RACHEL HELKENN, Complainant,

VS.

EVCC CORP. d.b.a. ECHO VALLEY COUNTRY CLUB

and

RACCOON VALLEY INVESTMENT COMPANY,

Respondents.

CP # 06-86-14840

FINDINGS OF FACT

Jurisdictional Facts:

1. The Complainant, Rachel Helkenn, filed a verified complaint CP # 06-86-1480 with the Iowa Civil Rights commission, on June 19, 1986, alleging violation of Iowa Code Chapter 601 A by discrimination on the basis of age in the termination of her employment, which filing was within the statute of limitations. She also alleged, in a subsequent amendment to the complaint, dated August 4, 1987, that she was "treated differently than younger waiters and waitresses by being assigned more and different job duties and ... being made to wear uniforms while younger waiters and waitresses could wear sports clothing and shorts." The complaint was investigated. After probable cause was found with respect to the allegation of age discrimination in termination, conciliation was attempted and failed. No jurisdiction was found in regard to the allegations concerning differing job duties and uniforms. All of these facts were admitted by Respondents. (See Request for Admissions by Respondents; complaint and amendment). Notice of Hearing was issued on February 24, 1989.

Amendment of Complaint at Hearing:

2. During the course of the hearing, the complaint was amended, without objection, to delete Coppola Enterprises as a Respondent and to substitute Raccoon Valley Investment Company. (Tr. at 229-230).

Background and Qualifications of Complainant Helkenn:

3. Rachel Helkenn, the Complainant, was hired as a part-time banquet waitress at Echo Valley Country Club (hereinafter "Echo Valley") by Dennis Navin, who was then assistant manager for the Food and Beverage department, on July 25, 1985. (Cp. Ex. 9; Tr. at 4-5, 25- 27). Since high school, she had accumulated a total of three to five years of experience as a waitress prior to her employment with Echo Valley. (Tr. at 27). Prior to her hire there, she had been employed full-time in positions ranging from cosmetologist to respiratory therapy technician. (Tr. at 25). She obtained part-time employment at Echo Valley in order to have more time to spend with her children. (Tr. at 26).

4. From her hire until April of 1986, Ms. Helkenn worked only in the Banquet Room. (Tr. at 29, 45). This was a formal dining area, located in the upper floor of the Club, which was used for banquets throughout the year. After that date, she also worked in the Terrace Room. (Tr. at 6, 46). The Terrace Room was an informal dining area, located downstairs, which provided sandwiches, drinks and snacks to golfers during the golfing season. (Tr. at 6, 29, 45, 97, 99).

5. Dennis Navin supervised the Complainant from the time of her hire until he left on May 9, 1986. (Tr. at 6, 11). Throughout this time, she was a punctual employee who had no difficulty with tardiness, and who was willing to come in on short notice when other employees had canceled or not come in at their scheduled times. (Tr. at 7, 8, 9-10). She was "very good" in providing service to customers and in performing her "side work" or preparatory work for banquets or for dining in the Terrace Room. (Tr. at 7-8). During the time from her hire until at least May 9, 1986, Rachel Helkenn acted as a "trained, experienced and a loyal employee" who was "extremely dependable." (Cp. Ex. 1; Tr. at 10, 14).

6. Rachel Helkenn was discharged on May 22, 1986 by Ryan Dotson, Director of the Food and Beverage Department. (Complaint; R. Ex. A). She was 42 years old as of the date of her discharge. (Tr. at 78).

Management Changes at the Echo Valley Country Club:

7. During the last months of the Complainant's employment, management changes were effected at Echo Valley. In January of 1986, the incumbent manager, James Hutchison voluntarily left to assume a new position elsewhere. (Tr. at 12, 231). A new manager, James Corwin, age 39, was hired at approximately that time. He remained in that position until June of 1987. (Tr. at 12, 213, 234). A new director of the Food and Beverage area, Ryan Dotson, age 40, was hired in late February or early March 1986. He left Echo Valley in August of 1986. (Tr. at 198). Dennis Navin, who had been assistant manager in charge of Food and Beverage, voluntarily left employment with Echo Valley on May 9, 1986. (Tr. at 11). There was some overlap in time between the management of Mr. Navin and Mr. Dotson. (Tr. at 13).

