IV. CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATION:

A. Prima Facie Case:

14. The facts already established prove some, but not all elements of a prima facie case of race discrimination in the failure to rent a union hall. See Conclusions of Law Nos. 10-14. These facts include the racial minority status of Complainant Davis and Mr. Ingram, that the hall was available for rent, that Davis offered to rent the hall, that the hall ultimately was not rented to him, and, therefore, remained available for others to rent. See Findings of Fact Nos. 4, 8, 11, 12. The remaining element of Complainant's qualification for renting the hall, i.e. whether he met the nondiscriminatory requirements for arranging security for the party, will be discussed below.

B. Alleged Delaying Tactics:

15. The Commission argues that, once Jesse Taken met Complainant Davis and Mr. Ingram in person and realized they were Black, she brought up certain subjects as delaying tactics intended to discourage them from renting the hall. These topics included: (a) that payment must be made by cash and not by check, (b) that liquor may not be sold at the union hall, and (c) that security was required at the hall during parties. (Commission's Post Hearing Brief at 8, 11-13).

1. Payment By Cash Required:

16. The first alleged delaying tactic involved the refusal of Complainant Davis' check by Jesse Taken. According to Davis, after he arrived at the union hall on August 20th, he attempted to write a check for payment of the rental of the hall. Ms. Taken then refused the check, indicating she would have to have cash. Once she said this, Davis and Ingram offered cash, which they had with them. (Tr. at 15-16).

17. Ms. Taken's recollection is that, during the initial telephone conversation, she had asked Davis if he were going to pay by cash or check. He had indicated, "No, I'll probably pay cash." (Tr. at 149). When asked what he and Ms. Taken had discussed in this conversation, Complainant Davis did not mention the method of payment as being one of the items discussed. (Tr. at 13). He averred that only topics like the date, the price, and the deposit were discussed. (Tr. at 13, 45-46).

18. The text of Davis' complaint contradicts the suggestion that the requirement or expectation of cash payment was a delaying tactic which originated with the Complainant's appearance at the union hall. Paragraph number 1 of the complaint apparently refers to the telephone conversation with Jesse Taken where arrangements were made to reserve the hall. See Finding of Fact No. 11. The complaint states, with respect to this initial contact with the Respondent, that:

1. On or about the first week of August 1992, I reserved the hall for the purpose of having a party on 22 August 1992. Arrangements were made as to when to bring the deposit and to get the key to the hall. I was told at this time to bring cash for the deposit; no checks would be accepted.

(Notice of Hearing-Complaint)(emphasis added). For reasons stated in the conclusions of law, this admission of fact is binding on the Commission. See Conclusion of Law No. 5A.

19. While Mr. Ingram could not recall for certain whether or not they were allowed to pay by check, he noted that Complainant Davis had brought cash to the hall for the specific purpose of paying in cash. (Tr. at 62-65).

20. Based on the text of the complaint, and the testimony of Mr. Ingram and Ms. Taken, it would appear that the requirement to pay in cash was not a delaying tactic which was placed in effect when Ms. Taken noticed that Mr. Davis was Black.

21. There are some further points with respect to the cash payment issue which should be discussed. On brief, the Commission points out that Jessie Taken must have informed Complainant Davis that the check for George Leach's party had bounced, as the Complainant testified, because "how else would he have known the name of the person whose check bounced." (Commission's Brief at 11; Tr. at 16).

22. Ms. Taken's testimony is that she did not discuss with the Complainant the possibility that his check would bounce. Nor did she associate him with George Leach. (Tr. at 149). While her testimony does not address the issue of whether she told him about the check for George Leach, she did acknowledge that the check for that party had bounced. (Tr. at 149). Also, she had discussed George Leach's party, as well as the Quality Electric Halloween party, with Complainant Davis, so it is possible that she discussed the check for Leach's party bouncing with Davis. (Tr. at 16, 148-49). Another possible source for this information would have been Leach himself, who the Complainant saw approximately every other day at that time. (Tr. at 22-23). Nonetheless, even if Taken did mention to the Complainant that Leach's check had bounced, that would not be sufficient to support an inference that she was engaged in race discrimination merely because both Complainant Davis and Mr. Leach happen to be Black.

