FRANK ROBINSON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

VS.

METRO PAVERS, Respondent.

FINDINGS OF FACT

Jurisdictional and Procedural Facts:

1. On August 21, 1986, the Complainant, Frank Robinson, filed his complaint CP # 08-86-15103 with the Iowa Civil Rights Commission alleging race discrimination in employment which is prohibited by Iowa Code section 601A.6. (Complaint). The last date of alleged discrimination stated in the complaint is July 7, 1986. Official notice is taken that August 21, 1986 is forty-six days after July 7, 1986. Fairness to the parties does not require that they be given an opportunity to contest this fact.

2. The complaint was investigated. After probable cause was found, conciliation was attempted and failed. Notice of Hearing was issued on May 23,1990. (Notice of Hearing). The hearing was held on August 9, 1990.

Background:

3. Complainant Frank Robinson, a black male, was employed by Respondent Metro Pavers, Inc. as a laborer trainee from May 12, 1986 to July 25, 1986. (Tr. at 7, 11, 43-44, 46; CP. EX. # 2; 5; R. EX. A; Complaint). His duties included such manual tasks as shoveling, leveling out the ground, and setting up forms for concrete. (Tr. at 13). He initially worked for Metro Pavers on a worksite near a bridge spanning Interstate 80 in Coralville, Iowa. He also worked on other sites. (Tr. at 12-13).

4. Respondent Metro Pavers, Inc. is a privately held corporation, fifty percent of which is owned by Kenneth Albrecht, President of the corporation. The remaining fifty percent is owned by Wayne Kempf, the General Superintendent of the paving crew. (Tr. at 87, 119-20). The principal business of Metro Pavers is concrete paving, i.e. the construction of streets, highways, and parking lots from Portland cement concrete. (Tr. at 87, 120).

5. Mr. Albrecht and Mr. Kempf have held their respective positions as President and General Superintendent since the company was incorporated in 1966. (Tr. at 87, 119). As of 1986, Mr. Albrecht handled the office work, dealings with other contractors, the plant, the truck drivers and the rough grade crew. (Tr. at 91, 101, 103, 120). Mr. Albrecht's duties did not require him to be at the -.vorksite more than five or six times a week. Unlike Wayne Kempf, Mr. Albrecht would not usually be involved with direct contact with the crew. (Tr. at 13, 45, 101-02).

6. In addition to his duties involving the general supervision of the worksite, Wayne Kempf did hiring of paving crew employees, including Complainant Robinson. (Tr. at 11, 91). He also had the authority to discharge employees, i.e. he discharged Mark Stastny for fighting with a co-worker. (Tr. at 67). He was also Metro Pavers, Inc.'s equal employment opportunity (EEO) officer. (Tr. at 103). He had no training for his EEO duties other than reading EEO
manuals. (Tr. at 103-04).

7. The immediate supervision of the paving crew, including Complainant Robinson, was usually handled by Wayne Kempf's son, Nick Kempf. (Tr. at 101-02). The paving crew consisted of approximately eight to twelve people, including laborers, laborer trainees, operators, form setters and cement finishers. (Tr. at 88, 92). Laborers' and laborer trainees' duties would include such duties as unloading trucks. preparing the grade, setting forms, vibrating concrete, and striking off the concrete. (Tr. at 90).

8. Between May 1 and July 31, 1986 inclusive, Respondent Metro Pavers, Inc. employed twenty-nine white, three Black and two Hispanic employees. (Tr. at 14; CP. EX. # 5). The three Black employees during this period, consisting of Complainant Robinson, Edward Browning, and Robert Williams, were all employed as laborer trainees on the paving crew. (Tr. at 14; CP. EX. # 5). One white employee and one Hispanic employee were also employed as laborer trainees at this time. (Tr. at 121; CP. EX. # 5).

