EDWARD D TILLMAN,
Complainant,
and
IOWA CIVIL RIGHTS COMMISSION
v.
MONFORT OF COLORADO, INC., CON AGRA, and BRET GOKEN.
Respondents.
FINDINGS OF FACT:
I. JURISDICTIONAL AND PROCEDURAL FACTS:
A. Subject Matter Jurisdiction:
1. Complainant Tillman, a Black male, alleges that, during an altercation at lunch with a coworker, Respondent Bret Goken, he was called "nigger" by Goken. Tillman then reacted by slamming Goken into a table. While both of them were discharged for this incident, Goken was subsequently reinstated, while Tillman was not. Complainant Tillman alleges this constitutes racial discrimination by Respondents Monfort of Colorado, Inc. and Con Agra in his discharge. (Notice of Hearing). The question of racial harassment of Complainant Tillman by Respondent Goken and other coworkers was also addressed during these proceedings. Issues raised by this allegation include whether Respondents Monfort of Colorado, Inc. and Con Agra were aware of the harassment and took appropriate remedial measures to end it. For reasons stated within the conclusions of law, these allegations of racially discriminatory discharge and harassment are within the subject matter jurisdiction of the Commission. See Conclusions of Law Nos. 8-9.
B. Procedural Matters:
1. Timeliness:
2. Complainant Tillman filed his complaint against the Respondents with the Iowa Civil Rights Commission on July 26, 1990. The date of the altercation which resulted in Complainant Tillman's discharge is given as May 25, 1990. Since the termination occurred after that date, it is clear that the complaint was filed less than one hundred eighty days after the last alleged act of discrimination.
2. Procedural Prerequisites for Hearing:
3. The complaint was investigated. (Notice of Hearing). The Commission and Respondents Monfort and Con Agra stipulated that probable cause was found with respect to both the racial harassment and termination. (Tr. at 593-94). Conciliation was attempted and failed. Notice of Hearing was issued on December 16, 1994. (Notice of Hearing).
3. Racial Harassment Issue Was Properly Raised With Respect
to Respondents Monfort of Colorado, Inc. and Con Agra:
4. On their posthearing brief, Respondents Monfort of Colorado, Inc. and Con Agra (hereinafter referred to jointly as "Respondents Monfort" or "Monfort") suggest that the issue of racial harassment is not "properly raised or appropriately before the agency for decision." (Respondents' Monfort's Posthearing Brief at 28). The argument is based on the proposition that "the complainant made absolutely no mention of a claim of a 'hostile work environment [in his complaint]. . . . The Commission inserted the issue of Mr. Tillman's allegedly 'hostile' or 'abusive' work environment into this proceeding by way of an attempt to 'excuse' what would otherwise be a clearly dischargeable offense." (Respondents Monfort's Posthearing Brief at 28).
5. Respondents Monfort's characterization of the complaint is in error as page one of the complaint indicates "Race" is the basis of Tillman's complaint, "Employment" is the area of jurisdiction of the complaint, and "Harassment/Termination" are the terms and conditions of employment alleged to be affected by the complaint. In addition, page 3 of the complaint sets forth an allegation that, on May 25, 1990, in Respondent's cafeteria, Respondent Goken directed the epithet "fuck you nigger" in response to Complainant Tillman's telling him to "get the fuck out of my face." (Notice of Hearing). (Since these statements are given in a "correction" handwritten after the typed text of the complaint, it is unclear from the face of the complaint whether this correction is intended to replace a statement, underlined by hand, indicating that "Goken kept calling me a nigger" at the cafeteria or whether the "correction" is intended to be added to that statement. However, since Complainant Tillman testified that Respondent Goken called him "nigger" once at the cafeteria, it would appear that the correction was intended to replace the statement indicating that Goken repeatedly used the epithet at that location and time.) (Tr. at 143).
6. Respondents Monfort's suggestion that the issue was not properly raised or appropriately before the Commission for decision also disregards certain facts beyond the allegations set forth in the complaint. First, as previously noted, Monfort and the Commission stipulated on the record that the internal administrative law judge made a finding of probable cause with respect to both the allegations of racial harassment and termination. See Finding of Fact No. 3.
7. Second, on July 14, 1995, Respondents Monfort filed a Prehearing Conference Form with the Commission which stated the following with respect to the issues:
Issues Raised by Complainant:
- Racial harassment by co-workers.
- Race was a factor in decision to discharge Complainant.
Defenses of Respondent:
- Respondent was unaware of racial harassment towards Complainant.
- Complainant was discharged pursuant to company policy against fighting on company property.
Jurisdictional Issues:
- None.
(Prehearing Conference Form of Respondents Monfort). Thus,
Respondents Monfort's own prehearing conference form makes it
clear that they recognized, prior to hearing, that alleged racial
harassment was one of the issues in the case. It also notes that
there are no jurisdictional issues, thereby indicating that Respondent
had no issues concerning personal jurisdiction, i.e. notice of
the issues to be tried. See Conclusion of Law No. 16.
8. Third, on August 17, 1995, four days prior to the hearing, Respondents Monfort filed a "Hearing Brief" with the Commission. On page 3 of that brief, Respondents listed the issues being tried. Among the issues listed are: "(1) Was Tillman subjected to a racially hostile work environment?" and "(2) Did Monfort know or should have known of the alleged harassment and fail to take remedial action?". At no point in the brief do Respondents Monfort suggest that the issue of racial harassment or a racially hostile work environment was not properly raised or appropriately before the Commission.