23. The Commission's brief also suggests, based on Ms. Taken's testimony, that accepting only cash was not in accordance with the Respondent's general policy at that time. (Commission brief at 11). However, Ms. Taken's testimony reveals only that, at one point in time, there was a problem with bad checks which was eventually resolved by developing a policy whereby the bank would be called to ascertain if a proffered check was good. (Tr. at 143). The record does not reveal when this policy was put into effect. Therefore, it has not been established in the record that Respondent's treatment of Complainant Davis was contrary to the policy in effect at that time.

2. Liquor May Not Be Sold on the Premises:

24. On brief, the Commission suggests that, once she saw Complainant Davis in person, "[a]nother roadblock Jesse [Taken] made sure to bring up was whether liquor was going to be sold." (Commission Brief at 11). However, according to the Complainant, he was the first one to bring up the subject of liquor when they met in person: "I had asked first about this permission for liquor, and she said that they couldn't have liquor there because of something, and I just left it at that." (Tr. at 21)(emphasis added). Although Complainant testified that he and Ingram intended to have beer and liquor at the party, but not to sell it, he later admitted that the "something" given him as a reason for not having liquor was the absence of a liquor license and dram shop insurance. (Tr. at 11, 21, 43). These reasons would be consistent with Respondent's understanding that Complainant Davis did intend to sell liquor at the party. (Tr. at 134).

25. The Complainant's testimony quoted above negates the contention that this topic was brought up by Ms. Taken as an attempted roadblock to renting to Complainant Davis once she became aware of his race. The topic was initially brought up by him, not the Respondent. Even if the above testimony of the Complainant was viewed as addressing the topic of having liquor at the party as opposed to the topic of the sale of liquor, it would only be natural for Ms. Taken to inquire about the sale of liquor once the topic of liquor at the party was brought up by Complainant Davis. It would certainly be appropriate for Ms. Taken to react in this manner when the policy set forth in the Respondent Board's motion of April 20, 1992 is considered. That policy provides that rental will be denied "[i]f the subject of selling alcohol or suspicion of selling was brought up during the rent interview." (emphasis added). See Finding of Fact No. 9.

26. Although beer is allowed and a tapper is included as part of the rental, the record is not clear on whether or not Respondent's policy allows the possession, as opposed to the sale, of liquor for parties at the hall. (Tr. at 21, 145-46).

27. Joe Ingram's recollection of the meeting or meetings with Jessie Taken is fuzzy. (Tr. at 64). His testimony indicates that the topic of liquor was brought up, but does not indicate who brought it up. (Tr. at 61).

28. There is a discrepancy between the testimonies of Ms. Taken and Complainant Davis with respect to whether this topic was brought up during the initial telephone conversation. Complainant Davis testified that the sale of liquor was not brought up during the initial telephone conversation with Taken. (Tr. at 13, 34, 36, 45-46). Ms. Taken testified that she told him at that time that they couldn't sell liquor. (Tr. at 128). It is likely that Ms. Taken's recollection of that conversation is more accurate than Complainant Davis' with respect to this topic as it was with respect to the requirement for cash payment. See Findings of Fact Nos. 17-20.

29. As noted, there is a discrepancy between the Respondent's and the Complainant's testimony concerning whether the Complainant or Ingram indicated at the meeting that he intended to sell liquor. Ms. Taken testified that the topic of the sale of liquor came up because she had asked Complainant Davis and Mr. Ingram how they were going to pay for the hall. Ingram replied that they were going to sell liquor. (Tr. at 134). Ms. Taken informed him that they had no dram shop insurance and had never allowed liquor to be sold at the hall. (Tr. at 135-36). According to Ms. Taken, Mr. Davis later telephoned her at home. He admitted that they were initially going to sell liquor, but once they found out they could not, he had decided not to. (Tr. at 152). Ms. Taken responded that because they had been planning to sell it she could not rent them the hall. (Tr. at 152-53). This would be in accordance with the Board's Motion of April 20th. See Finding of Fact No. 9.

