Goulddra.txt
CIVIL RIGHTS COMMISSION
STATE OF HAWAII
LINDA C. TSEU, Executive ) Docket No. 95-012-E-SH
Director, on behalf of the )
complaint filed by ) HEARINGS EXAMINER'S FINDINGS
LINDA LOUISE GOULD, ) OF FACT, CONCLUSIONS OF
) LAW AND RECOMMENDED ORDER;
v. ) ATTACHMENT 1; APPENDIX A
)
DR. ROBERT SIMICH, formerly )
dba DR. ROBERT L. SIMICH )
AND ASSOCIATES, also )
formerly dba KAILUA FAMILY )
AND URGENT MEDICAL CARE; )
and DR. HAROLD STEINBERG; )
)
Respondents. )
______________________________)
HEARINGS EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER
I. INTRODUCTION
1. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.
2. Summary of the Parties' Contentions
The Executive Director asserts that Respondent Dr. Robert
Simich, formerly doing business as Dr. Robert L. Simich and
Associates and also formerly doing business as Kailua Family and
Urgent Medical Care[1] and Respondent Dr. Harold Steinberg violated
H.R.S. 378-2 and H.A.R. 12-46-109 by subjecting Complainant
Linda Louise Gould to unwelcome sexual conduct which created a
hostile work environment and by constructively discharging her.
Respondents deny that the alleged sexual harassment occurred.
Alternatively, Respondents assert that any conduct which occurred
was juvenile, not sexual in nature. Respondents also contend that
Complainant voluntarily quit her employment because she found a
higher paying job.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, the Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.
II. FINDINGS OF FACT[2]
1. Respondent Dr. Robert Simich is a physician. Some time
around 1984 Simich started his practice known as Dr. Robert L.
Simich and Associates, which was also doing business as Kailua
Family and Urgent Medical Care (hereinafter referred to as the
"clinic"). Simich was the medical director in charge of the
clinic's operations. The clinic specialized in walk-in urgent care.
It was open seven days a week, from 8:00 a.m. to 8:00 p.m. At times
there were many patients in the clinic and the work load was very
busy. At other times, there were no patients and the work load was
very slow. (Tr. 15-16, 19; Ex. 8 p. 34; Ex. 9 p. 11-12, 15)
2. Simich hired doctors, medical assistants and receptionists
to staff the clinic. Doctors and medical assistants generally
worked 2 to 3 twelve-hour shifts per week. The clinic usually had
one doctor on duty per shift. The doctor on duty was in charge of
the clinic during his or her shift, and supervised the medical
assistants and receptionists in treating patients and running
medical tests. The medical assistants and receptionists were also
supervised by Pearl Popiak, the chief medical assistant. Popiak
scheduled employees, conducted work performance evaluations, handled
employee complaints and oversaw the cleaning and stocking of
supplies and equipment. (Tr. 16-19, 22-23, 119-120; Ex. 8 p. 8-9,
34-35; Ex. 9 p. 15-17; Ex. 10 p. 11-12)
3. On June 27, 1990 Simich hired Dr. Harold Steinberg as a
physician and surgeon for the clinic. On June 1, 1991 Simich hired
Dr. Debra Moorehead-Dunn as a physician for the clinic. (Exs. 14,
15)
4. Some time around September 1991 Complainant Linda Louise
Gould moved to Honolulu, Hawaii from Massachusetts. Complainant
received an emergency medical technician certificate from Center
City Community College in Pennsylvania and a bachelors degree in
politics from Mount Holyoke College. Prior to moving to Hawaii,
Complainant had been employed as a lifeguard, student athletic
trainer, fire fighter and emergency medical technician. (Tr. 7-8;
Ex. S-4)
5. After arriving in Hawaii, Complainant sought employment
as a medical assistant. On September 26, 1991 Simich hired
Complainant as a medical assistant. (Tr. 10-14; Ex. 13)
6. On her first day of work, Complainant was given a copy of
the clinic's Policy Information and Procedure Manual. Under the
subject "Discharge - Staff and Physicians" the manual states in
relevant part:
A. The following are grounds for discharge from
employment; this is not intended to be an all
inclusive list; management reserves the right
to add to this list without prior notice.
. . .
14. Subjecting fellow employees to
physical or verbal abuse.
. . .
25. Sexual harassment of another
employee or patient.
The manual also contained a section titled, "Corrective Action
Procedure" which outlined disciplinary procedures. Complainant read
these sections of the manual and signed a statement to this effect.
(Tr. 132-135; Ex. S-5)
7. Complainant worked 3 twelve-hour shifts per week at the
clinic. During most of her employment, Complainant worked two
shifts per week with Steinberg and one shift per week with
Moorehead-Dunn. Simich stopped by the clinic a few hours each week
to do paper work. Simich occasionally worked a full twelve hour
shift to cover for an absent doctor. Complainant worked only five
shifts with Simich. (Tr. 21-22, 62, 83-84; Ex. 9 p. 14, 16-17,
20; Ex. 10 p. 18-19)
8. When there were no patients at the clinic, the work
atmosphere was informal and at times unprofessional and juvenile.
During these slow periods, the doctor and medical assistants would
congregate in the laboratory equipment room[3] and "talk story",
eat, do crossword puzzles or play cards together. On two occasions
rubber band fights broke out among the staff. (Tr. 17, 36-37; Ex.
8 p. 10, 19, 27)
9. During Complainant's employment at the clinic, Steinberg
subjected Complainant and the female employees to the following
offensive and unwanted sexual conduct:
a) Steinberg often listened to the Rush Limbaugh radio show
during which sexist or derogatory statements were sometimes made
about women. Steinberg would often turn the radio up louder or
state his agreement with such comments. (Tr. 186, 258-260)
b) When female staff went to use the rest room, Steinberg,
on at least two occasions remarked, "Why women don't pee in the
shower like men?" Once when a woman employee took her purse to the
rest room, Steinberg snickered and remarked, "There's only one
reason why a woman would take her purse into the rest room". (Tr.
35-36, 104-105, 178-179)
c) Steinberg regularly commented about the breast sizes of
employees, patients and celebrities mentioned on radio talk shows,
saying things like, "She's really stacked", "I don't know why
everybody thinks she's so great - she's got nothing up here", "Did
you see the knockers on her?" He also regularly discussed the large
breasts of a medical school acquaintance and how they "got in the
way". (Tr. 26-31, 49, 100-102)
d) On a weekly basis, Steinberg made remarks about female
employees' nipples saying something like, "Is it cold in here, or
are you excited to see me?" (Tr. 28, 100)
e) Steinberg snapped Complainant's bra strap at least ten
times as he walked passed her. He also once snapped the bra strap
of Debbie Choike, a receptionist. (Tr. 38-39, 106, 177-178)
f) After snapping Choike's bra strap, Steinberg asked Choike
what was the way to "get a proper fit in a bra". He also once
commented to Complainant on the type of bras he thought female
employees should wear because of their breast sizes. (Tr. 35, 178)
g) Steinberg also made comments about patients' other
intimate body parts. Once he commented that a former patient was
attractive, but would be better looking if she "took quite a bit off
that ass of hers". Once he stated that a patient had "huge fucking
thighs" and remarked, "How's the guy supposed to get it in there
with thighs like that?" (Tr. 32-34, 103-104)
h) On at least two occasions Steinberg suggested that the
medical assistants and receptionists wear sexier clothing, such as
short skirts and tighter blouses. (Tr. 34-35, 104, 244)
i) A few times Steinberg threw paper clips, pins, pens and
shot small rubber bands at Complainant; when those objects hit her
breast or crotch areas Steinberg would say, "Oh, got it on target
there!" (Tr. 36, 105-106, 184)
j) Once Steinberg dropped something down the front of
Complainant's shirt and laughed. (Tr. 39-40)
k) Steinberg also rubbed up against Complainant when he
passed her in the lab area. Complainant would turn around and put
her arms in front of her to create a buffer between herself and
Steinberg. (Tr. 40-41)
10. Steinberg did not similarly subject male employees to such
sexual conduct.
