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 Fact Continued:

Denial of Grievance By Grievance Review Board:

103. On January 14, 1986, Complainant Miller filed a grievance with the Page County Board of Supervisors asserting that she was being subjected to unfair treatment by Sheriff Franks because she had not been assigned the number J-1. (CP. EX. # 36). The Page County Grievance Review Board conducted a hearing on the grievance on January 27, 1986. (CP. EX. # 37). It subsequently issued a decision denying her grievance. (CP. EX. # 38).

104. Complainant's rejection of sexual advances by Sheriff Franks occurred approximately eight months prior to the denial of the grievance. Her first complaint, which is primarily directed toward actions of Sheriff Franks and not of the Grievance Review Board or Board of Supervisors, was filed approximately six months before the denial. See Findings of Fact Nos. 1, 34, 55. This evidence is not sufficient to support an inference that denial of the grievance Was due to either Complainant Miller's rejection of sexual advances by Sheriff Franks or the filing of her first discrimination complaint.

Not Called In To Work Overtime On January 16,1986:

105. Complainant Miller alleged in her complaint that she was subjected to sex discrimination and retaliation by not being called in to work on January 16, 1986 when Carol Kirkpatrick worked eight hours overtime. (Second Complaint at 3). There is no evidence in the record to support these allegations.

Required to Rotate Weekends With Other Jailers:

106. In January of 1986, the jailers were informed at a monthly meeting that the Sheriff was trying to create a schedule which would allow each jailer to have one weekend off each month. (R. EX. # 154). At or about that time, Complainant Miller was informed that she would be expected to rotate weekends with the other jailers, which she was eventually required to do. (Tr. at 196; Second Complaint at 3).

107. Until late 1984, Complainant Miller routinely worked weekends. (Tr. at 195). From that time, Complainant Miller was not regularly scheduled for weekends due to her seniority. (Tr. at 195). She did, however, work weekends through agreement with other jailers and when requested to fill in for absent jailers. (CP. EX. # 27A, 37). See Finding of Fact No. 86.

108. The Sheriff's response to the second complaint indicates that his reason for requiring Complainant Miller and the other jailers to rotate weekends was to allow each jailer to have at least one weekend off per month. (R. EX. # 154).

109. The available credible evidence tends to confirm that, as of the time rotation of weekend shifts began, the other jailers were not getting at least one weekend per month off unless Complainant Miller volunteered to work. An examination of the schedules for August, October, and November 1985 indicates this would have been a problem at that time. (CP. EX. # 27A, 72, 73). Although Kathy Smith was reemployed in January 1986, Sandee Kimball had left, so there is no reason to believe that Smith's rehire relieved the problem. See Finding of Fact No. 100. Although it is a close question, given the dubious credibility of Sheriff Franks' statements and the presence of other prior acts of retaliation and discrimination, it is concluded that Complainant Miller has failed to rebut the Respondent's legitimate, nondiscriminatory reason for requiring that weekends be rotated.

The Termination of Complainant Miller:

Establishment of the Prima Facie Case of Termination Due to Sex Discrimination and Retaliation:

110. On April 10, 1986, Complainant Miller was terminated from her position as jailer. (CP. EX. # 46). At the time of her discharge, she was capable of performing the job of jailer. At that time, she had been performing the job for over four years. See Finding of Fact No. 4. She had successfully completed training courses related to her job including courses in jail operations in 1984 and 1985. (R. EX. # 128). In the opinion of Kathy Smith,who was chief jailer from April of 1983 until July 31, 1985, Complainant Miller was an excellent jailer whose performance was better than that of Carol Haffner, who was retained. (Tr. at 49). See Finding of Fact No. 7. Mike Williams, who was jail administrator until February 1, 1986, had "no problems" with Complainant Miller's performance. (Tr. at 548). See Finding of Fact No. 10.

