BEFORE THE IOWA CIVIL RIGHTS COMMISSION

RUTH MILLER (CLAY), Complainant,

VS.

PAGE COUNTY SHERIFF'S DEPT., PAGE COUNTY BOARD OF SUPERVISORS, PAGE COUNTY GRIEVANCE REVIEW BOARD, and RON FRANKS, SHERIFF, Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Ruth Miller's complaints were timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(12) (1983). See Findings of Fact Nos. 1-2. All the statutory prequisit, for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15 (1989). See Finding of Fact No. 3.

2. Ms. Miller's complaint is also within the subject matter jurisdiction of the Commission as the allegations that the Respondents subjected her to sex discrimination and retaliation in her employment fall within the statutory prohibitions against such practices. Iowa Code §§ 601 A.6, 601 A.11 (1983).

Order and Allocation of Proof:

3. It is well recognized that more than one theory of discrimination may apply in a case. Henson v. City of Dundee, 682 F.2d 897, 908 at n.5 (llth Cir. 1982). This case involves three separate theories of sex discrimination, two of which, the "consensual sexual relationship theory" and "quid pro quo sexual harassment" are resolved through the burden-shifting analysis utilized when a Complainant attempts to establish discrimination through circumstantial evidence. The third theory of sex discrimination, "hostile working environment sexual harassment" relies on the two step analysis set forth in Katz v. Dole, 709 F.2d 251, 255-56 (4th Cir. 1983).

4. This case also involves various allegations of retaliation which have been resolved either under the burden- shifting analysis used to prove retaliation through circumstantial evidence or through the order and allocation of proof which is used when there is direct evidence of discrimination.

5. 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. lG79).The burden of persuasion in this proceeding is on the complainant to persuade the finder of fact that she was subjected to sex discrimination and retaliation in the terms and conditions of her employment; and terminated because of her sex and retaliation. Linn Co-operative Oil Company v. Mary Quigley, 305 N.W.2d 728,733 (Iowa 1981).

6. Although Federal court decisions applying Federal anti-discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978), they are often relied on as persuasive authority in these cases. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

Order and Allocation of Proof Where Complainant Relies on Circumstantial Evidence of Discrimination:

7. 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).

8. In the typical discrimination case, which alleges disparate treatment on a prohibited basis, this burden of producing evidence shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 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) (emphasis added).

9. 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). The burden of establishing a prima facie case of discrimination is not onerous. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The plaintiff is merely required to produce enough evidence to permit the trier of fact to infer that the employer's action was taken for a discriminatory or retaliatory reason. Id. at 254 n.7. 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).

10. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, nondiscriminatory reason for its action. Id.; Linn Cooperative 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).

11. 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)(emphasis added)).

12. 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. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at - 67 L. Ed. 2j-at 217. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711,717-18 (1983)(Blackmun, J. concurring).

Consensual Sexual Relationship Theory:

13. This theory applies only to the Complainant's allegation that she was not offered the 4:00 to 12:00 shift in March of 1985 because Sheriff Franks gave it to Carol Haffner who allegedly was providing sexual favors to him. See Findings of Fact Nos. 47-52. The essence of this theory is that an employer is engaged in discrimination on the basis of sex when the employer awards job benefits to or otherwise favors an employee because the employee is engaged in a consensual sexual relationship with the employer. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 147 (2nd ed. 1989). There is a divided authority concerning whether or not this actually does constitute sex discrimination. Id.

14. It is not necessary to resolve this question because, even if this theory were accepted, it would be necessary for Complainant to have established her prima facie case through the production of evidence from which it may be reasonably be inferred that the favored employee is actually engaged in a sexual relationship with the employer. King v. Palmer, 598 F. Supp. 65, 67 (D. D.C. 1984), rev'd & remd on other grounds, 778 F.2d 878 (D.C. Cir. 1985). Such evidence would include, for example, testimony showing the favored individual and the employer spent a substantial amount of time together or communicating by phone after work; behavior on the job, including physical contact, which suggested intimacy; kissing outside of the workplace; loans of substantial amounts of money; various acts of on-the-job favoritism toward the favored employee; King v. Palmer, 778 F.2d 878, 879-80 (D.C. Cir. 1985); and testimony to the effect that the favored employee indicated she was intimate with the employer. King v. Palmer, 598 F. Supp. 65, 67 (D. D.C. 1984). There is not sufficient evidence to infer a sexual relationship between the employer and the alleged favored employee in this case. See Findings of Fact Nos. 49-52.

