BEFORE THE IOWA CIVIL RIGHTS COMMISSION

CONNIE ZESCH- LUENSE, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

ROBERT PLILEY and the CHICKEN HOUSE, Respondents.

CP # 05-88-17707

Findings of Fact Continued

C. COMPLAINANT ZESCH-LUENSE WAS NOT INTOXICATED OR
"HALF-DRUNK" DURING THE TIME SHE WAS WORKING ON APRIL 2, 1988:

34. Marlys Pliley and Respondent Robert Pliley both testified that Complainant Zesch-Luense was intoxicated to the point of being "half-drunk" when she arrived for work on April 2, 1988. They allowed her to work despite this alleged drunkenness. (Position statement; Tr. at 119-20,135). This statement is not credible in the light of: (a) their allowing her to work in spite of her alleged intoxication; (b) the other inconsistencies with respect to material statements of fact which have been previously noted; (c) the credible testimony of Complainant Zesch-Luense and Stan Zesch to the effect that she had no alcoholic drinks prior to coming to work that day and was "definitely not" intoxicated when she showed up for work or while working. (Tr. at 34, 54, 57-58).

35. The assertion that Complainant Zesch-Luense was drunk or intoxicated during her working hours is also contrary to the statements made by Respondent Pliley and Marlys Pliley during the investigation. When they were asked who they had observed being intoxicated that night, neither of them mentioned Complainant Zesch-Luense being
intoxicated during her working hours. (Tr. at 108, 154-55, 157-58).

36. Complainant Zesch-Luense also credibly denied she had alcoholic drinks while working. (Tr. at 34). (She did, however, have some drinks after her discharge.) (Tr. at 36). Respondent Pliley admitted that he could not know whether Complainant Zesch-Luense had anything to drink during her work hours as he would not have been able to observe her work in the bar. (Tr. at 136).

D. OTHER CREDIBILITY FINDINGS:

37. The testimony of Commission investigator Thomas Good was credible. The testimony of witnesses James Dobbins, Michael Anderson, Robert Kasel, Judy Bannon, Clem Arterburn, Jason Gilliland, and Dian Wiler-Tomlinson was also credible.

38. The testimony of Shirley Miller seems credible in most respects. She seems to be confused with respect to her memory that Complainant Zesch-Luense told her that "Bob fired her because she wouldn't serve an Indian." (Tr. at 92). One thing that Complainant Zesch-Luense and Robert Pliley do agree on is that she was directed to inform at least one Native American that she would no longer serve him drinks and that she refused to follow that direction. (Position statement; Tr. at 27-29, 127-28, 131-32). The disagreement is over the rationale for the direction, i.e. was it because the customer was a Native American or because the customer was drunk? In light of Complainant Zesch-Luense's testimony, it seems far more likely that she told Shirley Miller that she was discharged for refusing to deny service to an Indian, not for failing to serve drinks to him.

39. Some of Dale Miller's testimony seemed less than credible. Dale Miller testified that he had not heard Robert Pliley make any derogatory remarks about people of color. (Tr. at 81-82). He also testified, however, that derogatory remarks about Native Americans would not bother him any. (Tr. at 84-85). If Mr. Miller, who claimed to be part Native American, is not bothered by such remarks, it is less likely that he would have noticed or remembered such remarks if they had been made. (Tr. at 81, 83, 84-85).

V. COMPARATIVE EVIDENCE:

40. Respondents put on evidence in the form of testimony by former or present employees and customers to the effect that either they had not been subject to racial discrimination by Robert Pliley or had not witnessed such discrimination. The probative value of much of this testimony was greatly reduced or nullified because it solely concerned events that occurred after filing of the complaint on May 20, 1988. (Notice of Hearing-Complaint). This is true of the testimony of James Dobbins, Michael Anderson, and Judy Bannon. (Tr. at 64-65, 66-67, 73). For reasons discussed in the conclusions of law, it is well understood that corrective or non-discriminatory actions taken after the filing of a complaint are to be viewed with skepticism when determining the validity of the allegations in a complaint. See Conclusion of Law No. 20.

