BEFORE THE IOWA CIVIL RIGHTS COMMISSION

MAXINE FAYE BOOMGARDEN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

v.

HARDIN COUNTY VETERANS' COMMISSION BOARD and HARDIN COUNTY BOARD OF SUPERVISORS, Respondents.

CP # 07-86-14926

CONCLUSIONS OF LAW:

A. Jurisdiction:

1. Maxine Boomgarden's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 216.15(11)(formerly 601A.15(11). See Finding of Fact No. 1A. All the statutory prerequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code 216.15. See Finding of Fact No. 2A.

2. Maxine Boomgarden's complaint is also within the subject matter jurisdiction of the Commission as the allegation that the Respondent failed to hire her because of her sex falls within the statutory prohibition against unfair employment practices. Iowa Code § 601A.6 (1985). "It shall be a . . . discriminatory practice for any person to refuse to hire . . . or to otherwise discriminate in employment against any applicant . . . or employee because of the . . . sex . . .of such applicant or employee." Id.

B. Stipulated Facts:

3. There are a number of facts which have been stipulated to by the parties. See Finding of Fact No. 1. A "stipulation" is a "voluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate [the] need for proof." BLACK'S LAW DICTIONARY 1269 (5th ed. 1979). Stipulations as to fact are binding on a court, commission or other adjudicative body when, as in this case, there is an the absence of proof that the stipulation was the result of fraud, wrongdoing, misrepresentation or was not in accord with the intent of the parties. In Re Clark's Estate, 131 N.W.2d 138, 142 (Iowa 1970); Burnett v. Poage, 239 Iowa 31, 38, 29 N.W.2d 431 (1948).

C. Rule Holding Parties Are Bound By Allegations Made in Pleadings and On Brief:

4. As noted in the findings of fact, Respondents identified on brief only two purportedly legitimate non- discriminatory reasons for its action in failing to hire Maxine Boomgarden, i.e. politics and the veterans preference. They admitted on brief and in their pleadings that the veterans preference had been exercised in the selection of David Roelfs. See Findings of Facts No. 45, 84. An employer making such allegations on brief or in a pleading before a court or administrative agency acting in an adjudicative capacity is bound by such allegations. Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991)(citing Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)).

5. Larson was an unemployment insurance case. Id. The Court held that an employer was bound by the reasons for termination of an employee which were stated in its brief filed with the Employment Appeal Board. Id. Since the employer had stated that the employee was terminated for inability to do work, a reason which would not disqualify the employee for unemployment benefits, it was bound by this statement. Id. Although the employee could have been terminated for misconduct in misrepresenting her qualifications, she was actually terminated for inability to do the work as admitted, on brief, by the employer. Id. Based on this admission, benefits were granted although the employer attempted to argue that the employee was terminated for misconduct. Id.

6. When an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded, it binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991). Thus, the Commission must take as true the facts that (1) respondents assert, and are therefore limited to, only the two reasons cited on their brief as being their legitimate, non-discriminatory reasons for failing to hire Complainant Boomgarden, and (2) that Respondents did exercise a veterans preference in hiring David Roelfs. See Findings of Facts No. 45, 46, 84.

7. This does not mean that any respondent to a charge of discrimination articulates a legitimate non-discriminatory reason merely by identifying it on brief. That must be done through the production of evidence which, assuming it were believed, would set forth a lawful, non-discriminatory reason for the action alleged to be due to discrimination. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 517 (Iowa 1990). Rather, the Respondents' legitimate non-discriminatory reasons are limited to those set forth on brief, because by identifying only certain reasons on brief, the Respondents have admitted that those are the only reasons they may have articulated. The Respondents are bound by that admission. See Larson at 572. This admission is binding on the Commission it its adjudicative capacity and it may, therefore, consider only those reasons so identified on brief. See Id.; Grantham, 257 Iowa at 230-31,

D. Official Notice:

8. Official notice may be taken of all facts of which judicial notice may be taken and of matters within the specialized knowledge of the agency. Iowa Code § 17A.14(4). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980). Judicial notice may be taken of all papers properly issued or filed or returned in the case then before the adjudicator. Slater v. Roche, 148 Iowa 413, 418, 126 N.W. 921, 927 (1910). See also C. McCormick, McCormick on Evidence 927 (2nd ed. 1984). See Finding of Fact No. 36. Judicial notice may also be taken of impartial compilations of data, such as census statistics. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 769 (Iowa 1971). See Finding of Fact No. 89. Official notice was taken with respect to various facts in Findings of Fact Numbers 1A, 4, 6, 54, 91.

