VII. The Direct Evidence Method of Proof:
14. "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 413-14 (1979). Either policies which on their face call for consideration of a prohibited factor or statements by relevant managers reflecting bias constitute direct evidence of discrimination. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 (2nd ed. 1989).
15. Examples of direct evidence that sex or another protected class status is a motivating factor in an employment decision include comments by decisionmakers expressing a preference for employees who are members of a particular protected class or comments indicating that stereotypes of members of a particular protected class played a role in the challenged decision or practice. See e.g. Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 288 (1989)(promotion); Barbano v. Madison County, 922 F.2d 139, 143, 54 Fair Empl. Prac. Cas. 1287, 1290, 1292 (2nd Cir. 1990)(hiring); Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (11th Cir. 1985)(discharge); Storey v. City of Sparta Police Department, 667 F. Supp. 1164, 45 Fair Empl. Prac. Cas. 1546, 1551 (M.D. Tenn. 1987)(hiring).
16. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act)(evidence sufficiently probative as policy was facially discriminatory; practice discriminated on basis of age; affirmative defenses rejected; violation of ADEA found). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas 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 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 530 (Iowa 1985), 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. Ct. 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).
17. The reason why the McDonnell Douglas or "pretext" or "circumstantial evidence" order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is 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. That the employer's burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination.
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).
18. In this case, there is direct evidence in the record that sex was the motivating factor in Respondent's failure to hire Complainant Whaley for the Recreation Supervisor position. See Findings of Fact Nos. 21-22, 38, 42-43. There is also supplemental direct evidence that a concern for the safety of women also affected other employment and policy decisions. See Findings of Fact Nos. 23-25, 42, 44-45. However, "[t]he argument that a particular job is too dangerous for women may appropriately be met by the rejoinder that it is the purpose of [civil rights laws] to allow the individual woman to make that choice herself." Dothard v. Rawlinson, 433 U.S. 321, 335, 15 Fair Empl. Prac. Cas. 10, 16 (1977).
18A. After careful examination, this direct evidence has been found to be sufficiently probative to establish sex discrimination with respect to Whaley's hiring and the other matters. See Findings of Fact Nos. 20-45. The statements about the challenged position were "'[c]omments which demonstrate a discriminatory animus in the decisional process' [and] were uttered by [an individual] closely involved in employment decisions." Radabaugh v. Zip Feed Mills, 997 F.2d 444, 62 Fair Empl. Prac. 438, 441 (8th Cir. 1993)(quoting Price-Waterhouse, 490 U.S. at 278 (O'Connor, J. concurring). They could hardly be characterized as "'stray remarks in the workplace,' 'statements by non- decisionmakers', or 'statements by decisionmakers unrelated to the decisional process.' Id. Certain legal principles concerning the credibility of witnesses, which are discussed later in this decision, were applied in determining the probative nature of this evidence. See Conclusions of Law Nos. 20-29.
19. The inquiry, however, does not end there, for the affirmative defenses of the Respondent, if any, must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985). Examples of possible affirmative defenses which address direct evidence of discrimination include (a) that the protected class status (e.g. sex in this case) is a bona fide occupational qualification (BFOQ) for the position, see e.g. id., 469 U.S. at 124, 105 S. Ct. at ___, 83 L.Ed. 2d at 535; or, (b) the "mixed motive" or "same decision" defense. See Conclusion of Law No. 8. Since the Respondent failed to raise any such affirmative defense, it's liability for discrimination is established. This reasoning accounts for the main ruling on liability in this case. See Finding of Fact No. 46.
VIII. Credibility and Testimony:
20. In addition to other factors mentioned in the findings of fact on credibility, the Administrative Law Judge and the Commission have been guided by the following principles: First, it has been recognized that, when other witnesses have a interest in litigation which plausibly might affect their testimony, the testimony of those witnesses who are disinterested will often be entitled to the greatest weight. See, Lareau & Sacks, Assessing Credibility in Labor Arbitration, 5 The Labor Lawyer 151, 178-79 (1989); See also Kaiser v. Strathas, 263 N.W.2d 522, 526 (Iowa 1978)(interest of witness, remote or otherwise may be taken into account). This principle was among those factors applied in accepting the credibility of the testimony of Bill Beverly. See Finding of Fact No. 26.
