BEFORE THE IOWA CIVIL RIGHTS COMMISSION

DIANE HUMBURD, Complainant,

VS.

MARY A. HARLAN and VIRGIL G. HARLAN, Respondents.

CONCLUSIONS OF LAW

Jurisdiction

1. Diane Humburd's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(11) (1983). See Finding of Fact No. 1. All the statutory prerequisites for hearing have been met, 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. 2.

2. Shortly before the Harlans' refusal of service to Ms. Humburd, the statutory definition of the term "Public Accommodations" was changed by amendment. This revised definition of the term "Public Accommodation" with the deletions bracketed by the symbols "< >" and in bold print, and the additions underlined and in italicized print, states, in relevant part:

10. "Public accommodation" means each and every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods to the general public for a fee or charge to nonmembers or any organization or association utilizing the place, establishment, or facility .... Public accommodation shall not mean any bona fide private club or other place, establishment, or facility which is by its nature distinctly private, except when such distinctly private place, establishment, or facility caters or offers services, facilities, or goods to the <general public> nonmembers for a fee or charge. . . it shall be deemed a public accommodation during such period.

1984 Iowa Acts 70 ch. 1096 (effective July 1, 1984).

3. Prior to this amendment, the definition of "public accommodation" made reference to "the general public" rather than to "nonmembers." Iowa Code § 601A.2 (1983). The former definition also did not include the phrase "nonmembers of any organization or association utilizing the place, establishment, or facility." Id. The Iowa Supreme Court has noted that the former definition mirrored a proposed statute designed to avoid a construction of the statute which would unduly restrict the Act's coverage of places open to the general public for a fee. United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450, 454-55 (Iowa 1988). In other words, the former definition was written so as to include all places open to the general public for a fee within the Commission's jurisdiction unless they came within a specific exception to the statute. See id.

4. The issue of whether the Respondents' child care services constitute a "public accommodation" was raised by Respondent Mary Harlan's motion to dismiss. (Tr. at 104, 113). In order to make a reasoned determination of whether the evidence shows that the Respondents' child care services are within the current definition of "Public Accommodation" and, therefore, within the Commission's subject matter jurisdiction, it is necessary to ascertain what was the effect of the 1984 amendments. Were the changes incorporated in the language of the present statute intended to effect a drastic, restrictive change in the definition of public accommodation so that only places, establishments, and facilities which are utilized by organizations and associations, and which also offer their services, facilities, or goods to nonmembers for a fee, are now within the definition of public accommodation? Or does the present definition of public accommodation still reflect the broad coverage of places that are open to the public which was incorporated in the former definition?

5. The Iowa Supreme Court's treatment of this amendment Strongly suggests that it is viewed as an amendment to minor details of the statute. See United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450, 455 (Iowa 1988). In the Jaycees case, the Court applied, using this amendment, the principle that amendment to minor details of a statute casts light on the legislative intent in regard to the meaning of the statue as it existed before amendment. Id. The Court concluded that this amendment was intended to simply "clarif[y] the distinction between the 'place, establishment, or facility' which qualifies as a 'public accommodation' and the ,organization or association' which uses the accommodation." Id. (emphasis added).

6. The Court's treatment of the revised statute implies that no drastic changes in coverage were effected by the amendment. Id. Therefore, under the present statute, the emphasis in determining whether an entity is a public accommodation should continue to be places on ascertaining whether it is a "place, establishment or facility" and not on whether it is utilized by an "organization or association." See id. at 454-55. Given the absence of any extreme change in the coverage of the statute, it may reasonably be concluded that the reference to "nonmembers" in the present definition of "public accommodation", includes, at a minimum, those persons who constitute "the general public" as that term was used in the former statute. See Good v. Iowa Civil Rights Commission, 368 N.W.2d 151, 155-56 (Iowa 1985). Such a construction of the statute also conforms to the legislative mandate that the act be broadly construed to eliminated unfair and discriminatory practices in public accommodations. Iowa Code § 601A.18 (1989); Ladd v. Iowa West Racing Association, 438 N.W.2d 600, 602 (Iowa 1989).

7. In September of 1984, the child care business at the Harlans' residence occurred at a "place" or "establishment" within the meaning of the statute. United States Jaycees v. Iowa Civil Rights Commission, 427 N.W.2d 450, 454 (Iowa 1988). See Findings of Fact Nos. 6, 12, 13. This business "offer[ed] services" to the general public and therefore was a public accommodation as that term is defined in the Act. Id. See 1984 Iowa Acts 70 ch. 1096. See Findings of Fact Nos. 6-8.

