IV. JURISDICTION AND PROCEDURE:
A. Subject Matter Jurisdiction:
8 Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). Mr. Tillman's complaint is within the subject matter jurisdiction of the Commission as the allegations (1) that the Respondents Monfort failed to remedy racial harassment of Complainant Tillman and discharged him due to his race, and (2) that Respondent Goken subjected Tillman to racial harassment are within the statutory prohibition against unfair employment practices which the Commission has the power to hear and determine. Iowa Code SS 216.6, .15),
9. "It shall be a . . . discriminatory practice for any person . . . to discharge any employee, or to otherwise discriminate in employment against any . . . employee because of the race of such . . . employee." Iowa Code S 216.6.
B. Timeliness and other Statutory Prerequisites:
10. Complainant Tillman's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 216.15(11) (1995). See Finding of Fact No. 2 . All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code S 216.15 (1995). See Finding of Fact No. 3.
C. Racial Harassment Issue Was Properly Raised By Complainant
Tillman's Complaint:
11. Respondents Monfort made the argument that the racial harassment issue was not "properly raised or appropriately before the agency for decision," based on the proposition that "the complainant made absolutely no mention of a claim of a 'hostile work environment' [in his complaint]." Respondents Monfort's Posthearing Brief at 28. This argument is rejected for several reasons.
12. First, the complaint specifically identified "harassment" as one of the race discrimination in employment issues raised by Complainant Tillman. It also set forth an incident of racial harassment by Respondent Goken. See Finding of Fact No. 5. This is sufficient notice under both the pleading standards for a complaint filed under the Iowa Civil Rights Act set forth by the Iowa Supreme Court in Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 768-69 (Iowa 1971) and the standards for notice of hearing set forth by the Iowa Administrative Procedures Act at Iowa Code section 17A.12(2)(d):
13.
We have before us, however, an administrative proceeding foundationed upon a legislative enactment designed more to implement broad public policy than to adjudicate differences between private parties. We have held technical rules of pleading have no application in an administrative proceeding.
[citations omitted]
In analyzing the proper role of the complaint under the federal act, which is similar in terms, the United States Court of Appeals for the Fifth Circuit has said [citation omitted]:
"For a lay initiated proceeding it would be out of keeping with the Act to import common-law pleading niceties to this 'charge,' or in turn to hog-tie the subsequent law suit to any such concepts. All that is required is that it give sufficient information to enable EEOC to see what the grievance is about. [citation omitted]."
This type of complaint was not designed for the sophisticated or the cognoscenti, but to protect the equality of opportunity among all employees and prospective employees. This protection must be extended to even the most unsophisticated and inarticulate. [citation omitted].
. . .
Here the complaint arguably satisfied the minimum provisions of the statute. [citation omitted]. Respondent, wanting the particulars set out more specifically, could have made appropriate motion.
Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 768-79 (Iowa 1971).
14. The Iowa Administrative Procedures Act provides, in relevant part:, that:
2. The notice shall include:
. . .
d. A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter upon application a more definite and detailed statement shall be furnished.
Iowa Code section 17A.12(2)(d). Both the issue of harassment in employment on the basis of race and a specific incident of harassment by Goken were set forth in the notice of hearing. The law section listed in the notice prohibits not only discriminatory discharge but also provides that "[i]t shall be an unfair or discriminatory practice for any: a. Person . . . to otherwise discriminate in employment against . . . any employee because of the . . . race of such . . . employee." Iowa Code S 601A.6 (now 216.6). This is sufficient to meet the notice requirements of Iowa Code section 17A.12. See e.g. Freeland v. Employment Appeal Board, 492 N.W.2d 193, 195-96 (Iowa 1992); Midwest Carbide Corp. v. Occupational Safety and Health Commission, 353 N.W.2d 399, 401-02 (Iowa 1984).
15. Second, Respondents Monfort stipulated at hearing that the Commission's internal administrative law judge had made probable cause findings both with respect to the allegations of racial harassment and termination. See Findings of Fact Nos. 3, 6. A "stipulation" is a "voluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate [the] need for proof." BLACK'S LAW DICTIONARY 1269 (5th ed. 1979). Stipulations as to fact are binding on a court, commission or other adjudicative body when, as in this case, there is an absence of proof that the stipulation was the result of fraud, wrongdoing, misrepresentation or was not in accord with the intent of the parties. In Re Clark's Estate, 131 N.W.2d 138, 142 (Iowa 1970); Burnett v. Poage, 239 Iowa 31, 38, 29 N.W.2d 431 (1948). In light of this stipulation, Respondents Monfort could hardly claim they were not aware that the issue of racial harassment was raised by the complaint.
