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Final Order
Hearings Unit: Final Order
 
In the Matter of
Case Number 35-96
A.L.P. INCORPORATED
dba A.L.P. Incorporated, a Corporation
Idaho, dba Red-Eye Hut, Inc. Respondents.

 
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER

 

 
SYNOPSIS
 
Female Complainant was employed by corporate Respondent and was sexually harassed by individual Respondent, owner of the corporation. The Forum found the corporate employer, together with the individual Respondent who aided the unlawful practice, liable for Complainant´s resulting emotional distress. ORS 659.030(1)(b) and (g); OAR 839-07-550 (1) and (3); 839-07-555(1) and (3).

The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on January 4, 1996, in a conference room of the offices of the Employment Department, 375 SW 2nd Avenue, Ontario, Oregon. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. A.L.P. Incorporated, dba Red-Eye Hut, Inc., (Respondent A.L.P.) and Allen L. Pieper (Respondent) were represented by William C. Tharp, Attorney at Law, Ontario. Respondent was present throughout the hearing on his own behalf and as the representative of Respondent A.L.P. Teresa Getman (Complainant) was present throughout the hearing and was not represented by counsel.
 
The Agency called the following witnesses: Complainant; Complainant´s aunt Rebecca Ramirez, Complainant´s friend Rebecca Smith, Complainant´s husband Randy Getman, and Agency Senior Investigator Susan Moxley (by telephone).
Respondents called the following witnesses: Respondent, Respondents´ former employee Roberta Leija, Respondent´s neighboring shopkeeper Charlotte O´Leary, and Respondent´s friend Wes Sessums.
 
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Rulings on Motions and Objections, Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
 
 
1) On October 24, 1994, Complainant filed a verified complaint with the Agency alleging that she was the victim of the unlawful employment practices of Respondents. After investigation and review, the Agency issued an Administrative Determination finding substantial evidence supporting the allegations of the complaint. (Testimony of Complainant; Exhibits A-1, A-2)
2) On August 28, 1995, the Agency prepared for service on Respondents Specific Charges, alleging that Respondents discriminated against Complainant in her employment based on her sex in violation of ORS 659.030(1)(a), (b), and (g). With the Specific Charges, the Agency served on Respondents the following: a) Notice of Hearing setting forth the time and place of the hearing; b) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; c) a complete copy of Oregon Administrative Rules (OAR) regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. (Exhibit X-2)
3) A copy of those Charges, together with items a) through d) of Procedural Finding 2 above, were sent by US Post Office certified mail, postage prepaid, to the Respondents and their counsel on August 31, 1995. Both the Notice of Contested Case Rights and Procedures (item b) and the Bureau of Labor and Industries Contested Case Hearings Rules (item d) at OAR 839-50-130(1), provided that an answer must be filed within 20 days of the receipt of the charging document. US Post Office certified mail return receipts showed delivery on September 2, 1995. (Exhibit X-2)
4) On September 22, 1995, Respondents through counsel timely filed their answer wherein Respondents admitted employing Complainant, a female, in Oregon and that Respondent was her immediate supervisor. Respondents denied any unlawful employment practices or damages to Complainant based on Complainant´s female sex. (Exhibit X-3)
5) On October 6, 1995, the Forum issued a Discovery Order requiring each participant to submit a summary of the case pursuant to OAR 839-50-200 and 839-50-210. Respondents timely submitted their case summary. The Agency sought a resetting of the hearing and after discussions with the participants, the ALJ set the hearing for January 3, 1996. (Exhibits X-4, X-5, X-6)
6) On November 21, 1995, the matter was postponed on the ALJ´s motion after discussion with the participants to January 4, 1996, and the due date for case summaries was extended. Thereafter, the Agency filed its case summary and Respondents filed an additional list of witnesses prior to the hearing. (Exhibits X-7, X-8, X-10; Statement of the ALJ)
7) At the commencement of the hearing, counsel for Respondents stated that he had reviewed the Notice of Contested Case Rights and Procedures and had no questions about it. (Statement of Tharp)
8) At the commencement of the hearing, pursuant to ORS 183.415(7), the ALJ orally advised the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the ALJ)
9) At the commencement of the hearing, the Agency moved to dismiss the portion of the Specific Charges alluding to constructive discharge and economic damages for lost wages. The ALJ granted the Agency´s motion. (Statement of the ALJ)
10) At the commencement of the hearing, Respondents filed a written motion to dismiss, a copy of which was served on the Agency. The ALJ denied Respondents´ motion in its entirety. The ALJ´s reasoning upon this motion and upon counsel´s other objection is contained in the section entitled "Rulings on Motions and Objections" below. (Exhibit X-9; Statement of the ALJ)
11) The proposed order, containing an exceptions notice, was issued August 7, 1996. Exceptions were due August 19, 1996. Respondents and the Agency timely filed exceptions which are dealt with in the Opinion section of this order.
 