Default Judgment

8. A motion that default judgment be entered against Respondent Virgil Harlan was made by the attorney for the Iowa Civil Rights Commission. (Tr. at 102). "A 'default' is a failure to take the step required in the progress of an action and a judgment by default is a judgment against the party who has failed to take such step." Kirby v. Holman, 238 Iowa 355, 374, 25 N.W.2d 664 (1947). The question of whether or not to enter a default judgment is largely within the discretion of the adjudicating body. See Johnson v. Gib's Western Kitchen, Inc., 338 N.W.2d 872, 874 (Iowa 1983). In district court, for example, the court is not required to enter a default judgment even though the conditions set forth in the specific Rules of Civil Procedure governing the entry of default judgments have been met. Id. The policy of the law is to favor trial on the merits. Id.

9. In order to enter default judgment against a respondent, it must first be shown, where the respondent has not voluntarily appeared, that the adjudicating body acquired personal jurisdiction over the respondent. 49 C.J.S. Judgments § 24 (1947); 47 AM. JUR. 2D Judgments § 1174 (1969). Such acquisition of personal jurisdiction is shown by proof of service of process, i.e. service of the notice of hearing. 49 C.J.S. Judgments § 24; 47 AM. JUR. 2D Judgments § 1174 (1969). This rule is consistent with those rules of civil procedure which operate together to require that a defendant in a civil action, who has neither appeared nor filed an answer or motion, has been served with process prior to the entry of default. See Iowa R. Civ. Pro. 53, 230.

10. This proceeding is a "contested case" under the Iowa Administrative Procedures Act because it is "a proceeding ... in which the legal rights, duties or privileges of a party are required by ... statute to be determined by an agency after an opportunity for an evidentiary hearing." Iowa Code §§ 17A.2 (2), 601A.15 (1989). As such, service of the notice of hearing may be made on a respondent by "personal service as in civil actions or by certified mail return receipt requested." Iowa Code § 17A.12(l) (1989).

11. Personal jurisdiction was acquired over Respondent Virgil Harlan by the Commission because evidence in the record and documents officially noticed in the record prove that the statutory requirements for service of the notice of hearing have been met. See Findings of Fact Nos. 2-4.

12. Official notice may be taken of all facts of which judicial notice may be taken. 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 these documents 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).

13. In light of the Commission's acquiring personal jurisdiction over Respondent Virgil Harlan, of his failure to respond to either the Notice of Hearing or the Order setting the final date for hearing, and his failure to be present or represented at the hearing, the motion for entry of default judgment should be granted. See Findings of Fact 2-5. Under these circumstances, denial of default judgment would not serve the policy of the law favoring hearing on the merits.

Order and Allocation of Proof

14. The burden of proof or "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 is on the complainant to persuade the finder of fact that prohibited discrimination on the basis of race in the area of public accommodations has occurred. See Iowa Code § 601A.15 (7) (1983) (this section refers to the burden of the "Commission"). Cf. e.g. King v. Iowa Civil Rights Commission, 334 N.W.2d 598, 602 (Iowa 1983) (complainant has burden of proof in religious discrimination in employment case); Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981) (complainant had burden of proof in sex discrimination in employment case).

15. Although Federal court decisions applying Federal anti-discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829,831 (Iowa 1978), they are often relied on as persuasive authority in cases under the Act. ' Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

16. There is authority which indicates that 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 is discriminatory on the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal 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 Fairgounds Security, 322 N.W.2d 293 (Iowa 1982), is inapplicable. Price Waterhouse v. Hopkins, U.S., 57 L.W. 4469, 4481 (1989) (0,Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

17. In this case, there is direct evidence in the record to the effect that Ms. Humburd was denied child care services by the Harlans because of her race. The same evidence demonstrates that the Harlans "directly or indirectly ... indicate[d] ... that the patronage of persons of [the black] race ... is unwelcome, objectionable, not acceptable, [and] not solicited." Iowa Code § 601A.7 (1983). See Findings of Fact Nos. 13-15, 17-18. The inquiry, however, does not end there, for the 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).

