N.H. Department of Corrections
DECISION OF THE COMMISSION
This charge of employment discrimination was filed on December 5, 1997, and was dually filed with the US Equal Employment Opportunity Commission (EEOC). The Commission has jurisdiction over this matter pursuant to NH RSA 354-A:5 and 7. Probable cause having been found by the investigating commissioner, and conciliation having failed, a hearing was conducted pursuant to RSA 354-A:21,11(c) on November 1, 1999. Attorney James Lafrance represented the complaining party; Attorney Jon Vinson represented the Department of Corrections.
The following witnesses testified at the hearing: Susan Asselin, now Susan Butland; Richard J. Hamel, a correctional officer (CO) and former fiance of the charging party; William Wilson, from the Department of Corrections (DOC); Sharon Cerretani, CO; Angela 'Marino, CO; Marilee Nihan, DOC administrator of programs; Lisa Angelini, DOC employee; Lt. Giles Provost, DOC. Richard Gerry, DOC administrator of security, was not available to testify at the. hearing. Commissioners agreed to keep the record open to receive a transcript of a deposition of Gerry in lieu of testimony. That transcript was received on November 5, 1999. Many of the underlying facts of this case are undisputed and are established by the large amount of documentary evidence which the par-ties submitted and which the Commission has reviewed and considered. Based on the evidence the Commission finds in favor of the charging party.
The charging party began work for the Department of Corrections in July 1993, initially working in the Women's Prison. In October 1996, complainant transferred to the state prison in Concord, where she worked as a canteen officer. There she met Christopher Lewicki, an employee of the DOC who worked as a field training, correctional, and certification officer. Lewicki had been an employee of DOC since April 1993.
Asselin had been involved in law enforcement since 1984 and had worked in municipal law enforcement before coming to the Department of Corrections. She had an associates degree in criminal justice, which she received in 1986, and had attended the NH Police Standards and Training program, becoming certified as a police and correctional officer. As canteen officer in the interior canteen, Asselin also provided interior relief for other officers. Her DOC evaluations show that complainant's supervisors considered her a valuable employee.
On the morning of June 16, the complainant reported to Sgt. William (Bill) Wilson that Officer Lewicki had engaged in behavior which she considered sexual harassment. The ongoing unwelcome sexual behavior included, among other things, discussions of sex and Lewicki's sexual needs, requests for sex from complainant, requests to view Asselin's nipple ring (complainant did not have one), rubbing up against complainant, and putting his hands on complainant's breasts to feel them. In addition, complainant alleged that on June 12, Lewicki had sexually harassed complainant when she tried to obtain the number on a gunlock in a perimeter vehicle while doing inventory. On that occasion, Lewicki, who was in the vehicle, had covered the gunlock with his hat, refusing to give complainant the number. After engaging complainant in a discussion about where her fiance was, and suggesting that he (Lewicki) "drive a hard one" into complainant up at the range, Lewicki grabbed complainant's breast and fondled it when she reached through the window of the truck to uncover the gunlock number which was blocked by Lewicki's hat.
Sgt. Wilson had Asselin speak with Lt. Giles Provost, who advised Asselin to put her complaint in writing. Lt. Provost told complainant that if the incident occurred as she described it was a sexual assault. Provost had complainant's written complaint by the morning of June 17, and he told Asselin that they would "talk to" Lewicki.
On June 18, when complainant arrived at work, Lewicki was on duty and in charge of the locked control post through which complainant had to pass. Lewicki attempted to speak to complainant as she passed through the checkpoint, however she ignored him. Upset that she had to be exposed to contact with Lewicki, complainant called investigations that morning and learned that no one had spoken yet to Lewicki about the charge of sexual harassment. During the morning, Lewicki again approached complainant, calling her on the phone to come up and relieve him. She refused Lewicki's request and again notified investigations that Lewicki was contacting her. Later that morning, Lewicki asked complainant if she would get together with him that evening. Complainant called investigations a third time. Investigations informed her that they would be talking with Lewicki.
Later that day, investigations phoned complainant and told her that Lewicki had been notified of the complaint, had admitted everything, and that they needed to talk to her. When complainant went up to speak to Marilee Nihan, who had conducted the investigation, and Wilson, she found Lewicki back in the control post and she had to pass by him again to get to Nihan and Wilson. When she initially reported Lewicki's behavior, Asselin indicated to Wilson that she did not want to get Lewicki in trouble, she wanted the behavior to stop. But by the afternoon of the 18th, Asselin was quite upset and informed Nihan and Wilson that she wanted Lewicki removed, and that she wanted to "go all the way" with her complaint and see the State Police investigate it.