RULINGS ON MOTIONS AND OBJECTIONS
 
Respondents´ written motion to dismiss was based on a purported lack of statutory authority for this forum to grant non-economic damages and contained a jury trial demand. The ALJ denied Respondents´ motion in its entirety based on case law confirming the Commissioner´s authority through ORS 659.060 and 659.010 to issue, after hearing, an appropriate cease and desist order reasonably calculated to eliminate the effects of any unlawful practice found. Such effects include any economic or non-economic damage suffered by a complainant because of the practice._ That ruling is confirmed.
At the commencement of the hearing, counsel for Respondents orally objected to the fact that the Case Presenter and the ALJ were both employees of the convening authority, the Commissioner. Counsel argued that this was inherently unfair. The ALJ explained that the Case Presenter represented the Agency and the Agency´s view and finding from its investigation. The ALJ explained further that Respondents were entitled to a hearing de novo, that neither the Forum nor Respondents were bound by the Agency´s initial determination, and that it was the Case Presenter´s duty to present to the ALJ original evidence of the facts so that the ALJ could determine whether the Agency made the right interpretation when it said that Respondents had committed unlawful employment practices. The ALJ further noted that it was a commonality of administrative law that the individual prosecuting and the individual decision maker both be employees of the same entity. Respondents made no showing of actual bias._ Respondents´ objection was noted and overruled. That ruling is confirmed.
 
