DAVID BOTSKO, D.M.D., Petitioner-Appellant, vs. DAVENPORT CIVIL RIGHTS COMMISSION and INGELORE NABB, Respondents-Appellees.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-366 / 06-1542
Filed October 12, 2007
DAVID BOTSKO, D.M.D.,
Petitioner-Appellant,
vs.
DAVENPORT CIVIL RIGHTS COMMISSION
and INGELORE NABB,
Respondents-Appellees.
______________________________________________________________________
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
David Botsko appeals the district court’s affirmance on judicial review of the
decision of the Davenport Civil Rights Commission finding Ingelore Nabb was subjected
to a sexually hostile work environment, was constructively discharged, and awarding
damages and attorney fees. AFFIRMED.
Richard Davidson of Lane & Waterman, Davenport, for appellant.
Judith Morrell, Davenport Civil Rights Commission, for appellee Davenport Civil
Rights Commission, and Dorothy O’Brien of Brooke & O’Brien, Davenport, for appellee
Ingelore Nabb.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
2
VAITHESWARAN, J.
David Botsko appeals a ruling of the Davenport Civil Rights Commission in favor
of Ingelore Nabb.
He contends (1) Commission proceedings were marred by
procedural irregularities, (2) the Commission’s findings of fact are not supported by
substantial evidence, (3) the Commission’s damage award is not supported by
adequate evidence, and (4) attorney’s fees and costs are not recoverable under
Davenport’s civil rights ordinance. We affirm.
I.
Background Facts and Procedural History
Ingelore Nabb was born in Germany in 1936. She moved to the United States as
an adult. Nabb worked as a dental assistant for Davenport dentist David Botsko.
While working for Botsko, Nabb complained to him that some of his behavior was
offensive. She said he spoke of sex at least several times a week, made sexually
offensive gestures, and asked inappropriate questions about her sex life. She also
complained that he referred to her as a Nazi and saluted and clicked his heels around
her.
Nabb filed a complaint with the Davenport Civil Rights Commission. She alleged
Botsko created a hostile work environment that discriminated against her based on her
age, ethnic origin, and gender. She also claimed she was constructively discharged.
Following a hearing, an administrative law judge (ALJ) issued a decision
recommending dismissal of the complaint. Nabb appealed to the Commission which,
after hearing oral arguments, conducted deliberations in two closed sessions.
The
Commission’s final order adopted the ALJ’s findings of fact but rejected his conclusions
3
of law on the sexual harassment and constructive discharge claims. 1 Concluding Nabb
proved the elements of these claims, the Commission awarded Nabb damages for lost
pay and emotional distress, as well as attorney fees and costs.
Botsko sought judicial review. The district court remanded the matter to the
Commission for additional findings.
The court held its final ruling on all issues in
abeyance pending the remand decision.
After the Commission filed its additional
findings of fact and conclusions of law, the district court issued a final ruling that is the
subject of this appeal.
II.
Procedural Irregularities
Botsko maintains that the Commission proceedings were tainted by the following:
(A) the Commission Director’s presence during the closed sessions; (B) the closed
session deliberations; (C) the Commission’s failure to produce the minutes and
audiotapes of the closed sessions; and (D) the Commission’s failure to consider
deposition testimony submitted to the administrative law judge. Our review of these
issues is governed by Iowa Code section 17A.19(10)(d) (1999) (affording relief where
agency action was “[b]ased upon a procedure or decision-making process prohibited by
law or was taken without following the prescribed procedure or decision-making
process”).
A. Director’s Presence in Closed Sessions
Botsko contends that Commission Director Judith Morrell investigated Nabb’s
initial complaint, acted as a prosecutor on behalf of the Commission throughout the
proceedings, and was impermissibly present at closed sessions during which the
1
The Commission affirmed the ALJ’s dismissal of Nabb’s complaints based on age and ethnic
origin.
4
commissioners deliberated on the final decision. He premises his contention on Iowa
Code section 17A.17, which states in pertinent part:
An individual who participates in the making of any proposed or final
decision in a contested case shall not have personally investigated,
prosecuted, or advocated in connection with that case, the specific
controversy underlying that case, or another pending factually related
contested case, or pending factually related controversy that may
culminate in a contested case, involving the same parties. However, this
section shall not be construed to preclude a person from serving as a
presiding officer solely because that person determined there was
probable cause to initiate the proceeding.
