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Final Order
Hearings Unit: Final Order
 
BEFORE THE COMMISSIONER OF THE BUREAU OF LABOR AND INDUSTRIES OF THE STATE OF OREGON
 
 
In the Matter of
FRED MEYER, INC.,
Respondent.
Case Number 27-95
 
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER
 

 
SYNOPSIS

Female Complainant was sexually harassed by male co-worker and discharged when she struck him. Respondent knew of the harassment and failed to take timely or any corrective action. The Forum found Respondent liable for tolerating an intimidating and offensive work environment and for Complainant´s resulting emotional distress. The discharge was not because of Complainant´s sex or in retaliation for opposing the unlawful activity. ORS 659.030(1)(a), (b), and (f); OAR 839-07-550; 839-07-555.
 

 
The above-entitled contested case came on regularly for hearing before Warner W. Gregg, designated as Hearings Referee by Jack Roberts, Commissioner of the Bureau of Labor and Industries of the State of Oregon. The hearing was held on May 31, 1995, in room 1004 of the State Office Building, 800 NE Oregon Street, Portland, Oregon. The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. Fred Meyer, Inc. (Respondent), a corporation, was represented by R. Kenney Roberts, Attorney at Law, Portland. Respondent´s corporate representative Carolyn Harden was present throughout the hearing. Georgia Stack-Rascol (Complainant) was present throughout the hearing and was not represented by counsel.
 
The Agency called the following witnesses: Complainant; Complainant´s former co-workers Wendy Benz, Mary Anne Plute, Ramona Streifel Slattery, Christine Sturdy, and Peggy Weiner. Respondent called as witnesses the following: Respondent´s current employees Jennifer Bierbrauer, Constance (Connie) Clark, Karla McCallister, LeAnne Woodworth, Division Street store director Carolyn Harden, and former employee David Haines.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion and Order.
 
FINDINGS OF FACT -- PROCEDURAL

1) On January 25, 1994, Complainant filed a verified complaint with the Agency alleging that she was the victim of the unlawful employment practices of Respondent. After investigation and review, the Agency issued an Administrative Determination finding substantial evidence supporting the allegations of the complaint. (Exhibit X-2, X-5) 2) On November 18, 1994, the Agency prepared for service on Respondent Specific Charges, alleging that Respondent discriminated against Complainant in her employment based on her sex in violation of ORS 659.030(1)(a), (b), and (f). 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 regular mail, postage prepaid, to the Respondent on December 1, 1994. 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), provide that an answer must be filed within 20 days of the receipt of the charging document. Respondent through counsel obtained an extension of time to answer and on December 22, 1994 Respondent´s timely answer was received by the Hearings Unit. (Exhibits X-4, X-5; Statement of the Hearings Referee)
4) On January 25, the Agency filed a motion for postponement. Respondent counsel did not object to postponement and on February 17 the Hearings Referee granted the postponement, reset the hearing, and ordered that each participant submit a summary of the case. Respondent and the Agency each filed a Summary of the Case. (Exhibits X-6, X-7, X10, X-11, X-12, X-13)
5) 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 R. Kenney Roberts)
6) At the commencement of the hearing, pursuant to ORS 183.415(7), the Hearings Referee 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 Hearings Referee)
7) At the commencement of the hearing, the Hearings Referee ruled on Respondent´s May 26, 1995 motion to quash an Agency subpoena duces tecum for the personnel files of three potential witnesses, David P. Haines, Mary Ann Plute, and Connie Clark, who were or had been Respondent´s employees, and to quash an Agency subpoena duces tecum for the complete file of Respondent´s March 1993 investigation involving allegations by Complainant of sexual harassment. Respondent argued that the persons named were not parties, that their personnel files were personal to them and were not relevant to the proceeding, and that disclosure would invade their privacy. Respondent argued further that its internal investigation was privileged as work product containing confidential information and disclosure would have a chilling effect on Respondent´s ability to investigate employee complaints. The Agency withdrew its request for the files of Plute and Clark and argued that the file of Haines, as the alleged harasser, was relevant. The Agency argued further that the investigation apparently resulted in different treatment of Haines and Complainant which could have been based on their respective gender. The Hearings Referee found that the Haines file was relevant for discovery purposes and ordered that it be made available to the Agency. The Hearings Referee ruled that Respondent´s investigation was discoverable since it dealt with the same facts as the hearing. In both instances, the Referee cautioned that the requested items were not automatically admissible, but were subject to the same requirement of relevance and proper foundation as other evidence. (Exhibits X-14, X-15; Statement of the Hearings Referee)
8) The Proposed Order, which included an exceptions notice, was issued December 8, 1995. Exceptions were to be filed by December 18, 1995. Respondent timely filed exceptions under an extension of time on January 29, 1996. They are dealt with in the Opinion section of this Order.
 
