DORENE POLTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.


FRANK ROMAN and JOHN ABELN, Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Dorene Polton's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(11) (1989). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met with regard to Respondents Frank Roman and John Abeln, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15 (1989). See Finding of Fact No. 3.

2. Ms. Polton's complaint is also within the subject matter jurisdiction of the Commission as the allegations that the Respondents Frank Roman and John Abeln (a) indicated that blacks were unwelcome as tenants and (b) racially harassed, issued warnings, attempted to evict, and constructively evicted Complainant Polton fall within the statutory prohibition against unfair housing practices. Iowa Code § 601A.8 (1989).

3. It shall be a..... discriminatory practice for any owner or person acting for an owner,of rights to housing..... including but not limited to . . . agents:

...

3. To directly or. indirectly advertise or in any other manner indicate that the rental.
. . of any housing accommodation by persons of any particular race is unwelcome,
objectionable, not acceptable, or not solicited.

4. To discriminate against the lessee ... of any housing accommodation because of the race of persons who may from time to time be present in or on the lessee's or owner's premises for lawful purposes at the invitation of the lessee as friends, guests, visitors, relatives or in any similar capacity.

Id.

Failure to Provide Notice of Hearing to Bernice Roman:

4. Iowa Code section 17A.12 provides in part:

(1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice in writing delivered either by personal service as in civil actions or by certified mail return receipt requested....... Delivery of the notice referred to in this subsection shall constitute commencement of the contested case proceeding.

Iowa Code § 17A.12(i) (1989)(emphasis added).

5. As noted in the findings of fact, the Notice of Hearing was issued on January 16, 1991 and mailed to Bernice Roman by certified mail. The notice of hearing and envelope were returned with markings indicating that the postal service had notified her on two occasions of the certified mail. See Finding of Fact No. 2. These written notices would have been mandated by federal regulation. Domestic Mail Manual Issue 38 (2-24-91) §§ 912.51-.52.

6. As quoted above, the Iowa Administrative Procedures Act requires "delivery" of the Notice of Hearing by certified mail. Iowa Code § 17A.12(l). "Delivery," however, is a word which has acquired a peculiar and appropriate meaning in the law and this meaning controls when determining the legal effect of the statutory requirement for delivery. Iowa Code § 4.1(2). "Delivery" is "the act by which the [thing] or substance thereof is placed within the actual or constructive possession of another." BLACK'S LAW DICTIONARY 385-86 (5th ed. 1979) (emphasis added). "A constructive delivery of [a thing] takes place when [it] is set apart and notice given to the person to whom [it is] to be delivered." Id.

7. The concept of "constructive notice" yields a similar result. "Constructive notice is a legal fiction. . . . It is the law's substitute for actual notice. . . . It is based on the premise that a person has no right to shut his eyes or ears to avoid information and then say he had no notice." 58 AM. JUR. 2D Notice § 8 (1989). "[C]onstructive notice [is] chargeable to one who willfully avoids actual notice by refusing to accept [or deliberately ignoring] a notice by certified mail, return receipt requested." Id. at § 33.

8. If the greater weight of the evidence had shown that Bernice Roman had received either of these written notices, the Commission would have effected a constructive delivery of the Notice of Hearing and also given her constructive notice of the hearing. The evidence did not demonstrate this and therefore the case against Ms. Roman was dismissed without prejudice. See Finding of Fact No. 2.

Notice of New Issues Raised at Hearing:

9. As noted in the Findings of Fact, there were several issues that were tried although not specifically mentioned in the complaint. See Finding of Fact No. 10. Although these issues were not mentioned in the complaint, sufficient notice on these issues, all of which were closely related to allegations set forth in the complaint, was given when evidence on them was introduced at the hearing:

[T]he individual is given actual notice of the new issues when evidence on them is introduced at the hearing. "Actuality of notice there must be, but the actuality, not the technicality, must govern."
...

If [the individual]-does not request [a continuance to meet the new issues] and elects instead to proceed with the hearing, he waives the claim of surprise. He may not subsequently challenge issues actually litigated; actual notice and adequate opportunity to cure surprise (by requesting a continuance] are all he is entitled to.