FINDINGS OF FACT -- THE MERITS
 
1) At times material herein, Respondent A.L.P. was an Idaho corporation doing business in Oregon as A.L.P. Incorporated, a corporation of Idaho, which did business at 247 S. Oregon Street, Ontario, Oregon as Red-Eye Hut, a retail smoke shop and tobacco store. Respondent Pieper was owner and president of the corporation. Respondent A.L.P. utilized the personal services of one or more individuals, reserving the right to control the means by which such service was performed. (Testimony of Respondent; Exhibit A-3; Entire Record)
2) At times material between May and late July, 1994, Complainant, a female, was employed as a retail clerk at the Red-Eye Hut. She was the only employee and Respondent was her immediate supervisor. (Testimony of Complainant, Respondent, Entire Record)
3) Red-Eye Hut had for sale such items as briar pipes, meerschaum pipes, metal pipes, bongs, waterpipes, pipe tobacco, pipe parts, scales, packaging equipment, coffee, cigars, cigarettes, incense, love oils and Harley Davidson clothing. (Testimony of Complainant, Respondent, Entire Record)
4) In a separate area at the rear of the store, Red-Eye Hut also had for sale what Respondent identified as "adult toys and gifts," which included such items as vibrators and dildos._ (Testimony of Complainant, Respondent)
5) Red-Eye Hut was described by witnesses as a "head shop,"_ dealing in "drug paraphernalia." (Testimony of Complainant, Ramirez, R. Getman)
6) The portion of Red-Eye Hut which had for sale the "adult toys and gifts," was described by Complainant as an "adult book store." (Testimony of Complainant, Exhibit A-1)
7) There were no adult magazines or books for sale at Red-Eye Hut, other than two coloring books. Respondent occasionally sold sexually explicit movies on order, but had no display for them and no viewing facilities. (Testimony of Respondent)
8) Randy Getman was Complainant´s husband. He encouraged Complainant to accept a job at Red-Eye Hut in late May 1994 after he learned from Respondent of an opening for a clerk and mentioned that Complainant might be interested. Complainant and her husband needed the income and employment was not plentiful in Ontario. (Testimony of Complainant, R. Getman, Ramirez, Respondent)
9) Both Complainant and her husband had been in the Red-Eye Hut. Before Complainant went to work there, neither was aware of the sexually oriented items for sale in the back. (Testimony of Complainant, R. Getman)
10) Rebecca Ramirez is Complainant´s aunt. She had lived in the Ontario area since 1942 and was acquainted with Respondent and the Red-Eye Hut as a customer. She advised Complainant against working there because of the allegedly drug-related items sold. She was not aware of the sexually oriented merchandise. She had observed Respondent´s interaction with women. As a customer, she had heard him say of some female customers who had just left "there goes a bunch of bitches." On another occasion, Ramirez was near the shop when Respondent saw another woman walking down the street and remarked "boy, look at her boobs, aren´t they nice?" (Testimony of Ramirez)
11) Rebecca Smith had lived in Ontario for 11 years and resided there in 1994. She met Complainant through Randy Getman and became her friend. She had worked at a bar near the Red-Eye Hut, had been in the shop, and knew Respondent by sight. At the time, she was not aware of the sexually oriented merchandise. (Testimony of Smith)
12) On her first day of work for Respondent, Complainant told a customer that the shop did not sell "adult" items. Respondent corrected her and showed her where those products were. She was offended by the nature of that merchandise, but did not tell Respondent and continued to work there. (Testimony of Complainant)
13) Also, on or near her first day, because she was unfamiliar with what she termed as the "drug paraphernalia" business, Respondent yelled at her in front of customers: "How many goddamn times do I have to tell you what part goes with what part?" (Testimony of Complainant)
14) As the employment continued, Respondent never called Complainant by name. In front of customers, he would refer to her as "a dumb blonde," "a dumb fucking blonde bitch," and "a dumb broad." (Testimony of Complainant)
15) Respondent personally price-marked all of the sexually oriented merchandise, which he stated formed only ¼ of 1% of his sales. (Testimony of Respondent)
16) On one occasion when Respondent was unpacking a shipment of sexually oriented merchandise, he placed a dildo on the counter and told Complainant that her husband had just been replaced. (Testimony of Complainant)
17) Complainant was offended by the remark, but just shrugged and walked away. By that time in her employment, she thought that confronting Respondent would just make matters worse. (Testimony of Complainant)
18) When Complainant wanted to buy some diet pills sold in the shop, Respondent told her she didn´t need diet pills, she just needed to have more sex with her husband. On another occasion when she came to work looking "grumpy," Respondent told her she needed to start getting laid every morning before coming to work because it was a proven fact that it put people in a good mood, and if she ever was in court, she should be sure the judge had been laid that morning. (Testimony of Complainant)
19) Complainant was offended by these remarks, but did not tell Respondent because she believed he had a sharp tongue and had a bad opinion of women. When he was annoyed, Respondent threatened to "bitch slap" her. Complainant had not heard that term before and was unsure of its meaning; to her, it meant that he would slap her. (Testimony of Complainant, Ramirez)
20) Respondent commented on women customers with remarks like "look at the tits on her" or "look at the ass on her" or "she used to be my girlfriend, she was really good in bed." He remarked on the size of Complainant´s sister-in-law´s behind. Each time, Complainant was offended but did not tell Respondent. (Testimony of Complainant)
21) Respondent´s daughter, a child about 4 years of age, was sometimes in the shop. Complainant read to her, bought her puzzles, and took her to lunch. One day, the little girl was going to the circus with her father and Complainant bent down to ask her about seeing the elephants. When Complainant asked if her daddy was going to buy her an elephant, Respondent slapped Complainant on top of the head. Complainant said nothing, although it hurt. (Testimony of Complainant)
22) Some days later, Respondent again slapped Complainant on the top of the head. Complainant said that it hurt and Respondent told her to stop whining. (Testimony of Complainant)
23) One day when Complainant had parked her car in front of the shop late in the day, Respondent grabbed her by both arms, applied pressure, and called her "a real stupid fucking dweeb"_ for blocking the parking space. (Testimony of Complainant)
24) Ramirez saw a bruise on Complainant´s arm which Complainant told her was from Respondent grabbing her. (Testimony of Ramirez)
25) On July 27, 1994, there were three visitors in the shop from Boise. Respondent announced he was going to take a nap. When Complainant turned to look at him, he slapped her, telling her not to look at him like that. She felt the slap across her cheek, but it left no mark. She noted the date on her calendar and made an appointment to consult an attorney. (Testimony of Complainant)
26) Complainanttold the attorney about being struck and about Respondent´s treatment of her. The attorney mentioned sexual harassment and suggested that she consult the Bureau of Labor and Industries. (Testimony of Complainant)
27) On July 30, 1994, near closing time, Complainant was shutting the cash register drawer when she saw Respondent´s hand near the drawer and stopped. He slapped her across the face and said "you thought you were going to get to slam my fingers in the drawer, didn´t you?" The shop closed and she left. (Testimony of Complainant)
28) Complainant again consulted the attorney, who confirmed that she had a right to quit. He told her to go to the police. The police took a report and sent her to the District Attorney. The District Attorney sent her to the Bureau of Labor and Industries. (Testimony of Complainant)
29) Complainant reported each of Respondent´s remarks and physical actions during her employment to her husband as they occurred. She told him about the sexual remarks, and about being hit. Her reports to him were tearful and she was visibly upset. She repeatedly told her husband "I really don´t want to go to work today." Randy Getman repeated that they needed the money. She did not return to work after July 30. (Testimony of Complainant, R. Getman)
30) Complainant called Ramirez daily while she worked for Respondent. Complainant told Ramirez about Respondent´s remarks, such as about getting more sex, and about being hit on the head and slapped. She complained of stomach upset, nausea and inability to sleep. Ramirez repeatedly advised Complainant to quit because she feared for her safety. Complainant told her that she and Randy needed the income. (Testimony of Ramirez)
31) On a day when Ramirez was meeting Complainant for lunch, she observed Complainant ask Respondent a question while waiting on a customer. Respondent rolled his eyes and said "there´s a dumb blonde for you." (Testimony of Ramirez)
32) Complainant reported the incident of the dildo on the counter to Ramirez on the day it occurred. That was the first Ramirez knew that the Red-Eye Hut had sexually oriented merchandise for sale. (Testimony of Ramirez)
33) Complainant spoke with Smith several times after beginning work at the Red-Eye Hut, usually by telephone. Complainant was upset about selling the sexual merchandise. She told Smith about the sexual remarks and about being slapped. She told Smith about the dildo on the counter and the remark about her husband. Smith was away on vacation for three weeks in July 1994. When she returned, Complainant reported more slaps. Smith was relieved when Complainant quit. (Testimony of Smith)
34) At the time of the hearing, Complainant was 4 feet 8 inches tall and weighed 105 pounds. Respondent appeared to be approximately 6 feet 5 inches tall, weighing above 270 pounds. (Testimony of Complainant, Statement of the ALJ)
35) On some days, Respondent played cribbage with a friend during business hours at the shop at a desk to the left of the front door. He identified his cribbage playing friends as Wes Sessums and Bud Haselow. (Testimony of Respondent)
36) Roberta Leija worked for Respondent as a clerk at the Red-Eye Hut in the early 1980´s. She did not recall rude language or sexual comments, and had no problems with him as an employer. (Testimony of Leija)
37) Charlotte O´Leary ran the Seams Right Sewing Center next door to the Red-Eye Hut. She knew Respondent for a number of years, spoke with him almost daily and had some social contact such as dinners and visits. She considered him big and loud but a good friend. She knew of no sexual advances by Respondent involving his employees or his customers. She knew Complainant, but had no information regarding Complainant´s allegations. (Testimony of O´Leary)
38) Wes Sessums played cribbage with Respondent at the front desk near the door of the Red-Eye Hut. He never saw Respondent be abusive to an employee. He never heard Respondent use the term "bitch slap" toward an employee. To Sessums, the term was "just words," used during the cribbage games. He remembered Complainant had worked there, although he thought that she was only present a few times when he played cribbage. He stated he joked with Respondent about getting laid in the early morning. He did not recall any remarks by Respondent about women customers. (Testimony of Sessums)
39) Complainant did not recall Sessums. Respondent´s usual cribbage partner was an older, balding man. He was the only one Complainant saw playing cribbage with Respondent. (Testimony of Complainant)
40) Randy Getman does not confront unpleasant situations. He tries to avoid them and stated that he is physically a coward. At no time prior to Complainant´s leaving Respondent´s employ did he discuss or attempt to discuss Complainant´s concerns with Respondent. He eventually told Respondent that she would not be back. He also stated about Complainant´s situation with Respondent that "it was a bunch of bullshit." At hearing he stated that he meant that it shouldn´t have happened, not that her claims were unfounded. He was not a forceful witness, but the bulk of his testimony was confirmed by other credible evidence and was therefore credible. (Testimony of R. Getman)
41) Respondent´s testimony was not totally credible. He denied any of the hitting alleged by Complainant, except an instance were she was getting something from a counter below the cash register and he put his hand on her head to keep her from bumping into the drawer. He insisted that the remarks about women customers, frequency of sex and about judges were made to "Wes" during cribbage. When Sessums did not recall all of the remarks, Respondent testified that there was another frequent cribbage player, Haselow, to whom he may have commented and that he was unaware that Complainant could hear his remarks, explaining that "when you´re playing cards, you´re not aware (i.e., of who is listening)." His explanations lent credence to Complainant´s accounts of events. After stating that he unpacks, identifies and price-marks each item in the adult toys and gifts inventory, he stated he didn´t know whether the two coloring books in the adult section were sexually oriented. He denied using "bitch slap" except in the cribbage games, stated that it was a term he picked up while working in construction that had no particular meaning, except as a false threat. He stated that he offered to handle sales of the sexual merchandise if it made Complainant uncomfortable, and insisted that Complainant and her husband knew of the adult merchandise before she worked there. Based upon these inconsistencies and his demeanor, the Forum has credited only so much of Respondent´s testimony as was verified by other reliable evidence. (Testimony of Respondent)
42) Complainant´s testimony was generally credible. She testified to a sequence of events which she had contemporaneously reported to her aunt, her husband, and her friend. The events she recited were consistent with the reports they recalled. There was no reliable evidence tending to suggest a reason for disbelieving her. (Testimony of Complainant)
43) During her employment at the Red-Eye Hut, Complainant was able to function as cashier, but she felt horrible. She was extremely careful at work, "it was like walking on glass with him." She felt sick all the time. She was sick to her stomach each morning before going to work; she hated to go to work because of the intimidation and offensive comment. She was tearful and tied up in knots because she had to face another day. She did not seek medical advice. Her emotional upset diminished following termination of the employment. (Testimony of Complainant)
 

