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

Findings of Fact Continued

V. Prima Facie Case: The Job Performed by Complainant Peyton Was Substantially Equal in Terms of Skill, Effort, and Responsibility Required by the Job to that Performed by Mark Fettkether and Was Performed Under Similar Working Conditions:

A. Overview:

81. When Peyton left the position of jail administrator, Mark Fettkether stepped into a position where the duties with respect to the jail were, in many respects, not only substantially equal, but virtually identical to those held by Peyton. The Respondent argues that Fettkether had greater autonomy and authority which justifies the higher pay. This appears to be based, in part, on Fettkether's continuing authority as a deputy. It is also based on differences with respect to budget, on-call, and transportation duties at the jail. The evidence shows however that Fettkether's authority as a deputy sheriff was actually exercised on only an occasional basis after he became jail administrator. The other differences in authority either did not arise until long after Fettkether took the position or were otherwise insufficient to show that his duties and Peyton's were not substantially equal with respect to the skill, effort and responsibility or performed under similar working conditions.

B. Common Core of Duties for Fettkether and Peyton:

82. Complainant Peyton decided to leave the jail administrator position for a higher paying position as dispatcher in Black Hawk County. See Finding of Fact No. 29. She informed Sheriff Davis that she was leaving two weeks prior to her termination date. (Tr. at 55). He requested her recommendations as to who should replace her. Based on their knowledge of the jail and their capability to be trained in eight working days, she named deputies Jack Straw, Mark Fettkether, Sam Mason as well as former jail employees Teresa Rasmussen and Jane Hertzberg. (Tr. at 55, 112). Fettkether was selected and offered the position at much higher pay than Peyton had received. See Findings of Fact Nos. 9, 32.

83. When Fettkether accepted the position, he essentially stepped into a position which was, in many respects, not only substantially equal but virtually identical with that held by Peyton. (Tr. at 108, 112, 139, 156, 263, 243-44, 273). Respondents have argued on brief that Fettkether's higher pay was justified because he had greater autonomy, authority and responsibilities than Peyton. (Respondent's Brief at 7-8).

C. Fettkether's Status as Deputy Sheriff and Third in Command:

84. Lieutenant Fettkether was a regular civil service deputy at the time he became jail administrator. Complainant Peyton was not. (Tr. at 107, 239-40, 266). Classification as a peace officer or civil service deputy is not a requirement or qualification for a jail administrator at a county jail.. (C. EX. 18 - section 50.10; Tr. at 125, 130, 133-34, 140). As correctional services representative McSweeney credibly testified, there is nothing in the job of jail administrator to suggest that being a peace officer should be a requirement for the position. (Tr. at 125).

85. Fettkether had been a patrol supervisor prior to taking the position of jail administrator. (Tr. at 240). Once Fettkether was assigned to the jail administrator position, which is considered to be a full-time job, another deputy was hired to take on patrol duties. (Tr. at 266). Once he became jail administrator, a regular road patrol shift was not a part of Fettkether's job. (Tr. at 266).

86. On occasion, after he became jail administrator, Lieutenant Fettkether would assist in some patrol situations where he was the closest officer available. (Tr. at 234-35, 266). Two specific instances where this occurred were identified in the record for the two year and five month period between the date Fettkether became jail administrator and the date of the hearing. On one occasion, he provided back-up for a call concerning an individual involved in a possible shooting in another county. On another occasion, he answered an early morning motor vehicle accident call which was only ten miles from his home. (Tr. at 235, 236, 246-47, 265). A possible third occasion involved his answering a call while on the way out to the jail in the morning. (Tr. at 236). There appear to have been other occasions, but the greater weight of the evidence indicates that Fettkether's patrol duties were occasional, incidental events which occurred when he was closest to the scene or when extra help was needed. (Tr. at 234-35, 246, 266).

87. Lieutenant Fettkether was third in command of the sheriff's department prior to becoming jail administrator. He remained third in command after assuming that position. (Tr. at 108, 234-35, 245). As a practical matter, this means that Fettkether runs the department when the sheriff and the chief deputy are out of the county. (Tr. at 235, 265). There have been times when this has happened, but there is no evidence in the record to indicate that this is anything more than an occasional occurrence. (Tr. at 234-35, 245-46, 265).