FINDINGS OF FACT -- THE MERITS

1) During times material herein, Respondent was a foreign corporation operating retail stores in Oregon which utilized the personal service of one or more employees reserving to itself the right to control the means by which such service was performed. (Entire record) 2) Complainant, a female, was employed by Respondent from October 11, 1978 to March 26, 1993. In 1993, she was a Person In Charge ("PIC") at the Customer Information desk at Respondent´s Division Street store in east Portland. At times material, she earned $9.65 an hour. (Testimony of Complainant, Entire Record)
3) At times material, "PIC" was a non-management position with limited authority to direct the work in the absence of a manager. A PIC was an hourly wage employee with no hiring or firing authority who could discipline subordinates only with manager approval. Status as PIC depended on the length of time the employee had worked for Respondent. Because employees were assigned shifts of varying lengths and starting times throughout the work week, the identity of the PIC varied. (Testimony of Complainant, Benz, Harden)
4) The Customer Information (CI) desk, sometimes known as the Customer Service desk, involved assisting customers on returned merchandise, money orders, telephone inquiries, hunting and fishing licenses, and layaways. As described during the hearing, the CI desk was a small, confined rectangular area approximately 7 by 10 feet. The enclosed portion had two levels, the inner one desk height and the outer counter a foot or so higher. It was a crowded area. Access was limited to one entry-way. There was a cubicle, sometimes known as the CCK desk, with a computer just off of the CI desk. There the desk PIC closed and counted cashier tills. The desk PIC approved personal checks, and, in the operations manager´s absence, found replacements for workers absent due to illness. (Testimony of Complainant, Benz, Clark, Haines, L. Woodworth)
5) Most of the CI desk employees were female, and there was a relaxed atmosphere among them which included joking and banter, some of which was sexual in nature. (Testimony of Benz, Bierbrauer, L. Woodworth, Complainant)
6) During January, February and March, 1993, Complainant supervised David P. Haines on the occasions she was PIC and Haines worked all or part of the same shift. Complainant usually worked late afternoon and early evening hours, but sometimes worked other hours. (Testimony of Complainant, Haines, Entire Record)
7) Wendy Benz worked as a cashier at Respondent´s Division Street store between November 1989 and February 1994. In early 1993 she worked the CI desk as the day PIC. She supervised Haines on the occasions that she and Haines worked all or part of the same shift. (Testimony of Benz, Haines)
8) Constance (Connie) Clark was operations manager at Respondent´s Division Street store in early 1993. She scheduled the staffing of the CI desk and all cashiers except grocery. She was the immediate supervisor of the CI desk PICs, including Complainant and Benz. She was a salaried manager. (Testimony of Complainant, Benz, Harden)
9) At times material, Carolyn Harden was the store director of Respondent´s Division Street store. As such, she was the manager responsible for all departments, and held hiring, firing and disciplinary authority. She was the immediate supervisor of Clark. In personnel matters, she consulted with Respondent´s Human Resources Department manager Carl Wojenowski. (Testimony of Harden)
10) Clark worked days as operations manager, approximately 7 am to 3 pm. Benz worked days and was PIC at the CI desk when Clark was away from the area or in the store office. Complainant often worked evenings, 3 to 11 pm. Clark usually left work after Complainant reported in. Complainant many times left notes at the end of her shift for Clark. (Testimony of Complainant, Benz, Clark)
11) Haines, who was born October 4, 1969, was described by those who worked around him as immature, outspoken, arrogant, mouthy, rude, crude, sarcastic, inexperienced and young, irritating, a jerk, in need of training, a goof off who needed pushing, and like a 16 year old kid. (Testimony of Benz, Sturdy, Streifel, Plute, Bierbrauer, McCallister, L. Woodworth, Harden)
12) Haines chattered constantly, blurting unthinking remarks, as "did you see those buns?" He made comments daily, 80% of which were sexual in nature, in undertone, about a woman´s behind or bust size or availability for a couple of drinks. He directed such remarks toward Complainant "a couple of dozen times" in Complainant´s presence. Complainant told Benz that she was sensitive about her breasts. (Testimony of Benz)
13) Benz told Clark that Haines was not desk material, that he should not be meeting the public because he acted immaturely. She told Clark about the sexual nature of some of his comments. Haines would need pushing at times. He spent time with female customers attempting to get their phone numbers or discussing his or their activities the previous evening. In general, he extended the time of each call. He would start on a subject and not stop. Once he was having a long conversation with a blond girl and Benz told him to get back to work. When the customer finally left, Benz grabbed his shirt front and told him she would "lay him out" if he didn´t straighten up his act, i.e., do his work. On another occasion, when Haines was being obnoxious, Benz flipped Haines on the shoulder. (Testimony of Benz)
14) Prior to times material, Complainant had rented rooms in her home for short periods to three or four individuals. The last of these moved out about November 1992. At least one of her renters had offset part of his rent by working on the house. (Testimony of Complainant)
15) Shortly after Haines began working at the CI desk, about December 1992, Complainant overheard that Haines might need a place to live and asked him if he wanted to rent a room from her. He did not move in. (Testimony of Complainant, Haines)
16) Complainant suggested that Haines could reduce his rental obligation by assisting her with the construction of a cyclone fence around her yard. (Testimony of Complainant)
17) On another occasion when Complainant had trouble with her automobile, Haines commented that he had repaired his own vehicle when it had similar symptoms. At Complainant´s request he checked her car. She asked if he would repair it if she bought the parts and provided "pizza and beer." He declined to repair the car. (Testimony of Complainant, Haines)
18) Ramona Streifel, whose married name at time of hearing was Slattery, worked varying shifts in the apparel section of Respondent´s Division Street store at times material. She had contact with Haines and Complainant at the CI desk for layaways and returns. She saw them from two to five days a week. Haines continuously attempted to date her, even after he learned that she had a fiancee. Haines thought he was funny when he said of her nick-name, Mona, "does that mean you moan a lot?" Haines told her that she had "a nice butt." He also commented on her breasts. Streifel wanted to "smack" Haines because of his behavior toward her, which happened once or twice each day they worked together. He repeatedly put his arms around her. She threatened to hit him if he didn´t stop, and at least once pushed him away. (Testimony of Streifel)
