BEFORE THE IOWA CIVIL RIGHTS COMMISSION
ORLANDO RAY DIAL, COMMISSIONER; CRISTEN HARMS, and MIKE DE VOLDER, Complainants,
and
IOWA CIVIL RIGHTS COMMISSION,
VS.
FRIEDMAN MOTORCARS, LTD., MIKE FRIEDMAN, TIM MANNING, GARY FRIEDMAN, SCOTT
HENRY, PAT SULLIVAN and CHERYL RUBLE, Respondents.
FINDINGS OF FACT:
Jurisdictional and Procedural Facts:
1. On or before June 7, 1989, Commissioner Orlando Ray Dial filed his
complaint CP # 06-89-18956 alleging race, sex, and disability discrimination
in employment, which is prohibited by Iowa Code section 601A.6, and race
discrimination in public accommodation, which is prohibited by Iowa. Code
section 601A.7. (Complaint). The dates of alleged discrimination stated
in the complaint are "before, on, and after May 18, 1989." Official
notice is taken that June 7, 1989 is twenty days after May 18, 1989.
2. On November 17, 1989, Cristen Harms filed her complaint CP # 11-89-19422
alleging sex discrimination in employment, which is prohibited by Iowa Code
section 601 A.6. The last date of alleged discrimination stated in the complaint
is August 1, 1989. Official notice is taken that November 17, 1989 is ninety-eight
days after August 1, 1989.
3. On December 6, 1989, Mike DeVolder filed his complaint CP # 12-89-19466
alleging race and sex discrimination in employment and public accommodations,
which are prohibited, respectively, by Iowa Code sections 6OlA.6 and 601A.7.
He also alleges that he was subjected to retaliation which is prohibited
by Iowa Code section 601A.1l.The last date of alleged discrimination stated
in the complaint is July 31,1989. Official notice is taken that December
6, 1989 is one hundred twenty-eight days after July 31, 1989.
4. Fairness to the parties does not require that they be given the opportunity
to contest the facts officially noticed above.
5. These complaints were investigated. After probable cause was found,
conciliation was attempted and failed. Notice of Hearing was issued on October
23, 1990. The hearing was held on April 1-5, 1991.
Background:
6. Commissioner Dial's complaint was filed in response to information
provided by Mike DeVolder in May of 1989 concerning alleged discriminatory
practices at Friedman Motorcars, Ltd. (hereinafter "Friedman's")
and to the results of a "test" of that company's employment practices
conducted by two Commission investigators on May 18, 1989. (Tr. at 158,
171, 177, 182, 192). Commissioner Dial was selected as the Commissioner
to issue the complaint in accordance with a procedure whereby Commissioners
are selected on a rotating basis to file complaints when Commission staff
is aware of allegations of discrimination for which no complaints have been
filed. (Tr. at 171-72).
7. Complainant Cristen Harms, a female, was employed at Friedman's as a
Customer Relations representative from June 22, 1989 to on or about August
2, 1989. (Complaint; Tr. at 279, 304-05). She was hired by her supervisor
and office manager, Respondent Cheryl Ruble. (Tr. at 281, 786-88). Ms. Harms'
duties were to telephone customers who had either purchased or serviced
cars at Friedman's and ascertain whether they were satisfied. (Tr. at 264,
788). Her work area was in the main office near the service department.
(Tr. at 282). The main office was shared with Jackie Rice, Cheryl Ruble,
and a man named Oren. (Tr. at 283). For one hour a day, she would also work
in the receptionist cubicle on the showroom as relief for the receptionist,
Catherine Koch. (Tr. at 225, 282).
8. Complainant Mike DeVoider, a white male, was employed as a salesperson
selling new and used cars at Friedman's from April 12 to July 31, 1989.
(Complaint; Tr. at 83). Mr. DeVoider was supervised by new car sales managers
Mike Friedman and Scott Henry. He initially contacted the Iowa Civil Rights
Commission when he became aware of race discrimination toward black customers
and applicants for sales position. (Tr. at 97).
9. Respondent Friedman Motorcars Ltd. is a business engaged in the sales
and service of new and used cars. The company has been owned by members
of the Friedman family for many years. (Tr. at 465, 507, 630, 805). Initially,
the company, then known as Friedman Motors, was owned by Harold Friedman
and his brother. (Tr. at 465, 507). At some point, Mike and Gary Friedman,
sons of Harold Friedman, became owners of the business. Respondent Gary
Friedman bought out Mike Friedman and has been president and sole owner
of the business since 1975. (Tr. at 630, 805, 825-26).
