BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ALICE J. PEYTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

BOARD OF SUPERVISORS OF BUCHANAN COUNTY, Respondent.

CP # 01-90-19528

Conclusions of Law Continued

VIII. Application of the Substantially Equal Work Standards to This Case:

39. In determining whether the job of Complainant Peyton was substantially equal with that of David Kuhn and Mark Fettkether, it was necessary to focus on "overall job content." Schlei and Grossman, Employment Discrimination Law: Five Year Cumulative Supplement at 166. The first step in this analysis was to determine whether there was a common core of duties or tasks such that a significant proportion of the jobs are identical. Schlei and Grossman, Employment Discrimination Law: 1987-89 Supplement 58-59 (1991). Such a common core of tasks was found when the jobs of Peyton, Kuhn, and Fettkether were compared. See Findings of Fact Nos. 37- 38, 82-83.

40. The courts have recognized that, over time, positions can become substantially equal in terms of skill, effort, and responsibility and be performed under similar working conditions. Morgado v. Birmingham-Jefferson County Civil Defense Corps., 706 F.2d 1184, 1188 (11th Cir. 1983), cert. denied, 464 U.S. 1045 (1984)(cited in Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement at 166). Although Peyton's job was not substantially equal in terms of skill, effort, and responsibility to David Kuhn's or Mark Fettkether's jobs at the outset of her time as jail administrator, it was substantially equal to both of their positions by mid-1985. See Findings of Fact Nos. 37-38, 82-83. 57, 64, 68, 70-71, 79-80, 97. All of these positions were performed under similar working conditions. See Finding of Fact No. 56A, 78, 80-81, 90, 92, 96-97.

41. The growth in skill, effort, and responsibility required by the job corresponded to the increase in the average daily number of inmates and the number of jailers which Complainant Peyton was required to supervise. See Findings of Fact Nos. 65-67. A larger number of employees to supervise represents a significant increase in the responsibility and mental effort required by the job. See Howard v. Ward County, 418 F. Supp. 494, 504 (D. N.D.1976); Omilian, Sex-Based Employment Discrimination S 7.04 at 29-31 (1993 & Supp. 1993)((citing e.g. Orahood v. Board of Trustees, 645 F.2d 651 (8th Cir. 1981)). Similarly, it is recognized in a jail setting that having a substantially greater number of inmates to supervise may represent a job requirement of significantly greater responsibility. See Gunther v. County of Washington, 602 F.2d 882, 20 Fair Empl. Prac. Cas. 792, 796 (9th Cir. 1979), a'ffd on other grounds, 452 U.S. 161 (1981).

42. Fundamental to the determination that the skill, effort and responsibility requirements of the jail administrator position filled by Peyton and that filled by Fettkether are substantially equal are the principles that:

(a) Insubstantial differences in skill, effort or responsibility required do not prevent a job from being found substantially equal to another. See Conclusion of Law No. 36. See Findings of Fact Nos. 88-97.

(b) Possession of a skill by an employee which is not necessary, not utilized, or infrequently utilized does not render the jobs unequal. See Ellison v. United States, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases 955, 963 (1992); Peltier v. City of Fargo, 533 F.2d 374, 11 Empl. Prac. Dec. _ 10,800 at 7354 (8th Cir. 1976); AFSCME v. County of Nassau, 799 F. Supp. 1370, 1409 (E.D. N.Y. 1992); United States v. City of Milwaukee, 441 F. Supp. 1371, 1374-75 (E.D. Wis. 1977); 29 C.F.R. S 1620.15(a). See Conclusion of Law No. 32. See Findings of Fact No. 84-87.

(c) "Extra duties that are done infrequently or sporadically do not create job inequality. These extra duties must also consume a significant portion of the work day." Omilian, Sex-Based Employment Discrimination S 7.03 at 23 (1993). See Findings of Fact Nos. 84-87, 95-97.

(d) Performance of a duty by a comparator which the complainant was not given the opportunity to perform, and which she is capable of doing, would not render the jobs unequal. See United States v. City of Milwaukee, 441 F. Supp. 1371, 1374-75 (E.D. Wis. 1977); Omilian, Sex-Based Employment Discrimination S 7.03 at 21; S 7.04 at 28-29 (1993). See Findings of Fact Nos. 88-94.

(e) A new duty taken on by a higher paid successor male comparator, either after being hired at higher pay for the same duties as the female predecessor, see Ellison v. United States, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases 955, 965- 66 (1992), or after being paid at a higher rate for a substantial length of time, does not render the jobs unequal. See Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 24 Fair Empl. Prac. Cas. 1019, 1020 (8th Cir. 1981). See Findings of Fact Nos. 88-90, 93-94.

