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
FINDINGS OF FACT:
I. JURISDICTIONAL AND PROCEDURAL FACTS:
A. SUBJECT MATTER JURISDICTION:
1. Complainant Zesch-Luense alleges that she was told by Respondent Pliley to refuse service to a Native American because of his race and that she was discharged due to her failure to do so. (Notice of Hearing-Complaint). By alleging that she was directed to deny service for this reason and being terminated for her refusal to do so, Ms. Zesch-Luense has alleged she has suffered loss or damage due to race discrimination in public accommodations, aiding or abetting and retaliation. She has, therefore, alleged she is aggrieved by such discrimination, aiding or abetting, and retaliation. This is sufficient to bring the complaint within the subject matter jurisdiction of the Commission. See Conclusions of Law Nos. 1-5.
B. TIMELINESS:
2. On May 20, 1988, Complainant Zesch-Luense filed her complaint, CP # 05-88-17707, alleging aiding and abetting by requiring her to discriminate, retaliation through termination of her employment, and discrimination in public accommodations on the basis of race. The date of the termination and other acts is given as April 2, 1988. Official notice is taken that May 20, 1988 is forty-eight (48) days after April 2, 1988. Fairness to the parties does not require that they be given the opportunity to contest this fact.
C. JURISDICTIONAL PREREQUISITES:
3. The complaint was investigated. After probable cause of race discrimination and aiding and abetting, including retaliation, was found, conciliation was attempted and failed. Notice of hearing was issued on January 14, 1993. (Notice of Hearing as amended; Tr. at 14-17).
D. AMENDMENT OF NOTICE OF HEARING:
4. It should be noted that the language on the first page of the notice of hearing citing section 601A.6 was amended at hearing to add sections 601A.7 and 601A.11 dealing, respectively, with public accommodations and aiding and abetting, including retaliation. (Tr. at 15-17).
5. This amendment was not technically necessary. The complaint, which specifically referred on its first page to public accommodation discrimination, to retaliation, and to section 601A.11 governing aiding and abetting, including retaliation, is part of the Notice of Hearing as it is attached to the Notice and incorporated by reference. (Notice of Hearing). Nonetheless, the amendment was made for purposes of clarity without objection by any of the parties. (Tr. at 17). The Respondents understood at the outset of the hearing that all matters alleged in the complaint were to be considered at the hearing. (Tr. at 14).
D. RESPONDENTS ALLOWED TO PRESENT WITNESSES DESPITE LACK OF NOTICE TO THE COMMISSION AND THE COMPLAINANT:
6. The Respondents listed no witnesses on their prehearing conference form filed on February 1, 1993. (Respondents' Prehearing Conference Form). During the course of the prehearing conference, on February 4, 1993, Respondent Pliley stated that he had talked to three people who were in the bar on April 2, 1988 and asked them if they wanted to be witnesses. They had indicated that they could not remember what was said, so he would not be calling them as witnesses. (Prehearing Conference Tape; Prehearing Conference Order; Tr. at 6-7). The Complainant and Commission did identify their witnesses at the time of the conference. (Complainant's Prehearing Conference Form; Prehearing Conference Order).
7. Despite these prior indications that Respondents would not be calling any witnesses, on the day of hearing the Respondents presented a list of 14 witnesses they wished to call. (Tr. at 4-6). The Complainant and the Commission objected to these surprise witnesses, as they had given advance notice of their witnesses. (Tr. at 5-6, 11). Because Respondent Pliley was representing himself without an attorney, and apparently did not understand the procedures, he was allowed to present the witnesses. (Tr. at 12-14). The Complainant and Commission were given the opportunity to have the record held open so they could ascertain whether they wished to present additional evidence. (Tr. at 13-14). At the end of the hearing, they waived the opportunity to have the record held open for this purpose. (Tr. at 163- 64).
II. BACKGROUND:
8. Complainant Zesch-Luense was employed by Respondents Robert Pliley and The Chicken House as a bartender and waitress from approximately March 6, 1988 to April 2, 1988. (R.EX. #2; Respondent's Position Statement Submitted With Prehearing Conference Form (hereinafter "Position Statement"); Tr. at 24-25). She was married at that time to Stan Zesch and remained married to him until approximately mid-1990. (Tr. at 22-23, 50).
