Following a hearing on the merits and a review of the evidence, the Commission finds and rules as follows:

I. FINDINGS OF FACT

1. Rachel Lyons timely filed a complaint of sex discrimination (sexual harassment) with the New Hampshire Commission for Human Rights and the United States Equal Employment Opportunity Commission against The Tub Shop, Inc./Robert Drinkhall, President.

2. Complainant alleges a violation of RSA 354-A:8 in that Respondent's use of sexually explicit language created a hostile and offensive working environment. Hum 402.02

3. Respondent is a chain of hot tub shops which rents private rooms containing hot tubs to customers. The corporation has shops in three New Hampshire locations and one in Maine.

4. Complainant was employed as a receptionist/general helper at the company's Portsmouth location from Januaru 8, 1988 through April 21, 1988, working an average of 25 hours per week.

5. On March 28, 1988, Complainant filed a charge alleging that Robert Drinkhall made the following statements:

1. When discussing how long a trip could take, he included having sex as part of the equation;
2. When discussing his monitoring the work force with video cameras, he responded that he wouldn't mind if the workers "mooned" him as long as it was the "pretty girls" who did it.

6. Respondent acknowledges making the statement referenced in paragraph 5(a) at a meeting with six employees, three male and three females, present. Letter from Respondent dated April 9, 1988.

7. Respondent admits making the statement referenced in paragraph 5(b) and explains it by saying he was joking.

8. Respondent further explains that the operation of a hot tub facility frequently involves issues that are sexual in nature and that training of new employees covers topics which are related to sexuality such as properly treating the tubs with chemicals to prevent the transmission of venereal disease. Respondent also emphasizes that he believes customers engage in sexual activity in the privacy of the tub rooms.

9. On April 12, 1988, complainant gave two weeks notice of her intention to terminate her employment.

10. On April 21, 1988, complainant was fired by a newly hired assistant manager.

11. Respondent's justification for firing complainant after she had filed the complaint and given notice, is poor performance.

12. To support its justification for firing, Respondent submitted two "Closing Evaluation" forms and an unsigned paper dated April 19 with two negative comments about complainant's use of vulgar language.

13. The "Closing Evaluation" forms rate the employee using a variety of criteria, such as the cleanliness of various items and areas in the shop. Points are deducted depending upon the severity of the problem noted.

14. Complainant's evaluations are generally positive until April 5^th including such comments as "nice close" (seven times in one form or another) and "job excellently completed, awesome."

15. On April 20^th, the reviewer subtracted 102 points based on leaving various items uncleaned. According to the form, a score of 100 points results in a one week delay of salary review or one week loss of privileges. Complainant was fired the next day.

II. RULINGS OF LAW

1. Under Hum 402.02 and RSA 354-A:8, verbal conduct of a sexual nature constitutes sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such an individual, 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.
2. As a matter of law, the statements by the respondent referenced in paragraphs 5(a) and 5(b), while not condoned or approved by the Commission, do not rise to the level which would constitute illegal sexual harassment.
3. Under RSA 354-A:8, VII, it shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to discharge, expel or otherwise retaliate or discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.
4. A finding that the respondent's employment practice was not discriminatory does not prevent a finding that the complainant has been retaliated against for filing the charge. Parker v. B & O RR Co. 652 F.2d 1012, 25 F.E.P 889 (D.D.C. 1981)
5. Under Hum 201.05, the hearing commissioners may amend the complaint at their discretion after the issuance of a notice of public hearing.
6. The Commission, on its own motion, pursuant to Hum 201.05, hereby amends the complaint to include a charge of retaliation. Amendment of the complaint by the Commission is the appropriate procedure when the parties involved are the same, the incidents are close in time and the complainant was not represented by counsel.
7. The Commission finds that the termination of complainant's job after filing the discrimination complaint constitutes retaliation and that the respondent's defense of poor performance is a pretext.

III. CONCLUSIONS

1. On the charge of sexual harassment, the Commission finds for the Respondent.
2. On the amended charge of retaliation, the Commission finds for the complainant.

IV. ORDER

1. The respondent is ordered to pay one week's wages to the complainant based on the finding of retaliation. Because she worked an average of 25 hours per week at a wage of $4.25 per hour, she is awarded the amount of $106.25. Said amount to be sent by check payable to the complainant and mailed certified. Return receipt requested, to the New Hampshire Commission for Human Rights, 163 Loudon Road, Concord, NH 03301 within fourteen (14) days of the date Respondent receives the Order.
2. The respondent is ordered to adopt a policy on sexual harassment and include it in the training program for employees.
3. The respondent is ordered to place the posters required by RSA 354-A:11 in all of its New Hampshire facilities.

SO ORDERED

George McAvoy, Commissioner

Gail G. Gunn, Commissioner

Celine Tamposi, Commissioner

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