ROYD JACKMAN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.


JENSEN CONSTRUCTION COMPANY, Respondent.

FINDINGS OF FACT:

Jurisdictional and Procedural Facts:

1. On July 15, 1989, the Complainant, Royd Jackman, filed his complaint CP # 08-89-19079 with the Iowa Civil Rights Commission alleging race discrimination in employment which is prohibited by Iowa Code section 601A.6. (Complaint). The last date of alleged discrimination stated in the complaint is June 2,1989. Official notice is taken that July 15, 1989 is forty-three days after June 2, 1989. Fairness to the parties does not require that they be given an opportunity to contest this fact.

2. The parties stipulated that Respondent Jensen Construction Company is an "employer" and a "person" within the meaning of Iowa Code Chapter 601A. (J. EX. # 1) The Complaint was investigated. After probable cause was found, conciliation was attempted and failed. Notice of Hearing was issued on June 25, 1990. (Notice of Hearing). The hearing was held on September 25-26,1990.

Background:

3. Complainant Jackman, a black male, worked for Respondent Jensen Construction as a water truck driver from April 17, 1989 through June 2, 1989. (J. EX. # 1; Tr. at 202). He also performed other duties including operating the sweeper, which is a power broom, and the profilometer, a device for measuring the smoothness of a highway. (Tr. at 221, 222, 407). The Complainant began working for the Respondent on a highway project near Nevada, Iowa. He was employed there from April 17 to early May, 1989. (J. EX. # 1). Upon completion of the Nevada project, Complainant and the other crew members moved to another project in Tama County, near Traer. (J. EX. # 1). Complainant Jackman was the only black crew member on the Nevada or Traer projects. (R. EX. 8).

4. During Complainant Jackman's employment with Respondent, Keith Burnett and Steve Olson were supervisors. (Tr. at 368, 406). Specifically, they were superintendents in Respondent Jensen Construction's grinding division. Mr. Burnett was not present at either the Nevada or Tama County projects on a full-time basis. Steve Olson, Burnett's assistant, was the project superintendent on both of these jobs. He supervised the crew consisting of 12 to 15 employees. (J. EX. # 1). Chuck O'Gorman was also a supervisor on the Traer job. (Tr. at 107, 369). He also performed maintenance work on the equipment. (Tr. at 1 1 2, 369).

5. Steve Olson was Complainant's immediate supervisor. He originally hired Complainant Jackman for the Nevada project. However, because he was pleased with Complainant's work, he asked him to come with the crew to the project near Traer. (J. EX. # 1).

6. The project that Respondent Jensen Construction Company's undertook near Traer was to grind a fourteen mile stretch of Highway 63 between Traer and Hudson, Iowa. (Tr. at 411). The company used three tractor trailers with water tanks, a semitanker truck, and a tandem axle with a 4OOO gallon water tank to supply water for the three grinders required for the project. (Tr. at 41 1). At the Traer site, both Complainant Jackman and Sheldon Naab, a coworker known by the nickname "Bear," drove tanker trucks to fill up from water supplies in Traer and Hudson and then used their trucks to supply water for the stationary tankers which serviced the grinding machines. (J. EX. # 1; Tr. at 143, 219, 321, 371).

7. At the beginning and end of each day, Respondent Jensen Construction Company's construction equipment would be parked and stored in an area known as "the yard". (Tr. at 78). The yard measured approximately 200 feet by 300 feet. (Tr. at 111). It was located off of Highway 63 near the north edge of Traer, Iowa. (R. EX. # 1; Tr. at 372).

Incidents of Racial Harassment:

The Hat Incident:

8. Complainant Jackman was subjected to no racial harassment during his employment at Respondent Jensen Construction Company until an incident occurred in the yard at the Traer job site. (Tr. at 148, 152, 213). This first incident happened at the end of the work day on a date approximately one and one half weeks into the Traer job, which began in early May 1989. (Tr. at 85, 231). In other words, the approximate date of the incident is somewhere between May 1 1 and May 15, 1989.

