DEBRA VAN SCOY, Complainant,

VS.

BURLINGTON MEDICAL CENTER and BOARD OF DIRECTORS OF BURLINGTON MEDICAL CENTER, Respondents.

CONCLUSIONS OF LAW

1. The complaint was timely filed, processed and the issues in the complaint are properly before the Hearing Officer and ultimately before the Commission.

2. Burlington Medical Center and Burlington Medical Center Board of Directors, come under the definition of "employer" or "person" in Iowa Code section 601A.2(2) and (S)(1983), and are therefore subject to Iowa Code section 601A. 11. The applicable statutory provision is as follows:

It shall be an unfair or discriminatory practice for:

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2. Any person to discriminate against another person in any of the rights protected against discrimination on the basis of .. sex ... by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint ... under this chapter.

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ISSUE I - DID RESPONDENT TERMINATE COMPLAINANT IN RETALIATION FOR THE FILING OF A PRIOR COMPLAINT?.

1. In order to establish a claim of retaliation, complainant must show: a) protected participation or opposition known by the retaliator; b) action(s) disadvantaging person engaged in protected activity; and, c) a causal connection between the first two elements, i.e., a retaliatory motive playing a part in the adverse action. Grant v. Bethlehem Steel Corp., 622 F.2d 43, 22 FEP 1596 (2d Cir. 1980). Generally, then the order and allocation of proof set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05, 5 FEP 965, 969-70 (1973) follows.

2. In the case at issue, Van Scoy did file CP# 04-84-11582 in April 1984, which is protected activity under Chapter 601A. She was terminated by Respondent on September 20, 1984, disadvantaging her in the area of employment. Was there a causal connection between the protected activity and the termination?

Several types of circumstantial evidence have been identified which can support an inference that a retaliatory motive played some part in adverse treatment: a) after learning of the protected action, the employer treated the employee differently from similarly situated nonprotected employees; b) after learning of the protected activity, the employer treated the employee differently than before the protected activity, including surveillance; c) closeness in time between the employer's knowledge of the protected activity and the adverse activity; d) attempts to conceal the fact that the protected action was known at the time of the adverse action. Schlei B. and Grossman P., Employment Discrimination Law, 558-559 (2d Ed. BNA 1983).

There is no evidence that after learning of the protected activity, Respondent treated Complainant differently from similarly situated nonprotected employees.

There is no evidence that Respondent attempted to conceal knowledge of the protected action. Respondent was served the complaint on April 19, 1984. Therefore, they had no knowledge of the complaint when they hired Martha Lawrence in January 1984. In any case, Van Scoy was still on pregnancy leave. Respondent would have known of the complaint when they placed Trumbo in the position on 5-West. That was in June and the termination did not occur until September. There was no closeness in time between those two events.

Van Scoy appears to be alleging that her visit to the office of Respondent to request papers from her personnel file for the complaint then pending set off a series of three job offers to her - all of which were deliberately undesirable. Her refusal of the dim job offers then resulted in her termination. The allegation is that Van Scoy was suddenly offered the opportunity to return to work when she had not been offered that opportunity from the end of March when her leave was up and August when she requested the papers. The question is whether the jobs offered were jobs that Respondent knew Van Scoy would not take so that they could then terminate her or whether the jobs offered were jobs which then became available? This action, whatever the motive, supports an inference that a retaliatory motive played some part in the treatment of Complainant. Once this stage is reached, there are at least two reasons for the action, one of them retaliation. Schlei and Grossman have identified various standards of causation which have been applied in Section 704(a) cases (42 U.S. C. Section 2000 et §eg.) a) retaliation plays any part or taints the decision to take adverse action; b) retaliation is "a significant" or "a motivating" factor or a cause to "any substantial degree'; c) retaliation is a "moving cause", "determining factor", or the .principle reason", d) proof that the nonretaliatory motive would not have caused the adverse action without the protected activity [at 560-561, cites omitted). The burden of proof remains with the Complainant.

Van Scoy wanted a part-time, every other weekend, 16 hour per pay period, 3:00 to 11:30 p.m., LPN position. The first job offered her fit the criteria except that it was the day shift which she did not want because of a baby sitting problem. The second job became available because of Complainant's refusal to take the first offer. The person in the float position took the job which Complainant refused thereby opening up the "float" position. Van Scoy did not want a "float" position. The third job offered fit all of Complainant's criteria. This time the offer was refused because she did not want to work in the particular unit. Van Scoy was aware that opportunity to bid into other positions would be available once she was back on the job. She was angry at Respondent, however, and felt they should have offered her a job earlier. Except for the two positions, the Lawrence position for which she was unavailable and the Trumbo position for which she had less seniority, there was no evidence that there were other positions available prior to the time of the first job offer. Complainant offered no evidence that the jobs offered to her were not actual job vacancies. Under the terms of the leave of absence, Complainant was not guaranteed her same unit. She was on leave more than six weeks. She was offered the same number of hours and shift as scheduled for her prior to the leave. There was not sufficient evidence to prove that Respondent made the job offers with full knowledge that they would not be accepted by Complainant. It cannot be concluded that the job offers and subsequent termination would not have occurred had Complainant not filed the prior complaint nor that retaliation was the motive for Respondent's actions. The Complainant has failed to prove by a preponderance of the evidence that Respondent retaliated against her. This case should be dismissed.

ISSUES II and III - Based on the decision in Issue I, these issues need not be addressed.