VI. RULING IN THE ALTERNATIVE # 2: THE COMMISSION AND THE COMPLAINANT
HAVE NOT ONLY ESTABLISHED A PRIMA FACIE CASE BUT HAVE DEMONSTRATED
THAT THE LEGITIMATE NON-DISCRIMINATORY REASONS FOR THE FAILURE
TO HIRE COMPLAINANT ARTICULATED BY RESPONDENT ARE PRETEXTS FOR
DISCRIMINATION:
101. Complainant Whaley established a prima facie case of discrimination under the order and allocation of proof utilized in cases relying on circumstantial evidence of discrimination. Respondent concedes that she established a prima facie case. See Findings of Fact Nos. 18-19.
102. Respondent articulated, through the production of evidence, in the form of the testimony of Robert Eldredge, legitimate non-discriminatory reasons for its actions. These reasons were (1) Carey's "real wide experience in a number of things" and (2) "he had ambitions to promote himself through the field of parks and recreation as far as he could go, and I liked that attitude. . . . [He had] a spirit that had a lot of initiative in it and a lot of vitality in it." (Tr. at 238, 239-40). See Finding of Fact No. 48.
103. The Commission concludes these reasons are pretexts for discrimination in light of the combination of the following facts: (a) the Respondent's reasons are false and unworthy of credence and (b) the inference of intentional discrimination remaining from the prima facie case.
104. Some of the reasons for concluding that the reasons given for hiring Carey over Whaley are false have already been discussed. See Findings of Fact Nos. 50-53. In addition to these reasons, Complainant Whaley had far better objective qualifications for the challenged position than Jack Carey. This is true whether measured by the qualifications set forth in Respondent's job description, the criteria mentioned by Robert Eldredge in his testimony, or by the major job responsibilities shown by stipulation and testimony in the record. See Findings of Facts Nos. 67-96. Such a wide disparity in objective qualifications is also probative of discriminatory intent in this case. See Conclusion of Law No. 46.
105. With respect to the subjective reasons relating to ambition, vitality and initiative, pretext is found because the Complainant, unlike Mr. Carey, was never given the opportunity at her interview to state the reasons why she wanted the position. The procedure followed in this regard also varied from the procedure which Eldredge testified he followed in interviews. Also, the record demonstrated Complainant Whaley was ambitious. See Findings of Fact Nos. 63-64. The use of these subjective measures under these circumstances reflects a potential for discriminatory abuse which is sufficiently high to establish intentional disparate treatment on the basis of sex. See Conclusion of Law No. 48.
106. Other evidence of intentional discrimination is found in the violation of Respondent's affirmative action program with respect to the City's Equal Opportunity Appointment Policy. See Conclusion of Law No. 49. As indicated in the stipulations and testimony, the Equal Opportunity Administrator was to have been notified and given the opportunity to review the proposed hiring decision prior to a final offer. He could then ensure it conformed to the Affirmative Action Plan and make appropriate recommendations. He could attempt to block the appointment. The Equal Opportunity Administrator was denied this opportunity with respect to the challenged position as he was not notified until after the offer and acceptance of the position had been completed. (Stip. Nos. 22-34; Tr. at 288, 290-92, 298-300, 304-05, 311-312). The preponderance of the evidence in the record points to sex discrimination in this hiring. When viewed in the light of this record, this failure to follow the normal procedure of notifying the Equal Opportunity Administrator prior to filling a position is further evidence of discriminatory intent.
107. The Respondent's reasons are also found to bepretexts for discrimination because the Complainant and the Commission demonstrated through the credible direct evidence in the record that sex discrimination is the more likely reason for the failure to hire Complainant Whaley. See Findings of Fact Nos. 20-21, 38-43, 50-53.
108. The Commission finds that the Complainant and Commission have established sex discrimination in the Respondent City of Des Moines's failure to hire Complainant Whaley for the challenged Recreation Supervisor position.