Equal Pay:

9. Complainant Robinson alleged that, because of his race, he was "paid less per hour than others doing similar work who had worked as many hours as I." (Complaint). Complainant was paid at the rate of $6.95 an hour when working near the bridge spanning Interstate 80. The record does not reflect how much he earned at other locations other than to indicate it was a "different" pay rate without specifying whether it was higher or lower. (Tr. at 1 1).

10. Complainant Robinson was paid less than "regular workers." (Response to Complainants' Allegations). This, however, Was because he was a trainee. (Tr.at 43-44,46,98). Trainees were employees who were hired under special Department of Transportation program requirements directed toward improving the employment opportunities of specified groups, e.g. minorities, persons with a low standard of living, or persons with a history of chemical dependency. (Tr. at 98,122). Trainees were given pay increases after 1050 hours of work. (Tr. at 98, 12324). Frank Robinson had not been employed for that length of time at the time he left the employment of Metro Pavers, Inc. (Tr. at 98; CP. EX. #2; #5; R. EX. A). There is no evidence in the record specifying the pay rate of any employee, whether a "regular worker" or a trainee, other than Complainant Robinson.

Racial Harassment:

11. Beginning with his first week of employment, Complainant Robinson heard Wayne Kempf and his co-workers repeatedly use racially derogatory names such as "buckwheat" and "nigger" in reference to Blacks, including himself. (Tr. at 17, 19, 37, 45-47, 68-71). In addition to using these names in the presence of Complainant Robinson and his coworkers, Mr. Kempf laughed when they were used by coworkers. (Fr. at 17, 19). The use of these names by co- workers continued on an almost daily basis regardless of whether or not Wayne Kempf was present. (Tr. at 23, 45-46).

12. On one occasion, when a company truck got stuck in a ditch, Wayne Kempf stated words to the effect of "[w]e'll ... have to go down and nigger it out." (Tr. at 30). On another occasion, approximately two months after Complainant Robinson began work, Wayne Kempf approached Mark Stastny, a coworker, and stated "Watch this." Kempf then said to Complainant Robinson, who was approximately thirty feet away, "Frank come over here and help Mark and me nigger these forms out." Complainant Robinson looked at the ground, slowly shook his head, came to Stastny and Kempf, and helped lift out the forms. (Tr. at 68-69). Wayne Kempf then told Complainant Robinson "You know what 'nigger' means, don't you Frank? ... It means to get in there and work." (Tr. at 77). Wayne Kempf acknowledged he may have used the phrase "nigger head" in the presence of Complainant Robinson to refer to a small boulder. (Tr. at 106, 115-16). At least one employee heard him use this phrase outside of the presence of the Complainant. (Tr. at 165).

13. Racial jokes were also common at Respondent Metro Pavers'worksites. The frequency of these jokes increased as the hiring of minorities increased. (Tr. at 70, 72-73, 75, 78-79). It was not unusual for these jokes to be brought up by management or crew members when minority employees walked by. (Tr. at 76). These jokes were heard by Complainant Robinson. (Tr. at 70-71). Racial jokes were still tolerated at Metro Pavers, Inc. as of July of 1986, when Mark Stastny was terminated from his employment. (Tr. at 71-72; CP. EX. # 5).

14. Complainant Robinson tried to resolve this situation by individually asking each of his co-workers who used racially derogatory names in regard to him to quit doing so. (Tr. at 18-21, 47).

15. Within the last two weeks of his employment, Complainant Robinson brought the racial remarks and name calling to the attention of Beverly Burrell, an employee of Job Service of Iowa who had originally helped him obtain employment with Respondent Metro Pavers, Inc. (Tr. at 9, 49). Ms. Burrell then either talked to Wayne Kempf or Kenneth Albrecht or both of them about these complaints. She then called Complainant Robinson and told him that Wayne Kempf said to return to work. (Tr. at 15, 26-27, 9596,104).