19) Mary Becker was Streifel´s manager, but Complainant was Haines´ PIC. Streifel complained about Haines to Complainant around the middle of January, 1993. At about the same time, Darlene Brown, an apparel department employee, also told Complainant that Haines had brushed against her and spoken to her in a sexual manner. Complainant reported the complaints of Streifel and Brown to Clark in late January. Streifel later complained to Shari Ingles, another CI desk PIC, about Haines. (Testimony of Streifel, Complainant)
20) Clark told Complainant to have Haines read the statement on sexual harassment which was posted on the wall of the CCK area. Complainant did so. Haines reacted by making jokes and Complainant urged him to take it seriously. She reported his reaction to Clark. (Testimony of Complainant)
21) Following Complainant´s conversation with Haines regarding the sexual harassment poster, Haines began subjecting Complainant to sexual comments, comments about her breasts, and brushing against her. He began to refer to her as "Bertha," or "Big Bertha." Complainant repeatedly told him to stop, that he wasn´t funny. (Testimony of Complainant)
22) On an occasion when a customer returned a bra, Haines held it up to himself, then speculated aloud whether it would fit Streifel. He then said to Complainant "that wouldn´t fit you, Big Bertha, now would it?" This occurred in front of the customer. (Testimony of Streifel, Complainant, Benz)
23) When a customer returned a set of mixing bowls, Haines held the smallest top first to his chest and "pranced" around, then indicated the largest bowl was "for Georgia." Complainant asked him to stop, but he did not. (Testimony of Complainant)
24) In Complainant´s perception, Haines stared at her breasts. He frequently called Complainant "Bertha," which was a reference to her large bust. He touched Complainant frequently, putting his arm around her or putting his hand on her shoulder. Complainant repeatedly told him to leave her alone. (Testimony of Complainant, Benz, Streifel)
25) When Haines brushed against Complainant in the constricted work space, he always turned it into sexual comment, such as a groan or a statement, "You love it." On such occasions he moved his lower body against her. The comments and touching were daily when they worked together. Once, when he touched her breast, perhaps accidentally, he said something like "More than a handful is not a waste." (Testimony of Complainant)
26) Complainant told Clark about the bra incident, the mixing bowls, the references to "Bertha," the touching and the comments, "perhaps not each time, but constantly." She asked that Clark talk to Haines, stating his comments and behavior were getting worse. Clark seemed to accept the information, but did nothing. Once she told Complainant, "You´re a black belt, smack him." This was in reference to Complainant´s training in karate. (Testimony of Complainant)
27) Streifel told her father about Haines as a joke. Her father met Haines at the store and kidded about Haines wanting to date her. Subsequently, she told her boyfriend about Haines as a concern. (Testimony of Streifel)
28) Mary Ann Plute began working at Respondent´s Division Street store in March 1993, prior to March 23, in variety and home improvement. On her first day of work, Haines began "hitting on" her. He made sexual comments to her about her body, followed her around; whistled at her and was generally crude. He never touched her. Plute reported Haines to variety assistant manager Bruce Woodworth and the comments and activity ceased. Plute was 16 years of age at the time. She did not go to Harden directly because Harden scared her. Plute perceived Harden as very professional and hard to talk to. (Testimony of Plute)
29) There was no evidence that Bruce Woodworth, a salaried member of Respondent´s management, reported Plute´s complaint regarding Haines to Carolyn Harden. (Entire Record)
30) During the months of February and March 1993, Complainant felt demeaned and embarrassed by the comments and behavior of Haines. She worried about who might have heard him, because there were always staff and customers nearby. His behavior, which was unwelcome, adversely affected her work, upsetting her so that she went into a "blur," tuning out other activity. His conduct made it difficult for her to do her job, in that she focused on his comments and couldn´t focus on the work. She was very frustrated and upset. (Testimony of Complainant)
31) Complainant did not report Haines to Carolyn Harden because she believed that her immediate supervisor, Clark, would eventually take care of it. Also, Complainant believed that Harden "hates me." Complainant had previously claimed to Harden that a co-worker wrote an intimidating note to Complainant that Complainant had actually written herself. She understood Harden to say at that time that if her name was brought up to Harden in the future, Complainant would be the one disciplined. Complainant knew she was wrong to lie about the note and was grateful she was not fired at that time. (Testimony of Complainant)
32) On the last day she worked for Respondent, March 26, 1993, Complainant went to Clark in tears at the beginning of her shift to complain again about Haines. Clark was checking out in the CCK area. Haines was nearby and approached Complainant from behind. Complainant put up her hand and said "David, stop, don´t touch me, don´t even come near me." Clark said, "Both of you stop it, I can´t take this anymore." When Complainant denied she was doing anything, Clark said "I want both of you to stop it." Clark then continued to check out and left the store. (Testimony of Complainant)
33) Later on March 26, both Complainant and Haines were inside the CI desk space when Haines answered the telephone at the CI desk. He said, "Bertha? Bertha, no, just a minute, here she is." He turned and offered the phone to Complainant. (Testimony of Complainant; Exhibits A-12, A-15, A-16)
34) Complainant heard the reference to "Bertha." As Haines approached with the phone, it appeared to Complainant that he was staring at her breasts and coming at her. She felt trapped and wanted to get away and said something like, "David, stop." Then she slapped him in the face. (Testimony of Complainant)
35) Complainant felt as she struck Haines that it was not a good decision. She was crying and felt shocked, demeaned and embarrassed. She focused on the humiliation she felt from "Bertha" and the way she saw Haines looking at her and "everything else was just a cloud around" her. (Testimony of Complainant)
36) Complainant knew she was PIC at the desk and that she needed a manager. She called Bruce Woodworth, variety assistant manager, and told him about the telephone call, about Haines referring to "Bertha," and admitted she had slapped Haines. (Testimony of Complainant; Exhibits A-12, A-15)
37) Bruce Woodworth talked to Haines, told him to respect Complainant as his supervisor and keep his distance. Haines told Bruce Woodworth that the remark was made in jest. (Exhibits A-12, A-15)
38) Bruce Woodworth told both Haines and Complainant to finish out the shift. Both did so. (Exhibits A-12, A-15; Testimony of Complainant)
