VI. DAMAGES:

A. Back Pay and Benefits:

1. Complainant's Earnings at Respondent Mama Lacona's West::

115. The best evidence of the Complainant's total 1993 earnings at Respondent Mama Lacona's-West is documentary evidence, i.e. her 1993 W-2 form which indicates that Mama Lacona's reported $8877.68 as her total wages and tips in that year. (R. EX. B; Tr. at 102). This amount is also consistent with her first and second quarter earnings data for 1993 reported by Mama Lacona's-West to the Department of Employment Services. (CP. EX. # 2). This amount yields an average of $211.38 per week for the 42 week period from January 1, 1993 to the end of her employment on or about October 20, 1993. (Tr. at 68). This amount is considerably less than the Complainant's guess of $350.00 to $450.00 per week for tip income alone. (Tr. at 68, 100). It is, however, probably more reliable as her W-2 includes $5298.02 in tip income which, under tax regulations, she would have regularly reported to Mama Lacona's in 1993. (R. EX. B). See Conclusion of Law No. 74. Documentation is often more reliable than human memory. For example, although Complainant Hoffman thought Mama Lacona's reported allocated tips to her on the basis of eight percent of sales, such allocation is not reflected on the 1993 W-2. (Tr. at 100; R. EX. B). Therefore, the amounts given in her W-2's and other documentation form a more appropriate basis for determining Complainant's back pay than the higher amounts based on her memory.

2. Beginning and Termination Dates of Back Pay:

116. The starting date for back pay would be the day after Complainant Hoffman's termination, i.e. October 21, 1993. Two possible end dates are suggested by the record.

117. The first possible end date is the week ending January 22, 1994. The unemployment insurance records of Complainant Hoffman, who received partial unemployment after her termination at Mama Lacona's, indicate she was no longer reporting earnings after that date. (CP. EX. # 2). This appears to be the date she stopped working at her new employment at the Red Lobster restaurant in Clive after being caught in a blizzard during her commute from Carroll, Iowa. . (Tr. at 75-76, 98-99, 109-10). If the blizzard had been the only factor in Complainant's quitting, then her back pay would end at that point, as employment at either Red Lobster or Mama Lacona's require a commute from Carroll to Clive. However, if she had been making as much money at Red Lobster as she was at Mama Lacona's, she would have continued to commute from Carroll to Clive. Her earnings at Red Lobster were less. (Tr. at 109-11). See Finding of Fact No. 122. Therefore, because her quit was due to the combination of weather related risks and low pay, and not just the weather, her back pay should not terminate as of that date. See Conclusion of Law No. 80.

118. The second possible end date is December 20, 1994. The Complainant had begun working as a bartender for the Top Hat lounge in Carroll, Iowa in March or April of 1994. (Tr. at 76). After her son came to live with her in November of 1994, she found that she could not get him on the school bus at 7:30 a.m. when she could not return home from work until 2:30 a.m. or 3:00 a.m. in the morning. Therefore, she quit her job at the Top Hat Lounge on December 20, 1994. (Tr. at 76-77). She also found out that hours at her next job, Cytel, ending at 10:00 p.m., did not work out for her and her son. (Tr. at 77-78). It is reasonable to conclude that, if she had continued at Respondent Mama Lacona's-West, she would have found that her hours there, ending at 9:00 p.m. or 11:00 p.m., would have required that she leave that position by December 20, 1994. See Finding of Fact No. 4. Therefore, December 20, 1994 is the end date for back pay.

3. Complainant Hoffman's Weekly Average Interim Earnings at Cheddars and Red Lobster Were Less Than Her Weekly Average Earnings at Respondent Mama Lacona's-West:

119. On brief, Respondents suggest that back pay should not be awarded because her replacement wages at her subsequent employment would have been nearly identical to what she obtained at Mama Lacona's-West. (Respondents' brief at 16). This position is not supported by the record.

