ALLEN CHRISTOPHER DAVIS, Complainant,
and
IOWA CIVIL RIGHTS COMMISSION
vs.
LOCAL P-3 RETIREES, INC., Respondent.
I. JURISDICTION AND PROCEDURE:
A. Subject Matter Jurisdiction:
1. Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). Mr. Davis's complaint is within the subject matter jurisdiction of the Commission as the allegations that the Respondent failed to rent its hall to the Complainant by different treatment on the basis of race with respect to security requirements and by discriminatory remarks concerning Blacks renting the hall fall within the statutory prohibition against unfair public accommodations practices which the Commission has the power to hear and determine. Iowa Code SS 601A.7, .15 (now SS 216.7, .15). See Finding of Fact No. 1.
2. "It shall be an unfair or discriminatory practice for any owner, lessee, sublessee, proprietor, manager, or superintendent of any public accommodation or any agent or employee thereof:
a. To refuse or deny to any person because of race . . . the accommodations, advantages, facilities, services or privileges thereof, or otherwise to discriminate against any person because of race . . . in the furnishing of such accommodations, advantages, facilities, services, or privileges.
b. To directly or indirectly advertise or in any other manner indicate or publicize that the patronage of persons of any particular race . . . is unwelcome
Iowa Code S 601A.7 (now S 216.7)(emphasis added).
B. Timeliness and Other Statutory Prerequisites:
3. Complainant Davis's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 216.15(11) (1995). See Finding of Fact No. 2. 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 S 216.15 (1995). See Finding of Fact No. 3.
II. OFFICIAL NOTICE:
4. Official notice has been taken of certain facts with regard to racial stereotyping in accordance with the statutory authority permitting the Commission to take official notice of all facts of which judicial notice may be taken and of matters within the specialized knowledge of the agency. Iowa Code S 17A.14(4). See Finding No. 13. 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).
5. It was appropriate to take official notice of the existence of certain racial stereotypes in this case as their existence is within the specialized knowledge of this agency. Cf. Royd Jackman, XI ICRC Case Reports 70, 71 (1991)(within the specialized knowledge of the agency that the use of the word "boy" when applied to adult Black men is a racial epithet reflecting the stereotype that Black males are incapable of acting as adults.).
III. ADMISSIONS:
5A. As noted in Finding of Fact 18, the Complainant's statement in his complaint indicating that he was informed in advance of his meeting with Jesse Taken that payment would have to be in cash is binding on the Commission. The reason this statement is binding was previously set forth in the Commission's decision in the Maxine Boomgarden case:
When an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded, it binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991).
Maxine Boomgarden, XII Iowa Civil Rights Commission Case Reports
31, 48-49 (1993).
IV. MCDONNELL DOUGLAS DISPARATE TREATMENT ANALYSIS RELYING
ON CIRCUMSTANTIAL EVIDENCE:
A. Distinction Between "Burden of Persuasion" and
"Burden of Production:
6. In order to understand the McDonnell-Douglas order and allocation of proof, it is necessary to note the distinction between "burden of persuasion" and "burden of production":
7. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this agency proceeding was on the Commission to persuade the finder of fact that race discrimination has been proven. See Iowa Code S 216.15(7)(burden of proof on Commission). 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).
8. 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).
D. Summary of the Order and Allocation of Proof In Disparate Treatment Cases Where the McDonnell-Douglas Analysis is Used:
9. The order and allocation of proof known as the "pretext," or "McDonnell-Douglas" method was described in the Dorene Polton case. Although the cases refer to the complainant's burdens of establishing a prima facie case and pretext, those burdens are borne here by the Commission as this proceeding is before this agency and not a court:
25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burden of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 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).
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).
27. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non- discriminatory reason for its action. Id.; Linn Co-operative 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.10 (1981)).
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, 101 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. Dorene Polton, 11 Iowa Civil Rights Commission Case Reports 152, 162 (1992).
E. Complainant Has Failed to Establish a Prima Facie Case
of Discrimination:
10. The McDonnell-Douglas case set forth a specific pattern of facts which, if proven, establish a prima facie case of discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973). However, it is well recognized that decision: did not purport to create an inflexible formulation. . . . 'The facts necessarily will vary in [employment discrimination] cases, and the specification . . . of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations.". . . The importance of McDonnell-Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any [employment discrimination] plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.
Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843,
52 L. Ed. 2d 396, 429 (1977)(citing and quoting McDonnell-Douglas
Corp. v. Green, 411 U.S. at 802 n.13)).
11. A modification of the elements set forth in McDonnell Douglas to establish a prima facie case in failure to hire cases may be utilized to establish a prima facie case in failure to rent public accommodations cases: (1) Complainant is a member of a racial minority; (2) Complainant applied for and was qualified to rent the property in question; (3) Complainant was rejected by the defendant; and (4) The property remained available thereafter. Cf. Schwemm, Housing Discrimination Law S 10.2 (1995)(prima facie case in housing cases-- the words "unit" and "housing opportunity" appear in place of the word "property" in the second and fourth elements of the above formulation).
12. With respect to either the rental of housing or the rental of a hall, the word "qualified" would mean meeting the legitimate expectations of the landlord. Id. Of course, under the plain language of the statute prohibiting race discrimination in the "furnishing of such accommodations, facilities, services or privileges," Iowa Code S 601A.7 (now 216.7), there can be no difference in the qualifications required of renters or potential renters which is based on race. The qualifications in this case, particularly those relating to security requirements, were not shown to be discriminatorily applied. See Findings of Fact Nos. 50-58.
13. The burden of establishing a prima facie case of discrimination under the disparate treatment theory is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Nonetheless, the phrase "prima facie case," as used here, denotes that a "legally mandatory rebuttable presumption" of discrimination, id. at 254 n.7, must be established by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). The Complainant attempted but failed to establish a prima facie case of discrimination under the above formula, as the Complainant could not meet the security requirements qualification. See Conclusions of Law No. 11-12. See Finding of Fact No. 58. The Complainant also attempted and failed to show that the Respondent engaged in delaying tactics designed to discourage the Complainant from renting the hall due to his race. See Findings of Fact Nos 15-42. Such race based delaying tactics, if proven, would have constituted illegal race discrimination in public accommodations. Cf. Schwemm, Housing Discrimination Law S 13.4 (1995)(race based delaying tactics with respect to housing constitute race discrimination in housing).
14. The Commission has failed to establish a prima facie case of race discrimination in public accommodations under the McDonnell Douglas method.