Before the

Commission on Human Rights

State of Missouri

 

 

 

 

STATE ex rel. CRYSTAL L. LOWRY,                 )

                                                                              )

                                    Petitioner,                           )

                                                                              )

            vs.                                                              )                 No. 04-0022 HRC

                                                                              )

JODY COLE TECH and JODY COLE,                )

                                                                              )

                                    Respondents.                      )

 

 

RECOMMENDED DECISION

 

            The Administrative Hearing Commission (“the Hearing Examiner”) recommends that the Missouri Commission on Human Rights (“MCHR”) order Jody Cole Tech and Jody Cole (“Cole”) to pay Crystal Lowry $16,640 in back pay and $41,980 in actual damages.  Cole sexually harassed Lowry and thus discriminated against her on the basis of her sex.  The Hearing Examiner also recommends that MCHR order Cole and Jody Cole Tech to cease and desist from further discriminatory practices.  

Procedure

 

            On July 28, 2002, Lowry filed a complaint with MCHR, asserting that Cole had sexually harassed her.  On September 8, 2004, MCHR appointed the Hearing Examiner.  MCHR filed an amended complaint on February 1, 2005. 


 

 

            The Hearing Examiner convened a hearing on May 16, 2006.  Assistant Attorney General Cyrus Dashtaki represented MCHR.  Though notified of the date and time of the hearing, neither Cole nor anyone representing Cole or Jody Cole Tech appeared at the hearing. 

Findings of Fact

1.            Cole owns and operates Jody Cole Tech, which is a computer store and computer repair business located in Lincoln, Missouri.  Cole also lists computer equipment for sale on

e-Bay.  The business had approximately nine employees, both male and female. 

2.            Lowry began working for Jody Cole Tech part time on October 13, 2001.  She was 18 years old and still in high school.  Lowry worked about 20-25 hours per week as a secretary and was paid $6 per hour.  Lowry also worked as an e-Bay lister, listing equipment for sale on e-Bay.  As an e-Bay lister, Lowry was compensated $2 for every item she listed and received a 10% commission on whatever was sold.  She made approximately $200-$250 per week on the

e-Bay listings. 

3.            Cole was approximately twice Lowry’s age.

4.            One day in December 2001, Lowry was standing on a step stool to get some toner, and Cole slapped her buttocks.  She turned around and told him to stop. 

5.            After that, on a regular basis, Cole engaged in behavior such as slapping and grabbing Lowry’s buttocks, pushing her against the wall and pushing his groin into hers, and hugging her.  Lowry would push him away and tell him to stop.  Cole would stop the behavior for a couple of days and then start it again. 

6.            Cole called Lowry names on a daily basis, such as “fat bitch,” “fat cow,” and “cancer cow.”  Lowry had a bump on her tongue for which she was seeking medical treatment because it was suspected to be cancerous.  Cole knew about this because she had to ask off work for medical treatment, and that is why he called her “cancer cow.”

 

 

7.            Cole told Lowry that she was apparently eating too much because her “ass” was getting fat.  He told her that her “ass” wiggled too much when she walked up and down, and that it wiggled too much for him.  He also complained that her breasts were getting too big for his taste. 

8.            As a part-time employee, Lowry did not work on weekends.  Cole assumed that she went out with boys on weekends.  On Mondays, he asked her with whom she had sex and if it felt good.  He told her that she should quit fooling around with little boys and fool around with big boys like him. 

9.            Cole did not engage in such touching or comments with any other employees, male or female. 

10.        Cole’s touching made Lowry feel “gross” and confused.  She could not figure out why a man so much older was slapping her buttocks and touching her like that.  Cole’s comments made her feel violated.  Lowry spent most of her time on weekends staying at home and taking care of her young child. 

11.        Cole’s comments and inappropriate touching occurred in front of other employees, which made Lowry feel awful, humiliated, and embarrassed.  She did not want to talk to her co-workers about it. 

12.        Lowry often had to work alone with Cole.  She hated it and was scared because she didn’t know what he might do to her. 

13.        In December 2001, Cole asked Lowry to be his date to the office Christmas party.  The event was to be held at a facility such as a VFW building.  Cole said that he couldn’t wait to get her “ass” alone with him.  She took this to mean that he wanted to have sex with her.  Lowry told him that she would not go to the Christmas party with him and would not date him, and not to ask her again.  Cole told her that if she did not accompany him to the Christmas party, she

 

 

would not receive her Christmas bonus.  Lowry did not go to the Christmas party.  She asked the other employees if they received a Christmas bonus.  All of the employees except for Lowry received a Christmas bonus.

14.        Tom Edmonds was a supervisor at Jody Cole Tech.  He set the schedules and had the authority to hire and fire employees.  Lowry told Edmonds about Cole’s behavior and comments towards her, that this made her feel awful and embarrassed, that she did not want to come back to work because of this environment, and that something needed to be done.  Lowry had this conversation with Edmonds sometime before the Christmas party.  Lowry wanted to go and talk to Cole together with Edmonds and have a conversation about the behavior because she was afraid to discuss it alone with Cole.  Edmonds told her that she didn’t know what she was talking about and that she was making this up in her head. 

15.        Lowry kept her job at Jody Cole Tech because there were not many jobs in the area and she needed the money to support her son. 

16.        As a result of Cole’s behavior, Lowry was extremely depressed and was irritable with everyone else, especially men.  She lost her appetite and wanted to stay in bed all the time.  She cried all the time and did not want to get up and go to work, but she did because she needed to support her child.  Her parents had to help take care of her son because she was too depressed to do it and wanted to stay in bed all the time. 

