ROYD JACKMAN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.


JENSEN CONSTRUCTION COMPANY, Respondent.

Findings Fact Continued:

41. Keith Burnett and Steve Olson gave the appearance of being credible witnesses. However, Keith Burnett was successfully impeached in regard to his testimony to the effect that he had, as supervisor, disciplined employees for telling racial jokes and had discussed this matter with other employees. (Tr. at 394). On deposition, he had stated that he had not done anything to discourage the telling of racial jokes on the jobsite because "it doesn't do much good. You're not going to stop them." (Tr. at 395).

42. Burnett went on to testify that he tried to stay out of employees' taunting each other because it would take time from the job. He was aware that Sheldon Naab enjoyed picking on people. (Tr. at 39697). Burnett's deposition, together with the testimony of other witnesses to the effect that management would often ignore or inadequately respond to the racial remarks directed toward Complainant Jackman by Sheldon Naab, helps demonstrate why Burnett's and Olson's denials of knowledge of racial remarks directed toward Jackman are not credible. (Tr. at 83, 86, 152, 376, 383, 424). See Findings of Fact Nos. 9, 10, 12-13, 16-18, 25-26.

43. It is more likely than not that Olson and Burnett did not remember some of these incidents because they chose to ignore them at the time they happened. They failed to distinguish racial harassment from jokes, personality conflicts, and other nonracial jobsite disputes. In regard to other areas, their testimony is more credible. Some of their testimony actually bolsters Complainant Jackman's credibility. Keith Burnett testified that he had no indication that Complainant Jackman was anything less than honest with Respondent Jensen Construction Company. (Tr. at 389). He also testified that he had no reason or knowledge to believe that Complainant Jackman fabricated or lied about what happened to him at Respondent Jensen Construction. (Tr. at 397).

44. Burnett and Olson also acknowledged that Complainant Jackman was a hardworking, reliable employee. (Tr. at 389-90, 436-37). Olson noted that Jackman did his assignments promptly and was not a complainer. Up to the date he left, Complainant Jackman's attendance was good and he arrived to work on time. (Tr. at 437-38). Burnett stated that Complainant Jackman was an "excellent worker" whom he rated a "B". (Tr. at 388-89). Steve Olson told Bobby Prater, one of the individuals Complainant Jackman usually rode to work with that, if he saw Jackman to ask him call Olson at home or collect. (CP. EX. # 8; Tr. at 423). This evidence of Complainant Jackman's work performance and attitude tends to buttress the plausibility of his story. It would be highly unlikely that a hard working, reliable employee, such as the Complainant, would leave his employment without good cause.

Back Pay:

Average Weekly Earnings:

45. At the time that Complainant Jackman was constructively discharged, he was earning $7.25 per hour in regular time pay and $10.88 per hour for overtime, i.e. time in excess of 40 hours per week. (Joint EX. 1; CP. EX. 4; Tr. at 147). During his employment with Respondent Jensen Construction Company, his overtime hours were as follows:

(CP. EX. # 4).

46. Complainant Jackman worked an average of 10.21 hours of overtime per week during his employment with Respondent. [(8.5 + 9.5 + 14.0 + 9.5 + 7.0 + 14.0 + 9.0) / 7 weeks] = 71.5 / 7 weeks = 10.21 hours of overtime per week]. Based on the experience of Sheldon Naab, who also drove water trucks for the Respondent, it is unlikely that Complainant Jackman's overtime would have decreased if he had continued on the Traer job. (Tr. at 351).

47. If Complainant Jackman had continued his employment at Respondent Jensen Construction Company, his average weekly earnings would have been $401.08. [Average weekly regular time earnings + Average weekly overtime earnings = average weekly earnings] = [(40 hours X $7.25 per hour) + (10.21 hours X $10.88 per hour) ) = [ ($290.00) + ($111.08) ] = $401.08 average weekly earnings.

Gross Back Pay for the Remainder of the Traer Job:

48. Jensen Construction Company moved its grinding crew from Traer, Iowa to Lincoln, Nebraska for a grinding project which lasted from July 5, 1989 to September 8, 1989. (Joint EX. # 1). Keith Barnett testified that the Traer grinding project ended during the first week of July 1989. (Tr. at ":)99). Official notice is taken of four facts. The first fact noticed is that June 30, 1989 was a Friday. The second fact noticed is that July 3, 1989 was a Monday. The third fact noticed is that July 4, 1989 was a national holiday, Independence Day. The fourth fact noticed is that the distance from Traer, Iowa to Lincoln, Nebraska is of sufficient length that it would have been very difficult, if not impossible, for Jensen Construction Company to have still been conducting grinding operations in Traer on July 3, 1989 and then to have moved its operation to Lincoln by July 5, 1989. Fairness to the parties does not, require that they be given an opportunity to contest these facts. Given the above facts, it is more likely than not that the grinding operations in Traer ended on June 30, 1989.