D. Differences in Fettkether's and Peyton's Duties Either Did Not Occur Until Long After Fettkether Was in the Position or Were Insignificant:

1. Budgeting:

88. Respondent's brief suggested that Fettkether "possesses more autonomy and authority in his position as jail administrator than did Peyton, particularly in the area of budgeting and claims." Respondent's Brief at 7. Fettkether, however, testified that, with respect to the budget, "[P]resently, I have a little bit, shall we say, more freedom of control than what Ms. Peyton had." (Tr. at 244). One aspect of this "little bit more of freedom of control" involved making out his own budget request and presenting it to the Board of Supervisors. (Tr. at 244, 270).

89. Fettkether, however, did not do this independently until the budget request submitted in January of 1991. (Tr. at 271-72). This was one year and two months after he entered the position and one year after the filing of this complaint. See Findings of Fact Nos. 2, 9. The first year's budget request was prepared by the sheriff and Fettkether together, just as the sheriff and Alice Peyton had done when she was jail administrator. (Tr. at 83-84, 257, 271-72).

90. Lieutenant Fettkether was paid a substantially higher salary than Alice Peyton for over a year before he had sole responsibility for this duty. There is no evidence in the record indicating that Complainant Peyton was ever given the opportunity to independently prepare and present the budget during her term as jail administrator or that she would be incapable of doing so. Under these circumstances, this is not a significant difference with respect to skill, effort, responsibility or working conditions in the job requirements for Peyton and Fettkether.

2. Claims:

91. Another aspect of the "little bit more of freedom of control" held by Fettkether involved claims. (Tr. at 244). When Peyton was jail administrator, claim forms, which involved bills submitted to the sheriff's department, were initially prepared by Pam Fitzgerald, the office administrative secretary. When Ms. Fitzgerald left on maternity leave, Peyton volunteered to prepare the claim forms for the jail. Peyton continued to perform this function throughout her employment. Once she prepared the claim forms for Sheriff Davis's signature, they would be submitted to the Board of Supervisors for payment. (Tr. at 244-45. 257-58).

92. The difference between what Peyton did and what Fettkether did is that Fettkether was permitted to sign the claim forms for the jail and submit them directly to the Board without obtaining the sheriff's signature. (Tr. at 244-45, 263). There is no evidence that Peyton was ever given the chance to perform this function in this manner or would have been incapable of doing so. Under these circumstances, this is not a significant difference with respect to skill, effort, responsibility or working conditions in the job requirements for Peyton and Fettkether.

3. On Call Status:

93. Both Complainant Peyton and Lieutenant Fettkether were required to be on call 24 hours a day for problems at the jail. See Finding of Fact No. 37. (C. EX. 13; Tr. at 43, 103-05, 267-68). If the jail administrator cannot be reached, the jailer is to call the sheriff. (Tr. at 43, 267). Six months after his assignment to the jail administrator position, Fettkether was given a pager to wear. (Tr. at 265). Because Fettkether was given this pager, he could be contacted with greater success than if contact were limited to the telephone system, as it had been with Peyton. Thus, the number of calls handled by Fettkether was increased and the number of calls to the sheriff was reduced. (Tr. at 267-68).

94. The pager system was instituted because Sheriff Davis anticipated making approximately 20 simultaneous arrests due to the drug war. Since he could not predict when these arrests would be made, day or night, he gave Fettkether a pager so he would be available at the time of the arrests. This is not so much a change in responsibility, skill, or effort as it is a change in communications. (Tr. at 265-66). If Peyton had been given a pager, there is no reason to believe that the impact on her job requirements would not have been identical.

4. Transportation:

95. The last distinction brought up with respect to Peyton's and Fettkether's duties is the transportation of prisoners. Both Peyton, as jail administrator, and jailers transported inmates to local destinations, such as the doctor or dentist. (Tr. at 108, 157). Jailers continued to transport prisoners to local destinations after Fettkether became jail administrator. (Tr. at 234).