E. Disparate Treatment Theory and Disparate Impact Theory:

9. This case involves two of the major theories of discrimination law, (1) disparate treatment theory and (2) disparate impact theory. Proof of discrimination under either theory is sufficient to show a violation of the Act. See Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 516 (Iowa 1990).

10. In the Hy-Vee case, the Iowa Supreme Court adopted the definitions of the two theories set forth by the United States Supreme Court in International Brotherhood of Teamsters v. United States:

"Disparate treatment" . . . is the most easilyunderstood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.
. . .
Claims of disparate treatment may be distinguished from claims that stress "disparate impact." The latter involves employment practices that are facially neutral in their treatment of different groups but that fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held is not required under a disparate impact theory. Either theory may, of course, be applied to a particular set of facts.

Id. (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)(emphasis added).

F. Order and Allocation of Proof Where Complainant Relies on Circumstantial Evidence to Prove Discrimination Under the Disparate Treatment Theory:

11. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden in this proceeding was on the complainant and the Commission to persuade the finder of fact that the elements of sex discrimination in hiring. Iowa Code 216.15(7); Linn Co- operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981). Of course, in discrimination cases, as in all civil cases, the burden of persuasion is "measured by the test of preponderance of the evidence," Iowa R. App. Pro. 14(f)(6), and not by proof beyond a reasonable doubt or other standards.

12. The burden of persuasion must be distinguished from what is known as "the burden of production" or the "burden of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).

13. In the typical discrimination case, in which the complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burdens of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence." Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985)(emphasis added).

14. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). This showing is not the equivalent of an ultimate factual finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 579 (1978). Once a prima facie case is established, a presumption of discrimination arises. Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 516 (Iowa 1990).

15. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non-discriminatory reason for its action. Id. at 517; Linn Co-operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). If the Respondent does nothing in the face of the presumption of discrimination which arises from the establishment of a prima facie case, judgment must be entered for Complainant as no issue of fact remains. Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). If Respondent does produce evidence of a legitimate non-discriminatory reason for its actions, the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).

16. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual, i.e. "to show that the employer's proffered reason was not the true reason for the employment decision." Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 517 (Iowa 1990). See Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by [1] "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or [2] indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981)).

17. This burden of production may be met through the introduction of evidence or by cross-examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at , 67 L. Ed. 2d at 217.

18. With respect to the first method of showing pretext, it seemed clear, until recently, that if the legitimate, non-discriminatory reasons articulated by an employer were shown to be false, then the adjudicator was required to find that pretext had been shown and, therefore, enter judgment for the complainant. See e.g. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 717-18 (1983)(Blackmun, J. concurring); Williams v. Valentec Kisco, Inc., 964 F.2d 723, 58 Fair Empl. Prac. Cas. 1154 (8th Cir. 1992); Adams v. Nolan, 962 F.2d 791, 58 Fair Empl. Prac. Cas. 1189 (8th Cir. 1992). However, the United States Supreme Court has now held that while the finder of fact may still rely on the combination of (1) the inference (not the presumption) of discrimination established by the evidence which demonstrated a prima facie case and (2) a determination that the employer's articulated reasons are false or "unworthy of credence," to support a finding of discrimination; the finder of fact is allowed, but not required, to make a finding of discrimination under such circumstances. St. Mary's Honor Center v. Hicks, No. 92-602, slip. op. at 8 (U.S. June 25, 1993).

