BEFORE THE IOWA CIVIL RIGHTS COMMISSION RUTH MILLER (CLAY), Complainant,

VS.

PAGE COUNTY SHERIFF'S DEPT., PAGE COUNTY BOARD OF SUPERVISORS, PAGE COUNTY GRIEVANCE REVIEW BOARD, and RON FRANKS, SHERIFF, Respondents.

FINDINGS OF FACT

Jurisdictional Facts:

1. On July 31, 1985 the Complainant, Ruth Miller (then known as Ruth Clay), filed her first complaint CP # 08-85-13343 with the Iowa Civil Rights Commission alleging sex discrimination in employment which is prohibited by Iowa Code section 601A.6. (Complaint). The last date of a specific violation indicated in the complaint is June 28, 1985. Official notice is taken that July 31, 1985 is thirty- three days after June 28, 1985. Fairness to the parties does not require they be given an opportunity to contest that fact.

2. On February 28, 1986 and April 21, 1986, respectively, Ms. Miller filed her next two complaints, CP # 03-86-14360 and CP # 04-86-14561, both of which alleged sex discrimination in employment and retaliation which are prohibited by Iowa Code sections 601A.6 and 601A.11. The last dates of specific violations indicated in the complaints are, respectively, January 31, 1986 and April 7, 1986. Official notice is taken that February 28, 1986 is twenty- eight days after January 31, 1986. Official notice is taken that. April 21, 1986 is 14 days after April 7, 1986. Fairness to the parties does not require that they be given an opportunity to contest these facts.

3. The complaints were investigated. After probable cause was found, conciliation was attempted and failed. (Notice of Hearing). Notice of hearing was issued on April 10, 1989. The case was continued to October 31, 1989 by a Ruling dated August 22,1989.

Background:

4. Complainant Ruth Miller, a female, was employed as a jailer by the Page County Sheriff's Department from February 6, 1984 until her termination on April 10, 1986. (Tr. at 14). Throughout her employment Ms. Miller was known as Ruth Clay. The Complainant began her employment as a part-time jailer. Her shifts would vary from the hours of 4:00 p.m. to 12:00 midnight or 12:00 midnight to 8:00 a.m. depending on whether or not a female was incarcerated. (Tr. at 106). A part-time jailer's duties involve maintaining jail security and making various records such as jail logs which record the activities within the jail during each jailer's shift. (Tr. at 17; CP. EX. # 1, 4).

5. Complainant Miller eventually became a full-time jailer. For several months after Complainant Miller went to full-time status, she and chief jailer Kathy Smith worked double shifts in order to cover the jail. (Tr. at 107). This continued until the complement of jailers was supplemented by the hire of another part-time jailer. (Tr. at 107). After that time, a regular schedule was set up by the chief jailer, Kathy Smith. (Tr. at 17). Kathy Smith worked the day shift from 8:00 a.m. to 4:00 p.m. Carol Haffner and Carol Kirkpatrick worked the 4:00 p.m. to 12:00 midnight shift on different days. Complainant Miller worked from 12:00 midnight to 8:00 a.m. (Tr. at 68). This schedule continued through midnight on March 31, 1985 when Carol Kirkpatrick left on maternity leave. (Tr. at 114; CP. EX. # 4).

6. During Complainant Miller's employment, jailers were assigned "J numbers." These were communication codes which were assigned by date of hire. As such it reflected one's seniority level at the jail. (Tr. at 19). The J-1 number, which would represent the jailer with the highest seniority, was never assigned to anyone but the chief or head jailer. (Tr. at 19).

7. Kathy Smith was hired by Sheriff Franks in April of 1982 as a part-time jailer. (Tr. at 16). She then progressed from swing shift to day jailer. She became head jailer or chief jailer in April of 1983. In that position she trained and maintained the performance of the other jailers. She ordered supplies. She helped the civil deputy in the front office. She also did all scheduling of all other jailers. She quit on July 31, 1985. She was reemployed as a jailer, not the chief jailer, in January of 1986. She voluntarily left her job on March 31, 1986. (Tr. at 17).

8. There were no written personnel policies in effect at the Page County Sheriff's Department during the time of Complainant Miller's employment. (Tr. at 4950,485; CP. EX. 15).

