Investigators Report: E07-0524
[Complainant]
v.
[Respondent]
I. COMPLAINANT’S CHARGE:
[Complainant], alleged that Respondent, [ ], subjected her to sexual harassment in the work place. She further alleged that she was constructively discharged when she quit her employment because she could no longer tolerate the sexual harassment.
II. RESPONDENT’S ANSWER:
Respondent, [ ], denied the allegations of sexual harassment and states that Complainant resigned from her employment after being repeatedly directed not to engage in improper conduct while at the office, and on the last day of employment, being told to prioritize work responsibilities by the owner.
III. JURISDICTIONAL DATA:
1) Date of alleged discrimination: 8/07/2007.
2) Date complaint filed with the Maine Human Rights Commission: 10/22/2007.
3) [Respondent], employs four or five employees and is subject to the Maine Human Rights Act, as well as state employment regulations.
4) Respondent is represented by [Attorney 1]. Complainant represents herself.
5) Investigative methods used: A thorough review of the written materials provided by the parties, interviews, a fact finding conference.
IV. DEVELOPMENT OF FACTS:
1) The parties and issues in this case are as follows:
a) The [Complainant], is a female who worked for Respondent as a receptionist from April 2007 until August 7, 2007.
b) The Respondent, [ ], is a small commercial and residential roofing company that has been in business since 2001.
c) Owner was Complainant’s immediate supervisor and is the person who Complainant alleges sexually harassed her. Operations Manager was the Operations Manager for the roofing business. Other witnesses in this case are described as follows: RW1 and RW2 (Respondent Witnesses), and witnesses for the Complainant: Former Secretary, Accountant, Former co-worker 1, Former Co-Worker 2, CW1 and CW2.
d) Complainant states she was sexually harassed in her employment and, as a result, resigned from her employment on August 7, 2007.
e) Respondent denies the allegations of sexual harassment and states that Complainant resigned from her employment after being repeatedly directed not to engage in improper conduct while at the office, and on the last day of employment, being told to prioritize work responsibilities by the owner. Complainant alleges that Respondents statement is false and that she resigned from her employment because she could no longer tolerate the sexual harassment she was subjected to.
2) The following information is undisputed:
a) In April 2007 Complainant was hired as a receptionist by Respondent at $12.00 per hour.
b) Complainant was given a raise to $14.00 per hour in her first month.
c) Complainant resigned from employment on August 7, 2007.
3) The parties provided the following regarding Complainant’s initial months of employment:
a) (Respondent’s answers) Complainant’s job duties involved answering phones, greeting clients and prospective clients, filing and other clerical tasks. The initial months of Complainant’s employment were good, as Complainant developed a good rapport with staff and clients.
b) (Respondent’s answers) In July of 2007, Complainant’s conduct at the office began to change. She began to bring new and used electronic equipment (televisions, laptop computers, Xbox game consoles) to the office, and sell or attempt to sell it to staff and customers. Owner and Operations Manager were uncomfortable with this conduct because they were uncertain of the source of the materials and Owner instructed Complainant to stop doing it. This reprimand was not well received by Complainant, who became acerbic and abrasive at the office, directing most of her anger toward owner. To compound matters, as a result of a down turn in business, [Respondent] later reduced her hours, an action that was met with further disdain from Complainant.
c) (Owner – in response to investigator’s question as to how Complainant became “acerbic and abrasive”) “She was sarcastic, but she just walked off and that was the end of it.” “This was several months before she got done – that was the end of it.”
d) (Complainant) She never brought in any of the items to sell that Respondent mentioned. She had a camera for her own personal use. They did purchase that from her.
4) The parties provide the following regarding Complainant’s allegations that she was subjected to sexual harassment by Owner:
a) (Complainant) Owner touched her inappropriately on many occasions. “It was mild at first - dirty talk, slapping her buttocks.” Then he “got a little more daring.” He grabbed both of her breasts in his hands. She “was shocked and would say to Owner, ‘What are you doing? Don’t do that’” when he would touch her inappropriately. He would always say, “I’m (owner’s name). I’m the boss. I can do what I want. I’ll replace you just like I did the last secretary.”
b) (Respondent’s answers) At no point in time did Mr. [M] ever touch Complainant or say anything inappropriate to Complainant, who was, until the events leading up to her resignation, a good employee.
c) (Owner) He also never said “I’m (owner’s name). I’m the boss. You do what I say.” “I would never say that.” “This is all drama.”
d) (Complainant) Owner made several inappropriate sexual comments to her including stating that he would like to “f—k her brains out.”
