Iowa Civil Rights Commission Contested Case Decisions: Peyton Conclusion of Law 4

BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ALICE J. PEYTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

BOARD OF SUPERVISORS OF BUCHANAN COUNTY, Respondent.

CP # 01-90-19528

Conclusions of Law Continued

XIII. Remedies:

A. Remedial Action:

64.

Violation of Iowa Code section 216.6 having been established the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code § 216.15(8) (1993). In formulating these measures, the Commission does not merely provide a remedy for this specific dispute, but corrects broader patterns of behavior which constitute the practice of discrimination. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). "An appropriate remedial order should close off 'untraveled roads' to the illicit end and not 'only the worn one.'" Id. at 771.

Maxine Boomgarden, slip. op. at 88.

B. Compensatory Damages: Back Pay:

1. Purposes of Back Pay:

65.

77. The award of back pay . . . in employment discrimination cases serves two purposes. First, "the reasonably certain prospect of a back pay award . . . provide[s] the spur or catalyst which causes employers and unions to self- examine and to self-evaluate their employment practices and to endeavor to eliminate [employment discrimination]." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, back pay serves to "make persons whole for injuries suffered on account of unlawful employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of back pay in the present case.

Maxine Boomgarden, slip. op. at 91.

2. Principles to Be Followed In Computing Back Pay:

66.

78. . . . [T]wo basic principles [are] to be followed in computing awards in discrimination cases: "First, an unrealistic exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 530-531 (Iowa 1990). "It suffices for the [agency] to determine the amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id. at 531.

Maxine Boomgarden, slip. op. at 91-92.

3. Back Pay Should Be Based on the Highest Paid Comparator:

67.

The Commission may "calculate awards [based] on the experience of comparable employees outside of the claimant's protected class." Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d at 531. In selecting between the two comparable employees in this case, the Commission has elected to use the one with the greatest gross wages as opposed to using the lowest paid employee or an average of their wages. . . . This was done based on the previously stated principle that uncertainties about what the Complainant earned should be resolved against the employer. . . . Use of the highest paid comparable employee is appropriate to resolve any doubts under the principles set forth in the Hy-Vee decision [which cited with approval two cases Stallworth and Robinson where the highest paid comparable was selected].

Michael Biggles, 10 Iowa Civil Rights Commission Case Reports 50, 59 (1990).

4. In the Absence of a Constructive Discharge, Complainant Peyton's Back Pay Ends as of the Effective Date of Her Voluntary Resignation:

68. On brief, Respondent argues that Complainant Peyton is entitled to no back pay for any sex discriminatory unequal pay she sustained during her employment because she eventually left that employment voluntarily. Respondent's Brief at 16-18. That is not the rule. In this case, constructive discharge is not an issue. See Finding of Fact No. 123.

69. As this Commission has previously held:

Unless the Complainant is constructively discharged, the back pay period terminates when the complainant leaves her employment and is no longer eligible for promotion. Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975)(reproduced at B. Schlei & P. Grossman, Employment Discrimination Law 613 (2nd ed. 1983). See [id. at] 1432-33.

Ann Redies, 10 Iowa Civil Rights Commission Case Reports at 28 (1989)(emphasis added).

70. Although Redies dealt with failure to promote, the same principles would govern in equal pay cases. The only authority cited by Respondent is a legal encyclopedia. 14A C.J.S. Civil Rights Section 417 at 500. This contains the poorly worded statement "An employee who resigns is entitled to back pay only if he was constructively discharged." Id. A review of the cases cited reveals that a more accurate statement would indicate that "An employee who resigns is entitled to back pay for the resignation only if he was constructively discharged."

71. The 10th Circuit in one of the cases cited, Derr v. Gulf Oil Corp., accurately stated the rule by quoting its earlier decision in Muller:

Unless [the employee] was constructively discharged, he would not be entitled to back pay, interest, and retirement from the date of [his resignation]. His damage would be measured by the difference between actual pay and the amount he would have made [had he not been discriminated against] until he quit.

Derr v. Gulf Oil Corp., 796 F.2d 340, 342 (10th Cir. 1986)(quoting Muller at 930)(emphasis added). This is no legal authority for the absurd proposition that a complainant who is the victim of years of pay discrimination loses all right to a back pay remedy for that discrimination merely because she voluntarily resigned her employment.

