V. CREDIBILITY:
98. Complainant Hoffman was a credible witness. Although she has a financial interest in winning the case, much of her testimony, particularly with respect to the existence of sexual harassment, was verified by neutral witnesses who had no financial interest in proving sexual harassment at Mama Lacona's. David Lihs's and Kerry Koonce's testimony included observations of sexual harassment which corresponded to those of the Complainant and Amy Tobey. Although Robert Novak did not witness the harassment, he was aware of internal complaints of such harassment made by Complainant Hoffman and Amy Tobey. Her demeanor was appropriate. The Complainant's testimony as a whole is consistent with the greater weight of the credible evidence. Her testimony on her tip income at Mama Lacona's is, however, not consistent with the documentation of such income. In that matter, the documentation is favored over her memory. See Finding of Fact No. 115.
99. Amy Tobey was also a credible witness. Although she is pursuing a separate lawsuit for sexual harassment against Mama Lacona's-West, much of her testimony was also verified by neutral witnesses such as David Lihs, Kerry Koonce, and Robert Novak. Her testimony on material issues in this case is consistent with the greater weight of the credible evidence. Her demeanor was appropriate.
100. On brief, Respondent suggests that a discrepancy between Ms. Tobey's testimony and Complainant Hoffman's shows that Ms. Tobey is not credible. (Respondent's Brief at 12). Ms. Tobey testified that the final incident which led to the altercation between Dave Lihs and Respondent Lopez involved Lopez patting Complainant Hoffman on the rear after she set dishes down at the dishwashing area. (Tr. at 16, 27). Complainant Hoffman testified that the incident involved her being rubbed by Lopez while she was attempting to arrange a tray. (Tr. at 61, 79-81, 93).
101. Since Hoffman would probably have a tray of dishes in front of her if she was engaged in either setting them down or arranging an order, it would appear that both of these incidents would involve contact from behind her. Thus, it is possible that Tobey witnessed Lopez patting Hoffman on the rear immediately prior to rubbing up against her. It is more likely than not that Tobey witnessed one or more of the acts of harassment which Lopez inflicted on Complainant Hoffman that day. See Finding of Fact No. 24. Therefore, she may have confused the "patting" incident with the "rubbing" incident which led to the altercation. This minor discrepancy does not show that Ms. Tobey's testimony is generally not credible.
102. The testimony of David Lihs was, with one exception, credible. His testimony on the acts of sexual harassment practiced by the members of the kitchen staff and of the inadequate steps taken to counter it was clear and detailed. It should be noted that, although he was discharged from Respondent Mama Lacona's-West, he remained friends with Respondent Jim Lacona after the discharge. (Tr. at 318-19). His testimony does not seem to be fueled by personal animosity toward the Laconas. Nor is there any evidence that he has any financial interest in the case. Due to an internal contradiction in his testimony, his statement that he informed higher management of sexual harassment on three or four occasions prior to October 15, 1993 was not credible. See Finding of Fact No. 44.
103. Kerry Koonce was a highly credible neutral witness. Ms. Koonce's only association with either the Complainant or Respondent Mama Lacona's-West appears to be through her status as a former employee of Mama Lacona's. (Tr. at 168-69). She didn't even know about the hearing until four days prior to it when she was subpoenaed to testify. (Tr. at 168,180). Ms. Koonce was an observant employee during her time at Mama Lacona's. Her detailed, confident, and clear testimony verified many of the acts of physical and verbal sexual harassment testified to by other witnesses. There is no evidence that she had any stake, financial or otherwise, in the outcome of these proceedings.
104. Robert Novak was also a credible neutral witness. His association with either the Complainant or Mama Lacona's-West also appears to be limited to the time he was formerly employed there. (Tr. at 34-35). There is no evidence indicating that he has any personal or financial interest in these proceedings.
105. On brief, Respondent Mama Lacona's West and Jim Lacona suggest that stereotyping of Spanish speaking individuals played a role in the perceptions and discomfort felt by the waitresses when members of the kitchen staff spoke Spanish. (Respondent's brief at 10, 12-13). This argument is contrary to the greater weight of the evidence. It can hardly be said that if a waitress is offended by the obscene Spanish phrases used by the kitchen staff toward female employees then the waitress has an anti-Hispanic bias. These phrases would be equally objectionable in Spanish or English. See Findings of Fact Nos. 14-18.
106. It is not surprising if, after learning the meaning of the offensive phrases directed toward her, a female employee would then be suspicious of other incidents where Spanish-speaking employees laughed and joked in Spanish among themselves while pointing at her. Amy Tobey indicated she felt such discomfort, but this does not indicate an anti-Hispanic bias. (Tr. at 31). The offensive nature of speech may be communicated through body language. Kerry Koonce, for example, could tell that "chupa mi verga" was a sexually degrading phrase, even though she did not know its meaning, because of the hand gestures and body language which accompanied it. See Finding of Fact No. 17.
107. The Respondents also suggest on brief that it would not be possible for individuals with no or inadequate Spanish to recite the "chupa mi verga" phrase to someone else for translation. However, under this record, it appears that David Lihs and Bobby Carara may have volunteered this information to the waitresses. In any event, it would not be difficult for someone who did not speak Spanish to memorize and recite the pronunciation of such a short phrase after it has been directed towards her day after day. See Findings of Fact Nos. 14-17.
