Linda Spargo

v.

State Line Veterinary
and
Staffing Network, Inc.

Docket No. ES(H) 5561-95 EEOC No. 16D950153

DECISION OF THE COMMISSION

Linda Spargo, complainant, filed this charge on June 8, 1995, alleging sexual harassment and retaliation. Complainant alleges that, while working for respondent State Line Veterinary as a receptionist, she was sexually harassed by Dr. Lotfy Ahmed, who was employed by State Line as a veterinarian. Complainant alleges that she complained to hospital management more than once before the harassment stopped and that, once the behavior stopped, Dr. Ahmed began retaliating against her. Complainant alleged that she notified management of the retaliation, but nothing was done to stop it. Complainant alleges that she quit her job in March 1995 as a result of management's failure to deal with Dr. Ahmed's meanness toward her.

Respondent State Line denies that complainant was sexually harassed and states that it took prompt action to stop the behavior of the doctor. State Line denies that there was any retaliation or that complainant was forced to quit her job. State Line attributes the disputes between complainant and Dr. Ahmed to a personality clash.

Respondent Staffing Network denies any knowledge of the alleged sexual harassment at the time it was occurring and therefore denies any liability.

A hearing was held in this matter on April 28, 1997.

Staffing Network was represented by counsel, however no one from Staffing Network was present or testified. Respondent State Line was not represented by counsel. Dr. Ahmed was not present. After consideration of the testimony of witnesses and documentary evidence, the Commission finds as follows:

1. Complainant was hired by respondent State Line Veterinary as a receptionist in August 1994, at a rate of $6.00 per hour. She was given a raise of $.50 per hour shortly after she started work. When complainant was at work, she was supervised by the veterinarian on duty at the time.

2. State Line Veterinary, located in Nashua, New Hampshire, is an employer within the meaning of NH RSA 354-A: 2 (VII). Roland Huston, DVM, is the owner/veterinarian and president of the corporation. Carl Scheidegg is the general manager and vice-president. All hiring and firing at State Line is done by Huston and Scheidegg.

3. Respondent Staffing Network, Inc. is an employee leasing company located in Manchester, New Hampshire.

4. Complainant filled out an application for work at State Line in August 1994 and was interviewed by Scheidegg. After accepting Scheidegg's job offer, complainant filled out paperwork given her by Scheidegg, including a "Conditions of Employment" form acknowledging that Staffing Network would be responsible for payroll and withholding of taxes. Scheidegg gave complainant a kit of information on Staffing Network, including an employee handbook containing Staffing Network's policy against discrimination. Complainant assumed she worked for Dr. Huston. Complainant never talked to or met anyone from Staffing Network. She looked briefly at the handbook.

5. Complainant's hours were set by State Line. She worked 40 hours per week: Monday, Tuesday, Wednesday, and Friday from 10 am until 6 pm, and 8 hours on Sunday.

6. Complainant had no problems at work until November 1994.

7. On November 15, 1994, Dr. Lofty Ahmed became employed by State Line as a veterinarian. Ahmed had not yet passed the New Hampshire licensing examination and was working under a temporary license.

8.Complainant often worked with Ahmed during the week, as did other female employees.

9. Complainant and Ahmed worked together on Sundays, when they were generally alone at the hospital, unless Huston stopped by for a brief visit.

10. Shortly after starting work for respondent State Line, Ahmed began to engage in the following behaviors toward the complainant:

a. One Sunday, shortly after beginning work for State Line, Ahmed talked about looking for and furnishing an apartment. He asked complainant's advice about apartment locations. He then asked complainant to come look at furniture with him, which complainant did in an effort to be helpful. Ahmed kept insisting on hearing about what complainant specifically liked, stating that he wanted complainant to be comfortable in his apartment. From the reference to her being comfortable in his apartment, complainant felt threatened, and she declined Ahmed's subsequent requests that she look at furniture with him.

b. Ahmed would come up behind complainant while she was working and begin to massage her shoulders. Ahmed would try to rub complainant's back, even though she got tense and did not want him to do this.

c. Ahmed would grab complainant's hands when she came in from the kennel and would rub them and blow on them to warm them up. This was done several times, even though complainant pulled her hands away and said "don't do that."

d. Ahmed said he loved complainant, but the same remarks were made to both male and female and were not intended to offend, but were friendly in nature.

e. Ahmed gave gifts to complainant and also to others as this was a common occurrence among employees and staff on certain occasions: birthdays, Christmas, etc.

f. On one occasion, when complainant had referred to Dr. Ahmed as Lofty in front of the staff, Ahmed pulled her into a room and stated, "Linda, honey, I love you. You can call me anything you want, but in front of the others we have to be professional." Complainant did hot like the implication of this remark. However, Dr. Ahmed was returning one remark of familiarity with another. In a private setting though out of earshot of the clients he was asking complainant to express the desired professionalism before clients.