10. Immediately below Gary Friedman in the chain of command are several
managers, i.e. the office manager, the business manager, new car sales manager(s),
used car sales manager, parts man, service and parts director, and service
man. (Tr. at 807). Of these, there are three positions in management which
deal with car sales: new car sales manager(s), used car sales manager, and
the business manager. (Tr. at 823-24). The supervision of salespersons is
done by the new car sales manager(s) and the used car sales manager. (Tr.
at 825).
11. The majority of the alleged discriminatory acts with respect to hiring
and harassment which were the subject of these proceedings were said to
have been committed by sales personnel on or near the showroom floor, in
their offices, or outside on the car lot in 1989. The period of April 12
to August 2, 1989 encompasses the Commission's test of May 18, 1989 and
the employment dates of Complainants Mike DeVoider and Cristen Harms. The
chain of command for the sales department for that period was:
12. Respondent Mike Friedman has been employed with Friedman Motors or
Friedman Motorcars, Ltd. during three different periods in sales positions.
For 11 years, until approximately 1975, he worked with Friedman Motors.
(Tr. at 775). He came back as a salesperson for Friedman Motorcars, Ltd.
from approximately April to July 1987. (Tr. at 776). The last time, he was
new car sales manager for Volkswagen and Saabs from late 1987 or early 1988
to at least the end of 1989 when his position, along with that of Respondent
Pat Sullivan, used car sales manager, was reduced to salesperson due to
high overhead and poor business. (Tr. at 83, 205, 337, 500, 507, 509, 511
582, 656, 698, 741-42, 750, 774, 809, 81415). He was terminated from employment
with Friedman's in January of 1991 by Gary Friedman. (Tr. at 738, 815).
During his last period of employment, he reported directly to Gary Friedman.
(Tr. at 492).
13. Respondent Scott Henry, who was still employed
at Friedman's as of the date of the hearing, started there in 1980 as business
and finance manager. (Tr. at 695-96). He has switched at various times from
new car sales manager to used car sales manager over his 11 years. (Tr.
at 697). He was new car sales manager for Toyota for at least the period
of Mike DeVolder's employment, i.e. April 12 to July 31, 1989. (Tr. at 83,
696-97). During that period, he reported directly to Gary Friedman. (Tr.
at 492).
14. Respondent Pat Sullivan, who was still employed at Friedman's as
of the date of the hearing, worked at Friedman Motors in sales positions
from 1958 to 1971. (Tr. at 464). After working elsewhere, he returned to
take the position of new car sales manager at Friedman Motorcars, Ltd. in
June of 1987. (Tr. a,%- 464, 496). He became used car sales manager in 1988
and remained in that position until at least the end of 1989 when he and
Mike Friedman were both reduced to sales persons. (Tr. at 511, 814-15).
During 1989, he reported directly to Gary Friedman. (Tr. at 492).
15. Respondent Tim Manning started with Friedman's as a service writer,
writing up tickets of repairs, in April of 1981. (Tr. at 580). In September
of 1983 be became finance manager. (Tr. at 581). In February of 1990, he
became new car sales manager, a position which he still held as of the date
of hearing. (Tr. at 581). In May of 1989, while finance manager, he was
supervised by Pat Sullivan, Scott Henry and Mike Friedman. (Tr. at
583-84).
16. Salespersons, other than Mike DeVolder, employed during the period
of April 12 to August 2, 1989 included Jeffrey Rich, Curtis Peters, and
Gene Cooksey, all of whom testified at the hearing. (Tr. at 236-37, 326,
335-36, 341, 644-45).
Application and Hiring Process for Salesperson Positions in 1989:
17. During 1989, Friedman Motorcars, Ltd. would periodically run newspaper
advertisements for salespersons to sell new and used cars in the Des Moines
Register. (Tr. at 206-07, 386,475-76, 590). The ad would usually give Friedman's
address and list a particular time for the potential applicant to come in.
(Tr. at 476) The advertisement would either indicate the potential
applicant was to see Mike Friedman in person or call him at a specific
telephone number listed in the ad. Both methods of contacting
him were used by potential applicants. (Tr. at 206-07). An advertisement
might run for up to ten days and yield from ten to fifty applicants. (Tr.
at 479-80, 591-92, 76061).
18. For at least a one year period, during his time as sales
manager, from the fall of 1988 to the fall of 1989, Mike Friedman
was in charge of handling initial applicant contacts and conducting
initial applicant interviews for the salespersons positions. (Tr.
at 99, 205, 207, 345, 474, 477, 620, 698, 719-20, 744, 811). It is more
likely than not that the actual period was up to eleven months longer,
beginning shortly after Mike Friedman was rehired in the fall of
1987 or spring of 1988 as a sales manager, a total of twenty-three
months. (Tr. at 474, 477, 742-43, 765). He handled at least "ninety-nine
percent" of initial applicant interviews during that period. (Tr. at
699). During this period only one or two initial interviews each were handled
by the other sales managers, Pat Sullivan and Scott Henry. (Tr. at 502).
