BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ALICE J. PEYTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

BOARD OF SUPERVISORS OF BUCHANAN COUNTY, Respondent.

CP # 01-90-19528

CONCLUSIONS OF LAW:

I. Jurisdiction and Procedure:

A. Subject Matter Jurisdiction:

1. Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). Alice Peyton's complaint is within the subject matter jurisdiction of the Commission as the allegation that the Respondent failed to provide her with equal pay due to her sex falls within the statutory prohibition against unfair employment practices which the Commission has the power to hear and determine. Iowa Code SS 601A.6, .15 (now SS 216.6, .15),

B. Timeliness:

1. Continuing Violations:

2.
Iowa Code section 601A.15(12) provides that:

[a] claim under [chapter 601A] shall not be maintained unless a complaint is filed with the Commission within one hundred eighty days after the alleged discriminatory or unfair practice occurred.

In connection with this statutory limitation a commission rule provides that:

[i]f the alleged unlawful discriminatory practice or act is of a continuing nature, the date of the occurrence of the alleged unlawful practice shall be deemed to be any date subsequent to the commencement of the alleged unlawful practice up to and including the date upon which the unlawful practice has ceased.

161 Iowa Admin. Code 3.3 (2). . . . The commission rule codifies what is known in the federal job discrimination cases as the "continuing violation" doctrine. So under the rule, if the alleged discriminatory act is of a "continuing nature," then the act is considered to have occurred as of the last date of the act.
. . .
[I]f a violation is continuing, the time does not begin to run when the discrimination first happens. Instead the [filing is] in time if there are discriminatory acts within the limitations period.

Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 527 (Iowa 1990).

2. Based on Legal Authority Specifically Addressing Equal Pay Discrimination, the Filing of the Complaint Was Timely:

3. The overwhelming weight of legal authority holds that equal pay violations are continuing violations. E.g. Miller v. Beneficial Management Corp., 977 F.2d 834, 60 Empl. Prac. Dec. _ 41841 at 72932 (3rd Cir. 1992); Bartlet v. Berlitz School of Language, 698 F.2d 1003, 30 Fair Empl. Prac. Cas. 1706, 1708 (9th Cir. 1983); Hall v. Ledex, Inc., 669 F.2d 397, 30 Fair Empl. Prac. Cas. 82 (6th Cir. 1982); Jenkins v. Home Insurance Co., 635 F.2d 310, 24 Fair Empl. Prac. Cas. 990, 992 (4th Cir. 1980); Satz v. I.T.T. Financial Corp., 619 F.2d 738, 22 Fair Empl. Prac. Cas. 929, 933 (8th Cir. 1980); Clark v. Olinkraft, Inc., 556 F.2d 1219, 14 Empl. Prac. Dec. _ 7779 at 5854-55, 5856 & n. 9 (5th Cir. 1977); Hodgson v. Behrens, 475 F.2d 1041, 1049, 9 Fair Empl. Prac. Cas. 816, 823 (5th Cir. 1973); 5 Employment Discrimination Coordinator _ 54045 (WGL)(1994). "To hold otherwise would permit perpetual wage discrimination by an employer whose violations . . . had already lasted without attack [for a time equal to the period of the statute of limitations]." Hodgson v. Behrens, 475 F.2d 1041, 1049, 9 Fair Empl. Prac. Cas. 816, 823 (5th Cir. 1973).

4. "The discrimination is continuing in nature. [The plaintiff] suffered a denial of equal pay with each check she received." Hall v. Ledex, Inc., 669 F.2d 397, 30 Fair Empl. Prac. Cas. 82, 83 (6th Cir. 1982)(emphasis added). See also Nealon v. Stone, ___ F.2d ___, 59 Fair Empl. Prac. Cas. 1118, 1123 (4th Cir. 1992); Bartlet v. Berlitz School of Language, 698 F.2d 1003, 30 Fair Empl. Prac. Cas. 1706, 1708 (9th Cir. 1983); Jenkins v. Home Insurance Co., 635 F.2d 310, 24 Fair Empl. Prac. Cas. 990, 992 (4th Cir. 1980). In Nealon, the Fourth Circuit noted that the United States Supreme Court had found this principle "too obvious to warrant extended discussion." Nealon, 59 Fair Empl. Cas. at 1123 (quoting Bazemore v. Friday, 478 U.S. 385, 395-96 (1986)(per curiam)(emphasis added).