49. Complainant Jackman's back pay for the remaining four weeks of the Traer operations from June 5 through June 30, 1989 would have been $1604.32. [$401.08 average weekly earnings X 4 weeks = $1604.32].

Gross Back Pay for the Lincoln, Nebraska Job:

50. It is more likely than not that, if Complainant Jackman had not been constructively discharged, he would have continued his employment with Respondent Jensen Construction Company through the completion of the project in Lincoln, Nebraska. It is undisputed that Keith Burnett and Steve Olson had talked to him about his continuing with the company at their next job in Lincoln, Nebraska. (Tr. at 17980, 382- 83, 389, 430-31). Complainant Jackman told Burnett that he was interested in going to Lincoln. (Tr. at 180, 382-83).

51. Although no final arrangements had been made at the time Complainant left, Steve Olson had indicated to the Complainant that he would see if the company could get him a wage increase to offset the costs imposed on Complainant Jackman due to distance away from his home. (Tr. at 431). This procedure was sometimes followed with regard to workers who had to travel out of state. (Tr. at 388). Whatever doubts may be raised by Complainant's testimony that he had turned down another job prior to his employment with Respondent due to transportation problems or Naab's testimony that Complainant indicated he did not think he would go to Lincoln because of transportation costs are resolved by the probable availability of the extra expense money. (Tr. at 140-41, 209-10). Although the home office would make the final determination on the availability of this expense money, both Olson and Burnett would have input on approving the expense. (Tr. at 388). As previously noted, both testified that Complainant Jackman was a highly reliable employee. See Finding of Fact No. 44.

52. Complainant Jackman's back pay for the nine and one-half weeks of operations at Lincoln, Nebraska would have been $3810.26. [$401.08 average weekly earnings X 9 1/2 weeks = $3810.26]. Therefore, his gross I back pay prior to subtraction of interim earnings would be $5414.58, which is the total of what would have been his pay for the completion of the Traer project ($1604.32) and his pay at the Lincoln, Nebraska project ($3810.26).

Absence of Interim Earnings:

53. There is no evidence in the record of Complainant Jackman receiving earnings from post discharge employment prior to approximately September 17, 1989. This date is two months after he began his treatment by Amy Welch. (CP. EX. # 3; Tr. at 19). On that date, he began employment with Ames Story Tree Service. (Tr. at 195). September 17,1989 is nine days after the project at Lincoln, Nebraska ended and is outside of the period for which back pay is being awarded. Given the absence of evidence of interim earnings during this period, Complainant Jackman should be awarded his full gross back pay amount of $5414.58.

Emotional Distress:

54. Complainant Jackman suffered severe emotional distress as a result of the racial harassment he sustained at Respondent Jensen Construction Company, the Respondent's failure to adequately respond to the harassment, and his constructive discharge. This distress began with the "hat incident" described above. See Findings of Fact No. 8-9. Sheldon Naab's statement "Just because he's a nigger, does that mean he gets a hat" hit Complainant Jackson "like a ton of bricks." (Tr. at 152). Complainant credibly testified that the use of the word "nigger" by Naab "caught my eye, caught my ears, caught my heart and my soul, my mind, everything." (Tr. at 153). This, when combined with the failure of Steve Olson to reprimand Naab for his language, had a double effect which left Complainant Jackman "dumbfounded." (Tr. at 154). Complainant Jackman had never been called "nigger" at a worksite before. (Tr. at 175).

55. The repeated, continued harassment by Sheldon Naab, the Respondent's failure to correct it, and his constructive discharge angered, offended and distressed Complainant Jackman. (CP. EX. # 1, 3; Tr. at 20-21, 25, 94, 102-03, 105, 162-64, 174, 185-86, 189, 201). He felt betrayed by Respondent's failure to correct the situation. (CP. EX. # 3; Tr. at 25, 172, 185, 189). These events deprived Complainant Jackman of the enjoyment of the work which he had previously had. (Tr. at 149, 157, 164, 172, 189).