11. Christine Marirea went to Scheidegg twice to apprise him of the situation even though complainant and others testified that they "couldn't say if it was sexual in nature" (Linda Spargo) and that Dr. Ahmed touched her hair a couple of times . . ." nothing that stood out."

12. Scheidegg said he did not like it and said it should stop.

13. After the second meeting testimony by complainant, respondent, and witnesses indicate that the offending behavior ceased. Then complainant, by her own admission in testimony, became "bitchy and had an attitude."

14. Ahmed also engaged in similar behaviors toward other female employees of State Line, although to a lesser extent. Christine Marirea's testimony corroborated that of complainant as to Ahmed's behavior. Marirea stated that the behavior was offensive, that she did not like to be touched, especially by a man she hardly knew. The behavior happened once and did not re-occur. Marirea testified that Ahmed gave complainant more gifts than he gave the other employees. An extra gift was given in appreciation of a particular job well done.

15. Marirea went to Scheidegg approximately a week and a half after her birthday, which was November 22.

16. Scheidegg told Marirea that he understood, but suggested that Ahmed was from a different culture. He also said however, that being from a different culture did not make the behavior all right. He said he would talk to Ahmed and tell him what he could and could not do.

17. Although Dr. Ahmed's behavior improved after the second meeting (one or two weeks into December) Marirea did not feel the behavior was sexual in nature.

18. The day after Marirea's second complaint, Ahmed came to Marirea and asked, "Chris, what's wrong." Marirea stated that he still did not understand, so she explained that what he was doing was making her boyfriend jealous, after which Ahmed's offending behavior toward her stopped.

19. Marirea's third meeting was prompted by the fighting between complainant and Ahmed.

20. Ahmed remarked to Huston and Scheidegg on occasion that he loved them and wanted what was best for the practice. Huston and Scheidegg were not offended by this behavior.

21. Once Ahmed stopped the behaviors which had offended complainant, relations between complainant and Ahmed became very strained.

22. Complainant says that Ahmed took every opportunity to belittle her in front of customers, making her look stupid by telling her how to do things she knew quite well how to do. She agreed that some of their disputes had been about Ahmed's instructions to her when he handed her a client file. Testimony from others revealed that this was standard operational procedure.

23. Huston stated that no one told him about Ahmed's behavior, that it came in in bits and pieces. He confirmed attending three meetings at which the issue was discussed but could not recall when those meetings had been.

24. Huston testified that he didn't care what the problem was, he was running a business and could not have those types of incidents: fighting and backtalk from a receptionist to another employee. Huston told Ahmed that if he did not change his behavior he would be fired.

25. Scheidegg kept no notes of any complaints that anyone made about Ahmed's behavior or of his actions in response to those complaints. Therefore, he was unable to testify with any certainty about the dates on which complaints had been made. He testified that after a first meeting he met with Ahmed and told him to stop telling him [Scheidegg] he loved him, that he was too friendly, and to stop invading other people's space. Ahmed did not understand this, according to Scheidegg, so he went into more detail, after which Ahmed apparently understood. Scheidegg testified that a meeting had taken place on January 16, 1995, after a second complaint from someone. The meeting was attended by complainant, Huston, Ahmed, and himself. Scheidegg states that at that meeting complainant "agreed that there was no sexual harassment." On cross-examination, Scheidegg agreed that after the second meeting he told Ahmed he would fire him if he did not alter his behavior.

26. Complainant agrees that at one meeting, after she had already complained three times, she informed Scheidegg and Huston that the offending behavior had stopped. She told them however, that Ahmed was now picking on her.

27. Resolving the conflicts among the recollections of complainant, Scheidegg, and Marirea as to the time frame of the offending behavior, the Commission found that State Line was first notified of Ahmed's behavior around the first of December. The Commission also found that the behavior had stopped as to complainant sometime between the end of December and the 16th of January.

