BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ORLANDO RAY DIAL, COMMISSIONER; CRISTEN HARMS, and MIKE DE VOLDER, Complainants,

and

IOWA CIVIL RIGHTS COMMISSION,

VS.


FRIEDMAN MOTORCARS, LTD., MIKE FRIEDMAN, TIM MANNING, GARY FRIEDMAN, SCOTT HENRY, PAT SULLIVAN and CHERYL RUBLE, Respondents.

FINDINGS OF FACT:

34. With respect to dress, both men were photographed, immediately prior to the test, wearing the suits and ties they wore to Friedman's. (CP. EX. # 1,2;Tr.at l66).With respect to demeanor and behavior during the test, both testers were instructed to act professional and polite and not overly aggressive, i.e. to essentially react to Mike Friedman and not attempt to elicit any particular kind of a response from him. (Tr. at 164, 179, 194). Both testers underwent pretest interviews to review their respective stories and instructions. (Tr. at 165, 181, 194). Both testers also immediately returned to the Commission after the test to undergo interviews so they could record what they had seen. (Tr. at 169, 181, 188, 195).

35. Bill Edwards, the Black tester, was sent out first. (Tr. at 159-60). He arrived at Friedman's at approximately 1:30 p.m. on May 18, 1989. (Tr. at 182-83). While waiting for the receptionist, a sales representative asked him if he could help. (Tr. at 183). When Edwards told him he was responding to Friedman's advertisement in the paper for a salesperson position, he was taken to Mike Friedman. The salesperson told Mike Friedman that Mr. Edwards wanted to apply for the position. Mr. Friedman gave him an application which Mr. Edwards began to complete. Mike Friedman came back two to three minutes later and read the newspaper for five minutes. Mike Friedman never made eye contact or looked at Edwards during this time. Friedman then left. (Tr. at 184-85). Edwards then finished the application and sought out Friedman's office. Friedman was on the telephone. He stopped the conversation long enough to take the application and say "I'll keep this on file". Mr. Friedman continued with his telephone conversation and Edwards left. At no time did Mr. Friedman ask Mr. Edwards who he was or try to shake his hand. (Tr. at 185, 770-71). Mike Friedman never interviewed Mr. Edwards. (Tr. at 183-86, 770). He barely looked at Mr. Edwards throughout this entire encounter. (Tr. at 184-85).

36. Mr. DeVoider saw Mr. Edwards apply, and spoke to him briefly on his way out. (Tr. at 98-99, 169, 185). They had both worked at the Des Moines Register previously, but had not seen each other since November of 1987. (Tr. at 181, 185). DeVolder did not know Edwards was employed with the Iowa Civil Rights Commission. (Tr. at 181). After Edwards left, DeVolder asked Cathy Koch, who was working on the computer in Mike Friedman's office, to look in the wastebasket and tell him what she saw. (Tr. at 98, 209). She told him that there was an application in the wastebasket. (Tr. at 98, 169-70, 209). He told her that this was from the applicant who had just come in. (Tr. at 209). She had seen Mr. Edwards give his application to Mike Friedman and was aware that he was Black. (Tr. at 209). She had also heard Mike Friedman laugh and say, after Edwards left, "Imagine, he came in here thinking he was going to get a job here." (Tr. at 21 1).

37. Cathy Koch was not surprised that Edwards' application was in the wastebasket as she was aware that Mike Friedman seemed to feel Blacks were inferior. (Tr. at 21 1). Mike DeVolder took possession of the application. (Tr. at 98, 169-70, 209-210). Don Grove, who was in charge of the test, obtained the application from Mr. DeVoider the next morning. (Tr. at 155, 159-163, 169-70). The application was entered into the record of this hearing as Complainant's Exhibit No. 3.

