III. CREDIBLE DIRECT EVIDENCE IN THE RECORD DEMONSTRATES THAT
COMPLAINANT WHALEY WAS NOT HIRED, AND WAS INFORMED SHE WAS NOT
HIRED, FOR THE POSITION OF RECREATION SUPERVISOR DUE TO HER SEX:
A. Direct Evidence Provided By the Testimony of Bill Beverly:
1. Direct Evidence That Complainant Whaley Was Not Hired for
the Challenged 1987 Recreation Supervisor Position Because a Male
Was Preferred:
20. Bill Beverly is a male recreation supervisor who was appointed to that position by Mr. Eldredge in June of 1980. (Stip. Nos. 52, 75).
21. Mr. Beverly credibly testified that the following statement, written, signed and dated by him on March 28, 1988, was true and accurate:
On at least two occasions in either late December 1987 or early January 1988 Recreation Superintendent Robert C. Eldredge made this statement "because of problems at Model City Community Center and Logan Community Center: I want to hire a male for the Recreation Supervisor position."
(CP. EX. # 13{emphasis added}; Tr. at 144, 151-52). It should be noted that, although this statement appears to be notarized, the parties have stipulated it was not sworn to before a notary public. (CP. EX. # 13; Tr. at 158-59).
22. At the time of hearing, Mr. Beverly could "vividly" recall one specific instance where this statement concerning the challenged position was made by Mr. Eldredge in the presence of him and Ms. Jennifer Marcouiller, a female Recreation Supervisor. (Stip. No. 75; Tr. at 144-45, 152- 53, 155).
2. Direct Evidence That Bill Beverly Was Hired for the 1980
Recreation Supervisor Position Because a Male Was Preferred:
23. Mr. Beverly was hired on June 2, 1980. (Stip. No. 75). Mr. Beverly also recalled that, after he was hired for his Recreation Supervisor position, he was informed by Mr. Eldredge that "because of the volatility of my position in adult athletics and some of the things that you run into, that he was looking, he thought at that time, for a male for the position. This was actually after I was hired, because he was concerned about placing females out in those situations." (Tr. at 144-45). This evidence is significant because it provides a prior example of this concern for the safety of female employees playing a role in the hiring decision for a Recreation Supervisor position.
3. Direct Evidence That Only Male Athletic League Play Was
Scheduled at Good Park Because of Concern For the Safety of Female
Participants:
24. Mr. Beverly and Mr. Eldredge's testimony also indicated that, while there was a policy of minimizing scheduling of all league play at Good Park due to crime concerns, there was also a policy of scheduling only all-male leagues at the Park due to these concerns. (Tr. at 141-42, 252-53). This testimony is significant only because these underlying concerns are similar to those which played a role in the 1987 Recreation Supervisor hiring. While Mr. Eldredge's later testimony downplays or tries to explain away this aspect, both his and Mr. Beverly's testimony acknowledges that the policy was that no female or coed league play was scheduled at Good Park. (Tr. at 141-42, 252-53, 260, 262-64).
25.
Q. (By Autry): Okay. What about Good Park?
A. (By Beverly): Good Park. It's perceived, I would say, by the white community more than anything else that that is a very rough area, and we--for example, at . . . Good Park, we have the softball diamond there, and we schedule a minimal amount of games because of the perception that it is rough and there is a lot of crime there.
Q. (By Autry): Do you schedule any female league games there?
A. (By Beverly): No.
Q. (By Autry): Any co-ed league games there?
A. (By Beverly): No.
Q. (By Autry): So you only schedule male games there?
A. (By Beverly): Only schedule male games there.
Q. (By Autry): When did that policy start?
A. (By Beverly): To be honest with you, I don't know. We've done it for years that way because of that perception.
(Tr. at 141-42).
Q. (By Autry): Did you hear Bill Beverly talk about the policy out at Good Park, that they don't put women sports leagues and they don't put co-ed sports leagues in there?