Mr. Harlan's Metal Illness

18. Respondent Mary Harlan asserts that her acquiescence in the practice of racial discrimination advocated by her husband, Respondent Virgil Harlan, should be excused because was "doing nothing more than attempting to appease her husband . . . . [b]ecause of [his] mental illness and disease [and the advice of] doctors to try to keep him from becoming angry. Defendant's Brief at 9. This defense should be rejected for several reasons.

19. First, neither mental illness nor acting to appease one who is mentally ill are affirmative defenses specifically recognized by the statute.

20. Second, mentally disabled persons are usually held liable for their torts, i.e. civil wrongs or injuries, other than breach of contract, which may be remedied by damages. Keeton, Prosser and Keeton On Torts 1072 (5th ed. 1984); Wertz v. Wertz, 43 Iowa 534, 536-37 (1876) (dictum); Behrens v. McKenzie, 23 Iowa 333, 343 (1867) (dictum). Certainly, if this principle applies, as it does, to civil actions, which are mechanisms designed to remedy specific disputes, then it should apply to this administrative process which is designed to correct "a broader pattern of behavior," i.e. "the practice of discrimination." Ironworkers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971).

21. Third, the underlying rationale given for holding the mentally ill person liable for his torts applies equally well to violations of the statute and also serves, in part, to demonstrate why the "appeasement" defense should be rejected:

[I]t is better that the estate of the [mentally disabled person] be taken to give compensation for the damage he has done than that it should remain to be administered by guardians for his own incompetent benefit. . . [A]Iso . . . if he is held liable, his custodians and those interested in his estate will be stimulated to keep him in order, and that since insanity is easily feigned, there would be too much temptation to pretend it.

Keeton, Prosser and Keeton on Torts 1073 (5th ed. 1984) (emphasis added).

22. Fourth, if a person chooses to operate a public accommodation out of his or her home, they have a legal duty to refrain from denying offered services to customers because of their race. Iowa Code § 601 A.7. If they cannot meet that duty because of opposition to the legal requirement of nondiscrimination by other members of their family, for whatever reason, they should choose to refrain from operating the accommodation. Catering to the racial prejudice of family members provides no more of a defense to the charge of race discrimination in public accommodations than complying with the racial preferences of customers. Cf Diaz v. Pan American World Airways, 442 F.2d 385, 389 (5th Cir. 1971) (rejecting customer preference for female flight attendants in sex discrimination in employment case).

Statutory Defense

23. The Respondent Mary Harlan asserts that her child care business falls within the following statutory exception to the prohibition against discrimination in public accommodations:

2. This section [601 A.7] shall not apply to: ...

b. The rental or leasing to transient individuals of less than six rooms within a single housing accommodation by the occupant or owner or such housing accommodation if the occupant or owner or members of his family reside therein.

Iowa Code § 601 A.7(2) (b) (1983) (emphasis added).

24. Respondent Mary Harlan asserts that:

[T]he discriminatory practices of Iowa Code Section 601A.7 should not apply to her. The primary purpose of the Defendant's babysitting service is to provide temporary housing accommodations for the children of working parents which would enable the parent to work and the child to be properly cared for. The aforementioned arrangement is transient in nature in that a child has the benefit of the living quarters of the home but it is not intended to be a permanent living arrangement. The Defendant, Mary Harlan, lives in the home with her son, daughter, and her husband. The circumstances of this case fall within the intent and spirit of the exception which is provided for in Iowa Code section 601A.7(2) (b).

Defendant's Brief at 7-8 (emphasis added). Respondent Mary Harlan cites other non- public accommodations exceptions to the Act where "the person's family dwelling is involved.' Defendant's Brief at 8 (citing Iowa Code §§ 601 A.6 (employment) and 601 A. 12 (housing)).

25. The interpretation of Iowa Code section 601A.7(2) (b) should be:

guided by the following well-settled principles. The intent of the legislature is the polestar in construing the statute.... With respect to Chapter 601 A, the legislature has mandated that it be construed broadly to eliminate unfair and discriminatory practices in public accommodations. . . . However, where the language of the statute is clear and plain there is no room for construction, so the sole function of [the Commission] is to apply the statute according to its terms.

Ladd v. Iowa West Racing Association, 438 N.W.2d 600, 601- 02 (Iowa 1989) (citations omitted).

26. The language of Iowa Code § section 601A.7(2) (b) is clear and plain. It provides an exception, under certain specified circumstances, to the prohibition against discrimination in the rental or leasing of rooms. This exception has no application to the instant case which involves the denial of child care services which entail more than the rental or leasing of a room or the provision of temporary shelter. See Findings of Fact Nos. 8 & 9. The other exceptions cited, by their own terms, do not apply in public accommodations cases.

