Gouldfin.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 )
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, )
)
Respondents. )
_______________________________)


FINAL DECISION AND ORDER


On June 20, 1996, the Hearings Examiner filed Proposed Findings
of Fact, Conclusions of Law and Recommended Order ("Recommended
Decision"). On July 20, 1996, the Executive Director filed Written
Exceptions.[1] Respondents did not file Written Exceptions.
Neither party filed a Statement in Support.
On September 9, 1996, the Executive Director filed a Motion to
Allow Executive Director to File Memorandum in Support of Hearings
Examiner's Damages Award. On September 24, 1996, the Executive
Director filed a Motion to Dismiss Dr. Robert Simich, formerly dba
Dr. Robert L. Simich and Associates, also formerly dba Kailua Family
and Urgent Medical Care.
On September 25, 1996, at 1:00 p.m., the parties presented oral
argument to Commissioners Jack Law, Faye Kennedy, William Hoshijo,
and Allicyn Hikida-Tasaka. Representing Respondent Dr. Harold
Steinberg was Wesley K.C. Lau, Esq., and representing the Executive
Director were Karl K. Sakamoto, Esq., and Cheryl Tipton, Esq. Also
present at the hearing was the Executive Director.
On September 30, 1996, Commissioner Amefil Agbayani, who was
not present at oral argument, listened to the entire tape recording
of the oral argument and filed an affidavit attesting thereto on
October 11, 1996. Commissioner Agbayani has read the written
submissions and considered the portions of the record cited by the
parties. H.R.S.  368-14(a). Commissioner Agbayani will
participate in this decision.

I. Preliminary Matters
The Commission grants the Executive Director's Motion to
Dismiss Dr. Robert Simich, formerly dba Dr. Robert L. Simich and
Associates, also formerly dba Kailua Family and Urgent Medical Care,
from the case. The only remaining Respondent is Dr. Harold
Steinberg.
The Commission also grants the Motion to Allow Executive
Director to File Memorandum in Support of Hearings Examiner's
Damages Award. Under Commission's rules, a party may submit a
Statement in Support of the Decision within fifteen days after
receiving Written Exceptions from the opposing party. Haw. Admin.
R. ("H.A.R.")  12-46-54. The Memorandum on Damages is essentially
a Statement in Support of the Decision. In this case, Respondents
did not file Written Exceptions so there was no opportunity under
the rules for the Executive Director to file a Statement in Support.
At the commencement of oral argument, the Commission notified
counsel for Respondent that the motion would be granted unless
counsel objected and presented reasons providing good cause to deny
the motion. Respondents had not opposed the motion in writing and
did not object or present reasons at oral argument to justify denial
of the motion.
In future cases, if a party does not file Written Exceptions
and the opposing party wishes to file a Statement in Support, the
Hearings Examiner is authorized to accept for filing a Statement in
Support of the Decision, if submitted within fifteen days after the
date that the non-filing party would have been required to file its
Written Exceptions. The Statement in Support will be made part of
the record transmitted to the Commission. H.A.R.  12-46-55.
Thereafter, the other party may file a motion with the Commission to
strike the Statement in Support, if desired.

