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 CONTINUED:

Effect of Retaliatory Physical and Verbal Abuse on Mike DeVoider:

114. Complainant DeVolder suffered substantial and continuing physical pain as a result of being repeatedly hit. In addition to the initial physical pain of being struck, DeVolder's chest and arms were sore to the touch for up to six months after his employment at Friedman's had ended. (Tr. at 113, 117-18). Of course, it may be reasonably inferred that the repeated infliction and the continuous presence of bruise marks and physical pain over a lengthy period of time will result in emotional distress.

115. DeVolder went home every night and complained about all the abuse he had to endure. He came to hate his job as the abuse made it unbearable. (Tr. at 118). The physical and verbal retaliatory abuse, in combination with the discriminatory working environment, caused DeVolder substantial and serious emotional distress throughout his employment and for several months thereafter.

Retaliatory and Discriminatory Discharge:

116. Due to the physical and verbal retaliatory abuse and the sexually and racially discriminatory working environment, Complainant DeVolder continued the search for other employment which had originally initiated with his application to Stew Hanson Dodge. (Tr. at 103, 115-16, 234). He went to the Des Moines airport and applied for a job with America West. After passing their initial screening requirements, he went to Phoenix, Arizona for a full day for a physical examination by America West. (Tr. at 116). In order to have that day off, he told Scott Henry that he would be attending a court proceeding in Omaha, Nebraska. Respondent Henry approved this absence. (Tr. at 116, 493, 708).

117. Apparently, the date agreed on for Complainant DeVolder to go to Omaha was a different date than the date on which he went to Phoenix. (Tr. at 599, 710). When DeVolder did not come in to work on the day he went to Phoenix, Scott Henry called his wife who said she had no idea what was going on. Personnel with a car rental company at the airport, owned by Friedman's, saw DeVolder's car, which was a Friedman's demonstrator, at the airport and called to inquire why it was there. (Tr. at 493, 599, 709-710). Also, DeVolder was scheduled to handle the delivery of a car to a customer. This task had to be performed by a different salesperson. These events caused Scott Henry to wonder about DeVolder's whereabouts. (Tr. at 71 0).

118. The day after his trip to Phoenix, Scott Henry asked DeVolder where he had been on the previous day. (Tr. at 116, 598-99, 710). Tim Manning was also present during this conversation. (Tr. at 598). DeVolder falsely stated two or three times that he had been in Omaha due to his lawsuit. (Tr. at 116, 131, 131). Scott Henry pointed out that the day on which he was gone was different from the day he had indicated he would need to travel to Omaha. (Tr. at 710). Finally, DeVolder stated that he had gone to Phoenix as part of the application process for a job with America West. Complainant DeVolder was immediately discharged for lying to Scott Henry. (Tr. at 131, 493, 599-600, 71 0-1 1).

119. It should be noted that, in his testimony, Scott Henry indicated that Complainant DeVolder's discharge was not necessarily solely for lying. (Tr. at 711). He also articulated two additional reasons for the termination. These were, first, that he started coming in ten minutes late; second, that he did not spend two hours, in addition to his regular shift, contacting prospective customers by telephone or in person. (Tr. at 708, 71 1). Mr. Henry's testimony setting forth these additional reasons is not credible because (1) Complainant DeVolder, Mike Friedman, and Pat Sullivan were informed only of the "lying" reason, (2) Tim Manning was present when DeVolder was terminated and the only reason he heard Scott Henry give for the discharge was "lying to us," and (3) the discharge occurred immediately after DeVolder told Scott Henry he had actually been in Phoenix, and not Omaha. (Tr. at 131, 493, 599-600, 71 1).

120. The only reason relied on by Respondents in their arguments on brief for the DeVolder termination is that "he actually lied to his employer and was not in Omaha, Nebraska during that time. Rather, he was off seeking employment elsewhere. He was terminated for being dishonest to his employer." Respondents Brief at 47.

121. It is undisputed that, although DeVolder told Friedman's that he was in Omaha, Nebraska on the day he was absent, he was actually seeking employment in Phoenix, Arizona. This lie, however, grew directly out of the discriminatory and retaliatory working environment experienced by and inflicted on DeVolder. But for this environment, DeVolder would have had no reason to search for other employment and would not have done so. After the Stew Hanson Dodge incident, he knew that he would be terminated if Friedman's became aware of his continued search for employment. If DeVolder had told Friedman's that he was going to Phoenix for a physical with America West, he would have been terminated. The "reward" for honesty to his employer would have been discharge. See Finding of Fact No. 105.