e) (Owner) He denies making the above-mentioned comment or any other sexual comments to Complainant. He denies making any comment that could have been perceived by Complainant to be sexually offensive. Complainant’s allegations are “pure fabrication.”
f) (Complainant) On one occasion, possibly near the end of June 2007, Owner called her into his office where he was working on the computer and asked her to look at a picture on the screen. The picture depicted his fiancé in a position that showed her private area and Owner was also pictured on the screen showing that he had an erection. When she realized what was on the screen, she stepped back around the corner. He asked her if she would be able to “handle his big cock.” He described the size of his penis, said how he would like to “f—k” her with it and told her she didn’t know what she was missing. She informed Owner that she was uncomfortable with his behavior and asked him to please stop. She went back to her desk and he stayed in his office.
g) (Owner) He was in his office when Complainant walked in. “There was a pop-up on the screen – a girl popped up naked. Other people used that computer.” He didn’t know where the picture came from. His wife, son and daughter come into the office. He “wouldn’t have that stuff popping up.” “When [Complainant] came in, there was no big statement. I saw the pop-up and said ‘whoops.’ I erased it. She turned around and walked out.” Respondent’s answers further state, in reference to the above, that “[Respondent], is a small business without sophisticated anti-spamming software. With the prevalence of spamming, it is unlikely that anyone without sophisticated software would be able to avoid these pop-ups. The picture was not of Owner or his fiancé or of anyone else Owner knew. Owner was obviously embarrassed by this and immediately removed the picture from his screen.” He did not make any of the comments that Complainant alleges.
h) (Complainant) There was a workout room at the office. She, owner and other employees used to train a couple of nights a week. She is a personal trainer. Owner would go into his office to change before working out. On one occasion, he called her into the office and he was standing in his underwear and socks. He told her to go get her camera. When she asked him why, he said he wanted her to take his picture. When she again asked why, he said, “I’m (owner’s name) – I can do what I want. I want you to see what you are missing.” She felt she had to do what she was told since he was her boss so she took his picture. (Note: Complainant provided an e-mail of this photograph for purposes of this investigation.)
i) (Owner) “[Complainant] introduced us to a personal trainer who came to the office to work out. He was doing a diet program – Icogenics. He (owner), [Complainant] and Operations Manager were all doing the program. You are supposed to do before and after photos and measurements. I had boxer shorts on and she took the picture. She is a personal trainer. She sees men in their boxer shorts.” He believes that Operations Manager was there when the picture was taken. There was nothing sexual about the picture. She did his measurements (calves, chest, etc.) the same day she took the picture.
j) Complainant confirms that they were all doing the diet but states that was not why she took the picture. “Why would he need to be in his boxers for that?” She denied taking his measurements.
k) (Complainant) “One time he came out of his office after he had been looking at his computer. He was coming at (her). She swung back and hit him in the groin. She realized he had an “hard on.” He said “ow, that hurt”. He kind of giggled and went into the Operation Manager’s office.”
l) Owner denies the above.
m) (Complainant) On two or three occasions, Owner would be sitting on the toilet in the office with his pants down and he would have the bathroom door open. He would holler for her from that end of the building and she would go down – not realizing he was in the bathroom. She could see his penis hanging in the toilet. She “fell for this” three or four times but after that when he would yell at her from that direction, she would only go halfway down the hall and ask what he wanted so she did not have to see him.
n) (Owner) The above is “absolutely not true.” This never occurred.
5) The following information pertains to time Complainant spent with Owner aside from work duties:
a) (Complainant) She went to Owner’s Fourth of July picnic “because you were almost made to go. People were all saying they did not want to go. Owner came in and said he was having a party and we had all better go or we would lose our jobs.”
b) (Owner) He never told people they had to go or they would lose their jobs. “Why would I force people to go?”
c) (Owner) Two weeks before Complainant ended her employment, he had a cookout at his house. It was a family cookout with his wife and kids. She brought her child. He never told people they would be fired if they did not come. On the fourth of July, he rented a campsite and invited [Complainant]. She came and played horseshoes. “If I’m sexually harassing someone, why would she show up at my house?”
d) (Complainant) At one party, she stayed by Operations Manager throughout the entire party. At one point, Owner picked her up by her butt and rubbed up against her. His wife witnessed it and was “not happy.”
e) (Owner) He denies he ever picked Complainant up by her buttocks.
f) (Respondent’s answers) Because [Respondent] had a workout facility attached to it, and because of Complainant’s prior experience as a personal trainer, Complainant was granted permission to conduct personal training sessions when her work was completed or on breaks. [Respondent] was comfortable with this arrangement because of Complainant’s good work performance.
g) (Complainant) They did used to work out after work at the office. They only worked out about fifteen times, however. They did not work out at all the last couple of months she worked there. She enjoyed the workouts – they were a challenge. “It wasn’t about Owner. I liked everyone else I worked with.”
h) (Owner) [Complainant] had a key to the warehouse and would work out for an hour every morning before work. “Why would she do that alone if I was sexually harassing her?”
i) Complainant responds to the above stating that she came in early to do work. Owner was never in the office that early so she wasn’t in fear of him then.
