BEFORE THE IOWA CIVIL RIGHTS COMMISSION

JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,



VS.

CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.

RULING ON MOTION TO DISMISS

1. Respondents made a motion to dismiss based on the proposition that Complainant Montz had failed to prove the two of the elements of a prima facie case of failure to hire on the basis of age which was set forth in Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 177 (Iowa Ct. App. 1988). (Tr. at 956-60). This analysis relies on the prima facie case and order and allocation of proof which were originally set forth in McDonnell Douqlas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1985): Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522,530 (Iowa 1985).

2. In this case, however, there is overwhelming direct evidence that Respondents applied a maximum age hiring policy whereby applicants who would be age 33 or over at the time of their appointment would be rejected due to their age, and that age, in accordance with this policy, was the motivating factor in the Respondents' rejection of Complainant Montz's and Riley Fairchild's applications. (CP. EX. 2, 55, 56; Tr. at 62, 65, 68, 96, 276-78, 288-90, 319, 324, 350, 478, 481, 494, 530-532,1139,1159-60,1177,1185-87,1207-09).

3. "Direct evidence" is that "evidence, which if believed, proves existence of [the) fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called "indirect". BLACK'S LAW DICTIONARY 412-14 (1979). Either policies which on their face call for consideration of a prohibited factor or statements by management personnel involved in the hiring process which reflect bias constitute direct evidence of discrimination. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-789 (2nd ed. 1989).

4. With the presence of direct evidence, the McDonnell-Douglas analytical framework, involving shifting burdens of production, is inapplicable. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S.. 228, 109 S. Ot. 1775, 104 L. Ed. 2d 268, 301 (1989) (O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989). The McDonnell Douglas prima facie case, therefore, does not apply where there is direct evidence of discrimination because:

[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by.

Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S, Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also ' Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990).

5. The McDonnell-Douglas prima facie case and order and allocation of proof is also not appropriate for this or any case where the Respondent assert a Bona Fide Occupational Qualification defense. See 2 H. Eglit, Age Discrimination, § 16.25 & n.6(1992).

6.

[B]y contending that the policy which generated the action in question constitutes a BFOQ, the defendant in effect admits that it engaged in age discrimination but that, because of the BFOQ exception, it is not liable for violating the act. This BFOQ exception constitutes an affirmative defense to which the defendant bears the burden of [persuasion].

Id. at § 16.25.

7. Even if the order and allocation of proof set forth in McDonnell-Douglas were appropriate to this case:

The McDonnell-Douglas formulation of the facts adequate to establish a prima facie case, on which the prima facie case set forth in Wing us based, is not:

the only means of establishing a prima facie case of individual discrimination. . . . The facts necessarily will vary in [employment discrimination] cases, and the specification ... of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations. The importance of McDonnell-Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any [employment discrimination] plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.

Rachel Helkenn, 10 Iowa Civil Rights Commission Case Reports 62, 70 (1990) (quoting Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396,429 (1977) (emphasis added)). The direct evidence previously cited would undoubtedly establish a prima facie case of age discrimination under the McDonnell-Douglas order and allocation of proof


8. Respondent's Motion to Dismiss is overruled.