Investigators Report: E08-0057, E08-0057A

Complainant

Respondent 1 & Respondent 2

I. COMPLAINANT’S CHARGE:

Complainant alleges that Respondents subjected her to sexual and racial harassment and terminated her for complaining about it.

II. RESPONDENT’S ANSWER:

Respondents denied the allegations.

III. JURISDICTIONAL DATA:

Date of alleged discrimination: September 18, 2007 to November 11, 2007.

Date complaint filed with the Maine Human Rights Commission: January 28, 2008.

[Respondent 1] employed about 10 people. [Respondent 2] was part-owner and registered member of [Respondent 1]. Pursuant to the Articles of Incorporation of [Respondent 1], the management of the company is vested in the member or members. Respondents are subject to the Maine Human Rights Act as well as state employment regulations.

Complainant is represented by [Attorney 1].

Investigative methods used: Review of written materials; interviews with Complainant, Wife, [Respondent 2], and Assistant.

IV. DEVELOPMENT OF FACTS:

The parties and issues in this case are as follows:

[Respondent 1] owned [Respondent 1] in Rockland, Maine. [Respondent 2] and his wife, Wife, owned the company.

[Complainant] is a young, African-American female. She was hired by the Manager of [Respondent 1] in September 2007. She was terminated on November 11, 2007.

[complainant] (Complainant) alleges that Respondent [Respondent 2] subjected her to sexual and racial harassment throughout her employment and that Respondents terminated her for complaining about the harassment.

[Respondent 2] and Wife failed to respond to subpoenas issued by the Commission. Wife agreed to be interviewed by telephone. [Respondent 2] is hospitalized and responded to brief questions by telephone. He denied harassing [complainant].

Complainant provided the following concerning her employment:

Her normal hours were Monday through Thursday. She was usually off on Friday but she was called in sometimes.

There was no sexual or racial harassment policy and no sexual harassment poster in the store. She received no information about a sexual harassment policy or complaint procedure.

She met [Respondent 2], one of the owners, on her first day of work. She was putting out coffee cups and [Respondent 2] was at the end of the counter on the phone. When he got off the phone he called her over. He pulled her towards him, hugged her, and said "Black is beautiful." His comment about her race, while not vicious, made her uncomfortable was still not OK with her. She passed it off being her first day of work and because she was afraid of making the owner / her boss, mad at her.

During her second week of employment, she was putting out Whoopie Pies when [Respondent 2] came over and asked where she was from. She told him she was from the Boston area. [Respondent 2] told her a long story about how he had lived in the Boston area and how he used to hang out with "them colored people." Then he looked around and said not to tell anyone but that he had "dated one of them colored girls." She felt very offended but again, because it was a new job, she was afraidto do or say anything about his comments at that time.

[Respondent 2] was at the store all the time, every day. He did not live at home with Wife. He slept on a couch in the downstairs of the store. Assistant and Manager would open up the store in the morning and find him on the couch sleeping, naked.

[Respondent 2] made comments about her race on pretty much a daily basis, referring to her as "colored" and "the colored girl." [Respondent 2] would often come up to her out of the blue and put his arms around her for a hug when he was making these comments. Whenever he hugged her, he would push his chest up against hers. It got to the point where she tensed up and looked away whenever he did this to her.

From the first day of work, she told her manager (Manager) about [Respondent 2]'s comments and his hugging. She had a prior relationship with Manager because they had worked together at another convenience store in Rockport approximately four years ago. Manager told her "to try not to take it personal" and that [Respondent 2] was ''harmless," but she did take his comments and behavior personally.

[Respondent 2] also referred to her as "the Black girl" to the assistant manager (Assistant). When he did, Assistant told [Respondent 2] it was not OK to talk like that about her or to her. [Respondent 2] got upset and asked what was the big deal, especially "in this day and age." Manager also spoke with him about it and for the rest of the day he referred to Manager as "the White girl," trying to prove a point that it was "not a big deal." Manager and Assistant told her about these conversations with [Respondent 2].

In mid October, [Respondent 2] again came up to her and stated how he used to "go with a colored women and she was a good girl." He continuously came up to her out of the blue and rambled on about her being black.

Just prior to Halloween, three men came into the store and were at the register paying for some items. [Respondent 2] came right up behind her at the register, put his arms around her and said to the men, "Isn't she a beautiful Black woman?" She was horrified and completely embarrassed. The three men looked at [Respondent 2] in surprise that he would say such a thing. She quietly told [Respondent 2] to leave her alone.

