BETH LARRAIN WHENNEN, Complainant

VS.

MEMORIAL LAWN CEMETERY, INC., PLANNING AND SERVICES CORP., and JAMES C. PETERSEN, Respondents.

RULING ON MOTIONS

MOTION 1 Attorney James R. Cook moved to dismiss; James C. Petersen as a Respondent on the basis that he was not an employer of Complainant, but was an employee of Planning and Service Corporation and Memorial Lawn Cemetery. (Tr. 5)

MOTION 2 Attorney Russell H. Wilson moved for dismissal of the complaint against the Respondent, Planning and Service Corporation, on the basis that Whennen was an employee of Memorial Lawn Cemetery, Inc. and not employed by PIanning and Service Corporation. (Tr. 618)

1. Charles Doggett purchased, from Ethyl Kuhn, Memorial Lawn Cemeteries, Inc. in 1966. In 1975, Doggett formed the Shrine of Memories Funeral Home and Mausoleum, Inc. Both corporations were located in Ottumwa, Iowa. It is noted that Art Woods was an employee when the Kuhns owned Memorial Lawn. The business records for both corporations were located at 4400 Merle Hay Road, the site of the Merle Hay Funeral Home Mausoleum and Chapel Hill Cemetery in Des Moines, Iowa.

On February 2, 1981, Doggett sold both corporations to James Petersen, Barbara Petersen and William V. Allen for $300,000.00. (Complainant's Exhibit 4) Doggett retained possession of the stock as security for payment of the contract. Doggett was listed as the officer and 100 % owner of the stock on both 1983 and 1984 tax returns for Ottumwa Memorial Lawn Cemetery, Inc. (Complainant's Exhibits 10B and 10A) The
March 1, 1980 Minutes of Memorial Lawn's stockholder's meeting indicates that James Petersen was elected president. Doggett was not shown to be a member of the Board of Directors. (Respondent's Exhibit 5) Doggett denies being an officer from date of 1981 contract until 1986. (Transcript 450) The tax return for fiscal year June 1980 to May 1981 listed the Petersens as the officers. (Respondent's Exhibit 4) Effective March 1, 1986, by mutual agreement of the parties (signed only by Doggett and James Petersen), the contract purchaser was declared in default and this contract was terminated. (Complainant's Exhibit 6). Under the evidence provided, it is believed that the contract for the sale of Memorial Lawn and Shrine of Memories (Complainant's Exhibit 4) was a paper only contract and not a legitimate transaction.

2. Between February and May of 1972, public stock was issued in Planning and Service Corporation after an organizational meeting on November 11, 1971. There were some 1900 stockholders in about 30 states. The business address for the corporation was 4400 Merle Hay Road, Des Moines, Iowa. Doggett was President and Board member of the corporation. (Complainant's Exhibit 2 and 3)

The contract for sale of Memorial Lawn and Shrine of Memories included a guarantee by Doggett for the debts and liabilities of Planning and Service [P & S1. It is noted in that contract that the purchasers were employed by P & S.

In August 1986, Doggett's real estate holding company, Hawkeye, Inc., bought out all other shareholders for $1.00. Hawkeye, Inc. had 200 shares of stock issued. Doggett was owner of all shares.

Doggett testified that as of the date of Hearing, P & S no longer existed. (Transcript 467). A couple of weeks prior to the January 20 Hearing, the assets and liabilities of what was P & S under Hawkeye, Inc. were transferred to Leopard Enterprises I, Inc. (Trans. p. 473).

3. On the 31st day of March 1980, Hawkeye Machinery Company by C.F. Doggett sold its fiberglass manufacturing operation to a new Iowa corporation, Hawkeye Fiberglass
Limited, by James C. Petersen, Barbara Petersen, and G. R. Johannessen at $12,000.00. Initial stock was 200 shares: 36 shares each to the Petersens, 48 to Johannessen, and 80 to Doggett. The agreement includes the provision that Doggett had agreed to sell to the Petersens and Johannessen his stock in Memorial Lawn and Shrine of Memories. That sale did not occur until February 1981, almost a year later.

4. In 1986, according to testimony of Doggett, Shrine of Memories took over ownership of Memorial Lawn.

5. A couple of weeks before the Hearing on January 20, 1988, Leopard Enterprises I, Inc. and II. 111, IV were incorporated. Memorial Lawn and Shrine of Memories were sold to III for $10,000.00 and $40,000.00, respectively.

6. Petersen testified that she and her husband, James, received no compensation for work done for Memorial Lawn and Shrine of Memories. They did receive compensation from P & S.

7. James Petersen, Respondent, started working for P & S in July 1977. In 1981, he purchased Memorial Lawn and Shrine of Memories from Doggett. The default of that contract purchase occurred in 1986. Only James signed the termination paper. The other two contract purchasers did not sign the termination agreement.

8. James Petersen testified that over a period of close to two years, they made regular payments of approximately $40,000.00 to Doggett on the sale contract. No documentation of any payments were submitted into evidence. During the time the Petersens were buying Memorial Lawn, James Petersen was president of P & S. (Tr. 585)

9. Doggett served as president of P & S from its inception until 1980 when James Petersen became president. Petersen served until April 14, 1986. The business address of P & S was also 4400 Merle Hay Road. After resigning as president Doggett continued to serve on the board of directors. It is believed that Charles Doggett never relinquished his ownership in Memorial Lawn, Inc.

10. The record was held open for the contract of sale of Memorial Lawn and Shrine of Memories to Leopard Ill. That document was received on February 8, 1988, marked as Respondent's Exhibit 8, and admitted into evidence.

IT IS RULED that James C. Petersen was manager of Memorial Lawn Cemetery during the time at issue and as such is respondent. The motion for dismissal of James C. Petersen is denied.

IT IS FURTHER RULED that Planning and Services Corporation was not directly involved in the action against Complainant and charges against Planning and Services Corporation should be dismissed.

The Hearing Officer reserved ruling on Complainant's Exhibit 18, a release for Whennen to continue work dated May 2, 1985. IT IS RULED that Complainant's Exhibit 18 is admitted subject to the objections since it is relevant to the issue of a back pay award.

It is noted that the record was held open for the transcribed testimony from the tape of telephone conversation with a Dr. Wetrich. The transcription has not been received and IT IS RULED that such transcript with any attached documents shall not be considered as evidence in this case.

The Hearing Officer specifically reserves the right to rule on any award for attorney fees after affidavit is submitted.