5. Iowa Code Section 614.1 Does Not Limit the Back Pay Remedy:

72. On brief, Respondent argues that back pay should not be awarded for any time prior to January 10, 1988, which is two years prior to Complainant's filing of her complaint, because of the statute of limitation for actions for claims for wages set forth at Iowa Code Section 614.1 (8):

Limitations of Actions:
. . .
Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:
. . .
(8) Those founded on claims for wages or for a liability or penalty for failure to pay wages, within two years.

Iowa Code S 614.1 (8)(emphasis added). (Respondent's Brief at 15-16).

73. This argument should be rejected for four reasons.First, Respondent admits "there is no authority in Iowa for application of this statute to civil rights claims." (Respondent's Brief at 16).

74. Second, by its own terms, section 614.1 is only a limitation of actions. The legislature gave no special definition of the term "action" in Chapter 614. The word "action" is a word which has "acquired a peculiar and appropriate meaning in law [and] shall be construed according to such meaning." Iowa Code S 4.1(38). An "action" refers only to a proceeding in court. See Iowa Code SS 611.1, 611.2; BLACK'S LAW DICTIONARY 26 (5th ed. 1979). "Under Iowa Code chapter 601A [the Iowa Civil Rights Act], an action is not commenced until it is filed in district court." Landalls v. George A. Rolfes Co., 454 N.W.2d 891, 896 (Iowa 1990)(emphasis added). The filing of a civil rights complaint is not the commencement of an action. Id. If there is no petition in district court, there is no action. Wederath v. Brant, 287 N.W.2d 591, 594-95 (Iowa 1980).

75. Iowa Code section 614.1(8) does not apply to this proceeding because this proceeding is not an "action". This is a "contested case," i.e. "a proceeding . . . in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing." Iowa Code S 17A.2(5).

76. Third, this proceeding is not "founded" on a claim for wages or failure to pay wages. Iowa Code S 614.1 (8). The essence of this proceeding is a claim of sex discrimination in pay under the Iowa Civil Rights Act. This is not a claim that the employer failed to pay wages due, (regardless of the reason for failure to pay) under a theory of quantum meruit or a violation of Iowa Code Chapter 91A, the wage payment collection law. Back pay in a civil rights proceeding is a remedy, and not the essence of the claim. See Iowa Code S 601A.15(8)(a)(1) (now 216A.15(8)(a)(1) (defining "remedial action").

77. Fourth, the legislature has provided a specific statute of limitations for the Iowa Civil Rights Act. Iowa Code S 601A.15(12)(now S 216.15(12). See Iowa Civil Rights Commission v. Massey Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973). Such a particular enactment must prevail over the more general limitation set forth at Iowa Code 614.1(8). Iowa Code S 4.7. This statute sets no limitation on the amount of time for which back pay may be awarded. There is no reason why it should.

C. Compensatory Damages: Emotional Distress:

1. Legal Authority For and Purpose of Power to Award Damages for Emotional Distress:

78. In considering the question of emotional distress damages, it must be borne in mind that the Act is a "manifestation of a massive national drive to right wrongs prevailing in our social and economic structures for more than a century," Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971). The Iowa Civil Rights Act was enacted, in part, for the purpose of preventing and remedying employment-related sex discrimination. Iowa Code SS 216.6, 216.15(8)(a)(8); Cedar Rapids Community School District v. Parr, 227 N.W.2d 486, 498 (Iowa 1975).

79. It is beyond question that the Commission has the power to award "actual damages," which are synonymous with "compensatory damages". The purpose of such authority is not to remedy only part of the victim's damages or to award back pay only while disregarding proven emotional distress damages, but to "make whole" the victims of discrimination for all losses suffered as a result of discrimination. See Iowa Code S 216.15(8)(a)(8)(1993); Chauffers, Teamsters, and Helpers v. Iowa Civil Rights Commission, 394 N.W.2d 375, 382 (Iowa 1986). A victim of discrimination is to receive "a remedy for his or her complete injury," including damages for emotional distress. Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990).

