ROYD JACKMAN, Complainant, and IOWA CIVIL RIGHTS COMMISSION,


VS.


JENSEN CONSTRUCTION COMPANY, Respondent.

CONCLUSIONS OF LAW

Jurisdiction:

1. Complainant Jackman's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code § 601A.15(11) (1989). See Finding of Fact No. 1. All the statutory prequisites for hearing have been met, i.e. investigation, finding of probable cause, attempted conciliation, and issuance of Notice of Hearing. Iowa Code § 601A.15 (1989). See Finding of Fact No. 2.

2. Mr.Jackman's complaint is also within the subject matter jurisdiction of the Commission as the allegations that he was subjected to racial harassment by a coworker, that the Respondent Jensen Construction Company failed to remedy the harassment, and that the Respondent constructively discharged him fall within the statutory prohibition against unfair employment practices. Iowa Code § 601A.6 (1987). "It shall be a ... discriminatory practice for any person ... to otherwise discriminate in employment against any . . . employee because of the race of such . employee." Id.

Applicability of Federal Case Law:

3. Although Federal court decisions applying Federal anti-discrimination laws are not controlling in cases under the Iowa Civil Rights Act, Franklin Manufacturing Co. v. Iowa Civil Rights Commission, 270 N.W.2d 829, 831 (Iowa 1978), they are often relied on as persuasive authority in these cases. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982). Opinions of the Supreme Court of the United States are entitled to particular deference. Quaker Oats Company v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 866 (Iowa 1978).

"Burden of Persuasion" and "Burden of Production":

4. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this proceeding is on the complainant to persuade the finder of fact that he was subjected to racial harassment and constructively discharged. Linn Co-operative Oil Company v. Mary Quigity, 305 N.W.2d 728,733 (Iowa 1981).

5. The burden of persuasion must be distinguished from what is known as "the burden of production" or the "burden of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).

Harassment:

6. To establish a valid claim of harassment on the basis of race, the Complainant must prove:

1) He is a member of a protected class.

2) He was subjected to harassment, i.e. adverse conduct regarded by him as unwelcome and reasonably considered to be undesirable or offensive.

3) The harassment was based upon his protected class status.

4) The harassment affected a term, condition, or privilege of employment;

5) The employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.

See Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 632 (Iowa 1990)(requirements for religious harassment case); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 834 (Iowa 1990)(requirements for sexual harassment case and comments on unwelcomeness); Chauffeurs, Teamsters and Helpers, Local Union No. 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 378 (Iowa 1986)(requirements for racial harassment case); Henson v. City of Dundee, 682 F.2d 897, 90305 (11th Cir. 1982).

Proper Order and Allocation of Proof.

7. "It is questionable whether the traditional burden shifting analysis [involving shifting burdens of production] is appropriate or necessary in hostile work environment cases where the alleged discrimination does not involve deprivation of a tangible job benefit." Lynch v. City of Des Moines, 454 N.W.2d 827, 834 n.6 (Iowa 1990)(citing Henson v. City of Dundee,682 F.2d at 905 n.11 and Katz v. Dole, 709 F.2d at 255-56). This is so because the burden shifting analysis, utilized in disparate treatment cases relying primarily on circumstantial evidence as the means of proof, "serves to 'progressively sharpen the inquiry into the elusive factual question of intentional discrimination,' . . . in ... case[s] where prohibited criteria and legitimate job related criteria often blend in the employment decision." Henson v. City of Dundee,682 F.2d at 905 n.11. In a case of racial harassment involving the repeated use of racial epithets, slurs, and jokes, the factual question of intentional discrimination is not at all elusive. Cf. Henson v. City of Dundee, 682 F.2d at 905 n.11 (sexual harassment creating offensive environment does not present elusive factual question of intentional discrimination). In this case, all of the evidence in the record was reviewed in order to determine whether Complainant Jackman had proven, by a preponderance of the evidence, all five of the elements stated above. Complainant Jackman has met his burden of persuasion in regard to all five of these elements.