8. Ryan Dotson had the responsibility for hiring, firing, staffing, training and evaluating waiters, waitresses and other personnel in the Food and Beverage area. Jr. at 198). Among those he supervised were both seasonal employees, who were temporary part-time employees for the summer, and permanent part-time employees, who were employed throughout the entire year. (Tr. at 32-33, 95- 96, 198). Rachel Helkenn was such a permanent part- time employee. (Tr. at 32-33, 96).

9. On May 11, 1986, a staff meeting was held at Echo Valley during which Mr. Corwin and Mr. Dotson were officially introduced as the management to the Food and Beverage staff. (Tr. at 36, 38-39). At that time, the employees were informed that changes would be made and that any of the employees could be replaced. (Tr. at 37). The employees present, which included permanent part-time employees, were specifically reminded that Echo Valley went to Drake University every spring to recruit students and that they could be replaced by these students. (Tr. at 36-37, 94-95). Although no reference to age per se was made at this meeting, reference to replacement by Drake students was made. (Tr. at 94-95, 96). Rachel Helkenn was present at this meeting and heard these statements. Jr. at 36-37).

10. The nature of changes to be made included such matters affecting the Food and Beverage staff as restricting use of the company telephone for personal calls, requiring employees to check with management when they took meal breaks, requiring employees to refer to Ryan Dotson as "Mr. Dotson," and modifying the way tables were set and food prepared and served. (Tr. at 41,200-01,216). These changes were seen by Mr. Dotson as necessary to end "the loose-knit, very unprofessional way that everyone was carrying themselves." (Tr. at 215- 26). During the course of instituting these changes, there was some resistance to them by employees. (Tr. at 13, 190, 201-02). Mr. Dotson thought that this resistance was especially prevalent among longer- term employees, sixty or seventy per cent of whom he believed were resisting the changes. (Tr. at 201-02). It was a practice of Dotson's and Corwin's, when they became aware of resistance or perceived resistance by an employee, to write an informal note indicating the problems they had with the employee. (Tr. at 202).

Comments by Mr. Dotson and Mr. Corwin Indicating an Age Preference In Regard to Food and Beverage Employees:

11. Mr. Corwin made comments in the presence of Marilyn Bruce to the effect that he preferred bosomy college age waitresses. (Tr. at 156). Mr. Corwin and Mr. Dotson made similar comments concerning age and certain parts of the body which led Natalie Phelps to conclude they preferred employees in the nineteen to twenty-five age group. (Tr. at 135-36). Emma Thomas heard them indicate that, in her words:

They wanted younger girls because they felt like if they had younger girls, like if they sent them out on the booze cart, that the golfers would get to looking at the young girls with their shorts on and they would buy more drinks and that would make more money for them.

(Tr. at 183).

12. Marilyn Bruce was also informed by Helen Stiffler that Ryan Dotson had told her, when she inquired as to why there weren't more Drake students at Echo Valley, that they had interviewed at Drake but had not found any young, good- looking girls. (Tr. at 157, 159). This last statement was properly objected to as hearsay by the Respondents. (Tr. at 157). If this statement attributed to Ms. Stiffler was the sole statement in the record concerning comments by Dotson expressing an employment preference for young, attractive waitresses, it would be entitled to little weight. Nonetheless, given the testimony of Ms. Bruce, Ms. Phelps, and Ms. Thomas indicating similar statements by Dotson and Corwin, it is more likely than not that this statement was made and is entitled to some weight on the issue of whether an age preference was in force for Food and Beverage personnel at Echo Valley during the time of Mr. Dotson's management.

