Civil Service Com'n v. Iowa Civil Rights Com'n, 93-1001

• Decision Date: 21 September 1994
• Docket Number: No. 93-1001,93-1001
• Citation: 522 N.W.2d 82
• Parties: CIVIL SERVICE COMMISSION and City of Estherville, Iowa, Appellees, v. IOWA CIVIL RIGHTS COMMISSION, Appellant, and James A. Montz, Intervenor-Appellant.
• Court: Iowa Supreme Court

Page 82

522 N.W.2d 82

CIVIL SERVICE COMMISSION and City of Estherville, Iowa, Appellees, v. IOWA CIVIL RIGHTS COMMISSION, Appellant and James A. Montz, Intervenor-Appellant.

No. 93-1001.

Supreme Court of Iowa.

Sept. 21, 1994.

Rehearing Denied Oct. 17, 1994.

Bonnie J. Campbell, Atty. Gen., and Teresa Baustian, Asst. Atty. Gen., for appellant.

Roger J. Kuhle, John C. Barrett, and John O. Haraldson of the Law Office of Roger J. Kuhle, P.C., West Des Moines, for intervenor-appellant.

James A. Albert, Des Moines, for appellees.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

In this case we decide the extent to which a civil service commission may use age as a screening criterion in the hiring of police officers. James Montz was not allowed to compete for a position on the City of Estherville's police force because of his age. He filed a complaint against the City and its civil service commission with the Iowa Civil Rights Commission (ICRC). The ICRC ruled that the City's refusal to hire persons older than thirty-two as police officers violated Iowa's civil rights statute, Iowa Code chapter 601A (1991). ¹

On judicial review, the district court reversed the ICRC. It concluded that Iowa Code section 400.8(1) allows civil service commissions to use age in determining the physical and mental ability of an applicant for a police officer position. Montz and the ICRC appealed. We affirm the district court because we conclude the City proved it would not have hired Montz even if it had not considered his age.

I. Factual Background.

The City of Estherville uses a civil service commission for employment of police officers. See Iowa Code § 400.3 (1991). In 1978 the Estherville Civil Service Commission (Commission) adopted a maximum hiring age of thirty-two for police officers. Under the Commission's rule a police officer had to be under thirty-three years of age at the time of appointment.

In 1989, Montz applied for an advertised vacancy on the City's police force. He was forty-three years old at the time. The city clerk, who also served as the Commission's secretary, screened all applications. The clerk determined, if possible, whether the applicants met the minimum standards for police officers under the Commission's rules. Because Montz had reached his thirty-third birthday, the clerk informed him by letter that he did not qualify for the position.

The applicants who survived the initial screening by the clerk took a written test and completed various physical and psychological examinations and tests. Based on the results of these tests and examinations and the applicants' other qualifications, the Commission evaluated the applicants and prepared a certified list of ten candidates. The police chief eventually hired one of the persons on the certified list for the position sought by Montz. The person hired was under age thirty-three.

II. Procedural History.

Montz filed a complaint with the Iowa Civil Rights Commission. The ICRC adopted the proposed ruling and order of the hearing officer. It found that (1) the Commission and the City had discriminated against Montz based on his age in violation of chapter 601A; (2) the Commission and the City failed to prove that age was a bona fide occupational qualification (BFOQ); (3) the Commission and the City failed to prove that Montz would not have been hired because of his educational deficiencies even if his age had not been considered; and (4) the Commission and the City did not prove their defenses of laches and equitable estoppel. The ICRC awarded monetary damages and ordered equitable relief.

On judicial review, the district court concluded that section 400.8(1) governed this case, not section 601A.6. It then ruled that the ICRC's analysis was affected by error of law because the ICRC applied section 601A.6 instead of section 400.8(1). The district court also held that the ICRC's decision was not supported by substantial evidence and was unreasonable and arbitrary. It reversed the ICRC's decision in its entirety.

Montz and the ICRC appealed. Initially, they claim that the district court ignored the appropriate standard of review by making new factual findings on (1) whether age was a BFOQ, (2) whether Montz met the educational requirements for the position, (3) whether Montz would not have been hired regardless of age because he did not meet the educational requirements, and (4) whether the City and Commission had proved a factual basis for their laches and estoppel defenses. They also contend that the district court made several legal errors: (1) in concluding section 400.8(1) is an exemption from the antidiscrimination provisions of section 601A.6 and Iowa Code section 400.17, (2) in using an incorrect legal test for the BFOQ defense, and (3) in applying the doctrine of equitable estoppel against a governmental agency.