Term, Condition or Privilege of Employment:

8. The requirement that a term, condition or privilege of employment be affected by the harassment does not require that the harassment result in "the loss of a tangible job benefit." Lynch v. City of Des Moines, 454 N.W.2d 827,834 (Iowa 1990). "Where [racial) harassment in the workplace is so pervasive and severe that it creates a hostile or abusive work environment, so that the [complainant] must endure an unreasonably offensive environment or quit working, the (racial] harassment affects a condition of employment."'See Id.

Existence of A Hostile Working Environment.

9. The determination that a hostile or abusive working environment existed at Respondent Jensen Construction Company was based on application of the following principles:

The existence of hostile or abusive working environment must be established by the totality of the circumstances....... Whether . . . use of [racial] slurs is continuous, severe and pervasive enough to rise to a violation of the Iowa Civil Rights Act is a question of fact ....

It is well established that the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" does not affect the terms, conditions and privileges of employment to a significant degree.... Discriminatory comments that are "merely part of casual conversation, are accidental or are sporadic do not trigger... sanctions." . . .

On the other hand, the determination of whether defendant's conduct is sufficiently severe and pervasive to constitute [racial] harassment does not turn solely on the number of incidents alleged by plaintiff.... The totality of the circumstances requires the factfinder to examine the severity, as well as the number, of the incidents of harassment.... In some situations the severity of the offensive conduct may lessen the need for sustained exposure..... "The prima facie showing in a hostile environment case is likely to consist of evidence of many or very few acts or statements by the defendant which, taken together, constitute harassment."

Vaughn v. Ag Processing Inc., 459 N.W.2d 627, 63334 (Iowa 1990)(citations omitted).

10. In the Vaughn case, the plaintiff and other employees were subjected to generally abusive remarks by one Mueller, a supervisor, on a daily basis. Id. at 630, 631, 633. In addition, plaintiff was subjected to the following anti-Catholic remarks and actions by the supervisor on four separate days during the three month period from March to May of 1986:

a. On one day in March 1986, plaintiff "asked Mueller for some time off to go to church. Mueller initially refused but then allowed plaintiff to leave about four hours later." Id. at 631.

b. "A day or so after this occurred ... Mueller called him a 'goddamn stupid fuckin' Catholic' and referred to another employee as'[a]nother dumb Catholic.' He then turned to plaintiff and said: 'I know you're Catholic, but I haven't seen one
yet that had any fuckin' brains." Id.

c. "A couple of days later Mueller asked plaintiff, 'Is that all you people do is have kids?' when discussing a Catholic coworker whose wife just had a baby." Id.

d. "in May Mueller referred to another employee in plaintiff's presence as a'pus-gutted Catholic.' He made the following additional comments: 'You people like fish don't you?' and 'I suppose you're going to raise [your son] Catholic." Id.

11. The Court also noted that the trial court "could have found that much of the [generally] offensive behavior was directed at plaintiff because he was Catholic." Id. at 633.

12. After setting forth the principles quoted in Conclusion of Law Number 9 above, the Court stated, "While we believe the question of whether Mueller's behavior was sufficiently severe and pervasive to alter a condition of plaintiff's employment [by creating a hostile or abusive working environment] is a close one, we need not decide the issue. We base our decision instead on a determination of [the employer's] liability." Id. at 634 (emphasis added). The Court went on the find the employer was not liable because it took prompt and appropriate remedial action to end the harassment. Id. at 634-35.

13. In the instant case, the racial harassment involved numerous instances of blatantly racist remarks all concentrated within a two and one half to three week period of time and occurring in the mornings and evenings of virtually every working day of that period. See Findings of Fact Nos. 3, 8-13, 15, 17-18. Some of these remarks strongly implied that Complainant Jackman would or should be killed because of his race. See Findings of Fact Nos. 1718. In addition, on one occasion, the harassing coworker physically grabbed Complainant Jackman, Who had to throw him off. See Finding of Fact No. 19. Physical harassment will usually have a more severe impact on the victim's working environment than verbal harassment. Cf. Ruth Miller, CP # 04-86-14561,Slip.op.at 92-93(lowa Civil Rights Commission October 29, 1990)(citing Fair Employment Practices (BNA) 405:6681,405:6690-91 "EEOC: Policy Guidance on Sexual Harassment" (March 19, 1990) and Commission Decision No. 83-1, CCH EEOC Decisions § 6634 (1983)(discussing physical and verbal sexual harassment)). In light of the principles set forth above, the finding that the this racial harassment generated a hostile working environment for Complainant Jackman is well justified.