44. These concepts have been applied in law enforcement or jail settings. See AFSCME v. County of Nassau, 799 F. Supp. 1370, 1408-09 (E.D. N.Y. 1992)(female "police detention aide" found to be substantially equal to male police officer "turnkeys," although turnkeys carried guns when not in detention area); Peltier v. City of Fargo, 533 F.2d 374, 11 Empl. Prac. Dec. _ 10,800 at 7354 (8th Cir. 1976)(female "car markers" performed substantially equal work as male patrol officers who had additional training, but were rarely assigned duties other than car marking); Ellison v. United States, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases 955, 963 (1992)(higher paid male U.S. Marshalls Service branch manager's law enforcement background not "skill" permitting higher pay over female predecessor when such background not necessary to the position).

45. In United States v. City of Milwaukee, for example, the jobs of matrons, all female, and jailers, all of whom were male police officers, were found to be substantially equal. Id., 441 F. Supp. 1371, 1374 (E.D. Wis. 1977). The jailers, unlike the matrons, received patrol officer training, carried guns at all times when not in the jail, were expected to make arrests if a law violation occurred in their presence, and were on active duty status for 24 hours a day. Id. at 1373-74.

46. The training, however, was not utilized in the jail. Id. at 1375. The gun, active duty, and arrest requirements applied to all police officers and were "not related to the duties of the jailers as jailers." Id. at 1374. Nor were the jailers assigned with any frequency to non-jail duties. Id. at 1375. The assignment to the jail was in effect a permanent assignment. Id. Only the jailers served as "head jailer," a clerical, non-supervisory position where a different jailer on each shift would make record entries of the comings and goings of prisoners. Id. at 1374-75. This was an insubstantial duty which the matrons had not been permitted to undertake. Id. at 1374-75. Although the jailers occasionally helped the matrons subdue unruly female inmates, this did not warrant a finding of unequal effort. Id. at 1376. Under these facts, the Court found the positions were substantially equal. Id. at 1374.

47. When the above concepts were applied to the facts in this case, the Commission and Complainant Peyton established prima facie cases with respect to the jail administrator job held by Peyton and those held by Kuhn and Fettkether. All reasons asserted by Respondent which dealt with the skill, effort or responsibility elements of the prima facie case were also considered and rejected in light of these principles. See Findings of Facts Nos. 80, 97, 99, 110.

IX. Significance of Respondent's Brief in Determining What Reasons Were Asserted by Respondent and Whether These Reasons Were Legitimate and Nondiscriminatory:

48. As noted in the findings of fact, several purportedly legitimate, nondiscriminatory reasons were asserted on brief for the differences in pay between Complainant Peyton and, respectively, David Kuhn and Mark Fettkether.

49.

7. . . . [T]he Respondents' legitimate non- discriminatory reasons are limited to those set forth on brief, because by identifying only certain reasons on brief, the Respondents have admitted that those are the only reasons they may have articulated. The Respondents are bound by that admission. See Larson at 572. This admission is binding on the Commission in its adjudicative capacity and it may, therefore, consider only those reasons so identified on brief. See Id.; Grantham, 257 Iowa at 230-31.

Maxine Boomgarden, slip. op. at 59-60 (emphasis added).

50.

6. 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).

Id. at 59.

51. Under the above principles, the Commission must take as true (1) that only the reasons set forth on brief are being offered by Respondent as legitimate, nondiscriminatory reasons for the unequal pay; (2) that the pay of the complainant was less than that paid to her male predecessor and successor; and (3) that, assuming there was evidence that Respondent relied on differences in Peyton's and Kuhn's training and experience in making its pay decision, the comparison made was between Kuhn's experience and training at the time he started the jail administrator position and Peyton's training and experience as it existed a year and a half prior to her entering the position. See Findings of Facts Nos. 30, 98-99, 101-02, 109-110.

X. Respondent Failed to Meet the Legal Requirements for Production of Evidence Sufficient to Articulate Three of Its Averred Legitimate Non-Discriminatory Reasons:

A. Denials of Discrimination by Respondent Decisionmakers or Arguments by Counsel on Brief Do Not Rebut a Prima Facie Case:

52. On brief, Respondent noted the supervisors' denials in the record of sex discrimination. (Respondent's Brief at 8). Such denials or averments of good faith are not sufficient to rebut a prima facie case. See Loeb v. Textron, 600 F.2d 1003, 1011-12, 20 Fair Empl. Prac. Cases 29, 35 n.5 (1st Cir. 1979). Pleadings or arguments of counsel also do not rebut a prima facie case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 67 L.Ed.2d 207, 216 n.9 (1981).

B. Respondent Failed to Meet the Standards for Production of Evidence With Regard to Three Reasons for the Disparity in Pay Between Peyton, Kuhn, and Fettkether Which Are Set Forth on Brief:

53. Rebuttal of the prima facie case must be done through the production of evidence which, assuming it were believed, sets forth a lawful, non-discriminatory reason for the action alleged to be due to discrimination. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 517 (Iowa 1990).

54.

21. The evidence produced must be 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)(citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed. 2d. 207, 215-16 (1981)). 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).

John Mack Burton, 11 Iowa Civil Rights Commission Case Reports 1, 8 (1990).

