VI. DISCHARGE:
A. Distinction Between "Burden of Persuasion" and
"Burden of Production:
68. The order and allocation of proof used in this case is that initially set forth in the United States Supreme Court decision of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to understand the McDonnell Douglas order and allocation of proof, it is necessary to note the distinction between "burden of persuasion" and "burden of production":
69. 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. 1979). The burden of proof in this proceeding was on the Commission to persuade the finder of fact that disability discrimination has been proven. See Iowa Code S 216.15(7)(burden of proof on Commission). Of course, in discrimination cases as in all civil cases, the burden of persuasion is "measured by the test of preponderance of the evidence," Iowa R. App. Pro. 14(f)(6).
70. 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).
B. Summary of the Order and Allocation of Proof In Disparate
Treatment Cases Where the McDonnell Douglas Analysis is Used:
71. The order and allocation of proof known as the "pretext," or "McDonnell-Douglas" method was described in the Dorene Polton case. Although the cases refer to the complainant's burdens of establishing a prima facie case and pretext, those burdens are borne here by the Commission as this proceeding is before this agency and not a court. Iowa Code S 216.15(6):
25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burden of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 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).
26. 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). 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).
27. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non- discriminatory reason for its action. Id.; Linn Co-operative 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).
28. 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)).
29. 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.
Dorene Polton, 11 Iowa Civil Rights Commission Case Reports 152, 162 (1992).
C. Complainant's Prima Facie Case:
72. While a prima facie case of racial discrimination may be established through evidence of "differences in treatment," Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 516 (Iowa 1990)(quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)), it may also be established through a "showing of treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." City of Minneapolis v. Richardson, 239 N.W.2d 197, 202 (Minn. 1976).
73. An example of the latter, a prima facie case of disparate treatment in hiring, is established by proof that: (1) Complainant is member of a protected class, e.g. a racial minority, (2) Complainant applied and was qualified for position for which employer seeking applicants, (3) Despite qualifications, Complainant is rejected, and (4) Employer continues to seek applicants of Complainant's qualifications. Schlei & Grossman, Employment Discrimination Law 1298 (1983)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The presumption of illegal discrimination under this formula arises not because of any showing of different treatment of black and white applicants, but "because it eliminates the most likely legitimate causes for the employer's adverse action--a lack of minimum qualifications and the absence of a job opening. If these are not the causes, it is presumed that the employer's actions, unless otherwise explained, are more likely than not based on discrimination." Schlei & Grossman, Employment Discrimination Law at 1299.
74. Although the McDonnell-Douglas case set forth a specific pattern of facts which, if proven, establish a prima facie case of discrimination, it is well recognized that decision:
did not purport to create an inflexible formulation. . . . 'The facts necessarily will vary in [employment discrimination] cases, and the specification . . . of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations." . . . The importance of McDonnell-Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any [employment discrimination] plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.
Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 429 (1977)(citing and quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n.13)). See Carson v. Bethlehem Steel Corp., 70 Fair Empl. Prac. Cas. 921, 922-23 (7th Cir. 1996)(proof of prima facie case "need not fit into a set of pigeon holes"--therefore race discrimination plaintiff need not show that replacement was of a different race).
75. A modification of the elements set forth in McDonnell Douglas to establish a prima facie case in failure to hire cases may be used to establish a prima facie case in a discharge case:
(1) that he belongs to a group protected by the statute, (2) that he was qualified for the job from which he was discharged, (3) that, despite his qualifications, he was terminated, and (4) . . . that after his termination, the employer hired a person not in [complainant's] protected class or retained persons with comparable or lesser qualifications who are not in a protected group.
Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 177 (Iowa Ct. App. 1988).
76. A prima facie case may also be established by showing:
(1) he was a member of a protected class, (2) he was capable of performing the job, and (3) 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).
77. The burden of establishing a prima facie case of discrimination under the disparate treatment theory is not onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Nonetheless, the phrase "prima facie case," as used here denotes that a "legally mandatory rebuttable presumption" of discrimination, id. at 254 n.7, must be established by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). The Complainant did so in this case. See Findings of Fact Nos. 85-87.