Ages of Food and Beverage Employees Discharged, Hired, and Retained During Mr. Dotson's Management:

13. During the course of Mr. Dotson's management of the Food and Beverage Department, three employees were discharged. These employees and their ages at time of discharge were: Rachel Helkenn, age 42; Marilyn Bruce, age 48; Linda Svec, approximately 40. (Tr. at 24, 33, 87, 102, 148- 49, 155, 165, 171). All of these employees were permanent part-time employees. (Tr. at 33).

14. The permanent part-time employees in Food and Beverage, in addition to the three employees discharged, and their approximate ages or age ranges were, as of 1986: Helen Stiffler, 60s; Joyce Wessel, 41; Fran Morgan, 35-36; Melissa Davey, 20s; a "Carol", age 18 or 19; Walt Cramer and Colleen Shafer, both of whom were in their late 30s or older; Steve Purcell and Kristi Allison, neither of whose ages are reflected in the record. (Tr. at 33, 50, 87, 102, 117, 133- 34, 147, 165, 171-72, 189).

15. Out of these twelve employees, at least eight were in their late thirties or older. Of these eight, three were discharged and four, Colleen Shafer, Helen Stiffler, Fran Morgan, and Walt Cramer, quit during Dotson's management. (Tr. at 126, 129, 130, 172). Of these four, Colleen Shafer, Fran Morgan, and Helen Stiffler informed their co-workers that they quit their jobs in reaction to the terminations of Ms. Helkenn, Ms. Bruce, and Ms. Svec because these terminations led them to believe that they would also be discharged. (Tr. at 129, 134, 171). The record does not indicate why Walt Cramer left.

16. After the time when Rachel Helkenn was terminated, Echo Valley hired new and retained previously employed seasonal Food and Beverage employees, including waitresses, who were significantly younger and less experienced than the complainant and the other discharged employees. (Tr. at 134,156,161-62,164,172, 192). The retained employees included recent hires, of approximately twenty to twenty-five years of age, who the three discharged employees had trained. (Tr. at 156, 161, 162, 171). These newly hired and retained inexperienced younger employees, who included Drake University students, took over the waitressing duties of the discharged employees. (Tr. at 134- 35, 161). The inference of age discrimination, which arises from the hiring and retention of inexperienced young employees while experienced older employees were discharged, is strengthened by the account of Marilyn Bruce, a nine year employee at Echo Valley and the oldest employee discharged, who, upon inquiring what was the reason for her discharge, was told by Ryan Dotson only that "You don't fit into our plan." (Tr. at 149, 155).

17. Although Helen Stiffler and Fran Morgan eventually returned to work at Echo Valley, after Mr. Dotson and Mr. Corwin left, the net impact of these terminations, retentions, and hires in 1986 was that an increasingly youthful workforce was coming into being in the Food and Beverage Department at Echo Valley. (Tr. at 88, 127, 136). See Findings of Fact Nos. 13-16.

18. It was Echo Valley's annual practice, even before the management of Mr. Corwin and Mr. Dotson, to recruit at Drake University and to hire seasonal help, largely composed of college students, for the Food and Beverage and other areas. (Tr. at 32, 95, 164-65, 192). Nonetheless, it is appropriate to conclude that, after the Complainant's discharge, persons significantly younger and less experienced than the Complainant were hired or retained as Food and Beverage employees, because (a) these seasonal employees, both newly hired and retained, did take over the duties of the discharged permanent parttime employees, and (b) the management had previously notified Food and Beverage employees, without drawing a distinction between the permanent and seasonal employees, that they could be replaced by seasonal employees, specifically college students hired from Drake University. See Findings of Fact Nos. 9, 16.

Alleged Different Treatment of Complainant and Other Waitresses on the Basis of Age in Regard to Job Duties:

Operation of the Liquor Cart:

19. The liquor cart, or "booze cart" was a vehicle with a bar which was driven out to the golf course by Food and Beverage employees in order to serve drinks to golfers. (Tr. at 52). The Complainant was informed by Paul Belding that an operator was needed for the cart. (Tr. at 55). Although Belding had no formal supervisory position, and did not make assignments to the cart, he did serve as a conduit for communications from Ryan Dotson, i.e. he told the Complainant what to do based on what Dotson told him. (Tr. at 54-55). The Complainant asked if she could operate the cart and was informed by Belding that Dotson might place Melissa Davey on the cart because she was "burned out" in the Terrace Room. (Tr. at 55).