On the morning of June 19, complainant arrived at work, entered the briefing room, and found Lewicki on duty. She became upset and began to shake and cry. Complainant had given investigations names of female officers whom she thought Lewicki had harassed, and she learned that morning that Lewicki was assigned to work with one of those potential witnesses. Complainant called Nihan and told her she wanted Lewicki removed.
That afternoon, Asselin met with Warden Cunningham. Cunningham told Asselin that Lewicki admitted the conduct and that he would be suspended without pay for an unspecified period of time. Nihan told complainant that her behavior had contributed to the sexual harassment, because as Lewicki's behavior became more sexual, complainant never told Lewicki to stop it. Complainant became distraught, and broke down in tears and yelled at Cunningham and Nihan. Nihan raised her voice in return and yelled at complainant that she needed to learn to say 'No,' if she did not want to be harassed. The Warden explained to complainant that Lewicki was going into military reserve service for several months after his suspension and that by the time he returned, complainant would have calmed down.
Asselin then met with Commissioner Brodeur and informed him that she felt that she was being revictimized by the investigation process. According to his own "memo to file" dated June 20, 1997, the Commissioner explained to complainant that (in his opinion) the contract with the union and personnel policies did not allow for an outright termination under these circumstances.
On the morning of June 20, Lt. Grimaldi sent complainant home from work because she was so distraught he judged her unfit for duty. The evidence shows that when Asselin reported for work that morning, she was crying, shaking, and generally distraught because of her perception that DOC was not handling her complaint appropriately.
Although complainant indicated to DOC that she wished to pursue a criminal complaint against Lewicki, a meeting with investigations to discuss this option never occurred. Complainant never returned to work at the Department of Corrections after June 20. She began treatment with a psychiatrist on June 25, for panic attacks, tunnel vision, hyperventilation, and nightmares. She continued treatment, but was unable to return to work. An attempt to don her uniform later that summer caused a panic attack. In September 1997, while out on Family and Medical Leave Act leave, complainant was notified that she had been transferred out of her position in canteen, resulting in a schedule change with loss of weekends off. Complainant was terminated by DOC on January 13, 1998, when she failed to return to work. She was still under a doctor's care at the time and unable to return to work at the Prison.
Commissioner Brodeur offered Lewicki the option of resigning or being suspended. Lewicki chose to be suspended. Lewicki, suspended without pay for 20 days starting June 20, 1997, resigned voluntarily on July 3, effective June 20. Although required to report Lewicki's suspension and the reason for it to the Police Standards and Training Council, DOC reported only that Lewicki had resigned. DOC did report to Police Standards and Training when complainant was terminated.
NH RSA 354-A:7,V prohibits sexual harassment. Unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal or physical conduct of a sexual nature constitute sexual harassment when 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. With respect to conduct between fellow employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer, its agents or supervisory employees, knows or should have known of the conduct, unless it can show that it took prompt, appropriate remedial action. N.H. Code of Administrative Rules, Hum 403.02(e).
Appropriate remedial and corrective action includes measures reasonably calculated to end current harassment and to deter future harassment from the same offender or others. Yamaguchi v. Widnall, 109 F.3d 1475) 1483 (9th Cir. 1997); Fuller v. City of Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995); Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).
Employers have a duty to express strong disapproval of sexual harassment and to develop appropriate sanctions. The adequacy of the employer's response depends on the seriousness of the sexual harassment. Ellison, supra at 882.
In some cases the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile work environment. To avoid liability under Title VII for failing to remedy a hostile work environment, employers may even have to remove employees from the workplace if their mere presence would render the working environment hostile. Ellison, supra at 883.
It is undisputed that Lewicki engaged in behavior toward Susan Asselin which constituted sexual harassment, and that fact was not in issue during the hearing. Based on the investigation report completed by Marilee Nihan on June 19, 1997, Commissioner Brodeur concluded that Lewicki had engaged in behaviors which created a hostile work environment and were a violation of State and Department policies of which Lewicki was aware. The behavior included participation in conversations of a sexual nature, touching a female correctional officer on the breast on two occasions, and suggesting to a female correctional officer that she have sex with Lewicki both on and-off duty. The Commission therefore finds that Asselin was sexually harassed while an employee of DOC.
