BEFORE THE IOWA CIVIL RIGHTS COMMISSION

RUTH MILLER (CLAY), Complainant,

VS.

PAGE COUNTY SHERIFF'S DEPT., PAGE COUNTY BOARD OF SUPERVISORS, PAGE COUNTY GRIEVANCE REVIEW BOARD, and RON FRANKS, SHERIFF, Respondents.

52. Although the termination of these "favors" with respect to Kathy Smith was related to the rejection of sexual advances made by Sheriff Franks toward her, it does not follow that the presence or continuation of such favors, without more, toward Carol Haffner demonstrates the existence of a sexual relationship between Sheriff Franks and her. Both Sheriff Franks, and other deputies, also did dishes and vacuumed the floor for Carol Kirkpatrick. No advances were, however, made toward her by Sheriff Franks and no sexual relationship existed between them. (Tr. at 508). No sexual relationship existed between Sheriff Franks and Kathy Smith or Complainant Miller, although such favors had been done for them. In addition, it is not clear in the record whether the Complainant's rejection of Sheriff Frank's sexual advances in March 1985 occurred before or after an offer of the position was made to Carol Haffner. Given these facts, this allegation of discrimination must fail.

Denials of Complainant's Request to Change To a Rotating Shift In May 1985.

53. On May 26, 1985, Complainant Miller made a request to the chief jailer, Kathy Smith, for a shift change whereby she would rotate shifts with Carol Haffner. For example, during the first week, the Complainant might work the midnight to 8:00 a.m. shift while Carol Haffner worked the 4:00 p.m. to midnight shift. The following week, the schedule would be reversed with Complainant working the 4:00 p.m. to midnight shift while Carol Haffner worked the midnight to 8:00 a.m. shift. (Tr. at 54, 121, 446-47; CP. EX. # 1 1). Complainant Miller made this request because she had worked a straight midnight to 8:00 a.m. shift since July of 1984 and was becoming "burned out" from working those hours. (Tr. at 118; CP. EX. # 7, 1 1; R. EX. # 113). She believed this request would be granted because she had greater seniority than Carol Haffner. (CP. EX. # 10; R. EX. # 113; First Complaint at 3).

54. Ms. Smith relayed this request to Mike Williams, the Jail Administrator. Mr. Williams indicated that the schedule change would be appropriate, but since he was going on vacation, and the Sheriff would be taking over the jail administration duties from him, he indicated Ms. Smith should ask Sheriff Franks, which she did. (Tr. at 54, 121; CP. EX. # 11). On May 27th, Sheriff Franks indicated he would check out this proposal with Carol Haffner. (CP. EX. 11). On May 28th, Complainant Miller was told by the Sheriff that he would not know whether the change would be granted until he found out if Ms. Haffner was returning to work. He stated that, if she did come back to work, there would be a problem with her working the midnight to eight shift because of her children. (CP. EX. # 11). [On May 23rd, Ms. Haffner had attended what was labeled a "therapy" session for the jailers. Ms. Haffner had been criticized by several of the jailers at this session, including Complainant Miller, and had not returned to work by May 28th.] (Tr. at 44-45, 568; CP. EX. # 1, 1 1).

55. On May 29th, Sheriff Franks denied Complainant Miller's request. (Tr. at 55, CP. EX. # 1 1). He had visited with Ms. Haffner and she had indicated that the midnight to eight shift would be a hardship because of her children, i.e. she did not want to be sleeping during the day while two children were home. (Tr. at 125, 450; CP. EX. # 11; R. EX. # 113). Complainant Miller, expressing a belief based upon the sexual advances that the Sheriff had made to her as recently as May 20th, and her rejection of those advances, responded by asking whether it was necessary to "put out" or to sleep with someone in order to get changes made in the Sheriff's office, a comment which visibly angered Sheriff Franks. (Tr. at 125-26, 450, 613; CP. EX. 10, 11).

56. On May 30th, Chief Jailer Kathy Smith, Complainant Miller, and Sheriff Franks had a meeting on the rotating schedule issue. (Tr. at 55, 126). Sheriff Franks made the decision on this occasion to grant the request and told Kathy Smith to work out a rotating shift schedule. (Tr. at 55, 126; CP. EX. # 11; R. EX. # 113). Sheriff Franks made this decision on the basis of Complainant Miller's greater seniority. (R. EX. # 113).

