Investigators Report: E07-0485

[Complainant]

[Respondent]

I. COMPLAINANT’S CHARGE:

Complainant, Ms [Complainant], alleges sex discrimination in employment against [Respondent], contending that she was denied jobs because of her sex; was sexually harassed; and after making it clear the harassment was not welcome, she was fired in retaliation.

II. RESPONDENT’S ANSWER:

[Respondent], denies the allegation of sex discrimination, stating that Ms [Complainant] was dismissed for “stealing time.”

I. JURISDICTIONAL DATA:

1) Date of alleged discrimination: 6/21/07.

2) Date complaint filed with the Maine Human Rights Commission: 9/25/07.

3) Respondent employs 200 employees in Maine; is required to abide by statutory provisions of the Maine Human Rights Act, Title VII of the Civil Rights Act of 1964, and both State and Federal employment regulations.

4) Complainant is represented by [Attorney1].

Respondent is represented by [Respondent]’s [Representative]

5) Investigative methods used: a review of the written materials provided by the parties; additional information specific to elements of the charge.

IV. DEVELOPMENT OF FACTS:

1) Complainant, the employer, records, and documents confirm the following:

a) Ms [Complainant], 20 when hired, was employed by [Respondent] at its Portland distribution center from 5/05/05 until 6/21/07, when she was dismissed.

b) [Complainant] worked in the wine warehouse; as a merchandiser; and again in the wine warehouse.

c) [Respondent] has a “Sexual and Other Harassment” policy, which lists examples of sexual harassment.

2) [Complainant] provides the following information regarding denial of jobs because of her sex:

a) When she first applied for work in the beer warehouse, the Operations Manager, Mr. OM, a member of the [Respondent] family, told her, “I don’t want women working in my beer warehouse.”

He told her to apply at the wine warehouse, where she was hired.

b) While working in the warehouse, [Complainant] applied for a position as a driver’s helper, which paid more. A driver’s helper, Mr. DH, also a member of the a [Respondent] family, told her, that (Mr. OM, the Operations Manager) “doesn’t want girls doing it” (the job).

c) In May, 07, about one month before [Complainant] was fired, the Operations Manager told her, “once you and (another female employee) are gone, there will be no more women in the warehouse.”

d) Mr. VP, [Respondent] Vice President, reports that the Operations Manager denies making the statement, “I don’t want women working in my beer warehouse.” The remark made by Mr. DH, driver helper, and a [Respondent] family member, was Mr. DH’s own opinion.

3) [Complainant] provides the following information regarding verbal and physical conduct of a sexual nature she was subjected to while employed at [Respondent], Portland center:

a) In the fall of 2006, [Complainant] temporarily lost her driver’s license, and could not continue as a merchandiser, assisting stores/restaurants receiving deliveries in breaking down pallets and stocking cases of beer. After the Operations Manager refused to let her return to the warehouse, she asked Mr. FCS, then forklift crew supervisor in the wine warehouse, if he needed help. After he appealed to Mr. OM, she returned to her former wine warehouse job. The Operations Manager cut her pay $1 per hour. After Mr. FCS appealed to Mr. OM to restore Complainant’s pay to $11 per hour, the Operations Manager “eventually relented.” Mr. OM and Mr. FCS are close friends. From then on “(Mr. FCS) frequently reminded (her) that he was responsible for restoring her pay, and she had to do what he said.”

b) In December 2006, on a particularly cold day, Mr. FCS told [Complainant] to bring his Jeep around behind the warehouse. She drove around back and he got in the passenger's seat. Without her noticing, he shifted the car into neutral. When she pressed the gas and the car did not go, she was embarrassed and made a joke that she "broke the car." When she went to shift back into drive, he firmly said "no, stop" and kissed her on the lips. [Complainant] immediately said "no, you are married." [Complainant] told him she would not report him that time, but he was never to do that again. After she rebuked his advances, he became hostile to her. She was afraid to report him because she knew that he was close friends with Mr. OM. Mr. FSC continued to remind her that he was responsible for restoring her pay.

c) Shortly thereafter, Ms TOM, the office manager, accused [Complainant] of having an affair with Mr. FCS, calling her a "home wrecker." [Complainant] truthfully denied the accusation. Mr. FCS's wife learned of the incident in the Jeep and began showing up at the warehouse to make sure [Complainant] was nowhere near her husband. [Complainant] felt threatened by her constant hanging around. She specifically went to Mr. OM’s office, in tears, to ask him to tell Mrs. FCS she was not to hang around the warehouse. Mr. OM responded that [Complainant] was "a pretty girl" and she "should understand how [Mrs. FCS] feels."

