VIII. Credibility and Testimony:
63. In addition to the factors mentioned in the findings of fact on credibility, the Administrative Law Judge has been guided by the following principles: First, it has been recognized that, when some witnesses have a relationship with one or the other of the parties which might color their testimony, the testimony of those witnesses who are disinterested will often be entitled to the greatest weight. See, Lareau & Sacks, Assessing Credibility in Labor Arbitration, 5 The Labor Lawyer 151, 178-79 (1989); See also Kaiser v. Strathas, 263 N.W.2d 522, 526 (Iowa 1978)(interest of witness, remote or otherwise may be taken into account). See Findings of Fact Nos. 102-104, 108, 113.
64. Second, "[w]hen the trier of fact . . . finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2d 383, 388 (Iowa 1975). "[T]he facts disputed in litigation are not random unknowns in isolated equations--they are facets of related human behavior, and the chiseling of one facet helps to mark the borders of the next. Thus, in the determination of litigated facts, the testimony of one who has been found unreliable as to one issue may properly be accorded little weight as to the next." NLRB. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949).
65. This case provides an example of the application of this principle. Because of Respondent Jim Lacona's willfully false denial of knowledge of sexual harassment, his testimony with respect to his knowledge of the events of October 15 and 16, 1993 and his communications with Charles Lacona were also found to be false. See Findings of Fact Nos. 73, 77. Charles Lacona's unreliable testimony, possibly due to a bad memory, on the reasons for complainant's discharge, also affected the weight given his testimony on other matters. See Findings of Facts Nos. 63, 79-81, 89. Cf. Fuentes v. Perskie, 32 F.3d 759, 764, 65 Fair Empl. Cas. 890, 894 at n.7 (3rd Cir. 1994)(pretext case--"factfinder's rejection of some of the defendant's proffered reasons may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons even if no evidence undermining those remaining rationales in particular is available.").
66. Third, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses. Stated otherwise, the trier of facts . . . is not bound to accept testimony as true because it is not contradicted." In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972); accord Nadler v. City of Mason City, 387 N.W.2d 587, 591 (Iowa 1986); Loudon v. Hill, 286 N.W.2d 189, 193 (Iowa 1979)("Evidence need not be believed even when it is not contradicted."); Moser v. Brown, 249 N.W.2d 612, 616 (Iowa 1977)("It is well settled the finder of facts is not bound to accept testimony as true because it is not contradicted."). In determining whether such testimony is credible, the factfinder may consider other facts and circumstances in the evidence. Platter v. Minneapolis & State L. R. Co., 102 Iowa 142, 151, 157, 143 N.W. 992 (1913). See Findings of Fact Nos. 69, 71..
67.
While . . . the trier of fact is not warranted in arbitrarily or capriciously rejecting the testimony of the witness, neither is it required to accept and give effect to testimony which it finds to be unreliable although uncontradicted. Testimony may be unimpeached by any direct evidence to the contrary and yet be so contrary to the natural laws, inherently improbable or unreasonable, opposed to common knowledge, inconsistent with other circumstances established in the evidence, or so contradictory within itself, as to be subject to rejection by the . . . trier of the facts.
. . .
The [factfinder] . . . might well scrutinize closely such testimony as to its credibility, taking into consideration all the circumstances throwing light thereon, such as the interest of the witnesses, remote or otherwise.
Kaiser v. Strathas, 263 N.W.2d 522, 526 (Iowa 1978)(citations omitted).
68. Fourth, the ultimate determination of the finder of fact "is not dependent on the number of witnesses. The weight of the testimony is the important factor." Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957). In determining the credibility of a witness and what weight is to be given to testimony, the factfinder may consider the witness' "conduct and demeanor. . . [including] the frankness, or lack thereof, and the general demeanor of witnesses," In Re Moffatt, 279 N.W.2d 15, 17-18 (Iowa 1979); Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957), as well as "the plausibility of the evidence. The [factfinder] may use its good judgment as to the details of the occurrence . . . and all proper and reasonable deductions to be drawn from the evidence." Wiese v. Hoffman, 249 Iowa 416, 424-25, 86 N.W.2d 861 (1957).
69. Fifth,
Evidence on an issue of fact is not necessarily in equilibrium because the witnesses who testify to the existence of the fact are directly contradicted by the same number of witnesses, even though there is but a single witness on each side and their testimony is in direct conflict.
. . .