11. Complainant was shocked by Steinberg's conduct. She had
never heard anyone speak that way about women or treat women in that
manner. (Tr. 31-32; 34)
12. Complainant first ignored Steinberg's conduct, hoping that
he would stop. Later, Complainant responded to some of the
incidents saying, "Doctor, that's offensive". Steinberg would laugh
and not take her objections seriously. Once Complainant told
Steinberg, "This would really be considered sexual harassment".
Steinberg laughed and responded, "It can't be sexual harassment -
you're a dyke,[4] how could I sexually harass you? That can't
happen." (Tr. 31-32, 50-51)
13. During Complainant's employment at the clinic, Dr.
Moorehead-Dunn subjected both female and male employees to the
following offensive and unwanted sexual conduct:
a) On at least three occasions, Moorehead-Dunn boasted to the
staff that she had "screwed her way through medical school" and that
she could "give a really good blow job". (Tr. 64-65, 94-95, 218-
219)
b) On about two occasions, Moorehead-Dunn discussed her
sexual experiences with someone on the telephone. Complainant and
other staff overheard these conversations. (Tr. 63-64, 92-94)
c) On several occasions, Moorehead-Dunn asked a male medical
assistant, Phillip Gaines, about his sex life and desires. Gaines,
who was having sexual identity problems, got upset, refused to
answer and tried to ignore Moorehead-Dunn. Moorehead-Dunn
persisted, asking Gaines, "What excites you?" "What gets you off?"
"Would you like to do it with [Complainant]?" "Would you like to do
it with two other women?" "Do you like little boys?" (Tr. 66-67,
182-183)
d) On two occasions, Moorehead-Dunn announced to the staff
that she wanted to "get laid" and the type of sexual experiences she
was hoping to have on upcoming dates. (Tr. 62-63)
e) On about five occasions Moorehead-Dunn made comments about
men in the waiting room. She once said to Complainant, "He's a nice
looking one. . . I bet he's well hung. . . what do you think?" (Tr.
63, 91-92)
f) Once Moorehead-Dunn commented about Complainant and her
life partner's sex life, by remarking to Patricia Kilmer, another
receptionist, "I wonder which of them is dominant?" (Tr. 218-219)
14. Some time prior to December 26, 1991 Complainant told
Popiak that some of the doctors' comments and actions were offensive
and made her feel uncomfortable. Complainant did not give any
specific examples. Popiak did not understand what Complainant was
talking about and said something to the effect that, "it's just
their way to tell you what to do". (Tr. 52-55; Ex. S-2)
15. On December 26, 1991 Steinberg and Popiak conducted a job
performance evaluation of Complainant. As part of the evaluation,
Complainant filled out a appraisal sheet. In partial response to
question #2 which asks, "What do you like the least about your job?"
Complainant wrote, "The radio played in the back office".
Complainant did not answer question #5, which asks, "Do you feel you
have opportunities to express your ideas about our policies and
procedures?" In response to question #6, which asks "What
suggestions do you have to improve our clinic?" and question #7
which asks, "Is there anything specific you would like to discuss
about your job?" Complainant did not state any complaints regarding
Steinberg's or Moorehead-Dunn's sexual conduct. This was because
Complainant was afraid that she might be fired if she complained,
and wasn't sure if Steinberg or Moorehead-Dunn's conduct constituted
sexual harassment. (Tr. 54-58, 137-139; Ex. 13)
16. On a few occasions Gaines made remarks to Complainant
about having sex with her and her life partner. Complainant became
upset about these comments, but didn't want to report the comments
to Popiak or Simich because she hoped the situation could be
resolved without formal disciplinary action. Complainant asked
Steinberg to speak to Gaines and tell him to stop. Steinberg
informed Gaines that his comments were annoying Complainant and that
if he didn't stop, Steinberg would report him to Simich.
Thereafter, Gaines stopped making such comments to Complainant.
(Tr. 67-69; Ex. 8 p. 15-19, 42-43)
17. Steinberg's conduct made Complainant tense, anxious and
have headaches when she was at work. She felt embarrassed and
humiliated whenever Steinberg snapped her bra strap. After work,
Complainant was angry, tense, irritable, tired and would get knots
in her stomach, constipation or diarrhea when she was at home. She
began to snap at Maggie Tanis, her life partner, and they started to
fight over household matters and whether Complainant should continue
to work at the clinic.[5] Complainant began to feel powerless and
started to lose her self confidence because her objections to
Steinberg and complaint to Popiak didn't change things. She lost
interest in socializing with friends. She often cried before going
to work because she didn't want to work with Steinberg and
Moorehead-Dunn. (Tr. 39, 72-80, 246-250)
18. When Simich was at the clinic, he usually acted gruff,
crabby and unapproachable towards the staff. Complainant felt he
gave orders to employees "the way he would give orders to . . . a
dog". Complainant did not report Steinberg's sexual conduct to
Simich because she didn't think Simich would be receptive to her
complaints. Simich did not observe or know of Steinberg and
Moorehead-Dunn's offensive conduct because he didn't work with them
and was seldom at the clinic. (Tr. 59, 61-62; Ex. 8 p. 25)
19. In late February or early March, 1992 Complainant felt she
could no longer take Steinberg, Simich and Moorehead-Dunn's conduct
and decided to find another job. (Tr. 70-71)
20. On April 4, 1992 Steinberg left the clinic to start his
own practice. Prior to this date, Complainant knew that Steinberg
was leaving the clinic. After April 4, 1992 Steinberg visited the
clinic and socialized with the employees in the receptionist and
laboratory equipment areas. (Tr. 289-290, 300; Ex. 8 p. 9; Exs. S-
2, S-8, S-9)
21. After Steinberg left the clinic, Complainant continued to
seek other employment because she still felt that Simich and
Moorehead-Dunn's behavior was intolerable, and because Steinberg
sometimes visited the clinic. (Tr. 289-290, 303-304)
22. On April 9, 1996 Complainant applied for a medical
assistant position with Dr. James Miller. On or about April 10,
1996 Dr. Miller offered Complainant the medical assistant position.
On or about April 11, 1996 Complainant accepted this job offer and
informed the clinic she would quit in two weeks. Complainant told
the clinic staff she was leaving because she wanted to work closer
to home and didn't want to work with sick people. Complainant
didn't disclose the real reason she was leaving because she just
wanted to leave. (Tr. 71-72, 293-294 Ex. 18, S-2)
23. On April 25, 1992 Complainant quit her job at the clinic.
On April 27, 1992 Complainant began working for Dr. Miller at a
higher salary. (Tr. 8-9, 71, 143; Exs. 18, S-9)
24. On October 1, 1995 Simich sold the clinic to settle tax
debts. He is now retired. (Ex. 9 p. 15)
III. CONCLUSIONS OF LAW[6]
A. Jurisdiction
H.R.S. 378-1 defines "employer" to mean
. . . any person, including the State or any of its
political subdivisions and any agent of such person,
having one or more employees, but shall not include the
United States.[7]
The statute in turn defines "person" to mean one or more individuals
and includes, but is not limited to, partnerships, associations,
corporations, legal representatives, trustees, trustees in
bankruptcy, receivers, or the State or any of its political
subdivisions.
