ABDULMAJID BACHELANI, Complainant,

VS.

DES MOINES TRAFFIC TRANS. DEFT., CITY OF DES MOINES, and DES MOINES CIVIL SERVICE COMMISSION, 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. The Des Moines Traffic Transportation Department, City of Des Moines, and Des Moines Civil Service Commission are "persons" as defined in Iowa Code section 601A.2(2)(1985) and are therefore subject to Iowa Code section 601A.6, and do not fall under any of the exceptions of §601A.6(5). The applicable statutory provision is as follows:


1. It shall be an unfair or discriminatory practice for any:

a. Person to refuse to hire, accept, register, classify, or refer for employment ... because of the ... national origin ... of such applicant...

ISSUE I - Is the Des Moines Traffic Transportation Department an appropriate party, in this complaint?

It is concluded that the Department of Traffic Transportation of the City of Des Moines is clearly included under the definition of "person" as defined in Iowa Code 601A.2(2) and is, therefore, an appropriate party in this complaint. It is also concluded, however, that Complainant's name was not included on the list submitted to that Department, therefore, there was no discriminatory action by that Department and the complaint against the Department should be dismissed.

ISSUE II - Was Complainant's Application For Parking Meter Checker With The City Of Des Moines Screened Out Because Of His National Origin?

1. The United States Supreme Court set out the basic allocation of burden and order of presentation of proof in a case alleging discriminatory treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207, 215 (1981), the Court summarized that burden and order from McDonnell as follows:

First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. at 802, 5 FEP Cases, at 969. Third, should the defendant carry this; burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. at 804, 5 FEP Cases at 907.

This basic allocation of burdens and order of presentation of proof was adopted by the Iowa Supreme Court in Linn Cooperative Oil Co. v. Quigley 305 N.W.2d 729,733 (Iowa 1981).

2. The complainant carries the initial burden of offering evidence adequate to create an inference that actions by a respondent were based on a discriminatory criterion winch is illegal under the law, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843 (1977). In evaluating the evidence to determine whether the complainant has succeeded in establishing that inference, which is referred to as a "prima facie" case, the Commission and the Iowa Court have relied on McDonnell-Douglas. The criteria established in McDonnell- Douglas were specific to a qualified applicant of a protected clan who applied for a job and was rejected despite the qualification.

3. In cases of failure to hire, a prima facie case can be established by proving the following:


a. Complainant was a member of a class protected under the statute;

b. complainant applied and was qualified for an available position;

c. despite Complainants qualifications respondent rejected the application;

d. after the rejection, the position remained open and the employer continued to seek applicants with similar qualifications.

In the case at issue, Complainant was of Indian origin and, therefore, a member of a class protected under the statute. He filed his application for the position of parking meter checker. His application was not selected for the second step, that of oral examination. The position remained open as the Civil Service Commission continued to seek applicants with similar qualifications. Although Respondent claims Complainant was not minimally qualified for the job, it is concluded that he was so qualified and has, therefore, established a prima facie case of discrimination.

4. The burden of persuasion remains with the Complainant, however, a prima facie case creates a .presumption" of discrimination which, if believed, will require a finding of discrimination. Burdine, 450 U.S. 248, 101 S.Ct. 1089. If the employer desires to dispel this presumption, evidence must be produced showing "some legitimate, nondiscriminatory reason" for the challenged action. McDonnell Douglas, 411 U.S. at 803, 93 S.Ct. at 1824, 36 L. Ed. 2d at 668. The employer need not persuade the trier of fact that it was action motivated by the proffered reason.


Burdine, 450 U.S. at 254, 101 S. Ct. 1094.

Adapting the above order of presentation of proof to this case, Respondent's offer of evidence consisted of the testimony of two Civil Service Commission staff persons, Dorenda Walters who made the selection of qualified applicants and Reginald Sipfle, civil service administrative officer. They testified that the oral examination was given only to the top 27 applicants of 270 applications. Walters testified that Complainant's application was one of 49 which were rejected for failure to meet minimum qualifications. Of those who were minimally qualified, but not interviewed, 122 had more than the 35 months experience claimed by Complainant.

The minimum qualifications given winch are in question are the two years of experience in general office work or work involving considerable public contact. Complainant's rejection was based on his not meeting those qualifications. His application includes experience in construction work, packing of vending machines, paper cutting, and approximately three years in data processing, a job from which he was discharged. He indicated on the application that he thought the discharge was unjust. His specific duties in the data processing job were given as follows:


Reconciling and balancing computer printout, running IBM sorters, 1419 and 3890 and cash letter, CRT...

Only two other applications were presented into evidence. Of the two applications presented in the record and in evidence, one applicant had considerable experience in both general office work and public contact. One person was hired and although the experience with data processing was considered, she did in fact, have experience as a temporary employee in that very position for which applications were taken. Although Complainant, in the hearing, attempted to support his belief that his data processing position was general office work and did include public contact, his application did not so indicate.

The Respondent has clearly set forth its reasons for rejecting Complainant.

5. The next step in the basic allocation of burdens subsequent to the employer's articulation of legitimate nondiscriminatory reasons for its actions is the opportunity for the Complainant to prove by a preponderance of the evidence that the reasons given were pretexts that merely veiled the Respondent's discriminatory practices.

Although the Hearing Officer agrees that the combination of his name, Abdulmajid Bachelani, plus his origin in Kenya, Africa, throws up a flag as to his national origin and that his application could be screened out on that basis, in this case Complainant has not proven by a preponderance of the evidence that the reasons given by Respondent were pretextual and merely veiled Respondent's discriminatory practice. The only two persons whose applications are in the record were more qualified than was complainant.


It is concluded that this case should be dismissed.

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