39) Christine Sturdy had worked at Respondent´s Division Street store for 9 years at time of hearing. She was employed there at times material and came to the CI desk shortly after Complainant had struck Haines. Complainant was upset and in tears when she told Sturdy that she (Complainant) was unable to work with Haines, that he made rude comments about her breasts. Complainant said that Haines took a phone call and handed her the phone saying "It´s for you, Bertha," which was in reference to Complainant´s breasts. Complainant said she had pleaded and argued with him previously and told Sturdy that she slapped him. On at least one occasion prior to March 26, Complainant had been upset and in tears when she told Sturdy about Haines being sexually offensive and hard to work with. Sturdy had suggested that Complainant talk to a manager. Sturdy had not heard the term "Bertha" before in regard to Haines and Complainant. Because she worked in grocery, Sturdy did not have frequent contact with either of them. She did not see or hear anything other than what Complainant reported. (Testimony of Sturdy)
40) Peggy Weiner had worked as a cashier for Respondent 17 years at the time the of hearing. She worked in food at the Division Street store at times material. She had contact with Complainant and Haines when they worked at the CI desk and she counted out at the end of her shift. On March 26 while she was waiting near the desk to be read out of the computer she saw Haines answer the CI desk phone. She heard him say something like "Oh, Bertha" and saw him hand the phone toward Complainant. She saw Complainant move her legs in a kicking motion toward Haines. She then saw Haines put his hand to his face; she never really saw a slap. Weiner had some Emergency Medical Technician training. Haines´ injury was not serious. She had not heard the term "Bertha" before. (Testimony of Weiner)
41) Jennifer Bierbrauer worked at the CI desk during times material. She worked with Complainant and Haines individually, but not together. Haines was sarcastic and may have seemed offensive to some people, but he never offended her by any behavior of a sexual nature. She never observed any such behavior toward others. She was not familiar with the name Bertha. (Testimony of Bierbrauer)
42) Karla McCallister worked at the CI desk during times material. She worked "not very often" with Complainant and Haines together. Haines was wild and loud, but she never heard him make sexually inappropriate comments. He never touched her and she never saw him touch Complainant. The people who worked the CI desk were glad when Haines was transferred, because of his irritating behavior. (Testimony of McCallister)
43) LeAnne Woodworth was a pharmacy employee at Respondent´s Interstate store at time of hearing. At times material, she worked on occasion at the Division Street CI desk. Bruce Woodworth is her husband. She worked with Complainant and Haines. She confirmed that Haines was irritating, young and inexperienced and would have taxed any PIC´s patience. He needed coaching, training, and work on his customer skills. She had heard that the term "Bertha" was attributed to Haines, but at time of hearing was uncertain in what context. She never saw Complainant reprimand Haines in front of employees or customers. She described the CI desk employees, who were mostly female, as engaging in lots of bantering and joking, including sexual references and jokes, even though they were trained otherwise. On March 26, she came to the CI desk just as her husband was leaving and Complainant told her she had just hit Haines. (Testimony of L. Woodworth)
44) When Complainant left at the end of her shift on March 26, she picked up her son from day care and went home. She was depressed and in shock and too upset to sleep. She telephoned a friend several times and cried throughout the night. (Testimony of Complainant)
45) On March 27, Complainant telephoned Clark early in the morning, shortly after 6 a.m. She told Clark that Haines had been touching her the night before and would not leave her alone and she struck him. Complainant was upset and told Clark she had not slept and needed to go to her doctor. She didn´t think she could work with Haines that day. Clark said that either she or Harden would call Complainant. (Testimony of Complainant, Clark)
46) Later on the morning of March 27, Complainant reached Harden by telephone. Complainant felt lost, ashamed and shocked at what she had done. Complainant acknowledged she had struck Haines and said she was not sure she could work with Haines that day. She attempted to discuss the incident. Harden preferred a face to face interview and asked Complainant to report to work. Complainant called later stating that she hadn´t slept, was ill over the situation, was going to the doctor and would not work that evening. Harden stressed that Complainant must see her before returning to work. (Testimony of Complainant, Harden; Exhibit A-14)
47) Complainant called Harden around 2 p.m. and stated she would work in the morning (March 28) at 10. Harden again stated that Complainant must see her before returning to work. Complainant called back and stated she would be in shortly. (Testimony of Harden, Exhibit A-14)
48) Complainant went to Kaiser where she saw a physician and obtained a prescription to calm her and help her sleep. She told the doctor about the stress of the last two months, about the events of March 26, and about her feelings of hopelessness, confusion and loss. She was advised to follow up with her regular doctor and seek counseling. The physician excused her from work until March 30. (Testimony of Complainant)
49) Complainant telephoned Harden from the doctor´s office in late afternoon, telling her she would come in that evening. Harden agreed to wait. Complainant telephoned again around 6 p.m., told Harden she had a doctor´s excuse from work until Tuesday, March 30, when she could come back to work. She stated she would call Harden Monday afternoon. Harden again stated that Complainant must see her before returning to work. (Testimony of Harden, Complainant; Exhibit A-14)
50) Harden believed that Complainant was being uncooperative and avoiding being interviewed. (Testimony of Harden)
51) Complainant had mentioned to Harden that Haines was irritating, immature, and difficult to get along with. There was no evidence that Harden had personal knowledge of Complainant´s allegations of sexual harassment prior to March 27, 1993. (Testimony of Harden; Entire Record)
52) Beginning March 27 with Haines, Harden interviewed employees about the confrontation between Complainant and Haines. Over the next few days, she interviewed Respondent employees Christine Sturdy, Ramona Streifel, LeAnne Woodworth, Tina Cagle, Connie Clark, Darlene Brown, and Barbara Jones. She consulted with Regional Store Director Larry Gentry and Human Resources Manager Carl Wojenowski, and dealt with Complainant´s union representative, Bob Williams. (Testimony of Harden; Exhibits A-14, A-15)
