X. Ruling In the Alternative # 2: Pretext or Circumstantial
Evidence Method of Proof:
42. The order and allocation of proof known as the "pretext," "circumstantial evidence," or "McDonnell-Douglas" method was described in the Dorene Polton case:
25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burden of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 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).
26. 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. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).
27. 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.; 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).
28. 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. 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 "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or 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)).
29. 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.
Dorene Polton, 11 Iowa Civil Rights Commission Case Reports 152, 162 (1992).
43. The Respondent has admitted on brief that Complainant Whaley established a prima facie case of discrimination. See Finding of Fact No. 19. It has also been found that Respondent produced evidence of legitimate, nondiscriminatory reasons to rebut the prima facie case. See Finding of Fact No. 102. Thus, the issues move to pretext and the ultimate finding of discrimination. There are a variety of ways in which it may be shown that Respondent's articulated reasons are pretexts for discrimination, not all of which are enumerated below. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 578 (1978); La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409, 36 Fair Empl. Prac. Cas. 913, 922 n.6 (7th Cir. 1984).
44.
30. [Pretext may be proven] by evidence showing:
(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the [challenged employment action], or (3) that the proffered reasons were insufficient to motivate the [challenged employment action].
Bechold v. IGW Systems, Inc., 817 F.2d 1282, 43 Fair Empl. Prac. Cas. 1512, 1515 (7th Cir. 1987).
Ruth Miller, 11 Iowa Civil Rights Commission Case Reports 26, 48 (1990). Pretext in the instant case was demonstrated by findings of fact indicating that the reasons articulated by Respondent were from an incredible source, see Findings of Fact Nos. 50-53, that they did not actually motivate the failure to hire, see Finding of Fact No. 107, and were insufficient to motivate the failure to hire since they resulted from an interview process where the preferred candidate was given the opportunity to give his reasons for wanting the job while the complainant was not. See Findings of Fact Nos. 55-62.
45.
31. In addition, "[t]he reasonableness of the employer's reasons may . . . be probative of whether they are pretexts. The more idiosyncratic or questionable the employer's reason, the easier it will be to expose it as a pretext." Loeb v. Textron, Inc., 600 F.2d 1003, 1012, 20 Fair Empl. Prac. Cas. 29, 35 n.6 (1st Cir. 1979). The focus, however, is on the employer's motivation and not its business judgment. Id.
Id. at 48-49.
46. In this respect it should be noted that wide disparities in the qualifications of the complainant and the preferred applicant are probative of discrimination. See Callan v. Confederation of Oregon School Administrators, 317 P.2d 1252, 57 Fair Empl. Prac. 1696, 1698 (Ore. Ct. App. 1986):
It is self-evident that if a male applicant is hired instead of a female applicant with clearly superior credentials, the disparity in their suitability for the job is probative of discrimination. In the normal case, the tendency of a disparity of qualifications to prove--or disprove--discrimination will vary proportionately to the degree and obviousness of the disparity. Evidence of relative qualification must be evaluated with those obvious considerations in mind.
. . .
Our only disagreement with defendant's argument is its implication that courts cannot make the fine distinctions between comparative qualifications in their weighing of evidence in discrimination cases. We nevertheless do agree with defendant's implication that, when the distinctions are so fine as to be beyond objective calibration, the employer's subjective evaluation of the applicants' qualifications will seldom weigh heavily in favor of a finding of discrimination.
Id. at 1698-99. The disparities in qualifications in the instant case are readily capable of objective calibration and are probative of discrimination. Unlike the case in Woodbury County v. Iowa Civil Rights Commission, 335 N.W.2d 161, 168 (Iowa 1983), this is not a case involving similarly or equally qualified applicants where the employer has been found to have misjudged the applicants. By the employer's own standards, the Complainant, who was considered "excellent" and rated "outstanding" by the employer, had far longer, far more responsible, and far more relevant experience for the position. See Findings of Fact Nos. 67- 100, 104. And, of course, the findings of pretext here do not rely solely on the difference in qualifications. See Lucas v. Dover Corp., 857 F.2d 1397, 1403-04 (10th Cir. 1988)(deference given to employer assessment of qualifications "in the absence of some evidence of impermissible motives").