6) The following is in reference to Complainant’s allegations that Operations Manager witnessed incidents of sexual harassment:
a) (Complainant) Owner acted in the sexually offensive manner in front of both co-workers and people they did business with.
b) (Complainant) Operations Manager witnessed 90% of the sexual harassment and told Owner his behavior was not appropriate and to stop but he did not. Operations Manager told Owner that he was “looking for a lawsuit” if he did not stop the inappropriate behavior.
c) (Operations Manager) It is not true that he witnessed incidents of sexual harassment. He never saw Owner grab Complainant’s breasts or buttocks. He cannot recall anything like this. All he saw was “mutual hugging” “maybe more than five times.” He never told Owner that he was “looking for a lawsuit” if he did not stop his behavior. He does not remember [Complainant] coming to him about any graphic sexual pictures on the computer nor did she tell him that Owner had been to her house on August 5, 2007. He does not recall ever hearing Owner ask [Complainant] to come down to the bathroom when Owner was in the bathroom. Employees were not required to attend outings that Owner had. He has missed some with no repercussions.
d) (Operations Manager) He was not in the room when the picture was taken of Owner in his underwear but he was in the building. He was too uncomfortable with his weight to take his shirt off or to have [Complainant] take his picture or do his measurements. He wanted to do it on his own.
(e) (Complainant) She never hugged Owner.
(f) (Complainant – In response to Operations Manager’s testimony at fact finding) She never had any issues with Operations Manager. “He was put in a tough situation. He and Owner were lifelong friends.” She believes that Operations Manager is “just protecting himself” and she “doesn’t blame him for that.”
7) The following are witness statements provided on behalf of the Complainant along with Owner’s response as to why he believes these individuals would make statements against him:
a) (Former Secretary) She began employment in the Fall of 2006 and was laid off at either the end of February or beginning of March 2007. She admittedly had a consensual personal relationship with Owner for a short period of time. Everybody in the shop knew they were having a personal relationship. When she learned after Christmas 2006 that he was living with someone, she told him she was ending the personal relationship. When she told Owner she was ending the relationship, he still kept trying to pursue her.
b) (Former Secretary) One time, after she had ended their personal relationship, Owner came up behind her and pressed himself against her. She told him not to ever touch her again. She had told him before many times that his behavior was inappropriate but on that occasion, she was really angry and she told him she had “had enough.” Operations Manager brought her into his office and apologized for Owner’s behavior. She knows that Operations Manager told Owner his behavior was inappropriate. “He made a lot of sexual comments. He had no censor button.” She stayed because she needed the job. She was laid off shortly after the above incident with the reason given of lack of work.
c) (Operations Manager) He denies that he ever apologized to Former Secretary for Owner’s behavior as he was unaware of any sexual harassment.
d) (Owner) His wife was his fiancé during the period in question above. It was not a secret. He never had a personal relationship with Former Secretary. They only had a working relationship. She was laid off when they decided they were not going to have any more secretaries. He met Complainant in April 2007 at the gym. She was “energetic, smart, she had a whole different energy, was more aggressive, on-the-ball than Former Secretary, so they decided to try it out” (to hire another secretary).
e) (Former Secretary) She had only met Complainant once when she stopped by the office to see Former Co-worker 2. He told her after that that Complainant had filed a sexual harassment charge and that the Maine Human Rights Commission may be calling her. Complainant called her in September 2008 and asked her to attend the fact finding conference with her because Complainant had heard what she had been through. Complainant and she are not friends. She only knows her because of the sexual harassment complaint. “This case has nothing to do with me and I am not going to get anything out of it but what Owner is telling you is simply not true.”
f) (Former Co-worker 1) He witnessed two incidents of unwanted sexual advances by Respondent towards Complainant. The first incident occurred in mid-July 2007. He was approximately 6-7 feet from the office when he heard Complainant shout, “Keep your hands off me.” He walked into the room and saw Complainant and Owner standing a couple of feet apart. There was no one else in the room. Complainant appeared to be very upset, flustered and embarrassed Since he had only been hired as a sales rep a few weeks earlier, he was unaware of their relationship status so he did not get involved with the situation. He began talking to Owner and Complainant quickly left the room.