Remedies

27. Violation of Iowa Code § sections 601A.7(l) (a) (b) having been shown, and no legitimate defense having been established, the Commission has the duty to "issue an order requiring the respondent to cease and desist from the discriminatory or unfair practice and to take the necessary remedial action as in the judgment of the Commission will carry out the purposes of this chapter. A copy of the order shall be delivered to ... any other public officers and persons as the commission deems proper." Iowa Code § 601 A. 15(8) (11989).

28. Other appropriate remedies, in addition to a cease and desist order, include:

(5) Extension to all individuals of the full and equal enjoyment of the . . . services of the respondent denied to the complainant because of the unfair or discriminatory practice.

(6) Reporting as to the manner of compliance.

(7) Posting notices in conspicuous places in the respondent's place of business in form prescribed by the commission and inclusion of notices in advertising material.

(8) Payment to the complainant of damages for an injury caused by the discriminatory or unfair practice which damages shall include but are not limited to actual damages, court costs and reasonable attorney fees.

Iowa Code § 601 A. 15 (1989).

Damages for Emotional Distress

29. In accordance with the authority granted by the statute to award actual or compensatory damages, the Iowa Civil Rights Commission has the power to award damages for emotional distress. Chauffeurs Local Union 238 v. Iowa Civil Rights, 394 N.W.2d 375,383 (Iowa 1986) (interpreting Iowa Code § 601A.15(8)). In this context, where emotional distress is "an item of damage," damages for emotional distress are treated as a component of actual damages. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983); See Blessum v. Howard County Board, 245 N.W.2d 836, 844-45 (Iowa 1980). Therefore, the requirements for proof of damages for emotional distress should not be confused with proof of the elements of the cause of action for intentional infliction of emotional distress, e.g. outrageous conduct. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983).

30. Respondent Mary Harlan asserts on brief and in her motion to dismiss that Ms. Humburd, by relying on her testimony about the incident and the effects it had upon her, has either failed to introduce any evidence or to introduce sufficient evidence which would permit an award of damages for emotional distress. (Defendant's Brief at 14-15; Tr. at 112-13). The Commission adopts the response made to the same argument, in a housing discrimination case, by the United States Court of Appeals for the Seventh Circuit:

It appears to be defendants' position that unless there is evidence of economic or financial loss, or medical evidence of mental or emotional impairment, there can be no award of compensatory damages. We conclude, to the contrary, that an award of compensatory damages ... or "actual damages ". . . is appropriate for humiliation caused by the type of violations of rights established here. Humiliation can be inferred from the circumstances as well as established by the testimony.

Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974) (italicized portion quoted with approval in Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980)). 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 the distress. Dickerson v. Young, 332 N.W.2d 93, 98-99 (Iowa 1983). While these cases did not arise under the Iowa Civil Rights Act, it would be anomalous to mandate more stringent requirements for proof of emotional distress in cases under the Act than is required in the usual case where emotional distress is an item of damage. Also, such stringent requirements would violate the legislative command that the Act "be construed broadly to effectuate its purposes." Iowa Code § 601 A. 18 (1983).

31. When the evidence demonstrates that the complainant has suffered emotional distress proximately caused by discrimination, an award of damages to compensate for this distress is appropriate. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984) (citing Nichols, Iowa's Law Prohibiting Disability Discrimination in Employment: An Overview, 32 Drake L. Rev. 273, 301 (1982- 83)); See Gray v. Serruto Builders, Inc. 110 N.J. Super 297, 265 A.2d 404, 414 (1970); Williams v. Joyce, 4 Or. App. 482, 479 P.2d 513, 519 (1971). In this case, the testimony of the complainant and the evidence of the surrounding circumstances, demonstrating facts "which would inevitably have a strong impact on the emotions of an individual," are sufficient to show that the complainant sustained compensable emotional distress. Dickerson v. Young, 332 N.W.2d 93, 99 (Iowa 1983); See Gaudry v. Bureau of Labor and Industries, 48 Or. App. 589, 617 P.2d 668, 670-71 (1980) (testimony combined with "the nature of incident itself" supported award of emotional distress damages in public accommodation race discrimination case). See Findings of Fact Nos. 13-15, 19, 20.

