RONALD E. NICOL, Complainant,

VS.

BUCHANAN COUNTY SHERIFF'S DEPARTMENT and BUCHANAN COUNTY BOARD OF SUPERVISORS, Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Mr. Nicol's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(11) (1985). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15 ('1989). See Finding of Fact No. 2.

2. Mr. Nicol's complaint is also within the subject matter jurisdiction of the Commission as the allegations that the Respondent constructively discharged the Complainant due to his age and disability fall 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 age . . . or disability of such applicant or employee." Id.

Complainant Nicol's Disability:

3. "Disability" means the physical ... condition of a person which constitutes a substantial handicap." Iowa Code §601A.2(11) (1985). "Substantially handicapped person" includes "any person who has a physical ... impairment which substantially limits one or more major life activities. 240 Iowa Admin. Code §6.1(1) (now at 161 Iowa Admin. Code §8.26(l)). "Impairment" includes "any physiological disorder or condition ... affecting [the neurological] ... body system. Id at 6.1(2) (now at 161 Iowa Admin. Code § 8.26(2)). "Walking" is a "major life activity." Id at §6.1(3) (now at 161 Iowa Admin. Code §8.26(3)).

4. Complainant Nicol has a "disability" as that term is used in Iowa Code sections 601A.6 and 601A.2(l 1) because he has a physical condition which constitutes a substantial handicap. Iowa Code §601 A.2(11) (1985). The condition constitutes a substantial handicap under 240 Iowa Administrative Code section 6.1(1) because:

a. it is a physical impairment as defined by commission rule 6.1(2) [See Finding of Fact No. 4];

b. which substantially limited him in the major life activity of walking under commission rules 6.1(1) and 6.1(3). See Finding of Fact No. 4.

Complainant Nicol's Age:

5. Throughout his employment with Respondents, Complainant Nicol was protected by the Iowa Civil Rights Acts' broad prohibition against age discrimination in employment. Iowa Code §601A.6(2) (1985). See Finding of Fact No. 3.

Constructive Discharge:

6. "Constructive discharge exists when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission.315 N.W.2d 83, 87 (Iowa 1982). The Iowa Supreme Court has adopted an objective standard for determining when a constructive discharge has occurred: "To find constructive discharge, the fact finder must conclude that, "working conditions would have been so difficult or so unpleasant" that a reasonable person in the employee's position would be compelled to resign." Id. (citing Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir. 1980)).

7. In accordance with this objective standard, a complainant may establish a discriminatory constructive discharge by showing:

(1) that a reasonable person in the [complainant's] position would have found the working conditions intolerable;
(2) that conduct which constituted a[n] [Iowa Civil Rights Act] violation against the [complainant] created the intolerable working conditions;
and
(3) that [complainant's] involuntary resignation resulted from the intolerable working conditions.

Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 269 (2nd ed. 1989).

8. In this case, two different employment practices were cited by the Complainant and the Commission's representative as constituting the conduct required to establish element number two above. First, they asserted that the Complainant had been harassed due to his age and disability by a series of actions taken by Sheriff Davis. (Complaint; Amended Complaint; Commission's Brief at 5-6). Second, they asserted that Sheriff Davis had failed to accommodate the Complainant's disability. (Complaint; Commission's Brief at 5-6).

Harassment:

9. To establish a valid claim of harassment on the basis of age or disability, the Complainant would have to prove:

1) He is a member of a protected class.

2) He was subjected to harassment, i.e. adverse conduct regarded by. him as unwelcome and reasonably considered to be undesirable or offensive.

3) The harassment was based upon his protected class status.

4) The harassment affected a term, condition, or privilege of employment;

5) The employer knew or should have known of the harassment and failed to take prompt remedial action.

Ct Lynch v. City of Des Moines, No. 89-222, slip op.at l6 (lowa April 18,1990) (requirements for sexual harassment case); Chauffeurs, teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986) (requirements for racial harassment case); Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982).

1 0. Element number one above has been established in regard to both age and disability. Element number three focuses on the essence of a claim under the disparate treatment theory, i.e. whether the complainant has been "intentionally singled out for adverse treatment on the basis of a prohibited criterion." Henson v. City of Dundee, 682 F.2d at 903. Disparate treatment is shown when:

The employer . . . treats some people less favorably than others because of their [age or disability]. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in
treatment.

Teamsters v. United States, 431 U.S. 324, 335-36 n.15

(1977) (emphasis added).

11.

[I]t is essential to realize that it does not matter whether the employee is a good or bad employee, or whether the employer is fair or unfair. For example, a violation ... would be proved under the disparate treatment theory by evidence that a female plaintiff was discharged for four unexcused absences in accordance with a company rule that all persons with four unexcused absences are discharged, but similarly situated male employees were not discharged after four unexcused absences. However, if similarly situated male employees were also discharged in such circumstances, there would be no violation... In both situations, it is irrelevant whether the plaintiff was a bad employee or a good employee. General conceptions of whether or not it is fair to discharge someone for four unexcused absences are similarly not determinative.

Schlei & Grossman, Employment Discrimination Law 13 (2nd ed. 1983).

12. There has been no showing of age discrimination as there is no evidence in the record demonstrating an age discriminatory motive in regard to any of the actions alleged by Complainant Nicol to constitute harassment on the basis of age. See Findings of Fact Nos. 8, 15, 22, 29, 32, 36, 37, 39, 41. In the absence of any showing that intolerable working conditions were the result of such harassment, it must be concluded that Complainant Nicol was not constructively discharged on the basis of age.