The second incident occurred about 10-14 days later. He witnessed Owner grab Complainant’s right buttock in his right hand, squeezed it and then rubbed his private area against her back side. Complainant immediately turned around and said, “Knock it off.” She was extremely upset and left the room. The Operations Manager witnessed this also. Neither he nor Operations Manager said anything to Owner.
g) (Former Co-worker 1) Owner did have cookouts when he worked there. He never went. He does not ever remember Owner saying employees had to attend or be fired.
h) (Owner) Former Co-Worker 1 has a personal matter against him. He threatened to kill Owner and Owner filed criminal charges against him which are still pending. He did not work for Owner while Complainant was there.
i) (Former Co-Worker 1) He did work for owner while Complainant was there. He left for a few weeks due to lack of work and then was called back a few weeks later. Complainant was gone by then. He does have criminal charges filed against him. They had a dispute over a commission he felt he was owed. Owner threatened to “rip his head off and stick it up his ass.” He told Owner that he would do the same to him. Owner’s wife told him to get off their property. Owner pressed charges against him. He didn’t do anything that Owner didn’t – he just didn’t press charges against Owner. His only motivation for providing a statement for Complainant is that Owner “shouldn’t have been doing this to [Complainant]. It’s just not called for.”
j) (Former Co-Worker 2) He worked for [Respondent] from March 2006 through June 2008 in varied positions. He worked for Owner when both Complainant and Former Secretary were employed there. Owner bragged about having a sexual relationship with Former Secretary. Shortly after Former Secretary ended that relationship, he was with Owner and Operations Manager at a local restaurant having breakfast. Owner exchanged a series of verbally abusive, sexually demeaning insults by text message to her. Owner read each message aloud to him and Operations Manager. He distinctly recalls Owner using the words “slut” and “whore.” “It was immediately after this that Owner ordered Operations Manager to inform her that she was terminated. The reason for her termination was stated as a lack of work.
k) (Former Co-Worker 2) He believes that Complainant was hired within a few weeks of Former Secretary’s termination. He recalls having a private conversation with Operations Manager at which they agreed that hiring another secretary was a bad idea because Owner would most likely try to have a sexual relationship with her as well. He also recalls that Operations Manager had stated that the company’s accountant had recommended that if a secretary were hired, that she be much older, because the accountant feared that Owner would try to have sex with her if she were young and attractive.
l) (Former Co-Worker 2) Most often he was away from the office by the time Owner arrived to work so he had very little opportunity to observe the manner in which Owner interacted with other employees. However, on one occasion he witnessed Owner entering the office and saying hello to him and Operations Manager. He then walked directly around the back of where Complainant was seated and wrapped his arms around her hugging her, and said good morning. While wrapping his arms around her, he cupped his hand and placed it directly onto her breast, where his hand remained for several moments. Complainant “pretty much froze. There wasn’t a blatant reaction. Within seconds when she went to react, Owner let her go.” He (Former Co-worker 2) walked away. He wanted no part of it. She was obviously embarrassed. Several minutes later, Former Co-Worker 2 was outside when Complainant exited the building. She looked flustered and visibly upset. After a moment, she said, “I can’t believe he just grabbed my boob.”
m) (Former Co-Worker 2) He went to company cookouts but only when he had to. Owner did not come right out and say he had to be there but if he didn’t go, Owner was pretty nasty for a few days.
n) (Former Co-Worker 2) It may not have any bearing on the case but he wanted (this investigator) to hear it from him – not Respondent – in case they raised the issue. He is a convicted felon – a convicted sex offender. He has reestablished himself in the community and does not want the Respondent to use this as an issue about his credibility so he wanted to address the issue first. “He has nothing to gain from providing this statement – it’s just the right thing to do.”
o) (Former Co-Worker 2) He purchased part of Owner’s business for $4,000.00 in July 2008. As it was past the deadline to get the new company into the phone book, one of the conditions of purchase was that Owner would forward all gutter related telephone calls to him. He has made his statements to the Maine Human Rights Commission at great financial risk if Owner should decide to retaliate against him by not fulfilling his part of the contract.
p) (Owner) Former Co-Worker 2 and Complainant are good friends.
q) (Complainant) She and Co-Worker 2 are not great friends. They grew up in the same neighborhood but do not “hang out” with each other.