9. Sheriff Ron Franks has been Sheriff of Page County since June of 1980. Prior to that, he had served as deputy sheriff of Page County since August of 1972. (Tr. at 590). As secretary of the schools committee of the Iowa State Deputies and Sheriff's Association, he attends regular meeting in Des Moines. These meetings are usually held on the third Wednesday of each month. (Tr. at 590).

10. Mike Williams, the chief deputy with the department since January of 1984, had the title of jail administrator from at least October 1984 until February 1, 1986, when Sheriff Franks officially took over jail administration. (Tr. at 194-95, 5,30, 547-48; CP. EX. # 25A, 40). The sheriff also took over administration of the jail in late May of 1985 when Mike Williams was on vacation. (Tr. at 54; CP. EX. # 11). During the time that Mike Williams served as jail administrator and Kathy Smith served as chief jailer, the chain of command for jail matters would have been (1) Sheriff Franks, (2) Mike Williams, (3) Kathy Smith, (4) jailers.

Past Practices of Sexual Harassment at the Page County Sheriff's Department:

Debra Kidney:

11. Debra Kidney was hired in July of 1980 by Sheriff Franks as a secretary-receptionist. (Tr. at 146). She later became a civil deputy. In that position she performed the same duties as she had as secretary receptionist with the additional duty of serving papers. (Tr. at 146). She left her employment with the Page County Sheriff's Department on January 16,1984, less than one month prior to Complainant Miller's hire. (Tr. at 14,146; CP. EX. G).

12. During Ms. Kidney's employment, Sheriff Franks made sexual remarks and advances toward her. (Tr. at 148-49, 151-53). Ms. Kidney told Kathy Smith that Sheriff Franks would persist in making advances toward her and would not stop. Franks told Smith that he cared very much for Kidney and didn't know what was wrong with her. (Tr. at 35). In response to his advances, Ms. Kidney would stay away from Franks. (Tr. at 35, 152). Sheriff Franks told Smith that if Debra Kidney did not change her attitude and get a little friendlier, she would be "out of there." (Tr. at 35).

13. In August of 1980, Sheriff Franks told Kidney that he had personal feelings for her and stated he hoped it would not interfere with their relationship. (Tr. at 148-49). Ms. Kidney replied that it would not because she was married and wanted to keep the relationship professional. (Tr. at 149). In 1981, Ms. Kidney rode with Sheriff Franks to civil school in Des Moines. He told her that, if he had anything to drink, he might not be able to control his feelings for her. This remark made Ms. Kidney nervous and she made it a point to stay with the female deputies. He then, late at night, asked her to discuss his feelings for her in his room. She refused saying it was not a proper place to discuss it. (Tr. at 149).

14. At another time, Ms. Kidney had an argument with another deputy, Bob Stotts, which she wanted to discuss with Franks. They went to the Hitching Post in Maryville, Missouri to discuss it. (Tr. at 150). On the way back, Franks told her that he could make her feel sexually enhanced without alcohol or drugs. This upset Ms. Kidney and she informed him that she didn't wish to hear anymore comments of that nature. (Tr. at 151).

15. On another occasion, Sheriff Franks, Debra Kidney, Kathy Smith, and Kelly Phillips had dinner in Essex. While there, Sheriff Franks took each of them for rides on his motorcycle. When Ms. Kidney took her ride, Sheriff Franks asked for a kiss which she refused. (Tr. at 151).

16. After Ms. Kidney refused Sheriff Franks' advances work became more difficult for her. He wouldn't give her the information required for her to perform the procedures needed for civil work. When Ms. Kidney avoided Sheriff Franks, he would become upset. (Tr. at 152). Without specifically mentioning sex, Sheriff Franks offered her a five percent raise if she became more friendly toward him. She informed him that she was being professional and friendly with all. Franks responded by treating her in a rude manner and insinuating that she was stupid in front of others. (Tr. at 153).

