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American Legion Post 12 v. Susa11/30/2005
te's and Ms. Pacheco's versions of how much money they received in tips. The Legion simply argued that the women could not receive back pay for money they did not report to the IRS. As the Court stated in Atlantic Limousine, such testimony can actually be found to bolster a witness's credibility. Ms. Cote and Ms. Pacheco testified that they received approximately $600.00 and $150.00 per week in tips, respectively. Accordingly, there was substantial evidence before the Commission to support its finding with respect to the amount of money the women earned while working at the Legion. See Psychiatric Inst. of Washington, 871 A.2d at 1153 (the Court will reverse an agency award only if the agency's action is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law) (citing Joel Truitt Mgmt., 646 A.2d at 1010). As was previously stated, this Court may not substitute its judgment for that of the Commission on the findings of fact. Therefore, this Court finds the Commission's award did not constitute an abuse of discretion.
CONCLUSION
These were not games by adolescents. These were reprehensible acts, by grown men who should have known much better. The repugnant actions of staff and customers, continuous and unchecked by the employer or its governing officials, gives this court great pause. The failure of those in control to prevent the ongoing harm illustrates that their conduct was not mere callous indifference. Not only did the respondents fail to rise to the occasion by ensuring common decency in their establishment, they condoned the behavior by sticking their heads in the sand. Under the statutory schemes, and common sense, the commission was justified in concluding that respondents sanctioned this obvious vulgarity. The board was well within its authority in doing so.
After review of the entire record, this Court affirms the decision of the Commission. It was supported by the reliable, probative and substantial evidence in the record, and was not clearly erroneous or arbitrary, and did not constitute an abuse of discretion. Substantial rights of the respondents have not been prejudiced.
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