Hamer v. Iowa Civil Rights Com'n

Decision Date19 June 1991
Docket NumberNo. 90-226,90-226
Citation472 N.W.2d 259
Parties61 Fair Empl.Prac.Cas. (BNA) 571 Victoria L. HAMER, Appellant, v. IOWA CIVIL RIGHTS COMMISSION and United Parcel Service, Inc., Appellees. UNITED PARCEL SERVICE, INC., Appellant, v. IOWA CIVIL RIGHTS COMMISSION, and Victoria L. Hamer, Appellees.
CourtIowa Supreme Court

Albert L. Harvey and Rodney H. Powell of Black, Harvey, Goldman & Powell, P.C., Des Moines, for appellant United Parcel Service, Inc.

H. Edwin Detlie, Ottumwa, for appellant Victoria L. Hamer.

Thomas J. Miller, Atty. Gen., and Rick Autry, Asst. Atty. Gen., for appellee Iowa Civil Rights Com'n.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, SNELL, and ANDREASEN, JJ.

LARSON, Justice.

Victoria Hamer was fired from her position with United Parcel Service (UPS) at its Ottumwa, Iowa, facility, and she filed a claim for sex discrimination under Iowa Code chapter 601A (1983). The Civil Rights Commission awarded damages, ordered her reinstatement, and assessed attorney fees. UPS petitioned for judicial review, and the district court affirmed the Commission's award except for the award of emotional distress damages, which it reversed. All parties appealed or cross-appealed. We affirm in part, reverse in part, and remand.

Hamer began employment at UPS in 1977. In 1980, she began working as an on-call delivery driver. In March 1984, UPS terminated Hamer for failure to be available for work for three consecutive days, claiming that Hamer violated the "no-call/no-show" provision of UPS's collective bargaining agreement. On Hamer's claim of sex discrimination, the Iowa Civil Rights Commission found UPS's justification for the discharge to be pretextual.

Judicial review of Civil Rights Commission actions is governed by the Iowa Administrative Procedure Act, Iowa Code § 17A.19. See Iowa Code § 601A.17(1). Under section 17A.19(8)(f), the Commission's factual findings must stand if supported by substantial evidence when the record is viewed as a whole. Substantial evidence is what a reasonable mind would accept as adequate to reach a given conclusion, even if the reviewing court would have drawn a contrary inference from the evidence. Varied Enters., Inc. v. Sumner, 353 N.W.2d 407, 409 (Iowa 1984). Our court cannot engage in independent findings of fact unless the facts are established as a matter of law. Eaves v. Board of Medical Examiners, 467 N.W.2d 234, 237 (Iowa 1991); Aluminum Co. of Am. v. Employment Appeal Bd., 449 N.W.2d 391, 394 (Iowa 1989); Armstrong v. State of Iowa Bldgs., 382 N.W.2d 161, 165 (Iowa 1986).

I. Evidence Issues.

UPS claims that the Commission erred in (a) drawing inferences from UPS's failure to produce documents, (b) relying on prior acts of alleged discrimination, (c) basing credibility determinations on the presence of certain parties at the hearing, and (d) finding discrimination under the record.

A. Inference from failure to produce evidence. According to UPS, Hamer was terminated because she was not at her phone for three consecutive days when the company attempted to call her for work. Hamer claimed this alleged justification was pretextual. The administrative law judge determined that the work records of the week in question were relevant and ordered UPS to produce them. UPS did not produce the information, claiming that its policy was to destroy documents after three years, and the work schedule was no longer in existence. This explanation was rejected by the administrative law judge in light of the fact that the work records from the preceding six weeks were available and were offered into evidence by UPS.

When relevant evidence is within the control of a party whose interest is affected, a court may infer that the evidence, if not produced, would be unfavorable to that party. Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 271 (Iowa 1991); Crosser v. Iowa Dep't of Pub. Safety, 240 N.W.2d 682, 685 (Iowa 1976); Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 127, 143 N.W.2d 345, 348 (1966). The administrative law judge drew that inference here, and we find no error in doing so. The evidence in question had been available to UPS; the evidence was not produced, and the explanation tendered by UPS for failure to produce it was found by the administrative law judge to be insufficient.

B. The credibility issue. UPS also complains that the agency wrongfully impugned the credibility of UPS employees who testified, for UPS, that the work environment was largely free of sexual harassment. The hearing officer found these employees were "very nervous during the hearing and less than credible witnesses," and noted, as if in explanation, that wives, close friends, and "a girlfriend" of the employees were present at the hearing. UPS complains that the Commission erred in "basing its decision" on the presence of those persons at the hearing.