57. On May 31st, Sheriff Franks changed his mind and informed the Complainant and Kathy Smith that he had decided to deny her request for rotating shifts and to go back to the original schedule. (Tr. at 55, 448; CP. EX. # 5, 11). He informed them that this decision was based on the advice of the county attorney. (Tr. at 55,126-27; CP. EX. # 5; R. EX. # 117). He also provided them with a memorandum which stated his reasons for the reversal:

1 . Consultation with County Attorney reference this change.

2. March of 1985 upon the announcment (sic) of Carol Kirkpatrick leave of absence, request to change of shifts was not given by Ruth Clay, Ruth Clay was asked if wanted to change shifts, and wished to stay with midnight 128 A.M.

3. A change of shifts, would require, according to legal consultation, a complete rotating of 3 shifts, this would effect (sic) too many lives, and would not be of any good to the Page County Jail.

(Tr. at 616; CP. EX. # 5; R. EX. # 117).*

(*Complainant's Exhibit # 5 and Respondent's Exhibit # 117 are copies of the same document.)

58. In a memorandum to the Board of Supervisors, dated June 1, 1985, Sheriff Franks stated:

Friday, May 31, 1985, 1 contacted Steve O'Meara [the county attorney] at his residence and did meet with him there.... Mr. O'Meara advise (sic) that my first elective was correct, seniority does not have the authority to change schedule, only management has that authority, and then only at the benifit (sic) of workable operation. The exception would be in this case, that both parties involved, and not hurting the work operation, would be in favor of the change, which we did not have. Further, he advised that Ms. Clay may feel she has a grievance, but Ms. Haffner would have a basis for a lawsuit filed against Page County Jail and Page County. Mr. O'Meara advised me to leave the schedule as it has been.

(R. EX. #.113). Sheriff Franks could not recall what kind of lawsuit O'Meara stated Carol Haffner could file in the event she was required to rotate shifts. (Tr. at 726).

59. Despite the general unreliability of Franks' testimony and the caution with which documents written by him must be viewed, his testimony that he received some advice from the county attorney is credible because it would be so unlikely that the Sheriff would send the Board of Supervisors a memorandum stating that their attorney had given him advice when, in fact, no advice had been given. There is no evidence in the record to indicate this memorandum was not sent or that such advice was not given.

60. In addition, the evidence is clear that Sheriff Franks couldn't make up his mind concerning what to do about Complainant Miller's request. This makes it likely that he did seek and obtain the advice of the county attorney.

61. The general reason that the Complainant's request was denied on advice of counsel isn't specific or clear enough for the Complainant to address nor is it legally sufficient to justify judgment for the Respondents. This is also true of the vague references to the hypothetical lawsuit by Haffner and to the supposed legal requirement to rotate all three shifts and not just the ones of Ms. Haffner and Complainant Miller. Neither of these propositions were supported with any legal authority or reasoning. (Tr. at 615-616; CP. EX. # 5, R. EX. # 113). Without communicating what kind of lawsuit was anticipated or any rationale for requiring the rotation of all three shifts it is impossible for Complainant to address these reasons for denying Complainant's request.

62. The advice to the effect that the authority to change schedules rests in the discretion of management and not more senior employees or that management is not required to abide by seniority in responding to this request, does not provide a specific reason as to why management discretion was exercised so as to deny Complainant Miller's request.

63. The statement in the Sheriff's memorandum to the Board of Supervisors to the effect that management can change the schedule only for reasons of a more effective operation does not provide any specific reason as to why the requested change was not considered to yield a more effective operation. This memorandum does not indicate that such a calculation was even made. (R. EX. # 113).

64. The only indication that effectiveness in operation was a factor in this decision is the Sheriff's testimony and the statement, in the memorandum to Complainant Miller and Kathy Smith, to the effect that the rotation of all three shifts "would effect (sic) too many lives, and would not be of any good to the Page County Jail." (Tr. at 615-16; CP. EX. # 5). This, of course, is not sufficiently clear or specific because it relies on the unknown and unarticulated reasons supporting the requirement for rotation of all three shifts.

65. Even if these "advice of counsel" reasons were sufficiently articulated to permit the Complainant to address them, the only one of these reasons mentioned in the memorandum provided to the Complainant rests on the totally unexplained premise that rotation of all three shifts was legally required. (CP. EX. # 5). It is, therefore, not credible.