1. Respondent Simich
During Complainant's employment at the clinic, Respondent
Simich employed more than one employee. I therefore conclude that
he is an employer under H.R.S. 378-l and is subject to the
provisions of H.R.S. Chapter 378.
2. Respondent Steinberg
Respondent Steinberg, who was employed as a physician and
surgeon by Simich, served in a supervisory position over
Complainant. He evaluated her work performance and exercised
significant control over her work conditions when they were on duty
together. He is therefore an agent of Respondent Simich and an
employer under H.R.S. 378-1. In Re Shaw / Sam Teague Ltd., Docket
No. 94-001-E-P (March 3, 1995) (hereafter referred to as Shaw); In
Re Santos / Hawaiian Flowers Exports, Inc., Docket No. 92-001-E-SH
(January 25, 1993) (hereinafter referred to as Santos); Kauffman v.
Allied Signal, Inc., 970 F.2d 178, 59 EPD 41,642 at 71,691 (6th
Cir. 1992).
3. Latches
Respondents argue that this complaint should be dismissed
because the Executive Director failed to issue a determination of
reasonable cause within 180 days from the date the complaint was
filed.
H.R.S. 368-13 requires the Executive Director to issue a
determination of whether or not there is reasonable cause to believe
that an unlawful discriminatory practice occurred within 180 days of
the filing of a complaint unless the commission grants an extension
of time to issue such determination.
H.A.R. 12-46-12(f) likewise requires the Executive Director to
conclude an investigation within 180 days of the filing of a Chapter
378 complaint, but provides that the Commission may grant an
extension. Neither the statute nor the rule limits the number of
extensions or the length of extensions which may be granted.
In the present case, the record shows that the Commission
granted three extensions through the time the determination of
reasonable cause was made. Therefore, the determination of
reasonable cause was made in accordance with H.R.S. 378-13 and
H.A.R. 12-46-12(f).
B. Due Process
Respondents argue that they were not afforded due process in
preparing for the hearing when: a) this Hearings Examiner allowed
Complainant to be deposed by telephone conference instead of
requiring her to appear in Hawaii; and b) the Executive Director
disclosed 12 documents at the eve of the contested case hearing.
1. Complainant's deposition
Generally, under Rule 30, HRCP, a plaintiff is required to make
himself or herself available for deposition in the county in which
the action is brought. See, Wright, Miller & Marcus, Federal
Practice and Procedure Civil 2d 2112 (1994). However, this is a
general rule and is not adhered to if a plaintiff can show good
cause for not being required to come to the county where the action
is pending. Id. In addition, under H.A.R. 12-46-32, a hearings
examiner has the power to allow and supervise discovery as deemed
reasonable and necessary. On a motion to change the place of
examination or motion to take deposition by telephone conference, a
hearings examiner has wide discretion in selecting the place of
examination and in attaching conditions concerning the payment of
expenses. Wright, Miller & Marcus, supra.
In the present case, the Complainant is not a party to this
action, she is a witness. The party bringing this action is the
Executive Director, on behalf of the complaint. See, Tseu, on
behalf of the complaint filed by Mary Anne Cole v. Treehouse
Restaurant, Inc., Docket No. 96-002-E-A-D-RET (May 2, 1996)
(footnote 1). Complainant is therefore not required to be available
on Oahu for her deposition. In addition, Complainant showed good
cause for not being required to attend a deposition in Hawaii. She
resides in San Francisco, California and could not take leave from
work to attend a deposition in Hawaii. In addition, neither she nor
the Executive Director had funds for her travel to Hawaii. However,
she was available for deposition by telephone conference.
Furthermore, Complainant was ordered to utilize a speaker phone and
to videotape herself listening to and answering the questions
propounded to her during the deposition. She was also ordered to
send copies of the deposition videotapes by express mail to
Respondents' counsel. All expenses for the telephone conference,
videotaping and express mailing were to be borne by the Executive
Director and/or Complainant. Under these circumstances, I conclude
that Respondents were afforded due process in their deposition of
Complainant.
2. Late disclosure of documents
While Respondents object to the Executive Director's late
disclosure of 12 documents (which were not introduced into evidence
at the contested case hearing), they have not shown any harm. In
addition, Respondents could have moved to continue the contested
hearing to obtain more time to review such documents, or could have
moved to re-open the hearing for the taking of further evidence.
They did neither. For these reasons, I conclude that the late
disclosure did not affect Respondents' due process rights.
C. Hostile Work Environment Sexual Harassment
H.R.S. 378-2(1)(A) makes it an unlawful discriminatory
practice for any employer to discriminate against an individual in
the terms, conditions or privileges of employment because of sex.
Hostile work environment sexual harassment is a violation of the
above statute. H.A.R. 12-46-109(a); Santos, supra.
To establish a claim of hostile work environment sexual
harassment, the Executive Director must prove by the preponderance
of the evidence that:
(1) The complainant was subjected to sexual advances, requests for
sexual favors or other visual, verbal or physical conduct of a
sexual nature. Santos, supra; Ellison v. Brady, 924 F.2d 872,
55 EPD 40,520 at 65,624 (9th Cir. 1991).
(2) The conduct was unwelcome in the sense that the complainant did
not solicit or incite it, and in the sense that the complainant
regarded the conduct as intimidating, hostile or offensive.
Santos, supra; Ellison, supra; Harris v. Forklift Systems Inc.,
510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d. 295, 62 EPD 42,623 at
77, 397 (1993).
(3) The conduct was sufficiently severe or pervasive to alter the
conditions of employment, such as having the purpose or effect
of unreasonably interfering with an individual's work
performance or by creating an intimidating, hostile or
offensive working environment. H.A.R. 12-46-109(a)(3);
Santos; supra; Ellison, supra. The perspective to be used in
evaluating the severity or pervasiveness of the harassment is
that of the victim. Santos, supra; Ellison, supra, at 878-879.
Because the Complainant in the present case is a woman, this
objective standard is met if a reasonable woman would consider
such conduct sufficiently severe or pervasive to unreasonably
interfere with work performance or create an intimidating,
hostile or offensive environment.
