Frеderick ESTABROOK, Appellant, v. IOWA CIVIL RIGHTS COMMISSION, Appellee.
No. 62629.
Supreme Court of Iowa.
Sept. 19, 1979.
Rehearing Denied Nov. 8, 1979.
Department of the Air Force v. Rose, 425 U.S. 352, 387-88, 96 S.Ct. 1592, 1611, 48 L.Ed.2d 11, 36 (1976) (dissenting opinion).
I believe the publication here could reasonably have been found by a factfinder to improperly invade plaintiff‘s privacy, and that chapter 68A does not place the underlying information into the public domain so as to emasculate the right to pursue that claim without a trial. I would reverse and remand for trial on the merits.
LeGRAND, J., joins in this dissent.
Thomas J. Miller, Atty. Gen., and Raymond D. Perry, Asst. Atty. Gen., for appellee.
REYNOLDSON, Chief Justice.
The basic question in this appeal is whether the appellant employee Estabrook was entitled to a chapter 17A contested case evidentiary hearing in the “probable cause” phase of his age-discrimination complaint before the Iowa Civil Rights Commission under the provisions of chapter 601A, The Code 1977.
December 16, 1976, Estabrook filed a complaint with the commission, claiming his employer, Goodyear Tire & Rubber Co., discriminated against him on the basis of age when it changed his work assignment and reduced his wages. Following a commission determination of no probable cause, Estabrook petitioned district court for judicial review and secured a remand order directing the commission to receive additional evidence and issue a new decision. The commission and staff person assigned to the complaint investigated further and considered affidavits and written materials but did not provide a full-blown section 17A.12 notice and evidentiary hearing.
April 13, 1978, the commission notified Estabrook it still found no probable cause to take action on his complaint.
Estabrook again sought judicial review, contending (1) the commission failed to hold an evidentiary hearing in a contested case proceeding as required by statute, (2) he had a constitutional right to an evidentiary hearing prior to dismissal of his complaint, and (3) the finding of no probable cause was not supported by the weight of substantial evidence.
District court concluded the commission‘s finding was reviewable as final agency action, but not as a contested case. It therefоre utilized the
Appealing here, Estabrook asserts the commission‘s probable cause function is a contested case proceeding under the Iowa Administrative Procedure Act and that the commission‘s finding of “no probable cause” was not supported by substantial evidence.
Because the procedural issue necessarily involves resolution of constitutional questions, ordinarily we would first examine the substantive merits of Estabrook‘s dispute with the commission‘s decision. But his only district court challenge to the merits of that decision was that it was not supported by substantial evidence.
We cannot review the merits of the commission‘s ruling under the contested case standard unless and until we decide that ruling involved a contested case proceeding.
I. Contested case evidentiary hearing issue.
“Contested case” means a proceeding including but not limited to ratemaking, price fixing, and licensing in which the legal rights, duties or privileges of a party are required by Constitution or statute to be determined by an agency after an opportunity for an evidentiary hearing.
We have said the only question which arises under this definition is whether the Constitution or a statute requires an opportunity for an evidentiary hearing. Airhart v. Iowa Department of Social Services, 248 N.W.2d 83, 86 (Iowa 1976).
A. Although Estabrook asserted on judicial review in district court he had a statutory right to an evidentiary hearing on the probable cause issue, we do not interpret his brief here as taking that position. In any event, we construe the Iowa Civil Rights Act of 1965, chapter 601A, The Code 1977, as requiring a hearing only after certain conditions are met, including a finding of probable cause by the investigating official,
B. We thus reach Estabrook‘s contention that constitutional due process requires a hearing prior to a no probable cause finding.
It must be kept in mind that the Iowa Civil Rights Act of 1965 was designed to correct a broad pattern of behavior rather than merely affording a procedure to settle a specific dispute. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971).
The legislature established the commission in 1965 “to eliminate unfair and discriminatory practices in public accommodations [and] employment.” 1965 Session, 61st G.A., ch. 121 (title of act). Chapter 601A delegates to the commission the power and duty “[t]o receive, investigate, and pass upon complaints alleging unfair or discriminatory practices.”
“Any person claiming to be aggrieved by a discriminatory or unfair practice may . . . file with the commission a complaint . . . .”