9. Robert Pliley is owner of The Chicken House, a restaurant with a bar in Albion, Iowa. (Tr. at 24). Marlys Pliley is his wife. She was present at the business on April 2, 1988. She helps out in the business and interviews and hires personnel for it. (Tr. at 100-02, 104-05). Shirley Miller is the manager of the bar part of the business while Robert Pliley manages the restaurant. (Tr. at 86, 92). She has worked for Pliley for approximately 12 years. (Tr. at 82-83, 85). On April 2, 1988, Complainant Zesch-Luense was in charge of the bar until the end of her employment later on that date. Shirley Miller did not arrive at the bar on that day until after the end of Complainant's employment. (Tr. at 92, 97).
10. Dale Miller is Shirley Miller's husband. (Tr. at 81-82). He has worked at The Chicken House in exchange for bartered work with Robert Pliley. (Tr. at 82-83).
III. DIRECT EVIDENCE OF DISCRIMINATION AND RETALIATION:
11. There is credible, direct evidence in the record of discrimination and retaliation which proves that Respondents engaged in (a) directing Complainant Zesch-Luense to refuse service to a Native American on the basis of his race, and (b) terminating her upon her refusal to deny service. This evidence consists primarily of the testimony of Complainant Zesch-Luense and Stan Zesch. (Tr. at 27-28, 53).
12. On April 2, 1988, Stan Zesch and Guy Suda Tiger, a Native American, entered the bar and sat down together. Subsequently, when Complainant Zesch-Luense was walking toward Mr. Tiger to serve him his second draw of beer, she noticed that Respondent Robert Pliley and his wife, Marlys, had walked from the restaurant to the bar area. Mr. Pliley whispered something to his wife while watching the complainant with his arms crossed and shaking his head "no." Mrs. Pliley then told Complainant Zesch-Luense that Mr. Pliley wanted to speak to her. Zesch-Luense went back to the kitchen and restaurant area to speak to Respondent Pliley. He directed her to inform Mr. Tiger that she would serve no more drinks to him. Complainant Zesch-Luense asked why he wanted her to stop serving Mr. Tiger. In response, Respondent Pliley stated that he had not had any "niggers and Indians" coming into his establishment prior to the time she began working for him. (Tr. at 26-28).
13. Pliley also stated that Zesch-Luense was a "nigger and an Indian lover." (Tr. at 28). Stan Zesch, who was in the restroom at this time, was able to overhear Robert Pliley make a statement indicating that he did not want "any Indians or niggers" in his establishment. (Tr. at 52-53).
14. Complainant Zesch-Luense headed to the bar area to inform Guy Suda Tiger that she could not serve him anymore drinks. She stopped and returned to Respondent Pliley, who was in the kitchen, to tell him that she should tell Mr. Tiger himself that he was not going to be served. She stated she would not do it. Pliley responded that she was through "as of right now", i.e. her employment was terminated. She turned around and walked back out to the bar. Her check was written out and waiting for her at the end of the bar when she returned there and sat down. (Tr. at 28-29).
15. In addition to the direct evidence discussed above, there is also circumstantial evidence of race discrimination in public accommodations. Robert Pliley testified that there was one white person in the bar, a Red Gunderson, who, like Guy Suda Tiger, had had enough to drink. (Tr. at 140-41, 143). Pliley testified that "I would have shut him off at that point." (Tr. at 140-41). There is no evidence, however, that Pliley did take action that night to shut him or anyone other than Native Americans off from drinks. Respondent Pliley admitted that the directions to discontinue service given to Complainant Zesch-Luense concerned only "the Indians." (Tr. at 132). There is no non-discriminatory explanation in the record for this difference in treatment.
16. Marlys Pliley admitted that she believed Indian people can't drink as well as white people. (Tr. at 117). Although she later attempted to retract this statement, (Tr. at 118), her initial testimony reflects her belief in the accuracy of a well-known racial stereotype concerning Native Americans, i.e. that they cannot handle alcohol as well as white people. It is common knowledge, and certainly within the specialized knowledge of the Commission, that this stereotype exists. Official notice, therefore, is taken of the existence of this racial stereotype. Fairness to the parties does not require that they be given the opportunity to contest this fact.