Employer Liability:

14. "An employer cannot stand by and permit an employee to be harassed by his co-workers." Vaughn v. Ag Processing Inc., 459 N.W.2d 627, 634 (Iowa 1990). Here Complainant Jackman has proven that Respondent Jensen Construction Company knew or should have known of the harassment by coworker Sheldon Naab. See Finding of Fact No. 24. Complainant Jackman has also proven that the Respondent failed to take prompt and appropriate remedial action. See Finding of Fact No. 25. Proof of these facts is one way to establish that an employer is liable for the discriminatory actions of coworkers. Katz v. Dole, 709 F.2d 251, 255 (4th Cir. 1983). See Vaughn v. Ag Processing Inc., 459 N.W.2d 627, 632 (Iowa 1990)(harassment by supervisor); Lynch v. City of Des Moines, 454 N.W.2d 827, 833, 835 (Iowa 1990) (harassment by coworkers).

15. It is important to note that the presence of Respondent Jensen Construction Company's internal EEO complaint procedure does not exonerate it from responsibility for racial harassment by coworkers when the company had actual or constructive knowledge of the harassment by means other than the filing of an internal complaint. In Lynch v. City of Des Moines, the employer argued that it was not liable for sexual harassment by coworkers because it took prompt and appropriate remedial action once the plaintiff filed a formal internal complaint. Lynch v. City of Des Moines, 454 N.W.2d 827,835 (Iowa 1990). This argument was rejected by the Court because it overlooked the fact that the employer had known about the harassment prior to plaintiff's filing of the complaint and had done nothing to end it. Id.

16. The requirement for prompt remedial action imposes "a reasonable duty on an employer who is aware of discrimination in the workplace to take reasonable steps to remedy it." Vaughn v. Ag Processing Inc., 459 N.W.2d 627, 634 (Iowa 1990). Factors considered here in determining whether this duty was met were "the gravity of the harm, the nature of the work environment, and the resources available to the employer." Id. See Findings of Fact Nos. 2526.

Constructive Discharge:

17. "Constructive discharge exists when the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation." First Judicial District Department of Correctional Services v. Iowa Civil Rights Commission, 315 N.W.2d 83, 87 (Iowa 1982)(citing e.g. Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975)). The Iowa Supreme Court has adopted an objective standard for determining when a constructive discharge has occurred: "To find constructive discharge, the fact finder must conclude that, "working conditions would have been so difficult or so unpleasant" that a reasonable person in the employee's position would be compelled to resign." Id. (citing Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 65 (5th Cir. 1980)). It is not necessary to show that intolerable working conditions were imposed by the employer for the purpose of forcing the employee to quit. Bourque v. Powell Electrical Manufacturing Company, 617 F.2d 61, 22 Fair Empl. Prac. Cas. 1191, 1193-94 (5th Cir. 1980)(explaining Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir. 1975)). It is sufficient to show that the employer knowingly allowed such intolerable conditions to occur. Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3rd Cir. 1984).

18. In accordance with this objective standard, a complainant may establish a discriminatory constructive discharge by showing:

(1) that a reasonable person in the [complainant's] position would have found the working conditions intolerable;

(2) that conduct which constituted a[n] [Iowa Civil Rights Act] violation against the [complainant] created the intolerable working conditions; and

(3) that [complainant's] involuntary resignation resulted from the intolerable working conditions.

See Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 269 (2nd ed. 1989). All three of these factors have been established by a preponderance of the evidence. See Findings of Fact Nos. 30-32.