§ 601A.14(1) . The commission then makes “a prompt investigation.”§ 601A.14(3) . If it determines “that probable cause exists for crediting the allеgations of the complaint, the investigating official shall promptly endeavor to eliminate such discriminatory or unfair practice by conference, conciliation, and persuasion.”
When informal resolution is unsuccessful, the commission may commence formal proceedings against the respondent.
If the commission finds respondent has engaged in a discriminatory or unfair practice, it issues a cease and desist order and orders whatever “affirmative action” it judges to be necessary.
The legislature apparently also enacted chapter 601A to provide a legal enforcement tool for federal civil rights legislation. The Civil Rights Act of 1964,
The employment portions of these federal laws are administered and enforced by the Equal Employment Opportunity Commission and the Department of Labor respectively. That Congress anticipated creation of state commissions to effect this federal mandate, however, is clеar from examination of the legislation. Referring to the Civil Rights Act, the Supreme Court recently said:
Congress intended through [42 U.S.C. § 2000e-5(c)] . . . to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary resort to federal relief by victims of the discrimination.
Oscar Mayer & Co. v. Evans, 441 U.S. 750, 755, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609, 615 (1979) (citation omitted). The Court concluded the purpose, relevant language, and legislative history of the Civil Rights Act and Age Discrimination in Employment Act were the same, and transposed the legislative intent of section 2000e-5(c) onto
“[P]rior rеsort to appropriate state proceedings is required under [section 633(b)], just as under [section 2000e-5(c)].” Oscar Mayer, 441 U.S. at 756, 99 S.Ct. at 2071, 60 L.Ed.2d at 616. See also Love v. Pullman Co., 404 U.S. 522, 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972) (prior resort to deferral states required under section 2000e-5(c)). If settlement on the local level is unsuccessful or does not occur within sixty days, then a complainant may utilize federal administrative and, ultimately, judicial remedies. In its own determination of reasonable cause, EEOC accords “substantial weight” to state findings.
42 U.S.C. § 2000e-5(b) . There are no comparable provisions for crediting state findings in the Age Discrimination in Employmеnt Act. Under both statutes, however, the civil suit brought by a still-dissatisfied complainant is a de novo trial rather than judicial review of administrative action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 799, 93 S.Ct. 1817, 1822-23, 36 L.Ed.2d 668, 676 (1973) (Civil Rights Act); Nabors v. United States, 568 F.2d 657 (9th Cir. 1978) (Age Discrimination in Employment Act).
In these situations we are not dealing with “civil liberties” which are immunities—restraints on government—protected by constitutional provisions. Rather, we are involved with “civil rights” which are enforceable claims rooted in legislation. Iron Workers, 191 N.W.2d at 771. The requirements of procedural due process apply only to the deprivation of interests encompassed by the fourteenth amendment‘s protection of liberty and property. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668, 675 (1979); Board of Regents v. Roth, 408 U.S. 564, 569,
[t]o have a property interest in a benefit, a person . . . must have more than a unilateral expectation to it. He must, instead, have a legitimate claim of entitlement to it. . . .
Property interests, of course, are not created by the Constitution. Rather, they arе created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Roth, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561.
We may assume for the purposes of this opinion Estabrook has a property interest in the form of his right not to be discriminated against because of his age—a right foundationed by federal and state enactments. But it is plain that no commission action he now complains of deprived him of this right. If, as here, the commission terminates the proceedings on a no probable cause finding he merely has exhausted his state administrative remedy. See City of Iowa City v. Westinghouse Learning Corp., 264 N.W.2d 771 (Iowa 1978);
We have recognized that a duty which will foundation a justiciable claim can be created by statute if the legislature purposed or intended to protect a class of persons to which the victim belongs against a particular harm which the victim has suffered. Wilson v. Nepstad, 282 N.W.2d 664, 667 (Iowa 1979), and citations. More specifically, we have recognized a person subjected to discrimination may have a remedy in civil court in the form of compensatory damages. Iowa Civil Rights Commission v. Massey-Ferguson, Inc., 207 N.W.2d 5, 10 (Iowa 1973); Iron Workers, 191 N.W.2d at 768. See also Pompey v. General Motors Corp., 385 Mich. 537, 558-60, 189 N.W.2d 243, 254-55 (1971).
Clearly, Estabrook‘s basic right not to be discriminated against is not adjudicated by the commission‘s no probable cause finding. The issue thus narrows to the question whether Estabrook had such a property interest in the procedural mechanics of chapter 601A as to automatically activate a due process evidentiary hearing right.