IV. CREDIBILITY:
A. DEMEANOR OF WITNESSES TO PLILEY-LUENSE CONVERSATION:
17. Demeanor of the three witnesses who either overheard or participated in the conversation between Respondent Pliley and Complainant Zesch-Luense plays an important part in the determination of which of these witnesses was telling the truth. The witness with the most appropriate demeanor was Complainant Zesch-Luense. Her testimony was given in a calm and straightforward manner. During much of her testimony, she established direct eye contact with the Administrative Law Judge. Otherwise, she faced the attorney or party examining her on the witness stand. There was little hesitation in her testimony and her memory seemed to be clear.
18. The demeanor of Stan Zesch was not as consistently confident as the Complainant's. Most of the time, he was looking at the attorney or party examining him. The rest of the time, his attention was on the administrative law judge. Most of his testimony was clear, straightforward, and made without hesitation. One discordant note in his testimony is the statement that after he heard "Bob telling Connie that he didn't want any Indians or niggers in his establishment," Mr. Zesch "tried not to hear from then on." (Tr. at 53). Taken alone, this statement seems contrary to human nature, as many persons would try to listen to an argument their spouses were involved in. When asked to explain this statement, however, Mr. Zesch indicated that "I just didn't like what I heard, so I hurried up and got out of the bathroom." (Tr. at 53). It seems Mr. Zesch's impulse was to quit concentrating on listening, finish his business in the restroom, and leave it in order to see what was happening.
19. The witness with the poorest demeanor was Mr. Pliley. During his testimony, Respondent Pliley was constantly shifting around in the witness chair looking at the ceiling, the floor, or other areas of the room. He occasionally looked at the administrative law judge, or his examiner, but often failed to make eye contact with either. This behavior gave the undersigned the impression that he wasn't too comfortable with his testimony. This behavior was surprising in light of how well he handled representing himself during the hearing, which was average to above average for a layperson.
B. INCONSISTENT STATEMENTS:
20. There are a number of statements, concerning material facts, made at hearing by Respondent Pliley and his wife which are inconsistent either with their previous statements made during the investigation or during the hearing.
21. Respondent Robert Pliley, for example, was confused at hearing about the number of Native Americans in the bar that night. He initially testified at hearing that there were two Native Americans in the bar, a "Tony" and a "Tiger." (Tr. at 137). When it was pointed out that, during the investigation, he had indicated there were three, he stated he would guess that the lady with one of the two Native Americans was "part Indian." This made a total of three. (Tr. at 137-38, 157).
22. During the hearing, Robert Pliley also testified that both Tony and Mr. Tiger were too intoxicated to drive. Of the three Native Americans, only the lady was capable of driving that night. (Tr. at 138-40, 142-43). During the investigation, however, Respondent Pliley stated that Tiger was the only one of the three Native Americans capable of driving. (Tr. at 157-58).
23. In his position statement, and his testimony at hearing, Respondent Pliley asserted that the reason for directing Complainant Zesch-Luense, on April 2, 1988, to discontinue selling drinks to Tony and Mr Tiger is because they were "drunks" who had had too much to drink. (Position statement; Tr. at 130, 132, 137-39, 142-43). According to Robert Pliley, Mr. Tiger had a headband on his head half cocked off to the side. Tony was walking and spilling some beer. (Tr. at 130). Despite his professed opinion that neither of these men was fit to drive, and his awareness of his own dramshop liability in the event their drunk driving resulted in an accident, Pliley took no action to prevent these men from leaving the bar, from driving while intoxicated, or to alert local law enforcement agencies as to the danger posed by these supposedly intoxicated individuals. (Tr. at 144-45). This failure to act is inconsistent with his position that service was to be refused because these individuals were drunk.
24. Marlys Pliley's testimony about the number of Native Americans at the bar on April 2, 1988, their identity, and whether they were intoxicated was also inconsistent and confused. During the hearing, she stated at one point there were 2 or 3 Native Americans at the bar. She confessed she could not recall exactly. She finally settled on there having been two. (Tr. at 107). She could not recall their names, indicating that "[o]ne, I think, was Tony or Tiger or something." (Tr. at 107-08). During the hearing, Mrs. Pliley testified that these 2 or 3 Native Americans were intoxicated and getting out of hand. (Tr. at 108).
