RONALD E. NICOL, Complainant,

VS.

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

Conclusions of Law continued

25. In the instant case, Complainant Nicol established a prima facie case of discrimination under the failure to accommodate theory by showing:

(1) A new employment requirement, specifically the requirement to answer accident calls, was imposed by his employer which the Complainant could not safely meet due to his disability. See Findings of Fact Nos. 4-6, 42-46.

(2) The Complainant informed his employer that he could not safely meet the new requirements which conflict with the limitations of his disability. See Findings of Fact Nos. 44-45.

(3) The Complainant was penalized for his disability by being required to perform the new requirement despite the danger to himself and others. See Findings of Fact Nos. 44-46.

Cf. King v. Iowa Civil Rights Commission, 334 N.W.2d at 603-04 (setting forth requirements for prima facie case of failure to accommodate religious beliefs). It should be noted that the reference to "penal[ty]" in this formulation of the prima facie case does not necessarily refer to discipline. Id. at 603-04. In king. for example, the Complainant was allowed to be absent for religious holidays provided he arranged and paid for his own substitute. Id. at 604. King asserted that he was penalized by not being reimbursed for his lost income. Id. Here, the penalty asserted, and shown by the evidence, is that Complainant was required to assume a duty he had not been required to perform for at least well over a year, answering accident calls, at substantial risk to his health and others' safety. See Findings of Fact Nos. 42-46.

26. Respondents have failed to produce evidence to demonstrate that reasonable accommodation was made for Complainant in regard to accident calls or that such accommodation would constitute an undue hardship. See Findings of Fact Nos. 43, 45. Although Respondents correctly point out, on brief, that there was testimony and rebuttal testimony on possible accommodations for Complainant, "should his disease become worse" to the point he could no longer act as process server, this testimony does not address the question of reasonable accommodation based on Complainant's condition as it was from the time he was informed that he would be expected to do all duties, including answering accident calls, to the time of his resignation. Respondents' Brief at 5-6 (citing Tr. at 99-100, 197-200). Complainant Nicol has established an unrebutted prima facie case of discrimination under the failure to accommodate theory.

27. Even if the evidence cited in Respondent's brief were considered to have rebutted the Complainant's prima facie case, the Complainant would still prevail as (a) the statements made by Sheriff Davis to Complainant in regard to Dr. Hallberg's statement and in regard to expecting him to perform all duties demonstrates a discriminatory motive, i.e. a refusal or unwillingness to provide a reasonable accommodation, and (b) the evidence demonstrates that Respondents could have continued to exclude Complainant from accident call and other strenuous duties at a de minimis cost. Such a low standard of accommodation may not be "sufficient in every circumstance," but it is under these facts. Cerro Gordo County Care Facility v. Iowa Civil Rights Commission, 401 N.W.2d at 197. See Findings of Fact Nos. 43, 4445.

28. All of the elements required to show constructive discharge have been established:

(1) the requirement that Complainant Nicol continue to answer accident calls, despite the threat to his and others' safety, rendered his working conditions such that a reasonable person would find them intolerable; [See Finding of Fact No. 44-46, 49]

(2) a failure to accommodate Complainant Nicol's disability, in violation of the Iowa Civil Rights Act, created the intolerable working conditions; [See Conclusions of Law No. 26, 27]

(3) Complainant Nicol's involuntary resignation resulted from the intolerable working conditions.[See Findings of Fact No. 47-491.

Respondents' Defense Based on Iowa Code Section 341 A. 1 1 (3):

29. Respondents assert that, by the authority of low Code Section 341A.1 1 (3), they would have the right to discharge Complainant Nicol without making an accommodation for his disability. They argue that Sheriff Davis would have been justified in discharging Complainant Nicol by July 1985 because of Complain ant's extended sick leave and statement that he did not know if he would ever return to work. Respondents' Brief at 4; Findings of Fact No. 6, 49. There are several reasons why this is not so.

30. First, Iowa Code section 341A.11(3) allows the discharge of deputy sheriffs for "mental or physical unfitness for the position held." It prevails over low Code sections 601A.6's prohibition against the "discharge [of) any employee . . . because of the . . . disability . . . of such . . . employee " only if the two statutes cannot possibly be construed "so that effect is given to both." Iowa Code § 4.7 (1989). Given the rule of broad construction specifically applicable to section 601A.6, Iowa Code 601A.18, and the rule that all provisions of the Iowa Code "shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice," Iowa Code § 4.2, it is clear that the two can be reconciled by construing Iowa Code 341A.1 1 (3) to allow the discharge of deputy sheriffs for "mental or physical unfitness for the position held" only when reasonable accommodation for any physical or mental disability is not possible.

31. Second, because of the very nature of constructive discharge, the only questions o employer motivation which arise are those involved in determining whether the conduct creating the intolerable working conditions constitutes illegal discrimination. That conduct is only an element of a constructive discharge, it is not a discharge per se. See Conclusions of Law No. 6, 7.