Nabb and the Commission respond that, although Morrell was present during the
commissioners’ deliberations, she did not (1) “personally investigate this case” and she
did not (2) “participate in the making of the proposed or final decision in this case.” The
first argument is dispositive.
Iowa Civil Rights Commission rules define “personally investigated” as follows:
The term “personally investigated” means taking affirmative steps to
interview witnesses directly or to obtain documents or other information
directly. The term “personally investigated” does not include general
direction and supervision of assigned investigators, unsolicited receipt of
information which is relayed to assigned investigators, review of another
person’s investigative work product in the course of determining whether
there is probable cause to initiate a proceeding, or exposure to factual
information while performing other agency functions, including fact
gathering for purposes other than investigation of the matter which
culminates in a contested case.
Iowa Admin. Code r. 161-4.13(2) (1999). Local civil rights commissions are to maintain
their agencies “consistent with commission rules adopted pursuant to chapter 17A.”
Iowa Code § 216.19.
Morrell testified she did not interview witnesses directly but did supervise the
investigating paralegal. She also made the finding that there was probable cause to
initiate a proceeding against Botsko.
5
Rule 4.13 expressly exempts these functions from the definition of “personally
investigated.” 2 Accordingly, we conclude Morrell did not “personally investigate” the
Nabb complaint. Her assistance with the final decision, therefore, did not taint that
decision.
B. Closed Session Deliberations
Botsko argues the Commission’s closed sessions were illegal. The district court
rejected this argument based on a plain reading of Iowa Code section 21.5(1)(f). That
provision allows a “governmental body” to hold a closed session “[t]o discuss the
decision to be rendered in a contested case conducted according to the provisions of
chapter 17A.”
Iowa Code § 21.5(1)(f).
A governmental body includes “[a] board,
council, commission, or other governing body of a political subdivision or tax-supported
district in this state.” Id. § 21.2(1)(b). Because the Commission is an independent local
civil rights agency established pursuant to section 216.19, closed sessions are
authorized by section 21.5(1)(f). 3
C. Production of Minutes and Audiotapes
Botsko next argues that the district court should have ordered the Commission to
turn over the minutes and audiotapes from the closed sessions. He bases his argument
on the following premises: (1) “the Commission has no authority to hold closed sessions
in the first instance” and (2) “Director Morrell was present during the Commission’s
deliberations.”
2
We have addressed and rejected both these grounds for reversal.
This exemption has been subject to criticism. See Arthur E. Bonfield, Amendments to Iowa
Administrative Procedure Act (1998) Chapter 17A, Code of Iowa (House File 667 as Adopted)
Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 47-50
(1998).
3
We find it unnecessary to address the Commission’s alternate argument for affirmance based
on the untimeliness of Botsko’s challenge.
6
Therefore, we conclude the district court did not err in declining to order the release of
these items. See Iowa Code § 21.5(4) (authorizing release of minutes and tapes in an
action to enforce chapter, after engaging in a balancing test).
D. Failure to Consider Deposition Testimony
Finally, Botsko argues the Commission did not consider the entire record during
deliberations. He points to one of the commissioner’s assertions that she was denied
parts of the record, including certain deposition testimony.
As a preliminary matter, we note that the district court struck an affidavit proffered
by the commissioner who made this assertion, raising serious doubts about whether we
have anything to review. Assuming without deciding that this issue is properly before
us, we conclude Director Morrell addressed this assertion in her testimony during a
remand proceeding. She stated that some of the exhibits were initially incomplete but,
when this fact was discovered, complete exhibits were obtained and mailed to all the
commissioners. We conclude the entire record generated before the administrative law
judge was available to the commissioners.
III.
Substantial Evidence
Botsko argues that the “Commission’s findings are completely and diametrically
opposed to the credibility and veracity determinations made by the ALJ, and the
Commission offers no explanation why it chose to overrule the ALJ’s credibility
determinations.”
In assessing an agency’s fact findings, we are obligated to consider “any
determinations of veracity by the presiding officer who personally observed the
demeanor of the witnesses.” Iowa Code § 17A.19(10)(f)(3).
7
The ALJ made several veracity determinations. As to Nabb’s allegations, the
ALJ stated: “Part of the difficulty with Mrs. Nabb’s [sexually hostile work environment]
allegations in this regard, and recognizing that this is, to say the least, an uncomfortable
subject, is a lack of specificity as to statements, including their time or place.” The ALJ
noted, however, that Nabb’s allegations were supported by credible testimony from a
former employee. The ALJ also rejected suggestions that Nabb rather than Botsko
initiated sex talk in the office. He found these suggestions “contrived and false” and
inconsistent with Nabb’s character, demeanor, and general deportment.