20. Although Ms. Helkenn did not ask Ryan Dotson to assign her to the liquor cart, it is clear that Dotson did not limit assignment to the cart to those who might request such assignment. (Tr. at 137). He made assignments to the cart on his own discretion. (Tr. at 137, 208). The assignments that were made under Dotson prior to the discharge of Ms. Helkenn and through at least June of 1986 were Natalie Phelps, a 19 year old employee who had prior experience with the cart, and newly hired employees who were trained on the cart in 1986. (Tr. at 137,147). Newly hired Food and Beverage employees at this time were all approximately age 25 or younger. (Tr. at 156). See Finding of Fact No. 16. The assignment of such employees to the liquor cart was consistent with the previously noted comments of Mr. Dotson and Mr. Corwin to the effect that they preferred to hire younger women because, if they were placed in positions such as the liquor cart, the golfers were likely to buy more drinks. See Finding of Fact No. 11.

21. As of the beginning of the summer of 1986, there was at least one other employee, in addition to Natalie Phelps, who had training on the cart. Neither the employee's name or age or whether the employee operated the cart in 1986 is revealed by the record. (Tr. at 137). Although Joyce Wessel, age 41, operated the cart at sometime at least "[a] couple [of] years" before the hearing, there is no evidence in the record as to whether or not she operated it during the time of Dotson's or Corwin's management. (Tr. at 189, 195).

Other Job Duties:

22. The Complainant was told to wash dishes from the Terrace Room, to clean up after the cook, and to keep track of what time golfers teed off, while younger employees were not required to perform these duties. (Tr. at 48-50). She also asserted that she was asked to train new Food and Beverage staff while younger employees were not. (Tr. at 49, 51). She was informed by Mr. Dotson that she was requested to perform such additional responsibilities because she was a more reliable employee, i.e. "they knew it would get done and they would only have to ask me once." (Tr. at 50). This reason is supported by the record as it accurately reflects the quality of the Complainant's work. (Tr. at 138, 154-55). See Finding of Fact No. 5. Furthermore, Natalie Phelps, a substantially younger but experienced employee, also trained new hires. (Cp. Ex. 5; Tr. at 137, 210-11).

The Complainant's Discharge:

23. The Complainant left her work at approximately noon on May 21, 1986 to attend a doctor's appointment. (R. Ex. A; Tr. at 58, 63). This time was before the time her shift was originally scheduled to end. (Cp. Ex. 4, 5; R. Ex. A; Tr. at 61). The Complainant was informed by Ryan Dotson, on May 22, 1986, that she was being discharged because she left before completing the schedule she had originally been assigned. (R. Ex. A; Tr. at 64). There is, however, substantial dispute in the record concerning whether or not this absence was excused or made in accordance with management's conditions for allowing the absence.

24. At various points in the record, the Respondent produced evidence articulating several reasons for the complainant's discharge on May 22, 1986, i.e. failure to provide advance notice of or to obtain approval for the absence, failure to inform management, on May 21 st, that she was leaving, and failure to have another waitress cover for her during the absence:

a. "The reason for her termination is that she did leave in the middle of that scheduled shift without any prior knowledge, to me, that she was going to do so." (Dotson testimony-Tr. at 204, 221-22).

b. "[T]he direct reason [the complainant was terminated] was that she didn't check with the supervisor upon leaving during her scheduled shift." (Dotson testimony-Tr. at 203, 224).

c. "[I]t was really strictly because she wasn't cooperating in areas that I had cautioned her on before and it was leaving a shift without checking with somebody or getting the shift covered." (Dotson testimony-Tr. at 207).

d. "[L]eft her assigned work station without obtaining proper coverage in her absence." (6/2/86 Letter from Dotson to Job Service-R. Ex. A).