38. Karl Schilling went to Friedman's after Mr. Edwards. (Tr. at 159-60). When Schilling made the appointment for the interview, Mike Friedman indicated he was not actively soliciting sales persons as he had eight, but he might be able to add one. (Tr. at 195-96). Mr. Schilling went to the receptionist and was directed to Mike Friedman's office. (Tr. at 196). Mike Friedman interviewed him. (Tr. at 196). Throughout the interview, Friedman treated Schilling in a friendly and professional manner. (Tr. at 198). Mr. Schilling introduced himself and the two of them shook hands. (Tr. at 196). Mr. Schilling informed him that he had six months experience. During that time, he had been two months in training. (Tr. at 196). He stated that by the end of six months his car sales were a little below average which he thought was doing reasonably well. (Tr. at 197). Mike Friedman then gave him an application and left the office. After filling out the application, Mr. Schilling handed it to Mike Friedman and left. (Tr. at 197).

39. Ms. Koch also witnessed Mr. Schilling's visit. (Tr. at 210). Although she entered Mike Friedman's office after the interview, she did not find Mr. Schilling's application in the wastebasket. (Tr. at 21 1).

40. After part one of this test was completed, Mr. Grove recommended, and Ms. Bumbary-Langston decided, that a commission initiated complaint should be filed in order to begin an investigation based on the information gathered to that date. (Tr. at 171).

Mike Friedman's Reasons for His Treatment of Bill Edwards' Application:

41. In his testimony, Mike Friedman denied that race was a factor in his Treatment of applicants. (Tr. at 743, 759). He also denied stating that he would not hire a Black, although he did tell Rodney Wright, a Black salesperson hired after he no longer played a role in the hiring process, that his grandfather would turn over in his grave if he knew that Wright was working at the dealership. (Tr. at 766-67). He claimed the advertised salesperson position had been filled. (Tr. at 754, 756). He stated that he did not spend as much time with Edwards as he did with Schilling because he was busier when Edwards arrived, as he was involved in a car deal on the telephone. (Tr. at 753, 769). He asserted that he threw away both Karl Schilling's and Bill Edwards' applications. (Tr. at 755). He also stated that he did not hire either Schilling or Edwards because it was his judgment that neither of them had enough enthusiasm or drive to do well at Friedman's. (Tr. at 759).

42. There are several reasons why these explanations are neither credible nor supported by a preponderance of the evidence. First, although Mike Friedman testified that the time he would spend with an applicant would vary depending on how busy he was, this does not explain his failure to shake hands with Mr. Edwards or to otherwise treat him in a professional manner as he had Mr. Schilling.

43. Second, Mike Friedman's contention that the position was filled was effectively contradicted by Karl Schilling's testimony that Friedman told him they were not actively soliciting car salespersons because he had eight, but he might be able to add one more. This increase would be consistent with the number of salespersons that would be expected for the summer months. See Finding of Fact No. 20. Karl Schilling's testimony is more credible on this point because he is not a party in this case and has no self-interest in its outcome. Furthermore, his recollection of events in this matter is clearer than Mike Friedman's.

44. Third, although Mike Friedman may have eventually thrown away Schilling's application some time after his interview, (Tr. at 173-74), he threw Edwards' application away immediately after he had informed him he would keep it on file and before he had conducted any interview of him. Although Cathy Koch was present in Mike Friedman's office shortly after the interview of Karl Schilling, she did not find Mr. Schilling's application in the wastebasket.

45. Fourth, although Mike Friedman had an opportunity to evaluate Mr. Schilling's enthusiasm during an interview in which Schilling deliberately presented a "lackluster" image, (Tr. at 197), he never had the opportunity to evaluate Edwards' enthusiasm because he did not communicate with Edwards beyond handing him an application and telling him, once the application was completed, that the application would be kept on file. Mr. Edwards was never given the opportunity, in his role as "Mr. Edmunds," to tell Friedman that he was number 4 in car sales at his former employer, that he always made his draw, or that he sold a minimum of ten cars a month, all of which would be indicative of success at the job.

