BEFORE THE IOWA CIVIL RIGHTS COMMISSION

CONNIE ZESCH- LUENSE, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

ROBERT PLILEY and the CHICKEN HOUSE, Respondents.

CP # 05-88-17707

CONCLUSIONS OF LAW:

I. JURISDICTION AND PROCEDURE:

A. Subject Matter Jurisdiction:

1. Subject matter jurisdiction ordinarily means the authority of a tribunal to hear and determine cases of the general class to which the proceedings in question belong. Tombergs v. City of Eldridge, 433 N.W.2d 731, 733 (Iowa 1988). Ms. Zesch-Luense's complaint is within the subject matter jurisdiction of the Commission as the allegations that the Respondents told her to refuse service to a Native American due to his race and discharged her for failing to do so fall within the statutory prohibitions against race discrimination in public accommodations and aiding or abetting, including retaliation. Iowa Code SS 601A.7, .11 (now SS 216.7, .11).

2. The prohibition against discrimination in public accommodations states:

Iowa Code S 601A.7 (1987)(emphasis added).

3. The statutory prohibition against aiding and abetting states:

It shall be an unfair or discriminatory practice for:

1. Any person to intentionally . . . compel, or coerce another person to engage in any of the practices declared unfair or discriminatory by this chapter.

2. Any person to discriminate against another person in any of the rights protected against discrimination on the basis of age, race, creed, color, sex, national origin, religion or disability by this chapter because such person has lawfully opposed any practice forbidden under this chapter [or] obeys the provisions of the chapter, . . .

Iowa Code S 601A.11 (1987)(emphasis added).

4. Because an employer has the power to discipline or discharge an employee, the employer's direction to an employee to violate the act is an act of compelling or coercing the employee to discriminate. See Iowa Code S 601A.11(1).

5. One of the "rights protected against discrimination on the basis of age, race, creed, color, sex, national origin, religion or disability by [the Iowa Civil Rights Act]", Iowa Code S 601A.11, is the right to be protected against discrimination in employment set forth in Iowa Code section 601A.6. Race discrimination in public accommodations is a "practice forbidden under this chapter," Iowa Code S 601A.11, by Iowa Code section 601A.7. Thus, discharging an employee because she refuses to discriminate in public accommodations on the basis of race or because she "obeys the provisions of the chapter" constitutes aiding and abetting in the form of retaliation. Iowa Code S 601A.11(2).

B. Timeliness:

6. Ms. Zesch-Luense's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (1987). See Finding of Fact No. 2.

C. Jurisdictional Prerequisites:

7. All the statutory prerequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code S 601A.15 (1987). See Finding of Fact No. 3.

II. ORDER AND ALLOCATION OF PROOF WHERE COMPLAINANT RELIES ON DIRECT EVIDENCE OF DISCRIMINATION AND AIDING AND ABETTING, INCLUDING RETALIATION:

A. Direct Evidence Defined:

8. "Direct evidence" is that "evidence, which if believed, proves existence of [the] fact in issue without inference or presumption." It is "that means of proof which tends to show the existence of a fact in question, without the intervention of the proof of any other fact, and is distinguished from circumstantial evidence, which is often called 'indirect'". BLACK'S LAW DICTIONARY 413-14 (1979). Either policies which on their face call for consideration of a prohibited factor or statements by relevant managers reflecting bias constitute direct evidence of discrimination. Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 477-78 (2nd ed. 1989).

B. Examples of Direct Evidence in Civil Rights Cases:

9. Examples of direct evidence that a protected class status, such as race, is a motivating factor in an employment or public accommodations decision include comments by decisionmakers expressing a preference for customers or employees who are members of a particular protected class or comments indicating that stereotypes of members of a particular protected class played a role in the challenged decision or practice. See e.g. Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 288 (1989)(promotion) ; Barbano v. Madison County, ___ F.2d ___, 54 Fair Empl. Prac. Cas. 1287, 1290, 1292 (2nd Cir. 1990)(hiring); Buckley v. Hospital Corporation of America, 758 F.2d 1525, 1530 (11th Cir. 1985)(discharge); Storey v. City of Sparta Police Department, 667 F. Supp. 1164, 45 Fair Empl. Prac. Cas. 1546, 1551 (M.D. Tenn. 1987)(hiring); Diane Humburd, 10 Iowa Civil Rights Commission Case Reports 1, 6-7 (1989)(denial of child care services). By analogy, these principles also apply to aiding and abetting, including retaliation.

C. Direct Evidence Analysis:

10. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second, to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis; third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982); Consolidated Freightways v. Cedar Rapids Civil Rights Commission, 366 N.W.2d 522, 530 (Iowa 1985), is inapplicable. Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990); Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 476 (2nd ed. 1989).

11. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is because:

Price-Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring). See also Landals v. Rolfes Co., 454 N.W.2d 891, 893-94 (Iowa 1990).