25. The reference to the Complainant's failing to cooperate in areas on which Dotson had previously cautioned her refers to two events: (1 ) a conversation Mr. Dotson and Ms. Helkenn had on May 7, 1986 concerning the completion of sidework and, (2) an incident on May 14, 1986 where Ms. Helkenn purportedly left work early. (Cp. Ex. 2; R. Ex. A; Tr. at 44, 203, 205-07, 218-19). Ms. Helkenn denies the May 14th incident. (Tr. at 44, 110-11).

26. The side work conversation came about because both the day shift and the night shift were complaining about the failure of the previous shift to finish various minor clean- up details at the end of the shift. (Tr. at 205). On May 7th, Dotson discussed this with the Complainant, who was on the day shift, and reminded her that both shifts had to get their side work done. (R. Ex. 2; Tr. at 44, 205). The alleged incident of May 14th was mentioned by Dotson in his testimony and his letter to Job Service not as a seperate reason for termination, but in order to show that the Complainant's leaving on May 21st occurred after a similar incident where counseling had been given. (R. Ex. A; Tr. at 218).

27. The assertions that Mr. Dotson terminated the Complainant (a) because he had no prior knowledge that she was going to be leaving her shift, or (b) because she didn't check with him upon leaving her shift are not credible. They are effectively contradicted by his own testimony, his June 2,1986 letter to Job Service explaining why he terminated the Complainant, and by the Complainant's testimony.

28. When asked "what, if any, notice had Ms. Helkenn given you that she was going to be gone?," Mr. Dotson's initial response was that he did not recall. (Tr. at 203). He also testified, twice, that his letter to Job Service states all the reasons for Ms. Helkenn's dismissal. (Tr. at 206, 213). This letter does not mention any alleged failures by the Complainant to give notice of her impending absence or to check with Mr. Dotson upon leaving her work. (R. Ex. A). Nor is there any comment on her side work. (R. Ex A). It also states, in part:

On or about May 19th or 20th, 1986, Ms. Helkenn notified me that she had made a doctor's appointment for May 21, 1986. She indicated that the appointment interruped (sic) her scheduled work assignment. At that time, I told Ms. Helkenn that she needed to find someone to finish her shift for that day.

(R. Ex. A)(emphasis added).

29. There is also contradiction between Dotson's deposition and trial testimony, his letter to Job Service, and his note concerning the purported incident of May 14th. (Cp. Ex. 2; R. Ex. A; Tr. at 203, 206, 218, 221-226). In his handwritten note dated "5-14," Dotson stated "Rachel Helkenn left shift 1/2 hr early. Did not check w/ supervisor. Spoke w/her 5-15-86 about incident. Explained need to check with supervisor." (Cp. Ex. 2). At trial, Mr. Dotson was confronted with his deposition testimony to the effect that Ms. Helkenn's absence to attend her doctor's appointments was excused. He responded that this statement referred to this May 14th incident and not the absence of May 21 st. (Tr. at 222- 225). This, of course, is contrary to the content of the note which indicates an unexcused absence. (Cp. Ex. 2). In his letter to Job Service, Mr. Dotson mentions this incident, but refers to a failure to find coverage for the shift, not to an unexcused absence or any failure to notify management of the absence. (R. Ex. A).

30. The Complainant credibly testified that she had initially informed Mr. Dotson one week before May 21st that she had a doctor's appointment on that date. (Tr. at 58). At first, he denied her request. (Tr. at 58). She continued to ask a total of three or four times for the time off. Tr. at 59). Finally, Dotson agreed to allow her absence if she found someone to cover for her. (R. Ex. A; Tr. at 59). At approximately noon on May 21st, Mr. Dotson asked her why she was not gone yet and she replied that she was making a sandwich for a member. (Tr. at 63). She then left after completing the sandwich. Tr. at 63).