46. Finally, Mike Friedman's statements to Jeffrey Rich to the effect that he would not hire Black salesmen, his general derogatory statements concerning Blacks overheard by both DeVoider and Koch, and his comments, overheard by Cathy Koch, concerning Mr. Edwards' attempt to get a salesperson position at Friedman's further demonstrate that race was the real reason for his actions toward Mr. Edwards.

Post Complaint Hiring of Black Applicants As Salespersons:

47. Two Black applicants were hired by Friedman Motorcars Ltd. as salespersons after it was served with Commissioner Dial's and Mike DeVolder's complaints alleging, respectively, race discrimination in hiring and a racially hostile working environment. These applicants were also hired after Mike Friedman no longer had the responsibility for handling initial contacts with potential applicants for salesperson positions. Richard Lyle, a Black male, began his employment at Friedman Motors on February 13,1990, approximately eight months after Commissioner Dial's complaint was served; two months after DeVolder's complaint was served; and three months after Mike Friedman's responsibility for initial applicant contact and interviews ended. (Admissions Dial and DeVoider complaints; Tr. at 523). See Finding of Fact No. 18.

48. Rodney Wright, also a Black male, began his employment at Friedman Motors on July 27, 1990, approximately thirteen months after Commissioner Dial's complaint was served; seven months after DeVolder's complaint was served; and eight months after Mike Friedman responsibility for initial applicant contact and interviews ended. (Admissions- Dial and DeVolder complaints; Tr. at 545). See Finding of Fact No. 18. Not only are hirings of Black salespersons at these times entitled to no weight in determining what the Respondents' employment practices were at the time Mike Friedman was in charge of initial applicant contact and interviewing; such hirings in the face of pending complaints should be viewed with suspicion when determining the true nature of a Respondent's employment practices. See Conclusion of Law No. 36.

Failure to Consider or Hire Females for Salesperson Positions:

Direct and Circumstantial Evidence of Sex Discrimination:

49. Mike DeVoider saw several females apply for salespersons positions. (Tr. at 103-04). On one occasion, DeVolder talked to one who was waiting for Mike Friedman to come back from lunch so she could be interviewed. She told him that she was from Omaha and had experience in selling cars. Mike Friedman had her fill out an application and did talk to her. When DeVolder asked about her, Friedman responded, "You know, in the last twenty years, I think we've hired only two girls here and they never work out. Either they're always having their periods or we end up fucking them and then we have to let them go because they don't ever work out. I don't want to start fucking all the help. I don't hire women.They're worthless." (Tr. at 104). Mike Friedman would typically comment on female applicants and other females entering Friedman's by making such remarks as "Would you fuck that?," "What do you think of that over there?...... Look at those tits on that girl!" and similar remarks. (Tr. at 105, 330-31).

50. On one occasion, Ms. Koch overheard Mike Friedman talking to a female who had telephoned about an advertised salesperson position. She heard him ask the woman, "What do you look like? Are you good looking?" Afterwards, he told Ms. Koch, "She wanted to apply for the job and all she wants to do is come in here and screw the salesmen." Ms. Koch asked how he could know this from a telephone conversation with the prospective applicant. (Tr. at 212). Mike Friedman replied, "Because that's how women are, you get a woman in here, and they just want to screw all the salesmen and that's what always happens." (Tr. at 212-13). Ms. Koch had expressed an interest in selling cars and was irritated by these remarks. (Tr. at 213).

51. On another occasion, Cathy Koch saw two females be refused applications by Mike Friedman when an ad was in the newspaper for salesperson positions. He told them, or had her tell them, the position was filled. This varied from the procedure with male applicants who were usually given applications. (Tr. at 207-08).

52. In October of 1988, Jody Borgman, a female, applied for a salesperson's position at Friedman's. (Tr. at 241, 712). Scott Henry took her application. (Tr. at 242). She had previously sold cars at Des Moines Chyrsler Plymouth for two years. (Tr. at 242, 244). She called Scott Henry back and he informed her that the position was filled. (Tr. at 242-43). After this conversation, she talked to Janet Adams, a receptionist at Friedman's who had suggested she apply. Ms. Adams told her that no one had been hired for the position and that the ad was still being run. (Tr. at 241, 243, 248). Ms. Adams had heard that the position was still available from someone, possibly a salesman. (Tr. at 248).