9. On that occasion, Complainant Jackman asked Steve Olson if he could have a hat with the Jensen Construction Company logo on it. (Tr. at 84-85, 152). Mr. Olson indicated that he could, took a hat out of the truck, and gave it to Complainant Jackman. (Tr. at 85, 152). Sheldon Naab, who was standing 10 or 15 feet from Steve Olson, was clearly offended and angered by the fact that Olson had given the Complainant a hat. (Tr. at 85-86, 92,152-54). Mr. Naab made his displeasure known by stating "Just because he's a nigger, does that mean he gets a hat?" or words to that effect. The word "nigger" was definitely used in his remarks. (Tr. at 86, 152, 234-35). Steve Olson's only response was to state "He (referring to Complainant Jackman) does what I tell him to do." (Tr. at 152, 234). Mr. Olson then drove away in a truck with Mr. Naab. (Tr. at 153).

10. This incident and all other subsequent incidents of clearly identifiable racial harassment were committed solely by Sheldon Naab and occurred in the yard. (Tr. at 62, 85, 106, 231). All of these incidents occurred either in the morning, when employees first arrived at the yard, or in the evening, when employees came back to the yard. (Tr. at 62, 85, 88, 109, 241). During the eight to twelve hour period away from the yard, when Complainant Jackman was involved in hauling water or performing other duties, no acts of racial harassment occurred, with the possible exception of Mr. Naab thumbing his nose at Complainant Jackman when they passed on the highway. (Tr. at 62, 85, 88, 109, 157, 215, 219).

Repeated Use of Racist Epithets Toward Complainant Jackman:

11. After the hat incident, relations between Complainant Jackman and Sheldon Naab deteriorated. (Tr. at 92, 155). The next morning, Mr. Naab told Complainant Jackman, "All you niggers are alike. You're a brown nose nigger." (Tr. at 155, 157, 235). This and other racist appellations were applied to the Complainant by Mr. Naab almost every day of his employment. (Tr. at 81-82, 113, 120-21, 124, 158, 160, 241, 247, 359, 402-04, 459; R. EX. # 8; CP. EX. # 5). Mr. Naab told Complainant Jackman to "Get your black ass over here, Blackbird!". (Tr. at 81). At the end of the day, Sheldon Naab would state "Here's the brown nosing nigger, the blackbird nigger getting out of his truck." (Tr. at 158).

12. Naab would repeatedly make comments, some of which were within the presence and hearing of coworkers and supervisors Olson, Burnett, and/or O'Gorman wherein he would refer to Complainant Jackman as a "blackbird nigger", "blackbird," "black ass," "black ass nigger," "nigger," "anything with 'nigger' on the end of it," or make statements with "nigger" within them such as "You niggers are all alike. You're no different than any other nigger." (Tr. at 8083, 86-88, 90, 91, 113, 122, 124, 128-29, 157-58, 160, 162, 166-67, 168-69, 171, 185, 236-38, 340, 359-60, 402-03; CP. EX. # 5). With the exception of those actions noted elsewhere in this decision, the supervisors took no action in response to these remarks. (Tr. at 80-83, 90, 128-29, 158, 160, 166-67, 168-69, 185, 236-38). On June 2, 1989, the last day of Complainant's employment, Mr. Naab referred to him as "Blackbird" and "nigger". (Tr. at 124, 251).

13. It is undisputed that Sheldon Naab referred to both Complainant Jackman and white employees as "boy". (Tr. at 87, 120-21, 247, 348, 380, 422, 456). At times, this occurred in the presence and hearing of Steve Olson and Keith Burnett, who regarded it as normal behavior by Naab. (Tr. at 380, 422). On one or more occasions, Craig Garrey, a co-worker, heard Naab use "boy" combined with other racist language toward Complainant Jackman, i.e. "Hey blackbird; hey, you, boy; hey black man." (Tr. at 87).