31. The assertion that Mr. Dotson terminated the Complainant because she failed to obtain coverage for her shift in her absence is also not worthy of credence. This assertion rests entirely on the testimony of Mr. Dotson and his letter to Job Service. The inconsistencies within and between Mr. Dotson's testimony and documents authored by him in regard to the reasons for Ms. Helkenn's discharge and related matters have already been detailed. See Findings of Fact Nos. 24, 27-29. Taken together, they are sufficient to seriously undermine whatever credibility the letter and testimony might otherwise have.

32. It is true that the letter to Job Service was written prior to the filing of Ms. Helkenn's complaint. (Complaint; R. Ex. A; Tr. at 213). It is also true, however, that it was written in response to a claim for unemployment insurance filed by the Complainant. (R. Ex. A, F; Tr. at 220). As such, it may be viewed with some skepticism as there is an obvious financial incentive for the Respondent to state a reason for Complainant's termination which it believes may disqualify the Complainant for unemployment insurance.

33. This reason is also effectively rebutted by Complainant's testimony. Prior to May 21 st, Ms. Helkenn made arrangements with Kristi Allison, a co-worker, to cover for her. (Tr. at 59, 117). Nonetheless, when she informed Mr. Dotson that she had someone to cover for her, he informed her that he had already arranged coverage. (Tr. at 59). Therefore, the complainant called Ms. Allison and cancelled their arrangement. (Tr. at 59).

34. Finally, both Complainant and Respondents have referred to copies of the original and revised schedules for May 21st. The Complainant asserts that the revised schedule showing three waitresses scheduled for the Terrace Room on that date, an increase of one over the original schedule demonstrates that Dotson did obtain coverage for her. The Respondents assert, however, that the presence of Ms. Helkenn's name on both schedules for the full shift demonstrates she was not excused. (Final Argument and Brief of Respondents at 10; Tr. at 61-62). Neither contention is supported because (1) waitresses were present on May 21 st who were not listed on either schedule, and (2) Dotson's letter to Job Service strongly implies that, at the time Ms. Helkenn requested the time off, the weekly schedules had already been posted. (R. Ex. A; Tr. at 62).

35. The previously cited evidence, of the statements by Dotson and Corwin concerning their preference for younger employees, of their statements indicating that present employees could be replaced by college students, of an age preference in regard to assignments to the liquor cart, and of the discharge and replacement of experienced, older employees while substantially younger, less qualified personnel were retained and hired, demonstrate that, despite the reasons articulated by Respondents, the discharge of the Complainant was more likely motivated by the management's preference for younger employees. See Findings of Fact Nos. 3-6, 9, 11-17. Although, at one point in her testimony, the Complainant expressed a doubt about whether her discharge was due to her age, the determination of the Respondent's motivation for the firing must be based upon the material facts and not upon a Complainant's degree of certainty or uncertainty regarding this issue. (Tr. at 128).

Credibility Findings:

36. The testimony of Ryan Dotson, and documents authored by him, particularly his testimony and documentation addressing the reasons for Complainant Helkenn's discharge, are so contradictory that his credibility is questionable. See Findings of Fact Nos. 24, 27-29. With some exceptions, his testimony is cited in support of a finding of fact only when it was supported by other credible evidence, or when it constituted an admission against the interest of Respondents, or when it was supported by some other indicia of reliability.

37. Complainant Helkenn was a credible witness. Her testimony is internally consistent and reflects few or no contradictions on material matters. Her testimony reflects a willingness to admit adverse facts with candor, such as her admission that she could "not honestly say" whether her discharge was due to her age or simply an unjust termination. (Tr. at 128).

