KATHRINE S. MARTIN, Complainant,
and
IOWA CIVIL RIGHTS COMMISSION,
vs.
NORTHEAST IOWA MENTAL HEALTH CENTER AND J. DES MCIVOR,
EXECUTIVE DIRECTOR, Respondents.
I. RULINGS ON OBJECTIONS AND MOTIONS:
A. Ruling on Objection to Conciliation Procedures:
1. Findings of Fact:
a. The Conciliation Process In This Case:
1. "Administrative Law Judge Don Grove determined on October 26, 1992, that Probable Cause existed to credit the allegations of disability discrimination." (Stipulation of Facts No. 11 hereinafter "Stip."). After this finding was made, the case was assigned to Carol Leach, a conciliator on the Commission staff, for conciliation. (Tr. at 375-76). The usual procedure followed by Ms. Leach is to review the investigative file in order to become familiar with the remedial and other issues of the complaint. (Tr. at 377-78). Ms. Leach then contacts the complainant and her attorney and formulates with them a proposal for settlement. A proposed conciliation agreement is drafted and transmitted to respondent. (Tr. at 383). After the transmittal of the proposal to the respondent, conciliation meetings may be held either in person, by telephone conference, or other means.(Tr. at 386).
2. On December 9, 1992, Ms. Leach sent a proposed conciliation agreement to the Respondent, (Tr. at 383, 389). Ms. Leach had several contacts with Respondent's counsel, by telephone and letter, discussing conciliation. (R. EX. No. 21, 22; Tr. at 383). Ms. Leach had formulated this proposal after first engaging in correspondence with the complainant and her counsel. This was done in order to assist the conciliator in fulfilling her role as an advocate who seeks a full remedy for the complainant. (R. Ex. # 22; Tr. at 383, 387). The Respondent surmised that the conciliator had met with the Complainant's counsel prior to formulating a proposal and that a conciliator is not a neutral party. Once the Respondent became aware of these facts, it refused to participate any further in conciliation. In his letter of December 11, 1992 to the Commission, "Because of this you leave us no choice other than to state pursuant to Section 601A.15(d) that the respondent is unwilling to continue with the conciliation." (R. EX. # 21)(emphasis added). (While this argument was not made on brief, Respondent stated in the letter that these procedures denied his client due process.) (R. EX. 21). In her response of December 16, 1992, Ms. Leach noted the respondent's refusal to continue with conciliation and asked him to contact her if she was in error with respect to that. (R.EX. 22). Two days later the Respondent confirmed they were not interested in further negotiation. (Tr. at 391).
b. Objection of Respondent:
3. At the outset of the hearing, the Respondents objected to the "entire proceeding commencing with the conciliation on the basis that the Commission failed to follow the statute by having a--specifically 216.15, by having a conference with the respondents before initiating conciliation." (Tr. at 5). The same objection was made on the Respondent's Prehearing Conference Form as follows: "The commission failed to follow the mandate of Section 216.15 of the Code of Iowa as it attempted to impose conciliation upon the Respondent without having a 'initial conciliation, (sic) meeting between the Respondent and the commission staff' pursuant to Section 216.15(3)(b) of the Code of Iowa.'"
c. Arguments of Respondent and Commission:
4. In it's response to these objections, which the Commission understood to focus on the method by which meetings were held, i.e. by telephone or letter instead of face to face in person meetings, the Commission argued that the legislature did not intend to limit the conciliation process to face to face meetings. (Commission's Brief at 7-8).
5. In its reply brief, the Respondent asserts that the question of whether the legislature intended for meetings to be in person or not is beside the point. (Respondent's Reply Brief at 14.) The Respondent's argument is that the legislature intended that the Commission should begin the conciliation process by formulating a position without any input from the complainant. The Commission's conciliator should then meet alone with the Respondent, "to present its own independent position and recommendations to remedy the situation to the Respondent in an initial conciliation meeting." (Reply Brief at 15). The Respondent argues that by communicating first with the Complainant or her counsel to ascertain what the Complainant desires in the way of a remedy, the Commission staff violated the intent of the legislature. "The statute does not say if the Complainant is represented by a lawyer, the Commission staff shall meet with said lawyer and tell the Respondent what the Complainant wants in order to start the conciliation proceeding. This relieves them of their responsibility to adopt a position on their own to endeavor to eliminate the unfair or discriminatory practice." (Reply Brief at 15).