30. Joe Ingram could not recall whether or not they had intended to sell liquor. (Tr. at 61). He could also not recall whether or not he had told Ms. Taken that he intended to sell liquor. (Tr. at 65).

31. Cora Lee is a Black female who overheard part of the conversation between Jesse Taken, Complainant Davis and Mr. Ingram. Her recollection supports Taken's testimony, i.e. that either the Complainant or Ingram indicated that they were going to sell liquor. (Tr. at 90, 97).

32. It should be noted that Ms. Lee informed the Cedar Rapids Civil Rights Commission, during the investigation of this matter, that the conversation was between Jesse Taken, Complainant Davis and Chuck Jones, not Joe Ingram. (Tr. at 160-63). It is clear, despite her testimony to the contrary, that Cora Lee did confuse the identity of Joe Ingram and Chuck Jones. (Tr. at 91-93). Some of the evidence helps explain why she may have been uncertain as to Joe Ingram's identity. She testified that, when Complainant Davis and Joe Ingram came into the hall, "I saw them. I didn't actually know who they were at the time they first came in there, but I did notice them." (Tr. at 86). She also stated that "I wasn't . . . looking them right in the face as they talked. " (Tr. at 97). She told Louise Lorenz, the director of the Cedar Rapids Civil Rights Commission, that she knew Chuck Jones and Joe Ingram were cousins. (Tr. at 157, 165).

33. Although she confused the identities of Chuck Jones and Joe Ingram, it does not necessarily follow that her testimony on the conversation between Taken, Davis, and Ingram is wholly incredible. In both her interview with Louise Lorenz and her testimony at hearing, Cora Lee maintained that Complainant Davis and the individual accompanying him told Jessie Taken that they were planning to sell liquor at the party. (Tr. at 97, 160, 164). Based on this consistency with respect to her prior statement and her testimony at hearing, as well as her demeanor at hearing, her testimony on this issue appears to be credible.

34. The preponderance of the credible evidence supports the conclusion that Ms. Taken did not initiate an inquiry into the topic of liquor or the sale of liquor once she met with the Complainant and Mr. Ingram and realized they were Black. Rather, the Complainant initiated the discussion on liquor at the meeting and Ms. Taken followed it up.

3. Security Required at the Hall During Parties:

a. Under what circumstances was security required at parties?

35. In order to determine whether the requirement of security at parties was brought up by Jessie Taken as a means of delaying rental of the hall once she realized the hall was going to be rented by Blacks, it is first necessary to determine what was meant by the Respondent's Board's motion of April 20, 1992. Under what circumstances was security required and what kind of security was required?

36. As previously noted, the Respondent's Board's motion of April 20, 1992 ends by stating, "Security would have to be hired." The first part of the motion is concerned with denying rental for parties where alcohol is to be sold or the suspicion is raised that alcohol would be sold. Therefore, it would appear that the security was not being required for parties where liquor was sold because such parties were prohibited by the motion. Therefore, from the text of the motion alone it is not possible to determine when "Security would have to be hired." See Finding of Fact No. 9.

37. The text of the Board minutes for April 20, 1992 are also not helpful since they record none of the discussion on the motion concerning parties. (R. EX. D). While the Board's minutes typically record the motions and votes and discussion of the motions, it is obvious from an examination of these minutes that they are not a complete record of discussion of the motions. (R. EX. D; Tr. at 145). If the minutes were complete, there was a one hour meeting of the board during which virtually the total activity was moving, seconding, and passing six motions. The only discussion recorded is "Example: Sunday afternoon Anniversary celebration" with respect to a motion to charge $200.00 "for hall rental if the hall is needed for 4-6 hours." It is highly unlikely that this was the only discussion in a one hour meeting. It is necessary, therefore, to turn to the testimony to ascertain in what situations the Board intended that "[s]ecurity would have to be hired" and what "security" refers to. (R. EX. D).