53. Scott Henry testified that he did not hire Ms. Borgman because she was not qualified as she did not have prior successful car sales experience. He asserted that he had checked her references and found out that, at Des Moines Chrysler Plymouth, she had been in charge of a telephone room where salesperson's prospects were called in order to get them back into the dealership. If she got them back, she would get one-half of the commission. Mr. Henry did not consider that to be car sales experience and, therefore, felt she was not qualified. (Tr. at 712-13). This explanation is not credible because Mr. Henry had hired, in consultation with Pat Sullivan and Mike Friedman, applicants for salesperson positions with no car sales experience whatsoever. (Tr. at 503-04). K-either Mr. Henry nor Friedman's offered evidence of any other explanation, such as the hiring of a more qualified applicant, for the failure to hire Ms. Borgman.

54. Three female salespersons have been employed by Friedman Motorcars Ltd. since 1980. The last one was Lonnie Hanson who worked there for at least three years and left sometime between 1985 or 1986 and early 1989. (Tr. at 446- 447, 449, 589-90, 646, 722). The evidence in the record does not indicate who hired Ms. Hanson, although it is clear it was not Pat Sullivan or Mike Friedman, who were not employed at Friedman's in 1985 or 1986. (Tr. at 467-68, 499). See Finding of Fact No. 12. By the spring of 1989, there were no female salespersons at Friedman's. (Tr. at 212).

Different Treatment of Black Customers In the Offering and Providina of Services:

55. The evidence in the record demonstrates that some, but not all, sales personnel at Friedman's would be reluctant and would fail to wait on Blacks or sell a car to them because of their belief that Blacks would not be able to qualify for financing. The greater weight of the evidence does not support this conclusion with respect to sales managers Pat Sullivan and Scott Henry or finance manager Tim Manning. It does support this allegation with respect to Mike Friedman.

56. Mike DeVolder, Jeffrey Rich, Gary Cooksey and Mark Boyd, who were salespersons for Friedman's in 1989 for periods ranging from one week (Boyd), to the full year (Rich), testified that salespersons tended to avoid Blacks viewing cars because of the belief that they could not financially qualify. (Tr. at 84, 236, 341-42, 389). At one point, a management employee indicated white couples should be waited on prior to Black couples for this reason. (Tr. at 217). One afternoon, a Black couple came in and no one was there to help them. Cathy Koch paged for a salesman. A salesman responded to the call. Afterwards he told her, "I'm going to get you for that." She asked "For What?". He replied, "For calling me out to wait on a Black couple." Ms. Koch asked, "We don't wait on Black couples?" He repeated, "I'm going to get you for that." (Tr. at 216).

The Saab Incident:

57. After Mike DeVoider had been employed at Friedman's approximately 2 l/2 weeks, a Black couple, the McCiendons, came in to look at a Saab. (Tr. at 85-86, 415). DeVolder made a preliminary determination that they were qualified buyers. At this time, Friedman's had a Saab 9000 which had been on the showroom floor for a long time. (Tr. at 86-87, 416). Mike Friedman had indicated at a sales meeting that this is a car that wanted to be sold, i.e. the dealership was anxious to sell it. Mike DeVoider showed this car to the McCiendons, who indicated they liked the car and wanted to test drive it. In the past, it had been standard procedure to allow customers to test drive cars off the showroom floor in order to "seal the deal," i.e. to make the sale. (Tr. at 87).