96. The only difference with respect to transportation duties involves long distance transportation to Oakdale or Ft. Madison. The complainant would have to call for a deputy to conduct the transport and ride along. (Tr. at 108). Fettkether, being a deputy, was able to conduct the long- distance transports by himself. (Tr. at 157, 246). There is no evidence in the record indicating how often such trips were undertaken. Under these facts, this difference does not constitute a significant change in the skill, effort, or responsibility required by the jobs or in similarity of working conditions.

97. The combination of (a) unequal pay between Complainant Peyton, a female, and Mark Fettkether, a male; for (b) a position performed under similar working conditions, where (c) the skill, effort, and responsibility required to perform the job are substantially equal, is sufficient in itself to establish a prima facie case of equal pay discrimination on the basis of sex. See Conclusion of Law No. 31, 33.

VI. The Respondent Failed to Produce Evidence Which is Sufficient to Articulate A Legitimate, Nondiscriminatory Reason Asserted on Brief, i.e. That Complainant Peyton Was Paid Less Than David Kuhn Because Kuhn Had Lengthy Experience and Training In Jail Operations At the Start of His Employment While Complainant Peyton Had None At All at the Start of Hers:

1. Reasons Identified As Legitimate Non-Discriminatory Reasons Have Already Been Considered and Rejected:

98. On brief, Respondent identified several reasons which it described as legitimate, nondiscriminatory reasons for the failure to pay Complainant Peyton what it paid David Kuhn in the position of jail administrator. (Respondent's Brief at 6-7). Respondent's argument that these all should be viewed as legitimate, nondiscriminatory reasons for the action was based on the erroneous premise that "the fact that [Peyton] was paid less than her male predecessor and her male successor" was, by itself, sufficient to establish a prima facie case. See Conclusion of Law No. 34.

99. Several reasons dealt with asserted differences in authority and autonomy between Kuhn and Peyton. These included Kuhn's responsibility for policy development, a reason for the difference in pay which was articulated through the production of evidence to that effect. (Tr. at 186). These reasons were directed toward the elements of the prima facie case, i.e. did the jobs require substantially equal skill, effort, and responsibility? Such reasons have already been considered and rejected. See Findings of Fact Nos. 40-48, 54-55, 58-64.

2. Denial That Sex Was a Factor In Determining Pay Does Not Rebut a Prima Facie Case:

100. The Board of Supervisors' denials that sex was a factor in their determinations of Peyton's pay, do not rebut a prima facie case. (Tr. at 206, 212, 220). See Conclusion of Law No. 52.

3. Respondent Failed to Produce Evidence That Peyton Was Paid Less Than Kuhn Because Kuhn Had Lengthy Experience and Training In Jail Operations At the Start of His Employment While Complainant Peyton Had None at the Start of Hers:

101. Respondent also asserted that Peyton was paid less than Kuhn because "[w]hile it is true that both Kuhn and Peyton were civilian employees within the sheriff's department and both operated the jail, Kuhn had lengthy experience and considerable training in [jail operations] at the start of his employment, where Peyton had none at all." Respondent's Brief at 6. While there is evidence showing their experience, training, and pay, there is no evidence in the record where it is specifically articulated that Peyton was paid less because she did not have Kuhn's experience and training. (R. EX. F, G; C. EX. 1-5; Tr. at 6-7, 10, 12, 15, 17-18, 31-33, 67). There is no testimonial or documentary evidence in the record stating that Peyton was paid less than Kuhn because of their respective experience or training.