17. "Courtesy" is one of the topics addressed in a three page written reprimand, dated January 10, 1984, from Sheriff Franks to Debra Kidney. (CP. EX. E). This reprimand indicates that is " an initial step, which could lead to the suspension or termination of your employment." The section on courtesy states, in part:

A. You will conduct yourself at all times in a courteous and respectful manner towards all employees, including the sheriff. This shall be done either in a group or one on one basis. The sheriff requires this during the duration of time in the office or work related matters. This is requested to continue for non-working hours to preserve working relations.

B. The defensive attitude displayed in the past will cease. When an explanation is requested by the sheriff, you will be expected to relate to him in an open-minded conversation, with the same courtesy in return on the part of the sheriff.

(CP. EX. E).

18. The reprimand also suggests that Debra Kidney develop an interest in sheriff's department activities through "attendance at games or parties." (CP. EX. E). Six days after receiving the reprimand, Debra Kidney resigned because of the stress placed on her and her family though the demands of Sheriff Franks and concern that he would ruin her job reputation. (Tr. at 160).


Kathy Smith:

19. During the time Kathy Smith was the favored female, Sheriff Franks not only helped her to wash or dry dishes, to prepare lunch, and to perform jail checks, he also mopped the catwalk for her, brought her Coca-Cola, gave her rides in the county on patrol, and gave greater deference to her suggestions on changes in jail operations. (Tr. at 28, 33, 34, 36, 42).

20. in January of 1985, Ms. Smith went to the Uniform Crime Reporting school in Des Moines. (Tr. at 29-31). She and Sheriff Franks went together. Franks had arranged for a meeting of the schools committee of the Iowa State Deputies and Sheriff's Association to coincide with her trip to Des Moines. (Tr. at 30-31). When they went out to dinner at a nightclub, Sheriff Franks kissed her before they left the car. They later talked about how most men would not "hit on" her because she was intimidating. She stated that was not something she did in her life. Sheriff Franks then commented that would be a good challenge for him, to get her into bed in a short amount of time. She informed him that this would be an empty challenge as it would not transpire. (Tr. at 32). When she returned to work, the favored treatment she had received previously ended. (Tr. at 33). She was back to being chief jailer with all the responsibilities that would normally entail without Franks performing some of her duties. (Tr. at 34).

Glenda Donahue:

21. Glenda Donahue was initially hired by Sheriff Franks as a bailiff on August 1981. (Tr. at 336-37). She then worked as a part time contract road deputy in Essex, Iowa from approximately September 1981 until September 19, 1983, when she was suspended from the deputy position until November of 1983. (Tr. at 337, 355-57, 417; CP. EX. # 60; R. EX. # 84). She also worked as a part-time jailer from April of 1982 until November of 1983. (Tr. at 338, 417). At that time she became a part-time deputy and full-time jailer office assistant. (Tr. at 338; CP. EX. # 61). She worked as full-time jailer for one to one and one-half months. (Tr. at 339). She then worked as civil deputy from January 1984 until July of 1984 when she was promoted to Office Deputy. (Tr. at 339; CP. EX. # 62). She continued in this position until her termination on June 30, 1988. (Tr. at 339).

22. In September of 1981, Ms. Donahue received on the job training in the functions of road deputy for the town of Essex. (Tr. at 355-57). The training consisted of riding around with Sheriff Franks or Robert Naico who showed them the area which she would cover on patrol. During the course of this training, Sheriff Franks would indicate he wanted to have sexual relations with her. (Tr. at 356). At first, Ms. Donahue refused while indicating she wanted to maintain only a professional relationship. (Tr. at 357). Eventually, however, Ms. Donahue began a sexual relationship with Sheriff Franks which lasted until January of 1986. This relationship involved intercourse which was voluntary in the sense that Ms. Donahue was not forced to engage in such activity against her will. (Tr. at 357-72). At times, for example, she requested sex from Sheriff Franks. (Tr. at 36667).

23. During the course of this relationship, however, there were particular sexual advances made toward Donahue by Franks during working hours at work locations which were clearly unwelcome. At times, Sheriff Franks' reaction to being refused sex was to become upset and slam the door. (Tr. at 363). On one occasion, while Ms. Donahue was working the Essex area, Sheriff Franks came in after midnight wanting sex. (Tr. at 362, 400). Franks had been drinking and Donahue informed him that she wasn't interested. Franks backed her up against a high conference table while she kept telling him "no." Thinking that Franks was going to take her against her will, she put her hand on her weapon. At this point, Franks ceased making the unwelcome advance. (Tr. at 362).