21. Second, "[w]hen the trier of fact . . . finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2d 383, 388 (Iowa 1975). "[T]he facts disputed in litigation are not random unknowns in isolated equations-- they are facets of related human behavior, and the chiseling of one facet helps to mark the borders of the next. Thus, in 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).
22. This case provides an example of the application of this principle. Because of Eldredge's willfully false testimony denying his inculpatory statements to Whaley and Beverly, his other testimony concerning the reasons for Carey's hire and Whaley's rejection was also disbelieved. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L.Ed. 2d 268, 289, 109 S.Ct. 1775 n.14 (1989) (mixed motive case rejecting the "baffling" suggestion "that the employer's own testimony as to the probable decision in the absence of discrimination is due special credence where the court has, contrary to the employer's testimony, found that an illegitimate factor played a part in the decision"); Fuentes v. Perskie, ___ F.2d ___, 65 Fair Empl. Cas. 890, 894 at n.7 (3rd Cir. 1994)(pretext case--"factfinder's rejection of some of the defendant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons even if no evidence undermining those remaining rationales in particular is available."). See Findings of Nos. 53, 57, 65, 100, 104.
23. Third,
[T]he trier of fact is not . . . required to accept and give effect to testimony which it finds to be unreliable although uncontradicted. Testimony may be unimpeached by any direct evidence to the contrary and yet be so . . . inconsistent with other circumstances established in the evidence, . . . , as to be subject to rejection by the . . . trier of the facts.
. . .
The [factfinder] . . . might well scrutinize closely such testimony as to its credibility, taking into consideration all the circumstances throwing light thereon, such as the interest of the witnesses, remote or otherwise.
Kaiser v. Strathas, 263 N.W.2d 522, 526 (Iowa 1978)(citations omitted).
24. Fourth, 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).
25. The factors cited above, such as consistency with the other circumstances in the record, interest, conduct and demeanor have been used in determining credibility in this case. See Findings of Fact Nos. 26-37, 39-41, 50-53.
26. With respect to witness demeanor, however, caution must be exercised, as many traditional demeanor clues and notions are false. See, Lareau & Sacks, Assessing Credibility in Labor Arbitration, 5 The Labor Lawyer 151, 154-55. (1989). For example, "research shows pleasant facial characteristics are among the characteristics of those who lie." Id. at 155. Witness who either don't know what they are talking about or are liars may display a confident demeanor. Id. at 154. See Finding of Fact No. 52.
27. Fifth, "[d]eference is due to hearing officer [now administrative law judge] decisions concerning issues of credibility of witnesses." Peoples Memorial Hospital v. Iowa Civil Rights Commission, 322 N.W.2d 87, 92 (Iowa 1982)(citing Bangor and Aroostook Railroad Co. v. ICC, 574 F.2d 1096, 1110 (1st Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed2d 133 (1978)(deference is due by reviewing court to ALJ findings on credibility even when agency has reached a contrary decision)).
28. Such deference is given because the administrative adjudicator who views the witnesses and observes their demeanor at the hearing is "in a far superior position to determine the question of credibility than is this court." Libe v. Board of Education, 350 N.W.2d 748, 750 (Iowa Ct. App. 1984). "Factual disputes depending heavily on the credibility of witnesses are best resolved by the trial court" Capital Savings & Loan Assn. v. First Financial Savings & Loan Assn., 364 N.W.2d 267, 271 (Iowa Ct. App. 1984)(quoted in Board v. Justman, 476 N.W.2d 335, 338 (Iowa 1991)).
29. The extent of this deference is best demonstrated by the factual situation set forth in this statement by the United States Supreme Court:
Only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said . . . [W]hen a trial judge's finding is based on his decision to credit the testimony of one or two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.
Anderson v. City of Bessemer City, 470 U.S. 564, 575, 37 Fair Empl. Prac. Cas. 396 (1985).