d) As the only woman working in the warehouse, [Complainant] was the target of repeated sexual comments and jokes by male employees. Mr. WWM, wine warehouse manager, often joked that he "wanted to leave his wife for [[Complainant]]." Mr. FCS and another supervisor, Mr. AS, another supervisor, often joked about what they wanted to do to [Complainant] sexually; told her she had a "nice ass"; and asked her to go out with them after work. [Complainant] made it clear every time that the comments and the jokes were unwelcome and offensive, but she felt it would be futile to report it because it was supervisors doing the harassing. Higher-up managers, such as Mr. OM and Mr. WS, warehouse supervisor, witnessed the offensive comments; said nothing; and did nothing about it.

e) During the three years that [Complainant] worked at [Respondent], “there was never any sexual harassment training“. [Respondent]’s Vice President confirms this.

f) Mr. WS, a Wine Warehouse supervisor, repeatedly asked [Complainant] to go out with him, telling her they would "have a good time once they got a few drinks in [them]." Because Mr. WS was a supervisor, [Complainant] felt it would be futile to report him.

4) [Respondent]’s Vice President, Mr. VP, responds as follows:

a) Mr. FCS denies the kissing incident took place.

b) It is his recollection that the wife heard from the rumor mill that her husband and [Complainant] were an item, and once came to the warehouse to put a face to who [Complainant] was.

The Operations Manager “does not recall” receiving a request from [Complainant] to restrict Mr. FCS’s wife from the premises.

c) (With regard to alleged “unwelcome sexual advances . . . By supervisors and co-workers”)

If management had been aware of unwelcome sexual advances and comments, the issue would have been addressed. [The Operations Manager] spoke with [Complainant] on the strength of the rumors [alleged kissing incident] he heard in 12/06. He was assured by the Complainant that there was nothing to the rumors.

d) The Wine Warehouse manager and the Wine Warehouse supervisor deny sexual remarks attributed to them.

e) The office manager denies accusing [Complainant] of having an affair with Mr. F.C.W. and denies referring to her as a “home wrecker.”

5) The following information is provided by [Complainant] regarding her dismissal (simultaneously with a female co-worker, she was riding with) on 6/31/07:

a) She and Ms CT were riding together. [Complainant], realizing they would be late, made four calls to the [Respondent] Distribution Center. She spoke with the secretary in the office, Ms SO each time, and asked to be transferred to four different employees in her department. She was never able to speak with anyone; left no message for anyone; and did not request, suggest, or instruct anyone to “swipe her card/badge” verifying she was at work.

b) (telephone records) On 6/21/07, calls from [Complainant] cell phone were made at 12:54, 12:54, 12:55, and 12:56 to her jobsite.

c) When she arrived at work, she was directed to wait for the Operations Manager in the break room. Upon his arrival, Mr. OM asked both Ms Hawkin’s supervisor and co-worker if they “punched these girls in?” Both said no, and left the room.

d) [Complainant] told Mr. OM that she had just arrived; went directly to her pick sheet (work assignment); and had not punched in yet.

e) Mr. OM told her and her co-worker to, “just get out of here, you worthless pieces of shit.” When [Complainant] protested that she’d done nothing wrong, Mr. OM told her, “if you were a guy, I’d pummel your ass.”

f) [Complainant] notes that:

She did not ask any employee, coworker or manager, to swipe her timecard.
No one has been disciplined for punching her in.
Of the four people she asked to speak with, but was never connected with to tell them she would be late, none were disciplined or terminated.
[Respondent]’s has never identified the employee whom she allegedly asked to punch her in, because there is no one.
[Respondent] has never produced any physical evidence showing that she had been “swiped in.”
Though [Respondent]’s asserted that [Complainant] “stole time,” at the unemployment hearing, no record was provided to verify that claim, and she was awarded benefits.
[Respondent]’s chose not to provide any evidence that [Complainant] falsified any time keeping device or swipe card to the MeHRC, in response to “any other information, document you deem relevant.”