32. Third, it has already been found, based on Sheriff Davis' testimony, that Sheriff Davis would have taken Complainant Nicol back in July of 1985 if he did no have to accommodate his disability. See Finding of Fact No. 48.

33. Fourth, even with a non-constructive discharge, it is not enough merely to show that the decision to discharge would have been justified for a legitimate reason. Price-Waterhouse v. Hopkins. U.S. , 57 L.W. 4469, 4476 (1989). The employer must show that it was motivated by the legitimate reason at the time the discharge decision was made and that the same decision would have been made in the absence of the discriminatory criterion. Id. With a constructive discharge such a showing is obviously impossible.

Remedies:

34. Violation of Iowa Code section 601A.6 having been established, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 601A.15(8 (1989). In formulating these measures, the Commission does not merely provide a remedy for this specific dispute, but corrects broader patterns of behavior which constitute the practice of discrimination. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). "An appropriate remedial order should close off 'untraveled roads' to the illicit end and not 'only the worn one."' Id. at 771.

Compensation:

35. The Commission has the authority to make awards of backpay. Iowa Code § 601A.15(8)(a)(1) (1989). In making such awards, interim earnings and unemployment compensation received during the backpay period are to be deducted. Id. The Complainant bears the burden of proof in establishing his damages. Diane Humburd, CP # 03-85-12695, slip op. at 32-33, (Iowa Civil Rights Comm'n Sept. 28, 1989)(citing Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981)). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Id. at 34-35, 37 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.&. 1976), affd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainant has done. See Findings of Fact No. 53- 54, 57-62. The burden of proof for establishing either the interim earnings of the Complainant or any failure to mitigate damages rests with the Respondent. Diane Humburd, CP # 03-85-12695, slip op. at 35-37, (Iowa Civil Rights Comm'n Sept. 28,1989)(citing e.g. Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). No evidence on either of these issues was introduced. See Finding of Fact No. 62.

36. The award of backpay in employment discrimination cases serves two purposes. First, "the reasonably certain prospect of a backpay award . . . provide[s] the spur or catalyst which causes employers and unions to self-examine and to self evaluate their employment practices and to endeavor to eliminate [employment discrimination)." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, backpay serves to "make persons whole for injuries suffered on account of unlawful employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of backpay in the present case.

37. "Iowa Code section 601A.15(8) gives the commission considerable discretion in fashioning an appropriate remedy that will accomplish the purposes of chapter 601A." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, No. 88-934, slip op. at 47 (Iowa January 24, 1990). The Iowa Supreme Court has approved two basic principles to be followed in computing awards in discrimination cases: "First, an unrealistic Exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Id. at 45. "it suffices for the [agency] to determine the-e amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery."- Id. (Quoting with approval Brennan
v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973)).

Termination of the Back Pay Period at Complainant's 55th Birthday:

38. The determination that the back pay period, should end at Complainant's 55th birthday, when he would have retired, is based on the principle that the period ends "if the plaintiff ceases to suffer the adverse economic effects of discrimination." Schlei & Grossman, Employment Discrimination Law: Five year Cumulative Supplement 529 (2nd ed. 1989). The Respondent has the burden of proof in establishing that the back pay period should terminate prior to the Commission's final decision. Id. The greater weight of the evidence does not support an earlier termination of the back pay period than Complainant's 55th birthday. See Findings of Fact No. 55, 56.

39. Furthermore, it has been found that, but for the failure to accommodate complainant, his March 1985 exacerbation would not have occurred, at least not at that time. See Finding of Fact No. 55. Under these circumstances, where the exacerbation and its effects on Complainant's ability to continue employment are causally linked to the Respondents' discriminatory failure to accommodate, the exacerbation and its effects cannot be permitted to terminate Complainant's back pay. Cf. Wells v. North Carolina Board of Alcoholic Control, 714 F.2d 340, 46 Tair Empl. Prac. Cas. 1766,1767-68 (4th Cir. 1983)(where complainant left employment due to back injuries sustained as a result of discriminatory failure to promote to a nonlabor- position, termination of employment had no effect on back pay).

40. The Commission has the option of either (a) retaining jurisdiction of the case in order to obtain the date of Complainant's 55th birthday, calculate the amount of back pay for the period from August 11, 1988 to Complainant's birthday, and issue a supplemental order stating that amount, or (b) ordering Complainant to provide the date by affidavit, supplement the record by this means, and allow the district court on enforcement of the Commission's order to calculate this amount using the formula set forth in Finding of Fact Number 61. City of Des Moines Police Department. Iowa Civil Rights Commission. 343 N.W.2d 836, 839-40 (Iowa 1984). The Commission chooses the latter as the more practical alternative.