A. (By Eldredge): That's right.
Q. (By Autry): Were you aware of that policy?
A. (By Eldredge): Yes.
(Tr. at 252-53)(emphasis added).
B. Bill Beverly's Testimony Is Credible:
1. Reasons Why Beverly's Testimony Is Credible:
26. For a variety of reasons, it is clear that Bill Beverly's testimony is credible. The first, and most important, fact which results in this assessment is that Bill Beverly, unlike either Eldredge or Whaley, is a neutral witness who has neither reputation or monetary gain at stake. Mr. Beverly felt he had been well treated by the Department during his thirteen and a half years of employment. He had no grudge against either Mr. Eldredge or the City of Des Moines. (Tr. at 146). There is no evidence in the record indicating he has anything to gain by fabricating Superintendent Eldredge's statements on preferring males, due to safety concerns, for both the challenged 1987 Recreation Supervisor position sought by Complainant Whaley and for the Recreation Supervisor position which Mr. Beverly filled in 1980. Indeed, there is no evidence of any motivation for Mr. Beverly to do anything but tell the truth.
27. Second, Mr. Beverly has a vivid, clear memory of at least one occasion when Mr. Eldredge made the remark about the need for a male for the challenged position due to the problems at Model Cities and Logan community centers. (Tr. at 155).
28. Third, Mr. Beverly's testimony is completely consistent with the statement he signed on March 28, 1988. (CP. EX. # 13; Tr. at 144, 151-52). His memory of the second occasion when Eldredge made this statement concerning the challenged position was less clear at hearing, however, than it was in 1988. (Tr. at 153-55).
29. Fourth, Mr. Beverly's demeanor was that of a credible witness. He gave calm, clear, and relaxed testimony.
30. Fifth, Mr. Beverly's testimony is both internally consistent and consistent with the greater weight of the credible evidence, including the testimony of Complainant Whaley about a similar statement by Mr. Eldredge, which shall be discussed later. See Findings of Fact Nos. 38-41.
2. Respondent's Arguments Challenging the Credibility of Mr.
Beverly's Testimony Are Invalid:
31. On brief, the Respondent suggested several reasons why Mr. Beverly's testimony should not be believed. Respondent seems to either suggest that Beverly was referring only to the comment made by Eldredge shortly after the time Beverly was hired in 1980 or to emphasize the length of time between that comment and the challenged position. (City's Brief at 19-21). However, Beverly's testimony indicates that he had a clear recollection of one of the two occasions where Eldredge made similar statements in 1987 or 1988 about the position which is the subject of Complainant Whaley's complaint. (CP. EX. # 13; Tr. at 144-45). In addition, he had a clear recollection of the statement made shortly after his hire. (Tr. at 144-45).
32. The Respondent notes that "Mr. Beverly had no explanation for the appearance of the notary stamp and signature on Notary Paul D. Walley upon his written statement. He testified he wrote the 3/28/88 statement at Complainant's request in his own office and not in the presence of Walley." (City's Brief at 21 [citing Tr. at 151]). All of this testimony seems to be truthful, however, particularly in light of the stipulation, entered into by both Respondent and the Commission, that the statement was not signed in the presence of a notary. (Tr. at 158-59). The record does not reveal how the presence of such a signature and stamp on this document came about. Truthful testimony by a witness to the effect that he does not know how a notary stamp and signature subsequently appeared on a statement handwritten by him does not reflect adversely on the credibility of the witness.
33. The Respondent also asserts that Beverly's testimony, that Eldredge made one of the statements concerning the challenged position at a meeting involving Mr. Beverly, Mr. Eldredge, and Ms. Marcouiller, where he was asked to give input on who to select for the position, is effectively contradicted by the testimony of both Eldredge and Marcouiller. (City's Brief at 21-22[citing Tr. at 147, 155, 244-45, 261-62, 320-21]).
34. Ms. Marcouiller did testify that Eldredge did not ask for her input on who should be selected for the challenged position. (Tr. at 320). However, her response, to the specific question of whether she was present at a meeting with Mr. Beverly and Mr. Eldredge where Eldredge made the statement that he wanted to hire a male for the position, was that "You know, I don't recollect that at all. I honestly do not recollect that conversation or that meeting." (Tr. at 321)(emphasis added).