41. Other testimony is not especially probative because it addresses (a) the treatment of minorities other than Native Americans and (b) their treatment in the restaurant area, not the bar area. It is also important to note that the findings of discrimination and retaliation here are based primarily on credible direct evidence of discrimination and retaliation. The inference of discrimination raised from what appears to be unexplained different treatment of Guy Suda Tiger, a Native American, and Red Gunderson, a white, discussed previously, plays only a secondary role in the finding that Respondents engaged in race discrimination in public accommodations. See Finding of Fact No. 15.

42. In addition, much of the testimony elicited seems to be directed at the absence of overt discrimination, i.e. discrimination which is announced or made obvious to the intended victims. The complaint does not allege, and the direct evidence does not show, an announcement to the customers that they won't be served due to their race. Rather the employee, after inquiry as to why she was to tell a Native American that she would serve him no more drinks, is told by the owner that the reason is race. Nor does the complaint allege a standard or routine announcement of a discriminatory policy to employees. The facts of this case demonstrate, rather, that if Complainant Zesch-Luense had not asked Robert Pliley why he wanted her to tell Guy Suda Tiger she could no longer serve him, she would not have known for certain that it was due to his race.

43. Diann Wiler-Tomlinson, for example, who is an African-American, credibly testified that she had been a customer of the Chicken House since 1986 and had always felt comfortable dining at the restaurant. She had never heard Robert Pliley make any remarks related to a person's color. (Tr. at 98). Ms. Wiler-Tomlinson has been an attorney since 1983. She has been county attorney for Marshall County since 1987. (Tr. at 99).

44. Similarly, Jason Gilliland testified that he could not recall any discrimination against customers. (Tr. at 77). But his pre-1988 experiences would all be concerned with his employment as an intermittent on call busboy and waiter in the restaurant. He started in 1983 or 1984 at the age of 13 or 14. (Tr. at 76, 78). Thus, he could not have been old enough (18) to work in the bar during his employment prior to 1988. (Tr. at 76-79).

45. Official notice is taken of Iowa Code section 123.49(2)(f) (1987) which prohibited the employment of "a person under eighteen years of age in the sale or serving of [alcoholic beverages] for consumption on the premises where sold." Fairness to the parties does not require that they be given the opportunity to contest this fact. Gilliland did not work at the Chicken House in 1988. (Tr. at 78). Thus, it was not until sometime after 1988, and therefore, after the filing of the complaint, that he occasionally worked as a bartender at Respondent Chicken House. (Tr. at 79-80). His testimony is so general that it is impossible to say whether he even saw a Native American at the Chicken House during his employment there.

46. Similarly, the testimony of Robert Kasel and Clem Arterburn is that they were not aware of any discrimination against their wives who were, respectively, Black and Columbian. (Tr. at 68, 75).

VI. EXTRANEOUS CIRCUMSTANCES:

47. Some time and effort was spent by the parties attempting to prove two asserted facts which have little probative value, although either the complainant or respondent obviously thought they did. Some explanation, therefore, should be given as to why these averred facts are not important.

48. First, the Respondents introduced testimonial evidence to prove that Robert Pliley, who does not appear to be Black, is "part Negro." (Tr. at 82, 84, 100). Even if it were to be assumed, without deciding, that Respondent Pliley was Black, in part or otherwise, this would not entitle him to any kind of presumption that he would not discriminate against Native Americans or, for that matter, against Blacks on the basis of race. The courts have long recognized that the dynamics of human psychology and race discrimination are too complex to automatically presume that a minority will not discriminate on the basis of race against another minority or even against a member of his or her own race. Obviously, evidence that one has "Indian friends" would also not be probative for the same reasons. (Tr. at 151). See Conclusion of Law No. 22.

