BEFORE THE IOWA CIVIL RIGHTS COMMISSION

DIANE HUMBURD, Complainant,

VS.

MARY A. HARLAN and VIRGIL G. HARLAN, Respondents.

FINDINGS OF FACT

1. The complainant, Diane Humburd, filed a verified complaint CP # 03-85- 12695 with the Iowa Civil Rights Commission, on February 26, 1985, alleging a violation of Iowa Code section 601A.7 (1983) which prohibits discrimination in public accommodations on the basis of race. The date of incident stated in the complaint is September 16, 1984. (C. Ex. 1).

2. The complaint was investigated. After probable cause was found, conciliation was attempted and failed. (C. Ex. 2 & 3). Notice of Hearing was issued on May 17, 1988. (C. Ex. 3).

3. Official notice is taken of a document indicating that the Notice of Hearing was sent to Virgil G. Harlan by certified mail letter number 510249. Official notice is also taken of certified mail return receipt 510249 addressed to Virgil G. Harlan at 1907 - 62nd Street, Des Moines, Iowa 50311 and signed by one Cindy Harlan on May 18,1988.

4. An Order granting a continuance pending assignment of a new Administrative Law Judge to hear the case was issued on October 5, 1988. The final hearing date was set by Order dated January 23, 1989 which was sent to Virgil G. Harlan and to the respective counsel for Ms. Harlan and Ms. Humburd by certified mail. Official notice is taken of a document, dated January 24, 1989, attached to the Order, which serves to indicate that the Order was sent to Virgil G. Harlan by certified mail letter number 510024. Official notice is also taken of certified mail return receipt 510024 addressed to Virgil G. Harlan at 1907 - 62nd Street, Des Moines, Iowa 50311 and signed by Cindy Harlan on January 30, 1987. Fairness to the parties does not require that they be given an opportunity to contest the facts officially noticed in this and the preceding paragraph.

5. Virgil G. Harlan was neither present nor represented at the hearing. He has not responded to either the Notice of Hearing or the Order of January 23, 1989 setting the final date for the hearing.

6. As of September 16, 1984, Mary A. Harlan managed her own child care business. (Tr. at 129, 135). The house in which Ms. Harlan offered these services was her home and the title to the house was in her name . . . . (Tr. at 135). At that time, Ms. Harlan usually charged $50.00 per week for day care services in her home. (Tr. at 123). She did not require that her customers, the parents of the children she cared for, be from a particular geographic area or make a certain income or have any other similar defined criteria limiting the members of the public she offered her services to. (Tr. at 130-31).

7. Ms. Harlan offered her child care services to the general public through advertisements in the Des Moines Register in 1984. (Tr. at 130, 136, C. Ex. 4). She was also registered and licensed by the Iowa Department of Human Services to provide day care. (Tr. at 137). Ms. Harlan's understanding was that no license was required unless the child care provider cared for in excess of six children. (Tr.at 138). Despite her advertising and obtaining this license, the number of children under Ms. Harlan's care at any given time in 1984 did not exceed three. (Tr. at 130, 136, 138).

8. On Sunday, September 16, 1984, an advertisement, placed by Mary Harlan, appeared in the "Child Care" column of the classified section of that day's Des Moines Register. (Tr. at 130, 136, C. Ex. 4). The advertisement states:

CHILD care. Infant to age 4. Reg. 62nd and Franklin. 279-2900.

(C. Ex. 4).

9. Official notice is taken that caring for an infant of one year of age for several hours a day requires far more than the mere provision of shelter for that child. It also requires that such tasks as observation of the child, feeding, diaper changing, and a certain amount of cleaning be performed by another person. Fairness to the parties does not require they be given an opportunity to contest this fact.

10. Diane Humburd is a black female. Ms. Humburd has a son who was one year old in September of 1984. (Tr. at 9-10, 177). Her son is also black. (Tr. at 19).

11 . Diane Humburd read Ms. Harlan's September 16th child care ad. (Tr. at 13, C. Ex. 1). Ms. Humburd called the listed number and spoke to Mary Harlan about obtaining child care for her son. (Tr. at 13, 121, C. Ex. 1). During their conversation, they discussed the dollar amount which Ms. Harlan charged for day care services. At this time, Ms. Humburd was informed by Ms. Harlan that, because Ms. Humburd was only working six hours a day and would not require the same number of hours of child care services as someone who worked longer hours, she would charge her only $1.00 per hour for child care services. (Tr at 13, C. Ex. 1 ). They made arrangements for Ms. Humburd to meet Ms. Harlan that evening. (Tr. at 13, C. Ex. 1).