19. Federal court decisions, including United States Supreme Court decisions, applying Federal anti-discrimination laws or fee-shifting statutes are not controlling or governing authority in cases arising under the Iowa Civil Rights Act. See e.g. Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978). Nonetheless, they are often relied on as persuasive authority in these cases. E.g. Landals v. Rolfes, 454 N.W.2d 891, 898 (Iowa 1990); Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Although opinions of the United States Supreme Court are often entitled to great deference, Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978), its decisions have been rejected as persuasive authority when their reasoning is inconsistent with the broad remedial purposes of the Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d at 831, or of local civil rights ordinances. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d at 866-67.

20. For two reasons it is not necessary, however, in this case to estimate whether this holding will be adopted by the Iowa Supreme Court with respect to the Iowa Civil Rights Act. First, even under Hicks a finder of fact is permitted to find that its "disbelief of the reasons put forward by the defendant . . . together with the elements of the prima facie case, suffice to show intentional discrimination." Id. This has been done here. See Findings of Fact Nos. 48-60. Second, the alternative method of proving pretext by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent]" has also been utilized here. Id. at 14 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). See Findings of Fact Nos. 61-70.

1. A Prima Facie Case of Discrimination Was Established:

21. The burden of establishing a prima facie case of discrimination is not onerous. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The complainant is merely required to produce enough evidence to permit the trier of fact to infer that the employer's action was taken for a discriminatory reason. Id. at 254 n.7. A prima facie case may be shown in a variety of ways as there will be different factual circumstances present in each case. Teamsters v. United States, 431 U.S. 324, 358 (1977)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973)).

22. While a prima facie case of discrimination may be established though evidence of "differences in treatment," Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 516 (Iowa 1990)(quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)), it may also be established through a "showing of treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." City of Minneapolis v. Richardson, 239 N.W.2d 197, 202 (Minn. 1976).

23. An example of such a prima facie case of disparate treatment in hiring is established by proof that (1) Complainant is a member of a protected class, i.e. a female, (2) Complainant applied and was qualified for a position for which the employer was seeking applicants, (3) Despite her qualifications, Complainant is rejected, and (4) the position remained open and the employer continues to seek applicants of Complainant's qualifications. Schlei, Employment Discrimination Law 1298 (1983)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Of course, "the [f]acts necessarily will vary in [discrimination] cases and the specification above of the prima facie proof required . . . is not necessarily applicable to every factual situation." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973).

25. The presumption of illegal discrimination under this formula arises not because of any showing of different treatment between male and female applicants, but "because it eliminates the most likely legitimate causes for the employer's adverse action--a lack of minimum qualifications and the absence of a job opening. If these are not the causes, it is presumed that the employer's actions, unless otherwise explained, are more likely than not based on discrimination." Schlei, Employment Discrimination Law at 1299.

26. Given the facts of this case, a prima facie case was shown through a variant of the McDonnell Douglas formula:

(1) Complainant is a member of a protected class, i.e. a female; (See Finding of Fact No. 20)
(2) Complainant applied and was qualified for a position for which the employer was seeking applicants; (See Finding of Fact Nos. 20-43)
(3) Despite her qualifications, Complainant is rejected, and; (See Finding of Fact No. 44)
(4) the employer, after considering Complainant's application, rejects her and places a male in the position.
(See Finding of Fact No. 44).

27. With respect to qualifications and the prima facie case, a complainant only need show that she has met the minimum objective qualifications in order to establish she is qualified for a position. Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 165 (Iowa 1983)(citing United States Postal Service v. Aikens, 460 U.S. 711); Cristen Harms, 11 Iowa Civil Rights Commission Case Reports, 89, 123 (1991)(Friedman Motorcars Cases). This was established with respect to Complainant Boomgarden. See Findings of Fact Nos. 21-43.