2. Conclusions of Law:
a. Statutory Authority on Conciliation:
6. The relevant parts of the Iowa Civil Rights Act concerning conciliation are set forth below:
d. The Commission staff must endeavor to eliminate the discriminatory or unfair practice by conference, conciliation, and persuasion for a period of thirty days following theinitial conciliation meeting between the respondent and the commission staff after a finding of probable cause. After the expiration of thirty days, the director may order the conciliation,conference, and persuasion procedure provided in this section to be bypassed when the directordetermines the procedure is unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation.
. . .
9. The terms of a conciliation agreement reached with the respondent may require the respondent to refrain in the future from committing discriminatory or unfair practices of the type stated in the agreement, to take remedial action as in the judgment of the commission will carry out the purposes of this chapter, and to consent to the entry in an appropriate district court of a consent decree embodying the terms of the conciliation agreement.
Iowa Code SS 601A.15 (3)(d) and .l5(9)(1991)(now codified as
216.15(3)(d) and .l5(9))(emphasis added). These sections became
effective on January 1, 1979 after they were rewritten by amendment.
Iowa Code Annotated 601A.15 (Supp. 1987)(historical note citing
Acts 1978 (67 G.A.) ch. 1179, SS 11 to 19).
7. Prior to the l979 amendments, the statutory provisions concerning conciliation stated, in relevant part:
3. if . . . probable cause exists for crediting the allegations of the complaint, the investigating official shall promptly endeavor to eliminate such discriminatory or unfair practice by conference, conciliation, and persuasion.
5. In case of failure to satisfactorily settle a complaint by conference, conciliation, and persuasion, or in advance thereof if in the opinion of the investigating official circumstances so warrant, the official may issue and cause to be served a written notice together with a copy of such complaint . . . requiring the . . . respondent, to answer the charges of the complaint in writing within ten days after the date of such notice or within such extended time as the investigating official may allow.
6. When the investigating official is satisfied that further endeavor to settle a complaint by conference, conciliation and persuasion shall be futile, the official shall report the same to the commission. If the commission determines that the circumstances warrant, it shall issue . . . a written notice requiring the respondent to answer the charges of the complaint at a hearing.
Iowa Code Annotated S 601A.14 (1975)(emphasis added).
b. Pertinent Administrative Rules On Conciliation in Effect as of December 1992:
8. The relevant Commission rules on conciliation in effect on December 1992 are set forth below. These rules became effective on January 13, 1988:
2.1(6)(d)....Whenever the offer of adjustment by a respondent is acceptable to the investigating official, but not to the complainant, the commission may close the case as satisfactorily adjusted. In a case which has been determined by the commission as having probable cause, the respondent's signature must be obtained before the case can be considered to be satisfactorily adjusted.
2.1(6)(e) The term "successfully conciliated" shall mean that a written agreement has been executed on behalf of the respondent, on behalf of the complainant, and on behalf of the commission, the contents of which are designed to remedy that alleged discriminatory act or practice and any other unlawful discrimination which may have been uncovered during the course of the investigation.
. . .
3.12(6) Conciliation. All cases that result in findings of probable cause shall be assigned to a staff conciliator for the purpose of initiating attempts to eliminate the discriminatory or unfair practice by conference, conciliation, and persuasion. When a conference is held, a synopsis of the facts which led to the finding of probable cause along with written recommendations for resolution will be presented to respondent.
3.12(7) Participants. Both the complainant and respondent shall be notified in writing of the time, date, and location of any conciliation meeting. The complainant may be present during attempts at conciliation.
