LAURA KELLEN, Complainant,

VS.

CITY OF ALTON (PARKS DEPT.), MAYOR, CITY COUNCIL (ALTON), and CITY OF ALTON PARK BOARD, Respondents.

FINDING OF FACT

1. The Complainant, Laura Kellen, timely filed verified complaint CP# 04-83-10468 with the Iowa Civil Rights Commission on April 20, 1983, alleging a violation of Iowa Code section 601A.6, discrimination in employment on the basis of sex, by City of Alton (Parks Dept.), Mayor, City Council (Alton), and City of Alton Park Board, Respondents.

2. The complaint was investigated, probable cause found, conciliation attempted but failed. Notice of Hearing was issued on March 5, 1987.

3. In 1983, the Alton swimming pool was open to the public from 1:30 p.m. until 9:00 p.m. unless fewer than 15 swimmers were at the pool at 5:30 p.m. in which case the pool was closed at 5:30 p.m. and reopened at 6:30 p.m.

4. Four full time lifeguards were hired each summer.

5. Full time lifeguards were required to have Water Safety Instruction (WSI) certification.

6. The pool usually opened on Memorial Day.

7. The Park Board consisted of 3 members. One of their duties was to recommend to the City Council specific persons to be hired as lifeguards at the pool. The City Clerk started to take written applications for the positions in January. The applications were passed on to the Park Board which reviewed the applications. Recommendations were made sometime in March.

8. In 1983, the City Council approved the Park Board recommendations at their April meeting. Approval was admitted to be a "rubber stamp* formality by the Council.

9. The Park Board did not interview applicants. It was policy and practice to rehire the full time lifeguards who worked the prior year. There was no formal evaluation policy of those lifeguards. Applicants not hired full time were placed on a substitute list.

10. In 1983, Park Board members were James Krogman, Dale Mousel and Joel Boeyink.

11. In 1982, the four full time lifeguards were: Amy Mitchell, Carla Braun, Delia Eason, and Maureen Kellen (Laura's sister).

12. Maureen Kellen did not apply for the full time lifeguard position in 1983. The other three lifeguards who worked full time in 1982 were rehired as is the practice of the Park Board. Therefore, there was one position available.

13. Laura Kellen, female, applied for the available position. Her application was dated 2/21/83. The application included information as to prior work, i.e., in 1981 she helped teach lessons at the Alton pool as a teaching assistant, and in 1982, she received her WSI and again taught lessons part time. Kellen gave Dennis Modlin, the pool manager, as a reference. [Complainant's Exhibit 5, Attachment 0]

14. Kevin Punt, male, also applied for the available position. His application was dated 2/2/83. The application indicated he did not have his WSI certification. He stated that he would be completing WSI by the end of April. However, it is noted that there was no assurance he would pass the course. Any prior experience as a substitute lifeguard at the pool was not included on his application. [Complainant's Exhibit 5, Attachment P]

15. The Park Board recommended and the City Council approved Kevin Punt as the person to be hired for the lifeguard position. It is noted that since Punt was employed in 1983, under the policy of the Park Board, he would also be hired in 1984 if he applied. He was, in fact, hired again in 1984.

16. Dennis Modlin was the pool manager from 1981 through 1984. He worked 7 days a week and 7 hours a day. His schedule included 2 hours before and 2 hours after closing. His job duties were: to take care of the guard house, the restrooms inside and outside the pool area, the sun deck and pool and determine winch guards would teach the swimming lessons. He supervised the lifeguards. Substitute lifeguards were called on a rotation basis by Modlin. The list was not in any order. He would go down the list and then try to call someone who hadn't worked before. He wanted to give everyone a chance.

The lifeguards worked half-hour shifts with a 3 guard rotation from guard to admissions. There was no employee evaluation process. Modlin stated that Kellen was as qualified as the rest and although Eason had more experience, he felt Kellen was equal in ability. He admitted that Kellen had more work experience than Punt. City Clerk Dorothy Even testified that Modlin had mentioned to her a few times that there were problems in the boys' dressing rooms. Modlin had no input in the hiring process and did not indicate any awareness of the problems in the boys' shower area. Modlin stated that he did not know why Kellen was not lured and a nude was lured. [Complainant's Exhibit 5, Attachment El

Dale Mousel, 1983 Park Board member, remembered little of the hiring process. He thought the reason for not hiring Kellen was because they needed a boy to go in the boys' restroom; i.e., "Once in awhile we have a little ruckus in the boy's bathroom and the girls didn't want to go in." [Complainant's Exhibit 5, Attachment A]

Joel Boeyink, another 1983 Park Board member, testified that the reason Punt was hired instead of Kellen was that there had been problems in the boys' shower rooms and that one of the guards had complained. Therefore, they considered having a male guard to deal with these problems. [Complainant's Exhibit 5, Attachment B]

James Krogman, the third Park Board member in 1983, remembered little about the hiring in 1983, or the reason Kellen was not hired. When asked the reasons why they recommended hiring the four that were hired, he stated: "Well, I don't know if there were really any reasons. We hired someone (Kevin) with the same qualifications. Also, I knew Kevin personally. I didn't know Laura So I suppose that was one of the reasons. . ." Krogman admitted knowing little about Kellen's qualifications or job duties as a substitute lifeguard. [Complainant's Exhibit 5, Attachment D]

17. The 17 Lifeguard Rules do not include a rule on monitoring the showers except as to smoking. The Rules provide for enforcement of the pool rules which also provide for prohibiting smoking in the shower rooms.

18. The City Clerk testified that there were about "three of the bully groups that were snapping towels in the boys' restroom, and stuffing the little kids' clothes in the toilets, extorting money from the smaller kids. " When asked if she was familiar with the bully group, she replied: 'I know them well, yes." (Tr. p. 62-63) She further testified that she knew the names and ages of the bully group. (Tr. p. 66)

19. Boeyink, Board member, testified that Eason, a lifeguard had talked with the Board about problems in the boys' shower room area and that his impression was that she felt uncomfortable going into that area. Boeyink mentioned his concern for liability and privacy. (Tr. p. 76) Maureen Kellen (Berg) who had worked as lifeguard at the pool, testified that the problems in the boys' restroorn were "nothing major;" that these problems occurred "maybe once every couple weeks," and that the lifeguards or pool manager handled them. The lifeguards were all female. They usually knew who was causing the problems by the voices. They would call the names and the problems would stop. If the problems didn't stop, the lifeguards would threaten to go in and that usually caused the problems to stop. If necessary they would go in after warning. Maureen said she only had to go in once in two summers.

20. Boeyink stated that if Punt had not passed his WSI, he would not have been lured and that Kellen was next on the list. (Tr. 78)

21. Boeyink did not know if the rides provided for disciplining someone who habitually violated those rules, but he supposed there could be such a rule. No complaints were received from males about guards entering the shower rooms. There was no study to determine when the problems occurred. (Tr. 79)

22. Punt's hourly wage in 1983 was $3.45 an hour. Substitutes received $2.60 an hour. Approval of hiring Punt occurred on April 10, 1983. He was 17 years old.

23. There were two males on the 1983 substitute list.

24. An average week for regular lifeguards in 1983 was 33 hours; for substitutes 18 hours; for the pool manager 7 3/4 hours a day. The pool manager was on salary and expected to work full time although the time when he worked was based on needs at the pool.

25. Kellen earned $137.80 working for the City of Alton in 1983. (Complainant's Exhibit 7) She also earned $183.75 in 1983 working for the City of Remsen. (Complainant's Exhibit 8)