56. At times, Complainant Jackman felt he wanted to shoot Sheldon Naab. (Tr. at 162). He tried to redirect his anger by turning away from Naab or trying to joke about it. (Tr. at 163). At one time he started to pick up a piece of three-quarter inch rerod to open Naab's head up, but decided not to do it "because I'm a Christian." (Tr. at 164). By the time he had left, his employment he felt the only alternatives he had were violence or getting out. (CP. EX. # 3; Tr. at 165).

57. Complainant Jackman's feelings of anger, frustration and betrayal over these events continued long after he left his employment. (Tr. at 19-25, 105, 187-192). He took his anger out on his family. (Tr. at 187). For example, when his father would tell him to pick something off the floor, Complainant responded by cursing him. (Tr. at 187). On another occasion, he threw his sister across a room. (CP. EX. # 3). It was these events that led Complainant Jackman to seek professional counseling. (Tr. at 188). Complainant Jackman continued to have violent thoughts about Sheldon Naab. He wanted him to be in physical pain. (Tr. at 188-89).

58. The sense of betrayal experienced by Jackman, and the effect these events had on his enjoyment of the job, is best expressed by his own words:

I lost interest in my job. I lost interest in people, because Steve bison was the type of person I was really getting to get a grasp a hold of. I was liking him and everything, you know, and I lost interest because it was like I was a nobody, yet I was somebody. I was a good worker, but I'm still nothing. I'm a piece of dirt trash.... I was doing a good job for the man, but he couldn't . . . discipline him. I couldn't understand that, so I lost interest in my job.

I still did a hard job. I still worked, but not with the same enthusiasm I had. I was thinking about Bear. The thing I was thinking about was getting back at the yard. That was on my mind.

After eight hours was gone, it was like I was to go back to the yard, and I know what is going to happen. I know I had to get prepared to . . . get out of my truck and hear something.

All I thought about when I got up, you're going to be a nigger today, but you're going to be a good worker. When you get with Steve, you'll be a good worker, but you'll be a nigger in about ten hours, and it was in front of everybody. That's what got to me, because it wasn't solo. I was with everybody there, the whole group.

(Tr. at 172-73, 189).

59. The distress caused the Complainant by the events at Jensen Construction Company manifested itself in a variety of ways even after he left Respondent's employment. He became "totally obsessed" with these events. (CP. EX. # 1, 2, 3; Tr. at 20, 61-62, 126). He had violent impulses which were related to his elevated state of agitation resulting from the harassment, i.e. he was less in control due to the effects of the harassment than he otherwise would have been. (CP. EX # 1, 3; Tr. at 20, 63) He had difficulty in eating or sleeping. (CP. EX. # 1, 3; Tr. at 20, 33-34, 192). He had an upset stomach. (Tr. at 192). He isolated himself from his family and friends and could not, at first, bring himself to talk to them about these events. (Tr. at 192). When he did finally tell them or his social worker, he would become "extremely manic" and agitated with rapid speech, shaking his head, flailing his arms, clenching his fists, and stomping his feet. (CP. EX. # 1, 3; Tr. at 20, 26, 37, 102, 105). Then, he might simply sit, stare, and say nothing. (Tr. at 105). He would go to a bar, buy a beer, and not drink it. (Tr. at 192-93). At other times, he would get drunk. (R. EX. # 4; Tr. at 20, 22, 63, 200).

60. In mid-July 1989, Complainant Jackman sought professional counseling for his emotional distress by contacting Dr. Dodd, a practicing psychiatrist at the McFarland Clinic. (Tr. at 18-19). Dr. Dodd prescribed Mellaril, an anti-depressant drug which is used when an individual has violent impulses which are out of control. (CP. EX. # 3; Tr. at 19, 191). Because Complainant Jackman could not afford private treatment, and because he required further counseling, he was referred to Amy Welch, a social worker at the Central Iowa Mental Health Center. (CP. EX. # 3; Tr. at 18-19,191).

61. Ms. Welch first saw Complainant Jackman on July 17, 1989. (CP. EX. # 3; Tr. at 19). At that time she counseled him for one and one-half hours. (CP EX. # 3). Ms. Welch's clinical impression at the end, of this session suggested that Complainant Jackman, suffered from an adjustment disorder with mixed disturbance of emotions and conduct. (CP. EX. # 3; Tr. at 22. This clinical impression was made pursuant to the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM III R), a standard handbook of psychiatric diagnosis that contains the criteria and descriptions which need to be met for each diagnosis. (Tr. at 22-23).

62. An "'adjustment disorder' is a reaction to a particular identifiable stressor that occurs within a reasonable period of time, three months of that stressor, and results in a diminished functioning or impairment on the part of an individual, and is thought to be above and beyond what a normal reaction would be." (Tr. at 53).

