BEFORE THE IOWA CIVIL RIGHTS COMMISSION

MAXINE FAYE BOOMGARDEN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

v.

HARDIN COUNTY VETERANS' COMMISSION BOARD and HARDIN COUNTY BOARD OF SUPERVISORS, Respondents.

CP # 07-86-14926

FINDINGS OF FACT CONTINUED:

J. Complainant Boomgarden's Qualifications Exceeded Those of David Roelfs:

71. For reasons fully set forth in the conclusions of law, the use of the veterans preference can be addressed through disparate impact theory only if its use is not legally required. The use of the preference is only legally required if the qualifications of the nonveteran candidates are no better than those of the veteran candidate. See Conclusions of Law No. 32-38.

72. Therefore, it is necessary to ascertain whether David Roelfs was equally qualified to Complainant Boomgarden at the time the hiring decision was made. In making this determination, it is helpful to note that the preponderance of the evidence establishes that the ultimate decisionmakers in this process, the members of the Board of Supervisors, were unaware of whether or not David Roelfs possessed certain qualifications.

73. In reviewing the applications, it should be noted that, apparently due to an inadvertent error, part of Steven Ball's resume is attached to David Roelfs application at Exhibit C-5. (EX. C-5). This attachment is disregarded in evaluating Roelfs' qualifications. An examination of the copy of Roelfs' application provided by the Respondents in their Answers to Complainant's Interrogatories indicates that Exhibit C-5 is, with that exception, the full and complete application of David Roelfs.

74. The Board of Supervisors probably did not have knowledge, at the time it made its hiring decision, of the military firefighting and chemical warfare training of David Roelfs. Although the Board of Supervisors reviewed Complainant Boomgarden's and David Roelfs' application materials, neither of their applications had any indication of whether or not they had emergency management experience or training. (EX. C-2, C-4, C-5; Tr. at 284, 449, 468, 492).

75. The credible testimony of Roelfs indicates that, although the Board of Supervisors mentioned that the job was a dual position involving both veterans affairs and emergency management, he was not asked about any past emergency management experience or training he may have had during the Board's 15 minute interview with him. The focus of the Board's questioning with respect to Roelfs' qualifications was on the Veterans Affairs aspects of the job, and that was largely limited to questions about working with veterans, his concern with veterans issues, and working with people. (Tr. at 384-86, 390). As previously noted, the Board did not ask any applicants any hypothetical questions concerning how they would handle specific disasters. (Rulings on Objections No. 7).

76. Complainant Boomgarden was also not questioned by the Board concerning emergency services or disaster services experience. (Tr. at 129-30). The only discussion of training with respect to the emergency management aspect was that training would be provided for that job. (Tr. at 130).

77. Although supervisor Millie Lloyd's testimony indicates that questions were asked of Roelfs and Boomgarden concerning emergency management, this seems unlikely in light of their testimony to the contrary. (Tr. at 129-30, 319-20, 384, 386, 390). Also, she was unable to provide any specific information concerning Roelfs' military training and experience thought to be related to that area. (Tr. at 333). It is more likely than not that Lloyd's limited awareness of Roelfs' training was due to information received after the hiring of Roelfs, perhaps during the preparation of answers to interrogatories in this case.

78. Supervisor Adams testified he did not remember any details of any of the interviews. Nor did he recall any discussions of qualifications for the emergency management coordinator position at Roelfs' interview. He believed, however, such questions were asked. (Tr. at 498).

79. Supervisor Fuller could not recall asking David Roelfs if he had any background in civil defense. (Tr. at 471).

80. The best explanation for the differing testimony of the Supervisors Lloyd and Adams and the testimony of Boomgarden, Roelfs and Fuller may be found in the previously established fact that interviews of candidates for the combined position and interviews of candidates solely for the emergency management coordinator position were held on the same day. See Findings of Fact Nos. 15 and 16. The interviews of those candidates for the emergency management coordinator position focused on emergency management. (Tr. at 486). It is probable that the interviews of the candidates for the combined position, who had been referred to the Board by the VAC, focused on the veterans affairs aspects of the position and not on emergency management. Emergency management was an aspect for which extensive training was to be provided. See Finding of Fact No. 7.