55. It has been found that Respondent failed to meet these standards with respect to three reasons for the pay differential between Peyton, Kuhn, and Fettkether which were argued on brief: (1) that "Kuhn had lengthy experience and considerable training in that area at the start of his employment, where Peyton had not at all", (2) that the Board approved the higher pay for Fettkether due to his prior salary history, and (3) that the Board relied on Peyton's recommendation of Fettkether in approving his higher salary. The Respondent Board failed to meet these standards either by (a) completely failing to offer any evidence which stated these were the Board's reasons for the unequal pay of Complainant or (b) failing to provide evidence which was sufficiently clear and specific with respect to the Board's reasons for its actions as to permit Complainant Peyton to address them. See Findings of Fact Nos. 101, 111-112, 114.

XI. Three Reasons Suggested by Respondent on Brief Do Not Meet the Legal Standard Requiring that Reasons be Legitimate and Non-Discriminatory:

56. Three reasons suggested by Respondent are either discriminatory or unlawful. See Conclusion of Law No. 53. First, assuming that sufficient evidence was introduced to articulate that Kuhn's and Peyton's differing pay was based on differences in training and experience, the comparison set forth on brief was discriminatory as applied. See Findings of Fact Nos. 102-04.

57. Second, "prior salary alone cannot justify pay disparity." Glenn v. General Motors Corp., 841 F.2d 1567, 1571 (11th Cir. 1988)(rejecting Covington v. Southern Illinois University, 816 F.2d 317 (7th Cir.), cert. denied, 108 S.Ct. 146, 98 L.Ed. 2d 101 (1987)). Such considerations constitute acceptance of the long rejected "market force theory" which postulates that it would be permissible for an employer to pay less to females for equal work because females are worth less on the market. Id. at 1570 (citing e.g. Corning Glass Works v. Brennan, 417 U.S. 188, 205 (1974)).

58. Finally, Respondent argues that an otherwise sex discriminatory pay rate would be justified because an hourly rate of pay, at time of placement in the position, was part of the settlement agreement which resolved Peyton's failure to hire complaint. This proposition must be rejected for two reasons. First, to the extent any provision of an employment contract is contrary to the Iowa Civil Rights Act, such provision is of no force or effect. Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 498 (Iowa 1975). The contract could not lawfully effect sex discrimination. Id. Second, there can be no prospective waiver of an employee's rights under anti-discrimination laws. See Schwartz v. Florida Board of Regents, 807 F.2d 901, 43 Fair Empl. Prac. Cases 1856, 1859 (11th Cir. 1987); Cf. Parr at 498 (rights assured by Iowa Civil Rights Act cannot be bargained away).

XII. Respondent's Reasons Were Shown to Be Pretexts for Discrimination:

59. There are a variety of ways in which it may be shown that Respondent's articulated reasons are pretexts for discrimination. See La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Cas. 913, 922 n.6 (7th Cir. 1984).

60.

30. [Pretext may be proven] by evidence showing:

(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the [challenged employment action], or (3) that the proffered reasons were insufficient to motivate the [challenged employment action].

Bechold v. IGW Systems, Inc., 817 F.2d 1282, 43 Fair Empl. Prac. Cas. 1512, 1515 (7th Cir. 1987).

Ruth Miller, 11 Iowa Civil Rights Commission Case Reports 26, 48 (1990). See Findings of Fact Nos. 106-08, 120

61.

The third method of showing pretext may be accomplished . . . through:

evidence that the proffered reason for the [challenged employment action] was something so far removed in time from the [action] itself that it is unlikely to have been the whole cause, even if a part of it, [for the challenged employment action].

La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Cas. 913, 922 (7th Cir. 1984).

31. In addition, "[t]he reasonableness of the employer's reasons may . . . be probative of whether they are pretexts. The more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as a pretext." Loeb v. Textron, Inc., 600 F.2d 1003, 1012, 20 Fair Empl. Prac. Cas. 29, 35 n.6 (1st Cir. 1979). The focus, however, is on the employer's motivation and not its business judgment. Id.

Id. at 48-49. See Findings of Fact Nos. 118-19.

62.

32. Pretext may be shown by the employer providing inconsistent reasons, for the same adverse employment action, to the Complainant and other sources. See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 266 & n.35 (2nd ed. 1989).

Id. at 49. See Findings of Fact Nos. 105, 118, 120.

63. An ultimate finding of discrimination, as made in this case, may be supported by:
the combination of (1) the inference (not the presumption) of discrimination established by the evidence which demonstrated a prima facie case and (2) a determination that the employer's articulated reasons are false or "unworthy of credence". . ..

Maxine Boomgarden, slip. op. at 64 (citing St. Mary's Honor Center v. Hicks, ____ U.S. ____, 113 S.Ct. 2447, slip. op. at 8 (1993)). See Findings of Facts Nos. 117, 118, 120, 120A. The Complainant has met her burden of persuasion with regard to establishing sex discrimination in pay in violation of Iowa Code section 601A.6 (now S 216.6).