111. Her termination occurred thirty-eight days after the filing of her second complaint; eight months after the filing of her first complaint; and eleven months after she resisted Sheriff Franks' sexual advances. See Findings of Fact Nos. 1, 2,34,55. In 1985, Complainant Miller went from "favored female" status to "the one most hated by the Sheriff." (Tr. at 52). During tha time, Sheriff Franks repeatedly told Kathy Smith not to mention Miller's name to him. (Tr. at 52-53). On several occasions, including one in May of 1985, when Complainant Miller asked for a rotating shift with Carol Haffner, Sheriff Franks told Ms. Smith that no changes would be made at the jail until he got rid of the Complainant. (Tr. at 53-54). This occurred shortly after Complainant Miller's rejection and protestation of Sheriff Franks' sexual advances. See Finding of Fact No. 55.

Respondents' Reasons for Termination:

112. Sheriff Franks testified that the reasons for the Complainant's termination are those given in her termination notice:

1 . Failure to provide proper training to new employees.

2. Attempting to impose in the minds of new employees, by insulting other staff and supervisors, your personal feeling, creating a very stressful situation for new employees.

3. Communicating with inmates of the Page County Jail during their incarceration and while you were on duty, reference your personal problems with other staff and supervisors of the Page County Jail.

4. Promoting inmates to bring legal action against Sheriff Ron Franks, Page County Jail, and the County of Page. Action that would be a monatary (sic) loss to Page County.

5. Creating a stressful atmosphere among other staff, past and present, while attempting personal gain:

A. Telling other staff members untrue statements, which you said the sheriff had told you about other staff.

B. Intimidating and embarrassing staff without authority to do so.

C. Attempting and sometime (sic) suceeding (sic) to play inmate against staff, staff against staff, staff against supervisors.

6. Starting and promoting a rumor(s) to new employees reference a staff member of the Page County Jail and Sheriff Ron Franks going to school at the same time. The rumor used by you to show a relationship between staff and the sheriff, while knowing it to be untrue, or to place doubt in new employees (sic) minds.

(Tr. at 658-62; CP. EX. # 46).

Reasons Lacking in Clarity and Specificity.

113. With the exception of the reason stated in paragraph 6, none of the reasons in the termination notice are expressed with sufficient clarity and specificity to permit the Complainant to address them. (CP. EX. # 46). All the language is conclusory and presents no or very little detail on the reasons for termination. This lack of specificity and clarity in the termination notice disposes of the reasons stated in paragraphs 3 and 5A, since no other evidence in the record, other than Sheriff Franks' adoption of the notice, addresses them. (Tr. at 658-62). This also disposes of the reference in paragraph 5C to playing inmate against staff as the only other evidence which may relate to this vague allegation merely repeats it while offering no specific facts concerning it. (Tr. at 499; R. EX. # 118).

114. Several exhibits, consisting of written statements by other jailers complaining about Complainant Miller, which might relate to the reasons given in paragraph numbers 1, 2, 5B, 5C, and 6, were introduced by respondents. (R. EX. # 114, 115, 116, 118, 147, 147A, 147B). With the exception of four exhibits, (R. EX. # 118, 147, 147A, 147B), these complaints are in writing because Sheriff Franks asked employees who come to him with complaints about other employees to put them in writing so he would have something to investigate and act on. (Tr. at 495, 570-71, 579, 582, 617-18; CP. EX. J). Testimony from Carol Kirkpatrick and Carol Haffner was also introduced concerning these exhibits and incidents described therein.

115. Neither the letter of termination nor Sheriff Franks' testimony nor any other evidence identifies the incidents related in these exhibits, or in testimony about the exhibits, as being the ones referred to in paragraphs 1, 2, 5B, and 5C in the letter of termination or as being part of the reasons for termination. Although Sheriff Franks did testify that he was concerned about reports that Complainant Miller was sleeping on the job, gossiping, and berating the job she was doing, at no time did he testify that these reports were part of his reasons for terminating Complainant or indicate that they were referred to in the notice of termination. (Tr. at 624). Therefore, none of the evidence produced by Respondent sufficiently further defines the reasons set out in paragraphs 1, 2, 5B, and 5C so as to permit the Commission to conclude that these reasons now have sufficient clarity and specificity so as to permit the Complainant to address them.