16. On Complainant Robinson's return to work, he informed Wayne Kempf of his concerns in regard to the use of racial epithets by Mr. Kempf and his coworkers. (Tr. at 19, 26, 27). Nir. Kempf informed him that these statements had been made "in fun" and he would not hear them again. (Tr. at 19-20, 50).

17. Despite this assurance, Wayne Kempf still continued to use his previous racist references to Blacks although with less frequency. (Tr. at 30-31). He also began to apply a new appellation, "beanboiler," to Complainant Robinson and another Black employee Edward Browning. (Tr. at 22, 48-49). This appellation was only applied to Black employees. (Tr. at 22, 35, 37). Complainant Robinson interpreted this remark to mean that Blacks could only afford beans to eat. (Tr. at 35). It should be noted that Complainant Robinson had previously heard Mr. Kempf refer to an Hispanic employee as "bean dip." (Tr. at 37).

18. Beverly Burrell had provided Complainant Robinson with the names of two people from the Iowa Department of Transportation (IDOT) to contact in the event the racial harassment continued. (Tr. at 27). When the name calling and jokes continued, he contacted them and told them of his experiences. (Tr. at 27). James Ransom, an IDOT employee, spoke to Kenneth Albrecht and Wayne Kempf about Complainant Robinson's concerns. (Tr. at 96, 112, 132, 135). He visited the work site and talked with Wayne Kempf there. (Tr. at 96, 136). Kenneth Albrecht did not accompany him to the work site. (Tr. at 135-36). The record does not reflect whether or not he talked to co-workers while conducting his investigation or whether, if he did, he talked to them in the presence of Wayne Kempf. (Tr. at 92, 136, 152). After Ransom visited the worksite, he stated that I DOT was not going to pursue the investigation further. (Tr. at 136). The record does not reflect the reason for this decision.

19. The greater weight of the evidence indicates that either no investigation of Complainant Robinson's allegations was done by Respondent Metro Pavers, (Tr. at 114), or that, if one was done, it consisted of interviews of coworkers conducted by and in the presence of Wayne Kempf, who was a perpetrator of racist remarks and comments, and an official with authority to discharge any coworkers interviewed. (Tr. at 116, 151). See Findings of Fact Nos. 6, 11, 12, 17. There was no meeting or other communication to employees to discourage the making of racial remarks or jokes. (Tr. at 1 16-17, 166).

20. Shortly after Complainant Robinson brought his concerns to the attention of Wayne Kempf, Beverly Burrell, and IDOT, Wayne Kempf required the Complainant and Edward Browning, both of whom were Black, to break up pavement with a jackhammer and load the chunks of pavement on to a truck by hand for two hours. (Tr.at 27-28).Although a breaking machine is normally used for this operation, the operator of that machine told Complainant Robinson that Wayne Kempf told him to take his time about arriving at the worksite on that day. (Tr. at 28, 15657).

21. The totality of the circumstances detailed above amply demonstrates that Complainant Robinson was subjected to racially discriminatory and abusive conduct by co-workers and management of Respondent Metro Pavers, Inc. which was so severe and pervasive as to result in a racially hostile working environment. Respondent Metro Pavers, Inc. knew or should have known of this harassment and, in fact, participated in the harassment through the actions of owner and general superintendent Wayne Kempf. No sufficient attempt to investigate or remedy this situation was made by Metro Pavers, Inc.

Constructive Discharge:

22. On July 25,1986, Complainant Robinson started to drive to work at Respondent Metro Pavers, Inc. (Tr. at 34). He did not make it to work. He returned to Cedar Rapids because he could no longer withstand, the name calling, jokes, and other racial abuse. (Tr. at 34-36, 50). He had repeatedly attempted, without success, to resolve the situation through a variety of means short of quitting his job, including talking to co-workers, Beverly Burrell, representatives of IDOT, and Wayne Kempf. (Tr. at 36-37). Complainant Robinson was subjected to a racially hostile working environment which any reasonable person would find so intolerable that he would feel compelled to resign. Complainant Robinson involuntarily quit his employment with Respondent Metro Pavers, Inc. because of those working conditions.