12. Virgil Harlan is the husband of Mary Harlan. As of February 1989, Virgil Harlan and Mary Harlan had been married approximately 23 years. (Tr. at 114). Virgil and Mary Harlan lived at the same residence in 1984 and still do. (Tr. at 135).

13. Later that same day, September 16, 1984, Ms. Humburd and her son went to the Harlan residence at 62nd and Franklin to meet with Ms. Harlan. (Tr. at 13, 121). Ms. Humburd and her son were admitted into the Harlan Home by Ms. Harlan. (Tr. at 15,122). A discussion occurred between Ms. Humburd and Ms. Harlan in the living room. Mr. Harlan was not present in the living room during this discussion, nor had he been at any time since Ms. Humburd entered the house. (Tr. at 17, 125). Ms. Harlan then entered the kitchen. (Tr. at 18, 126). At this point, Ms. Humburd overheard Ms. Harlan inform someone in the kitchen that Ms. Humburd was black. (Tr. at 18, C. Ex. 1). Virgil Harlan was in the kitchen with Ms. Harlan. (Tr. at 18, 125). He told his wife to tell Ms. Humburd that they were not going to mix races. (Tr. at 126). Ms. Harlan refused to do this. (Tr. at 126). There is no evidence in the record to indicate whether or not Ms. Humburd heard these latter statements.

14. Virgil Harlan then entered the living room and announced, in the presence and hearing of Ms. Humburd, her son, and Ms. Harlan, either that "We are not going to mix races" or that "We are not going to mix nationalities." (Tr. at 18, 126, C. Ex. 1). Regardless of the exact statement, both Ms. Harlan and Ms. Humburd clearly understood that the statement was intended to inform Ms. Humburd that child care was being denied by the Harlans to Ms. Humburd and her son because they were black. (Tr. at 19, 131). Mr. Harlan also stated that the Harlans' other child care customers might not be comfortable with Ms. Humburd's son being there. (Tr. at 69). Ms. Harlan made no response to these statements. Nor did she make any further statement of any kind. (Tr. at 19, 67-68, 131). Ms. Humburd stated "Okay. Thank you." and left with her son. (Tr. at 19).

15. Ms. Harlan would not care for any child to whom her husband strongly objected due to his or her race. (Tr. at 132). Ms. Humburd's child was within this category. (Tr. at 19, 69, 131, C. Ex. 1).

16. Virgil Harlan is a manic depressive and was one in September of 1984. (Tr. at 114-15). Due to this condition, Mr. Harlan tends to talk in a loud voice and in a very rapid manner, switching from one subject to another, when he becomes angry. (Tr. at 117-118). On the basis of medical advice, Ms. Harlan tries to avoid bringing up problems with her husband which would upset him. (Tr. at 118).

17. Ms. Harlan failed to respond to her husband's statements to Ms. Humburd because she did not wish to upset him. She also believed that the presence of Ms. Humburd's child in their home would have upset Mr. Harlan, i.e. "he wouldn't have let me take care of the child because he would have just drove me crazy with his hollering." (Tr. at 127).

18. It is clear from Ms. Harlan's testimony, cited above, that, despite her initial resistance, she had acquiesced, and would continue to acquiesce, to her husband's demand that Ms. Humburd's son be excluded from Ms. Harlan's child care business because of his race. The underlying reason for Ms. Harlan's tacit consent to and compliance with her husband's objection to the "mixing" of children of the black and white races at her child care business is her desire to not upset him because of his mental illness and the behavior which may result therefrom. (Tr. at 118, 127).

19. Ms. Humburd experienced several reactions to her rejection for child care at the Harlans' residence. She was angered by this rejection, although she did not express the anger to the Harlans. (Tr. at 29). She made several contacts which led to her retaining an attorney. (Tr. at 19). She discussed the situation with her parents immediately after she left the Harlans. She also discussed it with her siblings. (Tr. at 19-20). She became anxious about and developed an increased sensitivity, which was still present at the time of the hearing, to the possibility of racial discrimination against her personally and against her child. "[C]olor just seems to come into issue all the time now for some reason." (Tr. at 30). Ms. Humburd, age 38 at the time of the hearing, had never directly experienced race discrimination before September 16, 1984. (Tr. at 9, 28, 71). She had discussed this event on one occasion, shortly before the public hearing, with her doctor. (Tr. at 89).