58. Mike DeVolder told Mike Friedman that he had a prospective buyer for the car. Mike Friedman seemed excited to find a purchaser, until DeVoider pointed out the McClendons. Friedman then laughed and stated, "Those fucking boot-lipped niggers are going to buy my car? No way. You find somebody else. They don't have any money. You can't sell a car to a Black person. You're wasting your time. Go on to somebody else." DeVolder responded by pointing out that he indicated that allowing them to test drive the car would "cinch the deal." Mike Friedman's response was, "I don't want to waste my time, you go on to somebody else." (Tr. at 88). It is clear from these comments that Mike Friedman would not allow the McCiendons a test drive because of their race. DeVolder felt he could not simply "go on to somebody else" as the McClendons were ready to buy. Therefore, although he told them they could not take it off the showroom floor, he was able to negotiate a sale with them. (Tr. at 8889,415-16). When the car was taken off the showroom floor, Mike Friedman rebuked DeVoider for selling to this couple although financing had not yet received final approval. (Tr. at 92). Following this procedure with respect to white customers never resulted in such a rebuke. (Tr. at 96).

59. As Mike DeVolder made the deal, he noticed that there were two small dents on the hood and roof. (Tr. at 90). Friedman's usual policy is that if a new car is dented, and the dealership is aware of it, it is repaired prior to delivery to the customer. (Tr. at 821). DeVolder informed Mike Friedman of the dents and said they would have to be fixed by the dealership. Friedman responded, "No way. No way am I going to fix any dents. I've already lost enough money on this deal. I'm not about to fix any dents. When they ... drive it off and come back in, we'll just tell them that it happened while they were gone, and we're not going to stand behind it. It will be their word against ours. Just keep your mouth shut, Mike." Therefore, DeVolder did not inform the McCiendons of the dents at that time. (Tr. at 90).

60. After the McCiendons took possession of the Saab, Mrs. McClendon's co-workers noticed one of the dents. She informed Mike DeVoider of the dents during a telephone call. (Tr. at 416). He called her back, without even seeing the car, to set up an appointment to get it fixed. Mrs. McClendon noted that it was strange for a dealership to be ready to fix the dents on the car without even having seen them. When Mrs. McClendon took the Saab in the next day to have the rearview mirror fixed, she pointed out to DeVoider the dent she was aware of. At this time, DeVoider pointed out the other dents to her and told her to make sure they were repaired when she brought the car in for the appointment. (Tr. at 417-19).

61. Once DeVolder was informed that the McCiendons were aware of the dents, he went to Scott Henry and told him how Mike Friedman had decided to handle the dents. He did not go to Mike Friedman, the Saab sales manager, because of Friedman's plan to assert that the dents had not been present when the car had been delivered. (Tr. at 91-92). Scott Henry told DeVoider to forget what Mike Friedman had said, that the dealership would cover it. (Tr. at 92). Therefore, tha dents ultimately were fixed by the dealership. (Tr. at 92, 417-18). But, if the McCiendons had been white, and Mike Friedman had known of the dents, the car would not have been delivered with the dents unrepaired.

Actions of Scott Henry, Tim Manning and Pat Sullivan:

62. Although Respondent Scott Henry, on one occasion, told a salesman, Mark Boyd, that Black customers were a waste of time because they don't have the money to qualify, the record does not demonstrate any instance where he failed to wait on or sell a car to a customer because of his or her race. (Tr. at 387-88). As noted above, Scott Henry did aid Mike DeVoider in getting the Saab fixed for the McClendons. (Tr. at 91-92). Also, another Black couple, Raymond and Rosemary Jackson, have purchased Toyotas through Mr. Henry since 1985 or 1986. (Tr. at 444, 449,455, 457, 458, 462). Mr. Jackson is a "car buff," who at one time purchased up to two cars per year. (Tr. at 450). The Jacksons have purchased between 7 and 8 Toyotas from Friedman's from 1982 to 1989. (Tr. at 446, 452). The Jacksons have also dealt with Respondents Pat Sullivan and Tim Manning, have been satisfied, and have not observed anything to indicate they were being treated differently due to their race by either them or Scott Henry. (Tr. at 450-52, 458-60).

63. Van Clark is a Black customer who has dealt solely with Pat Sullivan at Friedman's for four years and has purchased two used cars from him there. (Tr. at 436-37, 439, 441-42). He has previously purchased two cars from him when Mr. Sullivan worked at Conway Buick. (Tr. at 437, 441). Mr. Clark is satisfied with Mr. Sullivan's service and has seen nothing to indicate adverse treatment on the basis of his race. (Tr. at 437-39).

