V. RULING IN THE ALTERNATIVE # 1: THE RESPONDENT HAS NOT MET
ITS BURDEN OF DEMONSTRATING BY A PREPONDERANCE OF THE EVIDENCE
THAT, IN THE ABSENCE OF SEX DISCRIMINATION, COMPLAINANT WHALEY
WOULD NOT HAVE BEEN HIRED FOR THE POSITION:
A. The Commission Is Not Persuaded That, In The Absence of
Discrimination, The City of Des Moines Would Have Reached the
Same Decision With Respect to Hiring For the Challenged Recreation
Supervisor Position:
47. As noted above, the Respondent's position has been that its hiring decision was solely due to legitimate reasons. Respondent has not raised the "mixed motive" defense but assumed that the order and allocation of proof appropriate to cases relying on circumstantial evidence of discrimination would be utilized in this case, (Respondent's Brief at 6-8). The ruling above rests on the proposition that by not raising the mixed motive defense in its brief or other pleadings, the Respondent has admitted it has no such defense or has waived such defense. See Conclusions of Law Nos. 8-11. Nonetheless, as a ruling in the alternative, the evidence concerning it's proffered legitimate reasons will be examined to see if Respondent has established that it would have reached the same result in the absence of sex discrimination. The Respondent's burden is one of persuasion and not merely one of producing evidence setting forth a legitimate reason for its action. See Conclusions of Law Nos. 31-32. For reasons discussed below, Respondent has failed to meet its burden of establishing by a preponderance of the evidence that Complainant Whaley would not have been hired in the absence of sex discrimination.
B. Respondent's Stated Reasons for Selecting Jack Carey:
48. During his testimony on why he selected Jack Carey for the position, Robert Eldredge focused on two factors: (1) Carey's "real wide experience in a number of things" and (2) "he had ambitions to promote himself through the field of parks and recreation as far as he could go, and I liked that attitude. . . . [He had] a spirit that had a lot of initiative in it and a lot of vitality in it." (Tr. at 238, 239-40). (See Respondent's Brief at 10).
49. The "wide range of things" included experience as an assistant store manager in a grocery store in Colorado, in swimming pool manager positions in Cedar Rapids and Lenox, Iowa, a ski lift operator in Colorado, and Recreation Director for the City of Pleasant Hill, Iowa. (CP. EX. # 14; R. EX. # 1; Tr. at 238-39).
C. The Lack of Credibility of Bob Eldredge's Testimony, Wherein
He Denied That He Told Complainant Whaley and Bill Beverly That
He Preferred to Have A Male In The Challenged Position, Also Adversely
Reflects on His Credibility With Respect To The Reasons He Has
Stated for Hiring Carey:
50. Bill Beverly's and Complainant Whaley's testimony, that Bob Eldredge made certain statements which constitute direct evidence of discrimination with respect to the challenged position, is credited for the reasons previously stated. See Findings of Fact Nos. 26-41. It follows that Bob Eldredge's denials of such statements, and his assertion that he would have hired Jack Carey if Carey were a female, are not credited and are unreliable. (Tr. at 248-49).
51. Mr. Eldredge's testimony with respect to his statements made to Whaley and Beverly appears to be willfully false and not the product of a poor memory. Mr. Eldredge's interview with Complainant Whaley occurred on "the first Monday after New Year's" in 1988. (Tr. at 66). Official notice is taken that this would be January 4, 1988. Fairness to the parties does not require that they be given the opportunity to contest this fact. The statement made by Mr. Eldredge to the complainant, wherein he told her that Carey was hired because he felt a strong male supervisor was needed in the position, was made on the following Monday, which was January 11, 1988. (CP. EX. # 8; Tr. at 68-69). The Complaint was filed on March 1, 1988. (Stip. No. 4). Eldredge's first denial of having made this statement was by affidavit filed by the City on March 30, 1988. (Although the existence and nature of the content of this affidavit were stipulated to, its truthfulness and accuracy were not). (Stip. No. 6). Eldredge would probably have had a clear memory of making his statement to Complainant Whaley at the time of this initial false denial, only 2 1/2 months after the statement was made. His testimony wherein he denies making this statement to Whaley, and a similar statement to Beverly, therefore, appears to be a continuation of this falsehood and not a product of poor memory.
52. In reaching this conclusion, other factors used in evaluating credibility have not been ignored. Mr. Eldredge's demeanor, for example, was that of an amiable witness. Nonetheless, a pleasant or confident demeanor does not mean a witness is truthful, especially when his testimony on material facts is contradicted by more credible evidence. See Conclusion of Law No. 26.
53. Such unreliable testimony with respect to these material facts also casts serious doubt on the truthfulness of Eldredge's testimony with respect to other material facts, including, but not limited to, his purported reasons for hiring Jack Carey for the position. Although the material facts falsely testified to need not be related to other testimony of a witness in order to discredit that testimony, (see Conclusions of Law Nos. 21-22), the false denial of having stated a hiring preference for a male obviously implies that the witness may give other false testimony with respect to his true reasons for a hiring decision. Indeed, Eldredge's statements to Whaley and Beverly contradicted the reasons given by Eldredge in his testimony by showing that the true reasons were different from that given in the testimony. Mr. Eldredge's testimony and a statement in his letter to Complainant Whaley, of January 11, 1988, are the sole evidentiary sources setting forth Respondent's legitimate reasons for preferring Jack Carey over Complainant Whaley. (CP. EX. # 7; Tr. at 238-40). (The letter mentions only Carey's experience and not his ambitious nature.) (CP. EX. # 7). In light of Eldredge's lack of credibility, his testimony and statements setting forth these reasons are not persuasive and are entitled to no weight.