B. Schwartz, Administrative Law 285-86 § 6.5 (1984).

Official Notice:

10. Official notice may be taken of all facts of which judicial notice may be taken and of matters 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). Official notice of documents reflecting mailing of the notice of hearing is proper because judicial notice may be taken of "all the ... jurisdictional papers in a case on trial and the same need not be introduced in evidence." Searls v. Knapp, 5 S.D. 325, 327, 58 N.W. 807, 808 (1894)(taking judicial notice of summons and pleading), quoted in In Re Williams Estate, 90 S.D. 173,240 N.W.2d 74,76 (S.D. 1976); see Slater v. Roche, 148 Iowa 413, 126 N.W. 121 (1910)(taking judicial notice of writ of attachment and return of service as papers properly filed or returned). See Findings of Fact Nos. 1, 2, 38.

Order and Allocation of Proof in Housing Discrimination Cases Under the Disparate Treatment Theory:

11. The same orders and allocations of proof utilized in disparate treatment employment discrimination cases are also utilized in housing discrimination cases under the disparate treatment theory. R. Schwemm, Housing Discrimination.Law 405 (1983); Pinchback v. Armistead Homes Corp., Fair Hous. Fair Lend. (Looseleaf) § 15638 at p. 16273- 74 (4th Cir. 1990). Disparate treatment theory focuses on whether the Complainant has been "intentionally singled out for adverse treatment on the basis of a prohibited criterion.".Henson v. City of Dundee, 682 F.2d at 903.

12. Disparate treatment is shown when:

The employer [or landlord in housing cases] . . . treats some people less favorably than others because of their race [or the race of those they associate with]. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.

Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977).

Order and Allocation of Proof Where Complainant Relies on Direct Evidence of Discrimination:

13. "Direct evidence" is that "evidence, which if believed, proves existence of [the] fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect". BLACK'S LAW DICTIONARY 413-14 (1979).

14. Direct evidence that a protected class status, such as race, is a motivating factor in housing policies and practices concerning tenants or guests of tenants and actions of those persons would include comments by decision makers expressing either a preference for or an aversion to tenants or their guests who are members of a particular protected class. C.f. Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (llth Cir. 1985)(supervisor's statements of surprise-at longevity of staff members, of need for "new blood," of intent to recruit younger employees, and comment on plaintiff's "advanced age" causing stress was direct evidence of age discriminatory intent in discharge); Miles v. M.N.C. Corp., 750 F.2d 867, 36 Fair Empl. Prac. Cas. 1289, 1294-96 (llth Cir. 1985)(hiring official's statement that he had no black employees because they "weren't worth a sh-" was direct evidence of discrimination in failure to recall from layoff); Jackson v. Wakula Springs & Lodge, 33 Fair Empl. Prac. Cas. 1301, 1307 (N.D. Fla. 1983)(use of racial slurs by individual responsible for discharge is direct evidence of racial animus in termination); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 2nd ed. 1989)(Either policies which on their face call for consideration of a prohibited factor or statements by relevant managers reflecting bias constitute direct evidence of discrimination).

15. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the Complainant because of the prohibited basis; third, to consider any affirmative defenses of the Respondent; and,fourth, to then conclude whether or not i I legal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522,530 (Iowa 1985), is inapplicable. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989) (O'Connor, J.concurring); Trans World Airlines v. Thurston, 469 U.S. 11 1, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Pinchback v. Armistead Homes Corp., Fair Hous. Fair Lend. (Looseleaf) § 15638 at p. 16274-75 (4th Cir. 1990)(housing discrimination case).

16. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of-discrimination, and why the Respondent's defenses are then treated as affirmative defenses, i.e. the Respondent has a burden of persuasion and not just of production, is because:

[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by. That the (Respondent's] burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination.

Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990).