66. Sheriff Franks testified that the May 31st memorandum to Complainant Miller stated his reasons for denying Complainant's request for a rotating shift with Carol Haffner. (Tr. at 616). The failure to state in this memorandum the other reasons given in the June lst memorandum to the Board of Supervisors tends to indicate that these other reasons are not credible because they were after the fact justifications for the action and did not play an actual part in the decision at the time it was made. (CP. EX. # 5, R. EX. # 113). In any event, the unexplained failure to mention, in the memorandum to Complainant Miller, the possible lawsuit by Ms. Haffner (or whatever rights she had which might have been violated by granting Complainant's request) or the impact that granting the request would have on the operations of the jail, absent the assumption that all three shifts must be rotated, is an inconsistency which demonstrates these reasons are unworthy of credence.

67. Two other reasons were given for denying Complainant's request. The first is that, at the time Carol Kirkpatrick's leave was announced in March 1985, Complainant Miller made no application for Ms. Kirkpatrick's shift. The second is that, at that time, she was offered Ms. Kirkpatrick's shift and refused it, indicating she preferred to remain on the midnight to eight shift. (CP. EX. # 5). These reasons are also not credible explanations for refusing the Complainant's request for shift rotation.

68. Although Complainant Miller does not dispute that she did not request Ms. Kirkpatrick's four to twelve shift at the time of Ms. Kirkpatrick's maternity leave, she failed to make the request because she had not been informed when the leave was to begin until after Carol Haffner was chosen. Also, Haffner was approached and offered the position without applying for it. (Tr. at 563). Findings of Fact Nos. 47-48.

69. There is conflicting evidence concerning whether or not Complainant Miller was offered the full-time 4 to 12 shift eventually awarded to Carol, Haffner, but the greater weight of the credible evidence shows that Complainant Miller was not offered that shift. First, Complainant Miller has consistently maintained that she was never offered the Kirkpatrick four to twelve shift, although Sheriff Franks had at one time offered her the eight to twelve shift. She stated this in her grievance of June 3, 1985 and her complaint of July 31, 1985. (CP. EX. # 10; First Complaint at 2). She refused to sign the May 31, 1985 memorandum from the Sheriff because of it's statement that she had refused such an offer. (CP. EX. # 1 0).

70. Second, for reasons explained in the findings on credibility, the statements and testimony of Sheriff Franks, including his assertion that Complainant Miller rejected the offer of Ms. Kirkpatrick's shift, are entitled to little weight. See Findings of Facts Nos. 36-37.

71. Third, for reasons explained in the findings on credibility, little weight is given to Kathy Smith's written statement to the Commission to the effect that she had some kind of conversation about the leave with Complainant Miller before Carol Kirkpatrick left during which Complainant Miller expressed no interest in the shift. See Finding of Fact No. 39. (CP. EX. # 2). There is, in any event, nothing in the statement indicating an offer of the shift was made to Complainant Miller. At hearing, Ms. Smith could not recall whether or not she discussed the shift with Complainant Miller. (Tr. at 76).

72. Fourth, Mike Williams at first testified that an offer was made to Carol Haffner, based on her years of service, after Complainant Miller rejected an offer of the four to twelve shift. (Tr. at 539). On crossexamination, Mr. Williams acknowledged that, in an undated letter addressed to the Commission which discusses the opening of Carol Kirkpatrick's shift, he never mentioned any offer of the shift being made to Complainant Miller. (Tr. at 553; R. EX. # 145). He could not explain why that fact was not included. (Tr. at 553). He also stated that he assumes that an offer was made by him or Kathy Smith, but doesn't remember talking to Complainant Miller about the shift or whether such an offer was, in fact, made either by himself or together with Ms. Smith. (Tr. at 553). In light of these subsequent statements on crossexamination, the testimony on direct concerning the offer is entitled to little weight.