14. It is a matter of common knowledge, and certainly a matter within the specialized knowledge of this agency, that (1) the word "boy" has long been applied to adult black males as a racial epithet; and (2) the racist implication of the use of this epithet is that black males are incapable of acting as adults, i.e. as men, and therefore need not be addressed as men. Official notice is taken of these two enumerated facts. Fairness to the parties does not require that they be given the opportunity to contest these facts.

The "Kybo" Incident.,

15. In the yard stood a portable toilet known as a "Kybo," which was near the trailer with an office in it. (Tr. at 87, 166-67, 431). On one occasion, Complainant Jackman was heading toward the Kybo when Sheldon Naab stated "You can't use that restroom. That's for white people. You can't use that. Niggers aren't allowed in white people's bathrooms." (Tr. at 87, 166). The Complainant stopped, looked at Mr. Naab, and then went to a nearby gas station to use the bathroom there. (Tr. at 88, 167).

16. Chuck O'Gorman was present when this happened and said "Bear, anybody can use that bathroom." (Tr. at 89, 167). Steve Olson was within 10 yards of Sheldon Naab and close enough to hear his remarks. (Tr. at 88, 90, 128).

The "Southern Nigger" and Ku Klux Klan Remarks:

17. On at least one occasion, Sheldon Naab told Complainant Jackman that "You northern niggers ain't no different than southern niggers, and they'll kill you.... if you're from the north or south it wouldn't make any difference. They'll hang you or kill you just alike. You're still a nigger." (Tr. at 89, 171). Mr. Naab talked about the Ku Klux Klan and about how they would kill the Complainant if he went south. "You can't go down there, we'll get you." (Tr. at 89, 93, 171, 245). "Down south we put our niggers in their place." (Tr. at 93; CP. EX. # 5). Steve Olson was within 10 yards of Sheldon Naab when he made these statements. (Tr. at 90, 93). There is no evidence in the record to suggest he took any action to compel Naab to cease this behavior.

18. On another occasion, Mr. Naab told Complainant Jackman, "Well, if you 'were down in Arkansas, they'd killed you, or they'd hurt you or hung you." (Tr. at 166). Chuck O'Gorman, who overheard this statement, gave a disgusted look and told Complainant Jackman, "Tell him you're not from there." (Tr. at 116-17,166).

Other Harassment:

19. On one occasion, Sheldon Naab made the remark to Complainant Jackman, while in the presence of Julie Rungie, a white female co-worker, and Steve Rummington, a white male co-worker known as "Rummy," that he "was black and wasn't getting any of that white pussy." (Tr. at 2?2-33, 433). On another occasion, Naab grabbed Complainant Jackman, who threw him off. (Tr. at 126, 238-39). Sheldon Naab also told racist jokes to other employees which Complainant Jackman heard about from them. (Tr. at 80, 232, 361-62).

Complainant Jackman's Responses to Sheldon Naab's Harassment:

20. Complainant Jackman would often walk away and try to ignore Sheldon Naab's harassment. (Tr. at 88, 94, 239). He would try to hide his anger by pretending to be happy. (Tr. at 163-64). On other occasions Complainant Jackman would respond by calling Naab a "redneck" or "buffalo head" or, on one occasion, a "honky." (Tr. at 94, 116, 242, 341, 361). On one occasion, in response to Naab stating "You, nigger, go on home," Complainant Jackman dropped his pants, "mooned" Naab, and said "Kiss my ass." (Tr. at 116,173, 238, 340). Naab responded by saying "You are a black ass nigger." (Tr. at 238, 340). Although bystanders laughed at Complainant Jackman's "mooning" of Mr. Naab, Complainant Jackman intended for his actions to express his anger and offense at Naab's continued harassment. (Tr. at 173, 174).

21. During the course of Sheldon Naab's harassment of Complainant Jackman, Naab asked Jackman if he were Black. (Tr. at 202-03, 345, 356). In the hope of ending this destructive harassment, Jackman responded that he was Cuban. (Tr. at 202-03, 345).