Violation of Iowa Code § 601A.8(3)[Indication that Owner or His Agent Objected to Rental of Housing Accommodation By Blacks]:

17. In this case, there is direct evidence in the record that the Respondent Abeln, while "acting for" Respondent Roman, Vindicated .. that the ... rental. . . of any ... housing accommodation ... by persons of [a] particular race [i.e. blacks] [was] unwelcome, objectionable, not acceptable, or not solicited." Iowa Code § 601A.8(3). See Findings of Fact Nos. 6, 11. The inquiry, however, does not end there, for the affirmative defenses of the Respondent must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

18. The only defense offered by Respondents (other than a denial of the statements which was found to not be credible) is that Abeln's speech is protected by the First Amendment to the Constitution of the United States. (Respondent Roman's Letter In Lieu of a Brief Received on June 28, 1991) (hereinafter "Respondent's Letter"). See Finding of Fact No. 62. Since Iowa Code section 601A.8(3) does prohibit Abeln's speech indicating that he did not wish to rent to blacks, this defense amounts to an argument that this section is unconstitutional. Since no administrative agency has the legal authority to rule on the constitutionality of its enabling statute, the Commission must decline to rule on this issue. Salsbury Laboratories v. Iowa Department of Environmental Quality, 276 N.W.2d 830, 836 (Iowa 1979). Violation of Iowa Code section 601A.8(3) has, therefore, been established. Cf. United States v. L & H Land Corp., Inc., 407 F. Supp. 576, 579-80 (S.D. Fla. 1976)(Statements to effect that black persons not allowed at apartments indicates violation of Federal fair housing laws).

Violation of Iowa Code Section 601A.8(4)(Housing Discrimination on the Basis of the Race of a Guest or Visitor) as Shown by Direct Evidence.

19. As noted in the Findings of Fact, there was direct evidence in the record indicating Respondent Abeln's hostility to blacks as tenants in general, and toward Jack High and, to a lesser extent, his father, as black guests of the Poltons. See Findings of Fact Nos. 11, 16-17. This hostility manifested itself in the forms of a threat of physical violence, complaints, and warnings concerning too many visitors; complaints and warnings concerning too much noise, calling the police, and unlocked security doors; an eviction notice, and, ultimately, Complainant's constructive eviction from the apartment. See Findings of Fact Nos. 25, 28, 33, 40-41, 47, 56, 58.

20. The Respondents failed to meet their burden of persuasion with respect to any of the defenses proffered for these actions. In this instance, their First Amendment defense seems to be directed not at the constitutionality of the statute per se, but at the use of Respondent Abeln's statements as evidence of discriminatory intent. The Commission, therefore, has the power to rule on this issue. Despite First Amendment concerns, "there is little doubt that a racial statement may at least be used as evidence of the Defendant's motive in [housing discrimination cases]." R. Schwemm, ' Housing Discrimination Law 418 (1983). "Resort to epithets or personal abuse . . . is not in any proper sense communication of information or opinion safeguarded by the Constitution." In Re Welfare of R.A.V., 464 N.W.2d 507, 511 (Minn. 1991)(quoting Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)).

21. Furthermore, acts of housing discrimination may be compared to acts of invidious discrimination in public accommodations which, "like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact are entitled to no constitutional protection." Roberts v. United States Jacyees, 468 U.S. 609, 628, 82 L. Ed. 2d 462,478,104 S.Ct. 3244 (1984). Cf. Hishon v. King & Spalding, 467 U.S. 69, 78, 81 L. Ed. 2d 59, 68-69, 104 S. Ct. 2229 (1984)("[i]nvidious private discrimination [in employment] may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.").

22. All of these acts were in violation of the Act's prohibition against "any owner or person acting for an owner to discriminate against the lessee . . . because of the race of persons who may . . . be present in or on the lessee's premises . . . as friends, guests, visitors Iowa Code §
601A.8(4).

Ruling in the Alternative: Showing of Iowa Code Section 601A.8(4) Violation Under Order and Allocation of Proof Where Complainant Relies on Circumstantial Evidence of Discrimination:

23. 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 Complainant to persuade the finder of fact that the elements of each allegation of discrimination and retaliation have been proven. Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728,733 (Iowa 1981). 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).

24. 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).