Quid Pro Quo Sexual Harassment Theory,

15. The essence of the quid pro quo sexual harassment theory of sex discrimination is that "[a]n employer may not require sexual consideration from an employee as a quid pro quo for job benefits." Henson v. City of Dundee, 682 F.2d 897, 908 (llth Cir. 1982). A Complainant may completely establish a violation of the Iowa Civil Rights Act under this theory by proving all of the following elements:

(1) The [Complainant] belongs to a protected group.

(2) The [Complainant] was subject[ed] to unwelcome sexual harassment.

(3) The harassment complained of was based upon sex.

(4) The employee's reaction to harassment complained of affected tangible aspects of employee's compensation, terms, conditions or privileges of employment. The acceptance or rejection of the harassment by an employee must be an express or implied condition to the receipt of the job benefit or the cause of a tangible job detriment in order to create liability under this theory of sexual harassment. 29 C.F.R. t 1604.11(a)(1) & (2) (1981). As in the typical disparate treatment case, the employee must prove that she was deprived of a job benefit which she was otherwise qualified to receive because of the employer's use of a prohibited criterion in making the employment decision.

Henson v. City of Dundee, 682 F.2d 897, 909 (llth Cir. 1982)(emphasis in original). In the quid pro quo case, the employer is held strictly liable for sexual harassment by supervisors which causes tangible job detriment. Id.

16. The requirements to establish a prima facie case of quid pro quo sexual harassment may vary depending upon the specific facts. Id. at 911 n.22. Under the facts of this case, a prima facie case of discrimination may be established by showing that:

(1) The Complainant is a female.

(2) The Complainant was subjected to sexual harassment in the form of unwelcome sexual advances by her supervisor.

(3) Male employees were not similarly harassed.

(4) She subsequently either suffered a job detriment or was denied a job benefit of which she had a reasonable expectation

See Henson v. City of Dundee, 682 F-2d 897, 909, 911 it- n-2@ (11th Cir. 1982); Bundy v. Jackson, 641 F.2d 934, 953 (D.C. Cir. 1981); Schlei & Grossman, Employment Discrimination Law 426 (2nd ed. 1983).

17. Through application of the above formula to the facts, Complainant established a prima facie case of discrimination with regard to her allegations concerning denial of a rotating shift in May 1985; the reprimand of June 24, 1985; denial of the day shift in the first week of July 1985; the reprimand on absence issued on August 23, 1985; refusal of the day shift jailer position; failure to assign the J-1 number; being required to work weekends with other jailers; and her termination. See Findings of Fact Nos. 4, 12, 20, 23, 32-34, 53-54, 56, 75, 76, 78, 81-82, 84, 91-93, 99-100, 106, 110-111.

18. Complainant failed to establish a prima facie case of quid pro quo discrimination in regard to her allegations concerning the failure to offer her the shift change in March 1985; the denial of the grievance by the grievance review board; and the failure to be called in to work overtime on January 16, 1986. See Findings of Fact Nos. 52,104, 105.

19. Complainant also demonstrated a prima facie case of sex discrimination in regard to her termination by showing that:

(1) [s]he was a member of a protected class,
(2) [s]he was capable of performing the job, and
(3) [s] he was discharged from the job.

Smith, v. Monsanto Chemical Co., 770 F.2d 719, 38 Fair Empl. Prac. Cases 1141, 1142 n.2 (8th Cir. 1985); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1253, 25 Fair Empl. Prac. Cases 1326 (8th Cir. 1981). See Findings of Fact Nos. 4, 1 1 0.

Legitimate Non-Discriminatory Reasons:

20. Respondent failed to produce any evidence of a legitimate non-discriminatory reason in regard to the allegation that the Complainant was discriminatorily denied assignment to the day shift for the first week of July 1985. As the Respondent has failed to rebut the prima facie case on this issue, the Complainant has met her burden of persuasion and this denial is found to be sex discrimination in violation of the Act. See Conclusion of Law No. 10.