In same gender hostile work environment sexual harassment
cases, the Executive Director must additionally show that the
complainant was subjected to sexual conduct (element #1 above)
because of his or her sex. Hopkins v. Baltimore Gas and Electric
Company, 77 F.3d 745, 752, 67 EPD 43,923 (4th Cir., 1996) (sexual
harassment of male employee by male co-worker actionable under Title
VII if basis for harassment is because employee is a man); Easton v.
Crossland Mortg. Corp., 905 F.Supp. 1368, 1378-1383, 67 EPD 43,926
(C.D. Cal. 1995) (female on female hostile work environment sexual
harassment actionable under Title VII and California Fair Employment
and Housing Act); Fox v. Sierra Development Co., 876 F.Supp. 1169,
1172, 1175-1176, 66 EPD 43,475 (D. Nev. 1995) (male supervisors and
co-workers' sexual conduct could be actionable as male on male
hostile work environment sexual harassment); Sardinia v. Dellwood
Foods, Inc., 67 EPD 43,784 at 83,901-83,904 (S.D.N.Y. 1995) (male
on male hostile work environment sexual harassment actionable under
Title VII and New York Human Rights Law); Blozis v. Mike Raisor
Ford, Inc., 896 F.Supp. 805, 67 EPD 43,787 at 83,916-83,917 (N.D.
Ind. 1995) (male on male sexual harassment actionable under Title
VII).[8]
Sexual harassment is a form of sex discrimination. Like Title
VII, H.R.S. Chapter 378 affords employees the "right to work in an
atmosphere free from discriminatory intimidation, ridicule and
insult". Meritor Savings Bank, FSB v. Vinson, 40 EPD 36,159 at
42,578 (Emphasis added). The statute does not prohibit sexually
crude or offensive conduct that is not discriminatory. See,
Blozis, 67 EPD 43,787 at 83,917 ("[i]t is being the victim of anti-
male or anti-female bias that forms the basis of a Title VII sexual
harassment claim, not simply being exposed to 'sexual'-type comments
or behavior"); Fox, 876 F.Supp. 1169, 1173, 1175 (male supervisors
and co-workers' conduct in writing, drawing and discussing
excrement, urine and male homosexuality to the general employee
population did not constitute gender oriented harassment).
In opposite gender hostile work environment sexual harassment
cases, sex-based treatment is presumed. For instance, when a man
touches a woman in a sexual manner or makes sexually suggestive
remarks to a woman, it can be assumed that he is doing so because
she is a woman. However, no such presumption arises in same gender
sexual harassment cases because sexually suggestive words and acts
among men (or among women) can take on a whole other meaning.[9]
Hopkins, supra, at 752; Easton, supra, at 1383; Blozis, supra, at
83,916.
Thus, under H.R.S. Chapter 378 a man can state a claim against
another man for hostile work environment sexual harassment if he is
subject to sexual conduct because he is a man. Similarly, a woman
can state a claim for sexual harassment by another woman if she is
subject to sexual conduct because she is a woman. The Executive
Director may prove such sex-based treatment by showing any of the
following: a) that the sexual conduct was directed only at members
of complainant's sex; Fox, supra. at 1173; Easton, supra, at 1383;
b) that the sexual conduct was specifically related to complainant's
sex or to members of complainant's sex; Fox, supra; Sardinia, supra;
see also, Steiner v. Showboat Operating Co., 64 EPD 43,114 at
80,220-80,221 (although supervisor verbally abused both men and
women subordinates, abuse of women related to their gender, [i.e.,
calling them "dumb fucking broads" or "fucking cunts"] while abuse
of men did not)[10]; c) that the sexual conduct was
disproportionately more offensive or demeaning to members of
complainant's sex; Robinson v. Jacksonville Shipyards, 760 F.Supp.
1486, 1522, 55 EPD 40,535 at 65,759 (M.D. Fla. 1991) (pictures of
nude and partially nude women throughout work site created offensive
and hostile work environment for female employees); or d) that the
harasser acted out of sexual attraction to the complainant.
Hopkins, supra, at 752; Ecklund, supra at 84,312-84,313, (female
employee's allegations that female co-worker stroked her hair and
body, hugged and forcibly kissed her, partially undressed in front
of her and made explicit comments about sexual acts could be
evidence of female on female sexual harassment).
The establishment of the above prima facie case of hostile work
environment sexual harassment constitutes direct evidence of intent
to discriminate. Santos, supra; Katz v. Dole, 709 F.2d 251, 255,
32 EPD 33,639 at 30,002 (4th Cir. 1983). Thus, once a complainant
makes out the above prima facie case of hostile environment sexual
harassment, the burden of proof shifts to the employer to rebut such
showing by: 1) proving that such conduct did not take place; 2)
showing that the conduct was not unwelcome; 3) showing that such
conduct was trivial or isolated. Santos, supra; Katz, supra.
1. Whether the Sexual Conduct Occurred
The Executive Director alleges that Steinberg and Simich
subjected Complainant to sexual conduct.
Respondent Steinberg
The Executive Director has shown by a preponderance of the
evidence that Steinberg subjected Complainant to verbal and physical
sexual conduct. Respondents deny that Steinberg engaged in such
conduct and argue that Complainant's testimony is not credible
because: a) she could not recall any dates on which the incidents
occurred; b) she did not complain about any sexual conduct during
her 3 month evaluation; c) she exaggerated the number of times she
cried; and d) she did not mention sexual conduct as a reason for
quitting. Alternatively, Respondents argue that while some of
Steinberg's alleged conduct may have occurred, it was juvenile, not
sexual in nature.
I find Complainant's testimony regarding Steinberg's conduct
credible because her statements about the incidents were generally
consistent, portions were corroborated by other witnesses and she
complained about some of the conduct to others. In her work
performance evaluation, which was conducted on December 26, 1991,
Complainant did complain about the radio being played in the
laboratory equipment room. (Ex. 13) In her pre-complaint
questionnaire dated September 2, 1992, Complainant states that she
was ". . . repeatedly sexually harassed at work. Dr. Steinberg said
that he could get away with it because of my sexual orientation"
(Ex. S-6). In her answers to interrogatories dated February 5, 1996
Complainant states, "Dr. Steinberg made frequent, almost daily,
comments of a sexual nature about the bodies of women working at the
Clinic, including myself, and also about female patients." She also
states that Steinberg snapped her bra strap and shot rubber bands
and tossed other small objects at her breast and genital areas. (Ex.
S-3) At the hearing, Complainant testified in detail about this
conduct and other conduct which occurred. (Tr. at 26-41)
Choike confirmed that Steinberg listened to the Rush Limbaugh
radio show and would go "on rampages". (Tr. 186) Choike also heard
Steinberg make "dirty jokes" and comments about "big breasted women"
and saw Steinberg throw paper clips, pens, pins and shoot things
from syringes at Complainant. (Tr. 179, 184) Kilmer heard
Complainant state, "That's not appropriate" a few times after
Steinberg made comments. (Tr. 222, 231)
Kilmer also testified that Complainant complained about some of
Steinberg's sexual comments and about Steinberg snapping her bra
strap. (Tr. 217-218) Brian Baker, Complainant's friend and an
Episcopal priest, testified that in late 1991 and early 1992
Complainant complained about a male doctor at work making offensive
and lewd statements. (Tr. 198-199) Tanis, Complainant's life
partner and a Metropolitan Community Church pastor, testified that
Complainant complained about Steinberg snapping her bra strap,
listening to Rush Limbaugh, telling "dirty jokes", and making sexual
comments.[11] (Tr. 242-243, 251-252, 258-260)
Steinberg's conduct was not merely juvenile or crude in nature.