32. The amount of damages for emotional distress will depend on the facts and circumstances of each individual case. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Past Commission decisions have referred to the consideration of various factors in awarding damages for emotional distress. Cheri Dacy, 7 Iowa Civil Rights Commission Case Reports 17, 24-25 (1985) (nature of the respondent's acts, severity of distress, length of effects, vulnerability of complainant, if any, due to pre-existing condition); Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984) (extent of the harm, its duration, the wantonness of respondent's conduct, and the quality of the evidence establishing harm). Some state and federal court decisions have suggested other factors which may be considered. See generally 2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24-39 (1982).

33. It becomes clear, upon examination of the Commission's cases, and the authority cited therein, that 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. The greater the severity and the longer the duration of the emotional distress, the greater the compensation that is required to make the complainant whole.

34. The other factors are still relevant because they bear upon one or both of these determinants. For example, the wantonness of an act of discrimination is relevant because the inference may be drawn "that mental anguish could reasonably be expected from these actions." Joyce Wilder 4 Iowa Civil Rights Commission Case Reports 162, 168 (1979). The more extreme the act, the greater the severity of the emotional distress that could be inferred.

35. Given the severity and, especially, the duration of the distress sustained by Ms. Humburd, which are shown by the testimony and which may be reasonably inferred from the circumstances of the case, the Commission concludes that an award of four thousand four hundred dollars ($4400.00) in damages for emotional distress is full, reasonable, and appropriate compensation for her loss. See Findings of Fact Nos. 13-15, 19 & 20.

Consequential Damages:
Back Pay for Merry Maids Employment

36. The complainant seeks consequential or special damages in the form of back pay to compensate her for the employment opportunity with Merry Maids which she lost as the result of the denial of child care by the Harlans. (Tr. at 6, Post Hearing Brief of Commission at 6-7). The back pay damages requested here fall within the category of special damages because such damages do not ordinarily or generally result from the denial of child care services. See Kirchner v. Incorporated Town of Larchwood, 120 Iowa 578, 582, 95 N.W. 184,186 (1903). They are at issue here only because of unusual circumstances, i.e. the combination of the denial of child care services and the lack of time to obtain another child care provider prior to the beginning of the position with Merry Maids resulted in the loss to the Complainant of employment in that position. See Finding of Fact No. 23.

37. Respondent Mary Harlan asserts that Complainant Humburd did not meet her burden of proof in establishing back pay damages, and that she failed to mitigate these damages by exercising reasonable diligence in her search for work. (Defendant's Brief at 10-14, Tr. at 107-113). In order to evaluate these defenses to damages, it is necessary to determine (a) who bears the burden of proof in regard to establishing damage and the failure to mitigate damage, and (b) what are the bearers of those respective burdens of proof required to show in order to establish damages and failure to mitigate damage?

38. The complainant bears the burden of proof in establishing her damages. See Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981). While the complainant has the duty to mitigate damages, the respondent bears the burden of proof in establishing that the complainant failed to mitigate her damages. See Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); Iowa Power & Light Company v. Board of Waterworks Trustees, 281 N.W.2d 827, 833 (Iowa Ct. App. 1979). Standards for Establishing Back Pay Damages

39. The Iowa appellate courts have never considered the question of what the complainant is required to show in order to establish back pay damages resulting from a violation of the Iowa Civil Rights Act. there are two lines of authority setting forth different standards concerning what evidence a complainant must adduce in order to establish back pay damages under Federal anti- discrimination laws. In considering these cases, it should be noted that both the Iowa Civil Rights Act and Title VII of the Civil Rights Act of 1964 require that, in making back pay awards, interim earnings are to be deducted from gross back pay. Iowa Code § 601 A. 15(8) (a) (1) (1989); 42 U.S.C.A. § 2000e-5(g) (1981 & Supp. 1989).