38. The most credible evidence on this issue is the testimony of Jessie Taken, a board member who was present when the April 20 motion was passed. (R. EX. D). Her testimony indicates that the requirement of security was imposed on regular parties as opposed to wedding receptions and similar functions such as observances of wedding anniversaries. (Tr. at 138, 147).

39. Cora Lee testified, and Respondent suggested on brief, that the motion of April 20, 1992 was intended to ban all "regular parties". (Respondent's Post-hearing Brief at 7; Tr. at 88). This suggestion and testimony is not believable as it is contrary to the language of the motion which nowhere suggests that all regular parties are banned, but only those where liquor is to be sold or it is suspected will be sold. See Finding of Fact No. 9. Also, the motion mentions that "[s]ecurity would have to be hired" for some unspecified functions. If the only functions allowed at the hall are wedding receptions and other functions for which no security is required, then nothing is left for "which security would have to be hired." Finally, unlike Jessie Taken, Cora Lee had no official role with the Respondent, was not present at the Board meeting, and did not have the responsibility of making arrangements for reserving the hall. (R. EX. D; Tr. at 95, 96, 98).

b. What kind of security was required?

40. The Board understood that, since it took care of the hall, it could determine who it would require as security. (Tr. at 134, 136, 141-42). The Respondent Board's understanding of what was meant by "security" was the Cedar Rapids police and not private security companies. (Tr. at 136, 141-42).

c. The subject of security was initially brought up by Jesse Taken during her initial telephone conversation with Complainant Davis:

41. As has been previously noted, Ms. Taken's recollection of her original telephone conversation with Complainant Davis appears to be more accurate than his. See Finding of Fact No. 28. Therefore, her account of that conversation with respect to security is credited. Once she called the Complainant, Taken asked him what kind of party he was going to have. He indicated, "just a party." At that point she told him that if they are going to have a party, they will need security. Since Davis indicated that there were only two weeks until the party, she informed him, that given the lateness of the date, it might be difficult to obtain security. (Tr. at 128, 137-38).

d. The preponderance of the evidence indicates that security was not raised by Ms. Taken as a delaying tactic designed to prevent Complainant Davis from renting the hall because he was Black:

42. The fact that security was initially brought up in the telephone conversation with Complainant Davis demonstrates that it was not brought up as a delaying tactic at Taken's meeting with the Complainant and Ingram on August 20th. Even if there had been no inquiry on security until that meeting, such inquiry would be in accord with the April 20th motion of the Respondent's Board in light of the Board's understanding of what kind of functions the security requirement applied to and what kind of security was required. It would be sensible for the Respondent's representative to inform a potential renter of the security requirements and to ascertain whether he would provide it.

C. Was Complainant Davis Subjected to Different Treatment on the Basis of Race With Respect to the Security Requirement?:

43. In order to determine whether the remaining circumstantial evidence demonstrates that Complainant Davis was subjected to different treatment on the basis of race, it is necessary to determine: (1) the chain of events with respect to the security issue which occurred after the initial telephone conversation between Ms. Taken and the Complainant; (2) whether the requirements expected of Complainant Davis conformed to the Respondent's security policy; (3) whether Respondent's actual practice with respect to security requirements is to treat renters differently on the basis of race, and (4) whether remarks made by Jessie Taken concerning gangs reflect racial stereotyping in the rental process.

1. Events After Ms. Taken and Complainant Davis Initially Talked on the Telephone:

44. After Ms. Taken talked to Complainant Davis on the telephone, she called the police to determine whether security could still be obtained. (Tr. at 129, 147). The person who normally handled such matters was absent. He returned her call on the Monday or Tuesday before Saturday, August 22nd. (Tr. at 129). Her understanding is that he informed her that they could probably get two police officers as security at the rate of $30 per officer per hour. (Tr. at 130).

