BEFORE THE IOWA CIVIL RIGHTS COMMISSION
JOHN MACK BURTON, Complainant,
VS.
CONTRACT CLEANERS, INC., WALLACE SYKES,
and the HENKEL CORPORATION, Respondents.

FINDING OF FACT CONTINUED

26. When Complainant Burton arrived in the break room that day, William Toner was also in the break room. During the course of his conversation with Wallace Sykes, but prior to the actual discharge, Mr. Toner had left the break room and had begun to clean the saw area, which was the Complainant's assigned area. (Tr. at 37-38).

Evidence Produced By Respondent Fails to Articulate a Legitimate Non-Discriminatory Reason For Complainant's Discharge:

27. Respondent Henkel Corporation offered no witnesses of its own. Henkel Corporation's attorney did cross-examine Complainant Burton, who was the only witness to testify at the hearing. Respondent Henkel also offered two exhibits. Only one of these exhibits, which consists of excerpts from the deposition of Complainant Burton, dealt with the reasons for Complainant's termination. (R. Ex. 2). The reliance on Complainant Burton's hearing and deposition testimony constitutes reliance on a witness who had no personal knowledge of the actual reasons for his discharge. He could only testify that certain reasons were stated to him.

28. None of the evidence produced by Respondent Henkel Corporation sets forth with any clarity or specificity the reasons for discharge of Complainant Burton. At most, the evidence provided, which is Complainant's testimony on cross- examination and on deposition, indicates that Wallace Sykes informed Complainant Burton that the reason for terminating him was that he "was a smart aleck anyway."

29. The term "smart aleck" is susceptible of different meanings. For example, it may refer to "an obnoxiously conceited person," The Random House Dictionary 841 (1978), or to a "would be clever person, a know-all," The Compact Edition of the Oxford English Dictionary 4066 (1971). With the evidence produced by Respondent Henkel it is impossible to ascertain what meaning Wallace Sykes applied to John Burton.

30. The language used by Wallace Sykes is conclusory language. It is not possible to ascertain from the evidence why Sykes believed Complainant Burton,,wan a "smart aleck." He stated the Complainant was a "smart aleck anyway." This language indicates Sykes' perception of Complainant might either relate to some aspect of Burton's response to Sykes comments immediately prior to his discharge or to some other actions of Complainant at another time, i.e. "regardless of what is being said now, you're a smart aleck." See The Compact Edition of the Oxford English Dictionary 95 (1971)(definitions of "anyway" and "anyhow"). Under these circumstances, the smart aleck" reason for discharge has no more specificity or clarity than if Sykes had simply stated that Mr. Burton was a "bad employee."

31. The statement "we don't have any use for you" appears to be simply another way of stating the Complainant is being discharged. If it was a reason for the discharge, it, like the "smart aleck" reason, is so vague and generalized it cannot be addressed because it does not set forth why there was no use for Complainant Burton. It is impossible, under the present record, to ascertain whether or not this was a reference to the possible reduction of the kill floor crew. See Finding of Fact No. 19. If it was, it does not state why Complainant Burton was the one selected for layoff.

Other Evidence of Reasons for Complainant's Termination:

32. The Complainant introduced four letters from Respondent Henkel Corporation to the Iowa Civil Rights Commission which make reference to whether or not Henkel had records relating reasons for Complainant Burton's termination and what those reasons were. (Cp. Ex. A, B, C, H). Letters to the Commission dated September 24, 1984 and January 21, 1985 state that Henkel's records indicate that Contract Cleaners Incorporated discharged Burton because he refused a supervisor's order to clean a wall. (Cp. Ex. A, B). Letters to the Commission dated January 30, 1986 and March 30, 1986, however, indicate that Henkel has no records concerning disciplinary actions taken by Contract Cleaners, Inc. (Cp. Ex. C, H). No actual records stating the reasons for Complainant Burton's discharge were offered at hearing. Leaving aside the legal question of whether, given the failure of Respondent Henkel Corporation to articulate a legitimate non-discriminatory reason for Complainant's discharge, it is necessary to consider this evidence, the greater weight of the evidence demonstrates that Complainant Burton did not refuse his supervisor's order to clean a wall. Se Finding of Fact No. 24.