His conduct towards Complainant and the female employees was clearly
sexual and centered on the fact that they were women. See, Steiner,
supra. Steinberg made remarks to female employees about their
intimate body parts i.e., why they didn't "pee in the shower like
men", and insinuated that a woman employee was having her menstrual
period. Steinberg stated that the women employees should wear
sexier clothing. He made explicit comments about women's bodies -
discussing the size of women's breasts, the female employees' erect
nipples and what types of bras they wore. He also touched the
female employee's intimate clothing when he snapped the their bra
straps.
Respondent Simich
The Executive Director alleges that Simich subjected
Complainant to verbal sexual conduct when he once stated he had
"nothing to do but stand around and play pocket pool". The weight
of the evidence, however, does not show what Simich actually said or
meant by such statement. Complainant testified that Simich made the
above statement one afternoon when there were no patients in the
clinic and he was bemoaning the lack of business. Complainant
testified that Simich made the comment to no one in particular, that
it was not part of a conversation and that Simich just spoke "out
loud to the room in general, whomever was present". (Tr. 59-60, 83-
88) Complainant had never heard the expression "pocket pool" and
assumed that Simich was referring to masturbation. (Tr. 86-88)
Kilmer's testimony regarding this incident was very different. She
stated that Simich approached her and Complainant as they were
standing in the laboratory equipment room and asked for a needle and
thread. He pulled his pocket out from his pants, showed them a hole
and said to them, "I need to sew it up, because I'm sick of playing
pocket pool with myself". Kilmer testified that Complainant
immediately told Simich that his comment was "not appropriate".
(Tr. 221, 231) Simich denied ever making the statement. (Ex. 9
p. 23) For these reasons, weight of the evidence does not show what
Simich said or meant and I conclude that he did not subject
Complainant to any sexual conduct.
2. Whether Moorehead-Dunn subjected Complainant
to sexual conduct because of Complainant's sex
The Executive Director asserts that Moorehead-Dunn also
subjected Complainant to verbal sexual conduct. The evidence shows
that Moorehead-Dunn did make comments about her past sexual
experiences, her sex life and other employees' sexual practices.
Choike heard Moorehead-Dunn discuss her past sexual experiences and
ask Gaines about his sexual proclivities. (Tr. 181-183) Kilmer
heard Moorehead-Dunn's comment about "sleeping her way through
medical school". (Tr. 219)
The evidence, however, does not show that Moorehead-Dunn
subjected Complainant to sexual conduct because of her sex.
Moorehead-Dunn's boasting about her sexual experiences and sex life
was directed at the entire staff, not just the female employees.
She speculated about Complainant's sex life and more thoroughly
"needled" Gaines, a male, about his sexual desires and practices,
and often upset him. (Tr. 182-183) Her comments were not gender
specific or disproportionately more offensive to women. Therefore,
while Moorehead-Dunn's sexual conduct was unprofessional, crude and
offensive to both men and women employees, it was not
discriminatory. See, Fox, supra, at 1173, 1175 (male supervisors
and co-workers' sexual conduct directed at the general employee
population did not constitute gender oriented harassment).
3. Whether The Sexual Conduct Was Unwelcome
The Executive Director has shown by a preponderance of the
evidence that Steinberg's sexual conduct was unwelcome. Complainant
testified that after some of Steinberg's remarks, she stated,
"Doctor, that's offensive". She once told Steinberg that his
behavior could be considered sexual harassment. Choike observed
Complainant being tense, red-in-the-face, upset and fed up after
some of the incidents. (Tr. 185) Kilmer heard Complainant tell
Steinberg that his comments were "not appropriate" and saw
Complainant get upset after some of the incidents. (Tr. 222, 231)
Baker and Tanis testified that Complainant was upset and angry when
she complained about Steinberg's behavior. (Tr. 199, 243)
Complainant was clearly offended by the conduct and no evidence was
presented to show that she solicited, incited or welcomed such
conduct.
4. Whether The Conduct Created An Intimidating, Hostile Or
Offensive Work Environment
The record shows that Steinberg constantly made remarks about
women's intimate body parts, which Complainant heard. It also shows
that Steinberg snapped Complainant's bra strap, threw small objects
at her breast and crotch areas and rubbed up against her.
The evidence also shows that Steinberg's sexual conduct was
pervasive. Choike testified that Steinberg snapped her bra strap
and asked her how women got a bra to fit properly. (Tr. 177-178)
Kilmer testified that she heard Steinberg recite perverted versions
of nursery rhymes and once stated he had to stop himself from "wolf
whistling" at her [Kilmer] when she was in the parking lot.
(Tr. 215-216) Tanis heard Steinberg make comments about Kilmer's
breasts and state that Kilmer should wear tighter blouses and
shorter skirts. (Tr. 244-245) Tanis also testified that Steinberg
once graphically described surgery he had performed on a man's penis
even though she had asked him to stop. (Tr. 245)
Kilmer and Choike testified that they were also offended by
Steinberg's conduct. (Tr. 185-186, 216, 223-224) After Steinberg
snapped her bra strap, Choike told him that she didn't appreciate
what he had done and not to do it again. (Tr. 178) I therefore
conclude that a reasonable woman would consider Steinberg's conduct
sufficiently severe and pervasive to create a hostile and offensive
work environment.
D. Constructive Discharge
Constructive discharge occurs when a reasonable person in the
employee's position would have felt that she was forced to quit
because of intolerable and discriminatory working conditions. Tseu,
on behalf of the complaint filed by Davis v. Volcano Island Farms,
Inc. Docket No. 94-003-E-R (February 8, 1995) (hereinafter Davis);
Santos, supra; Watson v. Nationwide Ins. Co., 823 F.2d 360, 361, 43
EPD 37,298 (9th Cir. 1987). This test is an objective one and does
not involve showing employer intent to force the complainant to
resign. Davis; supra; Santos; supra; Watson, supra. In general, a
single isolated instance of employment discrimination is not
sufficient to support a finding of constructive discharge. Id. A
complainant must instead show some aggravating factors, such as a
continuous pattern of discriminatory treatment. Id. In addition,
the discriminatory treatment must be intolerable at the time of the
employee's resignation. Davis; supra (no constructive discharge
when last incident of racial harassment occurred one month prior to
complainant's resignation); Steiner, supra, at 80,222 (no
constructive discharge when harassing supervisor fired 2-1/2 months
prior to plaintiff's resignation).