16. Third, under the following principle, Respondents Monfort are bound by their admissions in their prehearing conference form and their hearing brief that racial harassment by coworkers or a racially hostile work environment were issues in the case. See Findings of Fact Nos. 7-8.
When an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded, it binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991).
Maxine Boomgarden, XII Iowa Civil Rights Commission Case Reports 31, 48S-49 (1993).
17. Fourth, these admissions in the hearing brief and prehearing conference form, as well as Respondents Monfort introduction of evidence to defend on the harassment issue, demonstrate that "the party proceeded against 'understood the issue' and 'was afforded full opportunity' to justify its conduct." Golden Grain Macaroni Co. v. FCC, 472 F.2d 882, 885 (9th Cir. 1972)(cited in Fischer v. Iowa State Commerce Comm., 368 N.W.2d 88, 94 (Iowa 1985)). See Findings of Fact Nos. 7-9. This is sufficient to show that the purpose of the notice requirement is met, id., and that the proceeding was valid because Respondents Monfort "had a reasonable opportunity to know of the claims which affect them and to meet those claims." Fischer v. Iowa State Commerce Comm., 368 N.W.2d at 94.
18. Fifth, Respondents Monfort never objected to the testimony elicited during hearing about the racial harassment issue based on the propositions that they either had no notice or that the issue of racial harassment was not properly raised or appropriately before the Commission. See Finding of Fact No. 9. Even if it were assumed that the allegation of racial harassment was, somehow, not set forth in the notice of hearing, Monfort waived any such objection under the following principle:
The hearing itself may, however, be broader in scope than the notice indicated. . .. . [T]he individual is given actual notice of the new issues when evidence on them is introduced at the hearing. "Actuality of notice there must be, but the actuality, not the technicality, must govern."
. . .
If [the individual] does not request [a continuance to meet the new issues] and elects instead to proceed with the hearing, he waives the claim of surprise. He may not subsequently challenge issues actually litigated; actual notice and adequate opportunity to cure surprise [by requesting a continuance] are all he is entitled to.
B. Schwartz, Administrative Law 307-08 § 6.5 (1991). Cf. Dutcher v. Randall Foods, 546 N.W.2d 889, 893 (Iowa 1996)(same principle applied at district court trial); Golden Grain Macaroni Co. v. FCC, 472 F.2d 882, 885 (9th Cir. 1972)("Actual litigation is often referred to in support of a holding that a party was not prejudiced by initially inadequate pleadings").
19. There is some authority which suggests the above principle should only be applied when the new issue is "closely related", "reasonably related" or "necessarily related" to the issues actually set forth in the notice of hearing. See Lynch v.City of Des Moines, 454 N.W.2d 827, 832-33 (Iowa 1990); Hulme v. Barrett, 449 N.W.2d 629, 633 (Iowa 1989); B. Schwartz, Administrative Law 307-08 § 6.5 (1991). Even if it were assumed that the issue of racial harassment were not set forth in the notice of hearing, or admitted by Respondents Monfort in its Hearing Brief and Prehearing Conference Form, the issue is closely related to the discharge issue and Goken's statement at the cafeteria which are set forth in the notice of hearing. See Finding of Fact No. 10.
D. A Decision May Be Rendered Concerning the Charges Against
Respondent Bret Goken Although He Did Not Appear At Hearing:
20. Iowa Code Section 17A.12(3) states:
If a party fails to appear in a contested case proceeding after proper service of notice, the presiding officer may, if no adjournment is granted, proceed with the hearing and make a decision in the absence of a party.
Iowa Code section 17A.12(3). In this case, such proper service of the notice of hearing was provided by certified mail, as permitted by Iowa Code section 17A.12(1). See Finding of Fact No. 11. The Notice of Hearing meets all the requirements set forth by Iowa Code section 17A.12(2) including a statement of the time and place of hearing, the legal authority and jurisdiction under which the hearing is held and the particular sections of the statutes involved. (No Commission rules on harassment were cited as there are none). Respondent Goken was also notified of a continuance. See Findings of Fact Nos. 12-13.