The "Smart Aleck" Reason:

33. Assuming that the evidence produced on the "smart aleck" reason was sufficient to articulate a legitimate, non-discriminatory reason for the discharge of Complainant Burton, the greater weight of the evidence demonstrates that Burton acted reasonably, and not as a "smart aleck," in his interactions with Wallace Sykes and William Toner. See Findings of Fact Nos. 15-26.

Relationship Between Henkel Corporation and Contract Cleaners. Inc.:

34. In November and December of 1982, Respondent Contract Cleaners, Inc. was a wholly owned subsidiary of Bonewitz Chemical Services, Inc (Admissions). At that time, Bonewitz Chemical Services, Inc. was a wholly owned subsidiary o Respondent Henkel Corporation. (Admissions). Also at that time, Respondent Contract Cleaners, Inc. was a wholly owned subsidiary of Respondent Henkel Corporation. (Admissions).

35. Contract Cleaners, Inc. merged into Bonewitz Chemical Services, Inc. effective December 30, 1983 (Cp. Ex. E). Through the merger, Bonewitz became responsible for all the liabilities of Contract Cleaners Inc. (Cp. Ex. E). Contract Cleaners, Inc. did not survive the merger. (Cp. Ex. E).

36. Bonewitz Chemical Services, Inc. merged into Henkel Corporation effective December 3l, 1984. (Cp. Ex. F). Through the merger, Henkel became responsible for all the liabilities of Bonewitz Chemical Services, Inc. (Cp. Ex. F). This included the liabilities of Contract Cleaners, Inc. See Finding of Fact No. 35.

Credibility Findings:

37. Complainant John Burton was a credible witness. His testimony concerning material facts was consistent on both direct and cross examination and with his deposition. Furthermore, his calm, straightforward manner of testifying bolstered his credibility.

Compensation:

Average Gross Earnings at Contract Cleaners:

38. At the time John Burton was discharged, he was earning $5.25 per hour at his regular rate of pay. (Admissions). He was initially hired, on June 7, 1982, at $4.50 per hour. (Cp. Ex. G; Tr. at 17). See Finding of Fact No. 7. On July 17,1982, he received an increase of five and one-half percent to $4.75 per hour. (Cp. Ex. G; Tr. at 22). There is no evidence in the record of what this increase represents, i.e. whether it was an annual or other periodic pay increase, a cost of living adjustment, or some other type of increase. On August 14,1982, he received the $.50 per hour increase for leadman status. (Cp. Ex. G; Tr. at 22-23, 38). There is no evidence in the record of periodic pay increases received by employees after Complainant's discharge or of how Contract Cleaners, Inc. or any successor employer determined what the amount of such pay increases would be or when they would be placed into effect.

39. A review of Complainant Burton's check stubs reveals that, after his increase to $5.25 per hour due to acquiring leadman status, he worked an average of 12 hours of overtime per week at $7.87 per hour. This represents an amount one and one-half times the base rate. He was paid overtime for hours in excess of forty hours per week. (Cp. Ex. G). His regular hours were eight hours per day. (Tr. at 18).

40. Complainant Burton's average weekly gross earnings would be: [Regular weekly earnings + overtime weekly earnings] = [$5.25 X 40] + [$7.87 X 121 = [$210.00] + [94.44] = $304.44 gross earnings per week. His average daily earnings would be one fifth of that amount or $60.88. His average yearly earnings would be: $304.44 X 52 weeks = $15830.88.

Mitigation of Damages:

41. After his discharge from Contract Cleaners, Inc., Complainant Burton searched and applied for work comparable to his former employment. (Tr. at 39-40, 45, 109). He did odd jobs for his landlord to help defray his rental costs of $225.00 per month. (Tr. at 43). He also did moving jobs for his landlord's brother. (Tr. at 43). '

42. During 1984, he was not available for work for approximately six months due to illness. (Tr. at 47-48). He eventually became discouraged with the meager results of his work search and ceased looking for work. (Tr. at 109-110). The last job he applied for was a construction job sometime in 1989. (Tr. at 48, 109-110). Since, at the time of the public hearing he could not recall the date he made application, it is apparent that the time of application must have been
substantially earlier in 1989. (Tr. at 48, 109- 1 10).