We may turn to the enactment to explore the dimensions of Estabrook‘s alleged property right to have his claim pursued through the commission. Examining the statutory provisions, we find the legislature did not intend to require the commission to process every complaint which merely generated a minimal prima facie case. The commission‘s investigating official necessarily must obtain such information as to lead him to reasonably conclude a prohibited discrimination has occurred, for he or she must then “promptly endeavor to eliminate such discriminatory or unfair practice . . . .”
We are further persuaded the legislature did not intend to create a fixed right to a remedy through the commission route because its level of funding and staffing for the commission would make it impossible to
So finding, we hold chapter 601A did not create for Estabrook a “property right” to have his claim processed through the commission, nor did the no probable cause finding adjudicate his legal rights or affect his judicial remedies. It follows he was not entitled to a due process evidentiary hearing on the issue of probable cause. The commission‘s probable cause function is not a section 17A.12 contested case because the Constitution does not require an evidentiary hearing. This determination is supportеd by Georator Corp. v. EEOC, 592 F.2d 765, 768-69 (4th Cir. 1979); Kelly v. EEOC, 468 F.Supp. 417, 418 (D.Md. 1979); Stewart v. EEOC, 17 Fair Empl.Prac.Cas. 1633 (N.D.Ill. 1978); EEOC v. Johnson Co., 421 F.Supp. 652, 656-57 (D.Minn. 1975); Marshall v. Fair Employment Practice Commission, 21 Cal.App.3d 680, 685, 98 Cal.Rptr. 698, 701-02 (1971).
II. Substantial evidence issue.
Our above analysis suggests a subsumed issued whether Estabrook is a person “aggrieved or adversely affected” and thus entitled to any judicial review under section 17A.19. Id. The posture of this appeal makes it unnecessary to reach that question. Although Estabrook, in his amended petition, referred to the commission‘s failure to conduct an evidentiary hearing as “unreasonable, arbitrary or capricious or characterized by an abuse of discretion,” his only challenge to the merits of the commission‘s finding of “no probable cause” before thе district court was that the finding was not supported by substantial evidence. Again on this appeal, Estabrook raises only the
The constitutional issue Estabrook raises is only in the context of an evidentiary hearing requirement, thus seeking to meet the
We add the caveat that chapter 601A, The Code 1977, was revised extensively effective January 1, 1979. 1978 Session, 67th G.A., ch. 1179. This opinion makes no attempt to study the effect of those changes.
AFFIRMED.
All Justices concur except UHLENHOPP and McCORMICK, JJ., who concur specially.
UHLENHOPP, Justice (concurring specially).
I. The court majority assumes for the purposes of the opinion that Estabrook “has a property interest in the form of his right not to be discriminated against because of his age . . . .” I agree.
But the majority concludes, incorrectly, in my view, that the Iowa Civil Rights Commission‘s finding of no probable cause on Estabrook‘s complaint against Goodyear did not “adjudicate” Estabrook‘s charge of age discrimination. After the commission‘s finding of no probable cause under the statute in effect at the time, the only means available to Estabrook for further pursuing his interests under the Iowa Civil Rights Act itself was judicial review pursuant to the Iowa Administrative Procedure Act.
The majority offers two reasons for its conclusion that Estabrook‘s right to be free from age discrimination was not adjudicated by the commission‘s finding. First, the majority notes that Estabrook remains free to “file a civil action in either state or federal court to enforce his extensive rights under the federal enactment.” (Emphasis added.) Second, the majority states that Estabrook has a remedy of filing a civil action in court for damages.
The availability of a federal cause of action to remedy age discrimination does not appear relevant to the issue of whether the right to be free from age discrimination under the Iowa statute was adversely affected.
If a civil damage action was permissible under the statute at the time notwithstanding a finding of no probable cause, that alternative would provide a somewhat stronger basis for concluding that a right to be free from age discrimination is not adjudicated by a commission finding of no probable cause. The United States Supreme Court has held that individuals have no property right, in a constitutional sense, in any particular form of remedy. Gibbes v. Zimmerman, 290 U.S. 326, 332, 54 S.Ct. 140, 142, 78 L.Ed. 342, 347 (1933). When one form of remedy is substituted for another, however, due process requires that the substitute remedy be an effective one. Id.