53) Tina Cagle told Harden that she had called the CI desk to reach Bruce Woodworth, her manager, around 8 pm on the evening of March 26. She intended to ask him for a break. When Haines answered, Cagle asked "Is Bruce around there?" Haines replied "Bertha? Bertha? No, just a minute, here she is." Cagle again asked if Bruce was around. Cagle could hear Haines and Complainant arguing, but not what was said. Bruce Woodworth answered and Tina asked for her break. Complainant later told Cagle that Haines stared at Complainant´s breasts. (Testimony of Harden; Exhibit A-15).
54) Barbara Jones told Harden that Complainant was upset on March 26. Haines told Jones that he had made a stupid comment. Jones did not hear the comment and did not see Complainant strike Haines. Jones witnessed no sexual comments or harassment. She characterized Haines as being like a 16 year old kid with a big mouth. (Testimony of Harden; Exhibit A-15)
55) Harden´s notes of her interview with Darlene Brown stated, in part: "Started Fri[day] night - [Complainant] got really upset and she told Darlene that David had brushed up against her and using sexual tones. -- Darlene -- David has sexually [harassed] me verbally - He had brushed up against me David was talking vulgar -- Darlene said get your head out of the gutter -- David makes little tiny advances Darlene could care less about it. Never felt the need to speak w/ a supervisor -- Heck of a nice guy -- carries his ´personality a little too far´--" (Testimony of Harden; Exhibit A-15)
56) Streifel was interviewed by Harden on March 29, 1993. She was confused about the reason for the interview. She had not heard about the confrontation between Complainant and Haines and did not know why Harden was asking about them. She told Harden about Haines making sexual remarks to her and that she was offended. She told Harden that she let it go because her boyfriend could take care of him. Harden told Streifel she didn´t think it was a big deal. Streifel never told Harden that the behavior of Haines toward her was not important enough to report. (Testimony of Streifel)
57) Streifel told Harden about Haines´ behavior toward Complainant. (Testimony of Streifel)
58) On March 30, in the presence of Complainant´s union representative, Harden interviewed Complainant, who again admitted striking Haines. Complainant told her about the behavior of Haines over the previous two months. She mentioned his comments on her breasts, his use of the name "Bertha," his touching her and rubbing against her and his comments of a sexual nature. She stated that Streifel and Brown had said that Haines harassed them. She told Harden that she had reported his sexually harassing behavior over the previous two months to Connie Clark, and Clark´s reply about karate. She was vague as to dates of specific incidents and as to exact conversations. She told Harden that she didn´t want to get "Connie" in trouble. She stated that Clark said on March 26, "You two just don´t start today." She described Haines answering the telephone on March 26 and saying "Oh, Bertha, Bertha she´s right here." She told Harden that her "blood boiled" and she hit Haines. (Testimony of Harden; Exhibit A-15)
59) Complainant had at times used the name "Stack-Rascol," except at work. She worked for Respondent under her married name of "Rascol." She continued to use that name after being divorced because she disliked her maiden name of "Stack," which she felt subjected her to ridicule due to her appearance. She was heavily built and large busted. At times material, she was 5 feet, 3 inches tall and weighed about 180 pounds. She was self conscious about her large breasts. Following her employment with Respondent, she used the hyphenated name exclusively. She had breast reduction surgery in August, 1993. (Testimony of Complainant)
60) Complainant had periodically experienced difficulty during her years as Respondent´s employee. These included a problem as an assistant manager at the Interstate store, an instance involving a racial slur, difficulties with a worker named Montoya in which she falsified a note, and, more recently, an alleged confrontation with a worker named Laurie Flanagan and an alleged attendance problem. She also had addressed a complaint as a customer to Respondent´s president in early March, 1993. None of these situations involved allegations of sexual harassment on the job. (Testimony of Complainant, Harden, Entire Record)
61) Haines transferred to nutrition and subsequently to grocery following the events of late March 1993. Haines wanted a transfer into another department because of the fast pace of the CI desk. In August 1994 Haines received a written warning for "bothering a f emale employee," a reference to an instance where he whistled at a female employee in front of customers. That was the only formal discipline in his record. (Testimony of Haines; Exhibit A-8)
62) Carolyn Harden´s testimony regarding her investigation was not wholly credible, in that she selectively slanted the findings from her interviews. Despite the real possibility of future claims, she did not pursue Haines´ alleged harassment of Streifel and Brown because, according to her, Streifel "let it go" and Brown "didn´t care." By diminishing the seriousness of the information she obtained from Streifel and Brown, she attempted to maintain the position that Respondent had lacked any notice that Haines was sexually inappropriate to female employees and customers. Her purpose appeared to be to discount any suggestion that Complainant may have had provocation for what she did. While she noted in general what Complainant told her when she was finally interviewed, Harden by that time had determined that since there could be no justification for striking a fellow employee, Complainant´s prior experiences with Haines were either not worthy of belief or resulted from Complainant´s behavior toward him. She testified to multiple instances of conversations with Complainant in the early months of 1993 with the suggestion being that Complainant could have mentioned difficulties with Haines if they occurred. However, neither through Complainant nor through documentation by calendar notes or otherwise, was there any verification of those conversations other than a reference to Complainant´s complaint as a customer and instruction to Complainant regarding lottery process. She stated that Haines was strongly warned verbally as a result of her investigation, but there was no documentation of that, either. She seemed to view negatively Complainant´s reluctance to come to work on March 27, even though she knew the nature of the March 26 altercation. The Forum has credited those portions of Harden´s testimony which were confirmed by other credible evidence or which were uncontested. (Testimony of Harden)