22. At times, at Traer, Sheldon Naab and Complainant Jackman, both of whom drove water trucks, referred to each other as "salt" and "pepper" to refer to a white person and a black person working together on a team. (Tr. at 81, 173-74, 242, 341). Other employees, including supervisor Steve Olson, also used these phrases to refer to Complainant Jackman and Sheldon Naab. (Tr. at 113-14, 434). Neither Naab nor Complainant Jackman were angered or offended by this terminology. (Tr. at 174 341).

23. Neither the mooning incident, Complainant Jackman's statement that he was Cuban, the phrases he used in response to Sheldon Naab's racial harassment, nor the use of the phrases "salt" and ..pepper" demonstrates that Complainant Jackman welcomed or accepted the racial name calling and harassment inflicted by Sheldon Naab. On the contrary, Complainant Jackman was hurt, angered, and offended by this unwelcome treatment and by the failure of Jensen Construction Company to do anything about it. (Tr. at 23-27, 94, 102,105, 126, 152154, 162-63, 170, 174, 189, 201). The harassment, which was obviously racial, was of a nature which any reasonable person would find to be undesirable or offensive. See Findings of Fact Nos. 9, 11-19. The racial harassment endured by Complainant Jackman was neither isolated, accidental, sporadic nor simply part of casual conversation. Viewed as a whole, it was sufficiently continuous, severe and pervasive so as to create a hostile working environment for him. See Findings of Fact Nos. 8-19.

Respondent Jensen Construction's Knowledge of and Response to Racial Harassment:


Employer Knowledge:

24. It has already been established that Steve Olson, Keith Burnett, and Chuck O'Gorman knew or should have known of several incidents of racial harassment of Complainant Jackman by Sheldon Naab. See Findings of Fact Nos. 9,12,13,16,17,18. Keith Burnett acknowledged that it was not uncommon for construction workers to tell jokes about blacks and that he may have heard Sheldon Naab tell such jokes at the job site. (Tr. at 393-94). He also acknowledged that, on deposition, he remembered Sheldon Naab telling Complainant Jackman "to get his ass over there" and that it was possible Naab may have said "get your black ass over here." (Tr. at 402-03). Although the incidents of racial harassment were limited to the mornings and evenings in the yard, they were sufficiently numerous that it could reasonably be expected that the supervisors should have known about them. See Findings of Facts Nos. 8-19.

Employer Response:

25. It has already been established that, on some occasions where the supervisors were aware that Naab harassed Complainant Jackman, the supervisors took no action to stop it. See Findings of Fact Nos. 12,13,17. Keith Burnett also acknowledged that, on deposition, he had testified that as a supervisor he had done nothing to discourage the telling of racial jokes on the jobsite because "it doesn't do much good, you're not going to stop them." (Tr. at 395).

26. In the three instances where supervisors Steve Olson and Chuck O'Gorman did make responses to acts of racial harassment, their responses were inadequate to address the issue. In none of these instances did supervisors Olson or O'Gorman identify racist comments as being contrary to company policy, or direct the perpetrator to cease such comments, or warn him that he would be subject to discipline if he failed to do so. See Findings of Facts Nos. 9, 16,18.Although the working environment at the traer construction site involved the use of crude language, jokes, and nicknames, none of these factors would have prevented Respondent's supervisors from taking the steps outlined above or provides a rationale for their failure to do so. (Tr. at 241-42, 244, 329, 341, 346-48, 354-55, 394-96).


Respondent Jensen Construction Company's Internal Complaint Procedure:

27. Respondent Jensen Construction Company had posted at the Nevada and Traer worksites an Equal Employment Opportunity policy which provided in part:

It is the policy of this company to ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which our employees are assigned to work. This policy will be rigidly adhered to at all times by any supervisor or the company EEO officer.

. . .

Any complaint of alleged discrimination by this company, its supervisors or employees, or any person or organization acting on behalf of the company should be immediately called to the attention of the company EEO Officer.