Numerical preponderance of the witnesses does not necessarily constitute a preponderance of the evidence so as to require a contested question of fact to be decided in accordance therewith. . . . [T]he intelligence, fairness, and means of observation of the witnesses, and various other recognized factors in determining the weight of the evidence . . . should be taken into consideration. . . . It is, of course, well recognized that the preponderance of the evidence does not depend upon the number of witnesses.
Id., 249 Iowa at 425, 86 N.W.2d 861.
70. Sixth, witness demeanor can be used in evaluating witness testimony. In Re Moffatt, 279 N.W.2d 15, 17-18 (Iowa 1979); Wiese v. Hoffman, 249 Iowa 416, 424, 86 N.W.2d 861, 867 (1957). See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 37 Fair Empl. Prac. Cas. 396 (1985); Libe v. Board of Education, 350 N.W.2d 748, 750 (Iowa Ct. App. 1984). Caution must be exercised, however, when using demeanor clues with respect to determining witness credibility as many traditional demeanor clues and notions are false. See, Lareau & Sacks, Assessing Credibility in Labor Arbitration, 5 The Labor Lawyer 151, 154-55. (1989). For example, "research shows pleasant facial characteristics are among the characteristics of those who lie." Id. at 155. Witness who either don't know what they are talking about or are liars may display a confident demeanor. Id. at 154. See Findings of Fact Nos.98-99, 103.
71. Seventh,
The testimony of a witness may be so impossible and absurd and self-contradictory that it should be deemed a nullity by the court.
. . .
The rule that it is for the [factfinder] to reconcile the conflicting testimony of a witness does not apply where the only evidence in support of a controlling fact is that of a witness who so contradicts himself as to render finding of facts thereon a mere guess. We may concede that, ordinarily, contradictory statements of a witness do not make an issue of fact; and that such situation may deprive the testimony of all probative force.
State v. Smith, 508 N.W.2d 101, 103 (Iowa Ct. App. 1993)(quoting Graham v. Chicago & Northwestern Ry Co., 143 Iowa 604, 615, 119 N.W. 708, 711 (1909) and State ex rel Moehnick v. Andiroli, 216 Iowa 451, 249 N.W. 379 (1933)). The damaging effect of self-contradictory testimony is noted in the findings of fact. See Findings of Fact Nos. 62, 76, 79, 81-82, 84, 87-88, 102, 108.
72. Eighth, "[d]eference is due to hearing officer [now administrative law judge] decisions concerning issues of credibility of witnesses." Peoples Memorial Hospital v. Iowa Civil Rights Commission, 322 N.W.2d 87, 92 (Iowa 1982)(citing Bangor and Aroostook Railroad Co. v. ICC, 574 F.2d 1096, 1110 (1st Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 121, 58 L.Ed2d 133 (1978)(deference is due by reviewing court to ALJ findings on credibility even when commission has reached a contrary decision)).
73. Such deference is given because the administrative adjudicator who views the witnesses and observes their demeanor at the hearing is "in a far superior position to determine the question of credibility than is this court." Libe v. Board of Education, 350 N.W.2d 748, 750 (Iowa Ct. App. 1984). "Factual disputes depending heavily on the credibility of witnesses are best resolved by the trial court which has a better opportunity to evaluate credibility . . ." Capital Savings & Loan Assn. v. First Financial Savings & Loan Assn., 364 N.W.2d 267, 271 (Iowa Ct. App. 1984)(quoted in Board v. Justman, 476 N.W.2d 335, 338 (Iowa 1991)).
IX. Compensation:
74. The Commission has the authority to make awards of backpay. Iowa Code S 216.15(8)(a). In making such awards, interim earnings and unemployment compensation received during the backpay period are to be deducted. Id. The Complainant bears the burden of proof in establishing his or her damages. Diane Humburd, 10 Iowa Civil Rights Commission Case Rpts. 1, 9 (1989)(citing Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981)). See Children's Home v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Diane Humburd at 10 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.Y. 1976), aff'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainant has done. See Findings of Fact No. 123. With respect to her tip income, Complainant Hoffman was required to report all tips to her employer. IRS, Your Federal Income Tax For Individuals 65 (1995). The reported tips reflected on her W-2's (social security tips) were considered to more accurately represent her actual tips than the amounts reflected in her memory. See Finding of Fact No. 115.
75. The burden of proof for establishing the interim earnings, including unemployment insurance payments, of the Complainant rests with the Respondent. Diane Humburd at 10 (citing Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). The Respondent also bears the burden of proof for establishing any failure of the Complainant to mitigate damages. Children's Home of Cedar Rapids v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). The Commission may, as it has done here, choose to provide evidence of interim earnings the Complainant is willing to concede. Diane Humburd at 10. See Findings of Fact Nos 124-27.