81. Although Roelfs' military training involving firefighting and chemicals was discussed with the VAC, there is no evidence that this information was transmitted from the VAC to the Board of Supervisors. (Tr. at 380). The available evidence is to the contrary. (Tr. at D30). This entire decisionmaking process is remarkable for the lack of communication between the VAC and the Board. (Tr. at 188, 203-04, 214-15, 262, 268, 380, 447, 476-77, 486-87, 545-46, 549, D20-21, D33). The evidence demonstrates that the only communications between the VAC and the Board were: (1) The VAC's recommendation of four candidates to the Board; (2) the Board's request for the names of additional candidates; and (3) the submission to the Board by the VAC of two names in response to that request. (Tr. at 188, 196, 201, 213-15, 262-64, 446-47, 539-40, D10-11, D20-21, D29-30, D33). See Findings of Fact Nos. 13, 18.

82. Roelfs was also not asked any questions by the Board concerning his experience as a "records specialist". (Tr. at 385). His application reflects only that he worked part-time for the Army Reserve from February 1984-1986 "maintaining Army Reserve career records." (EX. C-5).

83. A comparison of the qualifications of Boomgarden and Roelfs follows. Those facts in the record for which the greater weight of the evidence establishes the Board had no knowledge and, therefore, which should be disregarded, are in italics. Even if these qualifications were to be considered, Boomgarden would still be better qualified in light of the two primary purposes of the position, i.e. (1) to administer financial assistance programs to indigent veterans and their families in Hardin County, and (2) to coordinate disaster services and emergency planning for Hardin County. See Findings of Fact Nos. 3, 6, 8, and 8A. Given Boomgarden's better qualifications, Hardin County was not legally required to exercise a veteran's preference in favor of David Roelfs. See Conclusions of Law No. 32-34.

Nine years work experience providing assistance to indigent persons.

1. 1/77-3/86. Full-time Secretary-Bookkeeper at HHAS.

Duties: 1/77 To 12/85:

1. Aiding clients with claims for emergency assistance or in medical/economic distress by referring them to appropriate agencies through out the state. 2. Working with elected officials, county employees, and general public. 3. Client intake and case assessments when director absent or between directors. Counseled disabled. 4. Administered the agency during three absences of directors for periods of up to 6 months. 5. Prepare annual department budgets, records & reports. 6. All banking & bank reconciliation for HHAS. 7. All billing and monthly financial reports to Board of Supervisors. 8. All cost analysis for purchase of service for DHS. All financial recordkeeping for Dept. of Health. 9. Client statistics. 10. Writing grants.

Duties 1/77 to 3/86:

1. Bookkeeping. 2. Client referral. 3. Obtaining billing data from clients. 4. Scheduling appointments. 5. Typing correspondence. 6. Answer telephone.

Education:

Over 400 hours of classroom training addressing credit and money management, community resources, working with the elderly and handicapped and health-related items. Bookkeeping refresher courses. 1956 high school graduate with secretarial training.

Firefighting or Chemical Warfare Training:

None.

Volunteer Activities:

Care Review Committee of local nursing homes for several years. Recommended changes to improve living conditions of residents.

Zero years work experience providing assistance to indigent persons.

1. 1979-3/86:

Farming. Self-employed.

2. 2/86-3/86: Part-time truckdriver for Nat'l Guard.

3. 2/84-2/86: Part-time records specialist for Army Reserve.

Duties: 2/84-2/86: Maintaining Army Reserve Career Records.

This job was performed 50-60 days a year for two years for a total of 3-4 months experience.

Duties involved supervision of 6 enlisted personnel engaged in routine updating of personnel records which were oriented to career advancement. Familiarity with DD214 discharge paper might be helpful as a dishonorable discharge would be disqualifying for veterans benefits. With the exception of DD214, diffrent forms were used for benefits. Updating involved removing old file material and inserting new material.

Education:

1972 Bachelor's degree in park management and recreation.

Firefighting or Chemical Warfare Training:

1967 Graduate of two week naval firefighting course.

(With the possible exception of chemical fires, the coordinator would not normally be involved in fire situations.)

Some Army reserve training, of unknown duration, on nucclear, biological and chemical agents.

Volunteer Activities:

American Legion service officer for an unknown length of time assisting veterans in obtaining benefits.

(EX. # C-2, C-4, C-5; EX. # R-4A, R-5 Tr. at 375, 393-96, 401-06, 408, 410, 413, 422-23). See Findings of Fact Nos. 27-35, 74-82.