25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burdens of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence. " Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985)(emphasis added).

26. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores Inc., 392 N.W.2d 154, 156 (Iowa 1986). This showing is not the equivalent of an ultimate factual finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 579 (1978). Once a prima facie case is established, a presumption of discrimination arises. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, .156 (Iowa 1986); Pinchback v. Armistead Homes Corp., Fair Hous. Fair Lend. (Looseleaf) § 15638 at p. 16274 (4th Cir. 1990).

27. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, nondiscriminatory reason for its action. Id.; Linn Cooperative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). If the Respondent does nothing in the face of the presumption of discrimination which arises from the establishment of a prima facie case, judgment must be entered for Complainant as no issue of fact remains. Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). If Respondent does produce evidence of a legitimate non-discriminatory reason for its actions, the. presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154,156 (Iowa 1986).

28. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175,178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175,178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n. 1 0 (1 981)).

29. This burden of production may be met through the introduction of evidence or by cross-examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 1 01 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at 1 67 L. Ed. 2d at 217. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 717-18 (1983) (Blackmun, J. concurring).

Prima Facie Case of Discrimination:

30. The burden of establishing a prima facie case of discrimination under the disparate treatment theory is not onerous. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248,253 (1981). The Complainant is merely required to produce enough evidence to permit the trier of fact to infer that the Respondent's action was taken for a discriminatory or retaliatory reason. Id. at 254 n.7. A primafacie case may be shown in a variety of ways as there will be different factual circumstances present in each case. Teamsters v. United States, 431 U.S. 324, 358 (1977)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973)).

31. While a prima facie case of racial discrimination may be established through evidence demonstrating that similarly situated black and white individuals were treated differently, it may also be established through a "showing of treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." City of Minneapolis v. Richardson, 239 N.W.2d l97, 202 (Minn. 1976).

32. An example of the latter, a prima facie case of disparate treatment in hiring, is established by proof that: (1) Complainant is member of a protected class, e.g. a racial minority, (2) Complainant applied and was qualified for position for which employer seeking applicants, (3) Despite qualifications, Complainant is rejected, and (4) Employer continues to seek applicants of Complainant's qualifications. Schlei & Grossman, Employment Discrimination Law 1298 (1983)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The presumption of illegal discrimination under this formula arises not because of any showing of different treatment of black and white applicants, but "because it eliminates the most likely legitimate causes for the employer's adverse action-a lack of minimum qualifications and the absence of a job opening. If these are not the causes, it is presumed that the employer's actions, unless otherwise explained, are more likely than not based on discrimination." Schlei & Grossman, Employment Discrimination Law at 1299.

33. Prima facie cases of discrimination were established in regard to the allegations in this case through three different methods. The first method of establishing a prima facie case applies to all the Respondent actions listed in Finding of Fact No. 56. A prima facie case was established by evidence showing:

(1) that Respondent Abeln had authority to act on behalf of Respondent Roman and to enforce rules by warning tenants, both verbally and in writing;
(2) that Respondent Abeln verbally expressed a racial animus toward blacks in general, toward Jack High as a black who visited the Poltons, and toward the Poltons for having blacks as visitors; and
(3) that Respondent Abeln's actions were identified either with a concern about too many visitors, about Jack High visiting too often, or about acts committed by Jack High or unnamed guests.

34. A prima facie case of discrimination was also established by a second method, i.e. a showing of different treatment of the Poltons with respect to the Respondents' complaints and warnings to the Poltons concerning excessive noise and the security doors being left unlocked. See Findings of Fact Nos. 4144, 45-47. See Conclusion of Law No. 31.

35. Third, and finally, a prima facie case of discrimination was shown with regard to the 12 gauge shotgun threat, and the warnings given the Poltons with respect to their calling the police concerning potential criminal activity, and the noise made by twice opening and closing the security door on New Year's Eve. These actions were so at variance with what normally would be expected absent discrimination that discrimination is the probable explanation. See Findings of Fact Nos. 18-20, 26-28, 36-40. See Conclusion of Law No. 31.