28. Scheidegg looked at the problems of complainant and Ahmed as a problem to be solved, rather than as sexual harassment or retaliation. Huston made various suggestions to Ahmed to try to improve relations with complainant. If it were possible, Scheidegg and Huston wanted to salvage both employees.

29. Neither Scheidegg, Huston, or complainant notified Staffing Network of complainant's allegations.

30. Complainant and Ahmed continued to work together and continued to fight.

31. Scheidegg told complainant to come to him with any problems. Toward the end of her employment complainant was coming to Scheidegg nearly every day, as was Dr. Ahmed.

32. Scheidegg and Huston deny joking or making derogatory statements about females. Marirea confirmed, however, that derogatory jokes and remarks were made. For example, when a difficult woman customer left the hospital, Huston or Scheidegg might make a joke about PMS. Her testimony also indicated that she and others also made sexist jokes or remarks.

33. Huston testified that after the behavioral issue came to his and Scheidegg's attention, Ahmed often came to him about complainant. Ahmed would state that complainant was not following his instructions. Huston felt that complainant was retaliating against Ahmed.

34. Complainant quit her job with State Line on March 17, 1995, indicating to Huston that it was obvious Ahmed was not going to be fired. Huston's testimony indicated that regardless of the difficulties he did not want to fire either employee.

35. Scheidegg contacted complainant after she left and said she was a good employee.

36. Scheidegg asked complainant if she would come back and work for State Line at their monthly immunization clinics. Complainant agreed to help out, so long as Ahmed was not present. Complainant helped with the May clinic. Ahmed was present, but was not working with complainant.

37. Ahmed left the employ of State Line some time after complainant did. The reason he left was that he failed the N.H. licensing exam.

38. Complainant was out of work for approximately 2 weeks after leaving State Line. She then worked part time for several months at a number of jobs, becoming employed full time in August 1995. Complainant has been unable to find work in her chosen field, animal science.

Based upon the foregoing, the Commission concludes as follows:

A. N.H. 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:

(a) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

(b) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or

(c) 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.

B. N.H, RSA 354-A:2(XV) defines "discriminatory practice" to include, among other things, practices prohibited by the federal Civil Rights Act of 1964, as amended (PL 88-352). RSA 354-A:2(XV) (b) Therefore, in interpreting RSA 354-A we may look to federal law, regulations, and case law for guidance.

C. For sexual harassment to violate Title VII it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Henson v.city of Dundee, 682 F.2d 897 (11th Cir. 1982) In determining whether harassment is sufficiently severe or pervasive to create a hostile environment, we have looked at the conduct from the objective standpoint of a reasonable person in the position of the complainant. Zabkowicz v. West Bend Co., 589 F. Supp. 780 (E.D.Wis. 1984); Highlander v. K.F.C. National Management Co., 805 F.2d 644 (6th Cir. 1986).

D. The behavior of Ahmed toward complainant was not sexual harassment in violation of NH RSA 354-A:7(V) by complainant's, respondents', and witnesses' testimony. In making this determination, the Commission has considered the totality of Ahmed's interaction with all employees and staff at State Line Veterinary regardless of gender, and that the offending behavior ceased in a short period of time which was testified to by the complainant.

E. With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. 29 CFR Section 1604. II (d)

F. Whether steps taken by an employer to rectify acts of sexual harassment of its employee (s) are reasonable depends upon the gravity of the harassment. Baskerville v. Culligan International Company, 50 F.3d 428 (7th Cir. 1995).

G. Once notified, however, State Line Veterinary took reasonable steps to stop Ahmed's behavior. Therefore, State Line would not be liable, even if Ahmed's behavior had been sexual harassment.

H. There is insufficient evidence to conclude that complainant was retaliated against for alleging that she was sexually harassed.

I. Complainant was not constructively discharged.

J. Respondent Staffing Network had no knowledge of the offending behavior of Dr. Ahmed.

K. Respondent State Line's Motion for Fees and Costs is denied. The facts indicate that complainant's charge was reasonably filed, with a good faith belief in the merits of the complaint. Moreover, as State Line was not represented by counsel, it has no counsel fees.

ORDER

Complainant's charge as to both respondents is hereby dismissed.

All concurred

Loren Jean, Chair
6/17/97

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