The respondent did conduct an investigation of the complaint filed by Asselin. Asselin informed DOC of the harassment, including the touching of her breasts, on the morning of June 16. She was required to put her complaint in writing, which she did. The investigation consisted of interviews with the complainant and Hamel on June 17, and an interview with Lewicki on the morning of June 18. No further inquiry was deemed necessary when Lewicki allegedly "admitted" everything in complainant's charge. Nihan testified that on the morning of June 18, after listening to Lewicki, she concluded that he was genuinely sorry for his behavior, and should not be terminated. Without interviewing complainant again to check out discrepancies between Lewicki's "admissions" and complainant's allegations, and without interviewing any other witnesses, Nihan wrote up her report on June 19 and made her recommendations. The Warden decided to suspend Lewicki for 20 days without pay in consideration, among others things, of Lewicki's "truthfulness and cooperation." In his letter to Lewicki of June 19, 1997, notifying him of the Department's decision, Commissioner Brodeur stated that Lewicki's conduct clearly violated the State policy against sexual harassment and warranted termination; however, upon review of Lewicki's employment record and past performance, he was being suspended without pay for 20 work days.
The complainant charges that the DOC's response to her complaint was not adequate, because the penalty imposed was too lenient, because the leniency shown to Lewicki would not serve as an effective deterrent to him or others within the Department, because the Department did not protect her from further harassment once she reported the problem to her superiors, and because the Department further victimized her in the investigation process through insensitive remarks, by blaming her for Lewicki's behavior, and by being partial to Lewicki. Finally, complainant argues that if the DOC had done a better investigation it would have gained information regarding the extent of Lewicki's inappropriate activities which would have led to his termination and would have prevented DOC investigators from blaming Asselin.
The respondent argues that its investigation and remedial action were appropriate and there was nothing further it could have done. In defense of its decision not to terminate Lewicki or immediately place him on leave during the investigation, DOC says that it relied on complainant's initial statements that she did not want to get anyone in trouble and that she only wanted the offending behavior to stop. Lewicki was seen as a "low risk" because of his truthfulness and cooperation. In addition, DOC responds that Lewicki was given strong discipline in that he was suspended for 20 days without pay, a penalty which amounted to a fine of slightly over $2000. The Warden decided to give Lewicki a second chance, pointing out that complainant had been terminated from a prior position in law enforcement for "inappropriate sexual conduct," but was given a second chance when DOC hired her.
The Commission finds that the respondent's actions to remedy this situation were not sufficient. First, the Commission finds that complainant's prior misconduct, (used by DOC as a reason for giving Lewicki a second chance) was not sexual harassment and did not involve any hostile or criminal behavior aimed at other employees. The Commission finds this comparison between complainant and Lewicki inappropriate and irrelevant.
Second, the Commission is puzzled, given that Lewicki had allegedly assaulted complainant by grabbing her breast (sexual assault, according to Provost), why DOC essentially waited until June 18 to take action to confirm complainant's allegations. The respondent did not take steps to prevent further harassment of the complainant by Lewicki, once it knew of complainant's charge. Based on complainant's testimony and the other evidence on record, the Commission finds that complainant had to notify respondent repeatedly of her desire not to be exposed to Lewicki, who was still allowed to remain in the work environment. Complainant was further harassed by Lewicki on June 18, when he asked complainant if they could get together that evening. The Commission also finds that, given the physical nature of Lewicki's harassment, his mere presence in the workplace would render it hostile for the complainant or any other reasonable person in her position. Thus, it was foreseeable that it would be traumatic for complainant to have to enter the workplace or pass through a checkpoint controlled by Lewicki. While respondent may well have been lulled into inaction by complainant's initial position that she "just wanted it to stop," after complainant's first call to investigations on June 18, a reasonably prudent employer would have immediately removed Lewicki from the work environment, at least until it completed an investigation. The Warden was aware he could have placed Lewicki on administrative leave until the investigation was complete.
