SANDRA J. WHALEY, Complainant,
and
IOWA CIVIL RIGHTS COMMISSION,
vs.
CITY OF DES MOINES, Respondent.
FINDINGS OF FACT:
I. JURISDICTIONAL AND PROCEDURAL FACTS:
A. Subject Matter Jurisdiction:
1. "The City is an Iowa Municipality which, as a public employer, is subject to the provisions of Chapter 216, Code of Iowa, prohibiting discrimination on the basis of sex in employment." (Stipulation of Facts, hereinafter "Stip.," No. 1).
2. Complainant Whaley alleges that Respondent failed to hire her for the position of Recreation Supervisor because of her sex. (Stip. No. 4; Notice of Hearing-Complaint). The particulars of Complainant's complaint were:
I believe my sex was a factor in the following incident:
1) On January 11, 1988, I found out that a male was selected for the recreation supervisor position. I was told by Mr. Robert Eldredge, superintendent of recreation, that they needed a strong, male supervisor.
(Stip. No. 5). This is a sufficient allegation to bring the complaint within the subject matter jurisdiction of the Commission.
B. Timeliness:
3. The parties have stipulated that Complainant Whaley timely filed, on March 1, 1988, a civil rights complaint claiming she had been discriminated against on the basis of her sex in violation of Chapter 601A (now Chapter 216), Code of Iowa, in the City's selection of a male for the recreation supervisor position." (Stip. No. 4).
C. Amendment of Notice of Hearing:
4. At hearing, the parties stipulated to an amendment of the Notice of Hearing so that the Respondent would be properly named as the "City of Des Moines." (Tr. at 4).
D. Jurisdictional Prerequisites:
5. The Complaint was investigated. (Stip. Nos. 7-10; Notice of Hearing). After probable cause of sex discrimination in employment was found, conciliation was attempted and failed. (Stip. No. 11; Notice of Hearing). Notice of Hearing was issued on October 13, 1993. (Notice of Hearing).
II. BACKGROUND:
A. Background of Complainant:
6. Complainant Sandra Whaley is employed by the Park and Recreation Department of the City of Des Moines (hereinafter "Department"). (Stip. No. 2, 3, 59). The history of Whaley's career with the Department is summarized in the Stipulations of Fact:
47. Complainant commenced working for the . . . Department on a part-time basis as a Recreation Leader at Bates Park in 1968 and Stone Park in 1969. In 1970, Complainant commenced working for the City on a part-time basis as a Recreation Specialist.
48. Complainant was hired by Mr. [Robert]Eldredge into a full-time permanent Recreation Supervisor position in October 1974.
49. Some seventeen months later a reorganization of the . . . Department by the City Manager resulted in the elimination of Complainant's Recreation Supervisor position and Complainant had to vacate this position.
50. Complainant was allowed to transfer to a Community Center Supervisor position in order to retain City employment; her transfer was effective mid-February 1976 with her pay frozen at the higher level she had been receiving as a Recreation Supervisor until the pay of the Community Supervisor position exceeded such salary amount.
. . .
57. On June 11, 1990, Complainant was selected to serve in a temporary upgrade as a Senior Administrative Aide in the Department.
58. After being certified by the CSC [Civil Service Commission] for the Senior Administrative Aide position, Complainant was selected from the certified list and was appointed to the position on October 15, 1990.
59. Complainant remains presently employed in the Senior Administrative Aide position.
(Stip. Nos. 47-50, 57-59). For reasons stated in the Conclusions of Law, all stipulations of fact are binding on the Commission in its adjudicative capacity. See Conclusion of Law No. 4.
B. Complainant's Prior Applications for Recreation Supervisor
Openings:
7. The parties stipulated to Complainant's attempts to be appointed to the Recreation Supervisor position before 1987:
51. In 1979 Complainant applied for and was included among the candidates certified by the CSC for the Recreation Supervisor position. CSC records show Complainant waived appointment to the position [on] March 13, 1979. [A]nother candidate, Jennifer Johnson (now Marcouiller) was appointed to the position [on] April 9, 1979. On October 1, 1979, another candidate from the list, Cheryl Fitzgerald, was appointed to the Recreation Supervisor position.
52. In 1980 Complainant applied for and was included among the candidates certified by the CSC for the Recreation Supervisor position. Another candidate from the certified list, William Beverly, was appointed June 1, 1980. Complainant raised no challenge to the appointment of a male to the position. On August 25, 1980, another candidate from the certified list, Connie Love, was appointed to the Recreation Supervisor position.
C. Background of Respondent:
8.
2. The . . . Department . . . is a department within the City of Des Moines whose work force is made up of several job classifications including those of Recreation Supervisor, Community Center Supervisor, and Senior Administrative Aide.
(Stip. No. 2).
9. "At the time of the challenged selection for the Recreation Supervisor position (late 1987 and early 1988), the Department had three such positions." (Stip. No. 61).
10. Although recreation supervisors all have the same job title, they have differing responsibilities. (Tr. at 10). One position was held by Mr. Bill Beverly. He was, and still is, in charge of adult athletics. His main duties are to be in charge of leagues for adults in the community, such as basketball, softball, flag football and volleyball. (Stip. No. 62; Tr. at 134).
11. The second position was held by Jennifer Marcouiller, who was "responsible for the Department's leisure arts programs, music, cultural programs and special events." The responsibilities of the vacant third position, formerly occupied by Christine Larsen who had been promoted, would include "direct responsibility for the operation of all City community centers, the City's special population program (the program for physically and mentally handicapped), and the City's bus trips programs." (Stip. Nos. 62-63).
