BEFORE THE IOWA CIVIL RIGHTS COMMISSION
JAMES A. MONTZ, Complainant, and IOWA CIVIL RIGHTS COMMISSION,
CIVIL SERVICE COMMISSION and CITY OF ESTHERVILLE, IOWA, Respondents.
RULINGS ON OBJECTIONS TO EVIDENCE
1. A number of objections were made to the admissibility of either testimony
or exhibits. Many of these objections were simply noted in the record because
evidence which would be excluded under the rules of evidence in a jury trial
may be admitted in administrative hearings. Iowa code § 17A.14(l).
When this procedure is followed, the objection, if it is found to be valid,
may affect the weight given to the exhibit or testimony objected to, but
the exhibit or testimony is admitted in the record and no ruling on the
validity of the objection is made in the proposed decision.
2. Other testimony and exhibits were admitted subject to the objections
with the understanding that the objections to them would be ruled upon in
this decision. 161 IAC 4.2(5). This procedure is often followed when one
of the objections is that the proffered evidence is irrelevant, immaterial,
or unduly repetitious, all of which are grounds upon which the evidence
should be excluded. See Iowa Code § 17A.14(l) (1991).
Respondents' Exhibit B:
3. Respondents' Exhibit B was admitted into
the record subject to an objection on relevance. (Tr. at 150). The
exhibit consists of a copy of a letter, dated March 12, 1991, from
Emmet County Sheriff Larry Lamack to the Complainant's attorney's legal
assistant which indicated that Complainant Montz did not achieve the minimum
required score on an entry level test for the position of Deputy Sheriff
in July of 1989. (R. EX. B). The exhibit was relevant at the time it was
offered for two reasons: First, it was evidence of the existence of an incident
which caused Complainant Montz some emotional distress. (Tr. at 153). Respondent
could bring out this incident in an attempt to show that there were causes
of Complainant's emotional distress which were independent of his treatment
by Respondents. Second, at the time, Respondent argued that failure on this
examination would demonstrate that Montz would have failed a written examination
for Estherville police officer. Respondent subsequently waived this argument.
(Tr. at 768-70). The objection is overruled based on the first rationale.
Complainant's Questions Concerning the Filling of Police Officer Positions After 1989:
4. The Respondents objected to the relevance of questions concerning
the filling of police officer positions after 1989. They also asserted that
inadequate notice was given as Montz' complaint focused on his rejection
in 1989. (Tr. at 297). The questions were allowed subject to the objection.
(Tr.at 299,315). The questions were.designed to establish whether the City
continued to utilize the certified list established after Montz' application,
whether it continued to enforce its maximum age hiring limit, and whether
post 1989 vacancies were health related. All of these topics were relevant
in determining whether the Respondents" policy constituted a continuing
violation, as alleged in the complaint, and whether, in light of Respondents'
assertion that its maximum hiring age was a bona fide occupational qualification,
this policy was actually effective in maintaining a physically fit police
force. The objection as to relevance is overruled.
5. With respect to inadequate notice, the complaint alleges that the
"date most recent or continuing discrimination took place" is
on "September 4-8,1989 and continuing." The Complaint's main allegation
is that the Respondents have instituted "an age requirement that the
age: must be no older than 33 years old." A fair reading of the complaint
is that the 1. most recent or continuing discrimination" alleged is
the maintenance of the hiring age limit.
6. In determining what issues are fairly pled by an administrative civil rights complaint taken to hearing, it should be borne in mind that this is:
an administrative proceeding foundationed upon a legislative enactment designed more to implement broad public policy than to adjudicate differences between private parties . . . [T]echnical rules of pleading have no application in an administrative proceeding. . . "[T]he key to pleading in an administrative process is nothing more nor less than opportunity to prepare and defend. And deficiencies in any pleading in that field may be cured by motion for more specific statement.
If [the individual] does not request [a continuance to meet the new issues] and elects instead to proceed with the hearing, he waives the claim of surprise. He may not subsequently challenge issues actually litigated; actual notice and adequate opportunity to cure surprise [by requesting a continuance] are all he is entitled to.
B. Schwartz, Administrative Law 285-86 § 6.5 (1984).
8. Neither a motion for more specific statement, as allowed by Iowa Code
Section 17A.12(d), nor a motion for continuance was made by Respondents.
The objection as to inadequate notice of the continuing violation is overruled.
Respondents' Exhibit AA:
9. The Complainant objected to the admission of the Commission's case
summary and probable cause recommendation, Respondents' Exhibit AA, on the
grounds of relevance. (Tr. at 668). The summary and recommendation is relevant
for the purpose of establishing the bare facts that an investigation was
conducted and that a recommendation was made by
the investigator as required by law. See Iowa Code § 601A.15(3)(a).
Although relevant for these purposes, it should be noted that neither the
Commission nor the Administrative Law Judge are in any way bound to follow
the recommendation, but are required to make their decision based on evidence
in the record and matters officially noticed. See Iowa Code § 17A.12(8).
The objection as to relevancy of Respondents' Exhibit AA is overruled.