122. The alternatives facing Complainant DeVolder were (a) to continue to work in an increasingly intolerable environment of race and sex discrimination and verbal and physical retaliatory abuse, (b) to quit his employment without alternative employment, (c) to openly search for other work and be discharged for doing so without alternative employment, or (d) to try, secretly, to obtain other employment. On the surface, the termination of DeVolder was the product of his lie. But the lie was undertaken to preserve the secrecy of the work search. The secret work search was undertaken to escape a discriminatory and retaliatory work environment inflicted by the employer. Therefore, DeVolder's discharge was ultimately the product of the retaliation and discrimination inflicted on him by his employer.

Job Service Decision:

123. After his termination, Complainant DeVolder filed an unemployment insurance claim. (R. Ex. A; Tr. at 132). Complainant DeVolder participated in a telephone fact finding interview which resulted in a denial of his claim for dishonesty with his employer. (R. Ex. A-Notice of Fact Finding Interview; Tr. at 132, 150). He then appealed the decision which resulted in a hearing before an Administrative Law Judge of the Job Service of Iowa Appeals Bureau. Although he was given due notice of the hearing, he did not participate in it. Friedman's was represented by Scott Henry. The decision affirmed the Job Service representative's decision finding and held Complainant DeVoider was discharged due to "misconduct in connection with his employment." (R. EX. A - Decision of the ALJ).

Continuing Violations:

124. It is more likely than not that the practice of failing to consider or hire females or Blacks at Friedman's continued for at least the period during which Mike Friedman was a sales manager with responsibility for hiring, i.e. from shortly after the fall of 1987 to the fall of 1989. See Findings of Facts No. 18-19, 23-48, 49-54.

125. The practice of failing to provide equal service to Black customers and of racial hostility in the showroom, sales offices, and on the lot towards Blacks continued through at least the period of Mike DeVoider's employment, from April 12 to July 3l,1989 See Findings of Facts No. 8, 55-65.

126. The sexually harassing environment in the showroom, sales offices, and on the lot continued throughout at least the entire year of 1989. See Findings of Fact Nos. 66-83. Retaliatory conduct towards Mike DeVoider continued throughout his employment from the time he first started arguing against racist and sexist remarks, shortly after his hire on April 12, 1989, to the date of his discharge on July 31, 1989. See Findings of Fact Nos. 8, 102-122.

Damages for Cristen Harms:
Harms' Annual Earnings at Friedman Motorcars, Ltd:

127. During the course of the hearing, Cristen Harms waived any claim for emotional distress damages. (Tr. at 278). However, she did not waive back pay damages. During her employment at Friedman's, Cristen Harms worked from 8:00 a.m. to 5:00 p.m. Monday through Friday at a pay rate of $7.00 per hour. (Tr. at 281, 296). See Findings of Fact Nos. 89, 90. Given an hour off for lunch, this would be a 40 hour week. (Tr. at 225, 282)

128. In 1989, Complainant Harms' annual earnings at Respondent Friedman Motorcars Ltd. were: ($7.00 per hour X 40 hours per week X 52 weeks per year) = ($280 X 52) = $14,560 per year. There is no evidence in the record demonstrating what her increases in pay, if any, would have been.

Gross Back Pay to November 1, 1991:

129. Complainant Harms gross back pay to November 1, 1991 would be calculated as follows:

A. Gross Back Pay for the Two Year Period from August 2, 1989 to August 2, 1991: $14560 per year X 2 years = $29120.00.
B. Gross Back Pay for the Period of August 2, 1991 to November 1, 1991 = 13 weeks X $280 per week = $3640.00.

Total Gross Back Pay to November 1, 1991 = A + B = $29,120.00 3640.00 = $32760.00.

Mitigation of Damages:

130. The Respondents did not introduce any evidence which would demonstrate Complainant Harms failed to mitigate her damages. The evidence in the record demonstrates that Complainant Harms exercised reasonable care and diligence in seeking out employment. She received a call from Staff Temps, a temporary office help service, offering her employment on August 1, 1989 the day she informed Cheryl Ruble that she would quit. (Tr. at 294-95). She worked part-time at Staff Temps for approximately three weeks at $5.00 per hour. She worked approximately 40 hours during her last week there. Since she asked for as many hours as she could get, 35 hours per week is a reasonable estimate of the time worked during her first two weeks. (Tr. at 296-297). She then worked full time at the Edith Hale day care center in Nevada, Iowa at $4.00 per hour for three months. (Tr. at 297-98).