24. in January of 1986, Ms. Donahue accompanied Franks to a farm crisis school in Des Moines. (Tr. at 366). On the way back to Clarinda, they engaged in sexual relations. (Tr. at 369; CP. EX. 1). This was the last time they had sexual relations with each other. (Tr. 371-372). At that time, Ms. Donahue informed Sheriff Franks that she was not going to perform sexually for him anymore. (Tr. at 370-71). The sheriff did not request sexual favors from her again. (Tr. at 372).

25. The Commission has asserted, on brief, that sex discriminatory practices other than the making of unwelcome advances occurred with regard to Ms. Donahue:

The evidence ... shows a link between the sexual favors and employment actions of the Sheriff. The first time since Franks was Sheriff was followed shortly by Donahue being hired by the Sheriff. In 1984 and 1985 Donahue has no reprimands. It is a probative "coincidence" that within two weeks of Donahue deciding to distance herself the Sheriff gives her a reprimand. She then received reprimands involving the number of hours worked though this same conduct was allowed without mention in 1985. Ex. I pg 7. In 1985 Sheriff Franks was still receiving sexual favors from Donahue.

(Commission's Brief at 30).

26. The greater weight of the evidence does not support the link suggested by the Commission. First, the sexual relationship which began between Franks and Donahue in September of 1981 began after her hire as bailiff and contract road deputy, not before. See Findings of Fact Nos. 28-29.

27. Second, although there is no evidence of reprimands of Ms. Donahue in 1984 and 1985, she was suspended during 1983, a time when she was providing sexual favors to Sheriff Franks. (Tr. at 337, 417; CP. EX. # 60; R. EX. # 84).

28. Third, it is true that on January 29, 1986, the same month in which she had earlier informed Franks that she would no longer engage in sexual relations with him, Ms. Donahue received a memorandum from him asking her to explain the postponement of a sheriff's sale. (Tr. at 372; CP. EX. # 65). This is the "reprimand" mentioned by the Commission on brief. (Commission's Brief at 30). She admitted, however, making the mistakes which caused the postponement of the sale. (Tr. at 372-73, 413, 506; R. EX. # 82).

29. Fourth, there were occasions in 1985 when Ms. Donahue accumulated unauthorized compensatory time without receiving a reprimand. (CP. EX. 1). Nonetheless, there is no evidence in the record to indicate that Sheriff Franks' refusal, in April of 1986, to pay unauthorized overtime was claimed to have been discriminatory or even disputed by Ms. Donahue. (CP. EX. # 67). A later memorandum to her from the sheriff, dated June 11, 1986, also addresses her working unauthorized hours. (CP. EX. # 68). This reprimand occurred approximately five months after she had informed Franks that she would no longer engage in sex with him. Although she disagreed with this memorandum, she did not allege that she was reprimanded because of her earlier refusal to continue providing sexual favors. (CP. EX. # 70).

30. Ms. Donahue asserted her belief, in a letter to the Page County Civil Service Commission dated February 20, 1987, that she had received a reprimand and suspension notice on February 9, 1987 because "I no longer will grant to the sheriff any sexual pleasures." (CP. EX. # 75). This reprimand and suspension occurred over a year after the last sexual advance made to her by Franks. The suspension and reprimand of February 9, 1987 were resolved by @ @@, agreement reached on March 9, 1987 between Sheriff Franks and Ms. Donahue. (Tr. at 379, 410-1 1; CP. # 76). The greater weight of the evidence does n, support Ms. Donahue's belief.