It should also be noted that, during his previous periods of employment
with Friedman Motorcars Ltd. and Friedman Motors, he also had responsibility
for interviewing applicants for salesperson positions.
19. An individual who wished to apply for a salesperson position would
be given an application by the receptionist, or Mike Friedman or another
employee. The potential applicant would then fill out the application. (Tr.
at 207, 476, 699). The majority, but not all, of the applicants were interviewed.
(Tr. at 480, 505). The decision on who would be interviewed was made by
Mike Friedman. (Tr. at 505). After the initial interview was completed,
he would decide whether the candidate was interesting enough to discuss
with Pat Sullivan and Scott Henry. The three of them would then decide whether
to hire the applicant based on Mike Friedman's interview or to conduct a
further interview. (Tr. at 390, 475, 478, 50102, 756). If a second interview
was given, it would be conducted by two of these three sales managers. Afterwards,
they would decide whether to hire the applicant. (Tr. at 501-02).
20. There is a substantial turnover of salespersons at Friedman's. Fifteen
to twenty sales persons, and probably more, are hired by Friedman's in any
given year. A number also leave. (Tr. at 410, 484, 510, 59192). Because
of this turnover, there is a continuing search for qualified salespersons.
Normally, even if there is no hiring, applications are given out. (Tr. at
208). As car sales usually increase from the end of winter through the end
of summer, the number of salespersons may also increase to a maximum of
12 or 13 in the summer. (Tr. at 593). In the spring of 1989, 10 toll people
left sales positions at Friedman's. (Tr. at 205). Seven or eight salespersons,
all white males, were hired as their replacements. (Tr. at 206).
21. Although Friedman's has looked for applicants with prior
car sales experience, it has hired more than one salesperson who
had no previous car sales experience. (Tr. at 475-77, 484, 503-04,
590, 700, 743). Pat Sullivan, Mike Friedman, and Scott Henry consulted together
when making these hires of persons with no prior experience, as they did
with other hires. (Tr. at 503-04). See Finding of Fact No. 19. One salesperson
who was still employed in 1989, Curtis Peters, had worked at a farm, a gas
station, and various part-time jobs prior to being hired as a salesperson
by Bill Vestal, a former used car sales manager, in 1985. (Tr. at
644-45). Another salesperson, Mark Boyd, was hired by Mike Friedman and
employed for one week in March of 1989. Although he had sales experience
in other areas "on and off for ten years," he had only four months
prior experience in car sales. (Tr. at 385-87, 390). In July of 1990, Friedman's
hired James Sherman, whose total prior sales experience was six and one-half
months selling cars. (Tr. at 396, 401-02).
Alleged Disability Discrimination in Employment:
22. Commissioner Dial's complaint specifically alleged that Respondents
"treated . . . disabled persons . . . less favorably than . . . non-disabled
persons . . . [in] the consideration [and] hiring of applicants for the
salesperson position." (Complaint). On January 16, 1990, probable cause
was found to believe that disability discrimination had occurred in regard
to the consideration of applicants for employment. (Admissions). The Commission,
however, presented no evidence or argument in support of this allegation.
Therefore, this allegation must be dismissed.
Failure to Consider or Hire Blacks for Salesperson
Positions:
Direct and Circumstantial Evidence of Race Discrimination:
23. During and after the Spring of 1989, Mike
Friedman told Jeffrey Rich, a salesperson, that he did not want to hire
Blacks as salespersons. (Tr. at 327). He would also frequently refer to
Blacks as "niggers" and by other racial epithets which were overheard
by Mike DeVoider and Cathy Koch, the receptionist. (Tr. at 85 88, 204, 212,
215, '133).
24. On some occasions, Black applicants would be allowed to fill out
applications, but would either not be interviewed under circumstances where
white applicants were interviewed; or Mike Friedman would talk to them for
a very brief period of time while similarly situated white applicants would
be interviewed at greater length. (Tr. at 93-94, 142, 327-28).
25. On other occasions, Mike Friedman would tell Black potential applicants
that a job was not available or that it was filled, but would give white
potential applicants, who responded to the advertisements after the Blacks,
applications to fill out. (Tr. at 94-95, 357). On one of these later occasions,
a Black potential applicant asked if he could leave his resume or fill out
an application. He was told this would not be necessary. (Tr. at 95). No
Blacks were interviewed, hired, or employed as salespersons at any time
when Mike Friedman was in charge of interviewing at Friedman Motorcars Ltd.
(:Tr. at 96, 357, 506-07, 770). There is no evidence in the record of any
Black salesperson ever being employed at Friedman Motorcars Ltd. prior to
February 13, 1990. (Tr. at 523).