40. The United States Court of Appeals for the Seventh Circuit has held, in Title VII cases, that the complainant is required to introduce both evidence of gross back pay and of interim earnings, i.e. earnings which were accrued during the period for which back is sought. Horn v. Duke Homes, 755 F.2d 599, 606-09 (7th Cir. 1985); Kamberos v. GTE Automatic Electric, Inc., 603 F. 2d 598, 602 (7th Cir. 1979); Taylor v. Phillips, Industries, Inc., 593 F. 2d 783, 786-87 & n.5 (1979) (per curiam). The complainant is also required to show what times, if any, during the back pay period, she was not working. Taylor v. Phillips, Industries, Inc., 593 F.2d at 787. This initial burden of proving economic loss will be met if the evidence is sufficient to allow a reasonable estimate of back pay damages by deducting interim earnings from the gross back pay the complainant would have earned absent the discrimination. Horn v. Duke Homes, 755 F.2d at 60608; Kamberos v. GTE Automatic Electric, Inc., 603 F.2d at 2; Taylor v. Phillips, Industries, Inc., 593 F-2d at 786-87 & n.5. Once this has been done, the burden shifts to the respondent to rebut complainant's evidence on damages and to prove that the complainant failed to mitigate damages during the periods when she was not working. Horn v. Duke Homes, 755 F.2d at 608; Taylor v. Phillips, Industries, Inc., 593 F.2d at 787 & n.5 (citing Sprogis v. United Airlines, 517 F.2d 387, 392 (7th Cir. 1975)). Failure by the complainant to introduce evidence on her interim earnings or the periods of time when she was not working does not result in the draconian sanction of denying damages. Horn v. Duke Homes, 755 F.2d at 607 n.11. Rather, the record is reopened to take further evidence on these issues. Horn v. Duke Homes, 755 F.2d at 607 n.1 1; Taylor v. Phillips, Industries, Inc., 593 F.2d at 788.

41. Federal courts in other circuits have reached a different conclusion. In the Second Circuit, the complainant is only required to establish her gross back pay. EEOC v. Kallir, Phillis, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.Y. 1976), aff'd mem., 559 F. 2d 1203 (2d cir.), cert. denied, 434 U.S. 920 (1977). Once this is done, the burden shifts to the defendant to prove interim earnings and any failure of the complainant to mitigate damages. Id. A Federal district court is the First Circuit has also adopted this approach. Denton v. Boilermakers Local 29, 673 F. Supp. 37, 39 (D. Mass. 1987). Given this treatment of interim earnings, it is doubtful that either of these courts would require complainants to establish the periods when they were not working. In the Eleventh Circuit proof of the time periods when the complainant was not working is viewed as part of the respondent's burden of proving complainant's failure to mitigate damages. See Nord v. United States Steel Corp., 758 F.2d 1462, 1471 (11th Cir. 1985).

42. The latter approach is preferable for several reasons. First, the courts which have adopted this view have relied on the resolution of the same question arising in cases under the National Labor Relations Act (NLRA). EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924. Because the remedial provisions of Title VII were expressly modeled after the remedial provisions of the NLRA, "principles developed under the NLRA generally guide, but do not bind courts in tailoring remedies under Title VII." Ford Motor Co. v. EEOC, 455 U.S. 219, 226, 102 S.Ct. 3057, 73 L. Ed. 2d 721, 729 & n.1 1 (1982). Although decisions under the NLRA provide that the General Counsel of the National Labor Relations Board is required to show only the gross amounts of back pay due while the respondent is required to show interim earnings or lack of reasonable diligence in searching for work, e.g. NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1318 (D.C. Cir. 1972); NLRB v. Brown & Root, Inc., 311 F. 2d 447, 454 (8th Cir. 1963), these decisions were not discussed in the Seventh Circuit cases.

43. Second, commentators and courts have noted the similarity between damage and mitigation rules in Title VII cases and cases involving breach of employment contracts. Schlei & Grossman, Employment Discrimination Law, 1442, 1447 (2nd ed. 1983). The majority rule in breach of employment contract cases is that it is the plaintiff's burden to prove breach and the contract price, i.e. gross back pay, and it is the employer's burden to prove the interim earnings of the plaintiff. Dobbs, Remedies 925 (1973). It would seem difficult to justify a requirement that evidence of interim earnings be introduced by complainants or "one of the Commission's attorneys or agents," Iowa Code § 601A.15(6), in discrimination cases when this burden is not placed on plaintiffs in breach of employment contract cases or on the General Counsel in NLRA cases.