Promoting a Rumor Concerning A Relationship Between Sheriff Franks and a Staff Member:

116. In April 1986, Carol Haffner complained to Sheriff Franks about Complainant Miller's repeated insinuations to two new employees, Erlinda Foster and Judy Bahn, and others that Ms. Haffner and Sheriff Franks were engaged in an affair. Complainant Miller was said to have pointed out to Foster and Bahn that, by comparing Sheriff Franks' and Carol Haffner's schedules, both were to be absent on days when Carol Haffner was in jail school. (Tr. at 570-71; R. EX. # 147, 147A). Although, in light of Complainant Miller's denial of making such insinuations to Erlinda Foster, and of Foster's attempt to withdraw her statements to Sheriff Franks, it may be doubted that Complainant Miller made such statements to Ms. Foster, it is more likely than not that she did make such statements to Judy Bahn. (Tr. at 203, 208, 482; CP. EX. J). See Finding of Fact No. 49.

Promoting Legal Action By Inmates:

117. Paragraph number 4 of the termination notice refers to an incident where an inmate complained to Sheriff Franks that a razor was dirty. (Tr. at 204, 659-60). Sheriff Franks asserted that Complainant Miller told this inmate that she would support and back any lawsuit the inmate filed against either him or Page County. (Tr. at 660). He claimed to have obtained statements from two inmates verifying his assertion, but these were not introduced in evidence. (Tr. at 660).

118. Complainant Miller testified that Sheriff Franks unlocked the razor, wiped the blade off on his pants, reinserted the blade, and told the inmate it was clean. (Tr. at 204). The inmate wrote Citizen's Aid to complain and asked Complainant Miller if she would be a witness who would verify that he did not obtain a clean razor. (Tr. at 204). Complainant Miller stated she would. (Tr. at 205). In light of the Complainant's greater credibility, her version of the facts is considered to be more accurate than the Sheriff's. This reason is pretextual as agreeing to be a witness in a complaint to Citizen's Aid does not amount to promotion of legal action by inmates. Also, this is not a legitimate reason for discharging the Complainant. See Conclusion of Law No. 23.

Reasons Shown to Be Pretextual or Otherwise Deficient.

119. In summary, the evidence produced concerning the reasons for discharge stated in paragraphs 1, 2, 3, 5A, 5B, and 5C of the termination notice fails to clearly set forth the reasons for discharge in such a manner as would permit the complainant to address them. The "promotion of legal action by inmates" was found to not be a legitimate reason for discharge of the Complainant. See Finding of Fact No. 118. What is left is one reason for the discharge: that Complainant Miller made insinuations to Judy Bahn, a new employee, implying that Sheriff Franks' and Carol Haffner were having an affair. This reason is found to be a pretext for discrimination and retaliation for several reasons.

120. First, Sheriff Franks did not follow his own disciplinary policies. Although there were no written personnel policies in effect at the Sheriff's department, Sheriff Franks testified that he followed a guideline in regard to complaints with work done by an employee. He would first give one or two verbal reprimands, then a written reprimand, then a suspension of one or two days, followed by termination. He had the option of immediately terminating an employee if an infraction was serious enough. (Tr. at 701- 02). There is no evidence in the record of any prior reprimand or suspension against Complainant Miller concerning this incident or prior instances of promoting rumors about this alleged affair.

121. Second, a prior jailer, Kent Stickleman, a male, received only a written reprimand for a more serious infraction, i.e. making a mistake which allowed an inmate to escape. (Tr. at 718, 732-34).

122. Third, past employment practices at the jail included (a) adverse treatment of the Complainant and other female employees because they rejected the sexual advances of Sheriff Franks; and (b) adverse treatment of the Complainant because she filed discrimination complaints. See Findings of Fact Nos. 16-18, 20, 65-69, 80, 82-83, 95-96. It is more likely than not that the termination of Complainant Miller was undertaken in accordance with these past practices.

123. Fourth, in light of the proximity in time of the termination to the filing of the second complaint, and of Sheriff Franks' statements, made shortly after Complainant Miller rejected his advances, indicating he wished to "get rid" of the Complainant, it is more likely than not that this discharge is motivated by sex discrimination and retaliation.