 
1) At times material herein, Respondent A.L.P. was a foreign corporation doing business as the Red-Eye Hut, a retail tobacco shop in Oregon which utilized the personal service of one or more individuals reserving to itself the right to control the means by which such service was performed.
2) At times material herein, Respondent was the owner and president of Respondent A.L.P.
3) Complainant, female, was employed at the Red-Eye Hut from May to July 30, 1994. Respondent was her immediate supervisor.
4) In addition to tobacco and smoking utensils, the Red-Eye Hut had for sale sexually oriented adult toys and gifts. Complainant learned of them on her initial day of work.
5) Complainant was offended by the sexually oriented merchandise, but needed the job; she did not tell Respondent that she was offended.
6) Respondent subjected Complainant to demeaning, sexually offensive comments on a frequent basis, including references to her sex life and to his own.
7) Respondent often threatened to "bitch slap" Complainant, which put her in fear.
8) Respondent physically struck Complainant on the top of the head and across her face.
9) Complainant´s attendance and performance as sales clerk were satisfactory. She did not provoke Respondent into violence.
10) The intimidation and harassment based on Complainant´s sex caused Complainant extreme and continuing emotional distress, characterized by tears, stomach aches, sleeplessness, and upset nerves.
11) Complainant finally quit the job by not returning after July 30, 1994. After she quit, her emotional upset eventually diminished
 