D. Additional Reasons Why The Commission Is Not Persuaded That,
In The Absence of Discrimination, Respondent Would Have Hired
Jack Carey For The Challenged Recreation Supervisor Position Due
to Carey's Ambitious Nature:
1. Stipulations Pertinent to This Issue:
54. The parties stipulated that:
66. In interviewing the certified candidates, Mr. Eldredge asked some questions of non-employees that he did not ask employees simply because the employees were already on staff and familiar with the organization and work expectations of the Department.
67. Mr. Carey, when asked why he wanted the position, replied that he will always look for a job with greater responsibility than the one he presently has.
68. Mr. Eldredge's philosophy when hiring at the level of Recreation Supervisor was to look for someone who was ambitious and wanted to do better, someone who might be hungry for his chair.
(Stip. Nos. 66-68).
2. Although Eldredge Learned of Carey's Ambitious Nature By
Asking Him Why He Wanted the Job, Complainant Whaley Was Never
Asked Why She Wanted the Position:
55. As noted above, Carey's ambitious spirit was revealed when Eldredge interviewed Carey and asked him why he wanted the Recreation Supervisor position. (Stip. No. 67). When Eldredge interviewed Complainant Whaley, however, he never asked her why she wanted the position. (Tr. at 67-68). Eldredge's testimony to the contrary is not credited due to the impact of his willfully false testimony on other issues of material fact which were previously discussed. (Tr. at 271). See Findings of Fact Nos. 50-53.
56. Although Eldredge told her that he had a list of prepared questions, Whaley was asked only one question during her interview: "what I felt my employer owed me." (Tr. at 67). (This was also one of the questions asked of Carey). (Tr. at 170).
3. Eldredge's Testimony That Complainant Whaley Indicated That
She Wanted The Position In Order to Obtain Deferred Compensation
Is Also Not Credible:
57. Because his testimony that Whaley was asked why she wanted the job is not credible, Eldredge's testimony as to her response is also not credited. (Tr. at 269-270, 271). Eldredge asserted that Complainant Whaley informed him, at her interview, that she wanted the position in order to eligible to participate in a deferred compensation program which would help fund her daughter's college education. (Tr. at 269-70). In fact, Whaley never mentioned the deferred compensation program at her job interview. (Tr. at 68). The subject was first brought up by Eldredge at the time he informed her she had not obtained the position. (Tr. at 71- 72).
4. There is No Convincing Explanation for The Failure to Ask
Complainant Whaley At the Interview Why She Wanted The Job:
58. If an ambitious nature were determinative of this hiring decision, there is no convincing explanation which accounts for the failure to make a similar inquiry of Complainant Whaley. Eldredge did tell Complainant Whaley that he did not ask her the other questions because he knew her so well. (Tr. at 67). This behavior is contrary to Eldredge's testimony of how he handled interviewing candidates who were staff employees he had known for years:
Q. [By Mickle:] When you are dealing with persons on the [Civil Service] list who have been employees under your direction for some number of years, and dealing with other persons on the list who are unknown to you, can you share with us whether or not that creates any dilemma on your part?
A. [By Eldredge:] You have to really be careful of two things: You know your own people. You know the real good parts and you know the bad parts, and the other people are like complete strangers, and in a lot of ways I suppose they can start out--depending upon what the experience has been with the employees, they can start out with an advantage, not being known at all.
It's just necessary that when you interview everybody on the list, that that be like blanked out as much as any human being maybe can do that; but that's been a dilemma. That was a dilemma off and on in the 40 years that I was in the profession, and that's a condition you accept, and it's one of the responsibilities when you do the hiring process, that if you have applicants who you have worked with and you have strangers, you have to somehow work out in your mind, as much as you possibly can, that everybody is starting from zero, and we'll see who comes out best when you get through, and I guess that's kind of the way I looked at it, that there were just 11 people.
(Tr. at 236-37).
59. The question of why an applicant desires a position also does not fall within the category of questions concerning familiarity "with the organization and work expectations of the Department" which were not asked of staff employees who had applied for the position. (Stip. No. 66).
5. The Evidence In the Record Does Not Show That There Were
Other Factors Which Led Eldredge to Believe That Complainant's
Ambition Was Less Than That of Carey's:
60. The Respondent suggests, on brief, that Eldridge may have concluded that Complainant Whaley was not as ambitious as Jack Carey because her application was not accompanied by a resume or cover letter, while Carey's was. (Respondent's Brief at 13-14). There is, however, no evidence, either documentary or testimonial, which indicates that the presence or absence of a resume and cover letter played any part in the evaluation of the ambition, or lack thereof, of the respective candidates. Also, the application forms indicate, in bold print, that "[r]esumes will not be accepted in lieu of completion of this part, or any part of this application." (CP. EX. # 5, 14).
61. Complainant Whaley was previously offered appointment to Recreation Supervisor positions in 1976 and 1979. (Stip. No. 51; CP. EX. # 9, 10; Tr. at 80-84). She waived these appointments for a variety of reasons including giving previously laid off Recreation Supervisors a chance for re-employment and fulfilling her commitment to programs at the Four Mile Community Center. (CP. EX. # 10; Tr. at 80- 84). Eldredge informed Complainant Whaley in 1976 that turning down the particular Recreation Supervisor position then open would not harm her chances of obtaining other such openings. (Tr. at 82-83). Eldredge confirmed in his testimony that a candidate's waiver of appointment to prior openings would have no impact on how he would fill future openings. (Tr. at 233).