45. Complainant Davis, Jessie Taken, and Joe Ingram are all in agreement that they talked about security at the meeting in person at the hall on August 20th. (Tr. at 17, 62, 133-34). There is, however, disagreement on whether they met once or twice on that date. Ms. Taken's testimony is that they met only once, although they did talk later about these security issues when the Complainant telephoned her at home. (Tr. at 136). The Complainant and Mr. Ingram testified that they met in person with Ms. Taken twice that day. During the interim between the two meetings, the Complainant and Ingram visited the local police department and a private security firm. (Tr. at 17-19, 62-63, 69). Since this hiatus is mentioned not only in Davis' and Ingram's testimony, but is also consistent with Davis' complaint, which was signed on September 2, 1992, a time much closer to the events in question, their testimony is more credible with respect to this issue. (Notice of Hearing-Complaint). It appears that, because the Complainant's and Mr. Ingram's visit to Cedar Rapids Police and a security firm were later discussed between Complainant Davis and Ms. Taken by telephone, she may have forgotten that they were also discussed at a second meeting. (Tr. at 24, 136-37).

46. On brief, the Commission suggests that "Only after Chris [Davis , the Complainant] and Joe [Ingram] agreed to provide security from a private security company did Jesse [Taken] insist that the security be provided by off-duty police. Tr. at p. 20." This position is not supported by the record. The testimony on page twenty refers to the second meeting where Ms. Taken told Complainant Davis and Ingram that, although the police suggested that the work could be done by a private security firm, the Respondent still wanted police officers. (Tr. at 20). The testimony of both Complainant Davis and Ms. Taken make clear that the requirement of police officers had been expressed to the Complainant from at least from the first meeting on, and did not originate at this second meeting. (Tr. at 17, 133). When Complainant Davis was asked what Ms. Taken said about security at the first meeting, he testified, "That I would need security for the party, two uniformed police." (Tr. at 17)(emphasis added).

47. One minor discrepancy concerns whether Ms. Taken not only informed Complainant Davis and Mr. Ingram that she wanted police officers, but also informed them of the price. Ms. Taken testified that she did, while Complainant Davis avers she did not know how much it would cost when they asked her. (Tr. at 17, 135). Davis testified that he and Ingram then went to the police to check the price. (Tr. at 17). Regardless of whether Taken gave them the price or not, there is no dispute that the Complainant and Ingram went to check the price for security with the Cedar Rapids police. It doesn't matter whether the reason for doing so was to check the accuracy of the price given by Taken or to obtain the price information for the first time. (Tr. 17-19, 136-37).

48. From the record it is impossible to tell whether Complainant Davis and Ingram were given a price by the police which is double what was quoted Ms. Taken or whether they or Ms. Taken misunderstood the price quoted. (Tr. at 18, 130). In any event, the police also suggested they check with a private firm, which would be less expensive. (Tr. at 18). They checked with two private firms, one of which was Midland Security, and were quoted a price which was $25.00 to $30.00 cheaper. (Tr. at 18-19, 51-52, 137, 153).

49. When the Complainant and Ingram met with Taken the second time, and when the Complainant and Taken subsequently talked on the telephone, the Complainant told Taken that (a) the police had indicated they could use a private firm, and (b) that they wished to use a private firm. (Tr . at 19-20, 24, 51, 69, 136, 137, 153). Ms. Taken responded by reiterating that the Respondent Board required police officers. (Tr. at 20, 136, 137, 153). Given the cost of the police, Complainant Davis and Mr. Ingram elected to not have the party. (Notice of Hearing-Complaint; Tr. at 29-30).

2. The Requirements Expected of Complainant Davis Conformed to the Respondent's Security Policy:

50. It is apparent from the facts already stated that the security requirements expected of Complainant Davis, two uniformed police officers at a regular party, conformed to the policy of the Respondent as set forth by the evidence in the record. See Findings of Fact Nos. 35-40, 46, 49.