Respondents' Exhibit CC:
10. The Complainant objected to the admission of Respondents' Exhibit
CC, which consists of the transcript of the investigator's taped interviews
with James Montz, Vaughn Brua, Gordon Forsyth, Paul Farber and Ben Yarrington,
on the grounds of relevance. (Tr. at 677). The Respondents initially argued
that Exhibit CC was relevant because it demonstrated that "Mr. Montz
did not level with Ms. Hall during her investigation of this case and that
because of that... her recommendation of probable cause is flawed..... it
[also] goes to [Mr. Montz' credibility." (Tr. at 678). The Respondents
subsequently decided that "the value of examining the factual accuracy
of Ms. Hall's case summary and recommendation would be limited and I'm not
going to do it." The Respondents also elected not to pursue questioning
of Ms. Hall with respect to Mr. Montz' credibility. (Tr. at 680). Nonetheless,
these interviews contain information relevant to the hiring process, liability,
and the Respondents' bona fide occupational qualification defense. Under
these circumstances, therefore, the objection as to relevancy is overruled.
Respondents' Exhibits BB and FF.
11. The Complainant also objected to Respondents' Exhibits BB and FF
on the grounds of relevancy. (Tr. at 682, 806). Exhibit BB is a form which
verifies that this case was cross filed with the Equal Opportunity Employment
Commission, the agency which enforces the Age Discrimination in Employment
Act (ADEA). This exhibit was offered solely as a predicate to Respondents"
Exhibit FF. (Tr. at 683). Therefore, its relevancy is tied to the relevancy
of Exhibit FF. If Exhibit FF is not relevant to this case, neither is Exhibit
12. Exhibit FF is an Equal Opportunity Employment Commission (EEOC) post-investigation
determination, dated April 20,1991, indicating that "the evidence obtained
during the investigation does not establish a violation of the [federal
Age Discrimination in Employment Act]." Respondents asserted that Exhibit
FF was offered with respect to their bona fide occupational qualification
defense and the analytical framework for determining whether an age qualification
is a BFOQ for a particular position. (Tr. at 683, 807).
13. Exhibit FF makes no mention, however, of any BFOQ analysis. It simply
states that "[i]t is not unlawful under the ADEA for an employer which
is a State..... (or) an agency or instrumentality of a State to fail or
refuse to hire any individual because of age when such action is taken with
respect to employment as a law enforcement officer." This statement
paraphrases a specific, temporary, statutory exemption, 29 U.S.C. §
623(i), in the ADEA for law enforcement officer positions which was enacted
in 1986. Age Discrimination in Employment Act Amendments of 1096, Pub. L.
No. 99-592, § 3(a), 100 Stat. 3342 (cited in 4 H. Eglit, Age Discrimination,
App F-8 n.7 (1992). The provision will be automatically repealed on December
31, 1993. Id. at § 7(a).
14. Given this specific exemption for law enforcement officers, there
was no reason for the EEOC to analyze Estherville's age requirement under
the ADEA's BFOQ exemption which is set forth at 29 U.S.C. Section 623 (f)(1).
It should be noted that the ADEA's temporary exemption for law enforcement
officer positions does not control the result under the Iowa Civil Rights
Act as the ADEA does not pre-empt the Act or other state laws which offer
greater protection against age discrimination than is offered by the AEA.
Hulme v. Barrett, 449 N.W.2d 629, 631 (Iowa 1989); 3 H. Eglit, Age Discrimination
§ 17.15 (1992).
15. Exhibits BB and FF do not have "any
tendency to make the existence of any fact that is of consequence to the
determination of th[is] action more probable or less probable than it would
be without this evidence." Iowa R. Evid. 401 (Definition of "relevant
evidence"). The objection is sustained. These exhibits are not relevant
evidence and are stricken from the record.
Complainant's Questions Concerning Whether the Respondents Had Waived Minimum Requirements for Applicants:
16. Respondents objected to a line of questions
on whether or not Robert Burdorf, (who was eventually hired from the certified
list which resulted from the competitive process which Complainant Montz
was not permitted to participate in), was allowed to participate in the
testing process despite his failure to possess a valid Iowa driver's license
at the time he applied. (Tr. at 1099, 1101). These questions were relevant
to determining whether, and under what conditions, Respondents were willing
to waive or delay fulfillment of the established minimum qualifications
by applicants for the police officer position. This information is relevant
because Respondents asserted that Complainant Montz failure to meet other
minimum requirements, i.e. an Associate of the Arts degree in law enforcement
or ILEA certification or the equivalent, were either reasons for not permitting
him to compete at the time of his rejection or would have resulted in his
rejection in the event he had not been rejected due to his age. Respondents'
objection as to relevancy is overruled.
Respondents' Exhibit PP.
17. Respondents' Exhibit PP is a summary of a 1975 case decided by the Florida Supreme Court upholding a maximum age hiring limit established by the Florida Highway Patrol. The plaintiff, an applicant excluded by this limit, asserted he was thereby denied the equal protection of the laws guaranteed by the 14th amendment to the Constitution of the United States. The exhibit was not offered for the validity of the legal opinions stated therein, (Tr. at 1148), but simply to show that the Respondents relied on legal advice and analysis given by the city attorney, which included this summary. (Tr. at 1147, 1148). It is relevant for this limited purpose. The objection is overruled. It should be noted that the question, of whether reliance on legal advice constitutes a valid defense to a discrimination claim under the Iowa Civil Rights Act, will be considered in the conclusions of law.