Credibility and Testimony:

19. In addition to the factors mentioned in the section entitled "Course of Proceedings" and in the findings on credibility in the Findings of Fact, the Administrative Law Judge has been guided by the following two principles: First, "[w]hen the trier of fact ... finds that any witness has willfully testified falsely to any material matter, it should take that fact into consideration in determining what credit, if any, is to be given to the rest of his testimony." Arthur Elevator Company v. Grove, 236 N.W.2d 383,388 (Iowa 1975). Second, "[t]he trier of facts may not totally disregard evidence but it has the duty to weigh the evidence and determine the credibility of witnesses. Stated otherwise, the trier of facts ... is not bound to accept testimony as true because it is not contradicted. In Re Boyd, 200 N.W.2d 845, 851-52 (Iowa 1972).

Remedies:

20. Violation of Iowa Code section 601A.6 having been established, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code § 601A.15(8) (1991). In formulating these measures, the Commission does not merely provide a remedy for this specific dispute, but corrects broader patterns of behavior which constitute the practice of discrimination. Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 770 (Iowa 1971). "An appropriate remedial order should close off 'untraveled roads' to the illicit end and not 'only the worn one."' Id. at 771. In addition to the illustrative examples of remedial action enumerated under Iowa Cod,- section 601A.15(8)(a), the Commission has the authority to require Respondents to develop and implement an educational program to prevent future instances of harassment. Lynch v. City of Des Moines, 454 N.W.2d 827, 835-36 (Iowa 1990). Compensation:

21. The Commission has the authority to make awards of backpay. Iowa Code § 601A.15(8)(a)(1) (1991). In making such awards, interim earnings and unemployment compensation received during the backpay period are to be deducted. Id. The Complainant bears the burden of proof in establishing his damages. Diane Humburd, CP # 03-85-12695, slip op. at 32-33, (Iowa Civil Rights Comm'n Sept. 28, 1989)(citing Poulsen v. Russell, 300 N.W.2d 289, 295 (Iowa 1981)). See Children's Home v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Diane Humburd at 34-35, 37 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.Y. 1976), aff 'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainant has done for the period ending with the termination of the Lincoln, Nebraska project. See Findings of Fact No. 45-52.

22. The burden of proof for establishing the interim earnings, including unemployment insurance payments, of the Complainant rests with the Respondent. Diane Humburd, CP # 03-85-12695, slip op. at 35-37 (Iowa Civil Rights Comm'n Sept. 28,1989)(citing e.g. Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). The Respondent also bears the burden of proof for establishing any failure of the Complainant to mitigate damages. Children's Home of Cedar Rapids v. Cedar Rapids Civil Rights Commission, 464 N.W.2d 478, 481 (Iowa Ct. App. 1990). The Complainant may, as the Complainant has done here, choose to provide evidence of interim earnings he is willing to concede. Diane Humburd at 35-37 (citing e.g. Stauter v. Walnut Grove Products, 188 N.W.2d 305, 312 (Iowa 1973); EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. at 924)). See Finding of Fact No. 53.

23. The award of backpay in employment discrimination cases serves two purposes. First, "the reasonably certain prospect of a backpay award . . . provide[s] the spur or catalyst which causes employers and unions to self-examine and to selfevaluate their employment practices and to endeavor to eliminate [employment discrimination]." Albemarle Paper Company v. Moody, 422 U.S. 405, 418-19, 95 S.Ct. 2362, 2371-72, 45 L. Ed. 2d 280 (1975). Second, backpay serves to "make persons whole for injuries suffered on account of unlawful employment discrimination." Id. 422 U.S. at 419, 95 S.Ct. at 2372. Both of these purposes would be served by an award of backpay in the present case.

24. "Iowa Code section 601A.15(8) gives the Commission considerable discretion in fashioning an appropriate remedy that will accomplish the purposes of chapter 601A." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 531 (Iowa 1990). The Iowa Supreme Court has approved two basic principles to be followed in computing awards in discrimination cases: "First, an unrealistic exactitude is not required. Second, uncertainties in determining what an employee would have earned before the discrimination should be resolved against the employer." Id. at 530-531. "it suffices for the [agency] to determine the amount of back wages as a matter of just and reasonable inferences. Difficulty of ascertainment is no longer confused with right of recovery." Id. at 531 (Quoting with approval Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973)).