21. Once a prima facie case is established, the Respondent is required to produce evidence articulating a legitimate, non-discriminatory reason for the challenged employment action. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). A legitimate reason is a lawful reason. BLACK'S LAW DICTIONARY 811 (5th ed. 1979). It was ultimately shown that the "promoting legal action by inmates" reason for Complainant's termination amounted to the termination of Complainant Miller because she told an inmate she would be a witness for him in his complaint to Citizen's Aide. See Finding of Fact No. 118.

22. Iowa Code section 601 G.22 states:

A person who willfully obstructs or hinders the lawful actions of the citizen's aide or the citizen's aide's staff, or who willfully misleads or attempts to mislead the citizen's aide in the citizen's aide's inquiries, shall be guilty of a simple misdemeanor.

Iowa Code § 601 G.22 (1985).

23. It would be difficult to imagine a more effective way for a public agency to obstruct or hinder the Citizen's Aide's lawful investigations or to mislead the Citizen's Aide in such investigations than to terminate employees who agree to be witnesses for its investigations. Such action is unlawful under Iowa Code section 601G.22. Termination for this reason is not a legitimate reason for termination.

24. The Respondent also articulated an illegal reason for the refusal to place Complainant Miller in the day shift jailer position, i.e. that this was denied because of an effort to maintain the status quo because Complainant had filed her complaint. The manner in which this practice was implemented made it clear that it was utilized as an instrument of retaliation. See Findings of Fact Nos. 94, 96. This is not a legitimate, nondiscriminatory reason which will rebut a charge of sex discrimination. Cf. Thomkins v. Morris Brown College, 752 F.2d 558, 37 Fair Empl. Prac. Cas. 25, 30 n.20 (llth Cir. 1985)(sex discrimination is not a legitimate, nondiscriminatory reason in a retaliation case).

25. In order to rebut the Complainant's prima facie case, the Respondent must introduce admissible evidence which would allow the finder of fact to rationally conclude that the challenged decision was not motivated by discriminatory animus. Linn Cooperative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981). The Respondent need not persuade the finder of fact that it was actually motivated by the proffered reasons. Id. Nonetheless, this burden cannot be met "merely through an answer to the complaint or through argument of counsel." 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)).

26. 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 Aff airs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1094, 67 L.Ed. 2d. 207, 215-16 (1981)). Statements describing conclusions and beliefs are not sufficient to establish the existence of a genuine issue of material fact See Gruener v. City of Cedar Falls, 189 N.W.2d 577, 580 (Iowa 1971). The nondiscriminatory reasons 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). If a Respondent fails to state a sufficient reason to meet this burden, the Complainant "need only prove the elements of the prima facie case to win." Loeb v. Textron, 600 F.2d 1003, 1018, 20 Fair Empl. Prac. Cases 29, 40 n.20 (lst Cir. 1979).

27. It has been found that Respondents failed to offer evidence which stated some of the reasons for the denial of a rotating shift in May of 1985, the June 24, 1985 reprimand, and for the discharge of the Complainant with sufficient clarity and specificity for Complainant to address. See Findings of Fact Nos. 61-65, 79, 113-115, 119, 125, 130. Therefore, these unclear, non-specific and vague reasons were not sufficient to meet Respondent's burden of producing evidence of legitimate non-discriminatory reasons for the denial of a rotating shift, Complainant's reprimand, and discharge.

28. The Respondents did produce evidence of legitimate non-discriminatory reasons for all of the allegations for which a prima facie case was established with the exception of the denial to the Complainant of assignment to the day shift during the first week of July 1985. See Findings of Fact Nos. 67, 79, 85, 94, 101, 108, 113. A ruling in the alternative was also made which assumed that other legitimate, non-discriminatory reasons for the discharge had been expressed with sufficient clarity and specificity for Complainant to address. See Findings of Fact Nos. 124-131.

Pretexts for Discrimination:

29. The Complainant may meet its burden of producing evidence sufficient to show that Respondent's articulated reasons for employment actions are pretexts for discrimination in a variety of ways, and these comments are not intended to enumerate all the ways in which pretext may be shown. 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).

30. Reasons articulated for a challenged employment action may be shown to be pretexts for discrimination 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). The third method of showing pretext may be accomplished with regard to discipline and discharge 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, or evidence that the proffered reason applied with equal or greater force to another employee who was not discharged [or disciplined].

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