Events In February and March 1985 Concerning Complainant Miller and Sheriff Franks:

31. By January 1985, Complainant Miller had informed Kathy Smith that she was experiencing personal problems. (Tr. at 37-38). Ms. Smith informed Sheriff Franks that Ms. Miller might need time off because of these personal problems. (Tr. at 37). In February of 1985, Sheriff Franks asked Complainant Miller if she needed time off. (Tr. at 112). By early March of 1985, Sheriff Franks had been made aware that the personal problem Complainant Miller was experiencing was that she believed her husband was having an affair. (Tr. at 111-13, 593). Sheriff Franks asked her if she needed time off or if there was anything else he could do to help. (Tr. at 111, 594). A few days later, Sheriff Franks invited her to a St. Patricks Day party, to be held on March 17, 1985, which he indicated was being held for all deputies, jailers and other Sheriff's Department staff. (Tr. at 113). He indicated that she ought to attend, let her hair down, and enjoy herself. (Tr. at 113). Ms. Miller, who came with a female friend, and other sheriff's department personnel attended the party. (Tr. at 3839,103). Sexual Advances Made Toward Complainant Miller By Sheriff Franks:

32. In mid-March 1985, after this conversation concerning the St. Patrick's Day party, Sheriff Franks began to suggest to the Complainant that she go to jail school and meet with him in Des Moines. He assured her that he would make the arrangements, get a room and that no one would know. She refused these advances. (Tr. at 1 1 3-14; CP. EX. # 1 0, 1 1; First Complaint at 2).

33. After midnight on April 12, 1985, Complainant Miller was sitting on a barstool at a counter in the jail kitchen. (Tr. at 119, 445-46; First Complaint at 2). Sheriff Franks pulled her off the barstool into the hall way. He tried to put his arms around her and kiss her while she pushed him away. (Tr. at 119). She managed to pull away and run back into the kitchen. (First Complaint at 2).

34. On May 20, 1985, Sheriff Franks told her that she would go to jail school with him. She indicated that she would go as long as it was "upfront" and there was no "hanky- panky" expected. (Tr. at 120; CP. EX. # 10). Although Franks did not make direct comments concerning sex at this time, Complainant Miller was justified in perceiving this as a sexual advance based on his earlier comments linking sex and jail school.

35. Complainant miller informed Kathy Smith about the sexual advances made toward her by Sheriff Franks. (Tr. at 88-89). On June 3, 1985, she grieved the advances and personnel actions which she felt had occurred because she rejected the advances. The Board of Supervisors was aware of this grievance. (CP. EX. # 10, 12, 13). The grievance review board's determination that "these charges are not grievable and must be dealt with separately from this..... procedure," was the only action taken (CP. EX. # 17).

Credibility Findings:

36. Sheriff Ron Franks' testimony was highly unreliable and, with few exceptions, is cited in support of a finding of fact only when it constituted an admission against the interest of the Respondents, or when it was supported by credible evidence or other indicia of reliability. The very first allegation of discrimination made by Complainant Miller raises the issue of whether Sheriff Franks favored employees who engaged in sexual relations with him. Sheriff Franks testified that, with the exception of his wife, he had not engaged in sexual relations with any persons employed by the Sheriff's Department during the time he was sheriff and, specifically, had not engaged in sexual relations with Glenda Donahue. (Tr. at 664-65, 667-69, 705-06). This willfully false testimony was impeached by a letter written by Sheriff Franks to the Commission wherein he stated that, in January of 1986, Glenda Donahue had manipulated his penis with her hand and then "entered into oral sex" with him. (CP. EX. 1). This statement was received by the Commission on October 10, 1988. (CP. EX. 1). Sheriff Franks' testimony was also effectively contradicted by Glenda Donahue, who credibly testified to having sex on a number of prior occasions with Sheriff Franks. (Tr. at 358-65).

37. Furthermore, in March of 1986, Sheriff Franks asked Glenda Donahue to sign a document which falsely stated that she had never engaged in sexual relations with the sheriff since her hire. (Tr. at 373). He requested this because rumors had been circulating about a sexual relationship existing between him and Ms. Donahue. (CP. EX. 1). Ms. Donahue initially refused to sign this document. (Tr. at 373). She subsequently wrote her own statement, dated March 10, 1986, which falsely stated that she had not engaged in sexual relations with the sheriff. (Tr. at 374; CP. EX. # 66, CP. EX. 1). She wrote this statement because she knew Sheriff Franks was upset and she did not want to lose her job. (Tr. at 374). Since Sheriff Franks required Glenda Donahue to submit a false report, other reports written by Franks or submitted at his request should be viewed with skepticism as being of doubtful credibility in the absence of other credible supporting evidence.