Respondent's Exhibit # 3. (Tr. at 129, 165-66, 21011, 426, 446). The EEO policy statement also provided the company EEO Officer's name, address, and telephone number in Des Moines, Iowa. (R. EX. # 3). An abbreviated EEO statement, which makes no mention of the complaint procedure, is also included in employment applications and the backs of paychecks. (R. Ex. # 6; Tr. at 130, 245, 426). The EEO complaint procedure had been utilized by others in the past at other worksites to resolve EEO complaints, but there is no evidence in the record to indicate that Complainant Jackman was aware of this. (Tr. at " 377-80, 447).

28. Complaint Jackman was aware of both the EEO policies indicated on his paycheck and application and of the posted EEO policy. (R. Ex. # 6; Tr. at 165-66, 210-11, 245). There is no evidence in the record directly indicating Complainant Jackman was aware of the complaint procedure quoted above. All that can be said with any certainty is that he had posted the policy, along with other documents, and had examined it long enough to allow him to confirm its identity. (Tr. at 1 65-66, 21 0).

29. Complainant Jackman never complained to the EEO Officer or to any supervisor about Sheldon Naab's behavior although he had the opportunity to do so. (Tr. at 155, 164, 240, 245, 247, 248-49). He did not complain because his supervisors were already aware of the harassment and he felt it would be futile to notify them of activity of which they were already aware and had not taken steps to remedy. (Tr. at 155, 164). It is important to note that, although the supervisors did not participate in the racial harassment, they took no or insufficient action to terminate it. See Findings of Fact Nos. 9, 10, 12-13, 16-18, 2526.

Constructive Discharge:

30. Complainant Jackman left his employment because the racial harassment, and Respondent Jensen Construction Company's failure to end it, had made the environment so stressful for him at work that he felt he had to quit or he would resort to violence against Sheldon Naab. (Tr. at 102, 165, 178, 183-84). The harassment endured by Complainant Jackman was severe enough to compel a reasonable person to resign. See Findings of Fact Nos. 8-19.

31. It should be noted that there was a rumor that circulated to the effect that Complainant Jackman quit because he was embarrassed due to having been arrested for public intoxication in the early morning hours following his last day of work. (Tr. at 100, 177, 381-82, 457). This rumor was initiated by Craig Garrey who, along with Complainant Jackman and coworkers Bobby Prater and Jerry Freeman went out drinking until 1:00 a.m. on June 3, 1989. (Tr. at 95-97, 100, 176-178). Mr. Garrey, when asked by Steve Olson why Complainant Jackman quit stated he was not sure why, but thought Complainant Jackman quit over embarrassment over the arrest. (Tr. at 100) At that time, Mr. Garrey had not talked to the Complainant about why he had left his employment at Respondent Jensen Construction Company. (Tr. at 100).

32. The arrest for public intoxication played no role in Complainant Jackman's decision to leave his employment at Respondent's. He had already made up his mind to leave earlier in the week. (Tr. at 178). Even the Respondent's supervisor, Keith Burnett, gave no credence to the report that Complainant Jackman quit due to the arrest or embarrassment over it. (Tr. at 386).

Credibility:

33. Complainant Jackman was a credible witness. His testimony was internally consistent with regard to all material facts. His recollection of events seemed to be quite clear and distinct due to the emotional impact these events had on him. During his initial direct testimony, Complainant Jackman had some difficulty in confining his testimony to the precise questions asked. It was apparent, however, that this difficulty was due to his eagerness to tell his story, and not through any attempt to be evasive in his answers. Although Complainant Jackman has a financial interest in the outcome of this case, the Commission does not believe the truthfulness of his testimony was affected by that fact.

34. Craig Garrey was also a credible witness. Mr. Garrey is a friend of Complainant Jackman's, and has known him since 1968 or 1969. (Tr. at 73-75, 10405, 110). On the other hand, Mr. Garrey, who was subpoenaed to testify, was concerned about the possibility that he would be retaliated against either by employers in the construction industry or the Ku Klux Klan because of his appearance at the hearing. (Tr. at 103-04). Nonetheless, his testimony appeared to be truthful and not unduly influenced either by his friendship with Complainant Jackman or his fear of retaliation.