20. From September 16,1984 to the time of the hearing, this incident has caused Ms. Humburd continuing distress, substantially beyond the usual concern of a parent, about the kind of care her child is receiving or would receive from child care providers. (Tr. at 29-31). "[E]ven when I work to this day, I think about if my child is getting taken care of, you know. I don't trust everybody and anybody." (Tr. at 29). During her subsequent search for child care, she repeatedly asked child care providers, who she either knew were white or whose race she did not know, whether it would be a problem if her son was black. (Tr. at 30, 86-88). Once, for example, when she was assured by a child care provider that her son's race would be no problem, although the provider had no black children in its care, she decided to not follow up because of the combined concerns of potential race discrimination and cost. (Tr. at 30, 84).

21. Ms. Humburd sought child care services because she had learned the previous Friday that she had been accepted for employment by Merry Maids, a housecleaning service. (Tr. at 11, 20-21). This job was located near the Harlans. (Tr. at 10, 13-14, 114). She was to begin her employment on September 17, 1984, the day after she visited the Harlans. (Tr. at 11). She was to work six hours a day, a thirty hour week, at a pay rate somewhere between $5.00 and $6.00 per hour. (Tr. at 21). Prior to being informed she was accepted for employment, she was trained by Merry Maids for the position. (Tr. at 142).

22. At the time she was informed she would begin work on Monday, September 17th, she was also informed by Merry Maids that she must have made arrangements to take care of her child prior to beginning work. (Tr. at 20, 58).

23. After her rejection for child care by the Harlans, Ms. Humburd did not have sufficient time to find another child care provider before Monday morning. (Tr. at 20). On Monday morning she contacted Merry Maids to inform them she could not report to work because she had no child care arrangements. (Tr. at 20). At this point, Merry Maids informed her that they would not employ her if she did not have child care arrangements because they needed her that day. (Tr. at 59).

24. Ms. Humburd would have been employed by Merry Maids for a maximum of four months if she had not been rejected as a child care customer by the Harlans. This would be the period from September 17, 1984 to January 17, 1985. Although she estimated that she would have been employed a maximum of two years, (Tr. at 23), this estimate is rebutted by her testimony on cross-examination concerning her actual work history. As of the date of hearing, Ms. Humburd had never been employed at any job for more than four months because she has been "going to school most of my life." (Tr. at 60). She had never been employed in any position prior to September 16, 1984. (Tr. at 38). Ms. Humburd did not reapply to Merry Maids in part because of her rejection by them due to lack of child care, and in part because she "went to school." (Tr. at 56). The only reasonable inference which can be drawn from this testimony is that Ms. Humburd would have left her housecleaning employment with Merry Maids after a maximum of four months, just as she left similar employment with another company, Daisy Fresh, in order to pursue her education. (Tr. at 60, 72-73).

25. At various times in 1984, Ms. Humburd contacted and applied for work at temporary employment services listed in newspaper classified ads and the telephone book in her search for work. (Tr. at 26-27). The evidence in the record is not sufficient to show whether or not Ms. Humburd applied with such agencies during the specific period from September 17, 1984 to December 31, 1984. (Tr. at 80-81). She did, however, make efforts to obtain work through in-person contacts during that period. (Tr. at 46-47). The evidence in the record is not sufficient to show whether or not Ms. Humburd obtained any employment during this specific period in 1984. (Tr. at 24,47.).

26. In 1985, Ms. Humburd made efforts to obtain work through employment agencies. (Tr. at 26, 53). There is not sufficient evidence in the record to establish whether or not Ms. Humburd obtained employment in the first half of 1985. During the latter part of 1985, Ms. Humburd obtained temporary work, but there is no evidence in the record to indicate who the employer was, how much Ms. Humburd was paid or what her hours were. (Tr. at 24, 48-49, 52). There is also not sufficient evidence in the record to provide a reasonable estimate of how much Ms. Humburd's earnings were for that year. (Tr. at 24, 50-51). The most that can be said is that her 1985 earnings were less than $4,000. (Tr. at 24, 51).

27. Evidence was introduced in support of the complaint to show earnings from Ms. Humburd's 1986 employment. (C. Ex. # 5, Tr. at 27-28, 47, 49, 51). Nonetheless, it is unnecessary to make findings concerning such earnings because they fall outside the time period for which Ms. Humburd is eligible for compensation. See Finding of Fact No. 24.