131. She left Edith Hale after three months because it was in bad financial shape (it closed one month after she left) and in order to pursue a teaching certificate at Iowa State University in order to make herself more marketable. Once she found out that she could only acquire nine hours of the classes she needed, she withdrew as it was not worth the tuition costs. (Tr. at 299). Throughout this entire period from her constructive discharge at Friedman's to her attempt to take classes at Iowa State, she continued to seek employment in the communications. (Tr. at 297-98, 300). She applied and interviewed, for example, for an information specialist position at the McFarland Clinic. (Tr. at 298).

132. She was next employed as a part-time information specialist with Iowa Public Television for twelve to twenty- four hours a week at $5.00 per hour and no benefits. (Tr. at 300). At the same time, she worked at KASI-KCCQ as a part-time radio announcer working twenty to forty hours a week at $4.00 per hour without benefits. (Tr. at 301). She then left KASI-KCCQ to become news director at Twin Lakes, Iowa full-time for one month at a salary of $13,000 per year. (Tr. at 301-02). She left that job for the position she had at the time of hearing, reporter, anchor, and producer at KIMT-TV in Mason City, Iowa. This position also has a salary of $13,000 per year. (Tr. at 302-03). The record does not reflect the length of her periods of employment at Iowa Public Television, KASI-KCCQ, or her specific dates of employment at Iowa Public Television, KASI-KCCQ, Twin Lakes, or when her employment began at KIMT-TV.

Interim Earnings:

133. With the exception of bringing out on crossexamination that Complainant Harms earned a salary of $13,000 per year at KIMT-TV, Respondents introduced no evidence on interim earnings. (Tr. at 303). Evidence introduced by the Commission demonstrates the following interim earnings from August 2,1989 to November 1, 1991:

A. Staff Temps: $5.00 per hour X 1 1 0 hours = $550.00.
B. Edith Hale: $4.00 per hour X 40 hours X 12 weeks = $1920.00.
C. Twin Lakes: $13,000 / 12 = $1083.33.
D. KIMT-TV: (From April 1, 1991) ($13,000 /12) X 6 months = $1083.33 X 6 = $6499.98.

E. No reasonable estimate can be made of the amounts earned at Iowa Public Television or KASI-KCCO, or at KIMT-TV prior to the hearing on April 1, 1991, as neither Harms' dates of employment nor length of employment at these employers is reflected in the record.

F. There is no evidence in the record of Complainant Harms receiving any unemployment compensation.

Total Interim Earnings to November 1, 1991 = A + B + C + D = $550.00 + $1920.00 + $1083.33 + $6499.98 = $10053.31.

Net Back Pay:

134. The net amount of back pay which Complainant Harms is due is reflected in the formula: Gross Back Pay -[interim earned income and unemployment compensation] = Total Net Back Pay. Total Net Back Pay + $32760.00 - $10053.31 = $22706.69.

Damages for Mike DeVolder:
Lost Earnings from Friedman Motorcars, Ltd:

135. Based on the number of cars he sold there, Complainant DeVoider estimated he lost approximately $2500.00 in income during the six week period of unemployment after his termination from Friedman's. (Tr. at 117). His earnings at his new employment at Vernon Company were equivalent to those at Friedman's. (Tr. at 117, 128-29). His earnings have been higher than that since his current employment at the Meredith Company began in April 1, 1990. (Tr. at 128). There is no evidence in the record of Complainant DeVoider receiving any earned income or unemployment insurance during the period of his unemployment. Therefore, the total net back pay for Complainant DeVolder is $2500.00.

Damages for Physical Pain and Suffering and for
Emotional Distress:

136. The emotional distress caused Complainant DeVolder due to the racially and sexually discriminatory working environment at Friedman's, the retaliatory verbal and physical abuse he sustained there have previously been discussed. See Findings of Facts Nos. It may also be reasonably inferred that being unjustifiably discharged will cause emotional distress. Complainant DeVoider is seeking $15,000 in damages for physical and emotional pain. (Tr.at ll8). This is a reasonable amount, perhaps even conservative in the light of the presence of physical pain, a rare circumstance in discrimination cases. Nonetheless, in light of the severity and duration of the physical and emotional pain and distress suffered, an award of fifteen thousand dollars ($15,000) would be full, reasonable and appropriate compensation.