In the present case the Executive Director has not shown by a
preponderance of the evidence that Complainant was forced to quit
because of Steinberg's discriminatory sexual conduct. The record
shows that Steinberg left the clinic on April 4, 1992. Complainant
subsequently applied for her job with Dr. Miller on April 9, 1992
and her last day at the clinic was April 25, 1992. Although
Complainant testified that Steinberg visited the clinic after April
4, 1992, she could not recall how often he visited, how long his
visits were, or if he engaged in any sexual conduct during these
visits. (Tr. 298-299) Thus, the weight of the evidence does not
show that Steinberg's presence and conduct after April 4, 1992 was
so intolerable that Complainant was forced to quit.
In addition, Complainant testified that even if Steinberg
hadn't visited the clinic, she would have quit anyways because she
felt that Simich and Moorehead-Dunn's behavior was also intolerable.
(Tr. 303-304) However, while Simich and Moorehead-Dunn's conduct
may have been unpleasant, it was not discriminatory. (See
discussion in Sections C.1. and C.2. above.) For these reasons, I
conclude that Complainant was not constructively discharged.
E. LIABILITY
1. Respondent Simich
An employer is responsible for its acts of sexual harassment
and those of its agents and supervisory employees regardless of
whether the acts were authorized or even forbidden, and regardless
of whether the employer knew or should have known of their
occurrence. H.A.R. 12-46-109(c). Because Steinberg was a
supervisory employee and agent of Respondent Simich during
Complainant's employment, Simich is liable for Steinberg's conduct
towards Complainant.
2. Respondent Steinberg
Respondent Steinberg, as an agent of Simich, is an employer
under H.R.S. 378-1. Therefore, pursuant to H.A.R. 12-46-109(c),
he is personally liable for sexually harassing Complainant.
F. REMEDIES
The Executive Director requests that Respondents be ordered to
pay Complainant compensatory damages and that Respondent Steinberg
be ordered to pay Complainant punitive damages. The Executive
Director also seeks to have the Commission: a) award lost benefits;
b) issue a cease and desist order; c) require Respondents to
implement and adopt policies and procedures against employment
discrimination based on sex, harassment and retaliation; and d)
require Respondents to publish a summary of the Commission's final
decision in a press statement provided by the Commission in the
Sunday edition of the Honolulu Advertiser or in a newspaper having
a general circulation in the City and County of Honolulu.
1. Lost benefits
Because I conclude that Respondents did not constructively
discharge Complainant, she is not entitled to lost benefits.
Alternatively, should the Commission find that Complainant was
constructively discharged, the Executive Director did not present
any evidence to show that Complainant lost any benefits. For this
reason, I also decline to award compensation for lost benefits.
2. Compensatory Damages
Pursuant to H.R.S. 368-17, the Commission has the authority to
award compensatory damages for any pain, suffering, embarrassment,
humiliation, emotional distress, loss of enjoyment of life or other
injury Complainant suffered as a result of the sexual harassment.
The amount awarded as compensatory damages is generally based on a
consideration of both the severity and duration of the harm.
Restatement of Torts 2d 905 (1979).
The evidence shows that Complainant was significantly
embarrassed, humiliated, angry and upset by Steinberg's harassment.
Prior to working at the clinic, Complainant was a confident and
sociable person. She had just graduated from a prestigious women's
college and was eager to move to Hawaii and obtain full time
employment in the "real world". (Tr. 130, 246) She prided herself
in having leadership, organization, communication and crisis
management skills. (Tr. 129-130) Steinberg's conduct shocked and
insulted her. She began to feel powerless and lost her self
confidence when her actions didn't change things. She often cried
before going to work when she had never cried about any job before.
(Tr. 114-116) For nearly six months she was tense, anxious and had
headaches when she was at work, and was angry, tense, irritable,
exhausted and had stomach problems when she was at home. (Tr. 72-
80) She became withdrawn and lost interest in socializing with
friends. (Tr. 246-247)
Complainant's emotional injuries were observed in part by other
witnesses. Choike saw Complainant get red in the face, tense and
fed up after some incidents. (Tr. 185) Choike also testified that
Complainant got upset and felt that she was getting "picked on" by
Steinberg. (Tr. 183-184) Kilmer also observed Complainant become
angry and upset after Steinberg snapped her bra strap and after he
made sexual remarks to her. (Tr. 217-218, 222) Baker testified
that Complainant got very angry and agitated but also felt helpless
and trapped when she told him about some of the incidents. (Tr.
199-201) Tanis testified that Complainant's self esteem took a
"nose dive" and observed Complainant become withdrawn, irritable,
hesitant and fearful. She also testified that Complainant would cry
several times a week and would leave work physically and emotionally
exhausted. (Tr. 246-250) Finally, Tanis testified that it took
Complainant a few months into her new job with Dr. Miller before
Complainant felt better about working and behaved normally again.
(Tr. 249-250)
Considering these circumstances, I determine that $40,000 is
appropriate compensation for Complainant's emotional distress caused
by Steinberg's conduct.
3. Punitive Damages
The Executive Director seeks punitive damages against
Respondent Steinberg. H.R.S. 368-17 also authorizes the
Commission to award punitive damages. Punitive damages are assessed
in addition to compensatory damages to punish a respondent for
aggravated or outrageous misconduct and to deter the respondent and
others from similar conduct in the future. See, Shaw, supra;
Santos, supra; Masaki v. General Motors Corp., 71 Haw. 1, 6, 780
P.2d 566 (1989). Since its purposes are punishment and deterrence,
punitive damages are awarded only when a respondent's wrongdoing has
been intentional and deliberate, and has the character of outrage
frequently associated with crime. Id.
The Executive Director is required to show, by clear and
convincing evidence, that a respondent acted wantonly, oppressively
or with such malice as implies a spirit of mischief or criminal
indifference to civil obligations, or where there has been some
wilful misconduct or entire want or care which would raise the
presumption of a conscious indifference to consequences. Id. at 15-
17.
In the present case, the Executive Director has shown by clear
and convincing evidence that Steinberg acted wilfully and with a
conscious disregard for Complainant's right to work in an
environment free of sexual harassment. Besides making demeaning and
offensive verbal comments, Steinberg physically threw small objects
at Complainant's breast and crotch areas, often snapped her bra
strap, and rubbed up against her. When Choike objected to similar
conduct, Steinberg stopped. (Tr. 178) In contrast, he ignored
Complainant's objections and warning that his conduct could be
considered sexual harassment. He believed he could harass
Complainant with impunity based on his mistaken notion that lesbians
could not be sexually harassed by men.
To determine the amount of punitive damages, the following
factors are to be considered: 1) the degree of malice and
reprehensibility of Respondent's conduct; 2) Respondent's
financial situation; and 3) the amount of punitive damages which
will have a deterrent effect on Respondent in light of his or her
financial situation. See, Santos, supra; Beerman v. Toro Mfg. Co.,
1 Haw. App. 111, 119 (1980); Kang v. Harrington, 59 Haw. 652, 663-
664 (1978).
At the hearing, no evidence was presented as to Dr. Steinberg's
net worth. However, the wealth of a respondent is only one factor
to be considered in assessing punitive damages. Ahmed v. Collins,
23 Ariz. App. 54, 530 P.2d 900, 904 (1975); see also, Romero v.
Hariri, 80 Haw. 450, 458 (App. 1996) (the failure to show net worth
does not necessarily invalidate a punitive damage award but only
eliminates a factor in which to gauge the reasonableness of the
award). The record shows that Steinberg currently is not working
and lives in New York (Ex. 8 p. 7). However, the record also shows
that Steinberg is 38 years old, is board certified in general
surgery, and specializes in general and vascular surgery. (Ex. 8 p.
