RACHEL HELKENN, Complainant,

VS.

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

and

RACCOON VALLEY INVESTMENT COMPANY,

Respondents.

CONCLUSIONS OF LAW

Jurisdiction:

1. Rachel Helkenn's complaint was timely filed within one hundred eighty days of the alleged discriminatory practice. Iowa Code S 601A.15(11) (1985). 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 S 601A.15 (1989). See Finding of Fact No. 1.

2. The complaint is also within the subject matter jurisdiction of the Commission as the allegation that the Respondent discharged her from her employment falls within the statutory prohibition against unfair employment practices. Iowa Code S 601A.6 (1985). "It shall be a . . . discriminatory practice for any person to ... discharge any employee . . . because of the age . . . of . . . such employee." Id.

Order and Allocation of Proof Where There Is Direct Evidence of Discrimination:

3. 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 persuasion in this proceeding is on the complainant to persuade the finder of fact that Respondents discriminated against the Complainant on the basis of her age when she was terminated from her position as waitress. Linn Co- operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981).

4. The following discussion on the order and allocation of proof in discrimination cases where direct evidence is present relies on Federal case law because the Supreme Court of Iowa has not yet confronted the issue of what the order and allocation of proof should be in a case involving direct evidence. 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). Nonetheless, a ruling in the alternative will also be made following the order and allocation of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S, 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973).

5. The proper analytical approach in a case with direct evidence of discrimination is, first, to note the presence of such evidence; second. to make the finding, if the evidence is sufficiently probative, that the challenged practice discriminates against the complainant because of the prohibited basis-, third, to consider any affirmative defenses of the respondent; and, fourth, to then conclude whether or not illegal discrimination has occurred. See Trans World Airlines v. Thurston, 469 U.S. 111, 121-22, 124- 25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533, 535 (1985)(Age Discrimination in Employment Act). With the presence of such direct evidence, the analytical framework, involving shifting burdens of production, which was originally set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 207 (1973), and subsequently adopted by the Iowa Supreme Court, e.g. Iowa State Fairgrounds Security v. Iowa Civil Rights Commission, 322 N.W.2d 293, 296 (Iowa 1982), is inapplicable. Price- Waterhouse v. Hopkins, 490 U.S. ,109 S. Ct. 1775,104 L. Ed. 2d 268,301 (1989)(O'Connor, J. concurring); Trans World Airlines v. Thurston, 469 U.S. 111, 121, 124-25, 105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985)(Age Discrimination in Employment Act case); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 473, 475-78 (2nd ed. 1989).

6. The reason why the McDonnell Douglas order and allocation of proof is not applicable where there is direct evidence of discrimination, and why the employer's defenses are then treated as affirmative defenses, i.e. the employer has a burden of persuasion and not just of production, is because:

[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of intentional discrimination is hard to come by. That the employer's burden in rebutting such an inferential case of discrimination is only one of production does not mean that the scales should be weighted in the same manner where there is direct evidence of intentional discrimination.

Price-Waterhouse v. Hopkins, 490 U.S. , 109 S. Ct. 1775, 104 L. Ed. 2d 268, 301 (1989)(O'Connor, J. concurring).

7. In this case, there is direct evidence in the record which supports the conclusion that the Complainant's age was a motivating factor in Respondent's decision to discharge her. See Findings of Fact No. 11 and 12. Such comments by management officials expressing a preference for a more youthful workforce are sufficient to show that age discrimination is the underlying reason for a discharge. Cf. Buckley v. Hospital Corporation of America, 758 F.2d 1525,1530, 37 Fair Empl. Prac. Cases 1082, 1085 (11th Cir. 1985)(constructive discharge). In Buckley, the court held that a hospital administrator's expression of surprise at longevity of staff members, his statements that the hospital needed "new blood," that he intended to recruit younger doctors and nurses, and his reference to the plaintiff's "advanced age" would support a conclusion that the employer acted with discriminatory intent. Id.

8. The inquiry, however, does end not there, for the affirmative defenses of the Respondent must be examined. Trans World Airlines v. Thurston, 469 U.S. 111, 121,124- 25,105 S. Ct. 613, 83 L.Ed. 2d 523, 533 (1985). Here the defenses set forth by Respondents have been examined and found wanting. See Findings of Fact Nos. 24-35. Respondents have not met their burden of persuasion in regard to their defenses.