Credibility Findings:

137. Cathy Koch, who had been employed at Friedman's for over two years as of the date of the hearing, was the receptionist there in the Spring of 1989. (Tr. at 204). Ms. Koch was a highly credible witness. She made the decision to cooperate with the investigation of this case and to testify for the Commission, Mike DeVolder and Cristen Harms despite the fact she could have easily chosen not to. Since she was not a party, she had no material gain to achieve through her testimony. Given her lack of bias, her knowledge of racial and sex discrimination at Friedman's, and, specifically, her observation of the treatment of Complainants DeVolder and Harms, she may be the most important witness in this case. In her own words:

[I]t's been a very difficult decision because I have a job that pays well and that for the most part I enjoyed.

But every time I thought that I was going to walk away, that it wasn't my job to be responsible for correcting the things that I saw that were very wrong, I had trouble with my conscience every time, and I finally decided to be able to live with myself I had to be able to speak up and say that I saw it and it was wrong.

(Tr. at 831).

138. Ms. Koch's demeanor was that of a calm and credible witness. Her testimony was internally consistent and consistent with the greater weight of the credible evidence produced at hearing. Ms. Koch testified despite receiving three anonymous telephone threats warning her not to testify at this hearing. (Tr. at 233-34, 832).

139. Complainant Mike DeVoider is also a highly credible witness. DeVolder's demeanor was appropriate. His testimony was internally consistent and consistent with the greater weight of the credible evidence produced at hearing. Although Complainant DeVolder is a party in this case, his original involvement was as a secret informant. As previously noted, he telephoned the Commission's offices in order to tell the Commission about racial discrimination in hiring and in the treatment of customers and prospective customers at Friedman's.At that time, he had no monetary interest in proving discrimination existed at Friedman's and no desire to personally file a complaint. Obviously, he told the Commission about these events because he felt it was the right thing to do.

140. Respondents have argued that Complainant DeVolder is not credible because of two incidents: (1) When DeVolder made the trip to Phoenix, Arizona, he lied about being in Omaha, Nebraska. See Findings of Facts Nos. 116-22. (2) DeVolder failed to list his claim for damages in this case as a contingent asset in his petition for bankruptcy filed in the U.S. Bankruptcy Court for the Southern District of Iowa. (R. Ex. B -Schedule B-2; Tr. at 135-40). Respondent's Brief at 5.

141. As previously noted, Complainant DeVolder's lie about the trip to Phoenix occurred as a direct result of the discriminatory atmosphere and the retaliation experienced by and inflicted upon DeVolder. See Findings of Fact Nos. 121- 22. It would be absurd and unjust under these circumstances to allow this incident to adversely affect an evaluation of DeVolder's credibility.

142. Complainant DeVolder's petition in bankruptcy, which is sworn to by him under penalty of perjury, indicates that an Exhibit B is "attached to and made a part of this petition." Exhibit B includes schedule B-2, a listing of personal property. Item "q" on schedule B-2, asks the debtor to list "Contingent and unliquidated claims of every nature including counter claims of the debtor (give estimated value of each)." Complainant DeVoider responded "none" to this inquiry. (R. Ex. B). However, although he did not list potential damages from this case as c contingent claim, he was given permission to omit the damages in this case, as well as a small inheritance, from the listing of assets by the bankruptcy trustee. (Tr. at 140). Therefore, the failure to list those assets is not perjury and does not affect the credibility of Complainant DeVolder.

143. It should further be noted that Respondent's Exhibit B is only one document out of the complete bankruptcy record. Neither Complainant DeVolder nor his counsel were notified of this document in advance of the hearing. Therefore, they did not have the opportunity to obtain other documents from the bankruptcy file reflecting the trustee's permission to forego listing this claim. The complainant's counsel objected to the introduction of this exhibit on this basis. (Tr. at 136).

144. Respondent also suggests that DeVolder's testimony that he was struck by Scott Henry is questionable because Scott Henry is six inches shorter than DeVoider. (Respondent's Brief at 4). The problem with this analysis is that it ignores Scott Henry's position as a supervisor of DeVoider and the other salesmen. He had the power to discharge DeVolder and eventually exercised it. See Findings of Fact Nos. 8, 118-19. The supervisor's power to discharge may well lead an employee to endure abuse which he would not tolerate from a co-worker of similar physical characteristics.