r) (CW1) He is a sales rep for a local company. He had only been to Respondent’s place of business two or three times and only once when Complainant was there. During a sales call to Respondent’s place of business, he and his colleague, CW2, witnessed Owner slap Complainant on the buttocks two times in a row. She appeared to be caught off guard. She looked shocked and embarrassed. She just left the room within 15 seconds after it occurred.
s) (CW2) He probably went to [Respondent], more than CW1 because he was the salesman for the account. The only incident he witnessed was when Owner slapped Complainant on her buttocks (as mentioned above). She looked embarrassed. She looked like she couldn’t believe that he had just done that.
t) (Owner) CW1 and CW2 came to the office to solicit him to buy materials from them. He purchased $15,000.00 worth of materials from them. However, the job fell through that he ordered the materials for. Now they are taking him to court for the $15,000.00. It’s in a collection agency now. They are also friends of [Complainant]’s.
u) (CW1) It’s not him that Owner owes money to – he owes it to the company that CW1 works for. It’s not a personal grudge – it’s only what he witnessed. He is not friends with [Complainant] – he and CW2 know her because they all work out at the same gym but they are not friends. He has nothing to gain by submitting his statement.
v) (CW2) He “would not want to get himself in hot water by lying to state officials so he is definitely telling the truth.” He is not a friend of Complainant’s – they are acquaintances who work out at the same gym.
w) (Former Accountant) She was never an employee of Respondent. She has her own accounting business and she did Respondent’s taxes. She last did Respondents 2007 taxes in 2008 but chose to no longer do them – for reasons not related to this complaint. She did not say (as alleged in “k” above) that Owner would try to have sex with a new bookkeeper. She did tell Operations Manager on one occasion that for them to hire a young, cute girl would not fit in the atmosphere of a roofing company. Roofing companies are tough – the employees are tough and the language can be rough. She did suggest that they hire an older, more experienced person who could handle the atmosphere better. She believes this conversation took place between the time of Former Secretary being let go and Complainant being hired because they were having a tough time keeping up with phone calls and things. She told them they needed to hire someone.
x) (Former Accountant) She never witnessed Owner sexually harassing anyone and he never sexually harassed her. She does know that everyone he has ever wanted to hire in the past, he has always talked to her about their shape and their looks as opposed to their ability to do the job. She is 60 years old and has known Owner since she was 49. She basically told him in the past that if he just hires people for their looks they won’t last, he’ll have a problem and he’ll have to worry about whether that person can do the job. She did recommend that they hire a man which they did once. Owner would not keep him. He actually told her that he did not want to keep him because he wanted a good looking girl there. That was about five or six years ago.
y) (Former Accountant) She helped train Complainant. She never met Former Secretary. She did warn Complainant that the language could get a little rough. Complainant said she understood that this was a roofing company and that crude language would not bother her.
z) (Respondent’s rebuttal to above) Owner, who spoke to Former Accountant perhaps one to two times a year, never had any discussions about the “shape” or “looks” of his employees and such a suggestion is laughable.
8) The following are witness statements provided on behalf of Respondent:
a) (RW1) He was a subcontractor at the time of these events performing roofing duties. He is now an employee for Respondent. He knew Complainant during a couple of months of her employment. He never witnessed any type of sexual harassment – verbal or physical. He never heard Complainant complain about sexual harassment. He never felt forced to go to company picnics. He went to some. A lot of people that were invited didn’t go. One employee he knew didn’t go – he was not fired.
b) (RW1) In response to Respondent’s attorney’s question, he had no problem bringing his child into the office as there were no issues there to be concerned about.
c) (RW2) He works as a roofer for Respondent and was working for Respondent during the entire period of Complainant’s employment. He was not in the office much but when he was he never saw or heard anything inappropriate. He never heard Complainant say that anything inappropriate was happening.
d) (RW2) He went to company outings – and has also missed a few – he was never required to attend.
e) (RW2) In response to Respondent’s attorney’s question, he had no problem bringing his children to the office as there were no issues there to be concerned about.
f) (Complainant – in response to the above testimony) She does not wish to put these people in a bad spot by questioning their testimony.