7, 14) He has the ability to be employed as a physician or a
surgeon. Given Steinberg's wilful behavior and his potential to
generate a substantial income as a physician and/or surgeon, I
therefore award Complainant punitive damages of $20,000.
4. Equitable Relief
The Executive Director also seeks to have the Commission:
a) issue an order directing Respondents to cease and desist
from further discriminatory practices and retaliation
against Complainant or any other employees;
b) require Respondents to implement and adopt policies and
procedures against employment discrimination based on sex,
harassment and retaliation; and
c) require Respondents to publish the results of the
Commission's investigation in a press statement provided
by the Commission in the Sunday edition of the Honolulu
Advertiser or other newspaper having a general circulation
in the City and County of Honolulu.
Because Respondent Simich is retired and Respondent Steinberg
now resides in New York, I recommend that the Commission order them
to cease and desist from further discriminatory practices and to
develop and implement non-discrimination policies based on sex and
harassment should they resume practice or conduct business in the
State of Hawaii.
The best way to publicize this decision to the public is to
require Respondents to publish the attached Public Notice
(Attachment 1) in the Sunday edition of the Honolulu Advertiser or
in a newspaper having a general circulation in Honolulu, Hawaii.
V. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents Simich and Steinberg
violated H.R.S. 378-2 and H.A.R. 12-46-109 by subjecting
Complainant Linda Louise Gould to unwelcome sexual conduct which
created an intimidating, hostile and offensive work environment.
For the violations found above, I recommend that pursuant to
H.R.S. 368-17, the Commission should order:
1. Respondents Robert Simich and Harold Steinberg jointly and
severally to pay Complainant $40,000 as damages in compensation for
her emotional injuries caused by Respondent Steinberg's sexual
harassment.
2. Respondent Steinberg to pay Complainant $20,000 as
punitive damages.
3. Respondents Simich and Steinberg to jointly publish the
attached Notice (Attachment 1) in the Sunday edition of the Honolulu
Advertiser or in a newspaper having a general circulation in the
City and County of Honolulu within 10 days of the Commission's final
decision in this matter.
4. Respondents Simich and Steinberg to cease and desist from
discriminating against all future employees and to develop a non-
discrimination policy on the basis of sex and harassment should they
resume practice or conduct business in the State of Hawaii.
DATED: Honolulu, Hawaii __________________________.
HAWAII CIVIL RIGHTS COMMISSION
/s/________________________
LIVIA WANG
Hearings Examiner
Proposed Decision (June20, 1996)
ATTACHMENT 1
PUBLIC NOTICE
published by Order of the
HAWAII CIVIL RIGHTS COMMISSION
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
STATE OF HAWAII
After a full hearing, the Hawaii Civil Rights Commission has
found that Respondent Robert Simich, formerly doing business as Dr.
Robert L. Simich and Associates, also formerly doing business as
Kailua Family and Urgent Medical Care and Respondent Harold
Steinberg violated Hawaii Revised Statutes Chapter 378, Employment
Discrimination, when Respondent Steinberg subjected a female
employee to unwanted sexual conduct which created an intimidating,
hostile and offensive work environment. (Linda C. Tseu on behalf of
the Complaint filed by Linda Louise Gould v. Dr. Robert Simich,
formerly dba Dr. Robert L. Simich and Associates, also formerly dba
Kailua Family and Urgent Medical Care and Dr. Harold Steinberg,
Docket No. 95-012-E-SH, [date of final decision], 1996).
The Commission has ordered us to publish this Notice and to:
1) Pay that employee an award to compensate her for emotional
injuries she suffered; and
2) Require us to immediately cease and desist from sexually
harassing all future employees and develop written non-
discrimination policies on sex and harassment should we
resume practice or conduct business in the State of
Hawaii.
The Commission has also ordered Respondent Steinberg to pay
that employee punitive damages.
DATED: ______________________________
BY: ______________________________
ROBERT SIMICH
______________________________
HAROLD STEINBERG
APPENDIX A
On October 20, 1992 Complainant Linda Louise Gould filed a
complaint with this Commission alleging sexual harassment and
constructive discharge against Respondents Simich Associates, Inc.
dba Kailua Family and Urgent Medical Care, Dr. Robert Simich, Dr.
Debra Moorehead-Dunn and Dr. Harold Steinberg.
On October 2, 1995 the complaint was docketed for hearing and
a Notice Of Docketing Of Complaint was issued.
The Executive Director filed its Scheduling Conference
Statement on October 16, 1995. A scheduling conference was held on
November 1, 1995 and the Scheduling Conference Order was issued on
November 2, 1995.
On November 2, 1995 this Hearings Examiner filed a motion to
extend hearing date. On November 16, 1995 the Commission granted
this motion.
On November 9, 1995 Respondents Simich and Steinberg filed a
motion for summary judgment on the grounds that the Executive
Director failed to issue a determination of reasonable cause within
180 days from the date the complaint was filed. On November 22,
1995 Respondent Moorehead-Dunn joined in the motion. On November
17, 1995 Respondents Simich and Steinberg filed a supplemental
memorandum in support of their motion. On November 10, 1995 the
Executive Director filed its memorandum in opposition to the motion.
A hearing on the motion was held on November 22, 1995 before this
Hearings Examiner. Participating in the hearing were
- i -
Enforcement Attorney Logan F. Young on behalf of the Executive
Director and Wesley K.C. Lau, Esq. on behalf of Respondents Simich
and Steinberg. On November 24, 1995 the Hearings Examiner issued an
order denying Respondents' motion for summary judgement.
On February 28, 1996 the Executive Director filed a motion for
protective order as to the location of Complainant Gould's
deposition. On March 5, 1996 Respondent Steinberg filed a
memorandum in opposition to the motion. On March 5, 1996 this
Hearings Examiner issued an order granting in part the Executive
Director's motion for protective order.
On March 6, 1996 the Executive Director filed a motion to
compel discovery. This motion was withdrawn on March 27, 1996. On
March 8, 1996 the parties filed a stipulation to extend discovery.
On March 7, 1996 notices of hearing and pre-hearing conference
were issued. On March 18, 1996 the Executive Director filed its
pre-hearing conference statement. On March 19, 1996 Respondents
Steinberg and Moorehead-Dunn filed their pre-hearing conference
statements. On March 25, 1996 Respondent Simich filed his pre-
hearing conference statement. On March 25, 1996 a pre-hearing
conference was held and on that date a pre-hearing conference order
was issued. On March 27, 1996 the Executive Director filed its
First Amended Pre-hearing Conference Statement. On March 28, 1996
the Executive Director filed its Second Amended Pre-hearing
Conference Statement.
- ii -
On March 29, 1996 the Executive Director filed an ex parte
motion to dismiss the complaint against Respondent Moorehead-Dunn.
That day, the Hearings Examiner issued an order granting the motion
and dismissing the complaint against Respondent Moorehead-Dunn.