Damages for Emotional Distress:

41. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages for emotional distress. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code S 601A.15(8)). The following principles were applied in determining whether an award of damages for emotional distress should be made and the amount of such award.

42. "[A] civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, No. 88-934, slip op. at 32 (Iowa January 24, 1990).

43. In discrimination cases, an award of damages for emotional distress can be made in the absence of "evidence of economic or financial loss, or medical evidence of mental or emotional impairment." Seaton v. Sky Realty, 491 F.2d 634,636 (7th Cir. 1974)(housing discrimination case). Nonetheless, such evidence may be considered. See Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988). "Humiliation can be inferred from the circumstances as well as established by the testimony." Seaton v. Sky Realty, 491 F.2d at 636 (quoted with approval in Blessum v. Howard County Board. 245 N.W.2d 836, 845 (Iowa 1980)). Even slight testimony of emotional distress, when combined with evidence of circumstances which would be expected to result in emotional distress, can be sufficient to show the existence of distress. See Dickerson v. Young 332 N.W.2d 93,98-99 (Iowa 1983).

44. When the evidence demonstrates that the complainant has suffered emotional distress proximately caused by discrimination, an award of damages to compensate for this distress is appropriate. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984)(citing Nichols, Iowa's Law Prohibiting Disability Discrimination in Employment: An Overview, 32 Drake L. Rev. 273, 301 (1982-83)). The Complainant did suffer substantial emotional distress resulting from discrimination. See Finding of Fact No. 63.

45.

Because compensatory damage awards for mental distress are designed to compensate a victim of discrimination for an intangible injury, determining the amount to be awarded for that injury is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages."

...

Computing the dollar amount to be awarded is a function of the finder of fact. Juries and judges have been making such decisions for years without minimums or maximums, based on the facts of the case [and] the evidence presented on the issue of mental distress.

2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24-29 (1982)(quoting Randall v. Cowlitz Amusements, 76 P.2d 1017 (Wash. 1938)).

46. The amount of damages for emotional distress will depend on the facts and circumstances of each individual case. Marian Hale. 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Past Commission decisions have referred to the consideration of various factors in awarding damages for emotional distress. Id. Upon examination of the Commission's cases, and the authorities cited therein, it is concluded that the two primary determinants of the amount awarded for damages of emotional distress are the severity of the distress and the duration of the distress. See Cheri Dacy, 7 Iowa Civil Rights Commission Case Reports 17, 24-25 (1985); Marian Hale. 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984).

47. A wrongdoer takes the person he injures as he finds him. McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975). A previously disabled person injured by the acts of a wrongdoer "is entitled to such increased damages as are the natural and proximate result of the wrongful act." Id. at 46; Cf.Lynch v. City of Des Moines, No. 89-222. slip op. at 24 (Iowa April 18, 1990) (upholding award of emotional distress damages in sexual harassment case against appeal of damages as inadequate-noting some distress due to other turmoil in complainant's life unrelated to discriminatory actions of employer). This principle applies to psychological and emotional injuries. McBroom v. State, 226 N.W.2d at 46.

Interest:

48. The Iowa Civil Rights Act allows an award of actual damages to persons injured by discriminatory practices. Iowa Code § 601A.15(8)(a)(8) (1989). Prejudgment interest is a form of damages. Dobbs, Hornbook on Remedies 164 (1973). It "is allowed to repay the lost value of the use of the money awarded and to prevent persons obligated to pay money to another from profiting through delay in litigation." Landals v. Rolfes Company, No. 88-1638, slip op. at 19 (Iowa April 18, 1990). Pre-judgment interest is properly awarded on an ascertainable claim. Dobbs, Hornbook on Remedies 166-67 (1973). The amount of back pay due Complainant at any given time has been an ascertainable claim since the time of his resignation. See Findings of Fact No. 53-62. Emotional distress damages are not ascertainable before a final judgment. See Dobbs, Hornbook on Remedies 165 (1973).

49. Post-judgment interest is usually awarded upon almost all money judgments, including judgments for emotional distress damages. Dobbs, Hornbook on Remedies 164 (1973).

Credibility and Testimony:

50. In addition to the factors mentioned in the section entitled "Course of Proceedings" and in the findings on credibility in the Findings of Fact, the Administrative Law Judge has been guided by the following two principles: First, "[w]hen the trier of fact ... finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2,d 383,388 (Iowa 1975). Second, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses.

Stated otherwise, the trier of facts..... is not bound .to accept testimony as true because it is not contradicted. In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972).

Motion to Dismiss:

During the course of the hearing, Respondents made a motion for "directed ruling of dismissal of the complaints." (Tr. at 135-37). The basis for the motion was the Complainant's failure to prove either age or disability discrimination. Although the Complainant has failed to prove age discrimination or disability discrimination under the theory of disparate treatment through harassment, he has proven disability discrimination through failure to provide a reasonable accommodation for his disability. The motion to dismiss should be denied.