73. Fifth, Carol Kirkpatrick stated, in a memorandum directed to Sheriff Franks that "Kathy, who was chief jailer at this time, offered the position to the next person who had the most seniorty. (sic) This would have been Ruth. Ruth turned down the 4-12 shift because she felt that this wuld (sic) not give her enough time to spend at her business." (R. EX. # 119). Although Ms. Kirkpatrick initially identified this document as being written when she made her request for maternity leave, the content of the document, and the notarization dated August 26, 1985, indicates it could not have been made at that time. (Tr. at 512; R. EX. # 119). Her testimony indicates she does not know when o,- why she wrote this memorandum. (Tr. at 512, 514-15). There is nothing in her testimony or the document which indicates how she obtained the knowledge of the purported offer of the shift to the Complainant or of her rejection of it. (Tr. at 492-500, 512-15). It is unknown whether this statement is based on her personal knowledge or hearsay or a rumor. Under these circumstances, her testimony and statements are entitled to little weight.

74. Finally, Carol Haffner's testimony is essentially that it was "common knowledge" that Complainant Miller would not take the shift because she could not run her business, the Slender Shop, and work that shift full time. (Tr. at 566, 581). Harland Mace's statement is essentially the same, i.e. that he had heard, at some undisclosed time, Complainant Miller state she preferred the twelve to eight shift because of her outside employment. (Tr. at 586-87; R. EX. # 146). Neither of them made any statements concerning whether an offer of the shift was made to Complainant Miller.

75. The reasons given for denying Complainant Miller's request also appear to be pretexts for discrimination because, although there is no evidence of a requirement to abide by seniority or length of service in jail operations, the past practice had in fact been to make decisions on the basis of seniority. (Tr. at 433, 548, 712; CP. EX. # 10, 1 1; R. EX. # 113). Even Carol Kirkpatrick and Mike Williams, who thought or assumed that Complainant Miller had been offered the four to midnight shift in March 1985, based their opinion on the Complainant's having greater seniority than Carol Haffner. (Tr. at 539; R. EX. # 119).

Reprimand of June 24, 1985:

76. Complainant received this reprimand on June 24,1985:

Due to the lack of respect to your immediate superviors, (sic) and inconsideration by you towards other employees of the Page Co. Sheriff's Dept. and Page Co. Jail, this written reprimand will be placed in your personnel file, and will be a factor in considerations of any furture (sic) developments in your employment. This reprimand is based on the desrepectful (sic) attitude and slanderous threats you directed at Ron Franks, Sheriff of Page Co. Iowa, approximatley (sic) 11:30 P.M. May 28, 1985. This also carried on by you to Chief Deputy Mike Williams, Page Co. Sheriff's Dept. in a disrepectful (sic) attitude the following week. The inconsideration you have shown towards other employees of the Page Co. Jail is an ethic which you have violated and will not be tolerated. I must advise you, the disrepectfulness (sic) and inconsideration shall discontinue or a more severe action will be taken

(CP. EX. # 6; R. EX. # 127)(emphasis added).*

(* These exhibits include copies of the same document.)

77. This reprimand was grieved by the Complainant to the Page County Grievance Review Board. The Board recommended that it be permanently removed from Complainant Miller's file and destroyed because it was "ambiguous and constituted subjective opinions, rather than objective facts." (CP. EX. # 17). On July 19, 1985, Sheriff Franks informed the Grievance Review Board that he would "remove the reprimand ... and destroy it." (CP. EX. # 18). Sheriff Franks did not destroy the reprimand, but retained it in a grievance and litigation file. (Tr. at 638, 709).

78. This reprimand was issued thirty-five days after ,May 20th, the last time when Complainant Miller had verbally rejected the Sheriff's sexual advances, and twenty-six days after May 29th, when she had made the comment to Sheriff Franks asking whether it was necessary to sleep with someone in order to get changes made. See Findings of Fact Nos. 34 and 55.

79. The reasons given in the reprimand are so vague that they are impossible for the Complainant to address. Other than the text of the reprimand itself, the only evidence produced by Respondents which directly indicated why Sheriff Franks issued the reprimand, was Sheriff Franks' testimony that it was issued because Complainant Miller showed disrespect on May 29th by demanding a favor "which she almost knew at that time I couldn't produce." (Tr. at 63738). This apparently refers to the request for a schedule change. Sheriff Franks stated that the disrespect shown to Mike Williams involved Complainant Miller coming into Williams office and "scream[ing] at him." (Tr. at 638). Chief Deputy Williams later decided this incident wasn't so bad and this reference was "kind of taken off in a grievance hearing." (Tr. at 638).