Ruling In the Alternative:

124. As an alternative to the finding that the reasons expressed in paragraphs 1, 2, 5B and 5C of the termination letter are not expressed with sufficient clarity and specificity so as to permit the Complainant to address them, the reasons for termination shall be reviewed as if there were evidence in the record identifying the incidents mentioned in the statements and testimony introduced by Respondents as being those generally referred to in the notice of termination.

Reasons Given in Paragraphs Numbers 1, 2, 5B, and 5C - Improper Communications With and Training of Employees:

125. The Respondents introduced Carol Kirkpatrick's notice of resignation, dated March 19, 1986. (CP. EX. # 118). In this notice she made a series of vague allegations which have neither sufficient detail nor clarity to permit the Complainant to address them. Carol Kirkpatrick started her employment with Page County in July of 1984. (Tr. at 489). She indicates that, at that time, Complainant Miller accused Kent Stickleman, a former jailer, "of doing lots of things, like, getting the inmates to turn against her, and doing lots of favors for the inmates, which Kent did not do." (R. EX. # 118). There are absolutely no details, such as dates, names of inmates, the nature of the favors Complainant Miller was said to have alleged were performed, or how Stickleman was alleged to have turned inmates against her, in the record. In September of 1984, Complainant Miller was said to have "constantly complained [at jail school] about things the Sheriff was doing that she did not approve of." Not one specific example of a complaint is provided in the record. Finally, Complainant Miller is said to have embarrassed Carol Kirkpatrick "in front of a whole restaurant full of people, by saying 'That if I didn't like working at the Sheriff's office, I could quite (sic)."' No specifics concerning time, place, persons present, or other circumstances are provided. (R. EX. # 118).

126. Even if it were assumed that the two events for which a general time frame is indicated were described in a sufficiently clear manner which would permit the Complainant to address them, they are so remote in time that it is unlikely that they would have been a major cause for Complainant's termination.

127. On or before April 6, 1986, two new jailers, Erlinda Foster and Judy Bahn, had complained to Carol Haffner about the stress placed on them during training by Complainant Miller. (Tr. at 571; R. EX. # 147). Ms. Haffner informed Sheriff Franks about these concerns. (Tr. at 571; R. EX. # 147). Judy Bahn submitted a letter, dated April 5, 1986, to Franks indicating that Complainant Miller subjected her to gossip and complaints about Franks and the department while she was being trained. Although the letter states the incident occurred on April 27th, it is reasonable to conclude, given the date of the letter, that it refers to March 27,1986. According to the letter, Ms. Bahn received the impression that, if she disagreed with Complainant Miller's opinion, Miller would engage in a "vendetta" against her. Complainant Miller's gossip initially upset her to the point of tears and made her feel that she would lose her job if she made any mistakes. (R. EX. # 116,147). By April 2nd, Ms. Bahn was able to "space off" Complainant's gossiping and not be bothered by it. (R. EX. # 116). She also complained that Complainant Miller's falling asleep on duty when they were working together on April 2nd, 3rd and 4th set a poor example. (R. EX. # 116).

128. Erlinda Foster submitted a letter, dated April 1, 1986, to Sheriff Franks asking if the schedule could be changed so she would not have to work with Complainant Miller. Her letter indicates that she felt she was not learning job procedures because Complainant Miller slept, gossiped, and attempted to "brainwash" Ms. Foster in regard to "work and coworkers." (R. EX. # 114). This letter was one of the statements which Ms. Foster subsequently asked Sheriff Franks, who had requested this statement, to return as she thought it "was not right" to provide such a statement because Complainant Miller "was a very good worker." (CP. EX. J; R. EX. # 114, 147B). Since Ms. Foster subsequently attempted to withdraw this statement, no credence is given to the allegations in it.

129. Complainant Miller did not know what incidents the statements in paragraphs 1 and 5C of the termination letter referred to as Sheriff Franks did not discuss them with her when he terminated her. (Tr. at 201-02, 207). She believed that paragraph 2 might relate to a reference she made to Sheriff Franks in regard to the affair she believed Ms. Haffner had with Sheriff Franks. (Tr. at 203).