6) (Vice President, Mr. VP, regarding [Complainant]’ termination)

a) [Complainant]’ “termination was solely due to time record falsification.”

b) The Complainant called the office from off site. Ms. OH, office helper, answered the call, recognized the Complainant's voice and acknowledged the Complainant. The Complainant asked to have Mr. CW, co-worker, paged. Ms OH2 heard the conversation and noticed that [Complainant] was “punched in.” Ms OH2 called the Complainant's supervisor, Mr. WS, to see if the Complainant was at work or not. The Complainant was not at work. Ms CT, who was riding in with the Complainant, also showed as being punched in and also was not at work. Mr. OM, Operations Manager, was notified and confronted the Complainant and Ms CT upon their arrival. Both were dismissed for falsification of timekeeping records.

c) He acknowledges that [Complainant] could not have swiped herself in, as she had not arrived at work when she called just before 1 pm. No one was disciplined, as “no one (confessed)” to swiping [Complainant]’ card in.

7) (reference provided by [Complainant]’ supervisor)

To whom it may concern,

My name is - - - - - - and I am the wine warehouse supervisor. This "Letter of Recommendation", is for Linzy [Complainant] whom I have worked with for 3 years. Linzy was an excellent and dedicated employee at [Respondent].

Linzy was a self-motivated individual who proved to be a dependable employee. She also excelled at her work, and always worked to improve her job performance . She was one of our top order selectors at [Respondent].

V. ANALYSIS:

1) The Maine Human Rights Act requires the Commission to “determine whether there are reasonable grounds to believe that unlawful discrimination has occurred.” 5 M.R.S.A. § 4612(1)(B). The Commission interprets this standard to mean that there is at least an even chance of Complainant prevailing in a civil action.

2) a) 5 M.R.S.A. § 4572(1)(A) of the Maine Human Rights Act provides, in part, that it is unlawful employment discrimination to discriminate in the terms and conditions of employment or discharge an employee because of sex. Sex discrimination includes sexual harassment. See Me. Hum. Rights Comm’n Reg. § 3.06(I) (1) (July 17, 1999).

b) The MHRA makes it unlawful for "an employer . . . to discriminate in any manner against individuals because they have opposed a practice that would be a violation of [the MHRA] or because they have made a charge, testified or assisted in any investigation, proceeding or hearing under [the MHRA]." 5 M.R.S.A. § 4572(1)(E).

The MHRA further defines unlawful discrimination to include "punishing or penalizing, or attempting to punish or penalize, any person for seeking to exercise any of the civil rights declared by this Act or for complaining of a violation of this Act. . . ." 5 M.R.S.A. § 4553(10)(D).

3) Here, Complainant, [Complainant], alleges, and [Respondent], denies sexually harassing; segregating jobs by gender; retaliating against; and dismissing Complainant because of her sex.

DENYING / LIMITING JOBS

4) a) 5 M.R.S.A. § 4572(1)(D)(5) reads, in part, as follow:

Unlawful employment. It is unlawful employment discrimination, in violation of this Act, except when based on a bona fide occupational qualification [f]or any employer, . . . prior to employment or admission to membership of any individual, to:

Establish, announce or follow a policy of denying or limiting, through a quota system or otherwise, employment … opportunities of any group because of the .. sex… of that group.

[Complainant] asserts as part of her sworn charge that

The Operations Manager informed her, when she applied for employment, that he “didn’t want any women working in my beer warehouse.”
A driver helper, a member of the [Respondent] family, informed her when she expressed interest in a driver helper job, that the Operations Manager “doesn’t want girls doing it” (that job).
The Operations Manager informed [Complainant], a month before her dismissal, “once you and (a female co worker in the wine warehouse) are gone, there will be no more women in the warehouse.”

Such announcements, and practices, of denying and limiting employment opportunities because of one’s sex, are in violation of 5 M.R.S.A. § 4572(1)(D)(5).

EMPLOYMENT SEXUAL HARASSMENT

5) The Maine Human Rights Act provides, in part, as follows:

It is unlawful employment discrimination, in violation of this Act . . . for any employer to . . . because of . . . sex . . . discriminate with respect to the terms, conditions or privileges of employment or any other matter directly or indirectly related to employment. . . .” 5 M.R.S.A. § 4572(1)(A).

6)Quid Pro Quo Harassment. The Maine Human Rights Commission Regulations provide, in part, as follows:

Harassment on the basis of sex is a violation of Section 4572 of the Maine Human Rights Act. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature constitute sexual harassment when:

a) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; [or]

b) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual. . . .

Me. Hum. Rights Comm’n Reg. § 3.06(I) (1) (July 17, 1999).