III. Standard of Review.

The Iowa Administrative Procedure Act, Iowa Code chapter 17A, governs judicial review of decisions of the ICRC. Iowa Code § 601A.17(1) (1991). The district court may reverse if the agency's decision was affected by an error of law or was unreasonable, arbitrary or capricious. Id. § 17A.19(8).

It may also reverse if the agency's decision is not supported by substantial evidence. Id. § 17A.19(8)(f). Evidence is substantial if a reasonable person would find it adequate to reach a given conclusion. Landals v. George A. Rolfes Co., 454 N.W.2d 891, 893 (Iowa 1990).

When we review the case on appeal, we apply these same standards to determine if our conclusions are the same as those of the district court. Hanson v. Reichelt, 452 N.W.2d 164, 166 (Iowa 1990).

IV. Governing Law.

A. Potentially applicable statutes. The overriding issue in this case is what law governs. So we begin our discussion with a review of the relevant statutes. Iowa Code section 601A.6(1)(a) was enacted in 1966. It prohibits age discrimination in employment "unless based upon the nature of the occupation." Iowa Code § 601A.6(1)(a) (1991). This statute applies to any person employing employees in the state with certain exceptions not relevant here. Id. § 601A.6(6).

Chapter 400 applies to civil service employees. An antidiscrimination provision was added to section 400.17 in 1975. This provision states:

A person shall not be appointed, promoted, discharged, or demoted to or from a civil service position or in any other way favored or discriminated against in that position because of political or religious opinion or affiliations, race, national origin, sex, or age.

Id. § 400.17.

Section 400.8(1) contains a narrower prohibition of discrimination adopted in 1976:

An applicant shall not be discriminated against on the basis of height, weight, sex, or race in determining physical or mental ability of the applicant.

Id. § 400.8(1). The parties agree that this provision applies only to the hiring of police officers, police matrons and fire fighters.

In addition to this antidiscrimination provision, the first sentence of section 400.8(1) refers to "maximum age limits." That sentence has been in section 400.8(1) since 1937 and states in part:

The commission, when necessary under the rules, including minimum and maximum age limits, which shall be prescribed and published in advance by the commission and posted in the city hall, shall hold examinations for the purpose of determining the qualifications of applicants for positions under civil service....

Id. (emphasis added).

Neither of the antidiscrimination provisions in chapter 400 contains an exception for the use of discriminatory criteria based on a bona fide occupational qualification.

B. Positions of the parties. Montz and the ICRC argue that sections 601A.6 and 400.17 govern this case. They support this position on two bases. First, they contend that section 400.8(1) does not allow the use of age in hiring civil service police officers because it does not mention age discrimination. Second, they assert that section 400.8(1) operates as an exception to sections 601A.6 and 400.17 only with respect to the factors expressly listed in section 400.8(1). As to factors not listed, they argue, sections 601A.6 and 400.17 apply.

The Commission and City claim that the first sentence of section 400.8(1) authorizes maximum age hiring limits. Alternatively, they argue that the antidiscrimination language of section 400.8(1) creates a statutory BFOQ.

In deciding which one or more of the three potentially relevant statutes apply here, we must first interpret these statutes. We give an agency only limited deference on matters of law, including statutory interpretation. Cobb v. Employment Appeal Bd., 506 N.W.2d445,447 (Iowa 1993). Ultimately, the correct interpretation of a statute is our decision to make. Id.

C. Does the antidiscrimination provision of section 400.8(1) allow the use of age in hiring civil service police officers? The employment situation involved here factually falls within the scope of section 400.8(1) because it involves the hiring of a civil service police officer. Therefore, section 400.8(1) applies. The next question is whether the ICRC is correct in its assertion that section 400.8(1) does not allow age discrimination because age is not mentioned.

"The express mention of one thing in a statute implies the exclusion of others." Lacina v. Maxwell, 501 N.W.2d 531, 533 (Iowa 1993). Section 400.8(1) prohibits discrimination only based on height, weight, sex and race. Unless we read the word "age" into this statute, it allows the use of age to evaluate the physical abilities of applicants for police officer positions. Cf. Sioux City Police Officers' Ass'n v. City of Sioux City, 495 N.W.2d 687, 694-95 (Iowa 1993) (because section 400.17 does not expressly include family relationships as a forbidden employment criterion, the city could adopt an antinepotism policy). Therefore, although section 400.8(1) does not expressly authorize age...