Order and Allocation of Proof Where There Is No Direct Evidence of Discrimination:

9. 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).

10. In the typical discrimination case, which alleges disparate treatment on a prohibited basis, this burden of producing evidence shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence." Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 83 L. Ed. 2d 523, 533 (1985)(emphasis added).

11. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). Once a prima facie case is established, a presumption of discrimination attaches. Id.

12. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non-discriminatory reason for its action. Id.; Linn Co-operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Once it has produced such evidence, the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).

13. The introduction of evidence, by the Respondent, which would allow the finder of fact to rationally conclude that the challenged decision was not motivated by discriminatory animus is sufficient to rebut the prima facie case. Linn Co- operative Oil Company v. Quigley, 305 N.W.2d 7287 733 (Iowa 1981). The Respondent need not persuade the finder of fact that it was actually motivated by the proffered reasons. Id. Nonetheless, the nondiscriminatory reason proffered "must be specific and clear enough for the [Complainant] to address and legally sufficient to justify judgment for the [Respondent]." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988).

14. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175,178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089,1095, 67 L. Ed. 2d 207, 216 & n.1 0 (1981)).

15. This burden of production may be met through the introduction of evidence or by cross-examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at , 67 L. Ed. 2d at 217. When the Complainant demonstrates that the Respondent's reasons are pretextual, the Complainant must prevail. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 717-18 (1983)(Blackmun, J. concurring).

16. In this case, Complainant Helkenn established a prima facie case by showing:

(1) that [s]he belongs to a group protected by the statute, (2) that [s]he was qualified for the job from which [s]he was discharged, (3) that, despite [her] qualifications, [s]he was terminated, and (4) . . . that after [her] termination, the employer hired a person not in [complainant's] protected class or retained persons with comparable or lesser qualifications who are not in a protected group.

Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 177 (Iowa Ct. App. 1988). See Findings of Fact Nos. 3-5, 16,18.

17. The Iowa Civil Rights Act protects persons of all ages against age discrimination in employment with two exceptions: persons under eighteen years of age if they are not considered by law to be adults, and employees over fortyfive years of age in apprenticeship programs. Hulme v. Barrett, 449 N.W.2d 629, 631-32 (Iowa 1989)(citing Iowa Code §§ 601A.6((2)). Although the persons hired or retained by Respondents after the Complainant's discharge, who were less qualified than the Complainant, are therefore also within the protected group, the age difference of more than 15 years between these persons and the complainant is sufficient to find, in conjunction with these other factors, that a prima facie case has been established. See Buckley v. Hospital Corporation of America., 758 F.2d 1525, 1530, 37 Fair Empl. Prac. Cases 1082, 1085 & n.2. (11 th Cir. 1985). See Findings of Fact Nos. 16, 18, 20.

18. The McDonnell-Douglas formulation of the facts adequate to establish a prima facie case, on which the prima facie case set forth in Wing is based, is not:

the only means of establishing a prima facie case of individual discrimination. . . . 'The facts necessarily will vary in [employment discrimination] cases, and the specification ... of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect to differing factual situations. The importance of McDonnell Douglas lies not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any [employment discrimination] plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act.

Teamsters v. United States, 431 U.S. 324, 358, 97 S. Ct. 1843, 52 L. Ed. 2d 396, 429 (1977).

19. The complainant also established a prima facie case of age discrimination in her termination by showing (1) that Respondents' management, at the time Complainant was employed, made statements expressing a preference for young employees, particularly young waitresses, (2) that Respondents' managers informed their Food and Beverage employees that they could be replaced by college students, (3) only Food and Beverage employees of approximately 40 or over were discharged, and (4) that less experienced, substantially younger new hires and retained employees, including college students, took over the duties of the discharged employees. In addition, the manager of the Food and Beverage department assigned only younger employees to the liquor cart after he and the manager of Echo Valley made comments indicating he would do so. The showing of age discrimination in the liquor cart assignments supports the prima facie case, but is not essential to it. See Findings of Fact Nos. 9, 11-13, 16, 18-21.