25. This testimony stands in contrast to Mrs. Pliley's statements during the course of the investigation. At that time, she indicated there were no Native Americans present other than Guy Suda Tiger. She also indicated that no one else in the bar was intoxicated other than him. (Tr. at 154- 55).
26. During the investigation, when she was asked to give her version of events, Marlys Pliley stated that, while she was working in the dining room, Robert Pliley "evidently went out to the bar and said he wanted to talk to Connie. So he wanted to know if I would take care of the bar while he took her back to the back room. And they went to the back room to talk." She made no mention of having spotted any drunks. She stated that Robert Pliley did not tell her what he and Ms. Zesch-Luense were going to talk about. (Tr. at 155-56).
27. In her testimony at hearing, however, Mrs. Pliley stated that she came back and told Respondent Pliley that there were going to be problems in the bar. (Tr. at 102, 110-11). She testified that she was the one who spotted the drunks and reported them to Robert Pliley. (Tr. at 102, 110-12, 115-16). She also testified that Robert Pliley did tell her what he and the complainant would be talking about. (Tr. at 112-13).
28. Mrs. Pliley's testimony that the Native Americans were intoxicated is also not consistent with what she saw of their behavior. (Tr. at 108). When asked how she knew they were intoxicated, she indicated they were "loud and rowdy." (Tr. at 111, 116). The only specific behavior she could identify to support this conclusion was that they were laughing loudly. According to her, they were not bothering anybody. They were threatening no one. They were not fighting. She did not know if they were using profanity. She was not close enough to hear what they were saying. (Tr. at 116-17). In light of these admissions, and the other inconsistencies in Mrs. Pliley's testimony, Complainant's testimony that Mr. Tiger was well behaved and quiet seems more plausible. (Tr. at 33-34).
29. If it were assumed to be true that Mrs. Pliley alerted Robert Pliley that there were Native American "drunks," based only on this "loud laughing", it would seem likely that her belief in the racial stereotype that Native Americans cannot handle alcoholic drinks as well as white people played a role in her determination that the Native American(s) present were intoxicated. See Finding of Fact No. 16.
30. There is no such evidence of confusion with respect to Complainant Zesch-Luense or Stan Zesch. Both consistently and credibly testified, for example, that there was only one Native American in the bar that night, Guy Suda Tiger. Both credibly testified that he was not drunk. (Tr. at 25, 27- 28, 51-52, 53-54). Their testimony that there was only one Native American in the bar that night is supported by the testimony of Shirley Miller. (Tr. at 97). It is also consistent with Marlys Pliley's original statement during the investigation. (Tr. at 155). Their position that Mr. Tiger was sober is also consistent with Respondent Pliley's original statement during the investigation that Tiger was sober enough to drive. (Tr. at 157).
31. On brief, Respondent noted that "when [complainant] took the stand she denied the fact that she had gone to see William Hill, Counselor at Law." (Respondent Brief at 1; Tr. at 37). Complainant Zesch-Luense initially recalled seeing an attorney, but did not recall Hill's name until shown a letter from Hill to Pliley regarding this incident. (R. Ex. # 3; Tr. at 36-38).
32. Her initial failure to recall Hill's name does not reflect adversely on her credibility as Hill's name is not material to this case, i.e. his name does not inform the factfinder concerning the events of April 2, 1988, whether discrimination occurred, or what remedies would be appropriate. Further this letter, dated April 11, 1988, does indicate that Complainant Zesch-Luense gave the same story to Mr. Hill, within three days of the incident, as is given in her complaint of May 20, 1988: "[Robert Pliley] ordered her not to serve 'niggers and indians' because it was bad for business, and ordered her to tell an indian who was in the bar that he wouldn't be served". (R. EX. # 3). This bolsters her credibility.
33. On brief, Respondents also suggest that Stan Zesch could not have heard the conversation between Complainant Zesch-Luense and Robert Pliley because of the thickness and construction of the wall in the men's restroom. (Respondents' Brief at 1). There is, however, no testimony or other evidence in the record to support Respondents' position. Statements on brief, unless they militate against that party's case, are not evidence. See Conclusion of Law No. 19.