 
1) At times material herein, ORS 659.010 provided, in pertinent part:
"As used in ORS 659.010 to 659.110 * * * unless the context requires otherwise:
"(1) ´Bureau´ means the Bureau of Labor and Industries.
"(2) ´Cease and desist order´ means an order signed by the commissioner, taking into account the subject matter of the complaint and the need to supervise compliance with the terms of any specific order issued to eliminate the effects of any unlawful practice found, addressed to a respondent requiring the respondent to:
"(a) Perform an act or series of acts designated therein and reasonably calculated to carry out the purposes of ORS * * * 659.010 to 659.110 * * * , eliminate the effects of an unlawful practice found, and protect the rights of the complainant and other persons similarly situated;
" * * *
"(6) ´Employer´ means any person * * * who in this state * * * engages or utilizes the personal service of one or more employees reserving the right to control the means by which such service is performed.
" * * *
"(12) ´Person´ includes one or more individuals * * * [or] corporations * * * ""(13) ´Respondent´ includes any person or entity against whom a complaint or charge of unlawful practices is filed * * *
"(14) ´Unlawful employment practice´ includes * * * those unlawful employment practices specified in ORS 659.030 * * * "
Respondent A.L.P. was an employer subject to ORS 659.010 to 659.110 at all times material herein.
2)At times material herein, ORS 659.040 (1) provided:
"Any person claiming to be aggrieved by an alleged unlawful employment practice, may * * * make, sign and file with the commissioner a verified complaint in writing which shall state the name and address of the person [or] employer * * * alleged to have committed the unlawful employment practice complained of * * * no later than one year after the alleged unlawful employment practice."
Under ORS 659.010 to 659.110, the Commissioner of the Bureau of Labor and Industries has jurisdiction of the persons and subject matter herein.
3)At times material herein, ORS 659.030 provided, in pertinent part:
"(1) For the purposes of ORS 659.010 to 659.110 * * * it is an unlawful employment practice:
" * * *
"(b) For an employer because of an individual´s * * * sex * * * to discriminate against such individual * * * in terms, conditions or privileges of employment.
" * * *
"(g) For any person * * * to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under ORS 659.010 to 659.110 * * * ."
At times material herein, OAR 839-07-550 provided, in part:
"Harassment on the basis of sex is a violation of ORS 659.030. It is discrimination related to or because of an individual´s gender. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when such conduct is directed toward an individual because of that individual´s gender and:
"(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual´s employment; or
" * * *
"(3) Such conduct has the purpose or effect of unreasonably interfering with an individual´s work performance or creating an intimidating, hostile, or offensive working environment."
The activities of Respondent consisted of unwelcome verbal and physical conduct of a sexual nature directed toward Complainant because of her sex, created an intimidating, hostile, and offensive working environment, contrary to OAR 839-07-550, and became an explicit term or condition of Complainant´s employment with Respondent A. L. P., in violation of ORS 659.030(1)(b).
4)OAR 839-07-555 provides, in part:
"(1) An employer * * * is responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment * * * "
The actions, inactions, statements and motivations of Respondent are properly imputed to Respondent A.L.P. herein, which was liable for the sexual harassment of Complainant in the workplace.
5)Under ORS 659.030(1)(g), Respondent aided and compelled Respondent A.L.P., a corporation, in the doing of acts forbidden under ORS 659.010 to 659.110.
6)Pursuant to ORS 659.060(3) and by the terms of ORS 659.010(2), the Commissioner of the Bureau of Labor and Industries has the authority to issue a Cease and Desist Order requiring Respondents to perform an act or series of acts in order to eliminate the effects of an unlawful practice and to protect the rights of others similarly situated. The amount awarded in the Order below is a proper exercise of that authority.
 

