BETH LARRAIN WHENNEN, Complainant

VS.

MEMORIAL LAWN CEMETERY, INC., PLANNING AND SERVICES CORP., and JAMES C. PETERSEN, Respondents

REMEDIES

1. Section 601A. 15(8), The Code (1985), provides as follows:

8. If upon taking into consideration all of the evidence at a hearing, the Commission determines that the Respondent has engaged in a discriminatory or unfair practice, the Commission shall . . . 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 ...

Complainant requests back pay, lost value of insurance benefits, lost value of FICA benefits, front pay, moving expenses and damages for emotional distress.

2. The hearing officer has already concluded there was no discrimination in medical benefits, therefore, the request for lost value of insurance benefits is denied.

3. It has also been concluded that the Commission has no jurisdiction over Whennen's allegations of interference with visitation to her relatives' graves.

4. It was concluded under ISSUE III that Complainant should be awarded the differential in pay in the amount of $566.19.

5. The next issue is the award of constructive discharge pay. Whennen quit her job on November 13, 1984. Her doctor released her to continue work on May 2, 1985. (Complainant's Exhibit 18). She delivered her baby on May 25, 1985. She had two children prior to this birth. In July of 1985, Whennen and her family moved to Houston. Her husband quit his job in Ottumwa because he had a guaranteed job in Houston. She alleges they moved because she could not find a job in Ottumwa. She also admits that even if she had been working, she would have gone to Houston with her husband. Other than Whennen's testimony, there was no evidence submitted as to the extent she tried to get another job. It is noted that the burden of proof on mitigation of damages is on Respondents. She did receive unemployment benefits. (Tr. 183). In Houston, both Whennen and her husband found jobs, but they decided the cost of living was too high so they quit and returned to Ottumwa in October. No evidence was submitted to support the statements on cost of living.

During 1985, Whennen earned $1,287.01. The record does not indicate whether that sum was earned prior to leaving for Houston, while in Houston, after the return from Houston or if it was the unemployment compensation.

Termination of back pay varies. In general, courts have terminated back pay when a Complainant moves away and is no longer available for employment, but may continue if Complainant actively seeks employment after leaving area. Easter v. Jeep Corp., 534 F. Supp. 515 (N.D. Ohio 1982). In this case Whennen did seek employment after the move and did find work. Termination of back pay also occurs when there is termination or voluntary quit from a subsequent employer unless the reasons are reasonable. EEOC v. Riss Int'l. Corp., 35 FEP 423 (W.D. Mo. 1982). In the case at issue, the Whennens said they quit their jobs in Houston because the cost of living was too high when they balanced expenses, including child care, with their income. The Hearing Officer is convinced that there were additional reasons for the move to Houston that were unrelated to the constructive discharge. The Whennens had relatives in Houston. Beth admitted she would quit her job to follow her husband. She would have done so when he earlier found a job in North Carolina and in fact did give notice, but that job fell through so she stayed with Memorial Lawn. She followed him again to Fort Dodge subsequent to the return from Houston. It is concluded that back pay should cease as of July 1985. All earnings between November 14, 1984 and July 1, 1985 should be deducted including unemployment compensation. A reasonable number (2-4) weeks should be deducted for maternity leave. No moving expense should be allowed. "Would have" earnings should be based on a salary of $225.00 a week. Counsel for the parties shall submit a stipulated back pay award based on these conclusions within 15 days of the issuance of this proposed decision.

Prejudgment interest at 10 % per annum. should be awarded on the amount of both back pay awards.

6. Complainant also requests an award of front pay. Front pay has been deemed appropriate in civil rights actions. The Iowa Civil Rights Commission has considered front pay awards in those cases in which it would be a hardship to find employment, i.e., age discrimination and discrimination against highly trained individuals, or where seniority rights are lost. The job under consideration is none of those. Neither did Whennen seek reinstatement. Qualifications for grounds crew were minimal and pay was at minimum wage. The supervisor position was unskilled and required little more than knowledge of how to run lawn mowers and back hoes. There is no evidence that Whennen applied for and was denied similar supervisor employment. The request for front pay is denied.

7. Complainant also requests damages for emotional distress. The Iowa Supreme Court in Chauffeurs, Teamsters and Helpers Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W. 2d 375 (Iowa 1996), upheld the Commission's authority to award emotional distress damages. A requirement for such an award is substantial evidence to show that the discriminatory sets were the basis for and connected with the emotional distress suffered by a complainant.

In Dacy v. Burlington Northern Railroad, Iowa Civil Rights Commission Case Reports (1984-86), 24-25, the Commission set forth guidelines to assist the trier of fact in weighing the evidence presented. Neither the categories nor the numerical scores are determinative. Any award must be based on the evidence presented in each case. The categories are not exclusive and can be used as guidelines with flexibility in considering pertinent facts. These guidelines are as follows:

CATEGORY I - EMPLOYER MOTIVATION

5- malicious acts, reckless disregard for results;

3 - deliberate acts to harass and exclude based solely on membership in protected class;

1 - Intentional acts of hostility, mixed with insensitivity, and incompetence.

CATEGORY II - SEVERITY OF DISTRESS

5 - Severe emotional distress, traumatic (e.g., inability to work, relate to family, friends);

3 - Serious emotional distress (e.g., hurt, anger, difficulty in relating to others);

1 - Some emotional distress (e.g., anger, frustration, hurt pride).

CATEGORY Ill - LENGTH OF EFFECTS

5 - Long term, therapy required;

3 - Recovery in process, therapy would help, but not required;

1 - Temporary, no therapy necessary.

CATEGORY IV - COMPLAINANT STATUS

5 - Innocent in acts, vulnerable because of prior related stress;

3 - Innocent in acts, no prior related stress;

1 - Early participant in acts, then rejection made known.

Based on the above guidelines and the facts of this case, Whennen would be rated a The acts of Respondents were intentional acts of insensitivity to the treatment of
Whennen in regard to her supervisory role and incompetence in understanding and implementing the law relating to pregnancy. Whennen felt that it was unfair that she wasn't allowed supervisory status and pay because she is female, nor was it fair for them to take her job away just because she was going to have a baby. She was angry, upset and frustrated. She was concerned about the economic problems not working full time would cause.

Whennen did not seek medical or psychological help for her emotional distress.

The added factor of the reprimand over the Woods incident clutters the participatory status of Complainant in the acts. The Hearing Officer believes that Whennen was a participant in that incident. There is no evidence that she attempted to resolve the supervisory status, but was willing to continue doing the work without the official title and weekly pay. To say that the management style of the Petersens was loose is an understatement. The fact that Whennen walked off the job in the middle of a funeral service because of her anger causes this Hearing Officer some concern. It is admitted that the situation of Whennen's employment had deteriorated and some emotional distress was suffered. Even with the above guidelines, any award is more subjective than objective. Based on the evidence and demeanor of the witnesses, it is concluded that Whennen should be awarded $1,000.00 as damages from each Respondent for emotional distress.