21. Respondent Goken was also provided adequate notice that the issue of racial harassment would be tried for the reasons previously set forth. See Finding of Fact No. 13. See Conclusions of Law Nos. 5-7. In addition, it may be presumed, in the absence of evidence to the contrary, that public agencies operate in a regular manner and that individuals and public officials act in accordance with the duties prescribed by applicable rules and statutes. See Cedar Rapids Steel Transportation Company v. Iowa State Commerce Comm., 160 N.W.2d 825, 836 (Iowa 1968)(presumption of regular performance of official actions by commission); City of Cherokee v. Illinois Central Railroad Co., 137 N.W. 1053, 1054 (Iowa 1912)(presumption that persons, and especially public officers, perform their duties faithfully and with due diligence). Thus, it may be presumed that Respondent Goken received notice of the probable cause finding with respect to racial harassment, as required by rule. 161 I.A.C. 3.13(3). It may also be presumed that Goken received copies of the prehearing conference forms filed by the Commission and Respondents Monfort as required by the statutes and rules prohibiting ex parte communication. Iowa Code S 17A.17; 161 I.A.C. 4.4.
E. Individuals May Be Liable For Violation of the Employment
Provisions of the Iowa Civil Rights Act:
22.
45. The Iowa Civil Rights Act states, in part:
1. It shall be an unfair or discriminatory practice for any:
a.. Person to . . . otherwise discriminate in employment . . against any employee because of the . . . race . . . of such . . . employee.
Iowa Code S 216.6(1)(a).
46. A "person" is defined, in part, as meaning "one or more individuals. . . [or] corporations." Iowa Code S 216.2(10). An employer is defined, in part, as "every . . . person employing employees within the state." Iowa Code S 216.2(6). The prohibition of race discrimination in employment by a "person," as opposed to an "employer," indicates that this prohibition is not limited to employers. The structure of the "unfair employment practices" section of the Act indicates that the broad prohibitions against employment discrimination are intended to apply to "person[s]", Iowa Code S 216.6(1)(a)(d); while other more specific prohibitions, apply to "labor organization[s]," id. at 216.6(1)(b)), or a combination of "employer[s], employment agenc[ies], labor organization[s]," id. at 216.6(1)(c)).
Debra Hoffman, CP # 11-33-25280, slip op. at 28 (Iowa Civil Rights Commission May 15, 1996)(emphasis added).
23. In determining the legal effect of the prohibitions against persons discriminating in employment on the basis of race, the Act is to be "construed broadly to effectuate its purposes." Iowa Code S 216.18. In this case, however, no construction is necessary as the plain and unambiguous language of the act provides that, as an "individual", Respondent Bret Goken is a "person." State v. Burgs, 479 N.W.2d 323, 324 (Iowa 1992)(plain language rule); Le Mars Mutual Insurance Co. v. Bonncroy, 304 N.W.2d 422, 424 (Iowa 1981)(same); Consolidated Freightways Corp. v. Nicholas, 137 N.W.2d 900, 904 (Iowa 1965)(same-commission not permitted to give to a statute an interpretation or construction of which its words are not susceptible). See Iowa Code S 216.2(10)(meaning of "person" includes "one or more individuals"). Thus, Respondent Bret Goken may be held liable as a "person" who otherwise discriminated on the basis of race, Iowa Code S 216.6(1)(a), through his acts of racial harassment perpetrated against the Complainant.
See Debra Hoffman, CP # 11-33-25280, slip op. at 28 (Iowa Civil Rights Commission May 15, 1996).