47.
32. Pretext may be shown by the employer providing inconsistent reasons, for the same adverse employment action, to the Complainant and other sources. See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 266 & n.35 (2nd ed. 1989).
Ruth Miller at 49. In this case, the reasons for the failure to hire her given in the letter to Complainant Whaley varied from that given the Commission. The letter to Whaley mentioned only the "experience" reason and not the "ambition" reason for the failure to hire. See Finding of Fact No. 53.
48. While the use of subjective criteria is not per se discriminatory, subjective practices must be closely scrutinized as they provide a ready mechanism for discrimination. Jauregui v. City of Glendale, 852 F.2d 1128, 1135-36 (9th Cir. 1988). Given the facts in this case concerning the interview procedures and the potential for abuse inherent in subjective mechanisms, the use of the "ambition" criteria was discriminatory. See Finding of Fact No. 105.
49. "Although the failure to follow an affirmative action plan is not a per se violation of Title VII, evidence that an employer violated its own affirmative action plan may be relevant to the question of discriminatory intent." Stender v. Lucky Stores, 803 F.Supp. 259, 330, 62 Fair Empl. Prac. Cas. 11, 66-67 (N.D. CA 1992)(citing e.g. Gonzales v. Police Dept., 901 F.2d 758, 761, 52 Fair Empl. Prac. Cas. 1132 (9th Cir. 1990); Craik v. Minnesota State University Board, 731 F.2d 465, 472, 34 Fair Empl. Prac. Cas. 649 (8th Cir. 1984). See Finding of Fact No. 106.
49. An ultimate finding of discrimination, as made in this case, may be supported by:
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". . ..
Maxine Boomgarden, slip. op. at 64 (citing St. Mary's Honor Center v. Hicks, ____ U.S. ____, 113 S.Ct. 2447, 62 Fair Empl. Prac. Cas. 96, 100 (1993)); Washington v. Garrett, 10 F.3d 1421, 1433, 63 Fair Empl. Prac. Cas. 540, 549 (9th Cir. 1993)(Under Hicks "a factfinder . . . is entitled to infer discrimination from plaintiff's proof of a prima facie case and showing of pretext without anything more"); Anderson v. Baxter Healthcare Center, 13 F.3d 1120, 63 Fair Empl. Prac. Cas. 1016, 1019 & n.3 (7th Cir. 1994)(rejecting as dicta language in Hicks indicating that anything more than a prima facie case and disbelief of employer's reasons is required to show discrimination). The Supreme Court noted that the disbelief of the employer's articulated reasons is particularly likely to support a finding that these reasons are pretexts for discrimination when the disbelief "is accompanied by a suspicion of mendacity." St. Mary's Honor Center v. Hicks, ____ U.S. ____, 113 S.Ct. 2447, 62 Fair Empl. Prac. Cas. 96, 100 (1993). There is considerably more than "a suspicion of mendacity" affecting the reasons articulated by Respondent in this case. See Findings of Facts Nos. 50-53.
50. In pretext cases, "the rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination, and the Court of Appeals was correct, when it noted that, upon such rejection, 'no other proof of discrimination is required.' 970 F.2d at 493." Id., 62 Fair Empl. Prac. Cas. at 100. While this Commission is not legally compelled to find discrimination when the employer's reasons are disbelieved, it may do so, see id., and has done so in this case. See Finding of Fact No. 103.
51. Pretext has also been shown by direct evidence persuading the Commission that discrimination was more likely than not the true explanation for the failure to hire Complainant Whaley. See Conclusion of Law No. 42. See Finding of Fact No. 107. There was also direct evidence of past acts of discrimination. See Findings of Fact Nos. 23- 25, 42, 44. Evidence of such past acts is probative on the issue of the employer's motive or intent. Hamer v. Iowa Civil Rights Commission, 472 N.W.2d 259, 263 (Iowa 1991).
52. Thus, under the pretext analysis, Complainant has met her burden of persuasion with regard to establishing sex discrimination in violation of Iowa Code section 601A.6 (now S 216.6).