5. These violations do not terminate until such time as the practice ends or the affected employee leaves employment with the employer. E.g. Jenkins v. Home Insurance Co., 635 F.2d 310, 24 Fair Empl. Prac. Cas. 990, 992 (4th Cir. 1980)(emphasis added). "The practice of paying discriminatory unequal pay occurs not only when an employer sets pay levels, but as long as the differential continues." Satz v. I.T.T. Financial Corp., 619 F.2d 738, 22 Fair Empl. Prac. Cas. 929, 933 (8th Cir. 1980)(emphasis added).

6. When the conclusions of law above are considered in light of the pertinent findings of fact, it is clear that the equal pay violation here alleged continued at least to the end of complainant's employment. See Findings of Facts Nos. 2, 3, 10. Since that date was well within one hundred eighty days of the date of filing, the complaint was timely filed. Iowa Code S 601A.15(12) (now S 216.15(12)).

3. This Complaint Is Also Timely Filed Under The Continuing Violation Analysis Set Forth By the Iowa Supreme Court in the Hy-Vee Decision:

7. Because the Respondent addresses the Iowa Supreme Court's continuing violation analysis on brief, a ruling is made in the alternative with respect to it. (Respondent's Brief at 12-15). The Court has recognized that one type of continuing violation "consists of 'a series of acts with one independent discriminatory act occurring within the charge filing period.'" Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 528 (Iowa 1990)(quoting Schlei & Grossman, Employment Discrimination Law 1047 (1983)).

8.
Four elements make up the "series of acts" type of continuing violation. . . . (1) the alleged discrimination pervades the series of events, (2) there is a present violation of the statute, (3) the present acts of alleged discrimination are related to the time-barred events, and (4) the charge covering the present violation is filed within the limitations period. . . . [T]he first and third elements refer to the same thing: the acts must be shown to be related and not isolated.

Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 528 (Iowa 1990). In this case, the second element was met by showing that Complainant Peyton received the allegedly discriminatory pay differential throughout her employment. See Finding of Fact No. 3. The fourth element was met by showing that the charge was filed within one hundred eighty days of the end of her employment. See Findings of Fact Nos. 2, 3. 10. "A severing of the employment relationship ordinarily concludes a discrimination against the severed employee and activates the time period for filing charges with the commission." Annear v. State, 419 N.W.2d 377, 379 (Iowa 1988).

9. Elements one and three can be satisfied by showing that the "alleged discriminatory acts are related closely enough to constitute a continuing violation." Hy-Vee at 528. This showing may be established by examining the evidence concerning three factors: subject matter, frequency, and permanence. Id.

10.
As to subject matter, the relevant question is whether "the alleged acts involve the same type of discrimination tending to connect them in a continuing violation." Id. Frequency deals with the question whether the alleged acts are of a recurring nature or more in the nature of an isolated employment decision. Id.

Hy-Vee at 528.

11. The past and present wage payments and salary
determinations in this case were determined to be related to each other with respect to all three factors, including subject matter and frequency. See Findings of Fact Nos. 5- 9.

12.

The last factor--permanence--deals with the question whether an employee should or should not realize the employer is discriminating. Id. For example, the discriminatory acts may be so persistent and longstanding that the employee should realize the employer is discriminating. Id. At that point, the statute of limitations is triggered. The limitations period, however, is not triggered when the consequences of the discriminatory acts is something the employee might reasonably expect without suspecting discrimination. Id. For example, an employee would probably not suspect an employer is discriminating when the employer's reasons for the acts are pretextual and seemingly legitimate.

Hy-Vee at 528.

13. In this case, Complainant Peyton was given a legitimate reason for not being paid as much as her predecessor, David Kuhn, i.e. that Kuhn was paid too much. See Finding of Fact No. 6. It was not until Fettkether was given the jail administrator position at a salary even higher than Kuhn's that Complainant realized that the reason given her was bogus. See Finding of Fact No. 9. Also, like the complainant in Hy-Vee, Peyton had entered into a settlement of a prior discrimination complaint with her employer. Hy- Vee at 523. See Finding of Fact No. 8. Such a settlement "could reasonably lead [a complainant] to believe that [her employer] would not continue to discriminate against her in the future." Hy-Vee at 528. See Finding of Fact No. 8. The discriminatory wage payments and hourly rate determinations are, therefore, also shown be related with respect to the factor of "permanence."

14. All four elements of the "series of related acts" form of continuing violation have been established. Therefore, a continuing violation to a time within the statute of limitations period is also shown under the Hy-Vee analysis.