7) Hostile Work Environment. The Maine Human Rights Commission Regulations provide, in part, as follows:

c) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Me. Hum. Rights Comm’n Reg. § 3.06(I) (1) (July 17, 1999).

8) "Hostile environment claims involve repeated or intense harassment sufficiently severe or pervasive to create an abusive working environment." Doyle v. Dep't of Human Servs., 2003 ME 61, 23, 824 A.2d 48, 57. In determining whether an actionable hostile work environment claim exists, it is necessary to view "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (citations omitted). It is not necessary that the inappropriate conduct occur more than once so long as it is severe enough to cause the workplace to become hostile or abusive. Id; Nadeau v. Rainbow Rugs, 675 A.2d 973, 976 (Me. 1996). "The standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive." Nadeau, 675 A.2d at 976.

Accordingly, to establish a case of hostile work environment harassment on the basis of sex, Complainant must prove the following:

a) That she was subjected to unwelcome harassment.

b) That the harassment was based upon her sex.

c) That the harassment was sufficiently severe or pervasive so as to substantially interfere with her work performance or create an intimidating, hostile, or offensive working environment.

d) That the harassment was objectively and subjectively hostile or abusive, such that a reasonable person would find hostile or abusive and Complainant found to be so.

9) In addition, to hold Respondent liable, the following standard is applicable:

An employer . . . is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment. When the supervisor’s harassment does not culminate in a tangible employment action, the employer may raise an affirmative defense to liability or damages by proving by a preponderance of the evidence:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

With respect to persons other than those mentioned in paragraph 2 of this section, an employer is responsible for acts of sexual harassment in the workplace where the employer, or its agents or supervisory employees, knows or should have known of the conduct. An employer may rebut apparent liability for such acts by showing that it took immediate and appropriate corrective action.

Me. Hum. Rights Comm’n Reg. § 3.06(I)(2) & (3).

10) Analysis of the information, documents and records provided leads to the following conclusions:

a) [Complainant] provides a detailed, credible, persuasive account of a supervisor’s unwelcome kiss-in-the-jeep incident, including her promise not to report him if he never did it again. Though Mr. FCS denied the incident, rumor of the event surfaced, causing the wife to frequent the workplace, which visit the employer does not deny.

b) Mr. FCS and another wine room supervisor often joked about what they wanted to do to [Complainant] sexually, told her she had a nice ass, and asked her to go out with them after work. [Complainant] states that she “made it clear” that such talk was unwelcome and offensive.”

c) She also provides specifics of another wine warehouse supervisor’s repeated propositions.

d) Mr. FCS’s alleged kiss occurred after the alleged harasser had repeatedly reminded [Complainant] that he was responsible for restoring her $1 per hour pay cut and she had to do what he said, - “submissions to such conduct is made either explicitly or implicitly a term or condition of her employment.”

e) [Complainant] is able to show that:

i) She is female.

ii) She was subjected to repeated verbal and physical conduct of a sexual nature.

iii) The unwelcome conduct was based on her sex (gender).

iv) The harassment was sufficiently severe or pervasive to alter the conditions of her employment.(Because of the kiss in the jeep incident, the perpetrator’s wife frequented the work site to make sure [Complainant] was not in the vicinity of her husband such that Complainant felt threatened by the wife’s conduct; and went to the Operations Manager “in tears” to end the wife’s visits. [Complainant] was told by Mr. OM that [Complainant] was a “pretty girl” and should understand “how the wife feels”. Additionally, a female office worker falsely accused [Complainant] of being a home wrecker, which “Complainant truthfully denied.”

v) The repeated propositions and offensive sexual comments by warehouse supervisors and Mr. FCS’s unwanted workplace kiss, which had workplace repercussions, constitute objectionable conduct both objectively and subjectively. A reasonable person would have found it abusive, hurtful, and hostile, as did [Complainant], the recipient of such ongoing offensive conduct.

f) Employer liability is established, with reasoning as follows:

i) Supervisors were the primary harassers.

ii) Supervisors personally witnessed other unwelcome conduct.

iii) Complainant was afraid to report Mr. FCS kiss in the jeep to the Operations Manager because she knew they were good friends.

iv) Though she made it clear that the propositions—what they would like to do with her sexually; nice ass comments, etc—were unwelcome and unwanted, she felt reporting would be futile because supervisors created the offensive, hostile environment, and “even higher-ups” witnessed it and did nothing.

v) There was no sexual harassment training in [Complainant]’ three year career at [Respondent]’s.

vi) She was aware firsthand that women were intentionally denied certain jobs.

vii) [Complainant] reasonably perceived that, while she was still working, a formal report of unlawful conduct / sexual harassment would have prompted termination of her employment.