3.12(8) Limitation on conciliation. Upon the commencement of conciliation efforts, the commission must allow at least 30 days for the parties to reach an agreement. After the passage of 30 days the executive director may order further conciliation attempts bypassed if it is determined that the procedure is unworkable.
3.12(9) Conciliation agreements. A conciliation agreement shall become effective after it has been signed by the respondent or authorized representative, by the complainant or authorized representative, and by a commissioner or executive director on behalf of the commission. Copies of the agreement shall be served upon all parties.
161 IAC SS 2.1(6)(d)-(e); 3.12(6)-(9)(1992)(now superseded
by sections 3.13(6)-(10)(emphasis added).
c. Applicable Rules of Construction:
9. Administrative rules and statutes are interpreted and construed under the same rules. Motor Club of Iowa v. Dept. of Transportation, 251 N.W.2d 510, 118 (Iowa 1977). The polestar of all statutory construction is the search for the true intention of the legislature. Iowa National Industrial Loan Co. v. Iowa State Dept. of Revenue, 224 N.W.2d 437, 439 (Iowa 1974). All other rules of construction are designed to reach this goal and may even be disregarded if necessary to fulfill the legislature's intent. Id. The legislature intended that the Iowa Civil Rights Act is to be broadly construed to effectuate its purposes. Iowa Code S 601A.18 (1991).
10. In construing statutes strained, impractical, or absurd results should be avoided. Id. at 440. "Ordinarily, the usual and ordinary meaning is to be given the language used, but the manifest intent of the legislature will prevail over the literal import of the words used." Id. "Where language is clear and plain, there is no room for construction." Id. "It is necessary to look at the object to be accomplished and the evils and mischiefs sought to be remedied in reaching a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it." Id. "All parts of the enactment should be considered together and undue importance should not be given to any single or isolated portion." Id.
11. Phrases within a statute should be construed according to the context of the language. See Iowa Code S 4.1(38). When a statute is ambiguous, the following should be considered in determining the intention of the legislature: the object sought to be obtained by the statute, the circumstances under which the statute was enacted, the legislative history, the common law or former statutory provisions on the same or similar subjects, the consequences of a particular construction, the administrative construction of the statute and any preamble or statement of policy in the statute. See Iowa Code S 4.1(6).
d. Construction of Statutes Addressing Conciliation:
12. An examination of the pertinent statutes addressing conciliation in 1992 reveals that the legislature did not establish a detailed step by step procedure of how the conciliation process was to be implemented. See Iowa Code SS 601A.15 (3)(d), .15(9)(1991). The legislature did not, for example, prohibit contacts between the Commission conciliator and the complainant or her attorney prior to contacting the respondent or at any other time. See Iowa Code SS 601A.15 (3)(d) (1991). Nor did the legislature require that the initial conciliation meeting be limited to the participation of the conciliator and the respondent. See id.
13. The legislature did set forth some broad requirements concerning conciliation in the statute. See id. It is well recognized that such broad standards allow the agency to use its administrative expertise to regulate and administer the details necessary to fulfilling the legislature's intent. Cf. B. Schwartz, Administrative Law S 2.2 p. 44 (1991)("The courts . . . acknowledge the comprehensive regulation required today is too intricate and detailed for direct legislative processes").
14. Under the plain language of the statute, the legislature requires that "[t]he Commission staff must endeavor to eliminate the discriminatory or unfair by conference, conciliation or persuasion." Iowa Code S 601A.15(3)(d). See Iowa Code S 4.1(30)(b). It is equally clear and plain that the legislature also established a minimum time period during which such efforts must be made: "for a period of thirty days following the initial conciliation meeting between the respondent and the commission staff after a finding of probable cause." Iowa Code S 601A.15(3)(d). Once this time period has expired, the director may order a bypass of further conciliation if he determines "the procedure is unworkable by reason of past patterns and practices of the respondent, or a statement by the respondent that the respondent is unwilling to continue with the conciliation." Id.