20. The Respondents articulated, through the production of evidence, legitimate non-discriminatory reasons for Complainant Helkenn's termination. See Findings of Fact No. 24-26. By so doing, Respondents met their burden of production and rebutted Complainant's prima facie case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154,156 (Iowa 1986).

21. The complainant demonstrated that the reasons articulated by Respondents were pretexts for discrimination by showing that, in light of all the evidence, (1) the reasons were not worthy of credence, and (2) age bias was the more likely motivation for the termination of Complainant Helkenn. See Findings of Fact Nos. 2733, 35. The complainant has met her burden of persuading the Commission that intentional age discrimination has occurred.

Motion to Dismiss:

22. During the course of the hearing, Respondents made a motion to dismiss based on its assertions that the Complainant failed to establish a prima facie case of age discrimination. (Tr. at 186-88). The motion should be denied on the basis that a prima facie case of age discrimination, and more, has been established by the evidence. See Conclusions of Law Nos. 16-21.

Complainant's Allegations of Discrimination in Regard to Job Duties and Uniforms:

23. It should be noted that the only reason age discrimination in regard to job duties is discussed in this decision is because the Commission's representative relied on this in order to demonstrate discriminatory intent by showing that "the employer has a history of treating [complainant's] class unfairly." Posthearing Brief of the Iowa Civil Rights Commission at 4-5. As previously noted the Commission has already found "No Jurisdiction," because of timeliness concerns, in regard to Complainant's allegations of discrimination in regard to job duties and uniforms. That decision is final and no separate finding of discrimination in regard to job duties and uniforms is made in the decision and order set forth below.

Remedies:

24. Violation of Iowa Code section 601 A.6 (1985) having been established, and no affirmative defense having been shown, the Commission has the duty to issue a cease and desist order and to carry out other necessary remedial action. Iowa Code S 601A.15(8) (1989). 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. It should also seek to eliminate any effects of past discriminatory practices. Id.

Compensation:

25. The Commission has the authority to make awards of backpay. Iowa Code 601 A.1 5(8)(a)(1) (1989). 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 her 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)). The Complainant may meet that burden of proof by establishing the gross backpay due for the period for which backpay is sought. Id. at 34-35, 37 (citing e.g. EEOC v. Kallir, Phillips, Ross, Inc., 420 F. Supp. 919, 924 (S.D. N.&. 1976), aff'd mem., 559 F.2d 1203 (2d Cir.), cert. denied, 434 U.S. 920 (1977)). This the Complainant has done. See Findings of Fact Nos. 40- 48, 53). The burden of proof for establishing either the interim earnings of the Complainant or any failure to mitigate damages rests with the Respondent, although the Complainant may, as the Complainant has done here, choose to provide evidence of the interim earnings she is willing to concede. 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)). See Finding of Fact No. 54.

26. 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 self-evaluate 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 (975). 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.

27. "Iowa Code section 601 A.1 5(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, No. 88- 934, slip op. at 47 (Iowa January 24, 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 45. "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. (Quoting with approval Brennan v. City Stores, Inc., 479 F.2d 235, 242 (5th Cir. 1973)).

Mitigation of Damages:

28. In order to meet its burden of proving that Complainant failed to mitigate her damages, Respondents must establish:

(1 ) that the damages suffered by the [complainant could have been avoided, i.e. that there were suitable positions which [complainant] could have discovered and for which [s]he was qualified; and

(2) that [complainant] failed to use reasonable care and diligence in seeking a position.

EEOC v. Sandia Corp., 639 F.2d 600, 627 (11 Oth Cir. 1980).

29.

[A] back pay period terminates when the [complainant] obtains comparable employment, and will not resume if [complainant] voluntarily quits ... a new, better paying position. The back pay period may also be terminated when the [complainant] ceases to look for alternative employment.

Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 531 (2nd ed. 1989)(emphasis added). If a Respondent shows that a Complainant unjustifiably quits a job, the minimum earnings which would have been accrued in that position should be treated as interim earnings and deducted from the back pay award. EEOC v. Riss International, 35 Fair Empl. Prac. Cas. 423, 425- 26 (W.D. Mo. 1982). "[Tlhe back pay provision is income replacing and ... quitting a job for reasons unrelated to amount of income or further mitigating damages (absent discriminatory conditions or other justifying factors) should not entitle a party to additional back pay." Id. at 426 (emphasis added).