 
The elements of the unlawful employment practice of sexual harassment are established where the Forum finds a preponderance of evidence showing:
1.The Respondent is an employer defined by statute;
2.The Complainant was employed by Respondent;
3.The Complainant is a member of a protected class (sex);
4.The Respondent, or respondent´s agent, supervisory employee, employee, or non-employee in the workplace made unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, directed at Complainant because of Complainant´s sex;
5.The conduct had the purpose or effect of unreasonably interfering with Complainant´s work performance or creating an intimidating, hostile, or offensive working environment, or submission to such conduct was made an explicit or implicit term or condition of employment;
6.If the conduct was directed at Complainant by Respondent´s agent, supervisory employee, employee, or non-employee in the workplace, the Respondent knew or should have known of the conduct;
7.The Complainant was harmed by the conduct.
OAR 839-05-010(1); 839-07-550; In the Matter of Kenneth Williams, 14 BOLI 16, 24 (1995); In the Matter of Soapy´s, Inc., 14 BOLI 86, 95 (1995).
In this case, the Agency has established by a preponderance of the evidence that Respondent A.L.P. was an employer employing Complainant, a female, and that Respondent A.L.P.´s supervisory employee, who was also its owner, engaged in unwelcome verbal and physical conduct of a sexual nature, directed at Complainant because of Complainant´s sex. The evidence further established that the conduct had the effect of creating an intimidating, hostile, and offensive working environment, that submission to such conduct was made an explicit term or condition of employment, and that Respondent A.L.P. knew of the conduct of its owner and agent. Finally, the evidence established that Complainant suffered harm by way of extreme and ongoing mental suffering and emotional distress, characterized by tears, stomach aches, inability to sleep, and upset nerves.
By way of defense, Respondents attempted to establish that, before Complainant worked at Red-Eye Hut, she and her husband were aware of all of the merchandise offered for sale, including the "adult toys and gifts," and that Complainant did not indicate then or later that she found the merchandise offensive. Respondents also noted that Complainant continued with the employment even after, according to her, she first learned of the nature of some of the merchandise. Apparently, the suggestion there was that Complainant was not initially as offended as she claimed. Respondent attempted to establish that even if he had said some of the things repeated by Complainant and her witnesses, his comments were not to or about Complainant and she had merely overheard conversations between himself and one of his cribbage companions.
Whether or not Complainant was offended by the sexually oriented merchandise is immaterial to the effect Respondent´s speech and conduct had upon her. Certainly, she was offended by his reference to at least one of the items of merchandise in connection with her and her husband. There was other evidence that Respondent made comments derogatory to and demeaning of Complainant in particular and women in general. Respondent suggested that Complainant have more sex with her husband, that such activities put people in a good mood. He commented in her presence on particular parts of the bodies of women customers, including Complainant´s sister-in-law, and spoke about his own sex life. He referred to Complainant as "a dumb blonde" or "dumb fucking blonde bitch."
Respondent´s conduct and demeanor during her employment intimidated Complainant. He repeatedly threatened to "bitch slap" Complainant. He struck her on the top of the head and across the face. He grabbed her by the arms and applied pressure. She sought legal advice because of the way Respondent treated her. She suffered stomach upset and nausea and loss of sleep. She dreaded going to work each day, and was reduced to tears frequently because she was convinced that the job was economically necessary. Finally, after enduring Respondent´s actions toward her and their effects for several weeks, and after consulting an attorney, she ceased reporting to work, thus terminating her employment.
 