43. Official notice is taken of the facts (1) that the. availability of construction work is highly seasonal. and (2) that the number of construction jobs available increases dramatically with the coming of spring and good weather necessary to many construction jobs. Fairness to the parties does not require that they be given an opportunity to contest these facts. Therefore, a reasonable estimate may be made that Complainant's last application for work was made in March or April of 1989. Complainant's back pay period should cease as of April 30, 1989 to reflect the termination of his work search.

44. There is no evidence in the record to suggest that, prior to April 30, 1989, there were either suitable positions which Complainant Burton could have discovered and for which he was qualified or that he failed to exercise reasonable care and diligence in seeking a position.

Gross Back Pay Through April 30, 1989:

45. Complainant Burton's gross back pay through April 30,1989 would be computed as follows:

A. November 18-19, 1982: $60.88 X 2 days = $121.76.

B. November 20 - December 31, 1982 $304.44 X 6 weeks = $1826.64.

C. The year 1983 = $15830.88.

D. Six months of the year 1984 = $15830.88 X 1/2 year = $7915.44.

E. The years 1985 through 1988 inclusive $15830.88 X 4 years = $63323.52.

F. The four month period for January 1 - April 30,1989 = $15830.33 X 1/3 year =$52.76.77.

TOTAL GROSS BACK PAY = A + B + C + D + E * F = $121.76 + $1826.64 + $15830.88 + $7915.44 * $63323.52 + $5276.77 = $94295.01 Gross Back Pay for the Period of November 18, 1982 through April 30,1989.

Interim Earnings and Unemployment Insurance
Payments:
46. Complainant Burton has conceded the following amounts for interim earnings and unemployment insurance:

A. November 18 - December 31, 1982:$1008.00. (Cp. Ex. L).

B. The years 1983 through 1986 inclusive: $12,000.00. (Brief at 20).

C. The years 1987 through 1988 inclusive: $2,000.00 (Brief at 20).

D. For the year 1989 (if back pay for the entire year has been granted), the amount of $1000.00. (Brief at 20) Since back pay is only granted for 1/3 of the year, the interim earnings conceded are $333.33.

TOTAL INTERIM EARNINGS AND UNEMPLOYMENT COMPENSATION = A +B + C + D = $1008.00 + $12,000.00 + $2,000-00 + $333.33 = $15341.33.

Net Back Pay:

47. The amount which Complainant Burton is due in net back pay is calculated by the formula: [Gross Back Pay - (interim earnings + unemployment compensation)] = $94295.01 - $15341.33 =$78,953.68 TOTAL NET BACK PAY.

Emotional Distress:

48. Complainant Burton has suffered substantial economic loss due to his discharge. See Findings of Fact Nos. 38-47. The awareness that his job was his only source of income, and that he had lost it due to his race and age, was and is distressing to John Burton. (Tr. at 38).

49. The loss of his job, and the need for his family to rely on unemployment insurance, Aid to Dependent Children payments, and food stamps for a lower standard of living was degrading to him and clearly damaged his self-esteem. (Tr. at 38, 41, 49). Complainant Burton "felt like a beggar" doing odd jobs for rent. (Tr. at 45). It became necessary for Burton's family to leave their rented home of four years as, even with income from odd jobs for the landlord, they could not pay all rent and utilities. (Tr. at 43). They moved to a government subsidized home. (Tr. at 14). The reliance on government payments to support and house his family was particularly stressful to John Burton because of the stereotype "that Black people are used to [living on welfare]." (Tr. at 49). His goal had always been to work and "provide through employment for my family." (Tr. at 49).

50. The circumstances leading up to his discharge have already been described. See Findings of Fact Nos. 15-26, 33. John Burton felt his reward for loyalty to his job was to be discharged. (Tr. at 41-42).

51. It is clear from the record that the discrimination suffered by John Burton, and the aftermath of that discrimination, caused John Burton substantial emotional distress which was still evident as of the date of the hearing. In light of the severity and duration of the emotional distress sustained by John Burton, an award of five thousand dollars ($5,000.00) would be appropriate, full, and reasonable compensation.