For a number of reasons a civil action for damages is not an effective substitute for the variety of remedies provided by the Iowa Civil Rights Act. Some of the reasons are considered by Professor Bonfield in State Civil Rights Statutes: Some Proposals, 49 Iowa L.Rev. 1067, 1113 (1964). Private damage suits may involve protracted аnd costly litigation, beyond the resources of the ordinary working person, as well as the expense of engaging counsel whose fees are “unlikely to be recompensed by the relatively small amount of damages awarded, even if they are won.” Id. The most
Federal cases cited by the majority do not appear to support the conclusion that Estabrook‘s rights under the Iowa Civil Rights Act were not adjudicated by the commission‘s finding of no probable cause. Those cases were brought under the federal statutes. The federal statutes, unlike chapter 601A as it stood at the time, provide alternative procedures: one before the commission and the other in court after notice to the commission.
The state case cited by the majority does support the conclusion that Estabrook was not deprived of a liberty or property interest. In that case a California Court of Appeal dealt quite briefly with the petitioner‘s due process argument. After recognizing two United States Supreme Court decisions holding that due process applies to termination of welfare benefits and eviction from public housing projects, the California court reasoned thus: “In the case at bar the state has not deprived petitioner of anything. It has merely refused to act affirmatively. The availability of judicial relief in a proper case seems adequate protection against arbitrary actions by the commission.” Marshall v. Fair Employment Practice Commission, 21 Cal.App.3d 680, 685, 98 Cal.Rptr. 698, 702 (1971).
I would not follow the reasoning in Marshall. Although the Marshall court found the petitioner was deprived of nothing, and hence could not claim the protection of due process, it went on to recognize that a petitioner who is arbitrarily subjected to action by the commission is entitled to judicial relief—in other words, due process. In effеct, the California court concluded that
II. Having concluded that due process applies to Iowa Civil Rights Commission procedure regarding probable cause, I next inquire how much protection due process demands. Strangely, before the employer can be found to have discriminated, quite elаborate administrative hearing proceedings must be taken,
The relevant criteria for determining the procedural safeguards required in a given factual situation were set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) (Powell, J., concurring). The analysis requires consideration of three distinct factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of аdditional or substitute procedural safeguards; and finally, the [state] interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id.
After considering each of these factors, I do not believe that due process requires an “evidentiary hearing” before the commission makes its probable cause determination. Yet under the first factor in the Mathews equation, I take it no one questions that an individual‘s right to be free from age discrimination is an important one. See Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 765 (Iowa 1971). Moreover, a significаnt risk of error appears to exist in the commission‘s procedure for determining probable cause. In the case before us, that procedure involved a personal interview with Estabrook‘s employer and several telephone calls to Estabrook, but no personal interview of him or information to him regarding the employer‘s version of the facts. Estabrook necessarily had to proceed without knowledge of the claimed facts which Goodyear reported to the investigator and without information about the contеnts of the investigator‘s file. A person in Estabrook‘s position is proceeding blindly; he does not know what the employer‘s contentions are which he must rebut.
By requiring an evidentiary hearing in which the complainant has an opportunity to present evidence and hear and respond to opposing evidence, we would probably reduce the risk of error inherent in the commission‘s informal investigatory process. Such a requirement would, however, substantially reduce the speed and simplicity of the proceeding. In establishing the commission‘s investigatory аnd enforcement powers, the legislature apparently intended to create a quick and efficient means of relief for victims of unlawful discrimination. To require the commission to hold an evidentiary hearing on every complaint would severely impair its ability to achieve the legislative objective. Although I consider the due process issue to be close at this point, the state‘s strong interest in an expeditious means of processing discrimination complaints outweighs the possible benefits to be derived from a full-blown hearing on every complaint.
Estabrook insisted in district court and insists here that he is entitled to a full evidentiary hearing. Like the majority I conclude he is not. I do believe however that due process is implicated in probable cause determinations. Perhaps a simple disclosure by the investigator would be sufficient, in which he informs the employee and the employer of the other‘s version of the facts and gives them an opportunity to respond in their conversations with the investigator. Mathews, 424 U.S. at 348, 96 S.Ct. at 909, 47 L.Ed.2d at 41. See also Bowman Transportation, Inc. v. Arkansas-Best Freight System Inc., 419 U.S. 281, 288,
I concur in the result reached by the majority.
McCORMICK, J., joins in this special concurrence.