II. FINDINGS OF FACT
The Recommended Decision contains extensive Proposed Findings
of Fact regarding the sexual harassment of Complainant Linda L.
Gould ("Gould") while she was employed as a medical assistant at
Kailua Family and Urgent Care. The conduct consisted of verbal and
physical conduct of a sexual nature which created an intimidating,
hostile, and offensive work environment. The perpetrator was Dr.
Harold Steinberg. Dr. Steinberg's conduct towards Gould included
statements about the size and shape of her breasts as well as other
verbal statements of a sexual nature directed at her and others.
Dr. Steinberg also engaged in physical conduct of a sexual nature
towards Gould. He snapped Gould's bra strap from behind at least
ten (10) times. He dropped an object down the front of her shirt
and laughed. He would often rub up against Gould when he passed her
in the lab area. He would intentionally shoot rubber bands and
paper clips at her private parts. Gould told Dr. Steinberg on
several occasions, "Doctor, that's offensive." Once she told him
that his behavior could be considered sexual harassment. Despite
her objections, Dr. Steinberg did not stop.
Her co-workers often saw that Gould was upset by Dr.
Steinberg's conduct. Gould was confident and sociable before the
sexual harassment but became fearful and withdrawn afterwards. She
was embarrassed, humiliated, angry, and upset by the harassment.
She felt powerless and lost self-confidence when she couldn't change
things. She often cried before going to work, felt tense, anxious,
and had headaches while at work, and was angry, tense, irritable,
exhausted, and had stomach problems while at home. The Recommended
Decision found that Dr. Steinberg's conduct was unwelcome and
created an intimidating, hostile, and offensive work environment.
Dr. Steinberg did not file exceptions to the Recommended
Decision. At oral argument, counsel for Dr. Steinberg stated that
a choice was made not to file exceptions. Oral Argument Transcript
at 2. Counsel contended that none of the alleged conduct had
occurred and that Gould was lying. Id. at 8-9. Aside from the
blanket denial, Dr. Steinberg did not provide the Commission with
any basis to reject the Proposed Findings of Fact about his conduct.
The record clearly supports the Proposed Findings. Gould's
testimony regarding the incidents and the work environment was
corroborated by other employees. One employee testified that, like
Gould, Dr. Steinberg had pulled her bra strap from behind. The
employee also saw him shoot rubber bands and paper clips at Gould
and noticed that she was often tense, red in the face, and upset at
him. Another employee heard Dr. Steinberg's comments about Gould's
breast shape and size and heard her say "That's not appropriate"
after other comments. Two of Gould's friends also testified to the
adverse effect that the working environment had upon her mental and
emotional state.
Proposed Finding of Fact 22 refers to 1996 as the year that
certain events occurred. The Executive Director points out that the
record shows that these events actually occurred in 1992. Finding
of Fact 22 is hereby amended to change the three references from
1996 to 1992. The Commission hereby adopts the Proposed Findings of
Fact, as amended, in their entirety and incorporates them into the
Final Decision.