VII. LACHES:
A. Respondent's Position:
109. In the first footnote in Respondent's brief, the City of Des Moines notes that two of its witnesses, Willie Robinson and Jennifer Marcouiller were asked questions by the Commission's representative "concerning their ability to recall facts and circumstances from late 1987 and early 1988 as they testified in January 1994." Respondent suggested that the Commission's attorney attempted "to denigrate" Marcouiller's testimony "because of the passage of time." While mentioning these concerns, the City did not explicitly argue either that any memory flaws which these witnesses may have sustained were due to the Commission's delay in processing the case or that such flaws or delay materially prejudiced the Respondent. (Respondent's Brief at 2-3 n.1 (citing Tr. at 313, 323)).
110. Respondent argues that "the delay in bringing this contested case to hearing is entirely attributable to the Commission and Complainant." Without citation to any legal authority on the issue, Respondent suggests that "any adverse consequences flowing from such delay must be borne by the Commission and the Complainant." Respondent does not suggest what those consequences might be. (Respondent's Brief at 2-3 n.1). While there is no specific reference to laches in the footnote, this footnote is apparently intended to refer to this affirmative defense. Respondent bears a burden of persuasion which requires it to establish such an affirmative defense by clear, convincing and satisfactory proof. See Conclusion of Law No. 55. It is not necessary, however, to rule on this issue on the merits because of the Respondent's failure to raise it in a timely and effective manner.
B. Ruling on Motion to Dismiss:
111. On September 28, 1993, Respondent filed a Motion to Dismiss. (Motion to Dismiss). On October 19, 1993, Respondent's motion to dismiss, based in part on the doctrine of laches, was overruled after a taperecorded in person hearing before the undersigned. The motion was overruled on the grounds that Respondent had failed to introduce any evidence which showed either unreasonable delay or material prejudice by any delay on the part of the Commission and the Complainant in the processing of this case. (Ruling on Motion to Dismiss).
112. The Ruling found the following facts which are pertinent to the issue of delay:
1. The complaint in the instant case was filed with the Iowa Civil Rights Commission on March 8, 1988. (Notice of Hearing). Conciliation was attempted and failed. (Letter to Respondent of September 15, 1993). The case was assigned to the undersigned Administrative Law Judge on September 15, 1993. (Assignment to Administrative Law Judge). Notice of Hearing was issued on October 13, 1993. (Notice of Hearing).
2. Although various dates have been asserted in Respondent's Brief [in support of its motion to dismiss] for the filing of the city's initial response to the complaint, the filing of further documents, the interview of Mr. Eldredge, and the probable cause finding, there is no evidence in the record supporting or contradicting the dates of these events. (Respondent's Brief at 1-2). In the absence of supporting evidence in the record, these facts are not established.
3. Various other facts are also asserted on brief with respect to the past and present composition of the Park and Recreation Department's supervisory staff, Mr. Eldredge's retirement and Mr. Delorenzo's resignation, the length of time the selected applicant has been in the position, the number of such positions in the city, and the complainant's promotion to Senior Administrative Aide. (Respondent's Brief at 5-6). There is no evidence in the record supporting or contradicting these asserted facts. In the absence of supporting evidence in the record, these facts are not established.
4. There are assertions on brief that "[a]ny relief granted to Complainant will not affect the alleged perpetrators of discrimination. Further, it will disrupt and impair the efficiency, morale and discipline of City staff themselves having no part in the challenged action." (Respondent's Brief at 5-6). There is no evidence in the record supporting or contradicting these asserted facts. In the absence of supporting evidence in the record, these facts are not established.
. . .
6. While the record establishes that there has been a passage of time since the filing of the complaint, Respondents have introduced no evidence establishing what date the investigation began, when probable cause was found, when conciliation attempts occurred, whether there has been an unreasonable delay in the processing of this complaint by the Commission or Complainant, or whether Respondents have been prejudiced by such delay. There is no evidence in the record establishing these facts.
(Ruling on Motion to Dismiss). By failing to make a record
of unreasonable delay or material prejudice at the hearing on
the motion to dismiss, Respondent failed to make an objection
to these proceedings which was both timely and effective. This
failure cannot be cured by again raising the issue on brief after
hearing. Thus, Respondent has failed to establish its laches defense.
See Conclusions of Law No. 56-57.