Credibility:

23. Complainant Robinson was a credible witness. He did show some nervousness which can be explained by his having testified on only one prior occasion. (Tr. at 7). His testimony was internally consistent and plausible with regard to all material facts. Although Complainant Robinson has a financial interest in the outcome of this case, the Commission does not believe his testimony was affected by that fact. He was aware of the seriousness of these proceedings and of his oath to speak the truth.

24. Mark Stastny was a credible witness. Mr. Stastny acknowledged that he had been discharged by Wayne Kempf, but asserted he would not let this incident affect his testimony. Although his testimony was viewed with caution because of this incident, it was internally consistent and plausible with regard to all material facts. It was also consistent with the greater weight of the other credible evidence.

25. Max Bachman was a credible witness. He is Complainant Robinson's former father-in-law. Nonetheless, his testimony also was internally consistent and plausible with regard to all material facts. It was also consistent with the greater weight of the other credible evidence.

26. Wayne Kempf was not a credible witness. He originally denied making racial remarks or using the phrase "nigger-toe" or "nigger-head" in Complainant Robinson s presence. He was then successfully impeached with his deposition testimony acknowledging that he may have used "nigger head" in Complainant Robinson's presence. (Tr. at 95,105-06, 115-16). His testimony concerning whether or not he had met with the paving crew to discuss whether racial remarks had been made to Complainant Robinson was initially evasive. (Tr. at 112-114). He eventually answered that he had, and was then impeached by his deposition testimony which indicated he had not. (Tr. at 113-14). A possible explanation for this false and evasive testimony in regard to material facts may be found in Mr. Kempf's one-half ownership of Respondent Metro Pavers, Inc. See Finding of Fact No. 4.

27. In addition to this, Mr. Kempf behaved in an inappropriate manner during the hearing. During the course of Complainant Robinson's testimony, at a point after Complainant Robinson had testified he was nervous, Mr. Kempf persisted in loudly rapping his pencil against the top of the wooden conference table. It is the Administrative Law Judge's impression that this was not a nervous habit but was being deliberately done to disrupt Complainant Robinson's testimony. It became necessary to interrupt Complainant Robinson's direct examination in order to ask Mr. Kempf to cease this behavior. (Tr. at 34). Such behavior indicates a lack of appreciation of the serious nature of these proceedings and, by implication, of the oath to tell the truth which is an inherent part of the proceedings.

28. With some exceptions, the testimony of Wayne Kempf is cited in support of a finding of fact primarily when it constitutes an admission against the interest of the Respondent or when supported by other credible evidence.

29. Kenneth Albrecht's testimony on pay issues seemed credible. However, much of Kenneth Albrecht's testimony concerning Frank Robinson's complaints to Beverly Burrell and the Iowa Department of Transportation about racial remarks is inherently implausible. It may have been affected by his financial interest in this matter. See Finding of Fact No. 4. His testimony on this issue could be summarized as follows:

a. Kenneth Albrecht never heard Wayne Kempf use the terms "beanboiler" or "beanpicker." These words are not in Wayne Kempf's vocabulary. (Tr. at 139).

b. Complainant Robinson complains to Bev Burrell about being called "beanboiler" or "beanpicker" by Wayne Kempf. She relays this complaint to the Iowa Department of Transportation ([DOT) by telephone. James Ransom, an employee with IDOT, calls Albrecht to report Ms. Burrell's phone call. (Tr. at 132). Neither Ms. Burrell nor Ms. Ransom indicate Complainant Robinson has complained about any other term or racial remark other than "beanboiler" or "beanpicker." (Tr. at 133).

c. James Ransom calls Albrecht and requests he investigate Robinson's complaint. (Tr. at 132). Albrecht informs Wayne Kempf, and, subsequently, Complainant Robinson, about what Ransom has said. Wayne Kempf, as EEO Officer, is placed in charge of the investigation of his own alleged actions. (Tr. at 133). Interviews with employees are conducted in Kempf's presence at IDOT's insistence. (Tr. at 151).