108. The credibility of Respondent Jim Lacona and Charles Lacona has already been extensively discussed. See Findings of Fact Nos. 71-90. Charles Lacona, as president and agent of Respondent Mama Lacona's-West, has an interest in seeing that Mama Lacona's-West does not pay damages in this case. See Finding of Fact No. 7. While it is not clear whether Mama Lacona's, Inc. is privately held, Charles Lacona was referred to by Mama Lacona's counsel as the "owner" of the business. (Tr. at 148). As a party, Respondent Jim Lacona has an interest in seeing that he does not pay damages in the case. These financial interests may, in part, account for the lack of credibility of these witnesses. Given the inconsistencies and contradictions in their testimony, they are not credible witnesses with respect to many material facts. Their testimony is relied upon primarily when it is background information or is supported by other credible evidence or indicia of reliability.
109. Both Venessa Devine and Valerie Lacona are daughters of Charles Lacona and, therefore, sisters of Respondent Jim Lacona. (Tr. at 146, 148, 166, 221-22). During the latter half of 1993, Venessa Devine would help out as a waitress during staff shortages at the Clive location approximately two days out of a month. (Tr. at 161, 163). During that time, Valerie Lacona also worked as a waitress at the Clive location. (Tr. at 221, 223). Ms. Lacona worked there on Wednesdays, Fridays, and Saturdays. (Tr. at 225).
110. On brief, Respondents suggest that because Venessa Devine and Valerie Lacona testified that they did not experience or observe sexual harassment, there was little or no sexual harassment by the kitchen staff of Mama Lacona's-West. (Respondent's Brief at 11). The Commission suggests that because they are Lacona family members, their testimony is not credible. (Commission's Brief at 5). For two reasons, it is clear that neither conclusion is consistent with the greater weight of the evidence.
111. First, it must be noted that Venessa Devine and Valerie Lacona may not have been aware of acts of harassment against other waitresses. As Valerie Lacona testified, it was entirely possible that other waitresses were being subjected to offensive conduct, but did not tell her about it. (Tr. at 241). With respect to the Spanish remarks, it must be noted that neither Venessa Devine nor Valerie Lacona knew Spanish. It is clear they had no idea what the Hispanic staff was saying. (Tr. at 155, 162, 228). Venessa Devine testified that she was never told about objectionable phrases and their translations. (Tr. at 155-56). She testified that "[w]hen they talk like that I don't even listen because nothing makes sense to me anyway. If you asked me if I heard them, I wouldn't know if I did or not." (Tr. at 163). Valerie Lacona testified that she did not know and was not concerned about what the kitchen staff was saying. (Tr. at 228). There is no evidence that Valerie Lacona was made aware of the use of the offensive Spanish phrases and of their translation. Thus, it is not surprising that they might not have taken notice of these phrases when they were used by the kitchen staff.
112. Second, it was well known by employees at Mama Lacona's West that Venessa Devine was related to the Laconas. (Tr. at 166). She was acquainted with the kitchen staff. (Tr. at 150). It was also well known by the staff that Valerie Lacona was the daughter of Charles Lacona and sister of Jim Lacona. (Tr. at 240). By her name alone, it would have been evident that she was part of the Lacona family. She was also acquainted with the kitchen staff. (Tr. at 225-26). It is hardly surprising that the daughters of the president of the company and the sisters of the general manager were not subjected to wolf whistles, rubbing, or other forms of sexual harassment by the kitchen staff. (Tr. at 152, 165-66, 227-28). The staff might well have viewed such actions as being detrimental to their own economic self-interest. It is possible that they might have toned down their actions when Ms. Devine and Ms. Lacona were present. It does not follow, however, that other waitresses, who were not members of the immediate Lacona family, were not sexually harassed.
113. Angela Hawksby is a waitress who has worked for Mama Lacona's for ten years, including four years at the Clive location. (Tr. at 189). She is also a long time friend of Venessa Devine and other members of the Lacona family. (Tr. at 210-11). Ms. Hawksby testified that she did not experience any kind of inappropriate or offensive verbal or physical conduct directed at her by the kitchen staff in 1993. She testified that she did not hear any wolf whistles although it appears she may not be certain what a wolf whistle is ("like 'woo'"). (Tr. at 195-96).
114. There are two problems with her testimony which make it less credible than the testimony of those who did observe, experience, or hear reports of sexual harassment. First, because she did not know Spanish, she would not know whether something derogatory was being said. "There is a lot of jibber-jabber there. I guess I don't pay much attention. I just do my job." (Tr. at 199). Second, Ms. Hawksby would focus on her job to such a degree that sexual harassment of others could have happened which she may not have noticed or remembered. This is demonstrated by these excerpts from the transcript:
Q. I guess what I'm observing is that it's pretty much your philosophy to keep your nose out of those things that aren't your job; is that correct?
A. Correct.
Q. If there was a problem going on, for instance, the event with Dave Lihs--
A. Uh-huh.
Q. --was it your standard conduct to move away from that problem and stay out of it?
A. Yes.
(Tr. at 208).
Q. Some of that [Spanish] language [spoken by the kitchen staff] was directed towards individuals who were not members of the Mexican portion of that kitchen staff; correct?
A. Could be.
Q. Okay. What you would really do is just shut that out and mind your own business and go about what you were supposed to do; isn't that true?
A. Right.
. . .
Q. So if there were insults shouted in Spanish, or sexually seductive or insulting phrases, those very well might go on and you would not observe them, that's fair to say, isn't it?
A. Could be.
. . .
Q. [I]f somebody were making a gesture with their hands at . . . another member of the waitress staff, you might just move right on by that and get on with what you were supposed to do; isn't that fair to say?
A. You would say that, yeah.
Q. Okay. Would you recall it this long after the occurrence had actually taken place?
A. I don't know.
Q. Is it possible that it occurred and you just don't recall it?
A. I don't know.
. . .
Q. [With respect to people bumping into other people] you don't know because you are minding your own business, you don't know whether that's intentional or unintentional?
A. Right. I don't know.
(Tr. at 212-14).