80. It is simply not believable that requesting a schedule,change constitutes "disrespect" which justifies a reprimand. The reference in the reprimand to both disrespectful attitude and slanderous threats purportedly made at 11:30 p.m. on May 28th by Complainant Miller more likely refers to comments which Sheriff Franks, in his memorandum to the Board of Supervisors, alleged were made at 11:30 p.m. on the 29th, i.e. that the Complainant stated that his asking her to attend jail school on May 20th constituted a sexual advance and that she threatened to make it public if he did not change the schedule. (CP. EX. # 6; R. EX. # 113). Complainant Miller's account of the events on May 29th is more credible. (CP. EX. # 1 1). See Findings of Fact Nos. 54 and 55. Given the timing of this reprimand in relation to the last sexual advance of Sheriff Franks toward Complainant Miller, and its reference to "slanderous threats" made by Complainant Miller, which the credible evidence demonstrates were actually remarks made in protestation of past sexual harassment, and the absence of any other credible explanation for the reprimand, it is clear that the underlying motivation for this reprimand was to punish Complainant Miller for resisting and protesting these past sexual advances.

Denied Day Shift In First Week of July 1985:

81. In February or March of 1985, Complainant Miller was promised by Sheriff Franks that she would work the day shift (8:00 a.m. to 4:00 p.m.) during the first week of July 1985. (Tr. at 138; CP. EX. # 16). When the schedule for July was issued on June 28, 1985, Complainant Miller had not been scheduled to work the day shift, but had been scheduled by Sheriff Franks to work the four to midnight shift during that week. (Tr. at 138-39; CP. EX. # 16). Carol Haffner, a less senior jailer, was given the day shift. (CP. EX. # 16). When she requested an explanation from Sheriff Franks concerning why she had been removed from the day shift, Complainant Miller was told only that he didn't think it was a good idea. (CP. EX. # 16).

82. This schedule was issued thirty-nine days after May 20th, the last time when Complainant Miller had verbally rejected the Sheriff's sexual advances. See Finding of Fact No. 34. It was issued four days after the reprimand of June 14, 1985.

83. The Respondents produced no evidence of any reason for the failure to assign the promised schedule to Complainant Miller.

Reprimand On Absence Issued on August 23, 1985:

84. On August 23,1985, Complainant Miller received a document, denominated a "notice," from Sheriff Franks which stated:

This notice to you should releive (sic) any further misunderstandings reference employees contacting a command officer when the need arises for that employee to become absent their regular tour of duty. This does mean that you shall contact either Sheriff Ron Franks or Chief Deputy Mike Williams if this occasion should arise. This was ordered in a prior regular jail meeting.

(CP. EX. # 26A; R. EX. # 127).*

(*Complainant's Exhibit # 26A and Respondent's Exhibit # 127 include copies of the same document. )

85. The Complainant, who was absent for her shift on August 23,1985, had arranged for Carol Kirkpatrick to work the shift for her. (Tr. at 188). This notice was issued in response to Complainant Miller's failure to inform either Sheriff Franks or Chief Deputy Mike Williams in advance that she would be absent for her shift on August 23,1985 and would have to be replaced by another jailer. (Tr. at 187-88, 640-41; CP. EX. # 26A). It was the Complainant's understanding that, since late 1984, such notice was not required. (Tr. at 187).

86. Complainant Miller had worked a shift for Sandee Kimball from 12:00 midnight on August 10th to 8:00 A.M. on August llth. (Tr. at 188; CP. EX. # 27A, 74). Complainant Miller asserted that Ms. Kimball had not received a similar notice although she had not requested permission to be absent from anyone in advance. (Tr. at 188; CP. EX. # 74; Second Complaint at 2).

87. This notice was issued approximately three months after the last sexual advance made toward Complainant Miller by Sheriff Franks and twenty-three days after she filed her first complaint. See Findings of Fact Nos. 1, 34.

88. Sheriff Frank's testimony and his response to the complaint indicated that Sandee Kimball and other jailers had advised either him or Mike Williams in advance of being absent. (Tr. at 641; R. EX. # 154). He also testified that the jailers had been informed of this requirement at a prior jail meeting. (Tr. at 640). Neither his testimony nor the language of the notice indicate that jailers were required to ask permission to be absent if their shift is covered, but this evidence does indicate they were required to notify either him or Chief Deputy Williams. (Tr. at 640; CP. EX. # 26A).