VI. Ruling In the Alternative: Even If The Respondent Had Articulated That Complainant Peyton Was Paid Less Than David Kuhn Because Kuhn Had Lengthy Experience and Training In Jail Operations At the Start of His Employment While Complainant Peyton Had None At All at the Start of Her Employment, This Reason is Either Not a Legitimate, Nondiscriminatory Reason or is a Pretext for Discrimination:

102. Assuming that evidence was produced showing that the stated difference in experience and training between Kuhn and Peyton was a reason for reduced pay for the complainant, it is not a legitimate and nondiscriminatory reason. By its statements on brief, Respondent has admitted that the comparison drawn was between Kuhn's experience and training when he started employment as jail administrator and Peyton's lack of experience and training when she started employment as an on-call matron. Respondent's Brief at 6. See Conclusion of Law No. 48-51. It is neither legitimate, nondiscriminatory, nor plausible for an employer to determine the pay of a new male jail administrator based on his experience and training at the time of entering that position, while determining the pay of a new female jail administrator based on her experience and training, or lack of same, as it existed a year and a half prior to entering the jail administrator position. A practice of taking into account all of a male's job related experience and training at the time of making a salary determination, while excluding all of a female's job related experience and training when making such determinations, is obviously discriminatory. Such a determination would disregard Peyton's experience and training in jail operations acquired from September of 1982 to April of 1984.

103. Such training included:

a. The twenty-four hours of initial orientation training provided to Peyton as a new jailer in September and October of 1982. (C. EX. # 2).

b. Intoxilyzer training in May of 1983. (C. EX. # 3).

c. Completion of a 40 hour American Correctional Association's Correctional Officer's Correspondence Course in May of 1983. (C. EX. # 4). This was a course which Peyton took and paid for on her own initiative. (Tr. at 10, 15, 17). When Peyton committed volunteer unpaid time to work on this course, she was also taught by Kuhn how to handle the paperwork in the office. (Tr. at 15).

d. Completion of the National Sheriff's Association's Jail Officer's Correspondence Course in June of 1983. (C. EX. # 5). This was a required 40 hour course. (Tr. at 10, 18).

104. After she became jail administrator, Peyton took another six classroom training courses on jail operations. (C. EX. 7-12).

105. Pretext is shown for two separate and independent reasons. First, the experience and training reason differs dramatically from what the complainant was told by Supervisor Kremer when she asked why she was not being paid as much as David Kuhn. She was told that she was not being paid as much as Kuhn because Kuhn was paid too much. Kremer made no mention of their comparative qualifications. The clear message sent by Kremer was that the position wasn't worth what Kuhn had been paid. (Tr. at 24, 59, 80). This message was reinforced by the Board's refusal to pay Peyton even the lowest amount shown in the salary survey of comparable county jail administrators. See Finding of Fact No. 17.

106. Second, there is no testimonial or documentary evidence in the record where it is stated that Kuhn's pay as jail administrator was based on his particular experience and training. There were negotiations between Kuhn and Herrick concerning salary, but it is unknown what factors those negotiations addressed. (Tr. at 173). The closest which the Respondent came to producing evidence which articulated this position was in the testimony of Sheriff Dryer and in Sheriff Herrick's letter to the Board of Supervisors recommending the hire of Kuhn. (R. EX. G; Tr. at 170).

107. Dryer testified that once Sheriff Herrick had applied for the necessary grants to physically renovate the jail, he looked for "somebody with a fair amount of jail expertise" and hired Kuhn. (Tr. at 170). The letter sent by Herrick to the Board simply recited Kuhn's experience and training and requested the Board's approval of hiring Kuhn and approval of the recommended salary:

David D. Kuhn has over ten years experience in law enforcement and is a 1974 graduate of the Iowa Law Enforcement Academy. Kuhn is a 1978 and 1981 graduate of North Iowa Area Community College, Mason City, Iowa. In 1978 Kuhn received a two year degree in Liberal Arts, and in 1981 received a two year degree in Police Science.

Kuhn has been employed since February 1, 1977, with the Floyd County Sheriff's Department as Jail Administrator.

Therefore, I request your approval of Kuhn as Chief Jail Administrator, in and for Buchanan County.

I would also request that Kuhn receive 75% of my salary, which would be $14,781.00 a year, beginning January 1, 1982.

(R. EX. G).

108. There is nothing in this evidence specifically stating that the pay was based on Kuhn's experience. It is quite possible under these facts that there was no adjustment based on Kuhn's experience and training. Sheriff Herrick may have decided what the job was worth and then looked for the best qualified person who would accept that pay. But even this is more than can be stated from the record. There is no evidence setting forth the specific relationship, if any, between Kuhn's pay and his experience.