Manager spoke to [Respondent 2] again about this incident. Afterward, [Respondent 2] came up to her to apologize, she thought. He told her that he didn't mean anything by his comments and then he proceeded to tell her a joke about Spanish people. He asked, "Do you know why we call Spanish people 'Spics'?" She said no and he said "because they go around saying 'I spicca no English."' She was shocked that he told that joke, particularly when he was supposed to be apologizing for his comments to her.

While [Complainant] was employed by Respondents, an Asian woman was hired and worked there for only four days. She quit soon after [Respondent 2] told her, “I shot up a bunch of you mother-fuckers in Viet Nam.”

[Respondent 2]'s behavior began to make [complainant] feel insecure. She felt dirty as a result of [Respondent 2] touching her. She relived being a little girl who went into the bathroom with a Brillo pad and scraped at her skin to make the color disappear. [Respondent 2] brought her right back to that time in her life. She also began to feel afraid that she was black because she felt that everyone was judging her because of it. At work if a customer was rude to her, she automatically thought that it was because she was black and not because they were a rude person or for some other reason. She cried and was depressed because of it.

The last straw was when she went into work one day wearing a little knit beanie. As she walked in, with customers around, [Respondent 2] said to her, "now you look like an African American Jew." She got mad and told [Respondent 2] to "go screw" and went out back on a cigarette break. [Respondent 2] followed her out and she thought he was going to apologize but instead he grabbed her by the face and kissed her right on the lips. She was in shock and did not know how to react. Right after he kissed her, he told her that she should "bring the kids over for Christmas."

She went directly inside and told Manager what had happened. Manager laughed and said that [Respondent 2] had done the same thingto her but that she had turned her face and he had gotten her neck.

By this point [Respondent 2] knew that what he was doing was wrong and it was offensive to her.

On Thursday, November 1, 2007, she went to see an attorney (Attorney). They agreed that Attorney would send [Respondent 2] a letter giving [Respondent 2] the opportunity to stop his behavior.

Right after she met with Attorney, she told Manager that she had seen a lawyer and that the lawyer was sending [Respondent 2] a letter. Manager told her how "proud I am of you" and that it was about time someone took care of this. She also assured [complainant] that she would not be fired for going to an attorney or complaining about her treatment and not to worry about that. She trusted Manager and believed she was being honest with her.

From November 2 through November 8, she asked Manager if [Respondent 2] had gotten the letter, especially after she received her copy on November 5. Manager told her during this time that [Respondent 2] never got the letter. Manager also said that she had spoken to one of the chief investors in the business (Investor) and told him what was going on with her. Manager told her that Investor was handling it and that she had been told that [Respondent 2] would not be in the store any longer.

This was not true because [complainant] worked the next couple of days and [Respondent 2] was there. However, after she saw Attorney and told Manager about it, [Respondent 2] went from being overly friendly to being plain mean to her. He didn't speak more than a few words to her, never made any eye contact and only spoke to tell her what to do. Manager was rarely in the store for the last week she worked.

On Wednesday, November 7, Assistant told her that [Respondent 2] had told her that "that girl is going around saying I kissed her'' as if it hadn't happened.

On Sunday, November 11, Manager called [complainant] and terminated her employment. [complainant] was completely surprised and asked Manager why. Manager said that it was Investor’s decision and that his reasons for letting her go so abruptly were because she "didn't work enough hours" and because the business had to cut back on employees.

[complainant] had limited availability to work because of her children. However, the few times Manager asked [complainant] to work extra hours, [complainant] never refused and did so willingly.

[Respondent 1] had a Help Wanted sign in the window shortly after [complainant] was fired.

[Respondent 2] provided the following:

He called [complainant] “my Black girl” and he called Assistant “my White girl.” He did not always remember their names. There is nothing wrong with that.

He did not harass [complainant].

Wife provided the following:

[Respondent 2] is 70 years old.

She and [Respondent 2] were the sole owners of [Respondent 1]. They are getting divorced and have no contact with one another.

She was involved in the day to day operation of the store in 2006 but not in 2007. To her knowledge, there were no written policies (no complaint policy, no anti-discrimination policy, no sexual or racial harassment policy, etc.). There was no sexual harassment poster in the store. They did not provide annual notification of sexual harassment policies to their employees.

She thinks that Manager was [Respondent 2]’s girlfriend. An employee told her this. “[Respondent] has a tendency to fool around with the women.”