63) At the time of the hearing, Connie Clark was a check examiner in Respondent´s main office security. Both she and her husband were longtime Respondent employees. Her testimony was not altogether credible. Initially, she attempted to create the impression that as operations manager at Division Street in 1993, she was little more than a glorified PIC. She said that she was merely the scheduler for the customer information desk and variety checkstands. She thought of herself as a PIC who wrote the schedule, and left discipline or management decisions up to Harden. During the Agency´s investigation, she described herself as operations manager in name only. She had hiring, but not firing, authority. As Clark´s testimony progressed, she became more and more hesitant and uncertain, particularly as to her status (and responsibility) as a manager and the handling of Haines as an employee. Although she was in and around the work area each working day and saw the employees interact, she was definite about never seeing, hearing, or hearing about sexual remarks or behavior by Haines toward Complainant or other females until March 27 when she learned of the incident of March 26. She stated that she never saw Haines touch Complainant or any other female and never overheard any sexual banter. She acknowledged that both Complainant and Benz reported that Haines was slack in his duties, did not follow through, and had an irritating personality. She stated that Complainant reported she could not complete her own job because Haines didn´t complete his. Clark denied that Complainant reported that Haines was sexually harassing her, that Haines was touching her, or that Haines made sexually offensive comments to her. Clark denied any knowledge that Streifel or Brown ever complained about Haines following, annoying or sexually harassing them, and denied that Complainant informed her of their problems with Haines. She stated that Complainant complained only about Haines´ work performance and that she never told Complainant to read the sexual harassment policy to him or to "smack him." She denied knowledge of Haines´ actions and comments toward female employees and customers or that Complainant reported that he called her "Bertha." She saw Complainant and Haines as she was leaving work on March 26, but denied that Haines put his arm around Complainant, that Complainant told him to stop, or that Complainant asked her to stop Haines. She said she did not take information about Haines´ work performance to Harden because she thought they could work out the performance problems. She talked to Haines about his goofing off and immature attitude and Haines complained that Complainant belittled and embarrassed him. Clark said she did not bring that up to Complainant because she perceived Complainant as difficult to deal with due to her temper. Because of Clark´s demeanor and the content of her testimony in the face of contrary credible evidence of the pervasiveness of the sexually oriented activities of Haines, the Forum has not credited her denials of knowledge of those activities. (Testimony of Clark)
64) Clark was described variously by her subordinates as "an OK manager," or as "too soft, trying to please everybody" or as not consistent. (Testimony of McCallister, Benz, Exhibit A-4)
65) Not all of LeAnne Woodworth´s testimony was credible. Much of her testimony was opinion and appeared to be evaluation in light of subsequent events rather than recalled fact. She described the events of March, 1993 as long ago and unimportant, "vague and insignificant incidents in my life." She nonetheless described Haines as appearing with a "gigantic swollen hand print of the side of his face" on March 26, although Haines himself described the injury as a not severe "bleeding fat lip" and sought no medical attention. She stated that she believed she was "set up" by Complainant who told her to witness some of Haines´ behavior. She stated that Complainant was selectively sensitive about her breasts. She downplayed the sexual content of the jokes at work. She said of Complainant´s report to her that Haines commented on Complainant´s breasts "I didn´t give it much more credence than if she were just simply annoyed with him." She chose not to believe Complainant´s reports to her of sexual harassment by Haines and opined that Complainant struck Haines out of pent-up frustration at his work performance and not because of harassment. She further stated her belief that Complainant should have reported sexual harassment if it existed, that Respondent would have dealt with it, and that Complainant had been unhappy with her job and was using the complaint against Haines as a vehicle to get at Respondent. Accordingly, the Forum has credited only those portions of LeAnne Woodworth´s testimony which were consistent with or confirmed by other, credible evidence. (Testimony of L. Woodworth)
66) The testimony of David Haines was not credible. His demeanor was brash and impertinent and at times evasive. He denied ever referring to Complainant as "Bertha." He stated that he misunderstood Cagle´s call for "Bruce," as "Bertha," and merely repeated what he thought he had heard and that it was not directed at Complainant. He testified that he had not used the term "Bertha" in connection with Complainant. But Cagle heard him say "Bertha? Here she is," Weiner saw and heard him say "Oh, Bertha,´ and offer the phone to Complainant, and there was evidence that he had used the name previously in connection with Complainant. After he was struck, he told Jones he made a stupid comment, he told Bruce Woodworth that the remark he made was just in jest, and he later admitted to Harden he made a sarcastic remark. Haines denied touching Complainant or any other female employee, and denied sexual comments to or about anyone, but there was credible evidence to the contrary. He stated he called the police after the slap, but there was no other evidence of that. He said that only Complainant found any fault with his job performance. There was no evidence that Complainant embarrassed Haines in front of customers and staff regarding his job performance as Haines claimed. Based on his demeanor as a witness and on the content of his testimony, the Forum has credited only those portions of David Haines´ testimony which were verified by other, credible evidence. (Testimony of Haines)
67) Complainant´s testimony was in some respects inconsistent and unreliable. She was at times vague or unresponsive, and at other times she clearly evaded answering. She responded "I don´t remember" to many questions in such a way as to make it unclear whether she didn´t remember what was said or done on a particular occasion, whether she didn´t remember the occasion at all, or whether there was no such occasion. However, much of the vagueness or equivocation involved her prior work history with Respondent and was not relevant to the harassment alleged except as a framework from which to gauge the credibility of her allegations. The Forum finds that while some of Complainant´s testimony was unconvincing, there was independent credible evidence confirming the harassment and its effect. In that regard, Complainant was a credible witness. (Testimony of Complainant)
68) For two months before the incident of March 26, the unwelcome behavior of Haines toward Complainant caused her severe mental distress characterized by feeling demeaned, embarrassed, under stress, and frustrated. At times she was in tears and things were a blur; she was upset and unable to concentrate on her work. When the behavior didn´t cease, she felt trapped and helpless. She was very frustrated. She was adversely affected by the sexual nature of the ridicule to which Haines subjected her in touching her and by the humiliation she felt from Haines calling her "Bertha" and staring at her breasts. She experienced long-lasting distress and self-doubt attributable to the behavior of Haines, separate and apart from the disappointment of losing employment. (Testimony of Complainant)
 