120. Complainant Hoffman's first employment after Mama Lacona's-West was at Cheddars restaurant. (Tr. at 74). Although the Complainant could not recall the exact date she began there, it appears from the unemployment insurance records that her first reported income, after leaving Mama Lacona's, was for the week ending November 6, 1993. (CP. EX. # 2; Tr. at 73). Toward the end of December 1993, she also began working at Red Lobster. (Tr. at 74). Her earnings from Red Lobster and Cheddars from 1993 are reflected in her W-2 forms for that year. She earned $886.90 from Cheddars (Heartland Restaurant Corp.) and $61.69 from Red Lobster for a total of $948.59 in 1993. (R. EX. B; Tr. at 102). This amount yields an average of $118.51 per week for the eight week period from November 6, 1993 to December 31, 1993. This is $92.87 less than the $211.38 per week average she earned at Respondent Mama Lacona's-West. See Finding of Fact No. 116.

121. Complainant Hoffman subsequently quit Cheddars, either in late December 1993 or in January 1994, because she believed she could make more money by working solely at Red Lobster. (Tr. at 74, 75, 112).

122. As previously noted, Complainant Hoffman left Red Lobster during the week ending January 22, 1994. See Finding of Fact No. 117. According to her unemployment insurance report, she reported a total amount of $280.00 for wages through that date in 1994. This amount yields an average of $93.33 for the three weeks ending January 22, 1994. This is $118.05 less than the $211.38 per week average she earned at Respondent Mama Lacona's-West. See Finding of Fact No. 116.

4. Gross Back Pay:

123. The amount of gross back pay, prior to deduction of interim earnings and unemployment insurance, for the fifty nine and five sevenths week period from October 21, 1993 to December 20, 1994 may be established by multiplying the Complainant's average weekly earnings at Mama Lacona's by 59 5/7 weeks = 59 5/7 X $211.38 = $12622.41.

5. Interim Earnings and Unemployment Insurance:

124. The total interim earnings for the period from October 21, 1993 to December 31, 1993 have already been established as $948.59. See Finding of Fact No. 120.

125. The earnings for all of 1994 are given as $6606.00 on Complainant Hoffman's 1994 tax return. (R. EX. C). Since Complainant did not have any further employment in 1994 after quitting her job at the Top Hat Lounge, it would appear that this amount reflects the total 1994 interim earnings through December 20, 1994. (Tr. at 77). See Finding of Fact No. 18.

126. The total amount of unemployment insurance paid out to Complainant Hoffman between October 21, 1993 and December 20, 1994 was $2294.05. (CP. EX. # 2).

127. The total of interim earnings and unemployment insurance for Complainant Hoffman for the period from October 21, 1993 to December 20, 1994 inclusive is: $948.59 + $6606.00 +$2294.05 = $9848.64.

6. Total Back Pay Due Complainant Hoffman After Interim Earnings and Unemployment Insurance Are Deducted:

128. The total back pay due Complainant Hoffman after interim earnings and unemployment insurance are deducted is: $12622.41 - $9848.64 = $2773.77

7. Medical Benefits:

129. Complainant Hoffman was informed by Jim Lacona, approximately 2 weeks before her termination, that once she had been employed a year, she would be provided one half of the premium of a medical insurance policy as a benefit. (Tr. at 81). This benefit description corresponds to that provided by Angela Hawksby and Charles Lacona. (Tr. at 204-05, 281-82).

130. Complainant began her employment with the Respondent Mama Lacona's-West in November of 1992. See Finding of Fact No. 4. The Respondent Mama Lacona's-West should provide, by affidavit, the amount for one half the total premium cost for health insurance which would have been provided by the Respondent for the Complainant if her employment had continued for the period from November 1, 1993 to December 20, 1994. On enforcement of the Commission's order, this affidavit may be provided to the district court for determining the amount of health insurance premiums to be awarded Complainant Hoffman. See Conclusion of Law No. 81.

B. Compensatory Damages For Emotional Distress:

1. Complainant Hoffman Suffered Emotional Distress Resulting From The Sexual Harassment to Which She Was Subjected:

131. Many circumstances have already been noted from which it may be inferred that the complainant, like any reasonable person confronting such events, suffered emotional distress due to sexual harassment. For a five month period, Complainant Hoffman was subjected to verbal and physical sexual harassment on a daily basis. The verbal harassment included wolf whistling, kissing noises, commentary on her breasts and the crude, derogatory demands for oral sex previously set forth. The physical abuse inflicted by male members of the kitchen staff included untying her dress, patting or grabbing her rear, jabbing her in the side, and rubbing the front of their bodies against her back or side. This harassment was witnessed as well as experienced by her coworkers. This verbal and physical conduct, by its very nature, inflicted humiliation on the Complainant. See Findings of Fact Nos. 13-15, 17, 19-24, 29, 34.