35. On brief, Respondent Jensen Construction Company argued that the testimony of Complainant Jackman and of Craig Garrey was not credible because both had testified that, at times, Sheldon Naab had yelled his racial insults. Respondent noted that both Sheldon Naab and Steve Olson testified that Naab could not yell because of surgery on his vocal cords in the 1970s. (Respondents Brief at 7-8; Tr. at 90, 158, 169, 323, 418). There was no medical testimony or evidence to verify either the surgery or the inability to shout.

36. This conflict in testimony might be material if the evidence indicated that the distance from Sheldon Naab to management officials when Naab made racist statements was always great enough to have required Naab to shout in order to be heard by the management. That, however, was often not the case. See Findings of Fact Nos. 9, 12, 13, 16, 17, 18, 24. Also, the Complainant and Garrey also described Naab's voice as being "growly and gruff," "a deep diaphragm voice" or "low," which would correspond to the nature of his voice at hearing, while still being able to be heard over a distance. (Tr. at 82, 90, 160). Supervisor Keith Burnett, when asked if it would be possible to hear Naab yell or scream at somebody from a distance of 50 feet, did not say it would be impossible to hear him at that distance, but that he would be able to hear him, "not very clearly, not very good" because of his voice problem. (Tr. at 373).

37. Respondent also argues, on brief, that Complainant Jackman's testimony is not credible because he testified that, on one occasion, Sheldon Naab stated "in front of co- workers Julie [a white female] and Rummy [a white male] that '[Jackman] was black and [he] wasn't getting any of that white pussy.' (Tr p. 233)." Naab denied the statement. Respondent argues that, as Naab testified that Julie and Rummy were living together, it is doubtful Naab would make such a statement in the presence of Rummy. Respondents Brief at 8.

38. This conclusion has three problems. First, it assumes that Rummy would understand the remark to refer specifically to Julie and not to white females in general. Second, it assumes that Mr. Naab believed Rummy is the kind of individual who would be sufficiently offended by the remark so as to create problems for him. The third problem with this conclusion is demonstrated by the following exchange, which occurred during the crossexamination of Mr. Naab on this very incident:

Q. (By attorney Mark Bennett): Would you use the phrase "pussy," is that correct, but you won't use the phrase "white pussy," is that right?

A. (By Sheldon Naab): When you get a piece of pussy, it don't make no difference what color it is on the outside. It's the same color on the inside, so I just say "pussy."

(Tr. at 353) (emphasis added). If Mr. Naab would make this crude, extraneous remark while under oath in a public hearing, as he did, then it is quite believable, despite his denial, that he made the "white pussy" remark, which was attributed to him by Complainant Jackman, in the presence of Julie and Rummy.

39. Amy Welch was also a credible witness. Her testimony was internally consistent, straightforward, and consistent with the other credible evidence on the matters to which she testified. It should be noted that she was not retained as an expert witness and was not paid for her testimony. (Tr. at 71).

40. Sheldon Naab was not a credible witness. In addition to his incredible denial of the "white pussy" remark, Mr. Naab was successfully impeached on two points in his testimony. On the first occasion, Mr. Naab testified that he asked Complainant Jackman what nationality he was, and had not asked him if he was black. (Tr. at 356). He was then confronted with and acknowledged an affidavit of September 11, 1989 wherein he had stated, "I asked him if he was black." (Tr. at 357-58). Of much greater significance is the second impeachment. Mr. Naab testified that he only called Complainant Jackman a "nigger" on one occasion, i.e. the mooning incident. (Tr. at 359). He was again confronted with and acknowledged the same affidavit wherein he stated, in reference to Jackman "I did on occasions call him a nigger." (Tr. at 359-60). His explanation that he meant to say "on that occasion" was unconvincing. (Tr. at 359). With few exceptions, Mr. Naab's testimony is only relied on when it is supported by credible evidence or other indicia of reliability.