K. Although Not Legally Required to Do So, The Respondent Board of Supervisors Did Exercise a Veterans' Preference In Selecting David Roelfs:

84. For reasons fully set forth in the Conclusions of Law, it is established as a matter of law, and the Commission is required to so find, that a veterans' preference was exercised in the selection of David Roelfs for the combined position of Veterans Affairs Director and Coordinator of Emergency Services as admitted in Respondents' brief and pleadings. (Respondents' Brief at 10-12, Response to Complaint, Respondents' Prehearing Conference Form). See Conclusions of Law No. 4-7.

85. In addition to such admissions in the briefs and pleadings, there are other admissions in the record to this effect, including the testimony of supervisors Millie Lloyd and Robert Fuller. (Tr. at 279, 281, 295, 341-42, 344, 346, 448-49, 451-52, 460-63).

L. The Use of the Veterans Preference Has a Strong Disparate Impact Against The Selection of Women in Hardin County, Which Is the Relevant Labor Market:

1. The Relevant Labor Market:

86. The labor market is the area from which one would expect the employer's workforce (i.e. its employees) to be drawn. When measuring whether an employment practice has a disparate impact on women by examining the impact on women in the relevant labor market, it is helpful to determine what geographic area constitutes that market, i.e. what is the geographic area from which the employer can be expected to hire for a position?

87.

Recruiting areas for different types of workers can vary. In general, most local employers recruit their workers and most local workers are employed within an immediate area. However, the labor market for some professional, managerial and blue-collar occupations is generally much broader geographically, with recruitment often conducted on a state, regional, or national basis.

(EX. # C-24).

88. Hardin County constitutes the relevant labor market for this combined position for three reasons. First, every applicant gave an address in Hardin County. (EX. # C-4 - C- 11). Second, one applicant, Robert Drummer, was screened out by the VAC because, although he had listed a Hardin County address on his application, they discovered that he did not actually live in Hardin County. (Tr. at 534). Third, recruitment for this position was conducted on a local basis, i.e. the position was advertised in the local newspaper, the Hardin County Index. (Stip.; EX. C-3; Tr. at 176).

2. An Examination of Census Statistics Reveals That The Exercise of a Preference for Veterans Has a Severe Disparate Impact on Women in Hardin County:

89. The veteran's preference is a facially neutral practice which has a severe disparate impact on women. The effect of preferring veterans for a position will screen out a disproportionate number of women as compared to men in the Hardin County labor market, as well as for the State of Iowa, as shown by the following statistics. The most telling of these statistics is the one that demonstrates that, while 32.2% of the male population of Hardin County over age 18 were veterans, only 1.0% of the female population of Hardin County over age 18 were veterans. Application of the veterans preference to these potential applicants would screen out 99% of the female population of the county and only 67.8% of the male population. The statistics below demonstrate that the veterans preference operates to screen out a far higher percentage of females in Hardin County and in Iowa than males.

(EX. C-23, C-24, C-26). Official Notice is taken of the 1980 census population statistics for Hardin County set forth in the above category "Hardin County Population Over 18 By Sex." The parties were informed at hearing that judicial notice might be taken of this fact and given the opportunity to address this on brief. (Tr. at 579).

90. The showing of the disparate impact of the veterans preference set forth in the above labor market and potential applicant flow statistics is reinforced by an examination of the veterans status of the actual applicants.

91. A stipulation was reached to the effect that there were forty-three (43) applicants, thirty-three (33) of whom were male and nine (9) of whom were female. (Stip.). Official notice is taken of the fact that the sum of 33 and 9 is not 43, but is 42. Fairness to the parties does not require that they be given the opportunity to contest that fact. Therefore, reference is made to Exhibit C-10, which lists 43 applications, one of which, however, is the application of a male for the civil defense position only. (EX. C-10). It appears that it was the intent of the parties to stipulate to the total number of applications for the combined position, which would be 42.

92. It was also stipulated that none of the female applicants and thirty-one of the thirty-three male applicants were veterans. (Stip.). On a percentage basis, therefore, zero percent of the female applicants and 94.0 percent of the male applicants were veterans. Application of the veterans preference to the actual applicants would screen out 100% of the female applicants and 6.0% of the male applicants.