6. Under These Facts, The Failure To Ask Whaley Why She Wanted
the Job, When Such An Inquiry Was Made of Jack Carey, Renders
Unpersuasive The Argument That Respondent Would Have Selected
Carey In Any Event Due To His Ambitious Nature:
62. Although the parties stipulated that Eldredge had a philosophy of looking for ambitious candidates for positions at this level, they did not stipulate that this philosophy was followed in this instance. (Stip. No. 68). Despite Eldredge's philosophy, this difference in treatment of Whaley and Carey in the interview process casts doubt on whether this reason would have led to the hiring of Carey by the employer in a nondiscriminatory hiring process. If it were so important to Eldredge to learn a candidate's reasons for wanting the position, and, thereby, to learn something of the candidate's ambitions, this question, or other inquiry seeking to determine their goals and ambitions, would have been asked of all the candidates.
63. During her testimony, Whaley was given the opportunity she was never given during the interview, i.e. she was asked why she wanted the job. (Tr. at 61-62). Her response shows that she also was ambitious and sought new responsibilities and challenges:
Q. [By Autry:] Were you interested in this job?
A. [By Whaley:] Oh, very much.
Q. [By Autry:] Why was that?
A. [By Whaley:] Well because there was three responsibilities. The No. 1 responsibility was senior citizens, which I felt I had a very good background in, and I really enjoyed doing. The second was the special populations, which of course, I told you I started the program, and then I had to give it to Chris. Actually, Chris assumed it when I was moved to Four Mile. The third was the community centers, which was, you know, the love of my life. I spent 13 years out there, and I really thought that there were things going in the community centers that I felt I could help with., you know, go in there and straighten up and change some things. We all have those motivations and goals, I guess.
Q. [By Autry:] How were you feeling about your job as a community center supervisor at that time?
A. [By Whaley:] I felt I was doing an adequate job. I felt bored, and I had told Mr. Eldredge this in the past, that I just, you know, you get to the point where you feel like you've done about everything you can do. Everything comes easy that should be a challenge, and it isn't, so all of a sudden it becomes almost too easy to get up and go to work, the same old job all the time. Plus when I lost RAP funding, you kind of lose some excitement when you have to beg for every dollar that you have to spend out there.
(Tr. at 61-62).
64. The Respondent has not shown what its evaluation of Whaley and Carey's qualifications would have been, with respect to their respective ambitions and goals, if (a) Complainant Whaley had actually been asked her reasons for wanting the job and (b) if her response had been compared to Mr. Carey's in a nondiscriminatory hiring process. Assuming for the sake of argument that the legitimate reasons expressed by Robert Eldredge actually played a role in the decision, Respondent has failed to present evidence separating the influence of the legitimate and illegitimate reasons for the decision. Without such a showing, the Commission is not persuaded that, in a nondiscriminatory interview and selection process, Carey would still have been hired in preference to Whaley. See Conclusion of Law No. 41.
E. Summary of Reasons Why Respondent Has Not Sustained Its
Burden of Proving That It Would Have Not Hired Complainant Whaley
Absent The Discrimination Because of Jack Carey's Ambitious Nature:
65. For the following reasons, the Respondent has not sustained its burden of proving it would not have hired Complainant Whaley absent the discrimination because of Jack Carey's ambitious nature: First, this reason relies on the testimony and statements of Robert Eldredge which are not credible. Second, Robert Eldredge learned of Carey's ambitions by asking him why he wanted the job, an inquiry which was not made of Complainant Whaley. Third, Eldredge's testimony that Whaley indicated during the interview that she wanted the job because she wanted to obtain deferred compensation is also not credible. Fourth, there is no convincing explanation as to why no inquiry was made of Whaley as to her reasons for wanting the position. Fifth, there is no evidence in the record demonstrating that other factors, such as the presence or absence of cover letters or resumes, led Eldredge to believe that Whaley was not as ambitious as Carey. Sixth, the Respondent has not shown what its respective evaluation of Whaley's and Carey's ambitions would have been in a nondiscriminatory hiring procedure. In the absence of such evidence separating out the legitimate and illegitimate motives for its action, Respondent has not met its burden of persuasion on this issue.
F. Additional Reasons Why The Commission Is Not Persuaded That,
In The Absence of Discrimination, Respondent Would Have Hired
Jack Carey For The Challenged Recreation Supervisor Position Due
to His Experience:
1. Introduction:
66. Under the mixed motive analysis, the adjudicator must decide, not whether one candidate is preferable to another, but whether Respondent has met its burden of persuasion. In determining whether this burden has been met, however, reference may be made to the respective qualifications of the candidates in light of the employer's requirements. See Conclusions of Law No. 36-40. Respondent has failed to meet its burden in part because the statement of Robert Eldredge that he hired Carey due to his wide range of experience has been found to not be credible. See Findings of Fact Nos. 48-53. The following comparisons of the Carey's and Whaley's qualifications to the requirements of the job, as set forth in the job description and in testimony, and to the reasons related to experience given in the testimony, also support the conclusion that Respondent has not met its burden.
