DEBRA S. HOFFMAN, Complainant,

and

IOWA CIVIL RIGHTS COMMISSION

vs.

MAMA LACONA'S - WEST, JIM LACONA, and JOEL LOPEZ, Respondents.

CONCLUSIONS OF LAW:

I. Jurisdiction and Procedure:.

A. Subject Matter Jurisdiction:

1. 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. Hoffman's complaint is within the subject matter jurisdiction of the Commission as the allegations that the Respondents subjected her to sexual harassment in employment and retaliatory discharge fall within the statutory prohibition against unfair employment practices which the Commission has the power to hear and determine. Iowa Code SS 216.6, .11, .15). See Finding of Fact No. 1.

2. "It shall be a . . . discriminatory practice for any person . . . to otherwise discriminate in employment against any . . . employee because of the . . . sex . . . of such . . . employee." Iowa Code S 216.6. "It shall be an unfair or discriminatory practice for: . . . 2. Any person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter." Iowa Code S 216.11. The "rights protected against discrimination by this chapter," id., include protection against the unlawful discharge of an employee. Id. at S 216.6(1)(a).

B. Timeliness and other Statutory Prerequisites:

3. Ms. Hoffman's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 216.15(11). See Finding of Fact No. 2. 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 216.15. See Finding of Fact No. 3.

II. Official Notice:

4. Official notice was taken of what a "wolf whistle" was. See Finding of Fact No. 26..

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). 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).

III. Admissions on Brief:

5. As noted in the findings of fact, several admissions on brief are made by the parties which are binding on the Commission because such admissions are adverse to the party making them. See Findings of Fact Nos. 10, 35, 60, 64, 67.

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, XII Iowa Civil Rights Commission Case Reports 31, 48-49 (1993).

6. This doctrine effectively limits the legitimate nondiscriminatory reasons articulated by a Respondent to those set forth on brief:

Thus the 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. at 49 (emphasis added).

7. Under the above principles, the Commission must take as true that the reason set forth on brief is the one offered by Respondent as a legitimate, nondiscriminatory reason for Complainant Hoffman's discharge. This does not mean that this reason is the true reason or that merely setting forth such a reason on brief is sufficient to rebut the prima facie case. Rather, under these principles, the Commission is limited to determining whether the Respondent has produced sufficient evidence for the nondiscriminatory reason 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.

IV. Informal Judicial Admissions:

8. The Complainant's admission in her testimony that the rudeness incident actually happened constitutes an informal judicial admission. See Finding of Fact No. 67.

The rule is well established that:

[i]f a party testifies deliberately to a concrete fact, not as a matter of opinion, estimate, appearance, inference, or uncertain memory, but as a considered circumstance of the case his [or her] adversary is entitled to hold him [or her] to it as an informal judicial admission.

Swifter Grain Co. v. Koch, 246 Iowa 1118, 1127, 71 N.W.2d 29, 34 (1955)(quoted in Yockey v, State, 540 N.W.2d 418, 421 (Iowa 1995)).

V. Persuasive Value of Opinions From Other Jurisdictions:

9. Federal court decisions applying Federal anti-discrimination laws are not controlling or governing authority in cases arising under the Iowa Civil Rights Act. E.g. Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978). Nonetheless, they are often relied on as persuasive authority in these cases. E.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Although decisions of the United States Supreme Court are rejected as persuasive authority when their reasoning is inconsistent with the broad remedial purposes of the Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d at 831; Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866-67 (Iowa 1978), its opinions are often entitled to great deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission at 866.

10. In determining the persuasive value of any Federal decision, or decision of another state, or other legal authority, it must be borne in mind that the Act is a "manifestation of a massive national drive to right wrongs prevailing in our social and economic structures of our country," Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971). Therefore, decisions from other jurisdictions are persuasive only when they are consistent with the controlling authority requiring liberal interpretation and construction of the Iowa Civil Rights Act. When determining the sense and meaning of the written text of a statute providing regulations conducive to public good or welfare, the statute is liberally interpreted. State ex. rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 629 (Iowa 1971). When determining the legal effect of its provisions, the Iowa Civil Rights Act "shall be broadly construed to effectuate its purposes," Iowa Code S 601A.18 (1991), and "liberally construed with a view to promote its objects and assist the parties in obtaining justice." Iowa Code S 4.2. "In construing a statute, the court must look to the object to be accomplished, the evils and mischief sought to be remedied, or the purpose to be subserved, and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it." Monroe Community School District v. Marion County Board of Education, 251 Iowa 992, 998, 103 N.W.2d 746 (1960); Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 832 (Iowa 1978). Therefore, constructions of the statute which "effectively defeat the remedial purpose of Chapter 601A [the Iowa Civil Rights Act]." should be rejected. See Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 167 (Iowa 1982).

V. Order and Allocation of Proof: The Burdens of Persuasion and Production:

11. 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 agency proceeding was on the Commission to persuade the finder of fact that sex discrimination and retaliation have been proven. See Iowa Code S 216.15(7)(burden of proof on Commission). Of course, in discrimination and retaliation 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).

12. 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).

Conclusions of law continued