XI. Laches:
53. The Respondent appears to have addressed the issue of laches in its posthearing brief. See Finding of Fact No. 109. It is "extremely rare for laches to be effectively invoked" when a complainant has filed her administrative civil rights complaint with the agency within the time provided for by the pertinent statute of limitations. See Bouman v. Block, 940 F.2d 1211, 1227, 60 Fair Empl. Prac. Cas. 1000, 1011 (9th Cir. 1991)(applying this principle when the plaintiff had timely filed her administrative complaint with the EEOC within the 300 day statute of limitations). In this case, the parties have stipulated that the complaint was timely filed with the Iowa Civil Rights Commission. See Finding of Fact No. 3, 112.
54. In determining whether a case is one of those rare ones where laches applies, it must be remembered that "the doctrine [of laches] is applied to do, and not to defeat justice." Regal Insurance Company v. Summit Guaranty Corp., 324 N.W.2d 697, 704 (Iowa 1982). The doctrine is based upon the public policy which seeks to discourage stale claims. Davidson v. Lengen, 266 N.W.2d 436, 439 (Iowa 1978). It focuses on the issue of whether unreasonable delay in litigation has resulted in material prejudice to a defendant. Id.
55. Both unreasonable delay and material prejudice must be proven by the defendant, Brewer v. State 446 N.W.2d 803, 805 (Iowa 1989), by clear, convincing and satisfactory evidence. Chicago, Rock Island, and Pacific Railroad Company v. City of Iowa City, 288 N.W.2d 536, 541 (Iowa 1980). "Prejudice must be shown. . . . Prejudice 'cannot be inferred merely from the passage of time.'" C.O.P.E.C. v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990)(quoting with approval Cullinan v. Cullinan, 226 N.W.2d 33, 36 (Iowa 1976)).
56. In the context of an administrative civil rights hearing, an objection of unreasonable delay in the complaint process "must be made before a case has proceeded through a full-blown evidentiary hearing." Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982)(emphasis added). The court in Foods also held that "In any event [the respondent to the charge of discrimination] has not shown that it's substantial rights were prejudiced by the Commission's alleged delay." Id.
57. It is implicit in these statements that the respondent is required to raise an objection and to make an evidentiary record, before the Commission, of unreasonable delay and of any resulting material prejudice in order to obtain a ruling on the objection prior to the contested case hearing. See id.
58. The very purpose of requiring such an objection to proceedings before hearing is to give the agency an opportunity to act while there is still time for correction. Schwartz, Administrative Law S 10.3 p. 629 (1991). Of course, the objection could only be sustained on a record of evidence supporting the objection. A pretrial hearing on the objection or motion raising laches gives the Respondent the opportunity to meet its burden of proving laches and thereby obtain a dismissal of the case prior to any scheduled contested case hearing. See Foods, Inc. v. Iowa Civil Rights Commission, 318 N.W.2d 162, 170 (Iowa 1982). In the event the objection is overruled, the record established at the hearing on the objection becomes part of the record of the contested case. See Iowa Code S 17A.6(a), (b). Thus, the hearing also gives Respondent the opportunity to preserve error for judicial review. Id. at 17A.19(1).
59. In this case, Respondent completely failed to present evidence of undue delay or of material prejudice at the hearing on the motion to dismiss. See Finding of Fact No. 111. Laches must be supported by pleaded proof. Argument does not suffice. In Re Lunt, 235 Iowa 62, 78, 16 N.W.2d 25 (1944).
60. The only facts shown in the record at that time pertinent to the issue were the passage of time from the date of filing on March 8, 1988, to the date conciliation failed on September 15, 1993, to the date Notice of Hearing was issued on October 13, 1993. See Finding of Fact No. 112. Such evidence is not sufficient to prove either delay, let alone unreasonable delay, EEOC v. Warshawsky & Co., ___ F. Supp. ___, 56 Fair Empl. Prac. Cas. 889, 896 (N.D. Ill. 1991)(the bare fact that 4 years elapsed between filing of complaint and EEOC's filing of suit does not demonstrate delay), or material prejudice. C.O.P.E.C. v. Wunschel, 461 N.W.2d 840, 846 (Iowa 1990)(prejudice may not be inferred from the passage of time). Because Respondent failed to make a timely and sufficient objection and record of unreasonable delay and material prejudice prior to the hearing, it has failed to establish its affirmative defense of laches.