2. Summary of Complainant Whaley's Experience:
67. At the time of her application, on October 23, 1987, Complainant Whaley had held the following positions:
Position Employer Hours Worked Dates Worked In Position Community Center Supervisor City of Des Moines Full Time 2/15/76-10/23/87 and continuing. Recreation Supervisor City of Des Moines Full Time 10/28/74-2/14/76 Recreation Specialist " 30-40 hrs/wk. 06/74-08/74*
(Summer 3 mos)
Recreation Specialist " 30-35 hrs/wk. 10/73-03/74*
(Winter 6 mos)
Recreation Specialist " 30-40 hrs/wk. 06/73-08/73*
(Summer 3 mos)
Recreation Specialist " 30-35 hrs/wk. 10/72-03/73*
(Winter 6 mos)
Recreation Specialist " 30-40 hrs/wk. 06/72-8/72*
(Summer 3 mos)
Recreation Specialist " 30-35 hrs/wk. 10/71-03/72*
(Winter 6 mos)
Recreation Specialist " 30-40 hrs/wk. 06/71-08/71*
(Summer 3 mos)
Recreation Specialist " 30-35 hrs/wk. 10/70-03/71*
(Winter 6 mos)
Recreation Specialist " 30-40 hrs/wk. 06/70-08/70*
(Summer 3 mos)
Recreation Leader " 45 hrs/wk. 06/69-08/69*
(Summer 3 mos)
Recreation Leader " 45 hrs/wk. 06/68-08/68*
(Summer 3 mos)
Secondary Education Teacher Des Moines Christian School Full Time 06/70-06/73
* This represents the months actually worked in these part
time positions as indicated by Complainant Whaley's testimony
and her 1974 application for Recreation Supervisor.
** Whaley was transferred to the Community Center Supervisor
position when the Recreation Supervisor position she occupied
was eliminated.
***The reference on Whaley's application to a part-time "Recreation
Supervisor" position appears, based on her testimony, to
actually refer to this "Recreation Specialist" position.
In keeping with stipulation number 47, all part- time employment
with the city after June 1, 1970 is designated "Recreation
Specialist."
(CP. EX. # 5; Stip. Nos. 47-50; Tr. at 13-14, 16-19).
68. The duties required by these positions were described on Whaley's application form as follows:
1. [Community Center Supervisor]: See that building is open and the everything (including mechanical) is working properly. Arrange all rentals, classes, meetings, anything with buildings or grounds. Manage building including recreation leaders, custodians, secretary, instructors. Supervise Neighborhood Development & Polk County Use of building. Manage $180,000 budget. Set up and conduct classes & programs including purchasing materials & hiring instructors. Administer discipline to disruptive participants.
2. [Recreation Supervisor]: Had office at Wilkie House. Set up programs for whole Woodland Wilkie Area including schools. Supervised neighborhood centers (both summers and winters). Created and supervised a program for handicapped. Had a special Senior Citizen group. Met several times a week with RAP [Recreational Activity Program] boards, NP [apparently "Neighborhood Program"] boards, Wilkie House Board, Schools.
3. [Recreation Specialist]: Visited and supervised area parks and school centers. Supervised all personnel for these centers. Dealt with disciplinary problem[s]. Met with area groups and agencies.
4. [Recreation Leader]: Set up and conducted craft and gym-type activities for all age groups in the recreation centers.
5. [Secondary Education Teacher]: Taught Jr. High - Basic math, Algebra, History, Economics. Served as Vice-Principal. Also did books for school to help part-time secretary.
(CP. EX. # 5). Complainant Whaley had received a Bachelor of
Science degree in secondary education in June 1970. (CP. EX. #
5).
69. The job description for Community Center Supervisor is also probative evidence of Complainant Whaley's responsibilities in that position:
Definition:
Under general direction, to organize and direct the overall recreation program for a Community Center and to do related work as required.
Examples of Duties:
Plans and administers diversified recreational programs at the Community Center level suited to the needs of the Center's participants and potential participants;
Directs recreational events and programs at the Center;
Assigns, supervises, and evaluates Recreation Leaders and other Center personnel;
Schedules and supervises use of Center facilities;
Studies and analyzes Center recreation programs, participants and attendance and related problems; prepares recommendations to meet community needs revealed;
Coordinates Center staff and neighborhood group activities for full utilization of Center resources;
Receives and resolves participant inquiries or complaints;
Serves as liaison for community groups and Park and Recreation Department;
Inspects Center equipment and program activities for compliance with safety regulations and corrects any unsafe conditions;
Maintains and submits to the Recreation Superintendent financial, personnel and Center program activity reports;
Conducts staff meetings and in-service training for Center personnel;
May act for Recreation Supervisor in his/her absence.
(CP. EX. # 2).
3. Summary of Jack Carey's Experience:
70. At the time of his application, on October 27, 1987, Jack Carey had held the following positions:
Position
Position Employer Hours Dates Worked In Position Parks & Recreation Director City of Pleasant Hill Full Time 11/23/86-10/27/87 and continuing Customer Service Rep. ACCO Unlimited Full Time 04/86-11/86 Store Manager The Grocery Store Full Time (Initially Part Time) 08/20/82-3/15/86 Pool Supervisor Cedar Rapids Parks & Recreation Full Time 5/15/82-8/15/82 Ski Lift Operator Breckenridge Ski Area 40+ hrs/wk. 11/81-4/82
(Winter 6 mos)
Aquatic Director and Pool Manager City of Lenox Park Comm'n Part Time 04/30/81-09/15/81
(Summer 4.5 mos)
Ski Lift Operator Breckenridge Ski Area 40+ hrs/wk. 11/80-4/81
(Winter 6 mos)
Aquatic Director City of Lenox Park Comm'n Part Time 04/30/80-09/15/80
(Summer 4.5 mos)
Wrestling Coach City of Des Moines 8 hrs/wk. 12/1/79-2/15/80
(Winter 2.5 mos)
(R. EX. # 1; C. EX. # 14; Tr. at 171-73).