ULTIMATE FINDINGS OF FACT

1) At times material herein, Respondent was a foreign corporation operating retail stores in Oregon which utilized the personal service of one or more employees reserving to itself the right to control the means by which such service was performed. 2) Complainant, female, was employed by Respondent between 1978 and March 26, 1993, and in 1993 was a Person In Charge ("PIC"), a non-management position, at the Customer Information (CI) desk at Respondent´s Division Street store in east Portland. Constance Clark, operations manager, was the manager of the CI desk and Complainant´s direct supervisor.
3) David Haines was employed by Respondent in 1993 at the Customer Information desk at Respondent´s Division Street store. Complainant and Wendy Benz, another non-management employee, supervised Haines when each acted as PIC subject to Clark´s overall supervision.
4) During January through March of 1993, Haines engaged in a continuing course of verbal and physical conduct of a sexual nature toward Complainant and other female employees and customers due to their female sex. This conduct was characterized by sexually suggestive speech toward Complainant and other females, by touching Complainant´s body, thrusting his body against hers, placing his arm around Complainant and other females, referring to Complainant´s large breasts, and calling Complainant "Bertha" or "Big Bertha," which was in reference to her large bust. This conduct was unwelcome.
5) The sexually oriented conduct of Haines was pervasive. Complainant repeatedly told Haines to stop. She repeatedly reported his unwelcome activity to Clark.
6) Respondent took no action to correct, modify or prevent the unwelcome behavior of Haines.
7) On March 26, after Haines had earlier once again subjected Complainant to unwanted sexual touching and comment, Complainant slapped him when he referred to her as "Bertha" in receiving a telephone call.
8) Respondent discharged Complainant for striking a coworker.
9) The sexually oriented conduct of Haines caused Complainant severe and long-lasting emotional distress.
10) Complainant was sensitive about being short and large busted to the extent that she avoided using her maiden name of "Stack." She subsequently had breast reduction surgery.
 

CONCLUSIONS OF LAW

1) ORS 659.010 provides, in part:
"As used in ORS 659.010 to 659.110 * * * unless the context requires otherwise: " * * *
"(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 or will be performed.
" * * *
"(12) ´Person´ includes one or more * * * corporations * * * "
Respondent was an employer subject to ORS 659.010 to 659.110 at all times material herein.
2) ORS 659.040 (1) provides:
"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 * * * 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) The actions, inactions, statements and motivations of Bruce Woodworth, Constance Clark and Carolyn Harden are properly imputed to Respondent herein.
4) ORS 659.030 provides, in part:
"(1) For the purposes of ORS 659.010 to 659.110 * * * , it is an unlawful employment practice: "(a) For an employer, because of an individual´s * * * sex * * * to bar or discharge from employment such individual. * * *
"(b) For an employer, because of an individual´s * * * sex * * * to discriminate against such individual * * * in terms, conditions or privileges of employment."
" * * *
"(f) For an employer * * * to discharge * * * any person because the person has opposed any practices forbidden by this section * * * or has attempted to do so."
OAR 839-07-550 provides, 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 David Haines, consisting of unwelcome sexual advances and 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.
5) Respondent did not discharge Complainant because of her sex.
6) Respondent did not discharge Complainant because she opposed or attempted to oppose unlawful employment practices.
7) 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 regardless of whether: "(a) The specific acts complained of were authorized by the employer; "(b) The specific acts complained of were forbidden by the employer; or "(c) The employer knew or should have known of the occurrence of the specific acts complained of. (2) An employer is responsible for acts of sexual harassment by an employee against a co-worker where the employer, its agents, or supervisory employees knew or should have known of the conduct, unless it can be shown that the employer took immediate and appropriate corrective action. OAR 839-07-565 provides:
"Generally an employee subjected to sexual harassment should report the offense to the employer. Failure to do so, however, will not absolve the employer if the employer otherwise knew or should have known of the offensive conduct."
The failure of Respondent to take immediate and appropriate, or any, action to correct the sexually harassing activities of Haines toward Complainant made the resulting intimidating, hostile, and offensive working environment an explicit term or condition of Complainant´s employment in violation of ORS 659.030(1)(b).
8) 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 Respondent 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.
 