9. Fourth, throughout the hearing, testimony was elicited by the Commission's representative concerning the issue of alleged racial harassment of Complainant Tillman and others. Throughout the hearing, no objection to such testimony was made by Respondents Monfort based on the propositions that they either had no notice or that the issue was not properly raised before the Commission. Indeed, Monfort introduced evidence to defend against it. No such objection was made until the filing of Respondents Monfort's posthearing brief, on December 19, 1995. four months after the hearing.
10. Finally, the allegation of racial harassment is reasonably related and closely related to the other allegations set forth in the complaint. There is evidence in the record indicating that the statement by Goken at the cafeteria was part of a practice of racial harassment by him and others directed against Complainant Tillman. (Tr. at 128-32, 140-43). There is also evidence that this harassment provoked Tillman to slam Goken's head into the cafeteria table, the action which led to Tillman's discharge. (Tr. at 143). See Finding of Fact No. 37. For reasons stated in the Conclusions of Law, it is found that the issue of racial harassment was properly before the Commission. See Conclusions of Law Nos. 11-19.
4. Respondent Bret Goken Received Notice of Hearing and of
the Trial of the Issue of Racial Harassment:
11. Respondent Bret Goken did not appear at hearing. Respondent Goken was served by certified mail with a copy of the Notice of Hearing at his home address on April 1, 1995. Official notice is taken of the certified mail return receipt establishing this fact. See Conclusion o f Law No. 7.
12. The Notice of Hearing states "[s]pecifically Complainant alleges that Respondent[s] violated Iowa Code section 601A.6 (now 216.6) as stated in the complaint, . . . copies of which are attached and incorporated by reference as if set out fully herein." The notice also provided the time, place and nature of the hearing. Respondent Goken was notified of a subsequent continuance by a scheduling conference order which provided the time and place of the continued hearing.. (Scheduling Conference Order).
13. The complaint, which is attached to and incorporated in the Notice of Hearing by reference states:
In the area of employment, I believe I have been discriminated against on the basis of race (Black), in violation of Chapter 601A Code of Iowa.
I believe my race was a factor in the following incidents:
1. On May 25, 1990, a white co-worker, Mr. Bret Goken, trimmer, during lunch break kept calling me a "nigger." I grabbed him and slammed him against the table. We were both called into the office and we were terminated. However, Mr. Goken was reinstated into his job and was to start work on July 16, 1990. I know of two (2) other white employees that were fighting on the job. They were both called into the office and they were only separated from each other.
[Omitted allegation on missing equipment on which was not tried at hearing, apparently because no probable cause was found with respect to it.]
[The following is handwritten]
Correction: I said get the fuck out of my face. He said fuck you nigger.
(Notice of Hearing). As previously noted, the complaint specifically
alleged "harassment/termination" on the basis of race
in the area of employment. See Finding of Fact No. 5 It is self-evident
that the only action by Mr. Goken specifically alleged in the
complaint is his reference to Complainant Tillman as a "nigger."
For reasons set forth in the conclusions of law, the use of racial
epithets by coworkers against a Black employee could constitute
racial harassment which violates Iowa Code section 216.6. See
Conclusions of Law Nos. 41, 46.
14. The above facts are sufficient to show that Respondent Goken received notice of this hearing and that the issue of his liability for racial harassment of Complainant Tillman was to be tried. See Conclusions of Law Nos. 20-21. There are additional facts which support this conclusion. As previously noted, probable cause was found with respect to racial harassment in this case. See Finding of Fact No. 3. For reasons stated in the conclusions of law, it may be presumed that, in accordance with regular functioning of the Commission and routine adherence to its rules, the probable cause finding on harassment was transmitted to Respondent Goken. Also, the Commission's and Respondent's Prehearing Conference Forms, both of which state that copies of the completed forms must be sent to unrepresented parties, indicated that racial harassment was an issue. (Prehearing Conference Forms). In accordance with the statutory prohibition against ex parte communications between the parties and the Administrative Law Judge, it may be presumed that copies of these forms were sent to Respondent Goken. See Conclusion of Law No. 21.
5. Respondents Monfort Failed to Raise the Issue of Laches
Either Prior to or at the Hearing and Failed to Prove That They
Were Prejudiced By Delay Which Was the Fault of Either The Commission
or the Complainant:
15. On posthearing brief, Respondents Monfort raise, for the first time in these proceedings, the issue of laches by the Complainant or the Commission. (Respondents Monfort's Posthearing Brief at p. 29, n. 29). This issue was mentioned neither in Respondents Monfort's hearing brief nor in its Prehearing Conference Form nor any time prior to or during hearing. For reasons stated in the conclusions of law, this alone compels the conclusion that Monfort waived its claim of laches. See Conclusion of Law No. 31.
16. Without citation to any legal authority, Respondents Monfort argue that interest should not be awarded in this case due to "delays that were solely in the power of the Agency and the complainant to remedy." (Respondents Monfort's Posthearing Brief at 29, n. 29). While the passage of time from the filing of the complaint on July 26, 1990 to the hearing in August of 1995 is shown in the record, there is no evidence in the record to establish that such delays were the sole fault of the Commission and/or the complainant. For reasons set forth in the conclusions of law, evidence of this passage of time is also not sufficient to show unreasonable delay or material prejudice to Monfort. See Conclusions of Law Nos. 35-36.
17. While Respondents Monfort suggest that the testimony of 40 to 50 Black employees at the Monfort Pork Plant, "the great bulk of whom are unlocatable due to turnover and the passage of time" would have been relevant with respect to racial harassment, there is no evidence that their testimony would have been favorable to Monfort. (Respondents Monfort's Posthearing Brief at 29). There is also no evidence in the record to the effect that these employees are unlocatable or that any efforts were made to locate them. Thus, there is no evidence to support this argument that Respondents Monfort were materially prejudiced by the absence of this supposedly unavailable testimony.