44. Third, the Commission is acutely aware of its responsibility to deduct interim earnings from a back pay award. Iowa Code § 601 A. 15(8) (a) (1) (1989). Nonetheless, despite the emphasis placed on this duty by the Seventh Circuit, e.g. Taylor v. Phillips, Industries, Inc., 593 F. 2d at 787, the existence of the duty does not provide any guidance as to whose burden it is to introduce evidence on interim earnings. Certainly, the duty is limited to the deduction of interim earnings which are reflected in the record. Since the full panoply of discovery methods available to parties in civil actions was available to the respondent here, Iowa Code § 17A.13 (1989), the placing of the burden with the respondent should not impede the introduction of evidence of interim earnings. The Commission also notes that the Commission's attorneys have, in this case and others, routinely introduced evidence of interim earnings which they are prepared to concede even though this is not part of the Complainant's burden. See Finding of Fact No. 27. Cf NLRB v. Brown & Rood, Inc., 311 F.2d 447, 454 (8th Cir. 1963) (General Counsel makes known to respondent the credits the Board is prepared to concede).

45. The complainant had shown that she has sustained damage through the loss of the Merry Maids position. See Findings of Fact Nos. 21-24. Given that the complainant's burden of proof on damages only requires her to show the gross back pay for the back pay period, she has met that burden. When, as here,:

[the discriminator's] conduct has prevented a precise computation of damages, the injured party is not to be deprived of adequate damages. The trier of the fact may draw reasonable inferences from the relevant facts, and all doubts are to be resolved in favor of the injured party; the wrongdoer does not become the beneficiary of his own wrongful conduct.

EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 923.

(emphasis added).

46. Although there is "uncertainty . . . in the amount of damages, recovery may be had if there is proof of a reasonable basis from which the amount can be inferred or approximated." Northrup v. Miles Homes, Inc. of Iowa, 204 N.W.2d 850, 857 (Iowa 1973).

47. A precise computation of damages is not possible because, as a result of her loss of the Merry Maids position, it is impossible to know exactly how long the Complainant would have remained in the position. Nonetheless, a reasonable inference was drawn that the Complainant's length of employment with Merry Maids would have lasted as long as her longest employment since September of 1984, i.e. 4 months. See Finding of Fact No. 24. A further reasonable inference from the testimony may be drawn that she would have received approximately $5.50 per hour in wages at Merry Maids. See Finding of Fact No. 21. A finding has been made that she would have worked six hours a day, for a thirty hour week. See Finding of Fact No. 21. Although doubts have been raised about the possibility that the Complainant was attending school, or may have had interim earnings during the back pay period, none of these doubts has been proven and, therefore, must be resolved in favor of the Complainant. See Findings of Fact Nos. 25, 26, 28, 30.

48. In light of the above, the computation of gross back pay would be:

16 weeks X 30 hours per week X $5.50 per hour $2640.00.

 

Failure to Mitigate Damages

49. In order to meet her burden of proving that Complainant Humburd failed to mitigate her damages in her search for work, Respondent Mary Harlan must establish:

(1) that the damages suffered by the [complainant] could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which [s]he was qualified; and (2) that [complainant) failed to use reasonable care and diligence in seeking a position.

EEOC v. Sandia Corp., 639 F.2d 600,627 (1 Oth Cir. 1980).

50. Respondent Mary Harlan has failed to prove either of the two above propositions and, therefore, has not proven that Complainant Humburd has failed to mitigate damages in her search for employment. See Findings of Fact Nos. 25, 26, 28, 29. Given the facts of this case, the only meaningful mitigation that could have occurred in regard to Ms. Humburd obtaining child care services would have happened if she had been able to obtain child care prior to the morning following her rejection by the Harlans. See Finding of Fact No. 21-23. This was not possible. Finding of Fact No. 23. Nonetheless, Ms. Humburd has been found to have searched for child care services during the back pay period. Finding of Fact 31. Therefore Respondent Mary Harlan has also failed to carry its burden of showing that Ms. Humburd did not mitigate her damages in searching for an alternative child care provider.

Interest

51. Interest begins to run on an award of damages from the date of the commencement of the action at the rate of ten percent per annum. Iowa Code § 535.3 (1989). In this case, interest should be paid on damages from the time of the filing of the complaint on February 5, 1985.

Attorneys Fees

52. The complainant having prevailed, she is entitled to an award of reasonable attorney's fees. Iowa Code § 601 A. 15(8) (1989). If the parties cannot stipulate to the amount of these fees, they should be determined at a separate hearing. Ayala v. Center Line, Inc., 415 N.W.2d 603, 606 (Iowa 1987). The Commission must specifically retain jurisdiction of the case in order to determine the actual amount of attorney's fees to which Complainant Humburd is entitled to under this order and to enter a subsequent order awarding these fees. City of Des Moines v. Iowa Civil Rights Commission, 343 N.W.2d 836.