30. It is clear that the back pay period should end by September 30, 1988 as the complainant ceased looking for work in October of 1988 in order to care for her mother. See Finding of Fact No. 51. Prior to that date, Complainant maintained a diligent work search. See Findings of Fact Nos. 49, 52.

31. Complainant did quit employment as a side cook on May 8, 1987 because the pay was minimum wage and was without any tips, i.e. $3.35 per hour. See Findings of Fact Nos. 49, 50. This amount was substantially less than the $4.25 per hour she earned as a waitress in the Terrace Room and the $5.00 per hour she earned as a banquet waitress at Echo Valley. See Finding of Fact No. 40. Within two months she obtained temporary employment which paid substantially more than her employment as a side cook. See Findings of Fact No. 51, 54. Under the authorities cited above, complainant's back pay should neither terminate as of this quit nor should the earnings which would have accrued in this position after the quit be treated as interim earnings. See also Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 41 Fair Empl. Prac. Cas. 341, 347 (7th Cir. 1986).

32. Complainant also quit her work with Mercy Hospital in 1988 as she found it too distressing to do hairdressing for seriously ill and dying patients. See Finding of Fact No. 51. Complainant continued to search for work after this quit. See Findings of Fact Nos. 49, 52. Under these circumstances complainant's back pay should neither terminate as of this quit nor should the earnings which would have accrued in this position after the quit be treated as interim earnings. See Baggett v. Program Resources, Inc., 806 F.2d 178, 42 Fair Empl. Prac. Cases 648, 651 (8th Cir. 1986)(back pay continued to plaintiff who quit job to go to Florida to get married and find other work). Cf. EEOC v. Exxon Shipping Co. 745 F.2d 967, 36 Fair Empl. Prac. Cas. 330, 340 (5th Cir. (1984)(back pay continued despite refusal of job which required complainant to work every weekend when she had been discriminatorily denied a job which required only occasional weekend work).

Damages for Emotional Distress:

33. In accordance with the statutory authority to award actual damages, the Iowa Civil Rights Commission has the power to award damages for emotional distress. Chauffeurs Local Union 238 v. Iowa Civil Rights Commission, 394 N.W.2d 375, 383 (Iowa 1986)(interpreting Iowa Code S 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.

34. "[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, No. 88-934, slip op. at 32 (Iowa January 24, 1990).

35. 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)(housing discrimination case). "Humiliation can be inferred from the circumstances as well as established by the testimony." Id. (quoted with approval in Blessum v. Howard County Board, 245 N.W.2d 836,845 (Iowa 1980)). 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).

36. When the evidence demonstrates that the complainant has suffered emotional distress proximately caused by discrimination, an award of damages to compensate for this distress is appropriate. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984)(citing Nichols, Iowa's Law Prohibiting Disability Discrimination in Employment: An Overview, 32 Drake L. Rev. 273, 301 (1982- 83)). The Complainant did suffer some compensable emotional distress. See Finding of Fact No. 56.

37.

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)).

38. The amount of damages for emotional distress will depend on the facts and circumstances of each individual case. Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Past Commission decisions have referred to the consideration of various factors in awarding damages for emotional distress. Id. Upon examination of the Commission's cases, and the authorities cited therein, it is concluded that the two primary determinants of the amount awarded for damages of emotional distress are the severity of the distress and the duration of the distress. See Cheri Dacy, 7 Iowa Civil Rights Commission Case Reports 17, 24- 25 (1985); Marian Hale, 6 Iowa Civil Rights Commission Case Reports 27, 29 (1984). Even mild emotional distress can and should be compensated. See Hy Vee Food Stores, Inc. v. Iowa Civil Rights Commission, No. 88-934, slip op. at 31-32 (Iowa January 24,1990).

Interest:

39. Interest begins to run on an award of damages from the date of the commencement of the action at the rate of ten percent per annum. Iowa Code 535.3 (1989). In this case, interest should be paid on damages from the time of the filing of the complaint on June 19, 1986.

Credibility and Testimony:

40. 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).