MICHAEL BIGGLES (LOVELADY), Complainant,

VS.

BLACK HAWK COUNTY HEALTH CENTER

and

BLACK HAWK COUNTY BOARD OF SUPERVISORS,

Respondents.

FINDINGS OF FACT

Jurisdictional Facts:

1. The Complainant, Michael Biggles, then known as Michael Lovelady prior to a legal name change, filed a verified complaint CP # 04-86-14507 with the Iowa Civil Rights Commission, on April 7, 1986, alleging violation of Iowa Code Chapter 601A by discrimination in employment on the basis of perceived physical disability which filing was within the statute of limitations. The complaint was investigated. After probable cause was found with respect to the allegation of physical disability discrimination, conciliation was attempted and failed. All of these facts were admitted or stipulated to by Respondents. (See Request for Admissions by Respondents and Respondents' Response to Request for Admissions; Tr. at 3-4).

2. Notice of Hearing was issued on August 2, 1988. The case was continued indefinitely on November 2,1988, in part because the Commission was without an Administrative Law Judge to conduct the hearing. The final hearing date was set by a scheduling conference memorandum order dated February 22. 1989.

Background of Complainant Biggles:

3. In 1973 Complainant Biggles underwent back surgery as treatment for a back injury which he had sustained. (Cp. Ex. 4; Tr. at 21, 39). The surgery consisted of a back fusion involving four vertebrae and a laminectomy at one of these vertebrae and possibly another. (Cp. Ex. 4). After the surgery, he was placed on light duty by his employer for one week. (Tr. at 38). Since his recovery in 1973 he has had no limitations or restrictions on his activities or employment due to the back injury or surgery. (Tr. at 22, 24). Since that time, he has never asked an employer to place him on light duty. (Tr. at 24).

4. During most of his working life, before and after the surgery, Complainant Biggles has been employed in jobs requiring hard physical labor. (Tr. at 14). Since his recovery in 1973, he has neither suffered back pain nor required further treatment for back problems. (Tr. at 24). Examples of post injury jobs held by Complainant Biggles include Core Handler at John Deere from 1973-77, which involved dipping cylinder blocks into a tank of liquid, and a "squeeze motor" job at Hawkeye Steel involving the repetitive lifting, during eight hour shifts, of molds weighing 55 to 60 pounds. (Tr. at 14, 22- 23).

5. On' April 15, 1982, Complainant Biggles received a certificate for successful completion of the one hundred twenty hour "Nurse Aide/Orderly" course at the Hawkeye Institute of Technology. (Cp. Ex. 2; Tr. at 11-12, 15). He did not obtain employment as a nurse aide until January 1987 when he began employment in that position at Parkview Gardens. (Tr. at 25). He remained employed at Parkview Gardens until February of 1989. (Tr. at 28). During his employment there, his routine duties included lifting residents into wheelchairs and moving them in bed. (Tr. at 25- 26, 28-29, 56-57).

The Nurse Aide Positions:

6. In March of 1986, Black Hawk County had eleven part-time swing shift vacancies for the position of Nurse Aide 1. (Cp. Ex. 1). Among the varied duties of the position are "(a]ssist[ing] residents with dressing and undressing; bathing (lifting in and out of bath tubs) [and] maintaining clean, dry bed[s], (lifting residents in and out of bed)." (Cp. Ex. 1; Tr. at 76, 78). Qualifications required for the position are:

Some knowledge of the procedural requirements of cleanliness and patient care. Ability to provide care for and develop rapport with residents; ability to write and speak English, ability to understand and carry out simple oral and written instructions; ability to do routine housekeeping and cleaning work, and to attend to the needs of residents. Must have stamina to be on their feet for considerable lengths of time, be in good general health, and must be able to lift at least 50 lbs. Must have certification of completion of a State of Iowa approved Nurse Aide educational program.

(Cp. Ex. 1).

It is clear that, by reason of his training and experience as of 1986, Michael Biggles was qualified to perform the Nurse Aide position at that time. See Findings of Fact Nos. 3-5.