Damages
 
As noted in the ruling on Respondents´ motion to dismiss, the Commissioner is authorized by statute to issue a cease and desist order designed to eliminate the effects of any unlawful practice found. Those effects in this instance included severe mental distress over a two month period. The evidence on this record suggests that those effects diminished once Complainant quit the job. Respondent pointed out that Complainant did not seek medical advice or counseling concerning the alleged effects of Respondent´s behavior. This Forum has repeatedly held that while failure to seek medical treatment may be one element in evaluating the severity of the effects of a discriminatory practice, it is not necessarily an indicator of whether or not the practice occurred. In the Matter of Jerome Dusenberry, 9 BOLI 173 (1991); In the Matter of Portland General Electric, 7 BOLI 253 (1988), aff´d, Portland General Electric v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). The amount awarded in the Order below is a proper exercise of the Commissioner´s authority.
 
Respondents´ Exceptions
 
Respondents filed 12 exceptions to the Proposed Order or portions thereof. Some exceptions overlapped or repeated each other. Respondents´ exceptions are summarized below into the groups, followed by the Forum´s response.
A. Respondents excepted to the ALJ´s alleged bias, his concern with the nature of the business and its inventory, his conclusion that the business was a "head shop" selling "drug paraphernalia," and his failure to acknowledge that the items sold were not illegal (Exceptions 1, 5, 6, and 11). Respondents failed to demonstrate actual bias on this record. There is no suggestion that any of the merchandise for sale at Red-Eye Hut was illegal. The terms "head shop" and "drug paraphernalia" are quoted terms used by the witnesses. Finding of Fact (FOF) 13 has been revised slightly to make it even more clear that the term used was a quote. These exceptions are not well taken.
B. Respondents excepted to the ALJ´s conclusion that there was sexually oriented merchandise and pointed out that Complainant was aware of the adult items for sale and of the working conditions, that she was advised by an aunt not to work there but knew what was sold, accepted the environment and continued to work there without objection to Respondent Pieper although free to quit (Exceptions 2, 7, 8, and 9). The record reflects that the "adult toys and gifts" were clearly sexually oriented (see FOF 12). Complainant´s awareness of the merchandise, her acceptance of the working conditions, her continued employment, and her failure to heed her aunt´s warning do not prove that the merchandise was not offensive or unwelcome or justify the harassment and abusive treatment to which she was subjected. These exceptions are not well taken.
C. Respondents excepted to the damages as being unsupported and punitive in nature, to there being no medical evidence in support of Complainant´s allegations of suffering, and suggested that Complainant failed to meet her burden in that her testimony was uncorroborated (Exceptions 1, 3, and 12). As indicated earlier in this opinion, this forum has previously ruled that medical evidence of the physical or psychological effects of an employer´s behavior is not essential to finding that such effects resulted where there is credible testimony regarding the result of the employer´s actions. PGE, supra; Dusenberry, supra. Witnesses Ramirez, Smith, and Randy Getman testified that they learned from Complainant about Respondent´s actions and remarks, and about their effect on her, as they happened. Damages for mental suffering caused by discriminatory employment practices are actual damages for actual harm and are not punitive in nature. In the Matter of Metco Manufacturing, Inc., 7 BOLI 55 (1987), aff´d, Metco Manufacturing, Inc. v. Bureau of Labor and Industries, 93 Or App 317, 761 P2d 1362 (1988). These exceptions are not well taken.
D. Respondents further excepted to the finding that employment was scarce and to Complainant´s failure to seek replacement employment (Exceptions 8 and 10). There was witness testimony that employment was not plentiful in Ontario at times material, and no evidence to the contrary. Because the Agency withdrew the claim for lost wages, no finding was made or was required regarding any post-employment job search. These exceptions are not well taken.
E. Finally, although admitting being unable to show actual bias, Respondents again excepted to the prosecutor and the fact-finder having the same employer, alleging that to be a violation of due process and equal protection (Exception 4). This point was covered adversely to Respondents´ position in the Rulings on Motions and Objections, supra, which have been confirmed. The exception is without merit.
 