3. The Evidence Does Not Support the Proposition that the Respondent's Actual Practice With Respect to Security Requirements Was to Treat Renters Differently on the Basis of Race:

51. The greater weight of the evidence does not support the proposition that the Respondent's actual treatment of renters or potential renters of the hall with respect to security requirements differed on the basis of race. An examination of the reservation calendars for 1992 and the testimony of Ms. Taken reveals that not one party was held at the hall except wedding receptions and anniversaries after the April 20, 1992 motion requiring security was passed. (R. EX. A, B; Tr. at 122-24, 128, 142-43). As previously noted, these parties do not require security. See Finding of Fact No. 38.

52. Several of these wedding receptions were held for Black persons who rented the hall. (Tr. at 90, 98, 138). Complainant Davis had attended three past parties at the hall held by Black persons. (Tr. at 40).

53. There is one entry on the calendar for July 31, 1992 which states, "Hlavacek Frankie Birthday Party." (R. EX. A). Since there has never been a party with security at the hall, it follows security was not required for that party. (Tr. at 140-41). However, the party for Hlavacek was misstated as a birthday party. It was actually a wedding anniversary for a member who was over 80 years old. (Tr. at 143, 154).

54. In any event, if this had been a birthday party it could have been considered to be a function similar to a wedding reception in the sense that one would routinely expect that invitations would be sent out and that the guests would be limited to invited family and friends. This was the rationale for not requiring security at weddings, anniversaries, and similar functions. (Tr. at 138). The Respondent was not aware that Complainant Davis had sent invitations out to the guests for his back to school party. (Tr. at 9, 138).

55. Also, Mr. Hlavacek's race is not reflected in the record. Therefore, no inference of race discrimination based on different treatment of Mr. Hlavacek and Complainant Davis may be made.

4. The Remarks Made to Complainant Davis and Mr. Ingram By Jesse Taken Concerning Gangs Did Not Reflect Racial Stereotyping In the Rental of the Hall:

56. When Ms. Taken informed Complainant Davis about security requirements at their meeting on Thursday, she mentioned that the police had informed her that two police officers were required. The reason why a minimum of two were required was because the police would not permit fewer than two to be assigned as security at parties due to the presence of gangs from Chicago on the southeast side of Cedar Rapids. (Tr. at 21, 97, 133-34, 149-150). Although the hall is not in the Wellington Heights area where many of the gang related problems occurred, both Wellington Heights and the hall are on the southeast side. See Finding of Fact No. 5, 6. Ms. Taken repeated to Complainant Davis and Mr. Ingram what the police had told her. (Tr. at 133-34, 149-50). She did not mention Blacks or that the gangs were Black, but it was understood by Ms. Taken and others that the gangs were composed of Blacks. (Tr. at 21, 95, 149-50). Gang activity had been widely publicized in Cedar Rapids in the summer of 1992. See Finding of Fact No. 5.

57. When he heard Ms. Taken tell him the reasons the police had given for wanting a minimum of two officers in situations where officers provided security, Complainant Davis received the misimpression that Ms. Taken thought he had something to do with gangs. (Tr. at 57). Apparently, Davis thought that the widespread racial stereotypes concerning young Black men, gangs, and violence which have been previously noted, see Finding of Fact No. 13, were being applied to him. When Complainant Davis subsequently talked to Ms. Taken on the telephone, he told her at that time that he felt he was being subjected to racial discrimination. (Tr. at 26, 134, 152). However, since she was simply reiterating the reasons given by the police for requiring two officers as security, her remarks did not reflect any racial stereotyping.

58. In summary, the Complainant has not established a prima facie case of discrimination through circumstantial evidence because the evidence does not show that he met the qualification of being willing and able to meet the security requirements established by the Respondents. The preponderance of the evidence does not support the propositions that Complainant Davis was subjected to different treatment on the basis of race under either the policy or practices of Respondent Local P-3 Retirees, Inc. with respect to security requirements. Nor does the preponderance of the evidence indicate that the treatment of Complainant Davis with respect to security requirements was influenced by racial stereotypes.

Findings of fact continued