24. This result differs from that found under Title VII and other civil rights statutes where some courts have held that liability may not be imposed on supervisors or other individual employees because the statutes considered specifically limit civil liability to the "employer." Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377, 4 AD Cas. 704, 704 (8th Cir. 1995)(Missouri Human Rights Act); Smith v. St. Bernard Regional Center, 19 F.3d 1254, 64 Fair Empl. Prac. Cas. 478, 479 (8th Cir. 1994)(Title VII); Birkbeck v. Marvel Lighting Company, 30 F.3d 507, 510-11 & n1 65 Fair Empl. Prac. Cas. 669, 671 (4th Cir.), cert. denied ___ U.S. ___ (1994)(ADEA-supervisor not liable for acts of a plainly delegable character-leaves open question of liability for acts of harassment); Lankford v. City of Hobart, 27 F.3d 477, 65 Fair Empl. Prac. Cas. 18, 19 (10th Cir. 1994)(Title VII); Grant v. Lonestar Company, 21 F.3d 649, 64 Fair Empl. Prac. Cas. 1317, 1319 (5th Cir.), cert. denied ___ U.S. ___ (1994)(Title VII); Miller v. Maxwell International Inc., 991 F.2d 583, 61 Fair Empl. Prac. 948, 952 (9th Cir. 1993), cert. denied ___ U.S. ___ (1994)(Title VII and ADEA). Contra, Cross v. State of Alabama, ___ F.2d ___, 65 Fair Empl. Prac. Cas. 1290, 1300-01 (11th Cir. 1994); Jones v. Continental Corp., ___ F.2d ___, 40 Fair Empl. Prac. Cas. 1343, 1347 (6th Cir. 1986).
25. Title VII, for example, states:
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
42 U.S.C. section 2000e-2(a)(quoted in Ball v. Renner, ___ F.3d ___, 67 Fair Empl. Prac. Cas. 1739, 1741 (10th Cir. 1995)(italics in decision)).
26. Three federal appellate courts have recognized that individual liability can be imposed on individuals who are not employers when the statutory prohibitions are addressed to "persons" and not just to "employers." See Grant v. Lone Star Co., 21 F.3d 649, 64 Fair Empl. Prac. Cas. at 1319 (citing Clanton v. Orleans Parish School Board, 649 F.2d 1084, 26 Fair Empl. Prac. Cas. 740 (5th Cir. 1981)). See also Tomka v. The Seiler Corp., 66 F.3d 1295, 68 Fair Empl. Prac. Cas. 1508, 1526 (2nd Cir. 1995); Marshall v. Manville Sales, 6 F.3d 229, 63 Fair Empl. Prac. Cas. 622, 624-25 (4th Cir. 1993). See Conclusions of Law Nos. 28-29.
27. Every appellate court in the nation which has considered this issue with respect to state civil rights statutes where the prohibitory language is directed at "person[s]" has found that individual employees may be held liable under such statutes. Thus, the state appellate courts of California have held that individual liability may be imposed on supervisory personnel under state civil rights anti-retaliation and anti-harassment statutes prohibiting such acts by "person[s]". Matthews v. Superior Court, 34 Cal. App. 4th 598, 40 Cal. Rptr. 2nd 350, 67 Fair Empl. Prac. Cas. 1127, 1129-31 (Ca. Ct. App. 1995); Page v. Superior Court, 31 Cal. App. 4th 1206, 37 Cal. Rptr. 529, 66 Fair Empl. Prac. Cas. 1798, 1804 (Ca. Ct. App. 1995).
28. The Fourth Circuit Court of Appeals (which, under the ADEA, denied the imposition of personal liability on supervisors performing plainly delegable functions in Birkbeck) rejected an argument that an individual supervisor could not be held liable under the West Virginia Human Rights Act because a particular section of the act only prohibited "any employer" from discriminating against any individual on the basis of sex. Marshall v. Manville Sales, 6 F.3d 229, 63 Fair Empl. Prac. Cas. 622, 624-25 (4th Cir. 1993). The Court rejected the argument because the supervisor could be held personally liable under another section of the statute which forbade "any person . . . to . . . aid, abet . . .any person to engage in any of the unlawful discriminatory practices defined in this chapter." Id. at 625. (emphasis added). This same analysis was later adopted by the Supreme Court of West Virginia. Syllabus Point 4. Holstein v. Norandex, 461 S.E.2d 473, 68 Fair Empl. Prac. Cas. 1780, 1781 (W. Va 1995). The court noted that to deny the imposition of liability on individual supervisors was "contrary to the plain meaning of the statutory language and contrary to the very spirit and purpose of this legislation." Id. at 68 Fair Empl. Prac. Cas. 1783.