76. The award of backpay in employment discrimination and retaliation cases serves two purposes. First, "the reasonably certain prospect of a backpay award . . . provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate [employment discrimination or retaliation]." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, backpay serves to "make persons whole for injuries suffered on account of unlawful [retaliation or] employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of backpay in the present case.
77. "Iowa Code section 216.15(8) gives the Commission considerable discretion in fashioning an appropriate remedy that will accomplish the purposes of chapter 601A [now 216]." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 531 (Iowa 1990). The Iowa Supreme Court has approved two basic principles to be followed in computing awards in discrimination cases: "First, an unrealistic exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Id. at 530-531. "It suffices for the [agency] to determine the amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id. at 531 (Quoting with approval Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973)). These principles were followed here. See Findings of Fact Nos. 115-30.
78.
[A] back pay period terminates when the [complainant] obtains comparable employment, and will not resume if [complainant] voluntarily quits . . . a new, better paying position. The back pay period may also be terminated when the [complainant] ceases to look for alternative employment.
Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 531 (2nd ed. 1989)(emphasis added). If a Respondent shows that a Complainant unjustifiably quits a job, the minimum earnings which would have been accrued in that position should be treated as interim earnings and deducted from the back pay award. EEOC v. Riss International, 35 Fair Empl. Prac. Cas. 423, 425-26 (W.D. Mo. 1982). "[T]he back pay provision is income replacing and . . . quitting a job for reasons unrelated to amount of income or further mitigating damages (absent discriminatory conditions or other justifying factors) should not entitle a party to additional back pay." Id. at 426 (emphasis added).
79. Complainant did quit subsequent employment with Cheddars because the pay was substantially less than she received in her former position with Respondent Mama Lacona's West. See Findings of Fact Nos. 21. Under the authorities cited above, Complainant's back pay should neither terminate as of this quit nor should the earnings which would have accrued in this position after the quit be treated as interim earnings. See also Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1235-36, 41 Fair Empl. Prac. Cas. 341, 347 (7th Cir. 1986)(leaving lower paying work does not affect back pay); Rachel Helkenn, 10 Iowa Civil Rights Commission Case Reports 62, 72 (1990)(same-waitress quit subsequent lower paying job).
80. Complainant later quit work with Red Lobster for a combination of pay reasons and her encounter with a blizzard. This would not have resulted in a quit from her employment with Respondent Mama Lacona's-West. See Finding of Fact No. 117. Complainant continued to search for work after this quit. See Findings of Fact Nos. 118. Under these circumstances complainant's back pay should neither terminate as of this quit nor should the earnings which would have accrued in this position after the quit be treated as interim earnings. See Baggett v. Program Resources, Inc., 806 F.2d 178, 42 Fair Empl. Prac. Cases 648, 651 (8th Cir. 1986)(back pay continued to plaintiff who quit job to go to Florida to get married and find other work); Rachel Helkenn, 10 Iowa Civil Rights Commission Case Reports 62, 72 (1990)(back pay continued to former waitress who quit subsequent job hairdressing dying patients as it was too distressing). Cf. EEOC v. Exxon Shipping Co. 745 F.2d 967, 36 Fair Empl. Prac. Cas. 330, 340 (5th Cir. (1984)(back pay continued despite refusal of job which required complainant to work every weekend when she had been discriminatorily denied a job which required only occasional weekend work). However, once Complainant Hoffman quit her employment at the Top Hat Lounge for a personal reason which would have also resulted in her leaving Respondent Mama Lacona's-West, her back pay terminated. See Finding of Fact No. 118.
81. Medical insurance premium costs were also awarded. Such premiums are one form of back pay compensation. Belton, Remedies in Employment Discrimination Law 338-39 (1992). The Commission has the option of either (a) retaining jurisdiction of the case in order to obtain the amount due for medical premiums and issue a supplemental order stating that amount, or (b) ordering Respondent Mama Lacona's-West to provide the information by affidavit, supplement the record by this means, and allow the district court on enforcement of the Commission's order to determine the amount due in accordance with Finding of Fact Number 130. City of Des Moines Police Department v. Iowa Civil Rights Commission, 343 N.W.2d 836, 839-40 (Iowa 1984). The Commission chooses the latter as the more practical alternative.