63. Ms. Welch's expert opinion was that the stressor which was the underlying cause of the adjustment disorder was the "series of events at his former place of employment," a phrase which referred to the racial discrimination against Complainant Jackman. (Tr. at 23-24, 33). She also offered the opinions (a) that Jackman's difficulty with eating and sleeping were caused by events at Jensen Construction Company which he perceived to be racial discrimination, and (b) that the racial discrimination at Jensen Construction Company resulted in a lowering of his self-esteem. (CP. EX. # 2; Tr. at 33-35).

64. Ms. Welch consulted with Dr. Dodd and it was determined to increase Complainant's dosage of Mellaril. (CP. EX. 3; Tr. at 26). Complainant Jackman was also informed that, if the increased dosage of Mellarif did not calm him down, voluntary hospitalization might be necessary in order to protect himself and others. (Tr. at 27-28).

65. Ms. Welch continued to counsel Complainant Jackman through November 1989, when she closed his file. (CP. EX. # 1; Tr. at 38). She had last spoken with Complainant on October 18,1989, at which time he appeared to be much improved and had found another job. (CP. EX. # 1).

66. Complainant Jackman, however, experienced a reaction to a movie, "Mississippi Burning," which dealt with racial violence. (Tr. at 196-200). The movie revived his feelings and anger resulting from the events at Respondent Jensen Construction Company. He became upset and began drinking heavily. (Tr. at 1 99).

67. He went to see Dr. Dodd again and was counseled by Ms. Welch on January 22, 1990. (CP. EX. # 1; Tr. at 39-40). He was angry and depressed, but less agitated than he had been in July of 1989. (CP. EX. # 1; Tr. at 40). Dr. Dodd had prescribed Haidol for complainant. Haidol is an anti psychotic prescribed for those who are.experiencing violent impulses or paranoia or who are otherwise out of control. (CP. EX. # 1; Tr. at 41). Dr. Dodd also prescribed Imipramine, a medication which helps persons get control of themselves and to deal with depression and anxiety. (CP. EX. # 1; Tr. at 41). Complainant Jackman had calmed down by the end of the session on January 22, 1990. (CP. EX. # 1). Ms. Welch has not counseled him since that time. (Tr. at 41).

68. It should be noted that Complainant Jackman also had other stressors in his life. These included his marital and family life, social life, and substance (alcohol) abuse. (Tr. at 28). At the times Ms. Welch saw Complainant Jackman, however, none of these stressors seemed to cause Complainant Jackman any particular anxiety. (Tr. at 28). Craig Garrey and Complainant Jackman both noted that he had resolved his emotional distress resulting from his marital problems about three to four months after their separation in 1986. (Tr. at 110-11, 204). During his counseling with Ms. Welch, the Complainant's concerns were focused at all times solely on the events at Jensen Construction Company. (Tr. at 28).

69. Ms. Welch did suspect an underlying personality disorder as both of Complainant Jackman's parents were alcoholics and he had an unhappy childhood. (Tr. at 56-57). Alcohol abuse was found because Jackman drank 3 to 4 beers each night. This abuse had caused dysfunction in his life. (Tr. at 57). Complainant Jackman had a history of participating in bar fights prior to his employment at Jensen Construction Company. (Tr. at 64).

70. Complainant Jackman had also been separated from his wife from a time prior to his job at Jensen Construction. (Tr. at 204, 212). He had received counseling for his marital problems. (Tr. at 211). The petition for dissolution of the marriage was served on him on July 28, 1989 and the decree issued on November 9,1989. (Tr. at 204- 05; R. EX. # 5).

71. As a result of these other problems, Complainant Jackman did not have the highest level of functioning prior to the events at Jensen Construction Company. (Tr. at 59- 60). But, these events resulted in a substantial diminishment of his functioning and decrease in his emotional health. (Tr. at 60). They precipitated a crisis that was severe enough to interfere with Complainant's ability to eat, sleep, or properly care for himself. (CP. EX. 3; Tr. at 18, 38). There is other evidence to suggest that Complainant Jackman was more sensitive than the average individual and thus more vulnerable to distressing events. (R. EX. # 4).

72. In light of the severity and duration of the distress suffered by Complainant Jackman due to the racial harassment he sustained at Respondent Jensen Construction Company, the Respondent's failure to adequately respond to the harassment, and his constructive discharge, an award of twenty-five thousand dollars ($25,000) would be full, reasonable and appropriate compensation. In making this award, care has been taken to ensure that no award is made for damage caused solely by other sources of distress.