35. Testimony that a witness does not recollect or remember a meeting is not the same as testimony wherein the witness denies that such a meeting occurred. Ms. Marcouiller's testimony leaves open the possibility that this meeting did occur, although she does not now remember it. If she does not remember whether or not such a meeting occurred, it is obvious she would not recall being asked to give input on the hire of a recreation supervisor at that meeting. When her failure to remember is contrasted with Mr. Beverly's vivid recollection of the meeting, his testimony appears to be the most credible.
36. Other circumstances also indicate that Beverly's version of this event is more credible. Eldredge occasionally discussed the performance of community center supervisors, including Complainant Whaley and Sue Patterson, with Beverly. (Tr. at 140). Marcouiller had interned with Jack Carey. (Stip. at 69). Since Whaley, Patterson, and Carey were all candidates for the Recreation Supervisor position, it is plausible that Eldredge did discuss the selection for that position with Marcouiller and Beverly. (Stip. Nos. 3, 4, 53; CP. EX. # 6; Tr. at 64-65).
37. Finally, Respondent speculates that, with respect to the policy at Good Park, Mr. Beverly "projected his own mind set upon the circumstances at hand." (City's Brief at 25[citing Tr. at 156-57]). Respondent bases this alleged "projection" upon the fears which it specifically elicited from Beverly on cross-examination, i.e that he would have concerns for the safety of his own wife if she were at either the Model City Community Center or Logan Community Center, neither of which is Good Park. (Tr. at 156-57). In light of the greater weight of the evidence and other factors previously discussed, there is no reason to believe that any of Mr. Beverly's testimony concerning either statements made by Mr. Eldredge or the policy at Good Park is the result of any such "projection." Mr. Beverly's testimony is that of a highly credible, neutral witness.
C. Direct Evidence Provided By the Testimony of Complainant
Whaley:
38. Complainant Whaley credibly testified that, when she asked Robert Eldredge why Jack Carey was hired over her for the recreation supervisor position, Eldredge told her: "You don't lack in anything. There's no problem there, but the reason I chose Jack Carey instead of you is because of the problems we were having at Logan and Model Cities. I felt like in this position we need a strong male supervisor." (Tr. at 69)(emphasis added).
D. Complainant Whaley's Testimony Is Credible:
39. Ms. Whaley's testimony is highly credible for a number of reasons. First, this testimony is consistent with the language of her complaint filed on March 8, 1988. (CP. EX. # 8; Notice of Hearing). It is also consistent with the greater weight of the credible evidence, especially the previously discussed testimony of a disinterested witness, Bill Beverly.
40. Second, Complainant Whaley's recollection of the conversation with Mr. Eldredge is clear and detailed. She remembered how shocked she was when Eldredge told her that Carey was hired because he was male. (Tr. at 70, 108-09). She recalled responding that, "You're right, you know, he is a male and he's a nice guy, but I'm a stronger supervisor than he is." (Tr. at 70). She was also able to recite other aspects of their conversation. (Tr. at 70-72).
41. Third, by mid-January 1988, Whaley went to the Equal Opportunity Administrator, Willie Robinson and informed him of what had been said to her by Eldredge. This behavior is consistent with her version of events. (Tr. at 73-76). Her version of this visit is more credible than Mr. Robinson's initial testimony, denying that Whaley had mentioned sex discrimination, as her recollection is clearer and more detailed. (Tr. at 73-76, 299-301, 303-04, 306-08). On cross-examination, however, Robinson recalled "to a certain extent" that he had informed the Commission's investigator (a) that Whaley had told him she was concerned that sex was a factor in this hiring and (b) that she could file a discrimination complaint with him or the Iowa Civil Rights Commission. (Tr. at 307-08). Finally, Complainant Whaley's demeanor was that of a calm, credible witness.
