Diane Panzieri

V.

Shackelton's of New Hampshire, Inc.

and

Richard Shackelton

Docket No. ES(H) 3339-8

DECISION OF THE COMMISSION

Complainant, Diane Panzieri, charges that Richard Shackelton, President of Shackelton's of New Hampshire, Inc., an insurance adjustment firm, engaged in behavior and conduct toward her which constituted illegal sexual harassment in violation of NH RSA 354-A:8, I and Commission Regulation Hum 402.2. Following a two-day hearing on the merits, the commission finds and rules as follows:

1. Complainant Diane Panzieri was employed by respondent Richard Shackelton as the office manager at respondent's business, Shackelton's of New Hampshire, Inc. She worked from November 3, 1986 until May 29, 1987 when she resigned.

2. Respondent is an employer within the definition RSA 354A:3 (V).

3. Respondent was complainant's direct supervisor.

4. During the course of her employment, complainant was subjected to the following actions, comments and behavior by, Richard Shackelton:

a. Respondent stated that his best sexual organ was his tongue; he then stuck out his tongue and wiggled it at complainant.

b. Respondent said complainant had a sexy body and she should wear clothes that show it off.

c. Respondent frequently brushed against her body and an one occasion said, "Oh look! Herman got a rise out of that!"

d. Respondent patted her on her backside on several occasions.

e. Respondent pinched her breast when looking at a pendant, leaving a red mark.

f. Respondent placed his nose on her neck and commented on her cleavage and perfume.

g. Respondent attempted to look up her dress while ostensibly attempting to adjust computer paper.

5. Corroboration of respondent's sexually-oriented comments and behavior was provided by five former employees of respondent.

6. Respondent's wife testified that respondent would say things like "pretty sexy-looking outfit you have on today" and generally engage in light sexual banter.

7. Complainant and other female employees repeatedly asked the respondent to cease his behavior without success.

8. When complainant asked respondent to stop, he told her that he signed the paychecks.

9. Respondent's wife told him to be more "business-like" at work; apparently suggesting that he cease making sexual comments.

10. The complainant placed a partition in front of her desk in an effort to stop the harassment. Respondent removed the partition.

11. Despite her attempts and the attempts of others, respondent's sexual harassment did not stop.

12. Complainant performed her work in a competent and professional manner. She did not dress provocatively nor did she communicate that respondent's behavior toward her was welcome.

13. Complainant continued to work for respondent because the salary was the highest she had ever earned and because the vice president told her that the respondent would be retiring soon.

14. Complainant resigned because she became fearful of respondent, didn't dare turn her back on him and his conduct interfered with her ability to perform her job.

15. Respondent's allegations that complainant received a paycheck to which she was not entitled and that she mishandled another financial matter are not supported by credible evidence.

16. At the time of her resignation, complainant was earning $300 per week.

17. Following her resignation, the complainant made reasonable efforts to find other employment.

18 Complainant turned down a job offering $260-270 per week because the interviewer did not ask about her credentials but instead wanted to know about her relationship with the respondent and about the nature of respondent's business.

9 . As the result of being forced to leave respondent's employ, complainant sustained lost wages of $19,420, calculated as the difference between what she made at Shackelton's and what she made at subsequent employers.

RULINGS OF LAW

20. Shackelton's of New Hampshire, Inc. and Richard Shackelton are employers within the meaning of RSA 354-A:3 (V).

21. The complainant was an employee of Shackelton's of New Hampshire, Inc. and Richard Shackelton within the meaning of RSA 354-A:3 (VI).

22. The conduct engaged in by the respondent constituted sexual harassment within the meaning of HUM 402.02 and sex discrimination within the meaning of RSA 354-A:8 because unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal and physical conduct of a sexual nature was, explicitly and implicitly made a condition of the complainant's employment.

23. The actions engaged in by the respondent constituted sexual harassment within the meaning of HUM 402.02 and sex discrimination within the meaning of RSA 354-A:8 because unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal and physical conduct of a sexual nature had the purpose and effect of unreasonably interfering with the complainant's work performance and creating an intimidating, hostile and offensive work environment.

24. The frequency and severity of the sexual harassment committed against the complainant would have caused a reasonably prudent female employee to terminate her employment. Appeal of T&M Associates, 134 NH 617 (1991).

25. The complainant has a responsibility and duty to mitigate her damages.

26. The respondent has the burden of proving that the complainant failed to exercise reasonable diligence to mitigate the damages. Weaver v. Casa Gallardo, Inc. 922 F. 2d 1515 (11th Cir. 991).

7. Respondent has not proven that the complainant failed to exercise reasonable efforts to find employment. Although she declined a job offer due to personal misgivings, she sought and obtained other employment within a reasonable period of time.

28. As a result of respondent's violation of RSA 354-A:8 complainant is entitled to recover her lost wages of $19,420 and her reasonable attorney's fees in prosecuting this action.

Commissioner Barry J, Palmer

Commissioner John J. Coughlin, Esq.

DISSENT

Although I concur with the majority that the respondent's actions toward the complainant. constitute sexual harassment, I find that complainant failed to mitigate her damages. I find that the respondent proved that complainant failed to exercise reasonable diligence by failing to accept a comparable job at slightly less pay. Accordingly, her damage award for lost wages should be limited to $3,720.

Commissioner Loren Jean

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