She did not observe the sexual behavior described by [complainant] and does not know anything about it. “It sounds like him, especially if he’s been drinking.”

Assistant provided the following:

She was hired in December 2006 and quit in May 2007. They begged her to come back and she was rehired in August 2007. She quit again in February 2008.

[Respondent 2] was a bad alcoholic, an “old drunk.” He was drunk every day by 5:00 P.M.

The first day she came back to work in August 2007, [Respondent 2] grabbed her by the neck and kissed her. He kissed her three different times that day. He probably kissed her ten times in total. She told him a couple of times to knock it off.

[Respondent 2] kissed a number of female employees but he was very focused on [complainant] and another employee, [employee 1]. He would say that if he wasn’t married he would run away with [employee 1] or [complainant].

She heard [Respondent 2] make references to [complainant]’s race on a daily basis. He would say things like, “How do you like my black girl?” He would refer to her as “colored” or “colored girl.” She told him not to say that, and he would reply, “She shouldn’t be ashamed of being black.”

Manager told her that they let [complainant] go “for bringing this up” (meaning, racial and sexual harassment). Wife was involved in the day to day operation of the business in 2007.

V. ANALYSIS:

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.

Complainant, alleges that Respondents, [Respondent 1] and [Respondent 2], subjected her to sexual and racial harassment and terminated her for complaining about it.

Respondents denied the allegations.

Harassment

The Maine Human Rights Act provides, in part, that it is unlawful employment discrimination, for any employer, because of race, color or sex, to 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).

The Maine Human Rights Commission Regulations provide, in part, that harassment on the basis of race, color or sex is a violation of Section 4572 of the Maine Human Rights Act. Unwelcome comments, jokes, sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual or racial nature constitute sexual or racial harassment when such conduct has the purpose r 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)(c)(sex), § 3.09(F)(1)(c)(race or color) ( July 17, 1999).

“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.

The fact that the conduct complained of is unwelcome must be communicated directly or indirectly to the perpetrator of the conduct. See Lipsett v. University of Puerto Rico, 864 F.2d 881, 898 (1 st Cir. 1988). In some instances, Complainant may have the responsibility for telling the alleged harasser directly that his or her comments or conduct is unwelcome. In other instances, however, Complainant’s consistent failure to respond to suggestive comments or gestures may be sufficient to communicate that the conduct is unwelcome. Id. Where Complainant never verbally rejects a supervisor’s sexual advances [or racial comments], yet there is no contention or evidence that Complainant ever invited them, evidence that Complainant consistently demonstrated unalterable resistance to all sexual advances [and racial comments] is enough to establish their unwelcomeness. SeeChamberlin v. 101 Realty, Inc., 915 F.2d 777, 784 (1990). Complainant may also be relieved of the responsibility for directly communicating unwelcomeness when she reasonably perceives that doing so may prompt the termination of her employment, especially when the sexual overtures [or racial comments] are made by the owner of the business. Id.

The MHRC Regulations provide, in part, that when a 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 or racially 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. Me. Hum. Rights Comm’n Reg. § 3.06(I)(2)(sex), § 3.09(F)(2)(race or color) ( July 17, 1999).

With respect to the claim against [Respondent 2] individually, the Act defines “employer,” in part, as “ . . . any person acting in the interest of any employer, directly or indirectly. . . .” 5 M.R.S.A. § 4553(4). The plain language of this provision covers [Respondent 2] individually. Moreover, the Act defines “unlawful discrimination” to include “[a]iding, abetting, inciting, compelling or coercing another to” engage in employment discrimination. 5 M.R.S.A. § 4553(10)(D). This provision also applies to [Respondent 2] individually.

Here, Complainant has established that she was subjected to an actionable hostile work environment on the basis of race and sex. [Respondent 2] made frequent, perhaps daily references to her race that were inappropriate and demeaning. He stated, “Black is beautiful,” bragged about hanging out with “them colored people,” and about “dating one of them colored girls.” He referred to [complainant] as “colored,” “the colored girl,” and “the Black girl.” He called her an “African-American Jew” when she wore a small knit cap. In front of customers, he humiliated her by putting his arms around her and saying “Isn’t she a beautiful Black woman.” [Respondent 2] also made numerous unwelcome sexual advances by touching [complainant], hugging her, and kissing her without permission or encouragement.

[Respondent 2] also made derogatory comments about other ethnic groups as well, including Hispanics and Asians, which added to the hostile and offensive working environment.