38. Complainant Miller was a credible witness. She did testify that, in May 1985, when she asked the Sheriff whether one had to sleep with somebody to get a changes made in the sheriff's office, he responded by becoming angry and coming around from his side of the desk to her side and then proceeding out the door. (Tr. at 126, 450). She further testified that his coming around the desk frightened her. (Tr. at 126, 450). Although the Sheriff's coming around the desk was not mentioned in her deposition, when she was asked to name the times the Sheriff had accosted her, or in her complaint, she explained that she had not done so because she saw the Sheriff' behavior only as demonstrating that he was angry and not as an incident of sexual harassment or discrimination. (Tr. at 451-54, 485). Her testimony, taken as a whole, is internally consistent and reflects no contradictions on material matters. She did admit adverse facts such as her responsibility for failure to lock an inside jail door on July 2, 1985 . (Tr. at 249; CP. EX. # 19, 20).

39. Kathy Smith was a credible witness in regard to her testimony at hearing. It should be noted, however, that she signed what appears to be a notarized document addressed to the Commission which contains several statements which she asserted in her testimony were false. (Tr. at 56, 86-90; CP. EX. # 2). Therefore, any statements made in this document should be viewed with caution. These false statements were: (1) That Complainant Miller did not confide to anyone about Sheriff Franks' advances prior to being denied a shift change three months later; (2) That she found "the mention of an alleged 'affair' [in the complaint] between the Sheriff and a less senior female jailer as a means for the jailer to gain the four to midnight shift, totally ludicrous and an insult to the integrity and the intelligence of all members of this department, and the Sheriff"; and, (3) That "1, myself, would not work such a job with my morality and principles being impugned on a daily basis by anyone, let alone by my supervisor." Of these three statements, only the first would be considered material in this case.

40. This document was written at the request of Sheriff Franks who had asked Ms. Smith, in August of 1985, to write something dispelling the allegations made in the Complainant's first complaint. (Tr. at 57). It is the typed version of a letter Ms. Smith had written to Sheriff Franks. That is, it was typed for her to sign after she had submitted a handwritten version. (Tr. at 58).

41. It is impossible to say whether or not the notarization statement, indicating the document is a sworn statement, was present on the document at the time Ms. Smith signed it. Ms. Smith does not recall whether or not the statement was present. (Tr. at 102). An examination of the notarization statement, which is given in typed capital letters, reveals that these capital letters are of a different type than the capitals in the remainder of the document.

42. The Sheriff's request occurred after Ms. Smith had quit her employment as head jailer. (Tr. at 17, 57). Ms. Smith came to the office and discussed the matter with Sheriff Franks. She asked if he was hiring. He asked if she would like to return. She indicated she would like to return as J-1, i.e. head jailer. He stated that he thought that could be done. (Tr. at 57). She then agreed to write the letter because she had made a poor, emotional decision to quit and because she needed the money provided by the job. (Tr. at 57-58). She wrote the letter while in a highly emotional state. (Tr. at 100). Although Franks had asked her to write the letter, he did not tell her to lie or what to state in the letter. (Tr. at 64).

43. None of the circumstances which resulted in the false statements made in the letter were present at the time of the hearing. Ms. Smith's demeanor was such that she did not appear to be under any emotional strain. Her testimony was given in a calm and straightforward manner. Furthermore, Ms. Smith was using her own vacation time to come and testify. (Tr. at 60). Although the state reimbursed her for travel and lodging expenses while testifying, it cannot reasonably be said that Ms. Smith stood to make any monetary gain which was similar to that entailed in an unemployed person receiving employment. (Tr. at 60-61).

44. Glenda Donahue was a credible witness. It, was suggested on cross-examination by Respondents that Ms. Donahue gave testimony adverse to Sheriff Franks in order to ensure that Franks was not elected and Mike Williams would become sheriff. (Tr. at 397). This was based on Ms. Donahue's testimony that she had once been in love with Mike Williams and had quite often engaged in sexual intercourse with him over a nine year period ending in October of 1984. (Tr. at 394, 397). Both Mr. Williams and Ms. Donahue credibly testified, however, that this affair had ended five years before the hearing. (Tr. at 397, 533). Ms. Donahue's testimony was not affected by any such motivation. (Tr. at 397).