145. Complainant Cristen Harms was a credible witness. Her testimony was internally consistent and consistent with the greater weight of the credible evidence produced at hearing. Her demeanor was calm and appropriate.

146. Respondents assert that there are discrepancies in the testimony of Harms and DeVoider in relation to the water fountain incident. See Finding of Fact No. 81. Respondents assert that, while DeVolder testified he was informed by Harms that Mike Friedman brushed against her with his groin and said "Oh excuse me"; while Harms testified that Mike Friedman was walking briskly by her, brushed against her, and said nothing. Respondents' Brief at 4. In fact, the essence of Harms' testimony is that Mike Friedman brushed up against her backside, in an unobstructed hallway where there was no reason to touch her in order to get by, and after he had passed her, walked briskly by her. (CP. EX. i-4; Tr. at 290-91, 317). There is no discrepancy there. Although their testimonies do differ on whether Mike Friedman asked to be excused, under these facts, that is not a material discrepancy.

147. Mike Friedman's testimony was highly unreliable, willfully.false, and, with few exceptions, is cited in support of a finding of fact only when it constitutes an admission against the interest of the Respondents, background information, or when supported by credible evidence or other indicia of reliability. For the reasons previously set forth, his testimony in regards to his reasons for his treatment of Bill Edwards and his application were found to not be credible. See Findings of Fact Nos. 42-46.

148. For example, Mike Friedman's testimony that the race of job applicants made no difference to him and that he did not hear the word "nigger" at Friedman's is patently and willfully false. (Tr. at 743, 779). See Findings of Fact Nos. 23-25, 37, 46). This is also true of his testimony implying that he did not make remarks about Cristen Harms beyond saying she was good looking and had a nice figure. (Tr. at 745-46). See Findings of Fact Nos. 76-79.

149. In Mike Friedman's testimony, he confused Bill Edwards and another Black applicant. This first Black applicant, according to Friedman, rudely bumped into him and indicated that he was "here for the sales position." Friedman testified he indicated that they were not hiring, to which this applicant replied, "I wouldn't work in this fucking place anyway," and left. (Tr. at 752). Friedman then testified concerning Mr. Edwards, who he described as being the nicely dressed applicant who he later found out was from the Civil Rights Commission. (Tr. at 753-54). He also mentioned being tied up on a car deal when Edwards was there. (Tr. at 754).

150. At a later point in his testimony, again describing the nicely dressed Black applicant who came in while he was tied up with a car deal, (i.e. Edwards), Friedman referred to this applicant as rudely bumping into him, being interested in "the sales job," and then, upon being informed the position. was filled, stating "I won't work in this fucking place," and leaving. (Tr. at 769, 780).

151. A possible explanation for this confusion may lie in the conversation between Gary Friedman and Mike Friedman overheard by Mike DeVolder wherein Gary Friedman told Mike Friedman, "This is what you've got to do Mike....... Just lie. It's their word against our word.... Tell them the Black applicant got mad and you were just defending yourself, that you were responding to his temper." (Tr. at 100-01).

152. For reasons previously set forth, Respondent Scott Henry's testimony concerning the application of Judy Borgman and the additional reasons for the termination of Mike DeVolder was found to not be credible. See Findings of Fact Nos. 53, 118. In light of more credible evidence to the contrary, his testimony to the effect that Mike DeVolder never complained about Mike Friedman's behavior; that he never heard any report that Mike Friedman said not to waste time on potential Black customers; that he did not make such a statement; that he made no sexual comments to Angie Whetro; that he was unaware of sexual comments of Mike Friedman; and that the hitting of DeVolder was "all in fun" is not credible and is, in many aspects, willfully false. (Tr. at 70507, 715, 734-35). See Findings of Fact Nos. 61-62, 6970, 75-76, 103, 106, 109, 111. It should be noted that Henry made $67,000 at Friedman's in 1991. (Tr. at 729).

153. Respondent Pat Sullivan's testimony is not credible to the extent it implies DeVolder did not complain to other management personnel about Mike Friedman's racist and sexist behavior; that Sullivan was not aware of sexist or racist jokes and remarks; that he was not informed of the treatment of the McC[endons; that he had not discussed telephoning Mike Friedman and identifying the caller as being with the Commission; and that the hitting of DeVolder was not in anger, (Tr. at 494-95, 517, 520-21, 491). See Findings of Fact Nos. 65, 71, 76, 103, 107, 109, 11113.