Third, the respondent did not conduct a thorough investigation of Asselin's complaint when it received it, and thus did not have information which would have placed Lewicki's behavior in a different light. This would have prevented the traumatization of complainant which resulted from respondent's blaming her for the harassment. Complainant gave investigations the names of at least two female correctional officers whom she believed had information about Lewicki relevant to her claim. However, Nihan concluded by midmorning June 18 that she had all the information she needed and that Lewicki should not be terminated. Even after Nihan received some information from the two female CO's, she did not correct her report to reflect the additional information. The information was relevant to the questions of Lewicki's punishment, where Lewicki should be posted when/if he returned to work, and how closely he should be watched.
The female officers, both of whom testified at the hearing, had been the targets of unwelcome sexual behavior by Lewicki. One of them had been asked for dates and hugs within weeks of starting work at DOC, although Lewicki was married, and on one occasion Lewicki had placed his arms against the wall on either side of the CO, preventing her from walking away from him. Nihan took a statement from this officer, who said that Lewicki's behavior did not bother her. The other officer had informed Wilson that Lewicki was always going after women at the prison, and she testified that she felt he was a "Predator. Lewicki frequently asked the witness for sex, even after being told to stop. On one occasion, Lewicki came to the witness' home without her knowledge and knocked on the door. He told the witness later that he had looked into the house and had seen her, although she did not see him. The witness felt that this was "stepping over the line," and that she considered him more than just a "flirt," as Lewicki characterized himself. She said she would not like to be out in a dark alley with him. Nihan did not take a statement from this employee.
Persons who believe they are being sexually harassed are often afraid of reporting the behavior. Complainant was afraid of violating the "blue code" which requires officers to support one another and characterizes as "rats" those who report others to management. She was fearful that DOC would become hostile toward her and possibly retaliate. Unfortunately, some of complainant's fears were realized when she did come forward with her complaint. Although the Commission does not find that DOC retaliated against the complainant in the matter of her job assignment or in terminating complainant's employment when she failed to return to work after extensive leave, the Commission does find that in its investigation, DOC was not impartial.
Lewicki was treated more favorably than complainant during the investigation, a fact which would not encourage employees to report possible harassment. Lewicki was commended for his honesty in admitting the allegations in complainant's charge. This honesty was a factor in suspending rather than firing him. A careful reading of Lewicki's statement and Nihan's report, however, shows that Lewicki did not fully admit the charges and wherever possible used language which minimized or avoided responsibility for his inappropriate behavior. He started by describing himself as a harmless flirt, for example. Regarding the first instance of his touching complainant, Lewicki says: "I'm not positive but I do think that I had said to sue that I wanted to touch her breast..." Asselin allegedly said nothing so he went ahead. With regard to the second instance of touching, Lewicki says that he thinks he told her he wanted to touch her breast and put his hand on the windowframe palm up, and that "contact was made," when the complainant leaned in the window.
Lewicki's description of these events is quite different from complainant's. Complainant denies Lewicki's version. But Nihan never interviewed complainant again to find out whether complainant agreed with Lewicki's allegations, and thus made no attempt to find out whether Lewicki was actually telling the truth. Lewicki, on the other hand, was allowed to read Nihan's report and offer additional material to qualify or correct the report. Complainant was informed that a decision had been made and that she had contributed to the harassment. She was not offered the opportunity to correct any inaccuracies she perceived in the report.
The circumstances related above further victimized the complainant. Had the DOC removed Lewicki while it did its investigation, done a thorough investigation taking into account Lewicki's reputation and behavior as a womanizer before blaming complainant for not saying 'No,' and terminated Lewicki's employment as it was entitled to do under the Personnel Rules, this case would not have been filed. Only after complainant was blamed for the harassment and subjected to further propositioning by Lewicki did complainant become totally distraught. Reasonable persons can sometimes differ over appropriate punishment. However, the Commission is uncomfortable with the message that DOC sent when it suspended, rather than fired, an employee who twice grabbed a co-worker's breast. This discipline leaves the Commission wondering what action would result in termination. Thus, the Commission finds that the discipline imposed would not act as a deterrent.
The complainant was sexually harassed by a co-worker while employed by respondent. The Commission finds that the respondent's failure to take prompt appropriate remedial action resulted in further injury to the complainant as a result of a hostile work environment. Accordingly, the Commission finds that respondent discriminated against Susan Asselin based on sex.
Award of Damages
Having determined that the respondent has engaged in an unlawful practice, the Commission is authorized to order the respondent to pay damages to the complainant. RSA 354-A:21,11(d); E.D.Swett, Inc. v. New Hampshire Commission for Human Rights and Leonard Briscoe, 124 N.H. 404 (1983).
