrimination is to be given a remedy for his complete injury, employee need not show distress is severe in order to be compensated for it)).

Emotional Distress May Be Inferred From the Circumstances of the Case:

40. "Humiliation can be inferred from the circumstances as well as established by the testimony." Seaton v. Sky Realty, 491 F.2d at 636 (housing case quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836, 845 (Iowa 1980)).

Emotional Distress May Be Proven By A Combination of Slight Testimony of Distress and Circumstantial Evidence Or By Testimony of the Complainant Alone:

41. Even slight testimony of emotional distress, when combined with evidence of circumstances which would be expected to result in emotional distress, can be sufficient to show the existence of distress. See Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983). Testimony of the complainant alone may be sufficient to prove emotional distress damages in discrimination cases. Belton, Remedies in Employment Discrimination Law 415 (1992)(citing Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1273 (8th Cir. 1981). See also Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 1977); Smith v. Anchor Building Corp., 536 F.2d 231, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N.D. Ill. 1981).

42. 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). Nonetheless, such evidence in the record may be considered when assessing the existence or extent of emotional distress. See Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988).

Determining the Amount of Damages for Emotional Distress:

43.

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

44. Although awards in other cases have little value in determining the amount an award should be in another specific case, Lynch v. City of Des Moines, 454 N.W.2d 827, 836-37 (Iowa 1990), a sampling of emotional distress damage awards in a recent treatise on discrimination remedies provides some idea of the range of awards available:

Carter v. Duncan-Higgins, Ltd., 727 F.2d 1225, 1238 (D.C. Cir. 1984)($10,000; racist joke by supervisor); Rowlett v. Anheuser-Busch, Inc., 812 F.2d 194, 204 (1st Cir. 1987); ($123,000; emotional distress; continuously under stress in race discrimination claim; after discharge suffered financial and emotional problems because of unemployment; expert testimony of psychologist that discriminatee suffered from symptoms of anxiety, stress, and some depression); Cowan v. Prudential Ins. Co., 852 F.2d 688, 691 (2nd Cir. 1988 ($15,000; severe emotional distress, humiliation, loss of self-esteem that resulted in serious disagreement with wife and heavy drinking); Wade v. Orange County Sheriff's Office, 844 F.2d 951, 953, 955 (2nd Cir. 1988)($50,000; emotional distress, embarrassment, and humiliation caused by racial discrimination); Foster v. Tandy Corp., 848 F.2d 184 (4th Cir. 1987)($34,000; elements of compensatory damages not specified); Hernandez v. Hill Country Tel. Co-Op., Inc., 849 F.2d 139, 143- 44 (5th Cir. 1988)($50,000; mental anguish and emotional problems for which discriminatee received medical treatment); Williamson v. Handy Button Mach. Co., 817 F.2d 1290, 1293 (7th Cir. 1987)($10,000 for psychological disability and emotional pain; berated and denied opportunity to use a bathroom because of race); Wilmington v. J.I. Case Co., 793 F.2d 909, 922 (8th Cir. 1986)($400,000; elements not delineated; deterioration of health, mental anxiety, humiliation and emotional distress); Hall v. Gus Constr. Co., 842 F.2d 1010, 1017 (8th Cir. 1988)($15,000 for 1 plaintiff and $20,000 for another plaintiff; humiliation and emotional distress); Easley v. Anheuser Busch, Inc., 758 F.2d 251 (8th Cir. 1985)($500 for mental and emotional distress); Muldrew v. Anheuser-Busch, Inc., 758 F.2d 989, 992 (8th Cir.1984)($125,000; emotional distress and humiliation led to marital problems, lessened respect by children, and loss of car and home); Block v. R.H. Macy & Co., 712 F.2d 1241, 1245 (8th Cir. 1983)($12,402); Johnson v. Armored Transp., Inc., 813 F.2d 1041, 1042 (9th Cir. 1987)($45,000; elements not delineated; racially derogatory remarks); EEOC v. Inland Marine Indus., 729 F.2d 1229 (9th Cir. 1984)($500); Foster v. MCI Telecommunications Corp., 773 F.2d 1116, 1120-21 (10th Cir. 1985)($50,000; rejecting argument that only nominal damages can be awarded for embarrassment, humiliation, severe anxiety, and great emotional suffering); Zaklama v. Mt. Sinai Medical Ctr., 842 F.2d 291 (11th Cir. 1985)($85,000; elements not delineated); Stallworth v. Shuler, 777 F.2d 1431, 1435 (11th Cir. 1985)($100,000; emotional stress, loss of sleep, marital strain, and humiliation); Walters v. City of Atlanta, 803 F.2d 1135, 1146 (11th Cir. 1986)($150,000; mental anguish; discriminatee repeatedly passed over for promotion because of race).

Belton, Remedies in Employment Discrimination Law 416 n.78 (1992)(emphasis added).

45. The two primary determinants of the amount awarded for damages for emotional distress are the severity of the distress and the duration of the distress. Bean v. Best, 93 N.W.2d 403, 408 (S.D. 1958)(citing Restatement of Torts § 905). "'In determining this, all relevant circumstances are considered, including sex, age, condition of life, and any other fact indicating the susceptibility of the injured person to this type of harm.' And continuing 'The extent and duration of emotional distress produced by the tortious conduct depend upon the sensitiveness of the injured person.'" Id. (quoting Restatement of Torts S 905). See also Restatement (Second) of Torts S 905 (comment i).

46. In this case, given the mild to moderate emotional distress suffered by Complainant Harvey, and the limited duration of the distress, an award of $1,500 was found to constitute appropriate compensation.