Damages for Emotional Distress:

25. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages as compensation for emotional distress sustained as a result of discrimination. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code § 601A.15(8)). The following principles were applied in determining whether an award of damages for emotional distress should be made and the amount of such award.

Proof of Emotional Distress:

26. "[A] civil rights complainant may recover compensable damages for emotional distress without a showing of physical injury, severe distress, or outrageous conduct." Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 526 (Iowa 1990). "Humiliation can be inferred from the circumstances as well as established by the testimony." Seaton v. Sky Realty, 491 F.2d at 636 (quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836,845 (Iowa 1980)).

27. Even slight testimony of emotional distress, when combined with evidence of circumstances which would be expected to result in emotional distress, can be sufficient to show the existence of distress. See Dickerson v. Young, 332 N.W.2d 93,98-99 (Iowa 1983). Testimony of the complainant alone may be sufficient to prove emotional distress damages in discrimination cases. See Crumble v. Blumthal, 549 F.2d 462, 467 (7th Cir. 19T7; Smith v. Anchor Building Corp., 536 F.2d 231, 236 (8th Cir. 1976); Phillips v. Butler, 3 Eq. Opp. Hous. Cas. § 15388 (N.D. 111. 1981).

28. In discrimination cases, an award of damages for emotional distress can be made in the absence of "evidence of economic or financial loss, or medical evidence of mental or emotional impairment." Seaton v. Sky Realty, 491 F.2d 634, 636 (7th Cir. 1974). Nonetheless, such evidence in the record may be considered when assessing the existence or extent of emotional distress. See Fellows v. Iowa Civil Rights Commission, 236 N.W.2d 671, 676 (Iowa Ct. App. 1988).

Determining the Amount of Damages for Emotional Distress:

29.

Because compensatory damage awards for mental distress are designed to compensate a victim of discrimination for an intangible injury, determining the amount to be awarded for that injury is a difficult task. As one court has suggested, "compensation for damages on account of injuries of this nature is, of course, incapable of yardstick measurement. It is impossible to lay down any definite rule for measuring such damages."

. . .

Computing the dollar amount to be awarded is a function of the finder of fact. Juries and judges have been making such decisions for years without minimums or maximums, based on the facts of the case [and] the evidence presented on the issue of mental distress.

2 Kentucky Commission on Human Rights, Damages for Embarrassment and Humiliation in Discrimination Cases 24-29 (1982)(quoting Randall v. Cowlitz Amusements, 76 P.2d 1017 (Wash. 1938)).

30. The two primary determinants of the amount awarded for damages for emotional distress are the severity of the distress and the duration of the distress. Bean v. Best, 93 N.W.2d 403, 408 (S.D. 1958)(citing Restatement of Torts§ 905). "'in determining this, all relevant circumstances are considered, including sex, age, condition of life, and any other fact indicating the susceptibility of the injured person to this type of harm.' And continuing 'The extent and duration of emotional distress produced by the tortious conduct depend upon the sensitiveness of the injured person."' Id. (quoting Restatement of Torts§ 905).

31. A wrongdoer takes the person he injures as he finds him. McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975). A previously disabled person injured by the acts of a wrongdoer "is entitled to such increased damages as are the natural and proximate result of the wrongful act." Id. at 46; Keeton, Prosser and Keeton on the Law of Torts 292 (1984). This principle applies to psychological and emotional injuries. McBroom v. State, 226 N.W.2d 41, 45 (Iowa 1975).