71. The duties required by these positions were described on Carey's application form, and an attachment thereto, as follows:
1. [Parks & Recreation Director]: Development and implementation of comprehensive Park & Recreation Departmental programs for the residents of Pleasant Hill. [CP. EX. # 15]. [R]esponsible for providing programming for all age groups. . . . [W]orking with area sports organizations, assisting and coordinating their efforts to offer a unified and consistent recreation program. [R. EX. # 1].
2. [Customer Service Rep.]: Customer service representative and telemarketer.
3. [Store Manager]: Grocery Manager. Store Manager in charge of total operation of the store in particular the non-perishable grocery department. Responsible for the hiring & firing of store personnel, inventory marketing and ordering and opening & closing of the business on a daily basis.
4. [Pool Supervisor]: Pool supervisor, responsible for the operation and supervision of the pool staff during open hours and swimming lessons.
5. [Ski Lift Operator]: Lift operator, responsible for total operation and personnel of a ski area chairlift. Loading/unloading chairs, customer entertainment and relations.
6. [Aquatic Director]: Aquatic director, responsible for the operation and supervision of the pool and staff. Hiring of employees, development and implementation of programs for the residents of Lenox.
7. [Wrestling Coach]: I was in charge of the Brody Jr. High Center as a wrestling instructor. I supervised one other wrestling instructor assigned to this center and together we coached approximately 25 youth that signed up for the program. [R. EX. # 1].
(CP. EX. # 14; R. EX. # 1). Jack Carey had received a Bachelor of Arts degree in recreation in May of 1980. (CP. EX. # 14; R. EX. # 1). As part of his college education he had done an unpaid internship with the City of Des Moines at approximately the same time he was a wrestling coach. His responsibilities included developing two programs, one of which was a wrestling tournament, and assisting the staff with Christmas holiday duties. (Tr. at 174-75).
4. A Comparison of Complainant Whaley's and Jack Carey's Respective
Experience In the Areas Emphasized By Respondent's Job Description
Indicates Respondent Has Not Met It's Burden of Establishing That
The Same Result Would Have Been Reached In a Nondiscriminatory
Hiring Process:
72. The Respondent's job description for Recreation Supervisor places an emphasis on supervisory experience as a qualification and on supervisory, planning, and organizational duties in recreational programs. (CP. EX. # 4). The minimum qualifications were:
Graduation from college in recreation or closely related field, and two years of experience in a supervisory capacity in recreation or a closely related field.
(CP. EX. # 4).
73. The duties of the Recreation Supervisor position, as expressed in the job description, are:
Under general direction, to assist in planning, organizing, and directing the overall recreation program; to develop a specialized portion of the total program or to lead a specialized recreational activity; supervises the work of playground and community center supervisors and recreation leaders; assists in planning, organizing, and directing centers, special projects or groups, and summer playgrounds; assists in the hiring of recreation leaders, securing of facilities for activities and planning of programs; conducts staff meetings and in-service training; maintains necessary records of activities; works with community organizations to obtain their interest in community recreation; conducts special programs at recreation centers; investigates special recreation problems and makes recommendations; performs related work as required.
(CP. EX. # 4).
74. Further detail on Complainant Whaley's and Jack Carey's qualifications are given below. See Findings of Facts Nos. 76-99. The application materials and testimony summarized above, however, indicate that Complainant Whaley had longer and more responsible experience in supervising, planning, and organizing recreational activities than Jack Carey. The evidence above simply does not support the proposition that Respondent has shown, by a preponderance of the evidence, that, in a nondiscriminatory hiring process, Respondent would have chosen Carey over Whaley due to his experience.
5. The Challenged Recreation Supervisor Position Had Three
Major Areas of Responsibility:
75. As previously noted, it was stipulated that the work assignments required for the challenged Recreation Supervisor position included three areas: (1) Direct responsibility for the operation of all community centers; (2) the special population program for the physically and mentally handicapped; and (3) the bus trips programs. See Finding of Fact No. 11. The bus trips programs were actually just a part of the senior citizens programs for which this Recreation Supervisor position, formerly held by Christine Larson since 1974, was responsible. (Stip. at 62-63; Tr. at 11, 61). The community center supervision responsibility was added to the position with this opening. (Tr. at 60). This involved monthly meetings with center supervisors concerning activities and policy matters, compilation of data on these topics, and visits to the centers. (Tr. at 164). Thus the three major responsibilities for the challenged position were: (1) Community center supervision; (2) Special populations programs; and (3) Senior Citizen's programs. (Tr. at 161).
6. When the Respective Objective Qualifications and Experience
of Complainant Whaley and Mr. Carey Related to These Three Major
Areas of Responsibility Are Compared, the Commission Is Not Persuaded
That the Preponderance of the Evidence Shows That, In the Absence
of Discrimination, Carey Would Have Been Hired In Preference to
Whaley:
76. When the respective objective qualifications and experience of Complainant Whaley and Jack Carey related to these areas are compared, it cannot be said that Respondent City of Des Moines has demonstrated by the preponderance of the evidence that Carey would have been hired over Whaley in a nondiscriminatory hiring process due to his wide range of experience:
77.