DISMISSAL

11) Federal and State courts require analysis utilizing the burden-shifting framework specified in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See Maine Human Rights Comm’n v. City of Auburn, 408 A.2d 1253, 1263 (Me. 1979).

12) First, Complainant must establish a prima-facie case of unlawful discrimination by showing that: (1) she belonged to a protected class, (2) she performed his job satisfactorily, (3) her employer took an adverse employment decision against her, and (4) her employer continued to have her duties performed by a comparably qualified person or had a continuing need for the work to be performed. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1 st Cir. 2000); Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 155 (1st Cir. 1990); cf. City of Auburn, 408 A.2d at 1261.

13) Once Complainant has established a prima-facie case, Respondent must (to avoid liability) articulate a legitimate, nondiscriminatory reason for the adverse job action. SeeDoyle v. Department of Human Services, 2003 ME 61, ¶ 15, 824 A.2d 48, 54; City of Auburn, 408 A.2d at 1262. After Respondent has articulated a nondiscriminatory reason, Complainant must (to prevail) demonstrate that the nondiscriminatory reason is pretextual or irrelevant and that unlawful discrimination brought about the adverse employment action. See id. Complainant’s burden may be met either with affirmative evidence of pretext or by the strength of Complainant’s evidence of unlawful discriminatory motive. See City of Auburn, 408 A.2d at 1262, 1267-68.

14) In order to prevail, Complainant must show that he would not have suffered the adverse job action but for membership in the protected class, although protected-class status need not be the only reason for the decision. See City of Auburn, 408 A.2d at 1268.

15) [Complainant] is able to meet her prima-facie burden of unlawful sex discrimination as follows:

a) She is female.

b) She performed her job duties satisfactorily.

c) She was dismissed.

d) The employer had a continuing need for wine warehouse “pickers” to fill orders.

16) The employer articulates that Complainant was fired for falsification of time keeping records.

17) Consideration of the documents, information, and records lead to the following conclusions:

a) On 6/21/07, [Complainant] made four (4) calls to the workplace within six (6) minutes of her expected arrival and spoke only with the office secretary each time.

b) There is no evidence provided or found that [Complainant] requested, suggested, or instructed anyone to swipe/punch her timecard.

c) [Complainant] could not have punched her card because she was not there when Ms B heard the call come in; and ascertained that Complainant, though not yet at work, was already swiped in.

d) No employee was ever disciplined for the swiped timecard(s).

e) [Respondent] has chosen not to produce any evidence verifying that [Complainant] falsified, or caused to falsify, any timekeeping records.

f) The employer’s reason for dismissing Complainant does not withstand scrutiny and is not based on any factual evidence. There is no evidence that [Complainant] did anything worthy of dismissal. Moreover, she diligently attempted to protect her work status and the employer’s interest, by four times notifying the employer that she would be late.

Based on a) the fact that Complainant had no record of written warnings for tardiness; b) the Operations Manager’s statement a month before Complainant’s dismissal that after [Complainant] and (her female co-worker) were gone, there would be no more women in the warehouse; and c) [Complainant]’ supervisor’s reference that she was a dependable employee, [Respondent]’s articulated reason for dismissing complainant is pretextual and unlawful sex discrimination is found.

RETALIATION

18) Because Complainant did not formally complain about the hostile environment, there is no basis to conclude that she was retaliated against

“for opposing a practice that would be a violation of the MeHRAct,” or
“because she had made a charge” (of sex discrimination or sexual harassment).

No unlawful retaliation is found.

VI. RECOMMENDATION:

For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:

1) There are Reasonable Grounds to believe

That unlawful denying and limiting of employment opportunities because of sex;
That unlawful sexual harassment; and
That unlawful dismissal because of sex, has occurred against Ms [Complainant] by [Respondent].

2) That conciliation be attempted in accordance with 5 M.R.S.A. § 4612(3).

3) There are No Reasonable Grounds to believe that unlawful retaliation has occurred against Ms Lindsay [Complainant] by [Respondent].

4) That this part of the charge be dismissed in accordance with 5 M.R.S.A. § 4612(2).

_______________________________ _____________________________

Patricia E. Ryan, Executive Director Paul D. Pierce, Investigator

COMMISSION INFORMATION

Investigators Report: E07-0485