32. On the other hand, the wrongdoer is not required to pay damages for emotional distress resulting from sources completely independent of its conduct. See Keeton, Prosser and Keeton on the Law of Torts 292, 345, 348-50 (1984). Cf. Lynch v. City of Des Moines, 454 N.W.2d 827, 836 (Iowa 1990)(upholding award of emotional distress damages in sexual harassment case against appeal of damages as inadequate-noting some distress due to other turmoil in complainant's life unrelated to discriminatory actions of employer). With items such as pain and suffering, where the extent of the harm is almost incapable of definite proof, the factfinder is granted wide latitude in determining what amount of damage is attributable to the wrongdoer despite the absence of specific proof. Keeton, Prosser and Keeton on the Law of Torts 348- 350 & nn.47, 49 (1984).

Interest:

Pre-judgment Interest:

33. The Iowa Civil Rights Act allows an award of actual damages to persons injured by discriminatory practices. Iowa Code § 601A.15(8)(a)(8) (1989). Prejudgment interest is a form of damages. Dobbs, Hornbook on Remedies 164 (1973). It "is allowed to repay the lost value of the use of the money awarded and to prevent persons obligated to pay money to another from profiting through delay in litigation." Landals v. Rolfes Company, 454 N.W.2d 891, 898 (Iowa 1990). Pre-judgment interest is properly awarded on an ascertainable claim. Dobbs, Hornbook on Remedies 166-67 (1973). Because the amount of back pay due Complainant at any given time has been an ascertainable claim since the time his employment ended, pre-judgment interest should be awarded on his back pay. Such interest should run from the date on which back pay would have been paid had there been no discrimination. Hunter v. Allis Chalmers Corp., 797 F.2d 1417,1425-26 (7th Cir. 1986)(common law rule). No pre-judgment interest is awarded on emotional distress damages because these are not ascertainable before a final judgment. See Dobbs, Hornbook on Remedies 165 (1973).

34. The method of computing pre-judgment interest on back pay is left to the reasonable discretion of the Commission. Schlei & Grossman, Employment Discrimination Law: Five Year- Cumulative Supplement 543 (2nd ed. 1989). Complainant here has requested a period of time after this Commission's ruling in order to "allow the parties to agree upon the method of computation and the amount of prejudgment interest to which he is entitled on his back pay award." (Complainant's Brief at 42). Although the Commission is not required to do so, it would be reasonable to grant this request in its order and to retain jurisdiction to decide this issue in the event agreement cannot be reached.

Post-Judgment Interest:

35. Post-judgment interest is usually awarded upon almost all money judgments, including judgments for emotional distress damages. Dobbs, Hornbook on Remedies 164 (1973).

Attorneys Fees:

36. The Complainant having prevailed, he is entitled to an award of reasonable attorney's fees. Iowa Code § 601A.15(8)(1989). If the parties cannot stipulate to the amount of these fees, they should be determined at a separate hearing. Ayala v. Center Line, Inc., 415 N.W.2d 603, 606 (Iowa 1987). The Commission must expressly retain jurisdiction of the case in order to determine the actual amount of attorney's fees to which Complainant is entitled to under this order and to enter a subsequent order awarding these fees. City of Des Moines Police Department v. Iowa Civil Rights Commission, 343 N.W.2d 836,839 (Iowa 1984).

RULING ON COMPLAINANT'S OBJECTION TO THOMAS DOYLE'S TESTIMONY

1. Complainant objected to the testimony of Thomas Doyle relating to Respondent's Exhibits 1 and 2, which are maps from the Iowa Department of Transportation. Complainant's objection was that Mr. Doyle was apparently relying on these exhibits as sources of information for his testimony and these exhibits had not been listed in Respondent's answer to Interrogatory Number 1 which requested the sources of information relied on in answering Respondent's interrogatories. The testimony was taken subject to the objection with an understanding that the objection would be ruled on in this decision. (Tr. 442-444).

2. At the time Mr. Doyle testified, these exhibits were already admitted into the record. (Tr. at 4-5). Mr. Doyle's brief testimony relating to these exhibits did not rely on these exhibits as sources of information, but was basically offered as "connecting up" testimony to lay a foundation for these exhibits. (Tr. at 445). Also, since Complainant had already waived any foundational objection to these exhibits, this testimony, although not required, was harmless to Complainant's case. (Tr. at 5). Complainant's objection is overruled.