a. Community Center Supervision:
(1) Complainant Whaley:
(a) Whaley had been a Community Center Supervisor for eleven years and eight months. She had started as supervisor of the Four Mile Community Center in 1976. This was at the very beginning of the Community Center program, shortly after the Four Mile Center was constructed. (Stip. No. 50; CP. EX. # 5; Tr. at 199-200, 201-02). The duties of this position have already been summarized. See Findings of Fact Nos. 68-69. When Ms. Whaley began this position she supervised a full-time and part-time custodian, a part- time clerical helper, and 2 to 3 recreation leaders. After subsequent budget cuts, she supervised 1 full-time custodian, a part-time clerical helper and 2 or 3 recreation leaders. Throughout this time, she also supervised teachers contracted to teach specific classes. (Tr. at 55-56). Her budget during that time varied from a low of $50,000 to $60,000 to a high of $80,000 to $90,000. She also had a separate Recreational Activity Program (RAP) budget which started at $18,000 and was subsequently decreased. (Tr. at 37). Her nine evaluations by Robert Eldredge for the period from October of 1978 to February of 1988 always gave her an "Over- all Rating" of "outstanding", i.e. "performance consistently exceeds standard requirements." Throughout this time, Eldredge also always rated her supervisory ability as "outstanding," i.e. "Excellent in planning and organizing effectively. Excellent in training and developing employees fully. Accepts responsibility readily and capably. Has long range program." During her entire employment as Community Center Supervisor, Whaley, ranked in 8 categories on a scale of "Unsatisfactory," "Improvement Required," "Standard" and "Outstanding," never ranked below "Standard" in any category. (CP. EX. # 3).
(b) When Whaley was a Recreation Supervisor, she supervised neighborhood centers during both the summers and winters. She also created and supervised a program for the handicapped. She also supervised a special senior citizens group. (CP. EX. # 5). Her initial budget was $20,000 in 1974. (Tr. at 23-24).
(c) As a Recreation Specialist, Whaley supervised 20 area parks in addition to school centers. (CP. EX. # 5; Tr. at 20). This involved the supervision of somewhere from 20- 25 employees during the summers of 1971-1973 to 40-50 employees. (CP. EX. # 14; Tr. at 21).
(d) As a Recreation Leader, Whaley directed the recreation programs at Bates Park and Stone Park during the summers of 1968 and 1969. This involved setting up and conducting craft and gym type activities. (Stip. No. 47; CP. EX. # 1, 5).
(2) Jack Carey:
(a). There is no evidence in the record indicating that, at the time he applied, Jack Carey had ever worked out of or supervised any of the five community centers, i.e Four Mile, Pioneer-Columbus, Southeast, Model Cities, and Logan. (Tr. at 9, 201-02). There were no community centers at Pleasant Hill. His budget was somewhere between $75,000 and $100,000. (Tr. at 177). Official notice is taken that, according to impartial census data from the Job Service of Iowa, the 1980 population of Pleasant Hill Iowa was 3,493. The parties agreed at hearing that official notice would be taken of this fact. (Tr. at 327-28).
(b). During his year at Pleasant Hill, Carey developed and implemented park and recreation programs. He supervised two part-time employees during the summer and hired instructors for specific programs. (Tr. at 177-78). Carey had also supervised an unknown number of staff during his pool supervisor/acquatic director and ski lift jobs. During those respective positions, he had been responsible for the operation of the pools and ski lift. He had also supervised another wrestling coach while in that part-time position. (R. EX. # 1; C. EX. # 14).
(c) In non-recreational employment, Carey had also supervised three or four part-time people during the winter months while store manager at The Grocery Store. The rest of the time he worked alone. He had supervised the total operation of the store. (R. EX. # 1; C. EX. # 14; Tr. at 173-74).
78.
b. Special Populations Programs:
(1) Complainant Whaley:
(a) "Special populations programs" refers to programs for disabled persons. (Tr. at 11). The Special Populations Program was assigned to Chris Larson, the incumbent of the challenged Recreation Supervisor position, when Complainant was moved to the Community Center Supervisor position. (Stip. No. 62; Tr. at 11, 62).
(b) Complainant Whaley created and supervised the Special Populations Program when she was originally Recreation Supervisor between 1974 and 1976. (Stip. No. 48- 49; CP. EX. # 5; Tr. at 26, 62). She set up two handicapped programs, which served sections of 50 to 60 disabled persons at a time, most of whom came from group homes in the area. She modified game and craft activities so they would be appropriate and safe for these client populations. (Tr. at 26-27). She had also hired a disabled person who helped coordinate the program. She also supervised Recreation Leaders in the program. (Tr. at 27-28).
(2) Jack Carey:
(a) While Carey was Parks and Recreation Director at Pleasant Hill, that department had no programs for the handicapped. (Tr. at 186).
(b) Carey had experience of some kind working with the handicapped while he was an intern during college. The extent and nature of this experience are not reflected in the record. He then also participated in a program which matched up college students with disabled clients to act as a peer group, role-model-type relationship. (Tr. at 186).
79. c. Senior Citizens Programs:
(1) Complainant Whaley:
(a) Bob Eldredge recognized that "seniors" were one of Complainant Whaley's areas of expertise. (Tr. at 241). Eldredge also recognized "she worked well with seniors." (Tr. at 243).
(b) As Community Center Supervisor, Whaley hired and supervised a senior citizen specialist. With her, Whaley set up a once a week recreational program for seniors. This included games, speakers, music, and potlucks. Congregate meals have been served five days a week at Four Mile Community Center since 1976. Other senior citizen programs at the center included crafts such as needlepoint and knitting. There were also card, pool and chess tournaments and senior citizens exercise classes. (Tr. at 38-40). In addition, Whaley also conducted at least two bus trips per summer for senior citizens for a minimum total of 24 trips. These were day-long trips to locations as far away as the Amanas. These were large, commercial buses which held 40-47 passengers. On many occasions, two buses or a bus and a van were taken. (Tr. at 40-42). Elderly programming also included a Christmas party for 200-350 seniors and smaller parties for other holidays. (Tr. at 42-44).