D. Respondents' Articulation, Through the Production of Evidence,
of Legitimate Non-Discriminatory Reasons for Complainant's Termination
and Replacement:
78. In order to rebut the Complainant's prima facie case, a 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 Co-operative 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, the Respondent must produce evidence that the action taken with respect to the Complainant was implemented "for a legitimate, nondiscriminatory reason." Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). 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)). This burden has been met here. See Finding of Fact No. 88.
E. Respondent's Reasons Were Not Shown to Be Pretexts for Discrimination:
79. There are a variety of ways in which it may be shown that
an employer's articulated reasons are pretexts for discrimination,
not all of which are enumerated below. See Furnco Construction
Corp. v. Waters, 438 U.S. 567, 578 (1978); La Montagne v. American
Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl.
Prac. Cas. 913, 922 n.6 (7th Cir. 1984).
80.
30. [Pretext may be proven] 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).
Ruth Miller, 11 Iowa Civil Rights Commission Case Reports 26, 48 (1990). Pretext in the instant case was not demonstrated by any of the above methods. See Findings of Fact No. 89-93.
81. 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. Cas. 913, 922 (7th Cir.1984). The Commission did not establish such facts. See Findings of Fact Nos. 90-102.
82. In this instance, with one exception, every employee, white or Black, who was known by Respondents Monfort to be the physical aggressor in a fight was discharged. See Findings of Fact Nos. 92-102. In that instance, it could be held that Complainant Tillman and William Mettlin, Jr. were not "similarly situated in all relevant respects," Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994), due to the different nature of the provocations which led them to become physical aggressors in fights. Usually, comparative circumstantial evidence supports an inference of discrimination when it shows that "employees similarly situated to the plaintiff other than in the characteristic (pregnancy, sex, race, or whatever) on which an employer is forbidden to base a difference in treatment received systematically better treatment." See Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)(emphasis added). That is not the case here. See Finding of Fact No. 101.
83. Under these facts, the differing provocations could also show a legitimate exercise of the employer's "discretion to consider all the facts and determine whether the discharge is an appropriate remedy or whether a milder punishment would be appropriate." Kendrick v. Commission of Zoological Subdistrict, 565 F.2d 524, 527 (8th Cir. 1977). See Finding of Fact No. 102.
F. Complainant Tillman's Physical Aggression Against Goken
Was Not Justified As A Reasonable Response to Verbal Racial Harassment
For Which The Employer Was Responsible:
84. As a general rule, it is well established that when a reason articulated for an employment action is based on employee conduct that results from discrimination for which the employer is responsible:
[the] reason is ultimately "not legitimate because the Defendant employer created the problem initially." Lamb v. Smith International, Inc., 32 Empl. Prac. Dec. S 33770 at 30712, 30713, 32 Fair Empl. Prac. Cas. 105 (S.D. Tex. 1983)(discharge for poor work performance resulting from sexual harassment). This reasoning has been applied not only to situations where discriminatory or retaliatory practices have resulted in poor work performance, but also to cases where such practices have resulted in various forms of misconduct. See Ruth Miller, [11 Iowa Civil Rights Commission Case Reports 26, 44] (1990)(discharge of jailer for sleeping on the job found to be pretext where stress from discrimination and retaliation and discriminatory denial of shift change from midnight shift resulted in sleep loss); DeGrace v. Rumsfield, 21 Fair Empl. Prac. Cas. 1444, 1449 (1st Cir. 1980)(discharge for absenteeism resulting from racially hostile working environment); EEOC Decision No. 71-720, EEOC Decisions (CCH) S 6179 (1970)(discharge due to physical assault on supervisor resulting from racial harassment by supervisor). See also NLRB v. Vought Corporation, 788 F.2d 1378, (8th Cir. 1986)(discharge due to abusive language to supervisor resulting from warning given to employee who informed blacks that a white employee was being groomed to supervise a newly promoted black employee); Trustees v. NLRB, 548 F.2d 391, 393-94 (1st Cir. 1977)(discharge for repeated offensive behavior, including at one time brandishing scissors, where misconduct a response to employer hostility to employee's union activities); NLRB v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974)(discharge for abusive outburst at supervisor on receiving suspension resulting from employer's anti-union bias); and NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir. 1965)(failure to rehire employee due to outburst of anger resulting from layoff due to union activities).