13. The evidence is also not sufficient to show harassment on the basis of disability.The greater weight of the evidence does not show different treatment on the basis of disability in the removal of Complainant Nicol's rank as captain; the reprimand for failure to wear his uniform; the reprimand for improper service of papers; the removal of his responsibility for reviewing records of the Emergency Operations Commission; or for removal of his jail responsibilities. See Findings of Fact Nos. 22, 29, 32, 26, 39, 41.

14. The Sheriff's request for a statement from Complainant's physician, his dismissal of this statement as not being worth the paper it was printed on, and his mentioning disability retirement to Complainant Nicol are all obviously related, to Complainant's disability. It cannot be said, under the facts of this case, that requesting a physician's statement or suggesting disability retirement constituted harassment. Neither of these actions, under these facts, constitute unreasonable or adverse treatment of complainant. Sheriff Davis' remark about the doctor's statement was insensitive and indicative of his refusal to accommodate Complainant's disability, but one such statement will usually not be sufficient to create an intolerable working environment. Cf. Henson v. City of Dundee, 682 F.2d at 904 (in order to constitute a violation must be sufficiently pervasive as to alter conditions of employment). See Findings of Fact Nos. 11-13, 37, 51.

Failure to Provide a Reasonable Accommodation for Complainant's Disability:

15. Failure to make reasonable accommodation is recognized as a theory of employment discrimination which is separate and independent from disparate treatment theory. Rancour v. Detroit Edison Company, 388 N.W.2d 336, 338, 341-42 & n.2 (Mich. App. 1986) (disability case distinguishing between "failure to accommodate theory" and "discrimination theory"); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 1, 61-69, 81-87 (2nd ed. 1989) (discussion of reasonable accommodation and disparate treatment theories in religion and disability cases).

16. The distinction between the two theories is based on the recognition that it is "necessary to provide a requirement of reasonable accommodation in order to eliminate discrimination against the disabled." Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d 192, 196-97 (Iowa 1987). Reasonable accommodation theory requires different, beneficial treatment of the disabled while disparate treatment theory is based on the prohibition against adverse, different treatment:

The physically disabled employee is clearly different from the nonhandicapped by virtue of the disability.But the difference is a disadvantage only when the work environment fails to take into account the unique characteristics of the handicapped person. (citations omitted.) Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities.

Holland v. Boeing Company, 90 Wash.2d 384,583 P.2d 621, 623 (1978) (quoted in Iowa Beer and Liquor Control Department v. Iowa Civil Rights Commission, 337 N.W.2d 986, 899 (Iowa Ct. App. 1983); also cited with approval in Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at l96-97)).

17. The burden of proof or "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 of proof in this proceeding is on the complainant to persuade the finder of fact that Respondents failed to provide a reasonable accommodation for his disability. Cerro Gordo County Care Facility v. Iowa Civil Right Commission, 401 N.W.2d 192,196 (Iowa 1987); King v. Iowa Civil Rights Commission, 334 N.W.2d 598,602 (Iowa 1983)(citing Linn Cooperative Oil Company v. Mary Quigley, 305 N.W.2d 728,733 (Iowa 1981)).

18. 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).

19. In the reasonable accommodation case, this burden of producing evidence shifts. King, v. Iowa Civil Rights Commission, 334 N.W.2d at 601-02. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at 196.

20. The Complainant has the initial burden of proving a prima facie case of discrimination under the failure to accommodate theory by a preponderance of the evidence. King v. Iowa Civil Rights Commission, 334 N.W.2d at 601. See Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at 196. He must offer evidence sufficient to create an inference that the employer failed to accommodate his disability in violation of the Act. Cf. Teamsters v. United States. 431 U.S. 324, 358 (1 977)(plaintiff must offer evidence adequate to create an inference that employment decision based on illegal criterion). Once a prima facie case is established, a presumption of discrimination attaches. Trobaugh v. Hy-Vee Food Stores. Inc., 392 N.W.2d 154,156 (Iowa 1986).

21. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows either that he made a reasonable accommodation to Complainant's disability, Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at 196, or that he could not accommodate the employee without incurring undue hardship. King v. Iowa Civil Rights Commission, 334 N.W.2d at 602. Once the Respondent has produced such evidence, the presumption of discrimination drops from the case. Trobaugh v. HyVee Food Stores. Inc., 392 N.W.2d at 156.

22. This burden of production is different from the burden required in a disparate treatment case where the employer is only required to produce evidence of a legitimate non-discriminatory reason for its action. This is so because, in a reasonable accommodation case, the employee requires positive different treatment, while, in the disparate treatment case, the employer is attempting to explain adverse different treatment. Compare Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at 196 (alleged failure to accommodate employer has a duty to produce evidence of reasonable accommodation of disability) with Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154,156 (Iowa 1986) (alleged different treatment on basis of disability-employer has duty to produce evidence that shows legitimate, nondiscriminatory reason for the challenged action). See Conclusion of Law No.16.

23. 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. King v. Iowa Civil Rights Commission, 334 N.W.2d at 602. 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)). Within the context of the failure to accommodate theory of discrimination, a showing of unwillingness or refusal to provide a reasonable accommodation would demonstrate that a discriminatory reason motivated the employer.

24. 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 6. C;t. 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 discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at , 67 L. Ed. 2d at fl-7. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 717-18 (1983)(Blackmun, J. concurring).