The Application and Hiring Process:

7. At the time these Nurses Aides positions were being filled, Black Hawk County utilized the following application and hiring procedures: First, the position was posted for three days, as provided by the bargaining agreement, in order to give current employees the opportunity to apply. (Tr. at 71, 72). Second, as there were no bidders, the position was advertised and opened for applications from external applicants. (Tr. at 71). The personnel department was notified of which applicants were selected for interview and of which applicants were the Black Hawk County Health Center's candidates for hire. (Tr. at 71 ).

8. Once an applicant was selected for hire, he was required to obtain a pre-employment physical form from the personnel department. (Tr. at 71). The applicant would then arrange to have a pre-employment physical at Sartori Hospitals in Cedar Falls. (Tr. at 73). After completion of the physical examination, it must then be reviewed, and the applicant approved for hire, by the personnel department before the applicant becomes an employee. (Tr. at 71-72).

The Physical Examination Component of the Hiring Process:

9. The pre-employment physical component had been in effect since September 1, 1983. (Tr. at 74). All persons selected for employment by Black Hawk County were required to undergo a pre-employment physical examination. (Tr. at 99- 100). This component was developed by Doug Smentkowski, personnel director, and Tom Pounds, personnel administrator in cooperation with medical personnel. (Tr. at 69, 73-75). This process was developed in hope of avoiding employee placements which might result in serious injuries similar to those sustained prior to it's development. (Tr. at 74-75).

10. In 1986, the ultimate determination as to whether an employee had passed the physical examination component so that he could be hired was made solely by members of the personnel department, i.e. Doug Smentkowski and Tom Pounds, and not by the examining physicians. (Tr. at 75). Mr. Pounds would initially review the physical examination form and accompanying reports, such as radiology reports, to ascertain if he perceived a problem with the applicant's examination. (Cp. Ex. 4; Tr. at 71-72, 75). If he did, he would discuss it with Mr. Smentkowski who, in this case, made the final decision. (Tr. at 75). Neither Mr. Pounds nor Mr. Smentkowski nor anyone in the personnel department had any medical or orthopedic background whatsoever. (Tr. at 99).

11. The physical examination form is composed of two parts: (1 ) a health history completed by the applicant, and (2) a physician's report completed by the doctor. (Cp. Ex. 4). The physician's report includes the doctor's evaluations of whether the spine is flexible and of whether the applicant is able to do "no lifting," "moderate lifting" or "heavy lifting". (Cp. Ex. 4; Tr. at 73).

12. By 1986, the physical examination included a five view back X-ray in order to accurately show the condition of the applicant's spine. (Tr. at 73-74). In the event the X- ray or other information gathered from the physical examination indicated any prior back surgery or back injury, such injury constituted an automatic disqualification for approximately twenty-nine positions, including but not limited to, the positions of Nurse Aide, jail cook, jail matron, food service workers, and janitorial personnel. (Tr. at 10001, 103). There is no evidence in the record to suggest either that this automatic disqualification was established at the suggestion of medical personnel or that it actually resulted in a reduction of employee injuries. The available evidence suggests that no such recommendation was made. (Tr. at 99). This would be consistent with the understanding that the personnel department had the sole discretion to determine whether or not a candidate was screened out by the physical examination process. (Tr. at 75, 99).

13. In 1987, the physical examination component was scrapped and replaced by a biomechanical evaluation. (Tr. at 83). The automatic disqualifications for prior back injury and surgery were also eliminated at that time. (Tr. at 103). This new system eliminated the X-rays and assessment based on X-rays. (Tr. at 83). Under the biomechanical evaluation, the applicant for a position involving heavy lifting is guided through lifting techniques by a physical therapist who evaluates how well the applicant lifts and whether or not he can do the lifting. (Tr. at 83). If the applicant does not pass the evaluation, the therapist prescribes exercises for the applicant who may, after a stated period of time, retake the examination. (Tr. at 84).