28. Although the record shows that Ms. Humburd has spent a very substantial amount of time engaged in post-secondary education, both by attending classes and by correspondence, from the time she obtained her G.E.D. in 1971 until approximately six and one-half months prior to the hearing, the evidence establishes no specific time periods during which it can definitely be said that Ms. Humburd attended school after 1978. (Tr. at 53, 56, 60, 73-76, 100). The last time she attended Area XI Community College was in 1978. (Tr. at 75). Ms. Humburd attended "AIB" in 1986 or 1987 for an unspecified period of time. (Tr. at 75). At some subsequent point, she attended the American School for Word Processing for an indefinite period ending at least six and one-half months prior to the public hearing. (Tr. at 59-60). Ms. Humburd has also received training at Des Moines Skills Center and through CETA for unknown periods of time. (Tr. at 76).

29. With the exception of a remark by Ms. Humburd deploring the paucity of jobs available from temporary services in 1985, (Tr. at 53), there is no evidence in the record on the job market and the availability of jobs for which Ms. Humburd was qualified for any time period since September 17, 1984.

30. At some time after September 17, 1984, Ms. Humburd was employed at Daisy Fresh, a house cleaning service. (Tr. at 71). There is no evidence in the record as to what year she was employed. (Tr. at 71). This employment ended sometime prior to a point six and one-half months before the hearing. (Tr. at 59- 60). The length of her employment did not exceed four months. (Tr. at 60). During that time she worked 30 hours a week at the pay rate of $4.00 per hour. (Tr. at 72).

31. Given the lack of time between her rejection at the Harlans and the beginning of her job at Merry Maids, and her desire to explore legal avenues to remedy her rejection by the Harlans, Ms. Humburd did not immediately seek other child care services on the night of September 16th. (Tr. at 20, 45). Ms. Humburd did, however, look for child care after September 16, 1984. (Tr. at 27). She would look for longer term child care arrangements only after she had obtained work in order to be able to pay for them. (Tr. at 99-100). Ms. Humburd did not have the financial means to make longer term child care arrangements during periods when she did not have immediate prospects for a job. During the latter part of 1984, for example, Ms. Humburd received Aid to Dependent Children payments to the extent of $289.90 per month and no child support payments from the father of her child. She also received less than $100.00 per month in food stamps. (Tr. at 81-83). Child care payments of $50.00 per week, without the immediate prospect of work, were beyond her financial capability. (Tr. at 44). During her work search at that time, she often made arrangements to pay friends on a temporary basis to care for her son. (Tr. at 46-47).

32. Ms. Humburd's testimony, with the exceptions noted below, was credible. In particular, her account of her telephone conversations with Ms. Harlan and the events at the Harlans' residence is more credible than Ms. Harlan's account in regard to the few vital points where they vary. Ms. Humburd's testimony about these events is more believable because of the obvious emotional impact which this incident had upon her. Also, Ms. Humburd's testimony conforms to the story given in her complaint, (C. Ex. 1), an affidavit which was signed by Ms. Humburd approximately five months after the incident at the Harlans' residence. In particular, it is difficult to believe that a person in Ms. Humburd's financial condition in 1984 would not inquire about the costs of child care prior to visiting the child care provider. Her testimony that she did make such inquiry is, therefore, simply more believable than Ms. Harlan's testimony to the effect that Ms. Humburd never made such inquiry. (Tr. at 121, 123).

33. Although Ms. Humburd's testimony on damage issues was generally credible, her testimony, to the degree it might be said to indicate that she looked for and would have worked a forty hour per week job while attending school in person, and not by correspondence, is simply not credible. Her testimony on this issue is so equivocal that it is not worthy of credence. (Tr. at 76). Also her testimony that she had a paper indicating that she would have worked at Merry Maids for two years is not credible in light of the failure, without explanation, to introduce this paper into evidence or to provide a detailed explanation of its contents, and the obvious self-interest of Ms. Humburd in expanding the back-pay period. (Tr. at 23). For the reasons stated in Finding of Fact Number 24, Ms. Humburd's statement that she would have worked for Merry Maids for two years is also not credible. Finally, although there were numerous instances where Ms. Harlan did not remember specific information requested, her testimony that she did not recall the specific information seemed credible.

34. Ms. Harlan's testimony, with the exception noted above, was generally credible. See Finding of Fact No. 32.