Racially Hostile Working Environment:

64. As previously noted, Commissioner Dial's complaint alleges both "racial harassment" and less favorable treatment of Blacks than whites "in the consideration and hiring of applicants for the salesperson position ... in the offering [and] providing of services." Mike DeVoider's complaint refers to his "work environment [being] pervaded by . . . racial harassment of Black customers." The evidence on these issues is interrelated. It consists of evidence showing a combination of racially derogatory comments made about Blacks in general, Black applicants, and Black customers and of different treatment in the consideration and hiring of Black applicants and the offering and providing of services to Black customers. Evidence of comments concerning Black applicants and customers, and the different treatment of Black applicants and customers has already been presented. See Findings of Fact Nos. 23-48,55-63. These comments and actions would and did contribute to the perception of Mr. DeVolder and other employees that the working environment at Friedman's was marred by racial hostility toward Blacks.

65. In addition to the comments previously discussed, Respondent Tim Manning once suggested that Cathy Koch page a Black Toyota representative, whose name she did not know, as "Hey Coon." (Tr. at 214). She heard numerous derogatory racial comments and jokes on the showroom floor at Friedman's during the spring and summer of 1989. (Tr. at 215). Respondents Scott Henry, Pat Sullivan, and Tim Manning would make such comments. (Tr. at 85). Salesperson Curt Peters would comment, "You know, I'm open about how I feel. My father and grandfather are card-carrying members of the KKK. My father pays huge fines every year because he refuses... to hire Black people." (Tr. at 217).

Sexual Harassment:

Sexually Hostile or Discriminatory Working Atmosphere:

66. The treatment and comments concerning female applicants for salesperson positions which were discussed previously would and did contribute to Mike DeVoider's and others' perceptions that Friedman's had a sexually hostile or discriminatory environment. See Findings of Fact No. 49-54.

67. Mike DeVolder heard derogatory sexual remarks about women at Friedman's from his first day of work. Mike Friedman, in particular, would talk about his sexual fantasies or comment "Would you fuck that?" with regard to virtually every woman that came into the showroom. It got to the point DeVolder would walk away from Mike Friedman when he noticed women. (Tr. at 101-02).

68. Cathy Koch received the impression that sales staff, and particularly Mike Friedman, felt women employees were sex objects and not too smart. Mike Friedman made the most sexual comments that she heard. She did not hear Scott Henry, Pat Sullivan or other management staff make such comments. (Tr. at 218). These comments were either made directly in her presence or to other sales representatives where she could hear them. (Tr. at 218-19). With regard to attractive female customers, he would often say "Wouldn't you like to screw her?" (Tr. at 219). Mike Friedman told Ms. Koch that he had some past legal problems in California due to his preference for young (14 to 15 years old) women. (Tr. at 221). He also asked her if she wished she was single. When Ms. Koch replied she did not, he stated "one of us is strange, because there's a lot of women out there I want to screw." When Ms. Koch was first learning to use the computer in Mike Friedman's office, he would often sit by her and look down her bra if she was not buttoned up to the neck. (Tr. at 223).

69. Angie Whetro was a part-time receptionist at Friedman's who worked on Saturdays only from January to March 1989. She was nineteen years old at the time. (Tr. at 259). Mike Friedman, who was then forty-seven years old, would spend a lot of time watching her. He would ask her questions about her personal life. (Tr. at 260, 738). He suggested that she stop seeing the man she was dating "for an older man who can take care of you and give you everything you want." Ms. Whetro found these suggestions offensive. (Tr. at 261, 796-97). Mike Friedman told her that he had friends in California who would take pictures of her if she wanted to get into modeling. (Tr. at 261, 778-79). Scott Henry told her to watch out because "Mike has been known to take nudies of little girls like you." (Tr. at 261).