Application of the Physical Examination Component to Complainant Biggles:

14. In March of 1986, Complainant Biggles contacted the Director of Nursing at the Black Hawk County Health Center after applying for the Nurse Aide I position. (Tr. at 17,19, 79). The Director of Nursing made arrangements to interview him, and, by the end of the interview, had selected him for hire. (Tr. at 17-.18). Mr. Biggles then obtained a pre- employment physical examination form and was examined at Sartori Hospitals on March 19,1986. (Tr. at 19).

15. On the health history portion of his physical examination form, Complainant Biggles indicated that he had back surgery and stated "Disc fulsion (sic) 1973 no Problin (sic) with it." (Cp. Ex. 4; Tr. at 20). In the physician's report, the examining physician noted that the Complainant's general appearance and development was "Good." In the section on the spine he noted "(illegible) laminectomy (illegible)." (Cp. Ex. 4). In the "laboratory and other special findings" section he noted the five view x-ray and stated the results: "previous fusion L4-L5, S." (Cp. Ex. 4). In response to the inquiry "Is the upper spine flexible?," the examining physician responded "Yes." (Cp. Ex. 4). He also found that the Complainant was able to do "Heavy lifting." (Cp. Ex. 4). There is no evidence in these reports or elsewhere in the record specifically indicating that either the past back surgery or the Nurse Aide I duties, including lifting, were likely to result in any future injury to Complainant Biggles or in costs to the Respondents as his employer. (Cp. Ex. 4; Tr. at 99).

16. Upon receipt of Complainant Biggles' physical examination form and accompanying medical reports, Mr. Pounds reviewed them and brought them to the attention of Mr. Smentkowski because of Mr. Biggles' laminectomy and fusion as indicated by the X-rays. Tr. at 75, 98). At the time they reviewed these reports, Mr. Pounds and Mr. Smentkowski were not only aware that the physicians had not indicated that Complainant Biggles would have any problems with the lifting requirements for the job, they were aware that the doctors had specifically approved the Complainant for heavy lifting and had found that the flexibility of his spine was satisfactory. (Cp. Ex. 4; Tr. at 98-99). They were also aware that the physicians either would not or were not able to say whether or not Complainant Biggles' spine would degenerate in the future. Tr. at 99). Despite this knowledge, Mr. Smentkowski decided not to hire the Complainant in accordance with Black Hawk County's policy and practice of refusing employment as Nurse Aides to applicants with prior back surgery or injury. (R. Ex. E; Tr. at 21, 75, 77-78, 100). This decision was made at some time between the examination on March 19, 1986 and Complainant Biggles being informed of his rejection on March 25, 1989. (Cp. Ex. 4; Complaint; Tr. at 19).

17. In light of the physicians' conclusions concerning the flexibility of Complainant Biggles' spine and his ability to lift heavy weights, no accommodation of Complainant Biggles' back condition was necessary in order for him to perform the physical requirements of the Nurse Aide position. (Cp. Ex. 1, 4; Tr. at 98-99). Nor is there any evidence in the record indicating that any accommodation for Mr. Biggles' back condition was either considered or attempted by Respondents prior to his rejection for the Nurse Aide position.

Gross Back Pay:

18. Nurse Aide positions were budgeted at 1200 hours per year for the years 1986 through 1988 inclusive. (R. Ex. C; Tr. at 80, 86, 88). The Respondents have suggested that the determination of gross back pay for these years should be based on a multiplication of this figure, which is prorated to 900 hours for 1986, times the base rate of pay for the position. (R. Ex. C; Tr. at 86; Respondent's Brief at 13- 16). This calculation takes into account periodic increases in base pay and a merit increase in October, 1988. (R. Ex. C).