132. This harassment made it more difficult for Complainant Hoffman to do her job. This led to the Complainant's repeated requests to her harassers to stop and leave her alone. These requests led only to ridicule and intensified harassment. See Findings of Fact Nos. 31-32.

133. Complainant Hoffman's attempts to have the harassment remedied by management were also futile. Her complaints to David Lihs, Joe Lacona, Robert Novak, Jim Lacona, and Charles Lacona yielded only ineffective actions which were not, in any event, communicated to her. See Findings of Fact Nos. 36-38, 45, 46-55.

136. It may be reasonably inferred from all of the above circumstances that Complainant Hoffman suffered emotional distress due to sexual harassment and her employer's failure to remedy it.

137. There is also direct evidence of emotional distress resulting from sexual harassment. Complainant Hoffman's credible testimony shows that the sexual harassment was stressful. (Tr. at 54-55). If she wanted to continue working, she was forced to endure the harassment even though she did not want to face it. See Finding of Fact No. 31. The daily harassment by Joel Lopez angered and frustrated Complainant Hoffman. ["It just ticked me really bad. . . . I told him that if he did it again after all these times that I had told him not to do that, that I was going to find some way of making him stop."] (Tr. at 61-62). This ultimately led to her "blowing up" in anger at him on October 15, 1993. See Finding of Fact No. 32. Anger and frustration, like humiliation or upset, are forms of compensable emotional distress. See Conclusion of Law No. 85.

138. The combined circumstantial and direct evidence supports the conclusion that Complainant Hoffman suffered serious and substantial emotional distress due to the sexual harassment at Mama Lacona's-West. Given the duration and severity of Complainant Hoffman's emotional distress due to sex discrimination, an award of twenty thousand dollars ($20000.00) in damages for such distress is full, reasonable, and appropriate compensation.

2. Complainant Hoffman Suffered Emotional Distress Resulting From Her Retaliatory Discharge:

139. There is also direct and circumstantial evidence which demonstrates that the retaliatory discharge of Complainant Hoffman and its aftermath resulted in substantial emotional distress for her. Debra Hoffman had never been discharged before in her life. When she was informed of her discharge by Charles Lacona, she responded with shock and disbelief. (Tr. at 62-63, 79). She broke down in tears and said to another person (possibly Robert Novak) who was present, "Bob, can you believe this?" (Tr. at 79).

140. In her words: "I was absolutely floored. My jaw hit the floor. I could not believe that I was being fired for something like that. Especially after I had worked there almost a year and done everything that I could possibly do to help. I couldn't believe it." (Tr. at 62-63).

141. There are three circumstances from which it is reasonable to infer that the aftermath of the discharge caused distress to Complainant Hoffman. First, from the time of her discharge to the time of hearing, Complainant Hoffman remained convinced that her opposition to sexual harassment, especially that which occurred on October 15, 1993, was the true cause of her discharge. (Tr. at 62, 78).

 

142. Second, although Charles Lacona told Complainant Hoffman she could continue to work a week or two longer, it was impossible for her to do so as the kitchen staff blamed her for the discharge of David Lihs. Apparently she was blamed because Lihs might not have gotten involved in an altercation with Lopez if Hoffman had not objected so strongly to Lopez's harassment. (Tr. at 63, 98). See Findings of Fact Nos. 4, 41-42. They responded by failing to put her food up. Complainant Hoffman felt she had to leave. (Tr. at 98).

143. Third, as a result of this retaliatory discharge, Complainant Hoffman was faced with substantial economic loss and the other burdens associated with unemployment. The economic loss of $2773.77, after the deduction of her unemployment insurance and earnings in lower paying interim employment, was equivalent to twenty-five percent of a years earnings for the Complainant at Mama Lacona's. [($2773.77) / ($211.38 wk. X 52 wks)] = [($2773.77) / ($10991.76)] = ..252 = 25.2%. See Findings of Fact Nos.115, 128. It may be reasonably inferred that this loss and the failure to obtain equivalent employment through December 20, 1994 took its emotional toll.

144. Given the duration and severity of Complainant Hoffman's emotional distress due to the retaliatory discharge and the consequences flowing therefrom, an award of seven thousand five hundred dollars ($7500.00) in damages for such distress is full, reasonable, and appropriate compensation.