9) Complainant and Co-Worker 2 provided the following information regarding events leading up to Complainant resigning from employment:
a) (Complainant) On or about August 5, 2007, Owner came to her home to return a cooler he had borrowed. He had been there only a few minutes when he approached her and began to grab at her breast and tried to kiss her. He “tried to stick his tongue down (her) throat.” She asked him “what the hell he was doing.” He backed away and left.
b) (Former Co-Worker 2) He was in Complainant’s basement working on her home security alarm when the above-mentioned event occurred. Complainant had asked him to look at her alarm system as he had previous experience working with such systems. She picked him up and gave him a ride to her house as his car was not running at the time. Therefore, his car was not in Complainant’s driveway and Owner would not have had knowledge that he was there. He heard Owner come into the house and could hear Complainant and Owner talking in the kitchen above where he was working. He could not make out what was being said. At one point, however, he heard Complainant clearly say, “Stop It! What the hell gives you the right to kiss me?” He heard a brief exchange, then the door slammed. He went upstairs as he heard Owner’s truck rush out of the driveway. Complainant informed him that Owner had “shoved his tongue down her throat.”
c) (Complainant) When she went into work on the following Monday, Owner was obviously upset with her because she had “put him in his place.” “He came in right away and started placing demands on me with a very nasty attitude.” “I told him I would get to it when I finished what I was doing.”
d) (Complainant) Owner told her to “Do it now.” He stated, “I’m (owner’s name). I’m the boss. You’ll do what I’ll tell you or I’ll replace you.” She knew he was angry at her because of the Saturday before at her house. She had had enough. Owner turned around and went into Operation Manager’s office. Owner then left the office. She told Former Co-Worker 2 “that’s it, I’ve had enough.”
e) (Complainant) She gave verbal notice to Operations Manager and Former Co-Worker 2 that she was all done. She then text messaged Owner and told him she had had enough and that she was quitting her job. She finished up the day for Operations Manager’s sake.
f) (Former Co-Worker 2) On the day Complainant resigned, Owner entered the office and “immediately informed [Complainant] that she was to drop everything and do something for him…[Complainant] said she would as soon as she was finished with the task she was working on. Owner went into a tirade about how he was the boss and when he spoke he expected her to jump..or he’d replace her just like he did the last one…[Complainant] responded that she did not appreciate the way he was speaking to her and that she quit.”
10) Respondent provides the following in response to the above:
a) (Owner) He has never even been to Complainant’s house; therefore, none of what she said happened at her house occurred.
b) (Respondent’s answers) On August 7, 2007, Owner returned to the office from a roofing job. He asked Complainant to file his notes from the job. Complainant, “striking the same abrasive and unprofessional tone that had been a hallmark of her terminal weeks of employment,” told Owner that she “did not have time to do [your] job.” Owner calmly instructed Complainant to “Make time, as this is your job.” Owner left the office to work on another job. Shortly thereafter, Complainant sent him a text message stating (paraphrasing), “No one will talk to me like that. I’m done.” Owner responded that he accepted her resignation and informed Operations Manager.
c) (Operations Manager) He believes Owner asked [Complainant] to file something – “there was a little turbulence going on. There was tension created.” “Around 11:30 – 1:00, she made it clear that that was her last day. She said she didn’t’ want to be talked to in that tone. She finished out the day.”
d) (Respondent’s answers) Ms. [Complainant] resigned from employment because she was upset that she was required to do work that she did not feel was part of her job responsibilities and she was upset that Owner was reprimanding her for inappropriate conduct at work. She was also upset over a reduction in hours.
11) The parties provide the following regarding Complainant’s hours of work:
a) (Respondent) When Complainant was hired, she was initially only working five hours per week. Her hours increased during her employment.
b) (Complainant) She never worked only five hours per week. She started out working 40 hours per week and worked her way up to approximately 55 hours per week. When her hours were cut, she was still working 40 hours a week.
c) (Operations Manager) Complainant’s hours were cut three to four weeks before her employment ended as they were trying to find ways to save money. She had commented that she was being underpaid.
d) (Complainant) She never complained that she was being underpaid.
12) Additional information provided:
a) (Complainant) Her house was about to go under foreclosure. “The sexual harassment was distracting but I needed the job.” Operations Manager would compliment her job performance and said she was an asset to the company. He gave her a good letter of recommendation (in file). She is a single mother, she “tolerated more than she should have” because she needed the job.
b) (Respondent’s answers) Complainant never complained about inappropriate behavior to Owner or Operations Manager. While [Respondent] has the required postings that detail what to do in the event of suspected harassment, as well as a detailed policy against harassment, Complainant never availed herself of these reporting avenues, which is not surprising given the fact that the conduct never occurred. Had she raised these concerns, [Respondent] would have conducted a prompt and thorough investigation.
c) (Former Co-Worker 2) The sexual harassment policy was not in place while Complainant was employed by the company. He knows this to be true because he personally wrote all the policies the company had and sexual harassment was not one that he wrote. Owner received a copy of a sexual harassment policy from an attorney by e-mail, and Owner instructed Operations Manager to disseminate it to all employees.
d) (Owner) Former Co-Worker 2’s statements in “c” above are not true. He had a sexual harassment policy and a minimum wage policy posted.