d. At a meeting with Kempf and Albrecht, Complainant Robinson apologizes to Kempf for having complained to Burrell. He states that the situation was "[B] lown all out of proportion, Ken. That lady misunderstood me. I'm having family problems." Robinson gives no explanation of what the misunderstanding was or how these "family problems" fit into his having complained to Ms. Burrell. (Tr. at 134). Mr. Albrecht then advises Complainant Robinson to see him if he feels this way and to say a few words to anyone who makes inappropriate remarks to "put them in their place." (Tr. at 134).

e. Mr. Albrecht writes to Mr. Ransom giving this explanation of what happened. No copy of this letter is introduced into evidence. (Tr. at 134).

f. After Kenneth Albrecht writes this letter, James Ransom visits the site.

30. It is simply not believable that Complainant Robinson would complain only about the "beanboiler" remarks, that he would apologize for having complained, that he would state the situation was "blown out of proportion," that he said Ms. Burrell had misunderstood his concerns, or that he would state unspecified "family problems" had anything to do with his bringing his concerns to Beverly Burrell or IDOT. It also seems unlikely that IDOT would insist that Kempf be present when employees are interviewed about statements Kempf allegedly made. Also, much of this testimony is contradicted by the more credible testimony of Complainant Robinson, e.g. that he complained about a variety of racist remarks he had heard, and that the "beanboiler" comments by Wayne Kempf did not begin until after he complained to Ms. Burrell and Wayne Kempf. See Finding of Fact No. 17. Finally, Kempf's admission that there was no investigation of Robinson's complaints effectively contradicts Albrecht's testimony to the contrary. (Tr. at 114).

31. The testimony of Charles Ford is credible, but entitled to little weight insofar as employment practices in 1986 as he was not employed by Respondent Metro Pavers, Inc. at that time and had not been employed there since the 1960's.

32. The testimonies of Jim Seelman and Bill Simon were viewed with some caution as both are still employed with Respondent Metro Pavers, Inc. and under the supervision of Wayne Kempf. (Tr. at 153, 161-62). Although both testified that they worked at some time with Complainant Robinson or on the same crew during his employment, there is no evidence showing precisely what length of time they did work with him or in his presence. (Tr. at 154, 162-64). Mr. Simon, for example, would shift from crew to crew and specialized in sawing concrete as he moved from one crew to another. (Tr. at 155-56). An employee list for May 1986 through August 1986 gives his position title as "carpenter" as opposed to the "laborer" or "laborer-trainee" position titles assigned to Complainant Robinson and Mark Stastny. (CP. EX. #5).Although Mr.Seelman testified he was a "laborer" at that time, the same employee list indicates he was then a "paver operator." (CP. EX. # 5). This would be an important difference as paver operators operate paving equipment and would not be engaged in laborer duties. (Tr. at 90). All of these factors adversely affected the weight given to their testimony asserting that Wayne Kempf did not make racial remarks in the presence of Complainant Robinson.

Back Pay:

33. For at least part of his employment, Complainant Robinson was paid at the rate of $6.95 per hour. See Finding of Fact No. 9. An examination of his work record, as given in Respondent's Exhibit A, indicates that he worked an average of 39.75 hours per week computed as follows:

(Total Hours)/(11 weeks) = 437.25/11 = 39.75 hours per week. It should be noted that although Complainant Robinson's hours varied from week to week, with the exception of the time he missed work to talk to Ms. Burrell, the harassment he received did not result in him missing work. (Tr. at 31).

34. Complainant Robinson found another position in November or December of 1986. (Tr. at 52). There is no evidence which would indicate he failed to mitigate his damages by not seeking work. What evidence there is on this issue indicates that he did so. (Tr. at 52). There is also no evidence in the record indicating the amount of interim earnings Complainant Robinson had, if any.

