BEFORE THE IOWA CIVIL RIGHTS COMMISSION


JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

VS.

CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.



CP# 10-89-19298



DECISION AND ORDER


IT IS ORDERED, ADJUDGED, AND DECREED that:


A. Complainant James A. Montz and the Iowa Civil Rights Commission (through his complaint) are entitled to judgment because they have proven age discrimination in employment by Respondents Civil Service Commission and City of Estherville, Iowa in violation of Iowa Code §§ 601A.6(l)(a) and 601A.6(l)(c).

B. Complainant James A. Montz is entitled to a judgment of eleven thousand nine hundred sixty-three dollars and zero cents ($11,963.00) in back pay for the loss resulting from Respondents' failure to hire him for the position of patrol officer.

C. Complainant Montz is entitled to a judgment of ten thousand dollars and zero cents ($10,000.00) in compensatory damages for the emotional distress he sustained as a direct result of the age discrimination practiced by the Respondents.

D. Complainant Montz is entitled to a judgment of one thousand five hundred forty-four dollars and seventy-one cents ($1,544.71) in compensatory damages for moving expenses.

E. Complainant Montz is entitled to a judgment of nine thousand dollars and zero cents ($9,000.00) in compensatory damages for the loss on sale of his house.

F. Interest at the rate of ten percent per annum shall be paid by the Respondents to Complainant Montz on his award of back pay, commencing on the date payment would have been made if Complainant had received employment with Respondents on November 8, 1989, and continuing until date of payment.

G. Interest at the rate of ten percent per annum shall be paid by the Respondents to Complainant Montz on the above award of emotional distress damages commencing on the date this decision becomes final, either by Commission decision or by operation of law, and continuing until date of payment.

H. Interest at the rate of ten percent per annum shall be paid by the Respondents to Complainant Montz on his award of moving expenses commencing on May 6, 1991, the billing date set forth in Complainant's exhibit 69, and continuing until date of payment.

I. Interest at the rate of eight percent per annum shall be paid by the Respondents to Complainant Montz on his award to compensate for the loss on the sale of his house, commencing on April 4, 1991, the interest rate and closing date set forth in Complainant's exhibit 69, and continuing until date of payment.

J. Within 45 calendar days of the date of this order, provided that agreement can be reached between the parties on this issue, Complainant Montz and the Respondents shall submit a written stipulation stating the amount of attorney's fees to be awarded Complainant. If any of the parties cannot agree on a full stipulation to the fees, they shall so notify the Administrative Law Judge in writing and an evidentiary hearing on the record shall be held by the Administrative Law Judge for the purpose of determining the proper amount of fees to be awarded. If no written notice is received by the expiration of 45 calendar days from the date of this order, the Administrative Law Judge shall schedule a conference in order to determine the status of the attorneys fees issue and to determine whether an evidentiary hearing should be scheduled or other appropriate action taken. Once the full stipulation is submitted or the hearing is completed, the Administrative Law Judge shall submit for the Commission's consideration a Supplemental Proposed Decision and Order setting forth a determination of attorney's fees.

K. The Commission retains jurisdiction of this case in order to determine the actual amount of attorneys fees to which Complainant is entitled to under this order and to enter a subsequent order awarding these fees. This order is final in all respects except for the determination of the amount of the attorney's fees.

L. Respondents Civil Service Commission and City of Estherville, Iowa are hereby ordered to cease and desist from any further use of any maximum age hiring cap, effective immediately. An exception, necessary for compliance with Iowa Code § 400.17, is that Respondents need not consider applicants for patrol officer positions who will be over age 65 at time of appointment.

M. Respondents may, but are not required to, establish any lawful testing and monitoring programs which they believe are appropriate to the accomplishment of the public safety goals identified in this case. Such tests shall not include any age hiring cap not allowed under any other provision of this order nor shall such tests be conducted in a manner which constitutes illegal disparate treatment under any basis prohibited by the Iowa Civil Rights Act. Nor shall Respondents institute any tests known to have a disparate impact on any basis prohibited by the Iowa Civil Rights Act unless Respondents demonstrate both (a) that such tests have been validated for job relatedness under either the procedures set forth at 161 IAC 8.1 et. seq. or the Uniform Guidelines for Employee Selection Procedures, 29 C.F.R. S 1607.1 et. seq., and (b) alternative suitable hiring procedures with a reduced disparate impact are unavailable.

N. Respondents shall post, within 60 days of the date of this order, in conspicuous places at its locations in Estherville, Iowa, in areas where patrol officer application packets are given out, at least two copies of the poster, entitled "Equal Employment Opportunity is the Law" which is available from the Commission.

O. All of Respondents' future job advertising, whether print or otherwise, for a two year period commencing with the date of this order, shall state the Respondent is "An Equal Opportunity Employer". At any time during this two year period when job advertising of any nature is placed, Respondent shall also notify the Job Service of Iowa of the openings.

P. Respondents shall provide for the next three years, commencing one year from the date of this order, an annual written report to the Commission, indicating the name, age, address and telephone number of each applicant for a patrol officer position. Such report shall indicate whether each applicant made the certified list, whether an offer was extended to each applicant making the list, and, if the applicant either failed to make the certified list or to be offered employment as a patrol officer, set forth the reasons why. The Respondent shall maintain all applications considered or received over this three year period until four years from the date of this order, and shall make these and all other application materials available to the Commission's representatives for inspection and copying upon request until the end of the four year period.

Q. Respondents shall file a report with the Commission within 120 calendar days of the date of this order detailing what steps it has taken to comply with paragraphs A through I and L through P inclusive of this order.


Signed this the 13th day of July. 1992.



DONALD W. BOHLKEN
Administrative Law Judge
Iowa Civil Rights Commission
211 E. Maple
Des Moines, Iowa 50319
515-281-4480

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