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) Here, [Complainant], alleges that Respondent, [ ] subjected her to sexual harassment and that she was constructively discharged when she resigned from her position in order to escape the sexual harassment.
3) Respondent, [ ], denied the allegations of sexual harassment and stated that Complainant resigned from employment because she was upset that she was required to do work that she did not feel was part of her job responsibilities and she was upset that Owner was reprimanding her for inappropriate conduct at work. She was also upset over a reduction in hours.
Sexual Harassment / Hostile Work Environment
4) 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).
5) 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: . . .
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).
6) “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.
7) 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 (1st 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, yet there is no contention or evidence that Complainant ever invited them, evidence that Complainant consistently demonstrated unalterable resistance to all sexual advances is enough to establish their unwelcomeness. See Chamberlin 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 are made by the owner of the business. Id.
8) The MHRC Regulations provide the following standard for determining employer liability for sexual harassment committed by a supervisor:
When the supervisor’s harassment culminates in a tangible employment action, such as, but not limited to, discharge, demotion, or undesirable reassignment, liability attaches to the employer regardless of whether the employer knew or should have known of the harassment, and regardless of whether the specific acts complained of were authorized or even forbidden by the employer. 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 harmotherwise.
Me. Hum. Rights Comm’n Reg. § 3.06(I) (2) (July 17, 1999).
9) It is a violation of the Maine Human Rights Act if, although not formally terminated, an employee has no reasonable alternative to resignation because of intolerable working conditions. See King v. Bangor Federal Credit Union, 611 A.2d 80, 82 (Me. 1992). “The test is whether a reasonable person facing such unpleasant conditions would feel compelled to resign.” Id. In addition, “an employee can be constructively discharged only if the underlying working conditions were themselves
unlawful (i.e., discriminatory in some fashion).” Sweeney v. West, 149 F.3d 550, 557-558 (7th Cir. 1998).
10) Here, Complainant has demonstrated that she was subjected to unlawful sexual harassment and constructive discharge, with reasoning as follows:
a) Owner states that starting in July 2007, Complainant’s conduct began to change when she started bringing items to the office for sale. Respondent’s answers state that when Complainant was spoken to about bringing these items in, she became “acerbic and abrasive” at the office directing most of her anger towards Owner. However, when questioned at fact finding as to how she became “acerbic and abrasive,” he stated that “she was sarcastic but just walked off –and that was the end of it.” He did not state how she was sarcastic but since he states that was the end of it, there is no indication of how she “directed most of her anger towards Owner” as mentioned or that this behavior continued during her employment. In fact, Respondent’s answers stated that “until the events leading up to her resignation,” Complainant had always been a good employee.
b) Complainant provides detailed credible examples of how Owner subjected her to inappropriate sexual comments and touching. While Owner adamantly denies ever making comments of a sexual nature or touching Complainant in any inappropriate manner, Complainant provides several witnesses who testify to witnessing the inappropriate conduct.
c) Owner provides various reasons as to why Complainant’s witnesses are not credible (i.e. he denies having a relationship with Former Secretary, Former Co-Worker 1 has a personal matter against him, Former Co-Worker 2 and Complainant are good friends, CW1 and CW2 are taking him to court for money he states he owes them, and that he never had discussions with former Accountant about the shape or looks of his employees). Despite these reasons, it may be conceivable that one of Complainant’s witnesses may have an ax to grind with Owner and may provide false testimony as a way to get back at Owner. However, it is less conceivable that all six of Complainant’s witnesses would band together to provide false information against Respondent in a State investigation.
d) All of Complainant’s witnesses provided credible testimony. There were areas where these witnesses did not substantiate Complainant’s allegations, leading further credibility to their testimony since if they simply wanted to get back at Owner for something, they could have embellished on their testimony. Further, none of the witnesses had anything to gain from providing the information. In fact, Former Co-worker 2 stood to lose financially from his testimony based on his business relationship with Owner.
e) Complainant’s allegation that she witnessed a photograph of Owner and his wife in a sexually provocative pose could not be verified. However, Owner does admit that Complainant entered his office and there was a pop-up of a naked girl on the computer. His defense to this at the fact finding conference was that “other people used that computer.” Respondent’s answers stated that the image was due to the business not having sophisticated anti-spamming software to control such pictures. Neither argument is convincing. Whether the picture was of Owner and his wife is debatable. It is not debatable that there was a picture of a naked woman on the computer screen. Such pop-ups do not generally appear at random on computers unless such sites have been visited by that computer. Owner’s statement that his wife and children come into the office, so he would not have that type of picture on the computer, is also not convincing. It only takes a second to press a button to make images disappear from a computer screen. As such, Complainant’s version of this incident is more credible.