2. Respondents Admitted One Reason for Failing to Hire
Maxine Boomgarden Which Is Unlawful and Discriminatory and Articulated, Through the Production of Evidence, One Reason Which, If Assumed to Be True, Is Legitimate and Non- Discriminatory:

28. Respondents have admitted that the Complainant was not hired due to the exercise of a veterans preference in favor of David Roelfs. See Finding of Fact No. 84. This reason is, under the facts of this case, illegal and discriminatory. See Conclusions of Law Nos. 32-70. Admission of an illegal and discriminatory reason does not meet the Respondents' burden of production. See Conclusion of Law No. 15.

29. Respondents did, however, produce evidence of a legitimate, non-discriminatory reason: political influence. See Finding of Fact No. 48. Since no assessment of whether the evidence produced is credible or persuasive is made at this stage of the McDonnell-Douglas analysis, Respondents have met their burden of production. See St. Mary's Honor Center v. Hicks, No. 92-602, slip. op. at 6 (U.S. June 25, 1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S. Ct. 1089, 67 L. Ed. 2d 207, 216-17 (1981).

3. The Complainant and the Commission Have Demonstrated That the "Political Influence" Reason For Not Hiring Complainant Boomgarden Which Was Articulated By Respondents Is a Pretext For Discrimination:

30. The "political influence" reason was shown to be a pretext for discrimination through both methods set forth in McDonnell Douglas, i.e. demonstrating that the evidence supporting the reason is "unworthy of credence" and showing that discrimination was the more likely reason for the Respondents' failure to hire. See Conclusions of Law Nos. 16, 20. There are a variety of ways for showing that evidence of a legitimate, nondiscriminatory reason is not credible. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Case. 913, 922 n.6 (7th Cir. 1984). Here, prior inconsistent statements of two members of the Board of Supervisors denying that political influence played a role were used to show their testimony at hearing was not credible. See Findings of Fact Nos. 51, 56. The testimony of one of these two demonstrated that she had little knowledge of David Roelf's political activities and did not even know the Complainant's political affiliation. See Findings of Fact Nos. 52-55. The opinion of the third member of the Board was shown to be based on "general talk" and not to have any substantial basis in fact. See Finding of Fact No. 49. Finally, the "political influence" reason, due to a variety of factors set forth in the findings of fact, was also shown not to be credible because it was a "proffered reason [which was] insufficient to motivate the [failure to hire]." Bechold v. IGW Systems, Inc., 817 F.2d 1282, 43 Fair Empl. Prac. Cas. 1512, 1515 (7th Cir. 1987). See Findings of Fact Nos. 51, 57-60. For example, the political campaign work of Roelfs "was something so far removed in time from the [hiring] itself that it is unlikely to have been the whole cause, even if a part of it." La Montagne, 750 F.2d at 1409, 36 Fair Empl. Prac. Cas. at 922. See Findings of Fact Nos. 57-59.

31. Pretext was also shown by evidence of statements indicating that sex discrimination was the true reason for actions of the Respondents. See Findings of Facts Nos. 61- 70. With respect to the assertion that these statements were made in jest:

It is . . . wise to advert, as did Judge Fuld in Matter of Holland v. Edwards, 307 N.Y. 38, 45, 119 N.E.2d 581, 584 . . . to the common experience that those who discriminate unlawfully are not likely to do so in open, plainly-appearing fashion . . . . Instead, there is likely to be covert resort to subtle tactics and the pretext of intermingled motives and reasons to obscure the substantial cause. The evidence . . . was just of that character, resting in part on slips of the tongue, jests with a serious half-hidden barb, inconsistent handling, and then a smoke screen, perhaps, of obscuring lawful motivations and reasons for denying her promotion.

Pace College v. Commission on Human Rights, 38 N.Y.2d 28, 377 N.Y.S.2d 471 (N.Y. 1975). The admonition of Judge Fuld mentioned above has been quoted with approval by the Iowa Supreme Court: "One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose." Wilson-Sinclair Company v. Griggs, 211 N.W.2d 133, 140 (Iowa 1973)(quoting Holland v. Edwards, 307 N.Y. 38, 45 (1954)). By showing pretext through both methods herein discussed, sex discrimination under the disparate treatment theory has been established.