35. Construction work normally ceases on or about November 15th of each year. (Tr. at 130). Using this date as an end date for Complainant Robinson's employment results in the following calculation of back pay for the sixteen weeks from July 25, 1986 to November 15, 1986: $6.95 per hour X 39.75 hours per week X 16 weeks = $4,420.20 gross back pay.

Emotional Distress:

36. Complainant Robinson suffered serious emotional distress and mental anguish as a result of the racial harassment he endured at Metro Pavers, Inc. He initially responded to racial slurs by shaking his head and continuing to do his job because he needed the job to care for his family and to make payments on his house, payments which were already in arrears at the time he took the job and remained so throughout his employment. (Tr. at 18, 50-51). As time went on, he had to weigh the cost of continuing to endure the harassment against the cost of losing his house and means of support for his family. (Tr. at 32, 33, 34). Although he was making "headway" in catching up with payments on his house during his employment at Respondent Metro Pavers, Inc., he lost the house once his employment there ended as he did not have another position lined up. (Tr. at 33, 34, 36, 54). It is clear that Complainant Robinson's constructive discharge from Respondent Metro Pavers, Inc. caused him substantial economic loss. See Findings of Fact Nos. 33-35.

37. Complainant Robinson was hurt, offended, and angered by the use of racial slurs such as "buckwheat" and "nigger" on the job sites by Wayne Kempf and others which caused him a great deal of stress. (Tr. at 23, 24, 31-32, 35, 37). He noticed how, once other employees saw Mr. Kempf using racial names, they would begin to use them. (Tr. at 37). Complainant had intended to stay with Respondent Metro Pavers, Inc. as he enjoyed learning new tasks such as cement finishing. (Tr. at 24). Nonetheless, once Wayne Kempf called him and Edward Browning "beanboilers," which Complainant viewed as a substitute for other more blatant racial terms, he began to seek other employment as it was clear the harassment wasn't going to end. (Tr. at 25, 27, 35, 36).

38. On July 25, 1986, after he returned to Cedar Rapids, Complainant Robinson went to his uncle, Charles Ray, who had raised him after his father died, and explained to him he could not continue working because of the harassment he suffered at Respondent Metro Pavers, Inc. (Tr. at 32, 33). During this conversation, Complainant Robinson cried. (Tr. at 32). Complainant Robinson discussed this situation with Mr. Ray for over an hour. (Tr. at 33).

39. When Complainant Robinson told his wife that he had left his employment, they got into an argument as she thought he should have stayed with the job. She eventually moved out and they were divorced. (Tr. at 35-36).

40. Complainant Robinson's despair was also visible to his father-in-law, Max Bachman. (Tr. at 60-61). Mr. Bachman could see Complainant Robinson was very upset by the use of racial terms at Respondent Metro Pavers, Inc. and by the loss of income he sustained when he left. (Tr. at 59-61). It also affected him in other ways. At one point, Complainant Robinson told his wife, "I can't talk to Max, I don't have a job." (Tr. at 63).

41. In light of the severity and duration of the distress suffered by Complainant Robinson due to the discriminatory actions of Respondent Metro Pavers, Inc., an award of ten thousand dollars ($10,000.00) would be full, reasonable, and appropriate compensation.

Attorney's Fees:

42. During the course of the hearing, Respondent Metro Pavers, Inc. conceded the reasonableness of the attorney fees, expenses and advances in the total amount of two thousand three hundred forty-four dollars and ninety cents ($2,344.90) sought by Complainant Robinson for the period ending on August 9, 1990 inclusive. Respondent also indicated it would not ask Complainant's counsel "to justify his hourly rate and his hours" in regard to that fee request. Therefore, that amount should be awarded.

43. Complainant Robinson has also asked for an additional five hundred dollars ($500.00) in fees for research and preparation of his brief. At this point it is unknown whether Respondent Metro Pavers, Inc. will stipulate to or dispute that amount.