49. Second, the complainant introduced testimony to prove that Robert Pliley had indicated to Shirley Miller that he felt his son should have married a white female and not a Korean. This is a statement which Pliley indicated, albeit while engaged in cross-examination and not while he was testifying, that he never made. (Tr. at 158-61). It is the impression of the Administrative Law Judge that this evidence was introduced to counter Respondents' evidence that Respondent Pliley was "part Negro" and had "Indian friends." Since this is not a case dealing with either alleged bias against persons involved in racially mixed marriages or bias against Koreans, it is not necessary to determine whether this statement was made. This statement would have no probative value in this case.

VII. REMEDIES:

A. BACK PAY:

1. "Trial Basis" Status:

50. Respondents put on testimony to the effect that Complainant Zesch-Luense was hired on a "trial basis." This status was to end after four to six weeks. During that time, Complainant would have a chance to see if she liked the job and the employer would have a chance to see if it liked her. (Tr. at 86, 101, 123-25).

51. Complainant Zesch-Luense credibly denied such "trial basis" status. (Tr. at 44-45). However, even if Respondents' proffered testimony were believed, it is clear there is no real difference between this status and that of any at-will employee who can voluntarily leave for any reason or be terminated by her employer at any time for any reason which is not unlawful. See Conclusion of Law No. 26. There was, for example, no difference between this status with respect to benefits or the lack of them. (Tr. at 123-25). Even if an actual probationary status was proven, the rule is that all uncertainties in determining what back pay would have been in the absence of discrimination are to be resolved against the employer. In other words, Complainant would not have to prove she would have been retained past this temporary period. See Conclusion of Law No. 26. Thus, even if this "temporary" status had existed, it would have no effect on back pay.

2. Complainant's Back Pay Calculation:

52. After her termination by Respondents, Complainant Zesch-Luense looked for employment, but did not find any until she obtained full-time employment close to a year later. (Tr. at 32-33). She did not receive any unemployment insurance payments during that time. (Tr. at 49).

53. Payroll records indicate that Complainant earned $3.25 per hour at the Chicken House. Two out of the four weeks she worked there, excluding the first week and the fourth week in which she was terminated, were part-time at seven hours per week. Her earnings, therefore, were $22.75 per week. (R. EX. # 2). Since she did not obtain new employment until close to a year after her discharge, this weekly amount is multiplied by 50 weeks. Therefore, her total back pay is: $22.75 per week X 50 weeks = $1137.50.

B. EMOTIONAL DISTRESS DAMAGES:

54. Complainant Zesch-Luense suffered serious and substantial emotional distress resulting from the Respondents direction to discriminate against Native Americans on the basis of their race, from being referred to as a "nigger and Indian lover" when she questioned the policy, and from her termination for refusal to implement the policy. (Tr. at 28- 31, 53).

55. When Robert Pliley informed Complainant Zesch-Luense that he had never had "niggers and Indians coming into the establishment until I started working for him, and that I was more or less a nigger and an Indian lover," the Complainant started to cry. (Tr. at 28). She continued to cry as she headed out the door to tell Mr. Tiger he would no longer be served. (Tr. at 28-29). After she stopped, and returned to Respondent Pliley to inform that she wouldn't do it, he terminated her. Throughout this time, she was still crying and very upset. (Tr. at 29).

56. She stayed at the bar for approximately two hours and had some drinks at that time. (Tr. at 29-30, 36). Stan Zesch couldn't get her to talk about it for half an hour because she was upset and crying. (Tr. at 53). Finally, she told Robin Parker, who then told Mr. Zesch. (Tr. at 53).

57. The distress suffered by Complainant Zesch-Luense on April 2, 1988 was serious and substantial. There is some evidence reflecting the duration of the distress. The Complainant did credibly testify that this incident was "something that's been with [her] for four years now." (Tr. at 34). Given the extent of the emotional distress sustained by her on April 2nd, it may be reasonably inferred that the distress did not dissipate overnight. In light of the severity and duration of the emotional distress shown in the record, therefore, an award of two thousand dollars ($2000.00) in damages would be full, reasonable, and adequate compensation for the distress inflicted on complainant due to the illegal, discriminatory, and retaliatory actions of Respondents.