III. CONCLUSIONS OF LAW
The Commission hereby adopts Conclusions of Law A, 2, that the
Commission had jurisdiction over Dr. Steinberg. Dr. Steinberg did
not take exception to Conclusion of Law A, 2, or raise the matter in
oral argument. Although Dr. Simich has been dismissed from the
case, the Commission hereby adopts Conclusion of Law A, 1, that the
Commission had jurisdiction over Dr. Simich because Conclusion of
Law A, 2 relies upon it.
Conclusion of Law A, 3 found that the complaint should not be
dismissed even though the reasonable cause determination was not
made within 180 days because the Commission had granted extensions
of time to make the determination. Dr. Steinberg raised this issue
at oral argument. H.R.S.  368-13(b) requires the Executive
Director to make a reasonable cause determination within 180 days of
the filing of the complaint, "unless the commission grants an
extension of time to issue a determination." The record reflects
that the Commission granted three extensions and the reasonable
cause determination was made within the third extension. The
Commission hereby adopts Conclusion of Law A, 3.
Conclusion of Law B, 1 and 2 found that there was no violation
of due process by allowing Gould's deposition to be taken by
telephone or by the disclosure of 12 documents on the eve of the
contested case hearing. Dr. Steinberg contended that Gould should
have returned to Hawaii for her deposition because a party to a
lawsuit would be required to do so under the Hawaii Rules of Civil
Procedure. The Recommended Decision correctly points out that the
Gould, as the Complainant, was not a party to the proceeding because
she had not intervened, and there was good cause for her not to
attend the deposition in Hawaii due to lack of funds. The
procedures of using a speakerphone, making a videotape of Gould
answering the questions, and express mailing a copy of the videotape
to Dr. Steinberg's counsel for review was fair under the
circumstances. Dr. Steinberg did not provide any examples of
prejudice resulting from the use of these procedures. The
Commission hereby adopts Conclusion of Law B, 1. The document
disclosure was briefly raised at oral argument and no showing of
prejudice was made. As the Recommended Decision points out, Dr.
Steinberg could have requested a continuance for time to review the
documents. The Commission hereby adopts Conclusion of Law B, 2.
Conclusion of Law C sets forth the legal standards for
determining sexual harassment. The Executive Director took
exception to the standard for situations where the perpetrator and
victim are of the same gender. Dr. Simich has been dismissed from
the case.[2] With respect to him, there is no issue of same gender
harassment. Dr. Debra Moorehead Dunn is not a party.[3] Any claims
against Dr. Simich and Dr. Moorehead Dunn are moot. Mahiai v. Suwa,
69 Haw. 349 (1987) ("A case is moot if it has 'lost its character as
a present, live controversy of the kind that must exist if [courts]
are to avoid advisory opinions on abstract propositions of law.'")
(citations omitted, brackets in original.) Dr. Steinberg is not
liable for Dr. Moorehead Dunn's actions under an agency theory.
There is no reason for the Commission to decide if Dr. Moorehead
Dunn engaged in same gender sexual harassment because it would not
affect the amount of damages or the constructive discharge issue.
Thus, until there is an appropriate case raising the issue, the
Commission will not decide the standard for proving same gender
sexual harassment.
The Commission hereby adopts Conclusion of Law C to the extent
that it finds that Dr. Steinberg sexually harassed Gould. Dr.
Steinberg's conduct was not merely juvenile or crude but unlawful
and highly unprofessional. His sexual comments to Gould and the
many times he physically touched her were unwelcome and created an
intimidating, hostile, and offensive work environment because of her
sex. H.A.R.  12-46-109(a)(3).
Conclusion of Law D found that Gould was not constructively
discharged when she resigned to work for another doctor. The
Executive Director took exception and argues that Gould was
compelled to leave because of the sexual harassment and seeks a
determination of this issue despite the fact that Gould would not be
entitled to additional damages because her new job paid more. The
Recommended Decision at 30 noted that there was no proof of lost
benefits and found that because Dr. Steinberg had resigned before
Gould, for reasons unrelated to her claim of sexual harassment, his
presence and conduct after his resignation were not so intolerable
that Gould was compelled to resign.
The Commission recognizes that there may be situations where a
constructive discharge can occur even though the harasser is no
longer working with the victim. Looking at the totality of the
circumstances, an intimidating, hostile, and offensive work
environment may not be cleansed when a harasser leaves. The time
between resignations is one factor to be considered together with
the employer's efforts to take immediate and appropriate corrective
action, H.A.R.  12-46-109(d), and the extent of the victim's
efforts to seek other employment before the harasser leaves. If a
victim has decided to leave because the employer has failed to take
immediate and appropriate corrective action, actively seeks other
employment, and resigns shortly after the harasser, it is
conceivable that the work environment has not be sufficiently
cleansed to preclude a finding of constructive discharge.
In this case, Gould would not be entitled to additional damages
because she was paid more at her new job. Because the remedies
awarded would not be affected even if a constructive discharge is
found, the Commission declines to decide the issue because it is
moot. Mahiai v. Suwa, supra. The Commission does not adopt
Conclusion of Law F, 1, regarding constructive discharge. The
Commission hereby adopts Conclusion of Law E on liability. The
Commission hereby adopts Conclusion of Law F, 2 and 3 on
compensatory and punitive damages, respectively. Working at the
clinic changed Gould from being confident and social to withdrawn
and fearful. For six months, she was tense, anxious, irritable, and
exhausted by the harassment which caused her to have headaches at
work and stomach problems at home. She is awarded $40,000 in
compensatory damages for the emotional distress and $20,000 in
punitive damages. The Commission hereby adopts the Recommended
Order. The adopted Conclusions of Law and Recommended Order are
hereby incorporated into the Final Decision.

DATED: Honolulu, Hawaii


AMEFIL AGBAYANI
Chairperson



ALLICYN HIKIDA-TASAKA
Commissioner



WILLIAM HOSHIJO
Commissioner




FAYE KENNEDY
Commissioner




JACK LAW
Commissioner


Notice: Under H.R.S.  368-16(a), a complainant and a respondent
shall have a right of appeal from a final order of the Commission by
filing an appeal with the circuit court within thirty (30) days of
service of an appealable order of the commission.


----------------------------------------
footnotes:

1. Both parties filed motions for extensions of time to file
written exceptions. On July 9, 1996, the Commission issued an order
finding good cause to grant the parties additional time to file
written exceptions.

2. Because he has been dismissed, the Commission does not
have to decide if Dr. Simich sexually harassed Gould and declines to
adopt that portion of Conclusion of Law C, 1.

3. Because Dr. Moorehead Dunn is not a party, the Commission
declines to adopt Conclusion of Law C, 2.