15. The import of the phrase "initial conciliation meeting between the respondent and the commission staff," when viewed with respect to the full context of the statute, Iowa Code S 4.1(38), is that the clock does not begin running on the time period until there has been a conciliation meeting involving, at a minimum, the respondent and the commission staff. And this would hold true regardless of whether there were prior contacts between the Commission conciliator and the complainant. To hold that this phrase prohibits prior communication with the complainant or limits participation in the meeting to the respondent and Commission staff is to give undue importance to an isolated portion of the statute. See Iowa National Industrial Loan Co, 224 N.W.2d at 440.
16. Both the amended statute and its predecessor require that efforts be made to conciliate the case. See Iowa Code S 601A.15(3)(d)(1991); Iowa Code Ann. S 601A.14(3), (5)-(6)(1975). The major impact of the 1979 amendments, insofar as the conciliation requirements addressed here are concerned, is (a) the establishment of the minimum time during which conciliation efforts with the respondent are to proceed before they may be ended, and (b) the commission no longer had complete discretion to avoid the conciliation process when "in the opinion of the investigating official circumstances so warrant." See Iowa Code Ann. S 601A.14(5)(1975); Iowa Code S 601A.15(3)(d)(1991). Neither the past nor present statute prohibit communication between the conciliator and the complainant prior to the initial conciliation meeting. See Iowa Code Ann. S 601A.14(5)(1975); Iowa Code S 601A.15(3)(d)(1991).
17. The administrative construction of the statute is evident from the rules in effect in 1992. These rules treat the conciliation process as an effort involving all three parties, i.e. the complainant, the respondent, and the Commission. See 161 IAC SS 2.1(6)(d)-(e); 3.12(6)-(9)(1992). The rules expressly allow the complainant to be present at all conciliation meetings. Id. at S 3.12(7).
18. To construe these statutes as prohibiting contact between the conciliator and the complainant prior to the initial conciliation meeting with the respondent would yield strained, impractical and absurd results which are to be avoided. Iowa National Industrial Loan Co., 224 N.W.2d at 440. The conciliator is expected to endeavor to eliminate the respondent's "discriminatory or unfair practice." Iowa Code S 601A.15(3)(d)(1991). It is anticipated that, as part of this effort, she will attempt to obtain "remedial action" necessary to "carry out the purposes of this chapter." Id. at 601A.15(9). Such remedies would include, for example, back pay, compensatory damages, and reinstatement or hiring for the complainant. Id. at 601A.15(8)(a). The conciliator cannot know what proposals to make on these issues without contacting the complainant. How would the conciliator possibly be able to accurately formulate a back pay offer, in a discharge or failure to hire case, without contacting the complainant and determining the amount of interim earnings the complainant received after the discriminatory act in order to deduct them from the back pay as required by Iowa Code section 601A.15(8)(a)(1)? How would the conciliator be able to estimate an amount for emotional distress damages without contacting the complainant to ascertain what emotional impact the discrimination had on her? In failure to hire or discharge cases, the complainant is entitled to hiring or reinstatement as a remedy. But often, in these cases, the complainant either has new employment or the prior employment was so traumatic that he does not want reinstatement. It would be impractical to hold that the law requires the commission staff to attempt to persuade a respondent to agree to provide remedies which the complainant will refuse. It would be absurd to conclude that the legislature intended for the conciliator to be ignorant of the facts he needs to conciliate the case.
19. This legislation does not expressly address the question of whether or not the conciliator may contact the complainant prior to the respondent. However, the courts have recognized that when the legislature empowers an administrative agency to perform a certain task, "everything necessary to carry out the power and make it effectual and complete will be implied." Koelling v. Board of Trustees, 259 Iowa 1185, 1194, 146 N.W.2d 284 (1967). As the above examples illustrate, the conciliator may need to contact the complainant prior to communicating with the respondent in order to effectively and completely carry out the conciliation function. Therefore, the power to do so is implicit in the Act.