36. Complainant Polton did not establish a prima facie case with respect to any of the allegations identified in Finding of Fact No. 57.

Respondent's Evidence of Legitimate Non Discriminatory Reasons and Complainant's Showing of Pretext:

37. In order to rebut the Complainant's prima facie case, the -Respondent must introduce admissible evidence which would allow the finder of fact to rationally conclude that the challenged decision was not motivated by discriminatory animus. Linn Cooperative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981). Respondents' did not produce evidence articulating any legitimate non-discriminatory reason for the 12 gauge shotgun threat. A flat denial which is not credible is not a legitimate nondiscriminatory reason for an act. Therefore, with regard to this allegation, Respondents have failed to rebut the Complainant's prima facie case. Discrimination is established. See Conclusion of Law No. 27.

38. Respondents also failed to provide evidence of specific instances of the "too much noise, not obeying the rules, and too much company" reasons for issuance of the notice of termination of lease. See Finding of Fact No. 35. Respondents were required to produce evidence sufficient to raise "a genuine issue of material fact as to whether Respondent discriminated against the Complainant." Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). The nondiscriminatory reason proffered "must be specific and clear enough for the [Complainant] to address and legally sufficient to justify judgment for the (Respondent]." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175,178 (Iowa Ct. App. 1988).

39. Statements describing conclusions and beliefs are not sufficient to establish the existence of a genuine issue of material fact. See ' Gruener v. City of Cedar Falls, 189 N.W.2d 577,580 (Iowa 1971). Also, what evidence there is of these conclusions and beliefs is based on what Bernice Roman reported to Complainant Polton. Such evidence is not sufficient to show the existence of genuine issue of material fact. Id. When, as here, a Respondent fails to state a sufficient reason to meet its burden of production, the Complainant "need only prove the elements of the prima facie case to win." Loeb v. Textron, 600 F.2d 1003,1018, 20 Fair Empl. Prac. Cases 29, 40 n.20 (lst Cir. 1979). This has been done here. See Conclusion of Law No. 33.

40. There is evidence in the record of legitimate non- discriminatory reasons, i.e. specific instances of rule violations, for other actions of Respondents. All of these reasons were shown to be pretextual either because discrimination was the more likely motive for these actions or because the explanations were not worthy of belief, or both. See Findings of Fact Nos. 25, 28, 32-33, 39-41, 47. See Conclusion of Law No. 28.

Constructive Eviction:

41. The constructive discharge standards in employment discrimination cases, may, by analogy, provide guidance with respect to the standards required to show a constructive eviction in housing discrimination cases.

42. Constructive eviction exists when the owner, or one acting on his behalf, deliberately makes a lessee's living conditions so intolerable that the lessee is forced into an involuntary termination of her lease. Cf. First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission, 315 N.W.2d 83, 87 (Iowa 1982)(citing e.g. Young v. Southwestern Savings and Loan Association, 509 F.2d 140,144 (5th Cir. 1975)(constructive discharge cases). An objective standard may be stated for determining when a constructive eviction has occurred: "To find constructive [eviction], the fact finder must conclude that, "[living] conditions would have been so difficult or so unpleasant" that a reasonable person [in the lessee's position] would be compelled to [terminate her lease]." Cf. Id. (citing Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir. 1980))(constructive discharge cases). It is not necessary to show that intolerable living conditions were imposed by the owner or one acting for him for the purpose of forcing the lessee to quit the premises. Cf. Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir. 1980)(explaining Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975)(constructive discharge cases)). It is sufficient to show that the owner or one acting on his behalf knowingly allowed such intolerable conditions to occur. Cf. Goss v. Exxon Off ice Systems Co., 747 F.2d 885, 888 (3rd Cir. 1984)(constructive discharge case).

43. In accordance with this objective standard, a case of constructive eviction may be completely established by showing:

(1) that a reasonable person in the [complainant's] position would have found the [living] conditions intolerable;

(2) that conduct which constituted a[n] [Iowa Civil Rights Act] violation against the [complainant] created the intolerable [living] conditions; and

(3) that [complainant's] involuntary [termination of lease] resulted from the intolerable [living] conditions.