E. Summary of Direct Evidence:
42. The credible evidence demonstrates: (1) that Eldredge stated that he preferred to hire a male for the challenged Recreation Supervisor position because of his concern for the safety of women at the Logan and Model City Community Centers, (2) that Eldredge did hire a male, Jack Carey, for that Recreation Supervisor position due to this concern, (3) that he informed Complainant Whaley of this reason for Carey's hire, and (4) Eldredge had previously indicated that he had hired Beverly for his position in 1980 because Eldredge thought a male would be better able to handle the volatility of the adult athletics position. Both Eldredge and Beverly had also recognized it was a department policy not to schedule women's team sports for Good Park due to a rationale similar to that underlying these hiring decisions, i.e. a concern for the safety of women. There is no evidence, however, that male and female applicants for employment for these positions were informed of the potential dangers and permitted to make the choice of whether they wished to risk facing them. Rather, the direct evidence in the form of Eldredge's statements to Beverly and Whaley, confirms that the decision was made in both instances that a male would be hired due to concerns for the safety of women in the positions.
43. The statements by Eldredge to Whaley and Beverly concerning the filling of the challenged position constitute, standing alone, direct evidence which is sufficiently probative to establish that Complainant Whaley was not hired because of her sex for the Recreation Supervisor position ultimately filled by Jack Carey. They demonstrate that sex was the determining factor in this decision. These statements show what Mr. Eldredge's state of mind was at the time the challenged decision was made. These statements are (1) made by the decisionmaker, (2) directly related to the decisional process, and (3) probative of the employer's reason for the hiring decision.
44. The direct evidence with respect to the filling of Beverly's position and the policy at Good Park is supplemental. It demonstrates that Eldredge's concern for the safety of women also had influenced both the hiring for the prior Recreation Supervisor position filled by Beverly and the scheduling of female and coed teams. A similar concern led Jennifer Marcouiller, in consultation and apparently with the approval of Eldredge, to select a male attendant for an ice rink after a woman had been attacked at one. (Tr. at 321-22).
45. It is obvious from his appointment of seven (7) females and eight (8) males to different Recreation Supervisor positions that Eldredge's failure to appoint Whaley did not stem from a generalized opposition to having women in positions of responsibility. (Stip. No. 75). Nonetheless, the preponderance of the evidence demonstrates there was a concern for the safety of women which played a determinative role in various decisions at the department, including Eldredge's failure to select Whaley for the challenged position. This evidence also demonstrates that Complainant Whaley was specifically informed that her sex was the reason she was not hired.
IV. RULING: THE RESPONDENT'S LIABILITY IS ESTABLISHED BECAUSE
IT HAS OFFERED NO AFFIRMATIVE DEFENSE TO THE SHOWING OF SEX DISCRIMINATION
MADE THROUGH THE CREDIBLE DIRECT EVIDENCE OF DISCRIMINATION IN
THE RECORD:
46. Unlike cases based on circumstantial evidence of discrimination, the probative direct evidence of discrimination in the record, which has been found to be sufficient to establish that the failure to hire Whaley was due to sex discrimination, places the burden on the Respondent to prove an affirmative defense. Examples of such affirmative defenses, which would be responsive to direct evidence, include the bona fide occupational qualification (BFOQ) defense and the "mixed motive" or "same decision" defense. See Conclusions of Law Nos. 19. On brief, Respondent has proffered none of these affirmative defenses. The defenses set forth by Respondent are that the direct evidence of sex discrimination is not credible, that sex discrimination played no role in the hiring decision, and that the decision took place solely for legitimate reasons. (See generally Respondent's Brief). Respondent also made no mention of any such affirmative defenses in its pleadings. (Response to Complainant's Allegations; Respondent's Prehearing Conference Form). Since no affirmative defense responsive to the direct evidence of discrimination has been offered by Respondent, it has made no showing sufficient to rebut the sex discrimination established by such direct evidence. Thus, Complainant Whaley and the Commission have established the City of Des Moines' liability for failing to hire Whaley due to her sex.