[Respondent 2] was the owner, and it was difficult for [complainant] to confront him directly about his behavior. Nonetheless, [complainant] consistently and unwaveringly communicated to [Respondent 2] that his behavior and comments were unwelcome. She did so indirectly by never inviting or reciprocating [Respondent 2]’s sexual advances or his comments about race. Eventually, she told him to leave her alone and Assistant told him to leave [complainant] alone. In spite of this, the harassment continued and began taking a psychological toll on [complainant].

Respondents did not meet their burden of proving that they exercised reasonable care to prevent and correct promptly the sexually and racially harassing behavior. [Respondent 2] ignored [complainant]’s objection and rejection of his kisses, touching, and racial labeling, as well as Assistant’s admonitions that he stop commenting on and calling attention to her race. Respondents did not have a sexual or racial harassment grievance policy and procedure.

Respondents also failed to prove that [complainant] unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Short of quitting, [complainant] had no way to avoid being harassed and Respondents did not provide her with any avenues to make an internal complaint. [complainant] eventually sought help from an attorney who demanded that the harassment stop, and Respondents responded by terminating her employment (see below).

Retaliation

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).

The Maine Human Rights Commission regulations provide as follows:

No employer, employment agency or labor organization shall discharge or otherwise discriminate against any employee or applicant because of any action taken by such employee or applicant to exercise their rights under the Maine Human Rights Act or because they assisted in the enforcement of the Act. Such action or assistance includes, but is not limited to: filing a complaint, stating an intent to contact the Commission or to file a complaint, supporting employees who are involved in the complaint process, cooperating with representatives of the Commission during the investigative process, and educating others concerning the coverage of the Maine Human Rights Act.

Me. Hum. Rights Comm’n Reg. 3.12 ( July 17, 1999).

In order to establish a prima-facie case of retaliation, Complainant must show that she engaged in statutorily protected activity, she was the subject of a materially adverse action, and there was a causal link between the protected activity and the adverse action. See Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 20,824 A.2d 48, 56; Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (2006). One method of proving the causal link is if the adverse action happens in “close proximity” to the protected conduct. Burlington Northern, 126 S. Ct. 2405.

The prima-facie case creates a rebuttable presumption that Respondent retaliated against Complainant for engaging in statutorily protected activity. See Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 172 (1 st Cir. 1995). Respondent must then produce some probative evidence to demonstrate a nondiscriminatory reason for the adverse action. See Doyle, 2003 ME 61, ¶ 20, 824 A.2d at 56. If Respondent makes that showing, Complainant must carry her overall burden of proving that there was, in fact, a causal connection between the protected activity and the adverse action. See id.

Here, Complainant established a prima facie case of retaliation by showing (a) she rejected and complained about [Respondent 2]’s sexual and racial harassment, (b) she was terminated, and (c) she was terminated shortly after she made Respondent [Respondent 1] aware that she had consulted with Attorney about her right to be free from sexual and racial harassment at work.

Respondent [Respondent 1] did not meet its burden of producing any probative evidence to demonstrate a nondiscriminatory reason for terminating Complainant’s employment.

Complainant met her overall burden of proving that she was terminated in retaliation for rejecting and complaining about sexual and racial harassment based on the strength of her prima facie case as well as the following:

Manager’s stated reasons for terminating Complainant were contradictory and therefore implausible. Manager told Complainant that she was let go because she could not work enough hours and also because the store was overstaffed.

Furthermore, [complainant] observed a Help Wanted sign in the window shortly after she was terminated, showing that the store was not truly overstaffed when Respondent let [complainant] go.

Finally, Manager told Assistant that they let [complainant] go “for bringing this up” (meaning, racial and sexual harassment).

With respect to the claim against [Respondent 2] individually, the investigation did not uncover whether he was involved in the decision to terminate Complainant’s employment.

VI. RECOMMENDATION:

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

There are Reasonable Grounds to believe that the Respondents, [Respondent 1] and [Respondent 2], subjected Complainant, [complainant], to sexual and racial harassment, and that Respondent [Respondent 1] terminated her employment in retaliation for her complaining about the harassment; and

Conciliation should be attempted in accordance with 5 M.R.S.A. § 4612(3).

_______________________________ _____________________________

Patricia E. Ryan, Executive Director Barbara Lelli, Chief Investigator

The letter sent to [Respondent 2’s wife] by Attorney was sent to [Address 1] with no street number.

COMMISSION INFORMATION

Investigators Report: E08-0057, E08-0057A