20. The major federal anti-discrimination agency, the Equal Employment Opportunity Commission (EEOC), is also required to "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion." 42 U.S.C. S 2000e-5(b). The EEOC's conciliators have long been expected to "confer with the . . . complainant before meeting or contacting the respondent to determine whether any events have occurred since the completion of the investigation which would affect the original remedial objectives (e.g. . . complainant's employment history and interest in hire/rehire, loss of earnings computation)." CCH, EEOC Compliance Manual S 62.4(a) (1993)(procedures revised effective October 1988)(emphasis added); See also EEOC Compliance Manual 62-2 (Order 915, 1/79 update).
21. It is implicit in the statute that the conciliator is not a neutral party. The conciliator's job is "to endeavor to eliminate the discriminatory or unfair practice" through completely voluntary means. See Iowa Code S 601A.15(3)(d)(1991). The conciliator is to act on the basis that there is, in fact, a "discriminatory or unfair practice" to eliminate. See id. Elimination of such practices is the principal purpose of the Act. Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982). There is no authority in the statute empowering the conciliator to adjudicate the case or reevaluate the probable cause finding. See id. at S 601A.15(3)(d)(1991). As noted in the Commission's reporter of its contested case decisions:
A conciliator tries to negotiate the best possible settlement on behalf of the Commission and the Complainant. The difference between mediation and conciliation is that the conciliator, unlike the mediator, is an advocate for the Commission. There having been a finding of probable cause that discrimination has occurred, it is the conciliator's duty to try to negotiate not only a remedy for the Complainant, but also a change in any practices found to be discriminatory.
XI Iowa Civil Rights Commission Case Reports iv (1990-92)("Complaint
Process").
22. Since conciliation is a completely voluntary, nonadjudicatory proceeding where the Commission has no power to deprive a party of property, see Iowa Code S 601A.15(3)(d)(1991), constitutional guarantees of due process are not implicated. See Estabrook v. Iowa Civil Rights Commission, 283 N.W.2d 306, 310 (Iowa 1979). "The requirements of due process apply only to the deprivation of interests encompassed by the fourteenth amendment's protection of liberty and property." Id. See also IOWA CONST. art. 1 S 9; SEC v. O'Brien, 467 U.S. 735, 742 (1984)(procedure which adjudicates no legal rights does not implicate due process).
23. Neither communicating with the complainant nor relaying the complainant's proposals to the respondent prevents the Commission staff from making an independent judgment as to whether a full remedy is offered by the respondent. Under the Commission's rules, the Commission may close a case as being satisfactorily adjusted if, in its independent judgment, it believes a full remedy is offered. 161 IAC S 2.1(6)(d)(1992).
24. It is unnecessary to address the methods by which conciliation meetings may be held (i.e. in person meetings or other methods) as Respondent indicated its objections were not directed to that concern. (Reply Brief at 14). However, it should be noted that the statutory obligation of a party to meet to negotiate is fulfilled, even though no meeting has occurred, when the opposing party responds to invitations to negotiate by refusing to meet. Cf. In Re Alabama Symphony Assn., 155 B.R. 556, 576 (N.D. Ala. 1993)(bankruptcy debtor's obligation to meet with union prior to rejection of collective bargaining agreement was fulfilled when union refused to meet with debtor). To hold otherwise under this statute would give a respondent veto power over the Commission's ability to take a case to public hearing. See Iowa Code S 601A.15(3)(d) (1991)(setting time at which conciliation may be terminated at 30 days after the conciliation meeting with the respondent). It would be unreasonable to hold that the requirement for a conciliation meeting, however "meeting" is defined, is not fulfilled whenever a meeting is not held because the respondent refuses to negotiate or participate in such a meeting.
3. Ruling:
25. The Commission's staff acted in accordance with the law in its conciliation efforts with respect to all the actions objected to by Respondent. The Respondent also informed the Commission during the conciliation process that it was "unwilling to continue with the conciliation." Respondent's objection, therefore, is overruled.