19. The Respondents' proposed calculation provides an unreliable basis for back pay computation for several reasons. First, there is no guarantee that a Nurse Aide I will work any particular number of hours. A Nurse Aide I may work less, or substantially more than 1200 hours. (Tr. at 80, 90). Second, the 1200 hour figure results in gross back pay amounts of $4,667.00 for 1986; $6236.00 for 1987; and $6438.00 for 1988, amounts which are too low to reflect the actual experience of the two Nurse Aides who were hired at or about the time of Complainant Biggle's rejection. (R. Ex. C). See Findings of Fact Nos. 20-23. Third, the "bare bones" 1200 hour figure fails to take into account any possible shift differentials or overtime which could have been earned by the Complainant if he had been hired. (Cp. Ex. 7, Tr. at 80, 90). Although there was no guarantee of overtime or shift differentials, these positions were posted as swing shift positions which would yield a $.10 per hour shift differential. (Cp. Ex. 1, 7; Tr. at 90). The Nurse Aides hired closest to the time of Complainant's rejection were hired with $.15 per hour and $.10 per hour shift differentials for, respectively, the third and swing shifts. (Cp. Ex 7). See Findings of Fact Nos. 20-22.

20. On March 23 and 24, 1986, respectively, Martin Stoakes and Marjorie Wroe were hired, part-time, into the Nurse Aide I position. (Cp. Ex. 7, R. Ex. E). These are the hires into the position which are closest in time to the decision to reject Complainant Biggles. See Finding of Fact No. 16.

21. Martin Stoakes was hired at the rate of $5.13 per hour plus a $.15 per hour shift differential for third shift work. He received 2% across the board pay raises on July 1, 1986 and July 1, 1987, raising his base rate on those respective dates to $5.23 and $5.33 per hour. He continued at the base rate of $5.33 per hour, with the $.15 per hour shift differential, until September 23, 1988, when he received a 2 1/2% pay increase which increased his base rate to $5.47 per hour. (Cp. Ex. 7; R. Ex. C).

22. Marjorie Wroe was hired at the rate of $5.13 per hour plus a $.10 per hour shift differential for swing shift work. On June 1, 1986, she was transferred to second shift which also had a $.10 per hour shift differential. On July 1, 1986, she transferred to first shift and lost the shift differential. She received 2% across the board pay raises on July 1, 1986 and July 1, 1987, raising her base rate on those respective dates to $5.23 and $5.33 per hour. On or about June 13, 1988, Ms. Wroe began an unpaid leave of absence. Her employment ended on December 13, 1988, when she did not return from the leave. As of that date, her base rate of pay was still $5.33 per hour. (Cp. Ex. 7; R. Ex. C).

23. The annual hours worked and gross wages received by Martin Stoakes and Marjorie Wroe in the Nurse Aide I position from 1986 through 1988 inclusive are stated below:

Name	Year	Hours	Gross Wages
Martin Stoakes	1986( partial)	1198.7	$6522.43
	1987	1608	$9070.52
	1988	1142	$9732.52

TOTAL GROSS WAGES FOR MARTIN STOAKES 1986-1988: $25,325.47.

Marjorie Wroe	1986 (partial)	1109.5	$5872.73
	1987	1612.3	$8904.50
	1988 (partial)	573.5	$3877.68

TOTAL GROSS WAGES FOR MARJORIE WROE 1986-88:$18654.91

(Cp. Ex. 7).

24. On brief and in the record, Respondents have conceded that the earnings of either Marjorie Wroe or Martin Stoakes may be representative of what a Nurse Aide would have earned. (Respondent's Brief at 15; Tr. at 92). Because a determination of what Marjorie Wroe would have earned if she had worked through all of 1988 is more speculative than the established earnings that year of Martin Stoakes, and for other reasons discussed in the Conclusions of Law, it is found that the dollar amount which most accurately reflects what would have been the gross wages of Complainant Biggles in the years 1986 through 1988 inclusive, if he had been hired as a Nurse Aide I by the Respondents, is the amount earned by Martin Stoakes during that period, i.e. $25,325.47.

Termination of the Back Pay Period:

25. The Commission has conceded on brief that Complainant Biggles' income for the first half of 1989 would have exceeded his "would have" earnings with Respondents for that year. (Commission's Brief at 7-8). Therefore, the back pay period should end no later than December 31, 1988.