38. Marilyn Bruce was a credible witness. Her testimony was also internally consistent. Her testimony was in error on two points, i.e. that James Hutchinson, the former manager, was fired and that Walter Cramer, the cook, was fired. (Tr. at 158, 172). Ms. Bruce admitted that she had no personal knowledge in regard to Mr. Hutchinson, but that it was her honest impression that he had been fired. (Tr. at 158). Whether Mr. Hutchinson voluntarily left or not is not material because the answer to that question makes no difference to the any issues of liability or damage in this case. The question of whether or not Mr. Cramer voluntarily left is material because it was suggested that he was one of the older permanent part-time Food and Beverage employees terminated. Nonetheless, in neither case was Ms. Bruce's testimony willfully false.

39. Based on their demeanor and the internal consistency of their testimony, Dennis Navin, Natalie Phelps, Emma Thomas, Joyce Wessel, and William C. Richardson were all credible witnesses.

Compensation:

Gross Earnings at Echo Valley:

40. When Rachel Helkenn worked in the Banquet Room she was paid $5.00 per hour. (Tr. at 68). When she worked in the Terrace Room she was paid in either one of two ways. First, she would be paid $3.25 per hour and receive a percentage of what was known as the "tip hour." (Tr. at 6869). The Food and Beverage receipts for the week would be divided by the number of waitresses working and multiplied by a set percentage. (Tr. at 68-69). The record does not reveal what that percentage was. (Tr. at 69, 139). Second, if there was no "tip hour," the waitresses were paid $4.25 per hour. (Tr. at 69).

42. In 1986, the Terrace Room opened in April. (Tr. at 45). The Complainant's hours, which were less in the fall and winter, then increased to the point where she worked 30 to 40 hours in the Terrace Room and still did some banquets. (Tr. at 50-51). The schedule for May 15-21, 1986 indicates that a typical week for the Complainant would be 32-33 hours in the Terrace Room and 8 hours in the Banquet Room. (Cp. Ex. 4, 5).

43. A summary of the 1985 and 1986 earnings of Complainant Helkenn at Echo Valley was entered into the record. (Cp. Ex. 9). The summary consists of two pages. The first lists the gross quarterly earnings and total annual earnings of Rachel Helkenn, Marilyn Bruce, and Linda Svec for 1985 and 1986. The second page consists of a monthly breakdown of the gross earnings of Rachel Helkenn in 1985 and 1986. (Cp. Ex. 9).

44. There is, however, an error of calculation in regard to the 1986 earnings of Complainant Helkenn. The totaled monthly earnings for 1986 are listed as "$2208.42." The correct sum is $1781.14, a difference of $427.28. An examination of the quarterly listings of the Complainant's earnings for 1986 reveals that the error's effect is reflected entirely in the earnings for the second quarter which are listed as "$1659.28." The correct sum of monthly earnings for that quarter is $1232. 00, again a difference of $427.28.

45. If the complainant worked 32 hours in the Terrace Room and 8 hours in the Banquet Room during a typical week in the second quarter of 1986, her weekly earnings would be: [Terrace Room Earnings + Banquet Room Earnings] [($4.25 X 32 hours) ($5.00 X 8 hours)] [($136.00) + ($40.00)] $176.00 per week. Over the seven week period during the second quarter when Complainant Helkenn worked, she would earn $1232.00, ($176.00 X 7 weeks), precisely the figure reached by adding the monthly earnings during that quarter. This tends to show that the error is one of miscalculation and not one of neglecting to list monthly earnings of the Complainant.

46. The average weekly earnings of the Complainant for the third quarter of 1985 were: ($935-73 divided by 9.5 weeks worked in that quarter) $98-50. If she had worked the entire third quarter, her earnings for that quarter would be: ($98.50 X 12 weeks) $1182.00. 47. The Complainant's earnings for the fourth quarter of 1985 were $1229.65. Her earnings for the first quarter of 1986 were $549.14. If she had worked the entire second quarter of 1986, her earnings would have been: ($176.00 X 12 weeks) $2112.00.

48. The above calculations, concerning the Complainant's earnings from the third quarter of 1985 to the second quarter of 1986, support an estimate of the Complainant's annual gross earnings at Echo Valley which takes into account the seasonal variations in earnings as well as her having worked less than a full year at Echo Valley. A reasonable estimate of Complainant Helkenn's annual gross earnings at Echo Valley would be: ($1182.00 + $1229.65 + $549.14 + $2112.00) = $5072.79.

