City of Des Moines Police Dept. v. Iowa Civil Rights Com'n, 69454

• Citation: 343 N.W.2d 836
• Decision Date: 15 February 1984
• Docket Number: No. 69454,69454
• Parties: 46 Fair Empl.Prac.Cas. (BNA) 256 CITY OF DES MOINES POLICE DEPARTMENT and City of Des Moines Civil Service Commission, Appellants, v. IOWA CIVIL RIGHTS COMMISSION, Appellee, and Nancy L. Moore, Intervenor-Appellee.
• Court: United States State Supreme Court of Iowa

Page 836

343 N.W.2d 836

46 Fair Empl.Prac.Cas. (BNA) 256

CITY OF DES MOINES POLICE DEPARTMENT and City of Des Moines Civil Service Commission, Appellants, v. IOWA CIVIL RIGHTS COMMISSION, Appellee, and Nancy L. Moore, Intervenor-Appellee.

No. 69454.

Supreme Court of Iowa.

Feb. 15, 1984.

Nelda Barrow Mickle, City Sol., Des Moines, for appellants.

Thomas J. Miller, Atty. Gen., and Victoria L. Herring, Asst. Atty. Gen., for appellee Iowa Civil Rights Com'n.

Carl V. Nielsen, Des Moines, for intervenor-appellee Moore.

Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ and CARTER, JJ.

McGIVERIN, Justice.

This appeal concerns the utilization of appropriate statutory procedures for enforcing a final order of the Iowa Civil Rights Commission (Commission). We conclude that complainant Nancy Moore's attempt to enforce a favorable Commission order by filing an application for a hearing before the Commission, and the Commission's holding a hearing thereon, did not comply with statutory enforcement procedures. We, therefore, hold that the Commission's corresponding order awarding specific dollar damages is void for lack of statutory authority in the Commission to entertain complainant's application under this record.

In 1972, Nancy Moore was unsuccessful in her attempt to be employed by the City of Des Moines Police Department as a patrol officer. She filed a complaint of discrimination with the Iowa Civil Rights Commission on April 28, 1972, alleging that she was rejected as a candidate for the position of patrol officer because of her failure to meet height and weight requirements which she claimed unfairly discriminated against women including herself. Those requirements had been set by the Des Moines Police Pension Board and were followed by the Des Moines Civil Service Commission and Police Department.

A public hearing before the Commission to adjudicate the allegations of Moore's complaint was held on January 23-24, 1973.

The Commission entered an order on July 11, 1973, which concluded that the City's height-weight requirements for the position of patrol officer discriminated against female applicants. The Commission ordered the City of Des Moines Police Department and the Des Moines Civil Service Commission (City) to cease and desist from utilizing the discriminatory height-weight requirements, to recruit females into patrol officer positions, and to validate its various testing procedures for those positions.

The Commission's order also provided specific relief for complainant Nancy Moore. The order directed the City to permit Moore to take the test for patrol officer to determine her qualifications for that position, and that if found qualified, she was to be certified for the position of patrol officer. The Commission further ordered that:

[I]n the event that the complainant qualifies for the position of patrol officer by use of proper objective standards, the respondent, City of Des Moines Police Department, shall pay the complainant, Nancy L. Moore, such amount as she would have earned as a patrol officer had she been found qualified and hired as a result of her application made on or about April 23, 1972. The complainant shall be paid said amount for the period of time from which she would have been hired as a patrol officer, but for her height and weight, to such time as she is hired as a patrol officer. To determine the proper period of time, the respondent shall indicate by affidavit to the Iowa Civil Rights Commission the approximate date upon which the complainant would have been hired, but for her height and weight. The amount to be paid herein shall be reduced by such income as the complainant earned for the period of time in question; the complainant shall submit a sworn statement of her earnings for the period of time in question to the commission for appropriate action pursuant to this Order.... In the event that the complainant is found not qualified, by proper legal objective standards, for the position of patrol officer, the respondent, City of Des Moines Police Department, shall not be required to pay the amount herein ordered.

(Emphasis added.)

The City timely filed a petition for judicial review of the Commission's order in the district court. The filing of the City's petition stayed all action in regard to the Commission's order of July 11, 1973, under the statute then in effect. Iowa Code § 601A.10(10) (1973). But see Iowa Code § 601A.17(1) (1983) (judicial review of Commission orders is governed by the Iowa Administrative Procedure Act--Iowa Code ch. 17A); Iowa Code § 17A.19(5) (1983) ("The filing of the petition for judicial review does not itself stay execution or enforcement of any agency action. Upon application the agency or the reviewing court may, in appropriate cases, order such a stay pending the outcome of the judicial review proceedings.").

The Police Pension Board dropped the discriminatory height-weight requirements on August 2, 1976. In view of this action and the steps undertaken by the City in recruitment of females and test validation in accordance with the Commission's order, the City did not pursue prosecution of its petition for judicial review, which was accordingly dismissed pursuant to Iowa R.Civ.P. 215.1 on June 24, 1977.

On October 16, 1978, Moore filed an application for a hearing before the Commission to determine damages allegedly due her under the 1973 Commission order. After an evidentiary hearing, a hearing officer submitted a proposed decision to the Commission which recommended that the Commission not attempt to establish damages since it was without authority to review its 1973 order once it became final and that the appropriate action was for the Commission to seek enforcement by suit in district court. The Commission rejected the proposed decision and entered an order on August 22, 1980, awarding Moore $34,387.62 in backpay damages to be paid with interest at seven percent from the date of the 1980 order.

The City filed a petition for judicial review of the Commission's 1980 order in district court on October 17, 1980. The Commission and Moore entered a special appearance challenging the adequacy of the service of the petition for judicial review on Moore by the City under Iowa Code section 17A.19(2) (1979) of the Iowa Administrative Procedure Act (IAPA). A copy of the petition had been mailed to Moore's attorney instead of Moore. The district court sustained the special appearance and dismissed the City's petition for judicial review.

The City appealed to this court contending error by the district court in failing to properly apply the notice provisions of the IAPA. In a per curiam opinion filed October 21, 1981, City of Des Moines Police Department v. Iowa Civil Rights Commission, 315 N.W.2d 820 (Iowa 1981) (Table), we agreed with the City, holding that Moore's 1978 application commenced a second proceeding to which the IAPA applied. This decision was based on a finding that the Commission's 1973 order became final upon the dismissal of the City's petition for judicial review of the 1973 order in that no appeal from the dismissal was brought before this court. We specifically noted that "[t]he Commission's order did not purport to retain jurisdiction for the purpose of later determining the amount of intervenor's [Moore's] damages." The Commission's petition for rehearing was denied.

On remand, the district court held on judicial review, contrary to our opinion, that the Commission retained jurisdiction to determine the damages due Moore under the 1973 order and affirmed the Commission's order awarding backpay damages to Moore.

The City appeals from this latest decision of the district court. The Commission and Moore cross appeal from the interest award made by the court in connection with the damages decision made by the Commission.

In our prior per curiam opinion we concluded the Commission's 1973 order became final in its entirety when the City's original petition for judicial review was dismissed pursuant to Iowa R.Civ.P. 215.1 on June 24, 1977. We note that "[o]nce an agency decision has become final, there is no statutory authorization for...