29. An identical result occurred with respect to the New York Human Rights Law in the Second Circuit decision of Tomka v. The Seiler Corp., 66 F.3d 1295, 68 Fair Empl. Prac. Cas. 1508, 1526 (2nd Cir. 1995). In the same decision in which the court held that individual liability could not be imposed under Title VII, id at 1525, it held that such liability could be imposed under the aiding and abetting section of the New York law which addressed "any person." Id. at 1526. The same result, with respect to the state act, was reached by the New York Appellate Division. Steadman v. Sinclair, 636 N.Y.S.2d 325, 326 (N.Y. App. Div. 1996); Peck v. Son Music, 632 N.Y.S.2d 963, 963 (N.Y. App. Div. 1995).
30. Finally, it should be noted that the persuasive authority of Professor Bonfield's article, which set forth a proposed act which served as the basis of the Iowa Civil Rights Act, indicates that the word "person" was included in the Act to ensure that employment discrimination provisions of the act would reach non-employer entities, such as employment agencies. Bonfield, A., State Civil Rights Statutes; Some Proposals, 40 Iowa L. Rev. 1067, 1107-08 (1964). See United States Jaycees v. ICRC, 427 N.W.2d 450, 454 (Iowa 1988)(relying on the Bonfield article as persuasive authority after noting that the language of the act mirrored that proposed in the article). Based on all the above authorities, the imposition of individual liability for violation of the Act is appropriate.
F. Respondents Monfort Failed to Establish Their Claim of Laches:
1. Respondents Monfort Waived Any Claim of Laches:
31. Respondents Monfort failed to establish their claim of laches for three reasons. First, by failing to raise the issue of laches at any point prior to the conclusion of the hearing, Respondents Monfort waived the issue. See Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982). An objection to unreasonable delay "must be made before a case has proceeded through a full-blown evidentiary hearing." Id. (emphasis added).
32. Second, it is "extremely rare for laches to be effectively invoked" when a complainant has filed her administrative civil rights complaint with the agency within the time provided for by the pertinent statute of limitations. See Bouman v. Block, 940 F.2d 1211, 1227, 60 Fair Empl. Prac. Cas. 1000, 1011 (9th Cir. 1991)(applying this principle when the plaintiff had timely filed her administrative complaint with the EEOC within the 300 day statute of limitations). In this case, the complaint was timely filed with the Iowa Civil Rights Commission. See Conclusion of Law No. 10.
33. In determining whether a case is one of those rare ones where laches applies, it must be remembered that "the doctrine [of laches] is applied to do, and not to defeat justice." Regal Insurance Company v. Summit Guaranty Corp., 324 N.W.2d 697, 704 (Iowa 1982). The doctrine is based upon the public policy which seeks to discourage stale claims. Davidson v. Lengen, 266 N.W.2d 436, 439 (Iowa 1978).
34. Third, Respondents Monfort failed to prove unreasonable delay and material prejudice, elements which must be proven by the defendant, Brewer v. State 446 N.W.2d 803, 805 (Iowa 1989), by clear, convincing and satisfactory evidence. Chicago, Rock Island, and Pacific Railroad Company v. City of Iowa City, 288 N.W.2d 536, 541 (Iowa 1980). Laches must be supported by pleaded proof. Argument does not suffice. In Re Lunt, 235 Iowa 62, 78, 16 N.W.2d 25 (1944). See Findings of Fact Nos. 16-17.
35. The passage of time from the date of filing on July 26, 1990 to the hearing in August of 1995, is shown in the record. See Finding of Fact No. 16. Such evidence is not sufficient to prove delay, let alone unreasonable delay. EEOC v. Warshawsky & Co., 56 Fair Empl. Prac. Cas. 889, 896 (N.D. Ill. 1991)(the bare fact that 4 years elapsed between filing of complaint and EEOC's filing of suit does not demonstrate delay).
36. "Prejudice must be shown. Prejudice 'cannot be inferred merely from the passage of time.'" C.O.P.E.C. v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990)(quoting with approval Cullinan v. Cullinan, 226 N.W.2d 33, 36 (Iowa 1976)) See e.g. Brewer v. State, 446 N.W.2d 803, 805 (Iowa 1989)(mere passage of time does not demonstrate unreasonable delay in asserting rights which cause another prejudice).