26. The Respondents assert that the back pay period should end at an earlier date: December 31, 1986. (Respondents' Brief at 12). Their assertion is based on a particular statement in a proposed conciliation agreement, which is a double-spaced typewritten document four and one-quarter legal size pages in length consisting of a caption, a preamble, twelve numbered paragraphs and a signature block. (Cp. Ex. 9; R Ex. A; at 42). This document was prepared by Butch Devine: an Iowa Civil Rights Commission conciliator/mediator. (Cp. Ex. 9; Tr. at 40). Mr. Devine was not a witness at the hearing.

27. This proposed agreement was sent simultaneously to the Respondents and to the Complainant for their review on March 1, 1988. (Cp. Ex. 9; R. Ex. A). The statement in question consists of one sentence in paragraph 4: "It should be noted it was determined that Complainant starting (sic) earning more than he would at Respondents commencing from January 1, 1987 to the present." (Cp. Ex. 9; R Ex. A). This paragraph also reflects a proposed settlement amount of $6,197.58 purportedly based on gross backpay less interim earnings solely for the period of March 23, 1986 to December 31, 1986 inclusive. (Cp. Ex. 9; R Ex. A).

28. Although the Complainant testified that he had no objections to the contents of this document at the time he received it, he was never asked by Mr. Devine after receiving the document whether he had such objections. (Tr. at 45, 52). There is no evidence in the record to indicate that the Complainant was represented by legal counsel during the conciliation process; that he was aware of the proper methods for calculating gross back pay, interim earnings, or net back pay; or that he was aware of what the gross back pay figures relied on by Mr. Devine were. In the absence of such evidence, his failure to object to or request changes in this statement should be given little weight.

29. There is no evidence in the record setting forth what amounts of gross back pay or interim earnings either before or after December 31, 1986 were actually relied on in formulating the statement made in paragraph 4 or in arriving at the 1986 net back pay figure given therein. There is, in short, no corroborative evidence to support the agreement's conclusion that the Complainant was "earning more than he would at Respondents commencing from January 1, 1987 to the present."

30. The unreliability of the proposed conciliation agreement as a basis for determining any issue involving back pay is also demonstrated by comparing the net back pay figure of $6,197.58 for 1986 alone with the net back pay figures arrived at in this decision. The latter are based on persuasive and detailed evidence in the record concerning gross back pay and interim earnings submitted by the Commission's representative. (Cp. Ex. 6, 7).

31. In light of the above findings, the proposition that the back pay period should terminate as of December 31, 1986 based on the statement made in the proposed conciliation agreement is rejected.

Interim Earned Income and Unemployment Compensation:
32. Complainant Biggles received the following interim earnings and unemployment compensation for the years 1986 through 1988 inclusive:

TOTAL INTERIM EARNINGS 1986-1988:$19461.11

(Cp. Ex. 6; R. Ex. C).

Mitigation of Damages:

33. The Respondents assert that the Complainant failed to mitigate his damages because, during the course of attempts to settle the case during conciliation, he rejected an offer of the opportunity to re-apply for positions other than the Nurse Aide position with Black Hawk County. (Respondents Brief at 10-11). These offers were not unconditional offers of any specific job. (R. Ex. B; Tr. at 46-48, 81-82). Rather, they were offers only of the opportunity to apply for clerk or other non-Nurse Aide positions which were conditioned on Complainant Biggles settling the case. (R. Ex. B; Tr. at 46-48, 81-82).

34. That Complainant Biggles did seek and find employment after his rejection by Respondents is reflected by his successfully finding employment, albeit not as financially rewarding as the Nurse Aide I position would have been, in each of the years 1986 through 1988 inclusive. (Cp. Ex. 6; R. Ex. B, C). Only $1,859.44 of his total interim income consisted of unemployment compensation. (Cp. Ex. 6).

35. The amount which Complainant Biggles is due in net back pay is reflected in the formula: Gross Back Pay - [interim earned income + unemployment compensation] = Net Back Pay.

Credibility Findings:

36. All witnesses at the hearing, Michael Biggles, Ann Rogers, and Tom Pounds, were credible in their testimony.