Reasons Given In Paragraphs Numbers 1, 2, 5B, and 5C - Shown to Be Pretexual or Otherwise Deficient.-

130. In summary, the allegations in Carol Kirkpatrick's resignation notice, even when considered in combination with the other evidence, are too vague to be addressed by Complainant. Furthermore, at least two of these allegations are too remote in time to constitute a major cause for Complainant's discharge. No credence is given to Erlinda Foster's statements in light of her attempts to withdraw them. What remains is the reason that Complainant Miller was terminated because she failed to properly train Judy Bahn because (a) her gossip and complaints upset Ms. Bahn enough to cry on one occasion, and (b) she set a poor example by failing asleep on the job when the two worked together.

131. This reason is considered to be a pretext for discrimination for the reasons previously expressed in Findings of Fact Nos. 120-23. In addition, it should be noted that, although Judy Bahn's statement to Franks was admitted into evidence, she did not testify. (R. EX. # 116). Her statement was reduced to writing at the request of Sheriff Franks. See Finding of Fact No. 114. Such statements should be viewed with caution as not being of doubtful credibility. See Findings of Fact No. 37. Furthermore, although Sheriff Franks requested such statements so he could have something to investigate and act on, it appears this investigation did not include obtaining the Complainant's side of the story. See Findings of Fact Nos. 114, 129. Finally, any incident where Complainant Miller fell asleep on her shift may well be due to sleep loss resulting from stress due to discrimination and retaliation, including the continued discriminatory denial of a shift change after long periods on the midnight to eight o'clock shift. See Findings of Fact Nos. 134-35. Under these circumstances, it is more likely than not that discrimination and retaliation are the true motives for Complainant Miller's termination.

Compensation:

132. Complainant was unemployed for approximately three months after her discharge, at which time she obtained a higher paying job. (Tr. at 211). She had been earning $4.50 per hour for a 40 hour week. (Tr. at 209). Complainant Miller is, however, due no backpay because of a discovery sanction denying her 89 days of back pay which was imposed on her for failure to answer interrogatories. The Complainant ultimately missed the deadline set by rule by over three months. After Respondents filed a Motion to Compel the Complainant to provide answers to interrogatories, an Order was issued on July 14, 1989 requiring Complainant to submit answers by August 4, 1989. This deadline was also missed and it became necessary to continue the hearing for one and one half months. Complainant was also ordered to pay $348.00 to reimburse Respondents for their attorneys fees incurred while litigating the motion to compel and motion for sanctions. This amount is to be deducted from the award of damages for emotional distress. Ruling of August 22, 1989 on Respondent's Motion for Sanctions; Ruling of September 7, 1989 on Commission's Motion for Amendment of Findings of Fact; Ruling on Attorneys Fees of October 9, 1989; Post-Hearing Brief of Commission at 42.

Emotional Distress:

133. It is clear from the record that the sexual harassment and retaliation suffered by Complainant Miller,and its aftermath, caused her serious emotional distress and mental anguish. Although, on the first occasion when Franks offered to take her to Des Moines, Complainant Miller thought he was joking, she became very upset as the advances continued. (Tr. at 217). She was, in her words, "scared to death" when Sheriff Franks grabbed her, pulled her off her chair and into a hallway while trying to kiss her. (Tr. at 218). She was insulted and humiliated by these advances and repeatedly questioned herself about whether she had done anything to encourage them. (Tr. at 217-18, 222).

134. Complainant Miller was distressed because of discriminatory employment actions such as the reprimand of June 24, 1985. (Tr. at 218-19). It may be reasonably inferred that other undeserved, discriminatory, and retaliatory employment actions such as denials of Complainant Miller's request to change to a rotating shift in May 1985, the failure to place Complainant Miller on day shift during the first week of July 1985, and the refusal and continued failure to place Complainant Miller in the day shift jailer position on and after August 1985 also extracted their price from Complainant Miller in terms of emotional distress. This would be particularly true with regard to the denial of schedule changes as she was "burned out" from working the midnight to eight o'clock shift. See Finding of Fact No. 53.