The Commission explicitly considered these credibility determinations, noting that
the ALJ found Nabb credible. After considering these determinations, the Commission
reached a different conclusion than the ALJ. The Commission was authorized to do so.
See Iowa State Fairground Sec. v. Iowa Civil Rights Comm’n, 322 N.W.2d 293, 295
(Iowa 1982) (“Even when credibility is involved, the agency, not the hearing officer, is
charged with the authoritative responsibility to decide what the evidence means under
the governing statute.”).
As for the fact findings supporting the Commission’s conclusions, we agree with
the district court that the Commission’s additional findings on remand, as well as the
ALJ’s original findings adopted by the Commission, are supported by substantial
evidence when that record is viewed as a whole. Iowa Code § 17A.19(10)(f).
There remains the question of whether the Commission’s fact findings support its
conclusion that Nabb was subjected to a hostile work environment and was
constructively discharged. No useful purpose would be served by summarizing the
8
Commission’s application of law to fact. Suffice it to say that, on our review of the
pertinent law in relation to the Commission’s fact findings, we cannot conclude that the
Commission’s decision was “[b]ased upon an irrational, illogical, or wholly unjustifiable
application of law to fact that has clearly been vested by a provision of law in the
discretion of the agency.”
Id. § 17A.19(10)(m); see Boyle v. Alum-Line, Inc., 710
N.W.2d 741, 746 (Iowa 2006) (setting forth elements of hostile work environment claim);
Van Meter Indus. v. Mason City Human Rights Comm’n, 675 N.W.2d 503, 511 (Iowa
2004) (setting forth elements of constructive discharge claim). For this reason, we
affirm the final agency decision.
IV.
Damages
The Commission awarded Nabb $20,000 in lost wages and $5000 for emotional
distress.
With respect to the lost wages award, Botsko argues his unemployment
compensation payments to Nabb should have been set off against the award. This
issue was not raised before the Commission and, accordingly, was not preserved for
our review. Strand v. Rasmussen, 648 N.W.2d 95, 100 (Iowa 2002).
Botsko also maintains that Nabb offered no medical evidence to support the
Commission’s award of emotional distress damages. However, he concedes that such
an award may be based on the claimant’s testimony alone. Forshee v. Waterloo Indus.,
Inc., 178 F.3d 527, 531 (8th Cir. 1999). The record contains substantial evidence to
support the Commission’s finding that Nabb experienced emotional distress. See Arndt
v. City of Le Claire, 728 N.W.2d 389, 393 (Iowa 2007) (“An appellate court should not
consider evidence insubstantial merely because the court may draw different
conclusions from the record.”).
9
V.
Attorney Fees and Costs
The Commission awarded Nabb attorney fees of $30,081.86. The Commission
also ordered Botsko to pay costs totaling $2935.70. Botsko challenges these awards.
The district court affirmed the attorney fee award but did not address the cost
issue. Therefore, the cost issue is not preserved for our review. Strand, 648 N.W.2d at
100.
Turning to the attorney fee award, Botsko contends it is not authorized by the
Davenport Civil Rights Ordinance. Nabb and the Commission counter that the Iowa
Civil Rights Act authorizes the payment of “reasonable attorney fees.” Iowa Code §
216.15(8)(a)(8). They also note that Davenport’s civil rights provisions are designed
“[t]o provide for the execution within the city of the policies embodied in the Iowa Civil
Rights Act of 1965.” Davenport, Iowa Municipal Code § 2.58.010(B) (2000). We concur
with this reasoning. See Iowa Code § 216.19 (requiring every city with a population of
twenty-nine thousand or greater to maintain an independent local civil rights agency or
commission that shall “effect cooperative undertakings with the Iowa civil rights
commission and . . . aid in effectuating the purposes of [chapter 216]”); cf. Van Meter
Indus. v. Mason City Human Rights Comm’n, 675 N.W.2d 503, 515-16 (Iowa 2004)
(recognizing the authority of a local civil rights commission to protect the rights of
citizens secured by the Iowa Civil Rights Act). Like the district court, we conclude the
Commission was authorized to award attorney fees.
10
VI.
Appellate Attorney Fees
Nabb requests appellate attorney fees. See Van Meter Indus., 675 N.W.2d at
516. We decline the request.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.