45. Carol Haffner was a credible witness. It should be noted that, during the course of her testimony, the Respondent's attorney picked up a volume of the Iowa Code, opened it to a particular section, and asked her to read it aloud. (Tr. at 569). Ms. Haffner adamantly refused to read this section because she was afraid to read out loud in public. (Tr. at 569). This demonstration was meant to convey the fact that Ms. Haffner can read, but does not like to do so in public. (Tr. at 569). The only reason for this demonstration occurring at all was that it had been brought out in testimony that, during the so-called "therapy" session in May 1985, the other jailers had stated Ms. Haffner could not read. Within minutes of this "spontaneous" demonstration on a non-material issue, Ms. Haffner read aloud, in public, in a calm, clear manner, the full text of Respondent's Exhibit Number 147, a five paragraph, one page letter from her to Sheriff Franks. (Tr. at 579-80). Nonetheless, the discrepancy between this demonstration and Ms. Haffner's performance minutes later does not seriously affect her credibility. It appears that Ms. Haffner was over-prepared, not willfully untruthful.

46. Mike Williams, Debra Kidney, Carol Kirkpatrick, Tara McComb, Harland Mace, and Debra Kendall were all credible witnesses.

Shift Change In March 1985:

47. Complainant Miller alleged that when Carol Kirkpatrick, "a full-time jailer on the 4 to 12 shift went on maternity leave thus freeing up a full-time position on the 4 to 12 shift I was never asked if I wanted the position [T]he position was filed (sic) by a less senior female [Carol Haffner], who allegedly had an affair with the sheriff." (First Complaint) (emphasis added).

48. Although Complainant Miller was aware that Carol Kirkpatrick was pregnant for some time prior to her taking maternity leave, (Tr. at 115, 540, 563, 564; R. EX. # 145), she was not aware either of the date Ms. Kirkpatrick was taking maternity leave or of Ms. Haffner being selected to take the 4 to 12 shift full time until very near the end of March 1985. (Tr. at 115-17; CP. EX. # 10). She learned these facts simultaneously. (Tr. at 116-17). By the time she learned these facts, therefore, it was too late for her to request to be given Carol Kirkpatrick's shift as it had already been assigned to Carol Haffner.

49. It cannot be reasonably inferred from the evidence in the record that Carol Haffner ever had any sexual relationship, consensual or otherwise, with Sheriff Franks. Ms. Haffner and Sheriff Franks both deny the existence of any such relationship or even of sexual advances being made by Franks to Haffner. (Tr. at 559-62, 684, 705; R. EX. # 147, 148). Mike Williams never observed any sexual overtures by Franks to Haffner nor did he observe Haffner act in any way to suggest that she had a sexual relationship with anyone but her husband. (Tr. at 536-37). There is no evidence that anyone had observed such behavior by Franks and Haffner.

50. Mr. Williams had heard rumors of such a relationship, but knew of nothing to substantiate the rumors. (Tr. at 540, 545; R. EX. # 145). Complainant Miller, for example, had told him, on June 4, 1985, that she was not sure if it was true that Ms. Haffner was having an affair with Sheriff Franks, but because Ms. Haffner was a less senior jailer who got the 4 to 12 shift, she assumed it must be true. (Tr. at 540; R. EX. # 145).

51. The only evidence offered to support the existence of such a relationship is based on the "favored female" observations of Kathy Smith and Glenda Donahue. They had noted that, at various times, one particular female employee would receive favored treatment for a period of time over the other jail employees, all of whom were female. (Tr. at 27, 345). They observed favored treatment consisting of such activities as Sheriff Franks stopping by during his off duty hours to wash or dry dishes, to help prepare lunch, and to perform jail checks or other jailer duties during the shift of the "favored female". (Tr. at 28, 36, 42, 345). Persons receiving such favored treatment at various times included Complainant Miller, Kathy Smith, Kelly Phillips, and Carol Haffner. (Tr. at 27, 37, 364). This treatment toward Carol Haffner, which manifested itself in the form of Sheriff Franks washing the dishes and performing similar tasks for her, continued through the end of Kathy Smith's employment in March of 1986. (Tr. at 42. 45).