135. These actions made her feel "picked on" and harassed. (Tr. at 218). She understandably suspected that virtually any adverse employment action by Respondents was discrimination due to her resistance to Sheriff Franks sexual advances or retaliation for her filing discrimination complaints. (CP. EX. # 43; First and Second Complaints). See Findings of Facts Nos. 52, 90, 97-98,102,104-05,109. She was not able to eat properly or sleep well because of the constant strain of not knowing whether she would be reprimanded or otherwise get into trouble because of this harassment. (Tr. at 219). Although, as will be seen, she had other problems which caused her distress, the harassment aggravated this distress to the point she was not able to sleep nights. (Tr. at 251).

136. The termination of Complainant Miller's employment not only caused her substantial economic loss, it exacerbated her emotional distress. (Tr. at 209-211; 219-222). She was shocked by her discharge and felt it was extremely unfair. (Tr. at 219). She felt she was forced to change everything in her life as she had responsibilities and obligations which could not be met without a job. (Tr. at 222). It was, for example, necessary for her to move to California to obtain employment. (Tr. at 210-11; CP. EX. # 49, 50). As a result of her experiences at the Page County Sheriff's Department, Complainant Miller found herself feeling sad all the time. (Tr. at 220). She felt humiliated and her self-respect decreased. (Tr.at 221). She sought and received therapy for this and other reasons. (Tr. at 220-21; CP. EX. # 51, 52; Joint Exhibit # 200). She still discusses the termination and harassment with her therapist and was still affected by the distress as of the date of the hearing. (Tr. at 221-22). She believes she may never stop feeling distressed over her termination. (Tr. at 221-22).

137. There have been other events in Complainant's life which caused her substantial emotional distress. In making an award of damages for emotional distress, care has been taken to ensure that no award is made for damage caused solely by these other sources of distress.

138. There were three other events which were distressing to Complainant Miller. First, during or before March of 1985, Complainant Miller began to suspect that her husband was engaged in an extramarital affair. (Tr. at 109-110, 249; Joint Exhibit 200). This was very distressing to her. (Tr. at 85-86, 216, 249, 251). By 1986, this suspicion was confirmed when she found a woman at home with her husband. She filed for divorce later that year. The divorce became final in 1988. (Tr. at 237). She discussed this with her therapist. (Joint Exhibit # 200).

139. Second, when Complainant Miller's daughter, Debra Kendall, was sixteen, she accused her stepfather (and Complainant's husband) Jerry Clay of repeatedly sexually molesting her. Complainant then took her daughter to a counselor. The Department of Social Services became involved and, after proceedings before them, Ms. Kendall was removed from her parents' home and never returned to the custody of her parents. (Tr. at 256-57, 520-22; Joint Exhibit 201). This has been a continuing source of strain between Complainant Miller and her daughter, and has caused her emotional distress. (Tr. at 258, 522).

140. Third, there has been continuing conflict between Complainant Miller and her daughter concerning her grandchildren. In Easter of 1988, Complainant Miller took her grandson to California and did not return him when her daughter requested his return. (Tr. at 474). It was necessary for Ms. Kendall to come to California and retrieve her son. (Tr. at 474, 522-23; Joint EX. 200). In May of 1989, Ms. Kendall had to take the police in California with her to obtain her grandson from Ms. Miller. (Tr. at 474-76, 523). On Labor Day of 1989, Complainant visited her grandchildren in the other grandmother's home without the knowledge of Ms. Kendall. (Tr. at 47980, 524). This conflict has caused Complainant Miller emotional distress. (Tr. at 259, 478).

141. In light of the severity and duration of the distress suffered by Complainant Miller due to the discriminatory retaliatory actions of the Respondents, an award of fifteen thousand dollars ($15,000.00) would be full, reasonable, and appropriate compensation. After the $348.00 for Respondent's attorneys fees is deducted, the amount to be awarded is fourteen thousand six hundred fifty-two dollars ($14,652.00).