C. The Buchanan County Board of Supervisors Is a "Person" Covered by the Act and is Properly Named as an "Employer" of Complainant Peyton:

15. On brief, Respondent argues that this case should have been brought against the Buchanan County Sheriff's Department and not the Buchanan County Board of Supervisors because the Board is not the "employer" of the complainant. (R. Brief at 9-10).

16. The statute at issue states "It shall be a . . . discriminatory practice for any person . . . to otherwise discriminate in employment against any . . . employee." Iowa Code S 601A.6(1)(a) (now S 216.6(1)(a) (emphasis added).

17. Respondent relies on the Iowa Supreme Court decision in Kingsley v. Woodbury County Civil Service Commission to support its argument. It is true that a county sheriff's department "is a 'person' to whom the Civil Rights Act applies. Kingsley, 459 N.W.2d 265, 266 (Iowa 1990). However, the reason why Kingsley held a sheriff's department is a "person" is because Iowa Code S 601A.2(2) (now 216.2(2)) defines "'person' to include all political subdivisions of [the] state." Id. (emphasis added).

18. A "political subdivision" is:

A division of the state made by proper authorities thereof, acting within their constitutional powers, for purpose of carrying out a portion of those functions of the state which by long usage and inherent necessities of government have always been regarded as public.

BLACK'S LAW DICTIONARY 1043 (5th ed. 1979).

19. The sheriff's department is a "person" covered by the act not because it is a "political subdivision of [the] state." Rather, the department is a "person" because it is, as the name suggests, a "department" of a political subdivision of the state, i.e. "Buchanan County." See IOWA CONST. art. III, S 39A; art. XI, S 2; Iowa Code S 331.301(8). The sheriff is an officer of the county. Iowa Code S 331.651.

20. Similarly, the Board is appropriately considered to be a "person" under the Iowa Civil Rights Act because "[a] power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law." Iowa Code S 331.301(2). Under similar reasoning, the Board is an "employer." An "employer" is "the state of Iowa or any political subdivision, board . . . thereof, and every person employing employees within the state." Iowa Code S 601A.2(7) (now 216.2(7))(emphasis added).

21. The powers of a county are broad and are not limited to those granted in express words. IOWA CONST. art. III, S 39A; Iowa Code S 331.301(1), (3). Nonetheless, the Board's statutorily mandated functions make it clear is an "employer." The sheriff's authority to appoint "one or more deputies, assistants, or clerks" is wholly dependent upon the "approval of the board [of supervisors]." Iowa Code S 331.903(1) (1989). There is no legal authority to suggest that the Board is not an "employer" because the Board's role with respect to hirings and promotions is to make the final decision as opposed to making the initial recommendation for hire or promotion. See Iowa Code S 331.903(1) (1989).

22. Finally, the Board is expressly granted the power to determine the compensation, not only of deputy sheriffs, but of "extra help and clerks" appointed by the sheriff. Iowa Code S 331.904 (2), (4).
23. Under the authorities set forth above, the Board of Supervisors is not only a "person" covered by the Act, but is the "employer" of Complainant Peyton.

II. Official Notice:

24. Official notice was taken of several facts. See Findings of Fact Nos. 2, 4, 13, 19, 129.

10. Official notice may be taken of all facts of which judicial notice may be taken and of other facts 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).

Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 160 (1992).

III. The Applicability of Federal Court Decisions and Regulations:

A. Persuasive Authority of Federal Court Decisions:

25. In this case, extensive reliance is placed on federal equal pay cases and regulations:

19. Federal court decisions . . . applying Federal anti-discrimination laws . . . are not controlling or governing authority in cases arising under the Iowa Civil Rights Act. 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. 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 at 866-67.

Maxine Boomgarden, CP # 07-86-14926, slip. op. at 65 (Iowa Civil Rights Comm'n October 12, 1993).

B. Persuasive Authority of Equal Pay Act Regulations and Decisions:

26.

10. In determining whether the Iowa Civil
Rights Act's prohibition against discrimination on the basis of sex in employment has been violated through pay differentials based on sex, regulations promulgated and cases decided under the Equal Pay Act of 1963 may be cited as persuasive, but not controlling, authorities. Reference to such authorities has been made in at least one past Commission decision. Kathy Quakenbush, 2 Iowa Civil Rights Commission Case Reports 19, 22 (1978).

Ann Redies, 10 Iowa Civil Rights Commission Case Reports at 17, 26 (1989).