OPINION

Respondent´s Failure to Act
The Agency alleged in its Specific Charges that Complainant, a female, in January t hrough March 1993 while she acted as a person in charge, was subjected to unwelcome offensive conduct of a sexual nature in the workplace by David Haines, a male employee whom she supervised. It was further alleged that this conduct was reported to Respondent´s management and that Respondent failed to take immediate and appropriate corrective action, thereby created an intimidating, hostile and offensive working environment and in violation of ORS 659.030(1)(b). The Forum finds that the Agency has established these allegations by a preponderance of the evidence. This was not a case of a single, isolated incident of offensive behavior on the part of Haines. The credible testimony suggests that his sexually offensive conduct had frequently been directed at Complainant and at other females at Respondent´s store in the presence of staff and customers, usually at or near the CI desk. Despite Clark´s testimony to the contrary, the more credible testimony suggests that she should have been alerted both by the pervasivenes of Haines´ conduct and by Complainant´s protests that Haines was engaging in an ongoing course of sexually offensive behavior to which the employer was obligated to respond with immediate, appropriate corrective action. The Forum has found that Respondent´s failure to act created a sexually intimidating and offensive work environment which became a condition of Complainant´s employment.
Complainant´s Discharge
The Specific Charges alleged that on March 26, 1993, when Haines again made sexually disparaging comment about Complainant´s breasts and advanced toward her, she hit him, and that Respondent discharged Complainant on March 31. It was alleged alternatively that Complainant´s discharge was in retaliation for opposing unlawful practices, violating ORS 659.030(1)(f), or was discriminatory in that the male employee was not disciplined, violating ORS 659.030(1)(a). The Forum finds that Complainant struck Haines under the circumstances and for the reason described, but that the subsequent discharge was supported by a legitimate, non-discriminatory reason. Complainant was distressed and brought to tears by the behavior of Haines. That behavior was pervasive, was noted by others in the workplace and was timely reported by Complainant, but it did not cease or diminish. Her distress and frustration continued when she perceived that nothing was happening to correct the situation. Due to her distress and frustration, she unwisely resorted to self-help on March 26. While Complainant may well have felt trapped, Bruce Woodworth, a manager, was almost immediately available and answered the telephone call from Cagle which Haines intercepted. The Forum cannot find that Complainant´s action in striking Haines, however understandable, was justified. Respondent discharged Complainant for striking a fellow employee in the workplace and not because she was female or because she had opposed an unlawful practice.
Damages
Where an individual, because of the individual´s sex, is subjected to unwelcome sexually oriented verbal and physical behavior on the job in such circumstances that the employer knows or should known of the offensive behavior and takes no action to correct or eliminate the offensive behavior, that employer is liable for harm caused to the individual. That is the case here. Complainant was subjected to over two months of sexually offensive behavior on the part of Haines. That behavior caused Complainant severe mental distress. She felt demeaned, humiliated, embarrassed, and, when the behavior was not corrected after Respondent should have known of it, she felt frustrated and helpless. Her work was adversely affected and she was embarrassed in the extreme by the sexual nature of the ridicule and by the humiliation to which Haines subjected her. The Forum has found that she experienced long-lasting distress and self-doubt attributable to this behavior. The Forum is awarding $20,000 as appropriate compensation for Complainant´s emotional distress.
Respondent´s Exceptions
Respondent did not except specifically to individual findings or conclusions of the Proposed Order, but rather questioned generally the findings of historical fact and the imputation of liability therefrom. The Forum has reexamined the evidence, adding Finding of Fact (FOF) 5 and expanding Proposed FOF 11, 12, 18, 21 and 23 (now renumbered FOF 13, 12, 19, 22 and 24) as a result. Respondent´s unspecific exceptions can be grouped into three broad categories: 1) the evaluation of Connie Clark´s testimony; 2) the finding of "pervasiveness of the sexually-oriented activities of Haines"; and 3) the credibility of Complainant.
1) Clark´s testimony The witness testified in a manner intended to distance herself from any responsibility for or knowledge of the objectionable activities of Haines or of their effect upon Complainant. She attempted to convey the impression that she was a mere scheduler without knowledge of or responsibility for the day to day interaction among her subordinates. She appeared to be a nonconfrontive individual who was uncertain how to handle Complainant´s concerns. The Forum noted that her schedule and that of Complainant did not always coincide, but that does not explain her professed lack of knowledge of the behavior of Haines which was reported by Benz, who did not confine that report to immaturity. Benz may not have been offended by Haines´ sexual comments, but she reported them. Haines and Complainant worked at times with Benz, which accounts for Benz´s observations of their interaction. It follows that they worked some days while Clark was in the store. If Benz could characterize the environment at the CI desk as one that accepted sexual jokes, banter and behavior, it is inconceivable that Clark could not know about that environment or about the participation of Haines in it. 2) The finding of pervasiveness Several witnesses testified about the atmosphere at the CI desk regarding the sexual jokes, banter and behavior. There was evidence of the ongoing sexually oriented actions and comments of Haines during times material from several sources in addition to Complainant (Benz, Streifel, Plute, Brown´s statement to Harden). Again, it is inconceivable that Respondent´s management was unaware of that environment or of the participation of Haines. 3) Complainant´s credibility The Hearings Referee found that some of Complainant´s testimony was unconvincing, but that there was independent credible evidence confirming the harassment and its effect upon her, and that she was a credible witness in that regard. Reexamination of the evidence fails to disclose a reason for changing that finding. Respondent´s exceptions are disallowed.
 
ORDER

NOW, THEREFORE, as authorized by ORS 659.060(3) and 659.010(2), and in order to eliminate the effects of the unlawful practice found, Respondent FRED MEYER, INC., is hereby ordered to: 1) Deliver to the Fiscal Services Office of the Bureau of Labor and Industries, State Office Building, Ste 1010, 800 NE Oregon Street, # 32, Portland, Oregon 97232-2162, a certified check payable to the Bureau of Labor and Industries in trust for Georgia Stack-Rascol in the amount of:
a) TWENTY THOUSAND DOLLARS ($20,000), representing compensatory damages for the mental and emotional distress suffered by Georgia Stack-Rascol as a result of Respondent´s unlawful practice found herein, and b) Interest at the legal rate on the sum of $20,000 from the date of this Final Order until Respondent complies herewith, and
2) Cease and desist from discriminating against any employee based upon the employee´s sex.
DATED: June _________________, 1996.

 
JACK ROBERTS
Commissioner
Bureau of Labor and Industries
 
JUDICIAL NOTICE

Pursuant to ORS Chapter 183, you are entitled to judicial review of this Final Order. To obtain judicial review, you must file a Petition for Judicial Review with the Court of Appeals in Salem, Oregon, within sixty (60) days of the issuance of this Order. If you file a Petition for Judicial Review,
 
YOU MUST ALSO SERVE A COPY OF THE PETITION ON THIS AGENCY and THE DEPARTMENT OF JUSTICE - APPELLATE DIVISION AT THE FOLLOWING ADDRESSES:
BUREAU OF LABOR AND INDUSTRIES
HEARINGS UNIT
1005 STATE OFFICE BUILDING
800 NE OREGON STREET # 32
PORTLAND, OREGON 97232-2162

 
DEPARTMENT OF JUSTICE
APPELLATE DIVISION
400 JUSTICE BUILDING
SALEM, OREGON 97310
CERTIFIED TO BE A TRUE AND CORRECT COPY OF THE ORIGINAL AND OF A WHOLE THEREOF.
 
This quotation is a synthesis of what was said as reported by the caller (Cagle) to Harden, by Bruce Woodworth in a memo to Harden, by Complainant to Harden, by Weiner at hearing, and by Complainant at hearing.