f) Complainant provided testimony that Owner would call her to the bathroom when he was sitting on the toilet and that she could see his penis. Operations Manager testified that he could “not recall” anything like this. The allegation was serious enough that if it had occurred, it would seem likely that Operations Manager could either say that it occurred or it never occurred. Saying that he does “not recall” these incidents is not convincing.
g) Likewise, Operations Manager testified that he “does not remember” [Complainant] coming to him about graphic sexual pictures on the computer. Again, given the nature of these serious allegations, it is unlikely that someone would simply “not recall” or “not remember” incidents of this nature.
h) Since Former Secretary also testified that she and Operations Manager spoke about Owner’s sexual harassment of her, it adds credibility to Complainant’s assertion that she and Operations Manager also discussed owner’s inappropriate conduct.
i) Regarding Owner’s witnesses, they testified that they did not witness sexual harassment of Complainant nor did they hear her complain of it. The fact that neither witnessed sexual harassment is not evidence that it did not occur. Both concur that since they were both roofers, they were not in the office much. The fact that both had no problems bringing their children into the office is really not relevant since one would expect that inappropriate conduct would not occur when children were in the office.
j) Complainant was credible when she testified that she did not work out with Owner in the workout facility near the end of her employment. She was also credible that she enjoyed the workouts with the other employees and that it “wasn’t about Owner.”
k) Respondent’s answers state that Complainant resigned from her employment after being “repeatedly directed not to engage in improper conduct while at the office.” However, Respondent states that when he spoke to Complainant about not selling things at the office (which she denies), that was a few months before her employment ended and that was “the end of it.” Nothing else happened relative to that matter.
l) Respondent alleges that Complainant never complained about sexual harassment. Complainant has provided credible testimony that Operations Manager was aware of the inappropriate actions that were taking place by Respondent. The evidence also demonstrated that Complainant repeatedly voiced or otherwise showed opposition to Owner’s unwelcome behavior directly to him. Witnesses have stated that they heard Complainant telling Owner to “Stop it” on occasions when his behavior was inappropriate. Other witnesses testified that Complainant “froze,” looked embarrassed, flustered and visibly upset – all actions that would make it clear that Owner’s actions were unwelcome.
n) Regarding constructive discharge, Complainant’s version of the events leading to her resignation is found to be credible. It is clear from the testimony that she was sexually propositioned at her home and then retaliated against at work the following Monday for rejecting Owner’s advances, which was the final straw that led her to resign from her employment.
11) There were areas of Complainant’s testimony that were not persuasive to this investigator, as outlined below:
a) That she attended private functions that the Owner hosted because he would threaten employees with their jobs if they did not come. None of Complainant’s witnesses testified to ever hearing Owner threaten their jobs if they did not attend his parties.
b) That owner would repeatedly state that he is “(owner’s name). I’m the boss. You do what I say.” Other employees, including Complainant’s witnesses all stated that they had not heard Owner make this comment.
c) That she was made to take a photograph of Respondent in his underwear because he wanted her to see what she “was missing.” Complainant submitted a copy of the picture which shows Owner standing in boxer shorts with socks on. In reviewing the picture, it does not appear to be sexual in nature but rather appears to be more in line with Owner’s version that it was a “before” picture for a diet. While it certainly may be inappropriate for Owner to have his picture taken in this manner by a subordinate employee, the picture does not show anything of a sexual nature.
12) The areas outlined in 11 above are troublesome to this investigator in
terms of not being persuasive. However, given the overall testimony of
Complainant’s witnesses, these issues do not change the
recommendation of this report.
V. RECOMMENDATION:
For the reasons stated above, it is recommended that the Maine Human Rights Commission issue the following finding:
1) That there are Reasonable Grounds to believe that the Respondent, [ ], Inc., subjected Complainant to unlawful sexual harassment; and
2) That there are Reasonable Grounds to believe that Complainant was subjected to constructive discharge; and
3) Conciliation should be attempted in accordance with 5 M.R.S.A. §4612(3).
_______________________ _____________________
Patricia E. Ryan Sheila P. Pierce
Executive Director Field Investigator
Operations Manager’s employment with Respondent ended in June 2008 due to Respondent downsizing as a result of the slow economy.
In a letter to the Commission, dated October 10, 2008, Respondent’s attorney does address the issue that one of Complainant’s witnesses is a convicted felon.