D. Discrimination and Aiding and Abetting, Including Retaliation, Proven By Preponderance of the Evidence:

12. In this case, there is direct evidence in the record that race was the motivating factor in Respondents directive to Complainant Zesch-Luense to refuse service to a Native American. There is also direct evidence that her refusal to do so was the reason for her discharge by Respondents. See Findings of Fact Nos. 11-14, 16. The inquiry, however, does not end there, for the affirmative defenses of the Respondent must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985). The Respondents' failed to meet their burden of persuasion with regard to establishing any affirmative defenses to these allegations. Their only defense was that the true reason for directing Complainant Zesch-Luense to refuse service was due to the customer's drunkenness, not his race. This defense was contrary to the preponderance of credible evidence. See Findings of Facts Nos. 11-16, 23, 30, 38.

III. CREDIBILITY AND TESTIMONY:

A. Effect of Willfully False Testimony:

13. 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, "[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). "[I]n 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) (rejecting proposition that consistently crediting witnesses of one party and discrediting those of the other indicates bias).

B. Effect of Witnesses' Demeanor:

14. Second, when 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).

C. Adjudicator at Hearing Is In Best Position To Determine the Credibility of Witnesses:

15. Third, "[f]actual 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)). The trier of fact who views the witnesses and observes their demeanor at the hearing "was 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).

16.

Only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said . . . [W]hen a trial judge's finding is based on his decision to credit the testimony of one or two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.

Anderson v. City of Bessemer City, 470 U.S. 564, 575, 37 Fair Empl. Prac. Cas. 396 (1985).

17. "[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)(some deference is due by reviewing court to ALJ findings on credibility even when the agency has made an independent evaluation of the case).

D. The Preponderance of the Evidence On An Issue Is Not Determined By Merely Counting the Number of Witnesses Supporting Each Side of An Issue:

18. 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).

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.

IV. OTHER EVIDENTIARY MATTERS:

A. Statements on Brief Are Not Evidence Unless They Militate Against the Interest of the Party Submitting the Brief:

19. On brief, the Respondents mentioned some purported facts, not supported by any evidence in the record, which it felt would damage Stan Zesch's credibility. See Finding of Fact No. 33. A brief is intended to be "A written statement prepared by counsel arguing a case in court. It contains a summary of the facts of the case, the pertinent laws, and an argument of how the law applies to the facts supporting counsel's position." BLACK's LAW DICTIONARY 174 (5th ed. 1979). Obviously, a brief is intended to be argument and not evidence. The one exception, which does not apply in this case, occurs:

6. [w]hen an allegation, which militates against the party making it, is made on pleadings or in a brief, and such allegation has not been withdrawn or superseded[.] [I]t [then] binds the party making it and must be taken as true by a court, administrative agency, or other finder of fact. See Grantham v. Potthoff-Rosene Company, 257 Iowa 224, 230-31, 131 N.W.2d 256 (1965)(cited in Wilson Trailer Co. v. Iowa Employment Security Comm'n, 168 N.W.2d 771, 776 (Iowa 1969)). See also Larson v. Employment Appeal Board, 474 N.W.2d 570, 572 (Iowa 1991).

Maxine Boomgarden, slip. op. at 59. The findings of fact are to be "based solely on evidence in the record and on matters officially noticed in the record." Iowa Code S 17A.12(8). With the exception noted above, statements on brief are not such evidence.

B. Evidence of Post-Complaint Nondiscriminatory Practices Is Not Determinative of Whether the Violations Alleged in the Complaint Occurred:

20. The courts and this Commission have long been skeptical of the probative value of evidence of nondiscriminatory practices occurring after the filing of the complaint. See Finding of Fact No. 40. Such post-complaint practices:

"in the face of litigation are equivocal in purpose, motive, and performance." Reed v. Arlington Hotel, 476 F.2d 721, 724 (8th Cir. 1973)(quoting Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968) and citing Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 426 (8th Cir. 1970). See also Teamsters v. United States, 431 U.S. 324, 341-42 (1977)("The company's later changes in its [employment] policies could be little comfort to the victims of its earlier discrimination and could not erase its previous illegal conduct").

Cristen Harms, XI Iowa Civil Rights Commission Case Reports 89, 123 (1992).

C. Official Notice:

21. Official notice was taken of two facts which were capable of certain verification. See Findings of Fact Nos. 2, 45.

10. Official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the agency. Iowa Code § 17A.14(4). Judicial notice may be taken of matters which are "common knowledge or capable of certain verification." In Re Tresnak, 297 N.W.2d 109, 112 (Iowa 1980).

Dorene Polton, 10 Iowa Civil Rights Commission Case Reports 152, 160 (1992).

D. There Is No Presumption In the Law That Members of A Minority Group Will Not Discriminate On the Basis of Race Against Their Own Or Other Minorities:

22. In the findings of fact, it was noted that evidence was presented to the effect that Respondent Pliley was "part Negro" and had "Indian friends". See Finding of Fact No. 48. However, as the Supreme Court of the United States has noted, "[b]ecause of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." Castenada v. Partida, 430 U.S. 482, 499, 51 L. Ed.2d 498, 513, 97 S.Ct. 1272 (1977)(Blackmun, J. for the majority). "Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to disassociate themselves from the group, even to the point of adopting the majority's negative attitudes toward the minority." Id., 430 U.S. at 503, 51 L.Ed. 2d at 516, 97 S.Ct. at ___ (Marshall, J. concurring).