80. The Iowa Supreme Court's observations on the emotional distress damages resulting from wrongful discharge are equally applicable to the distress resulting from pay discrimination:
[Such illegal employment action] offends standards of fair conduct and normally will cause the employee damages in lost income. In addition to h[er] monetary loss of wages, the employee may suffer mentally. "Humiliation, wounded pride and the like may cause very acute mental anguish." [citations omitted]. We know of no logical reason why a . . . employee's damages should be limited to out-of-pocket loss of income, when the employee also suffers causally connected emotional harm. . . . We believe that fairness alone justifies the allowance of a full recovery in this type of tort.

Niblo v. Parr Mfg. Co., 445 N.W.2d 351, 355 (Iowa 1989).

81.

Emotions are intangible but are no the less perceptible. The hurt done to feelings and to reputation by an invasion of [civil] rights is no less real and no less compensable than the cost of repairing a broken window pane or a damaged lock. Wounded psyche and soul are to be salved by damages as much as the property that can be replaced at the local hardware store.

Belton, Remedies in Employment Discrimination Law 408 (1992)(quoting Foster v. MCI Telecommunications Corp., 773 F.2d 1116, 1120 (10th Cir. 1985)(quoting Baskin v. Parker, 602 F.2d 1205, 1209 (5th Cir. 1979)).

2. "Wounded Pride," "Anger", "Hurt" and "Upset" Are All Forms of Compensable Emotional Distress:

82. Among the many forms of emotional distress which may be compensated are "anger," "upset," "hurt," Kentucky Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981); 2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24- 29 (1982)(citing Fraser and 121-129 Broadway Realty v. New York Division of Human Rights, 49 A.D.2d 422, 376 N.Y.S.2d 17 (1975)), "wounded pride, and the like." Niblo v. Parr Mfg. Co., 445 N.W.2d at 355. It is uncontradicted in the record that Complainant Peyton suffered such distress due to pay discrimination. See Findings of Fact Nos. 124-131.

3. Lenient Proof Requirements for Emotional Distress Are Consistent With the Requirement That The Statute Is To Be Liberally Construed to Effectuate Its Purpose:

83. Emotional distress damages must be proven. Blessum v. Howard County Board of Supervisors, 295 N.W.2d 836, 845 (Iowa 1980). These damages must be proven here, as in any civil proceeding, by a preponderance or "greater weight" of the evidence. Iowa R. App. Pro. 14(f)(6). Sex discrimination in employment violates:

not only a statute but a strong public policy underlying that statute. . . . [O]ur civil rights statute is to be liberally construed to eliminate unfair and discriminatory acts and practices. [Citation omitted]. We therefore hold a civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct.

Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990)(emphasis added).

4. Even Mild Emotional Distress Should Be Compensated:

84. Even mild emotional distress resulting from discrimination is to be compensated. Rachel Helkenn, 10 Iowa Civil Rights Commission Case Reports 62, 73 (1990); Robert E. Swanson, 10 Iowa Civil Rights Commission Case Reports 36, 45 (1989); Ann Redies, 10 Iowa Civil Rights Commission Case Reports 17, 28 (1989). See Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 525-26 (Iowa 1990)(citing Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 355 (Iowa 1989)(adopting reasoning that because public policy requires that employee who is victim of discrimination is to be given a remedy for his complete injury, employee need not show distress is severe in order to be compensated for it)).

5. Emotional Distress May Be Proven By Testimony of the Complainant Alone:

85. "The [complainant's] own testimony may be solely sufficient to establish humiliation or mental distress." Williams v. TransWorld Airlines, Inc., 660 F.2d 1267, 1273, 27 Fair Empl. Prac. Cases 487, 491 (8th Cir. 1981). See also Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 1977); Smith v. Anchor Building Corp., 536 F.2d 231, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N.D. Ill. 1981); Belton, Remedies in Employment Discrimination Law 415 (1992).

6. Emotional Distress Damages Can Be Awarded In the Absence of Evidence of Economic Loss or Physical or Mental Impairment:

86. In discrimination cases, an award of damages for emotional distress can be made in the absence of "evidence of economic or financial loss, or medical evidence of mental or emotional impairment." Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974). Nonetheless, the evidence of lost income in this case, may be considered when assessing the existence or extent of emotional distress. See Niblo v. Parr Mfg. Co., 445 N.W.2d 351, 355 (Iowa 1989); Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988). See Finding of Fact No. 130.