(c) As Recreation Supervisor, Whaley and a coordinator were responsible for providing recreational programming for a senior citizens' congregate meals site serving 50-60 people five days a week. This programming involved providing speakers, entertainment, or games such as cards, chess and checkers. (CP. EX. # 5; Tr. at 24-26).
(2) Jack Carey:
(a) Bob Eldredge indicated Jack Carey was not "known for having any one area of expertise," but noted "his overall experience in a lot of these areas through his--all the jobs he had." (Tr. at 243).
(b) Jack Carey's first experience with doing recreational programming for senior citizens was when he was Parks and Recreation Director for Pleasant Hill in 1986-87. (Tr. at 180). This included a weekly cookies and punch one hour meeting in a community room with card playing or other games. After May of 1987, Carey also coordinated monthly senior citizen bus trips in the Des Moines area. (Tr. at 181). These trips were taken in a school bus which held 15 to 20 people. (Tr. at 182).
80. In summary, Complainant Whaley's experience, with respect to the three major areas of responsibility for the challenged Recreation Supervisor position, is longer, more extensive, more relevant, and involved greater responsibility than the experience of Jack Carey.
7. When A Comparison Is Made of Those Skills, Knowledge, and
Responsibilities Identified by Respondent as Being Possessed By
Carey Due to His "Wide Range of Experience" to Those
Possessed By Whaley, the Commission Is Not Persuaded That the
Preponderance of the Evidence Shows That, In the Absence of Discrimination,
Carey Would Have Been Hired In Preference to Whaley:
81. In his testimony, Robert Eldredge gave Carey's "real wide experience" as being a reason for his selection. (Tr. at 238). The credibility problems with this reason were discussed previously. See Findings of Fact Nos. 50-53. While discussing this reason, Eldredge identified specific skills, knowledge and responsibilities which he associated with some of the past jobs held by Jack Carey. (Tr. at 238-29). Set forth below, however, is an examination of Carey's and the Complainant's past jobs and skills which demonstrates that her skills, knowledge, and responsibilities in these areas were as great or greater than Carey's. Under these circumstances, the Commission is not persuaded that, in a nondiscriminatory hiring process, the same decision would have been made.
a. Logistical and Marketing Skills:
82. Eldredge noted that, during Carey's employment as store manager at The Grocery Store, he would have had experience with "inventorying, ordering, detail work, actually marketing, those kinds of things are excellent skills to have whether you talking about a head of lettuce or a macrame class, to know how to advertise and market and logistically plan programs, I thought that was excellent." (Tr. at 238-39).
83. Whaley's extensive logistical and marketing skills are shown by a mass of evidence in the record. As Community Center Supervisor, Whaley was expected "to plan and administer diversified recreational programs . . . suited to the needs of the Center's participants . . .; [s]chedules and supervises use of Center facilities; [c]oordinates Center staff and neighborhood group activities for full utilization of Center resources; [m]aintains and submits to the Recreation Superintendent financial, personnel and Center program activity reports." (CP. EX. # 2).
84. Complainant Whaley made out budget requests and was responsible to allot and plan carefully so as not to exceed the budget. (Tr. at 36-37). Whaley submitted requisitions and ordered all the supplies for the community center, including custodial and recreational supplies. (Tr. at 33- 34).
85. Whaley also planned and organized a multitude of classes, special events, bus trips, parties, bazaars (misprinted as "bizzares" in the transcript) and other activities serving hundreds of children, adults, and senior citizens. (Tr. at 38-55). These included the senior citizen events previously discussed such as the Christmas party drawing 200-350 people. Also included are events for children such as Easter egg hunts, a Christmas party drawing 150 children, and bus trips. (Tr. at 42, 45, 50). There were four "sessions" a year with 30 classes per session not specifically directed to senior citizens. (Tr. at 47, 49- 50). In addition, Whaley organized a summer carnival which drew 650 people. (Tr. at 51). Two bazaars per year, featuring craft or rummage-type sales, were organized to raise money for recreational programs. These drew crowds of up to 1,000 people. (Tr. at 52-54).
86. With respect to "detail work", it should be noted that Eldredge always acknowledged in her nine evaluations covering the period from October of 1978 to February of 1988 that Whaley was "outstanding" with respect to "quality of work performed." This meant that she "consistently shows the highest degree of accuracy, neatness, completeness, thoroughness, excellent craftsmanship." With respect to logistically planning programs, as previously noted, Whaley's ratings during this period always indicated she was "excellent in planning and organizing effectively." (CP. EX. # 3).
87. Jack Carey's experience as a grocery store manager did include the weekly ordering of nonperishable groceries, stocking and resetting the shelves twice a week, and keeping the inventory current. (CP. EX. # 14; Tr. at 173).
b. Some Knowledge of the Areas of Responsibility Involved With the Different Recreation Supervisor Positions:
88. Eldredge testified that:
[Carey] had been involved with swimming pools. He had been involved with skiing. He had been involved as an intern with us not only in sports, with the wrestling bit, and that sort of thing, but an intern with our department who also spent some time with the other recreation supervisors, so that he got a taste of what areas of responsibility were involved in all those jobs.
(Tr. at 239). While this testimony mentions involvement with swimming pools and skiing, it seems to emphasize Carey's internship and the knowledge he acquired with respect to the recreation supervisor jobs. If the paragraph is intended to also refer to Carey's "taste" of the areas of responsibility pertinent to skiing and swimming pools, there is no evidence in the record indicating why such knowledge would be pertinent to the challenged Recreation Supervisor position or why such a "taste" would outweigh the Complainant's far greater knowledge of the Des Moines Park and Recreation system and the Recreation Supervisor position which may be inferred from Complainant Whaley's far greater experience with that system.