Cf. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative-Supplement 269 (2nd ed. 1989)(constructive discharge standards). All three of these factors have been established by a preponderance of the evidence.

Agency:

44. Not only is Respondent Abeln liable for his discriminatory actions, as "a person acting for an owner," Iowa Code section 601A.8, but Respondent Roman is also liable for Abeln's actions. This is so because, Respondent Abeln, in his capacity as building manager, was Respondent Roman's agent. An agent is "one who undertakes to transact some business, or to manage some affair, for another, by the authority of and on account of the latter, and render an account of it. One who acts for or in place of another by authority from him." BLACK'S LAW DICTIONARY 59 (5th ed. 1979). The owners of rental property are liable for the illegal discriminatory actions of their employees and managing agents "under the doctrine of respondeat superior and because the duty to obey the law is non delegable" even if they were unaware of their employees' or agents' actions. United States v. L & H Land Corp., Inc., 407 F. Supp. 576, 578-79, 580 (S.D. Fla. 1976)(citing e.g. Marr v. Rife, 503 F.2d 735 (6th Cir. 1974); United States v. Robbins, P.H.E.O.H. Rptr. Para 1365.5 (S.D. Fla 1974).

Credibility and Testimony:

45. In addition to the factors mentioned in the section entitled "Course of Proceedings" and in the findings on credibility in the Findings of Fact, the Administrative Law Judge has been guided by the following two 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).

Remedies:

46. Violation of Iowa Code section 601A.8 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 § 601A.15(8) (1989). 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 for Increased Rental Costs:

47. The Iowa Civil Right Commission has the statutory authority to award actual damages which are intended to compensate the victims of discrimination for losses incurred resulting from the discriminatory acts. Iowa Code § 601A..15(8). See Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382-83 (Iowa 1986). Since Complainant Polton had to pay an increased rent as a result of her constructive eviction, she should be compensated for the loss.

Damages for Emotional Distress:

48. The Iowa Civil Rights Commission has the power to award damages as compensation for emotional distress sustained due to discrimination. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code § 601A.15(8)). 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 of Emotional Distress:

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

50. 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. See 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. 111. 1981).

51. 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:

52.

Because compensatory damage awards for mental distress are designed to compensate a victim of discrimination for an intangible injury, determining the amount to be awarded for that injury is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages."
...

Computing the dollar amount to be awarded is a function of the finder of fact. Juries and judges have been making such decisions for years without minimums or maximums, based on the facts of the case [and] the evidence presented on the issue of mental distress.

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)).

53. 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 § 905). Interest:

Pre-Judgment Interest:

54. The Iowa Civil Rights Act allows an award of actual damages to persons injured by discriminatory practices. Iowa Code § 601A.15(8)(a)(8). Prejudgment interest is a form of damages. Dobbs, Hornbook on Remedies 164 (1973). It "is allowed to repay the lost value of the use of the money awarded and to prevent persons obligated to pay money to another from profiting through delay in litigation." Landals v. Rolfes Company, 454 N.W.2d 891, 898 (Iowa 1990). Pre-judgment interest is properly awarded on an ascertainable claim. Dobbs, Hornbook on Remedies 166-67 (1973). Because the amount of increased rental due the Complainant at any given time has been an ascertainable claim since the time of her constructive eviction, pre-judgment interest should be awarded on the increased rental costs. Such interest should run from the date on which Complainant's rental payments would have been made if there were no discrimination. Cf. Hunter v. Allis Chalmers Corp., 797 F.2d 1417, 1425-26 (7th Cir. 1986)(interest on back pay - common law rule). The method of computing pre-judgment interest is left to the reasonable discretion of the Commission. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 543 (2nd ed. 1989). No pre-judgment interest is awarded on emotional distress damages because these are not ascertainable before a final judgment. See Dobbs, Hornbook on Remedies 165 (1973).

Post-Judgment Interest.

55. Post-judgment interest is usually awarded upon almost all money judgments, including judgments for emotional distress damages. Dobbs, Hornbook on Remedies 164 (1973).