12. A significant change in the duties of the vacant recreation supervisor position came about with this opening. Prior to late 1987, supervision of the City community centers was the responsibility of Recreation Superintendent Robert Eldredge. Due to an overload of work, Eldredge made the decision to transfer these supervision responsibilities to the person selected to fill the vacant position. (Tr. at 60, 220-22, 251-52).
13. As noted in the Stipulation of Facts:
64. The City's five community center facilities are multi-million dollar facilities funded in large part by federal funds in the target (impoverished) areas of the City. Control of the environment both inside and outside of the centers is essential. If the Recreation Supervisor was away, the backup for such employee with respect to the Community Centers was Mr. Eldredge himself.
(Stip. No. 64)(emphasis added).
14. Part of these supervision responsibilities included the general responsibility for security of the centers. There were various security problems at the centers and other park facilities. (Stip. No. 64; Tr. at 140-41, 157, 222- 25, 262-63, 321-22). These responsibilities included responding to community center security system alarms. Eldredge had set up a procedure whereby he was the first person called by the alarm company or police department in the event of an alarm. He initially responded to all calls at the centers. (Tr. at 222-25). At times, Eldredge did not wait for the police to arrive and entered the Center alone. (Tr. at 249). This responsibility went to the newly hired Recreation Supervisor after January of 1988. (Tr. at 228, 252).
15. The Model Cities and Logan Community Centers were considered by the Department staff to be the most dangerous or crime prone centers. (Tr. at 9, 140-41, 157).
D. Hiring Procedures:
16. The Respondent's procedures for filling vacant Recreation Supervisor and other positions and the CSC's process for certifying candidates for such positions are described in the Stipulation of Facts:
14. The Recreation Supervisor position is an entrance level civil service position. [T]his means it is open to application from both those City employees and those members of the general public who meet the minimum qualifications for the job.
15. The City Council sets the minimum qualifications in the job descriptions which it approves and adopts by formal resolution for each job classification.
16. When a vacancy occurs in a City department, a requisition is prepared by the Department and submitted to the Research and Budget Office and to the City Manager requesting budgetary authorization to fill the vacancy.
17. Once the authorization is granted by the City Manager, the requisition is forwarded to the CSC which issues an examination announcement. [This announcement] includes the data from the job description, identifies the vacancy to be filled, the dates of the examination and sets the application deadline.
18. The testing culminates in the CSC determining which applicants are the best qualified candidates and certifying the list of the top ten most qualified candidates in order of their ranking to the City Council. Candidates tied for tenth place are included on the list.
19. The vacancy must then be filled from the certified list but the City Manager may select anyone from the list for appointment without regard to the CSC's ranking of candidates.
20. The Department may interview the candidates upon the certified list to assist it in determining which candidate is best suited to perform the work of the particular vacancy to be filled.
21. The Department Director and his or her senior staff recommend to the City Manager the candidate deemed the most qualified to perform the work of the particular vacancy. The City Manager is the appointing authority.
(Stip. No. 14-21).
17. The member of the senior staff who made recommendations for Recreation Supervisor positions was Robert Eldredge, the Superintendent of Recreation for the City of Des Moines. "All certified candidates were interviewed by Recreation Superintendent Robert Eldredge before the challenged hiring decision for Recreation Supervisor was made." (Stip. No. 65). Eldredge received an eligible list where Complainant Whaley was ranked number 1 and Jack Carey, the applicant hired, was ranked number 7 by the Civil Service Commission. (CP. EX. # 6; Tr. at 218-19). As a practical matter, Mr. Eldredge made all the "appointments to the Recreation Supervisor position" from the time of his hire as Superintendent on July 15, 1974 to his retirement on October 27, 1989. (Stip. Nos. 56; 75; Tr. at 195). As stated in the Stipulations of Fact, "During his tenure of more than fifteen years as the Recreation Superintendent, Mr. Eldredge appointed the following Recreation Supervisors." [This statement is followed by a list of all Recreation Supervisors appointed during Mr. Eldredge's employment]. (Stip. No. 75). While Mr. Eldredge technically made the recommendations for such appointments, all of his recommendations were approved. (Tr. at 219-220, 254-55).
E. In 1987, Complainant, a Member of a Protected Class, Applied,
Was Qualified, Was Rejected for the Recreation Supervisor Position
Which Was Open, and Had At Least Similar Qualifications to the
Male Hired:
18. The specific Recreation Supervisor opening which is the subject this complaint came about in 1987. In late October of 1987, while employed as a Community Center Supervisor, Complainant Whaley, a female, "applied for and was certified by the Civil Service Commission . . . for appointment to the Recreation Supervisor Position." (Stip. Nos. 3, 53). Complainant Whaley was not selected for that position. (Stip. No. 4). Jack Carey, a male, was hired for the position in February of 1988. (Stip. Nos. 54, 75; Tr. at 243, 249). "Subsequent to Jack Carey's appointment as Recreation Supervisor from the December 7, 1987 certified list, no further appointments were made from the . . . list before it expired [In] December 1988." (Stip. No. 54).
19. Respondent has admitted on brief that Complainant Whaley "established her prima facie case". (City's Post- Hearing Brief at 9). Respondent admitted, among other facts asserted on brief, that Complainant Whaley, (1) "belongs to a protected class under the Iowa Civil Rights Act," (2) "applied for and was qualified to be a Recreation Supervisor," a position for which the City was seeking applicants, (3) "was not selected to fill the position" and (4) had at least similar qualifications to a "non-protected class status applicant [who] . . . was hired." (City's Brief at 6, 9). For reasons stated in the conclusions of law, these admissions of fact are binding on the Commission. See Conclusion of Law No. 5.