Mitigation of Damages

49. After her discharge, Complainant filed for unemployment insurance and searched for part-time work comparable to her position at Echo Valley or work she had previously done,i.e. office work, waitressing, hospital work or hairdressing. (Tr. at 69-70). She obtained employment as a side cook with Willow Creek Golf Course from October 30, 1986 to May 8, 1987. (Cp. Ex. 8; Tr. at 71). She left as she was making only the minimum wage with no tips. (Tr. at 72).

50. Official notice is taken of the fact that, in 1986 and 1987, the minimum wage was $3.35 per hour. Fairness to the parties does not require that they be given an opportunity to contest that fact.

51. Ms. Helkenn then obtained temporary full-time employment as a receptionist with KFMD Radio from July through September of 1987. (Cp. Ex. 8; Tr. at 72-73). She made $151.71 more in the three months she was employed there than she made in the six months she was employed at Willow Creek. (Cp. Ex. 8). After this position ended, her next employment was with Mercy Hospital Beauty Shop as a part-time hairdresser. (Tr. at 73). She was in this position for four months starting in April or May of 1988. (Tr. at 73). She left this position because she "just couldn't take it. I couldn't do hair on people that were dying and very sick." (Tr. at 73-74). She was in this position for four months starting in April or May of 1988. (Tr. at 73). She left this position because she "just couldn't take it. I couldn't do hair on people that were dying and very sick." (Tr. at 73-74). She ceased searching for work in October of 1988 when started taking care of her mother. (Tr. at 122).

52. Although Ms. Helkenn did not reapply with Echo Valley, she continued to seek work at beauty salons, offices, printing companies, and similar employers. (Tr. at 119, 127). At various times in 1988 the Complainant did some light typing without pay at her husband's office for a total time of two weeks. (Tr. at 120-21). The Complainant was not required to commit to be at the office at some time in advance of her going there. (Tr. at 121). She could leave early if she had to. (Tr. at 121). Her husband has no ownership interest in the business. (Tr. at 120).

Gross Back Pay:

53. Based on annual earnings at Echo Valley of $5072.79, the Complainant's gross back pay from May 22,1986 through September 30,1988 would be calculated as follows:

A. Gross Back Pay for the two year period from May 22, 1986 through May 22, 1988: $5072.79 per year X 2 years $10145.58.

B. Gross Back Pay from May 23,1988 through September 30, 1988: [$5072.79 X (4.25 months/12 months)] [$5072.79 X .35] $1775.48.

TOTAL GROSS BACK PAY A + B $10145.58 + $1775.48 = $11921.06.

Interim Earnings and Unemployment Compensation:

54.

YEAR	SOURCE	GROSS INCOME
1986	Unemployment Compensation	$895.13
	Willow Creek Golf Course	$208.30
1987	KFMD Radio	$1005.00
1988	Mercy Hospital	$587.11

TOTAL INTERIM EARNINGS AND UNEMPLOYMENT: $2695-54

Net Back Pay:

55. The amount which Complainant Helkenn is due in net back pay is reflected in the formula: [Gross Back pay - (interim earnings and unemployment compensation)] $11921-06 -$2695.54 = $9225-52 TOTAL NET BACK PAY.

Emotional Distress:

56. The circumstances under which Complainant Helkenn was discharged have already been set forth. See Findings of Fact Nos. 23, 30, 33. Some emotional distress may be inferred from the circumstances of being discharged for one's age while being informed that one is being discharged for what was actually an excused absence. Furthermore the Complainant felt shock, anger and humiliation upon being informed of her discharge. (Tr. at 65). There is no direct evidence in the record of the duration of the distress, but it may be reasonably inferred that the combined duration and severity of her distress warrant an award to Complainant Helkenn of one thousand dollars ($1,000.00) as full, reasonable, and appropriate compensation.