Agency Exceptions
 
The Agency, as it is permitted to do under former OAR 839-50-380(1) and(2),_ excepted to the amount of compensatory damages for mental and emotional distress ($10,000) as not being "commensurate with the ALJ´s Proposed Ultimate Findings of Fact," (PUFOF). The Agency requested that the emotional distress award be increased to accurately reflect the harm suffered by Complainant. Citing PUFOF 6 through 9, the Agency pointed out that there were findings of demeaning, sexually offensive comment on a frequent basis, that Respondent put Complainant in fear by threats and physically struck her on top of the head and across the face, and that intimidation and harassment based on her sex caused Complainant extreme and continuing emotional distress demonstrated by tears, stomach aches, sleeplessness and upset nerves.
In the past, this forum has held that mental distress awards reflect the type of discriminatory conduct, the duration, severity, frequency and pervasiveness of that conduct, the type and duration of the mental distress, and the vulnerability of the victim. In the Matter of Motel 6, 13 BOLI 175 (1994). Awards have been made in recent sexual harassment cases in varying amounts based upon varying severity, frequency and duration: In the Matter of Chalet Restaurant and Bakery, 10 BOLI 183 (1992), aff´d without opinion, JLG4, Inc. v. Bureau of Labor and Industries, 125 Or App 588, 865 P2d 1344 (1993)($10,000, impaired personal dignity, no physical abuse); In the Matter of Kenneth Williams, 14 BOLI 16 (1995)($20,000, sexual comments and names, no physical abuse, no evidence distress was of long duration); In the Matter of Fred Meyer, Inc., 15 BOLI 77 (1996)($20,000, over two months of derisive sexual comment and names, sexual touching, plus "long-lasting distress").
In this case, in addition to sexually offensive and derogatory comments, Complainant was subjected to threats and being physically struck, and there was a marked disparity in physical stature between Complainant and Respondent. While the effects of the discriminatory conduct were not found to be of long duration, the elements of severity, frequency and vulnerability were not adequately addressed by the ALJ´s proposed award. I am persuaded by the Agency´s reasoning and by precedent, as well as by the absence of any evidence that Respondent´s conduct was based on any reason except Complainant´s female sex, that an award of $20,000 more closely serves to eliminate the effects of the unlawful practice.
 

 
NOW, THEREFORE, as authorized by ORS 659.060(3) and 659.010(2), and in order to eliminate the effects of the unlawful practices found, Respondents A.L.P. Incorporated and Allen L. Pieper are hereby ordered to:
1)Deliver to the Fiscal Services Office of the Bureau of Labor and Industries, State Office Building, Suite 1010, 800 NE Oregon Street, # 32, Portland, Oregon 97232-2162, a certified check, payable to the Bureau of Labor and Industries in trust for TERESA GETMAN, in the amount of:
a)TWENTY THOUSAND DOLLARS ($20,000), representing compensatory damages for the mental and emotional distress suffered by TERESA GETMAN as the result of Respondents´ unlawful practice found herein, PLUS
b) Interest at the legal rate on the sum of $20,000 from the date of this Final Order until Respondents comply herewith, and
2)Cease and desist from discriminatory conduct in the workplace directed toward any employee based upon that employee´s sex.
 
DATED this___________day of ____________________, 1997.
__________________________________________________
 
Jack Roberts, Commissioner
Bureau of Labor and Industries