89. Since at least October of 1984, when Kathy Smith was chief jailer, jailers could make their own arrangements for coverage on days they were to be absent. Once they had made the arrangement, they were to notify Ms. Smith. (Tr. at 17, 22-23; CP. EX. # 25A). This policy of notifying the head jailer or other person in charge of the jail had also been in effect prior to the time Ms. Smith was chief jailer. (Tr. at 340).

90. Sandee Kimball's statement indicates not only that she did not ask anyone's permission, but also that "everyone knew we had arranged my night off." (CP. EX. # 74)(emphasis added). This would indicate that Sheriff Franks knew. In light of this statement, the past practice at the Sheriff's department requiring notification of the head jailer, and evidence that the current policy was to require the jailer to contact or advise the Sheriff of the shift switch, the Complainant has failed to rebut Respondent's legitimate, nondiscriminatory reason for the notice.

Refusal to Place Complainant Miller in the Day Shift Jailer Position:

91. The Complainant made several allegations concerning the failure to place her in the day shift (8:00 a.m. to 12:00 noon) jailer position. She alleged that the denial of this position after her applications on August 8, 1985 and November 6,1985 constituted sex discrimination and retaliation. (Second Complaint, paragraphs 3 and 5). She also alleged that the splitting of the day shift for three days a week between her and Carol Haffner penalized her by requiring her to work her regular midnight to 8:00 a.m. shift starting, on Monday night eight hours after she had completed a daytime shift on Monday at 4:00 p.m. (Second Complaint at paragraph 4). It is clear, however, that her primary concern is that this split shift and the resultant "penalty" would not be required if the day shift position had been filled. (Tr. at 190-91). The continued refusal to fill the day shift jailer position is the only concern relating to discrimination or retaliation which is reflected in her allegation that Sheriff Franks hired a "part-time office girl" to do some of the day shift jailer's work, i.e. the presence of the office person enables the sheriff to avoid filling the day time jailer position. (Second Complaint at paragraph 10).

92. On or about August 7, 1985, Sheriff Franks posted a notice informing employees that the day shift position would be available due to the resignation of Kathy Smith. It indicated that employees interested in the position should contact him by August 9, 1985. (CP. EX. # 24). On August 8,1985, Complainant Miller left a memorandum at the office for the Sheriff indicating she was interested in the position. (Tr. at 186, 626-27, CP. EX. # 25). On August 9th, Sheriff told the jailers that the day shift jailer position would not be filled and no other jailer would be hired. (CP. EX. # 26; R. EX. # 154).

93. The initial refusal to fill the day shift position occurred within three months of the last sexual advance by Sheriff Franks toward Complainant Miller and her "disrespectful" remarks objecting to such advances; within one and one-half months of a reprimand based on the Complainant's resistance to sexual advances; and within nine days of her filing her first complaint. See Findings of Fact Nos. 1, 34, 55, 76, and 80.

94. Sheriff Franks gave two reasons for failing to fill the day shift position. First, he had not checked the budget prior to posting the position. Kathy Smith's position had been partly funded from the Sheriff's budget and not the jail budget. If he placed a jailer, who was funded exclusively from the jail budget, in the day shift position, there would not be sufficient funds in the jail budget to fund a replacement for the hours the new day shift jailer had formerly worked. (Tr. at 628-29, 713-14; R. EX. #154). Second, he had been advised by the county attorney that, because Complainant Miller had filed her discrimination complaints, the status quo should be maintained, nothing should be changed. (Tr. at 662-63; CP. EX. # 37, R. EX. # 154). These reasons applied not only to the failure to fill the day shift position after Complainant's August 1985 request, but also after her second request in November 1985, and the continued failure to fill the position throughout Complainant's employment. (R. EX. # 154).

95. Sheriff Franks acknowledged that, if Kathy Smith had stayed on, there would have been no budget problem with keeping her in that position. (Tr. at 713). When asked why, after Kathy Smith resigned, her replacement could not be paid out of the sheriff's budget, as she had been, Sheriff Franks stated "Because it was a line item in the sheriff's budget, Kathy Smith." (Tr. at 713). He went on to testify that he couldn't change the name of the person that got paid for the position. (Tr. at 714). No further explanation concerning or evidence on this reason appears in the record. In light of the previous findings concerning Sheriff Franks' credibility, and the inherent implausibility of this reason, this "budget" reason for failing to fill the day shift position is unworthy of credence.