We do not agree with UPS's premise that the Commission's findings, when viewed as a whole, were "based" on the presence of outsiders at the hearing. Credibility assessments are largely left to the fact finder, and we give deference to those findings. Peoples Memorial Hosp. v. Iowa Civil Rights Comm'n, 322 N.W.2d 87, 92 (Iowa 1982). While the administrative law judge did not state that she considered the presence of these people in determining the credibility of the witnesses, we cannot say that this would be improper if she had.

C. Evidence of prior acts. UPS contends that the Commission erred in considering evidence of earlier acts by UPS personnel. The standard for admissibility in administrative hearings is that the evidence be "the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs ... even if it would be inadmissible in a jury trial." Iowa Code § 17A.14(1) (1989). This section conforms with the general rule that administrative agencies are not bound by technical rules of evidence. McConnell v. Iowa Dep't of Job Serv., 327 N.W.2d 234, 237 (Iowa 1982).

Evidence of a discriminatory atmosphere is relevant in considering a discrimination claim, and it "is not rendered irrelevant by its failure to coincide precisely with the particular actors or time frame involved in the specific events that generated a claim of discriminatory treatment." Conway v. Electrol Switch Corp., 825 F.2d 593, 597 (1st Cir.1987). As the court in Conway stated:

While evidence of a discriminatory atmosphere may not be conclusive proof of discrimination against an individual plaintiff, such evidence does tend to add "color" to the employer's decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff....

....

... While this court has recognized that "proof of a general atmosphere of discrimination is not the equivalent of proof of discrimination against the individual," it may be one indication that the reasons given for the employment action at issue were "implicitly influenced" by the fact that the plaintiff was of a given race, age, sex or religion.

Id. at 597-98.

In a claim of disparate treatment in employment, proof of the employer's motive is critical. Hy-Vee Food Stores v. Civil Rights Comm'n, 453 N.W.2d 512, 516 (Iowa 1990) (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396, 415 n. 15 (1977)).

Of course, a discriminatory motive will rarely be announced or readily apparent. Consequently, evidence concerning the employer's state of mind is relevant in determining what motivated the acts in question. Evidence of prior acts have been allowed in numerous federal cases. See, e.g., Estes v. Dick Smith Ford, 856 F.2d 1097, 1104 (8th Cir.1988) (employer's discriminatory treatment of black customers might have some bearing on question of employer's motive in discharging black employee); Hallquist v. Local 276, Plumbers & Pipefitters Union, 843 F.2d 18, 23 (1st Cir.1988) (statements derogatory toward women by foreman is relevant to motive for discharge); Miles v. M.N.C. Corp., 750 F.2d 867, 876 (11th Cir.1985) (racial slur by assistant superintendent relevant to motive in failure to recall suit); Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1412 (10th Cir.1984) (failure to remedy harassment by employees may serve as proof that the employer's proffered nondiscriminatory reason for the discharge was pretextual); Carter v. Duncan-Huggins, Ltd., 727 F.2d 1225, 1236 (D.C.Cir.1984) (the fact supervisor laughed at racist joke could be evidence of discriminatory motive); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 97 (6th Cir.1982) (evidence of racial slurs by supervisor relevant to plaintiff's prima facie case and to establish pretext).

UPS's argument that the acts were not within 180 days of Hamer's complaint is irrelevant, even though Iowa Code section 601A.15(12) requires that a complaint be filed within 180 days of alleged discrimination. See Lynch v. City of Des Moines, 454 N.W.2d 827, 831 (Iowa 1990). The prior acts are relevant to show the general atmosphere of Hamer's workplace; they need not be actionable in themselves in order to be admissible.

D. The substantial evidence issue. UPS does not challenge the sufficiency of the evidence in the record as a whole, but it points to alleged defects in the Commission's analysis of specific items of evidence in the record underlying the Commission's finding that Hamer's discharge was pretextual.

UPS contends, for example, that the Commission's findings on the question of whether UPS had telephoned Hamer on a key date lacked sufficient support in the evidence and were based solely on the speculation of the hearing officer.

Hamer and the Commission counter, first, that the no-call/no-show argument is a red herring; the rule is not aimed at on-call employees at all, but to employees who are scheduled to work but neither show up for work nor call to tell UPS. Second, and more significantly, the key question is...

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