DEBRA S. HOFFMAN, Complainant,
IOWA CIVIL RIGHTS COMMISSION
MAMA LACONA'S - WEST, JIM LACONA, and JOEL LOPEZ, Respondents.
I. JURISDICTIONAL AND PROCEDURAL FACTS:
A. Subject Matter Jurisdiction:
1. Complainant Hoffman alleges that she was subjected to sexual harassment by Respondent Joel Lopez and other co-workers. She alleges that Respondents Mama Lacona's-West and Jim Lacona were aware of this harassment, but did not take appropriate action to remedy it. She also alleges retaliation in her amended complaint. She believes she was discharged by Mama Lacona's-West due to her lawful opposition to sexual harassment. These allegations bring her complaint within the subject matter jurisdiction of the Commission. See Conclusions of Law Nos. 1-2.
B. Procedural Matters:
2. Complainant Hoffman filed her complaint against the Respondents with the Iowa Civil Rights Commission on November 17, 1993. The last date given for the discriminatory acts alleged in her original complaint is October 16, 1993. Thus, the original complaint was filed less than one hundred eighty days after the last alleged act of discrimination. The complaint was amended to include retaliation on July 3, 1994.
3. The complaint was investigated. After probable cause was found, conciliation was attempted and failed. Notice of Hearing was issued on July 25, 1995.
A. Complainant's Background:
4. Complainant Debra Hoffman, a female, was employed full-time at Respondent Mama Lacona's-West from November of 1992 to October of 1993 as a food server (waitress). (Notice of Hearing (complaint);Tr. at 52, 53). She was thirty-two years old at the time she began her employment. (Notice of Hearing (complaint)). She worked Tuesday through Friday evenings until close at 11:00 p.m. On Saturdays, she began work at 2:00 p.m. and left when the rush of business was over at approximately 9:00 p.m. (Tr. at 53). With the exception of setting up the salad bar, her main duties as food server involved taking orders for food and bringing the food to the customers. (Tr. at 54). On at least one occasion during her employment , she worked at a different Mama Lacona's location, the Southwest 9th store. (Tr. at 164-65). She was informed of her discharge from Respondent Mama Lacona's on October 16, 1993. (Tr. at 61-62). She was told she could stay for an additional one or two weeks, but elected to continue working only three or four more days. (Tr. at 63, 278-79).
B. Respondents' Background:
5. Respondent Mama Lacona's-West is a restaurant located in Clive, Iowa. (Notice of Hearing (complaint); Tr. at 34, 115, 146-47, 221, 250, 283). The restaurant is one of the restaurants operated by a corporation, Mama Lacona's Inc. (Tr. at 250, 253). In 1993, the corporation operated restaurants at both the Clive and Southwest 9th locations. (Tr. at 146, 252). A third location in Beaverdale had been closed prior to that time. (Tr. at 252).
6. In 1993, there were seventy employees, both full and part time, for the Clive location. (Tr. at 286-87). The staff for a Friday or Saturday shift would include approximately thirty employees, including ten waitresses, two bartenders, four buspersons, three dishwashers, five cooks, a salad maker, and a hostess, as well as managers Joe, Jim, and Charles Lacona. (Tr. at 287). This number would be reduced to twenty for shifts during the week. (Tr. at 287).
7. The president of the corporation, Charles Lacona, has operated Mama Lacona's since 1957. (Tr. at 250-51). This is a family business with three of Mr. Lacona's children in the business as of the date of hearing. (Tr. at 251-52). While, in earlier years, he was more active in working and managing the business, Charles Lacona now seasons the food and helps his son, Jim Lacona, manage the business. (Tr. at 251). It is evident from the record that he had the authority to discharge employees, as he discharged Complainant Hoffman. (Tr. at 62, 260, 267, 274, 300-01).
8. Respondent Jim Lacona was general manager for all of Mama Lacona's in 1993. (Tr. at 284). This position is subordinate to that of his father, Charles Lacona. (Tr. at 141, 221-22, 242, 283). In 1993, Jim Lacona spent the majority of his time at the Clive store, the busiest location, where he also acted as manager. (Tr. at 148, 284-85). His duties and responsibilities encompassed "everything" at Mama Lacona's. This included the authority to hire and discharge employees and to handle employee complaints. (Tr. at 285, 292-93). He usually worked up front at the Clive store as the cashier who answered phones and took orders. He also occasionally seated people. At times, he went back to the kitchen to get food for people who came in for orders to go. (Tr. at 288).
9. Joe Lacona, Jim's brother, had authority to hire and discharge employees and to handle employee complaints at the Clive store in 1993. (Tr. at 285, 292). Under the line of authority at the Clive store, such employee complaints should have reached him prior to Jim Lacona. (Tr. at 292). Venessa Devine, one of Jim's sisters, was assistant manager at the Southwest 9th store in 1993. (Tr. at 147, 148, 161). Their mother also managed at Southwest 9th. (Tr. at 253-54).
10. David Lihs was kitchen manager at the Clive restaurant for approximately six months ending in October 1993. (Tr. at 115). For approximately one year before that, he had worked there as a line cook. (Tr. at 115, 117). On brief, Respondents Mama Lacona's-West and Jim Lacona admit that David Lihs was kitchen manager and that he "had authority to hire, fire and discipline employees." (Respondents' Brief at 2). For reasons set forth below, this admission is contrary to the interests of these Respondents and is binding on the Commission. See Conclusion of Law No. 5. See Finding of Fact No. 35. The preponderance of the evidence indicates that Mr. Lihs was a supervisory management employee with authority over the kitchen staff. (Tr. at 57, 115-16, 141, 293). This included the authority to resolve employee complaints concerning the kitchen staff. (Tr. at 292-93).
11. Respondent Joel Lopez, who was also known as "Minute," was a dishwasher on the kitchen staff. (Tr. at 18,40, 83, 86, 120, 265). Like the rest of the kitchen staff, with the exception of Mr. Lihs, Lopez was Hispanic. (Tr. at 10-11, 32, 289). Respondent Lopez and most of the other Hispanic staff spoke a little English. They communicated with each other primarily in Spanish. (Tr. at 23-24, 31-32, 86-87, 88, 171, 180, 256). Two of the Hispanic staff, Pablo and Jose, were fluent in both English and Spanish. (Tr. at 180, 291). Respondent Lopez was purportedly terminated by Respondent Jim Lacona approximately one month after the Complainant's discharge due to his being found in the cooler with his pants down. (Tr. at 38-39, 305-06, 327-29). See Finding of Fact No. 91B.