96. The second reason given for failing to fill the day shift position is not a legitimate, nondiscriminatory reason. This reason demonstrates a direct causal link between the failure to fill the day shift position and Complainant Miller's filing of her complaint. As a practical matter, attempts to maintain the status quo after the filing of a complaint might make some sense if they are implemented in a manner which will forestall disciplinary or other adverse action towards the Complainant which might constitute retaliation. However, in this case, the attempt to maintain the status quo was used to justify adverse action toward the Complainant Miller, in the form of the denial of the day shift position for which she had applied. There is no evidence that this "maintain the status quo" rationale was ever used to prevent any adverse action toward Complainant Miller which was actually considered by Respondents, such as her termination. As far as schedule changes are concerned, Complainant Miller was later required to rotate weekends, when the status quo at the time of the filing of her first complaint had been to allow her to have weekends off. (CP. EX. # 10). Under these facts, it is clear that the effort to maintain the status quo became an instrument of retaliation instead of a means for the prevention of retaliation.

Failure to Assign Complainant to Transportation of Prisoner:

97. Complainant Miller alleges in her second complaint that:

On August 16, 1985, 1 was the most senior jailer on duty. The Sheriff needed someone to transport a female prisoner to Shenandoah, Iowa. Despite being the most senior jailer on duty, I was not contacted. The Sheriff brought in a J3 jailer less senior than I am, and not on duty to transport the prisoner.

(Second Complaint at 2)(emphasis added).

98. The only testimony introduced by the Complainant or the Commission indicates that transporting prisoners was considered to be desirable duty, the Complainant had performed it in the past, and, at some point in the past, Sheriff Franks had decided to assign it on the basis of seniority. (Tr. at 20-21, 188-89). No other details were offered concerning the mechanics of how the selection of the jailer was made, whether a jailer on duty or one off duty would be selected, or how-the time for transport was determined or other facets of transport. It is not even clear in the record whether Complainant Miller was or was not on duty at the time the transport was made. (CP. EX. # 27A; R. EX. # 154). Given this paucity of evidence, these allegations of discrimination and retaliation must fail.

Failure to Assign the "J-1" Number to Complainant Miller:

99. On August 9,1985, at the same meeting at which they were informed that the day shift jailer position would not be filled, the jailers were told that these numbers were for radio communication codes only. Therefore, the numbers would not be changed. (CP. EX. # 26). In the past, when a jailer had left, the designation for each of the jailers with less seniority than her moved up in number, e.g. if the jailer with the J-1 designation left, then J-2's number changed to J-1, J-3 to J-2 etc.The new jailer would then receive a number reflecting her being the least senior jailer. (CP. EX. # 26, 34, 37, 41).

100. On January 8, 1986, Kathy Smith, who had returned to work as a jailer, but not the chief jailer, was given the designation J-5. (Tr. at 17, 191; CP. EX. # 33, 34). Carol Kirkpatrick, who had previously had the J-5 designation, was moved up to J-4. The previous J-4 was Sandee Kimball, who had left. (Tr. at 191-92; CP. EX. # 34). Both Complainant Miller, designated J-2, and Carol Haffner, J-3, retained their numbers. (Tr. at 192-93). Throughout the remainder of Complainant's employment, no other jailer receiver the J-1 designation. (Tr. at 442-43).

101. On January 9th, Complainant Miller sent a memorandum to Sheriff Franks noting that he had previously stated J numbers would not be changed and asking him to explain why he didn't change everyone's number. (Tr. at 192; CP. EX. # 34). Sheriff Franks' reply to her was that "[t]his was an administrative decision." CP. EX. # 35. His written response to the Commission indicated that he did not advance Complainant Miller to J-1 because of the confusion that would result because the jailer with that number would be erroneously considered to be chief jailer. (R. Ex. # 154).

102. At the time this decision was made, the only persons with the J-1 designation had been chief jailers. See Finding of Fact No. 6. In light of this, the failure to change the designation of one other jailer, and the failure to assign the J-1 designation to anyone else during Complainant's remaining employment, it is concluded that the Respondent's reason for failing to designate Complainant Miller as J-1 has not been rebutted.