154. Respondent Cheryl Ruble's testimony is essentially credible with exceptions that are due to the clearer and more detailed memories of other witnesses such as Cathy Koch, Angie Whetro, and Cristen Harms. These exceptions include discrepancies between these witnesses' and Ruble's accounts of Cristen Harms', Cathy Koch's, and Angie Whetro's complaints about Mike Friedman and the events leading up to and including Cristen Harms constructive discharge. (Tr. at 788-90, 794, 796-97). See Findings of Fact Nos. 68, 69-70, 87-91, 97.

155. During the week prior to the hearing, Respondent Tim Manning, Cathy Koch, and some other Friedman's employees were talking when the subject of this hearing came up. Manning stated "When it happens, it will be us against them and we're smooth." (Tr. at 835-36). Tim Manning's testimony, which suggests that he did not hear racist jokes or epithets on the showroom floor, when he actually participated in such remarks, is, in this and other respects, not credible. (Tr. at 622-23). See Finding of Fact No. 65.

156. Respondent Gary Friedman's testimony is largely credible. He did not know, prior to receiving the Dial complaint, about Mike Friedman's practices with respect to the consideration and hiring Blacks and females, nor about the treatment of Black customers or a racially hostile working environment, nor about retaliation toward DeVolder; nor did he know in a timely manner about the harassment of Cristen Harms. His managers, who are his and Friedman Motorcars Ltd.'s agents, either did not tell him at all or, in the case of Ms. Harms, discharged her before telling him. These managers, however, acted out of the understandable and reasonably accurate belief that nothing would be done because Mike Friedman is Gary Friedman's brother. (Tr. at 809, 811, 818-20, 823). See Findings of Fact Nos. 7, 9-15, 75, 98-99. Moreover, in light of Mike DeVolder's testimony to the contrary, Gary Friedman's assertion that he did not tell Mike Friedman to lie is not believable. (Tr. at 818). See Finding of Fact No. 151.

157. Jeffrey Rich's testimony must be viewed with caution as he was obviously hesitant and fearful that his testimony would jeopardize his employment. He acknowledged that "you have to feel a little nervous that-concerned about if you say anything bad about your employer." (Tr. at 337). Some of his testimony is shaded to please his employer. Despite his hesitancy, however, his testimony is clear on the issues of Mike Friedman's attitude toward Blacks in hiring and the reluctance of salespersons to wait on Blacks. See Findings of Fact Nos. 23, 56.

158. Curtis Peters was not a credible witness. His fantastic account explaining his pro-Ku Klux Klan remarks is simply not credible in light of Cathy Koch's and Mike DeVoider's testimony. See Finding of Fact No. 65. Peters asserted that, after he sold a car to an "Oriental person," DeVolder walked up to him and stated, "Why did you sell a guy like that a car for? Well, aren't all you guys from small towns racist?" At this point, Peters testifies, he made sarcastic remarks to the effect that "[A]II of us people from small towns, my father, my grandfather, are all card carrying members of the KKK. What do you think?," and then walked away. (Tr. at 646-47). Ms. Koch's testimony is that these remarks were made directly to her by Peters. There is nothing in her testimony to indicate the remarks were provoked by DeVolder. (Tr. at 216-17). It is not necessary to believe Peters' remarks in order to believe they were said. In addition, it is obvious, based on DeVoider's responses and attitudes toward discrimination, as reflected in the record, that it is very doubtful that he would make such a provocative statement.

159. Tina Wilson's testimony concerning the number of Black salesmen employed at Friedman's is confused as she admittedly had difficulty remembering the number of Black salesmen there, when they were hired, and whether they made certain statements. (Tr. at 681, 693-94). Other than this, her testimony is basically credible.

160. The following witnesses were also credible: Don Grove, Bill Edwards, Karl Schilling, Jody Borgman, Janet Adams, Angie Whetro, Laura Farran, Mark Boyd, Gary Cooksey, Tonja McClendon, Van Clark, Raymond E. Jackson, Rosemary Jackson, Richard Lyle, Rodney Wright, Jacqueline Rice, Harold McFeders, and Clair Conway. The testimony of James Sherman, with the possible exception of his testimony on a statement by Pat Sullivan concerning Rodney Wright, where his memory is not clear, is credible. (Tr. at 398, 409-410, 413).