Cristen Harms et. al. (Friedman Motorcars Cases), XI Iowa Civil Rights Commission Case Reports 89, 129 (1992)[discharge because employee lied to his employer as a result of retaliation inflicted by employer].
Dorothy Abbas, 12 Iowa Civil Rights Commission Case Reports 1, 21-22 (1994)(performance of personal work on city time resulted from employer's retaliatory reduction of duties), aff'd as modified sub nom City of Hampton v. Iowa Civil Rights Commission, No. 235/95-769, slip op. (Iowa September 18, 1996). See also Winbush v. State of Iowa, 69 Fair Empl. Prac. Cas. 1348, 1355, 1359 (8th Cir. 1995)(discharge for insubordination which resulted from racially hostile work environment for which employer was responsible); Avery v. Delchamps, Inc., 66 Fair Empl. Prac. Cas. 577, 577 (E.D. La 1994)(application of principle that "an employer cannot use an employee's diminished work performance as a legitimate basis for removal where the diminunition is the direct result of the employer's discriminatory behavior" in summary judgment decision where court had to assume that plaintiff stated a valid claim of racial harassment against employer and alleged discriminatory discharge was due to fight provoked by such harassment)(emphasis added); Tunis v. Corning Glass Works, 55 Fair Empl. Prac. Cas. 1655, 1661 (S.D.N.Y. 1988)(discharge due to "unfriendliness" and "disruptiveness" resulting from hostile environment of which employer was aware and did not remedy); . Broderick v. Ruder, 685 F. Supp. 1269, (D.D.C. 1988)(poor evaluations and threatened discharge due to deficient work performance resulting from sexually hostile environment for which employer was liable); Delgado v. Lehman, 43 Fair Empl. Prac. Cas. 593, 598, 600 (E.D. Va. 1987)(discharge due to diminished performance resulting from sexual harassment by employer); Weiss v. United States, 595 F. Supp. 1050, 1056 (E.D. Va. 1984)(discharge due to diminished performance resulting from religious harassment by employer).
85. In this case, however, the principle does not apply because, although there was racial harassment of Complainant Tillman, and the harassment did provoke the fight, the employer (i.e. Respondents Monfort) is not responsible for the harassment. The employer is not responsible for the harassment of Complainant Tillman which it knew about because the Commission has failed to prove that it did not take prompt and appropriate remedial action to remedy that harassment. The employer is also not responsible for other harassment of Complainant Tillman because the Commission failed to prove either that the employer knew or should have known about that harassment. See Conclusions of Law No. 38, 56-58, 61.
86. Even if the general principle did apply in this case, an exception to the principle would preclude a finding that Monfort's reason for the discharge of Complainant Tillman was a pretext for discrimination:
Not every response by the victim of racial discrimination can be excused; actions may be so outside the parameters of reasonable conduct that they cannot be tolerated. See Higgins v. Gates Rubber Co., 578 F.2d 281 (10th Cir. 1978)(victim of racial harassment who responded by striking offending employee with metal bar was properly discharged for assault with a deadly weapon).
DeGrace v. Rumsfield, 614 F.2d 796, 806 (1st Cir. 1980). Under the facts of this case, the action undertaken by Complainant Tillman "was an adequate and legitimate cause for discharge" and "not shown . . . to be a pretext for discrimination." Higgins v. Gates Rubber Co., 578 F.2d 281, 284 (10th Cir. 1978). See Findings of Facts Nos. 103-05.
87. Thus, under the McDonnell Douglas analysis, the Commission has not met its burden of persuasion with regard to establishing a racially discriminatory discharge of Complainant Tillman by Respondents Monfort in violation of Iowa Code section 216.6.