Number of Black Applicants:
26. There is some dispute concerning how many Black applicants there
were for sales positions in 1989. The greater weight of the credible evidence,
however, supports the conclusion. that there were at least three and probably
more Black applicants, including Bill Edwards, in the spring of 1989 alone.
27. On the one hand, some testimony of the Respondents presented a picture
of almost no black applicants. Mike -Friedman testified, that during the
twenty years when he was employed with either Friedman Motors or Friedman
Motorcars, Ltd., he had responsibility for interviewing potential employees
for sales positions. (it should be noted that Mike Friedman's total employment
with both entities, including the times when he did not have responsibility
for hiring salespersons, could not have exceeded fifteen years. See Finding
of Fact No. 12). He testified that, during the time when he had that responsibility,
a total of two Blacks, neither of whom were interviewed or hired, called
or came to the dealership to make inquiry about employment as salespersons.
(Tr. at 760, 766).
28. Sales manager Scott Henry maintained he was aware of less than five
or six Black applicants from 1980 to 1991, three of whom applied during
the year prior to the hearing. (Tr. at 717, 720).
29. On the other hand, Mike DeVolder testified that, in the Spring of
1989 alone, there were over three Black applicants, including Bill Edwards.
(Tr. at 9395, 98-99). Cathy Koch saw at least two Black applicants during
that period. (Tr. at 208-09). Jeffrey Rich's testimony indicates that he
recalls there being six Black applicants during his employment with Friedman's
which was essentially continuous from March 1987 to April or May of 1990
and then resumed from June of 1990 until the date of the hearing. (Tr. at
326-28, 340-42)..Two of these six applied and were hired after Mike Friedman
was no longer conducting interviews. (Tr. at 343, 353). See Finding of Fact
No. 12. More than one of the remaining four Blacks sought employment in
the Spring of 1989. (Tr. at 327-28).
The employment test:
30. Mike DeVoider had originally telephoned the Commission to complain
about race discrimination at Friedman Motorcars Ltd. after witnessing such
discrimination in hiring for salesperson positions and in the treatment
of Black customers. (Tr. at 97-98). At that time, Mr. DeVoider was not interested
in personally filing a complaint. Therefore, after being informed of these
incidents, Don Grove, the Commission's internal Administrative Law Judge,
was requested by lnga Bumbary-Langston, the Commission's Executive Director,
to listen to a tape recording of the Commission's interview of Mr. DeVoider
and to recommend appropriate action ' (Tr. at 158). It was decided that
a test be conducted to determine whether Mike Friedman considered race in
the treatment of applicants for salesperson positions. (Tr. at 159).
31. The test was originally designed to occur in two parts, separated
by at least a day. Part one utilized two male testers: Bill Edwards, a Black
male, and Karl Schilling, a white male. (Tr. at 159, 168, 177-78, 192).
Part two was to involve two female testers: one Black and one white. (Tr.
at 159). Part two was never carried out. (Tr. at 171). In essence, the test
called for the testers to observe what happened when they applied or attempted
to apply, through Mike Friedman, for a salesperson position at Friedman's
which was advertised in the newspaper. (Tr. at 155-56, 159, 182, 754). Both
male testers were employed as Civil Rights Specialists with the Commission.
(176-77, 191). Both were provided information on the automobile sales business
concerning such subjects as sales training, what would constitute a good
sales record, and salaries and commissions. (Tr. at 179,193). Both were
given pseudonyms to use as testers in order to avoid being identified as
Commission employees. (Tr. at 186-87)
32. Both testers were given personal profiles. (Tr. at 179, 193). Karl
Schilling's profile was designed to represent his character as being somewhat
less qualified than Mr. Edwards. (Tr. at 163,174, 180, 194). Mr. Schilling
was to have had six months car sales experience with a Chevrolet dealer
in Missouri. (Tr. at 193). His character's car sales performance was to
have been lackluster, i.e. two months in training and slightly below average
in sales at the end of six months. (Tr. at 194-196). His work background,
other than car sales, was to be substitute teaching and full time teaching.
(Tr. at 193).
33. Mr. Edwards' profile for his character, "Mr. Edmunds",
included ten months of prior car sales experience with a Chevrolet dealer
in Bloomington, Minnesota. (Tr. at 170, 180). He was ranked number 4 in
the sales force there and always made his draw. He sold a minimum of 10
cars per month. (Tr. at 180). (At Friedman's the management liked to see
sales-persons "at least hit 10" cars per month in sales.) (Tr.
at 592). His prior experience included approximately two years in retail
management at a shoe store. (CP. EX. # 3). In light of the minimum actual
prior car sales experience and sales expectations of salespersons employed
or hired at Friedman's during Mike Friedman's last period of employment,
it is clear this is a profile of a qualified applicant. See Finding of Fact
No. 21.