A. Compensatory Damages
The Commission finds that Susan Asselin suffered emotional harm, distress, embarrassment, humiliation, and trauma by the actions of the Department of Corrections. The written and oral evidence establishes that complainant suffered panic attacks, crying spells, nightmares, sleeplessness, and other symptoms as a result of the harassment and the manner in which her report was handled by DOC. Her current symptoms of panic attacks, breathing difficulties, shaking, headaches, and nausea, have required medication and ongoing treatment. Accordingly, the Commission orders the respondent to pay the sum of $75,000.00 to compensate the complainant for emotional harm.
B. Back PayBut for the actions of respondent, complainant would have remained employed at DOC. Complainant testified credibly as to her desire and efforts to return to work at the prison and the fact that that became impossible because of her anxiety disorder associated with work there. Complainant's last day of work at DOC was 6/20/97. As of the date of her last paycheck on August 1, 1997, covering the period through July 17, 1997, complainant's yearto-date gross earnings were $17,473.20. This amount represents average gross weekly earnings at the time of her termination of $614.64 ($17,473.20 divided by 28.428 weeks). Complainant has been unable to return to police or correctional work. Complainant testified as to her efforts to find work. This evidence was not rebutted by respondent, which has the burden of showing that complainant failed to mitigate damages. She had interim earnings in 1998 of $2115.00. Between January 1 and June 11, 1999, complainant earned $5764.00 and was then unemployed. She became reemployed in October 1999, at the YMCA in Manchester, earning $9.50 per hour for a 30-31 hour per week job ($294.50/week; $1800 through 10/31/99).
But for the actions of respondent, complainant would have earned $73,315.48 between July 18, 1997 and November 1, 1999 (119.282 weeks x $614.64). She had interim earnings in that period of $9679.00. Complainant's total pay loss through the date of hearing is therefore $63,636.48.
C. Front Pay
The evidence submitted shows that reinstatement is not an appropriate remedy for the complainant. Foreclosed from reentering law enforcement, complainant will need a period of rehabilitation in order to prepare for a career which will allow her to earn as much as she would have earned at Corrections. The Commission finds that 2 1/2 years front pay is an appropriate amount to award the complainant. The Commission assumes that complainant will continue to be employed at YMCA and will thus earn $23,400 per year there, which amount should be deducted from the amount of front pay. The total amount of front pay awarded is $21,403.20. (130 weeks x $614.64 = $79,903.20. From this we have subtracted 2.5 years at $23,400, or $58,500, the amount of future earnings complainant is expected to have. The difference between $79,903.20 and $58,500. is $21,403.20.)
D. Lost Employment Benefits and Future Benefits
Complainant was entitled to substantial benefits as an employee of the state of Hampshire, including family health insurance, family dental coverage, retirement, disability coverage. The Commission adopts the valuation of benefits proposed by the complainant, and awards complainant the value of back benefits of $10,318.61. The Commission also awards the complainant 2 years of future benefits, in the amount of $20,240.35.
E. Medical Bills
As a result of events at DOC the complainant has required medical and psychological treatment. She has presented documentary evidence showing expenses for prescriptions and doctor visits. These amounts have not been contested by respondent. The Commission awards complainant the amount of $9,686.08 medical costs.
F. Attorney's Fees
The complainant has prevailed on her claim of sexual harassment. The Commission may exercise its discretion to award attorneys fees to a complainant who prevails. The Commission orders the respondent to pay complainant's reasonable and necessary attorney's fees and costs incurred in connection with this charge. Complainant's counsel shall submit a detailed, itemized statement of fees and costs within 20 days of service of this order. Respondent is granted 10 days from the filing of the statement to object. The Commission will then enter a final order.
G. Total Damages
Respondent is ordered to pay complainant the sum of $200,284.72. Respondent shall pay complainant's reasonable attorney's fees and costs.
Maureen Raiche Manning, Esq
Chair for the Hearing Commission
Commissioner Loren Jean
Commissioner Elizabeth Lown
RULINGS ON REQUESTS FOR FINDINGS OF FACT
AND RULINGS OF LAW
SUBMITTED BY COMPLAINANT
Facts9. through 32. Granted
58. Neither granted nor denied
Complainant's Supplemental Requests58. Granted
1. Denied, not in evidence
4. Denied, not in evidence
20. No finding.
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