7. Determining the Amount of Damages for Emotional Distress:

87.

[D]etermining the amount to be awarded for [emotional distress] is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages."

2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24-29 (1982)(quoting Randall v. Cowlitz Amusements, 76 P.2d 1017 (Wash. 1938)).

88. Although awards in other cases have little value in determining the amount an award should be in another specific case, Lynch v. City of Des Moines, 454 N.W.2d 827, 836-37 (Iowa 1990), there are many examples of such awards, ranging from $500 to $150,000, for emotional distress in discrimination cases. See e.g. Belton, Remedies in Employment Discrimination Law 416 n.78 (1992)(listing awards in 19 cases; 17 of which were for $10,000 or over). The Iowa District Court for Polk County recently awarded eighty thousand dollars ($80,000) to a sex discrimination plaintiff for emotional distress. Pamela Farren v. Super Valu Stores, Inc., Law No. Cl100-57791, slip op. at 22 (Polk Co. Dist. Ct. March 4, 1994). While any award should be tailored to the particular case, one commentator has noted that "a $750 award for mental distress is 'chump change.' Awards must be made which are large enough to compensate the victim of discrimination adequately for the injury suffered." 2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 60-61 (1982).

89. Like back pay, the reasonably certain prospect of an emotional distress damages award, when such damages are proven, serves to encourage employers to evaluate their own employment processes to ensure they are nondiscriminatory. The consistent failure to award such proven damages will remove this incentive and may encourage discriminatory practices. See id. at 61. Cf. Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975)(back pay).

90.

45. The two primary determinants of the amount awarded for damages for emotional distress are the severity of the distress and the duration of the distress. Bean v. Best, 93 N.W.2d 403, 408 (S.D. 1958)(citing Restatement of Torts § 905). "'In determining this, all relevant circumstances are considered, including sex, age, condition of life, and any other fact indicating the susceptibility of the injured person to this type of harm.' And continuing 'The extent and duration of emotional distress produced by the tortious conduct depend upon the sensitiveness of the injured person.'" Id. (quoting Restatement of Torts S 905). [See also Restatement (Second) of Torts S 905 (comment i).]

Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 166 (1992).

91. Based on these principles, an award of $2000.00 constitutes reasonable compensation for the distress suffered by Complainant Peyton. See Finding of Fact No. 131.

XIV. Credibility and Testimony:

92.

27. In addition to the factors in the findings on credibility . . . , the Administrative Law Judge has been guided by the following principles: First, . . . "[I]n the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next." NLRB. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949) (rejecting proposition that consistently crediting witnesses of one party and discrediting those of the other indicates bias). Second, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses. Stated otherwise, the trier of facts . . . is not bound to accept testimony as true because it is not contradicted. In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972).

28. Furthermore, the ultimate determination of the finder of fact "is not dependent on the number of witnesses. The weight of the testimony is the important factor." Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957). In determining the credibility of a witness and what weight is to be given to testimony, the factfinder may consider the witness' "conduct and demeanor. . . [including] the frankness, or lack thereof, and the general demeanor of witnesses," In Re Moffatt, 279 N.W.2d 15, 17-18 (Iowa 1979); Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957), as well as "the plausibility of the evidence. The [factfinder] may use its good judgment as to the details of the occurrence . . . and all proper and reasonable deductions to be drawn from the evidence." Wiese v. Hoffman, 249 Iowa 416, 424-25, 86 N.W.2d 861 (1957).

29.

Evidence on an issue of fact is not necessarily in equilibrium because the witnesses who testify to the existence of the fact are directly contradicted by the same number of witnesses, even though there is but a single witness on each side and their testimony is in direct conflict.
. . .
Numerical preponderance of the witnesses does not necessarily constitute a preponderance of the evidence so as to require a contested question of fact to be decided in accordance therewith. . . . [T]he intelligence, fairness, and means of observation of the witnesses, and various other recognized factors in determining the weight of the evidence . . . should be taken into consideration. . . . It is, of course, well recognized that the preponderance of the evidence does not depend upon the number of witnesses.

Id., 249 Iowa at 425, 86 N.W.2d 861.

Darrell Harvey, CP # 04-90-19797, slip. op. at 44-45 (January 28, 1994).

Peyton Main