Pursuant to H.R.S. Chapters 91 and 368, the contested case
hearing on this matter was held on April 1 and 2, 1996 at the Hawaii
Civil Rights Commission conference room, 888 Mililani Street, 2nd
floor, Honolulu, Hawaii before the undersigned Hearings Examiner.
The Executive Director was represented by Enforcement Attorneys Karl
K. Sakamoto and Cheryl Tipton. Complainant Gould was present during
portions of the hearing. Respondents Simich and Steinberg were
represented by Wesley K.C. Lau, Esq. At the hearing, the Executive
Director orally moved to dismiss Simich Associates, Inc. as a party
respondent and clarified that the correct respondent is Dr. Robert
Simich, formerly doing business as Dr. Robert L. Simich and
Associates, also formerly doing business as Kailua Family and Urgent
Medical Care. The Hearings Examiner granted the motion and sua
sponte amended the caption in this case to reflect these changes.
On March 16 and 17, 1995 Respondents and the Executive Director
filed post-hearing briefs, respectively.
On March 21, 1996 the Hearings Examiner issued an order
reopening the contested case hearing for the purpose of taking
further evidence. The contested case hearing was reopened on May
29, 1996 at held at the Hawaii Civil Rights Commission conference
- iii -
room, 888 Mililani Street, 2nd floor, Honolulu, Hawaii and by
telephone conference before the undersigned Hearings Examiner. The
Executive Director was represented by Enforcement Attorneys Cheryl
Tipton and Karl K. Sakamoto. Respondents Simich and Steinberg were
represented by Wesley K.C. Lau, Esq.
-------------------------------------
footnotes:
1. The Executive Director initially also named Simich
Associates, Inc. and Dr. Debra Moorehead-Dunn as respondents to this
case. On March 29, 1996 the Executive Director dismissed Moorehead-
Dunn as a party respondent. (See, Tr. 1; Appendix A p. iii.) On
April 1, 1996 the Executive Director dismissed Simich Associates,
Inc. as a party respondent and clarified that the correct respondent
is Dr. Robert Simich, formerly dba Dr. Robert L. Simich and
Associates, also formerly dba Kailua Family and Urgent Medical Care.
(Tr. 1-2; see also, Appendix A p. iii.) Accordingly, the Hearings
Examiner, sua sponte amends the caption in this case to reflect
these changes.
2. As a preliminary matter, this Hearings Examiner has
considered the proposed findings of fact and conclusions of law
filed by the Executive Director as well as the post-hearing
arguments filed by the parties. To the extent that the Executive
Director's proposed findings of fact are in accord with the findings
of fact stated herein, they are accepted, and to the extent that
they are inconsistent, they are rejected. In addition, some of the
proposed findings are omitted because they are irrelevant or not
necessary to determine the material issues in this case.
To the extent that the following findings of fact also contain
conclusions of law, they shall be deemed incorporated into the
conclusions of law.
3. Doctors and medical assistants at the clinic did not have
individual offices or stations. (Tr. 43; Ex. 17)
4. Complainant is a lesbian. However, the Executive Director
contends that Complainant was sexually harassed because she is a
women. It is not claiming harassment on the basis of her sexual
orientation.
5. Complainant testified that Tanis wanted Complainant to
leave her job at the clinic, but Complainant wanted to stay because
she was learning about post-emergency care treatment. (Tr. 78-79)
6. To the extent that the following conclusions of law also
contain findings of fact, they shall be deemed incorporated into the
findings of fact.
7. This definition has been in effect since 1981. See, L
1981, c 94 2)
8. Federal courts are split as to whether same gender sexual
harassment claims are actionable under Title VII. See, discussion
in Easton, supra, 67 EPD 43,926 at 84,708-84,709; Sardinia, supra,
at 83,901-83,904; Ecklund v. Fuisz Technology, Ltd., 905 F. Supp.
335, 67 EPD 43,861 at 84,312-84,313 (E.D. Va 1995). State courts
which have addressed this issue have generally allowed such claims
under their state fair employment acts. See, Mogilefsky v. Superior
Court, Los Angeles County, 26 Cal.Rptr.2d. 116, 63 EPD 42,746 (Cal.
App. 2nd Dist. 1993); Holien v. Sears, Roebuck and Co., 689 P.2d
1292, 35 EPD 34,801 at 35,473 (n. 5) (Ore. 1984). I find cases
allowing same gender sexual harassment claims persuasive and
conclude that such claims are actionable under H.R.S. Chapter 378
because: 1) the plain language of H.R.S. 378-2, H.A.R. 12-46-
109 and Title VII do not preclude a same gender sexual harassment
claim for relief; 2) cases holding that Title VII does not allow
same sex harassment claims are based on the mistaken rationale that
harassers cannot discriminate against members of their own sex (see,
Easton, supra; Sardinia, supra); 3) the EEOC has interpreted Title
VII to protect victims of same sex discrimination in the work place
(see, EEOC Compliance Manual 615.2); 4) in Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L.Ed.2d 49, 40 EPD
36,159 at 42,577 (1986), the U.S. Supreme Court used gender neutral
language to articulate the definition of sex discrimination rather
than requiring crossgender discrimination ("when a supervisor
sexually harasses a subordinate because of the subordinate's sex,
that supervisor 'discriminates' on the basis of sex") and 5) the
Ninth Circuit has indicated that it would find same gender sexual
harassment claims legally cognizable. See, Steiner v. Showboat
Operating Co., 25 F.3d 1459, 64 EPD 43,114 at 80,221 ("although
words from a man to a man are differently received than words from
a man to a woman, we do not rule out the possibility that both men
and women working at Showboat have viable claims against [the
supervisor] for sexual harassment".)
9. In our society, women are subjected to greater instances
of violence, objectification and sexual coercion by men which can
make the "appearance of sexuality in an unexpected context or a
setting of ostensible equality. . . an anguishing experience."
Easton, supra, at 1383 quoting Abrams, Gender Discrimination and the
Transformation of Workplace Norms, 42 Vand.L.Rev. 1183, 1205 (1989).
Communications among men, or among women generally do not carry the
same societal baggage because they usually occur within an
environment free from concerns about gender dominance and sexual
violence. For instance, imagine a male employee making sexual
remarks about women employees to a male co-worker. Then imagine the
male employee making the same remarks to a female co-worker. While
such comments might offend the morals of both co-workers, the female
co-worker might also feel that such comments were demeaning,
insulting or intimidating to her sex, whereas the male co-worker
would not.
10. The Ninth Circuit, however, noted that if the supervisor
had also used male sexual epithets against men employees, the men
might also have viable sexual harassment claims. See, footnote 8,
supra.
11. Aside from the radio being played, I find that Complainant
did not make other more specific complaints about Steinberg's
conduct on her evaluation because she was afraid she would lose her
job. See, Finding of Fact No. 15. Complainant had just moved to
Hawaii and started a new job. She understandably did not want to
make a written complaint against the doctor who was evaluating her
work. I also find that Complainant did not mention Steinberg's
conduct as a reason for quitting because she was also fed up with
the other doctors' behavior and just wanted to leave. See, Finding
of Fact Nos. 21, 22.