89. It may be and is reasonably inferred that Whaley, based on her over 19 years of experience with the Park and Recreation Department, including a year and four months as a Recreation Supervisor, had considerably more than "a taste" of what areas of responsibility were involved in all the Recreation Supervisor jobs. See Findings of Fact Nos. 67-69, 77-79. In addition, Whaley would attend monthly staff meetings also attended by Recreation Supervisors. (Tr. at 146, 149, 150). At these meetings, staff would become "somewhat familiar with each other's operations just because of the way that staff meetings were conducted." (Tr. at 148). Whaley's testimony also reflected knowledge of the responsibilities of the Recreation Supervisors. (Tr. at 10- 11, 61-62).
90. Jack Carey's internship responsibilities with the City of Des Moines consisted of (a) developing a wrestling tournament and one other program, the nature of which is not reflected in the record, and (b) assisting the staff with Christmas holiday duties. (Tr. at 174-75).
c. Park Responsibilities:
91. While discussing his reasons for hiring Carey, Eldredge also testified, "[H]e got the job at Pleasant Hill as park and recreation director, so he had park responsibilities." (Tr. at 239). Eldredge attached no significance to the fact Carey was the first Parks and Recreation Director at Pleasant Hill. (Tr. at 241).
92. Complainant Whaley also had experience with park responsibilities. In addition to managing the Four Mile Community Center building, which included a full-size college gym, a multi-purpose game room, officers, and lockerooms, Whaley also managed the small park that surrounds the center. The park included an open shelter, some picnic tables, volleyball and horseshoes. (Tr. at 31-32).
93. As a Recreation Specialist, Complainant had been responsible for the supervision of 20 parks and 20-50 employees at those parks during the summers from 1970 to 1974. As a Recreation Leader, she had been responsible for summer recreation activities at Bates Park and Stone Park in 1968 and 1969. See Finding of Fact No. 77.
94. Jack Carey, during his one year at Pleasant Hill, Carey developed and implemented park and recreation programs. He supervised two part-time employees during the summer and hired instructors for specific programs. There were a total of two parks at Pleasant Hill. (CP. EX. # 14; R. EX. # 1; Tr. at 177-78).
d. Ability to Interact With Different Kinds of People:
95. While comparing Complainant Whaley and Jack Carey, Robert Eldredge also testified that:
[Whaley and Carey] were both excellent. I think the biggest comparison . . . that hit my mind is Sandy's experience, at least all her years as the community center supervisor, had been in many cases circumscribed by a neighborhood boundary, and Jack Carey had been able to work far afield in a lot of areas that have validity in parks and recreation and in a lot of places and work with a lot of different kinds of people, which I felt was a distinct advantage in a job that would have citywide-immediate citywide responsibility.
(Tr. at 241).
96. The comparative "validity in parks and recreation" of Complainant Whaley's and Jack Carey's work experience with respect to (a) the Respondent's job description for Recreation Supervisor, (b) the major responsibilities of the job as reflected by stipulation and the testimony in the record, and (c) by the specific qualities demonstrated by Carey's experience which are mentioned in Eldredge's testimony have already been presented. By these measures, Whaley's total experience was more relevant to the Recreation Supervisor job than Carey's. See Findings of Fact Nos. 67- 94.
97. The record shows that Complainant Whaley had the ability to work with all different kinds of people. All but one of Eldredge's ten evaluations of Complainant Whaley for the period from October of 1977 to February of 1988 always gave her the highest rating of "outstanding" with respect to "Relationships with People" i.e. "Extremely able to deal with people. Radiates enthusiasm and cheerfulness. Always making friends." The evaluation for October of 1979 to October of 1980 gave her the second highest rating of "standard", i.e. "Is tactful, helpful, courteous, friendly, agreeable, successful in dealing with other people. Offers to help others." (CP. EX. # 3).
98. As Community Center Supervisor, Complainant dealt with a wide variety of people, not all of whom could have been from the Four Mile Community Center neighborhood. These included dozens of instructors for topics ranging from cooking to belly-dancing. (Tr. at 47-49). As previously noted, the events and activities organized by Whaley drew hundreds of people. See Findings of Fact Nos. 75, 89. The seniors Christmas party was so popular that it drew persons from as far away as Marshalltown. That party had to be coordinated with the parties at the other community centers because, otherwise, it would also draw all the people from their areas. (Tr. at 44).
99. As previously noted, as Recreation Specialist, Whaley supervised 20 parks in Des Moines. As Recreation Leader, she worked in two other parks. These positions also provided her with the opportunity to interact with a wide variety of people. See Finding of Fact No. 77.
G. Summary of Reasons Why Respondent Has Not Sustained Its
Burden of Proving That It Would Have Not Hired Complainant Whaley
Absent The Discrimination Because of Jack Carey's Wide Range of
Experience:
100. For the following reasons, the Respondent has not sustained its burden of proving it would not have hired Complainant Whaley absent the discrimination because of Jack Carey's wide range of experience: First, this reason relies on the testimony and statements of Robert Eldredge which are not credible. Second, a comparison of Complainant Whaley's and Jack Carey's respective experience in the areas emphasized by respondent's job description for Recreation Supervisor does not support the conclusion that Carey would have been hired in a nondiscriminatory process. Third, a comparison of Whaley's and Carey's experience with respect to the major areas of responsibility for this position also does not support such a conclusion. Finally, a comparison of Whaley's and Carey's skills, knowledges, and responsibilities to those mentioned by Eldredge when discussing Carey's past jobs and the reasons for hiring him does not support the conclusion that Carey would have been hired in a fair process.