17.        On March 20, 2002, Edmonds asked Lowry to wrap a package for shipment.  Cole called on the phone and told Lowry that she needed to look at some e-mails.  She replied that Edmonds had told her to wrap a package.  Cole responded that he was the owner and that she needed to do what he told her to do.  Edmonds came in and asked why she wasn’t doing what he told her to do.  She told him that Cole had asked her to check the e-mails.  Edmonds said that he could fire her.  Lowry said she had had enough of the way she was treated and to go ahead and

 

 

fire her.  Edmonds got in her face and said that maybe Cole was right – that she really was a fat “bitch.”  Lowry told him that she wasn’t taking this anymore, and she quit.  Edmonds continued arguing with her with his face in her face.   

18.        Lowry’s last paycheck from Jody Cole Tech “bounced.” 

19.        After her employment with Jody Cole Tech ended, Lowry sought treatment from a counselor, who diagnosed acute post-traumatic stress disorder.  Lowry saw him four times.  His office was 45 minutes away from Lowry’s home.  He wanted her to continue treatment, but she stopped because she could not afford the gas and the treatment.  The treatment cost $380. 

20.        After her employment with Jody Cole Tech ended, Lowry continued to suffer from anxiety, panic attacks, insomnia, nightmares, irritability, and mood changes. 

21.        Lowry’s doctor prescribed Paxil for her. 

22.        Lowry saw Cole a couple of times at the grocery store after her employment with Jody Cole Tech ended.  It made her feel sick when she saw him.  She left the store without buying groceries because she didn’t want to be around him.  She sat in her car and cried, realizing she couldn’t go into the grocery store in her own town because she was so afraid of Cole.  

23.        After high school, Lowry went to college full time until 2003, when she went back to work. 

24.        Since working at Jody Cole Tech, Lowry has only worked for women.  She has not worked for men because she is too scared.  She has not wanted to be alone with male teachers, so she didn’t want to have conferences or ask for help with school work from a male teacher unless someone else was around. 


 

 

Conclusions of Law

I.   Discrimination

            Section 213.055.1,[1] which is part of the Missouri Human Rights Act (“MHRA”), provides: 

It shall be an unlawful employment practice: 

 

            (1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual: 

 

            (a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, national origin, sex, ancestry, age or disability[.]

 

Jody Cole Tech was an employer as defined by statute because it had more than six employees.[2] 

            MCHR’s amended complaint cites § 213.055.1, and asserts that Cole discriminated against Lowry on the basis of her sex, in violation of the MHRA.  Specifically, MCHR asserts that Cole subjected Lowry to a sexually hostile work environment in violation of the MHRA. 

            The Missouri Court of Appeals has held that in order for a plaintiff to prevail on a claim of hostile work environment sexual harassment under the MHRA, she must establish that:  “(1) she is a member of the protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based upon sex; (4) the harassment affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment and failed to take appropriate remedial action.”[3]  The court stated that federal employment discrimination decisions are useful for guidance in deciding a claim of hostile work environment


 

 

sexual harassment brought under the MHRA.[4]  Lowry is a female and thus a member of a protected group.

            The conduct complained of must be “unwelcome in the sense that the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”[5]  Cole subjected Lowry to unwelcome sexual harassment, including slapping and grabbing her buttocks, pressing his groin against hers, hugging, sexual comments, name calling, and an attempt at coercing her to go out with him on a date.  The behavior continued even though Lowry constantly pushed him away and told him to stop.

            To establish that a hostile work environment was gender based, the plaintiff must show a causal nexus between any harassment and her protected group status, indicating that she was “singled out because of her gender.”[6]  “The key inquiry is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”[7]  None of the male employees at Jody Cole Tech were subject to the type of touching and sexual comments to which Lowry was subjected.  The harassment was based on her sex. 

            In order to affect the terms, conditions, or privileges of employment, and thus be actionable as sexual harassment, “conduct must be extreme and not merely rude or unpleasant.”[8]  The sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact perceived to be so.[9]  Courts consider the “totality of the circumstances” to determine whether a work


 

 

environment is hostile or abusive.[10]  In considering the totality of the circumstances, courts look to a number of factors, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[11]  “More than a few isolated incidents are required,” and the alleged harassment must be “so intimidating, offensive, or hostile that it poisoned the work environment.”[12]

            Conduct that the courts have found sufficient to establish a hostile work environment includes pervasive sexual innuendo and repetitive offensive contact.[13]  Cole’s conduct was repeated and extreme.  It occurred from December 2001 through March 2002.  Cole repeatedly  grabbed and slapped Lowry’s buttocks.  He called her insulting names based on her sex and made insulting comments about her body.  He made inappropriate inquiries about her weekend sexual activity.  He was physically threatening by pushing her up against a wall and pushing his groin against hers.  Lowry was often alone with Cole, but was afraid because of his conduct.  She did not want to get out of bed and go to work.  Cole threatened Lowry with a denial of her Christmas bonus if she did not go to the Christmas party with him, and he denied her that benefit because she refused.  We have no doubt that Cole’s conduct was actionable as harassment and that it affected the terms, conditions, and privileges of her employment.[14] 

            As to the final factor, the employer knew of the harassment and failed to take remedial action.  Cole was the owner of the business and failed to stop his actions despite Lowry’s


 

 

protests.  Lowry also told Edmonds, who was a supervisor, about Cole’s conduct, but Edmonds failed to take any action at all. 

            MCHR has proven each element of its hostile work environment sexual harassment claim.  Lowry was sexually harassed and discriminated against by her employer on the basis of her sex, in violation of § 213.055.1. 

II.  Damages

            Section 213.075.11 provides: 

The panel shall state its findings of fact and conclusions of law, and if, upon all the evidence at the hearing, the panel finds:

 

            (1) That a respondent has engaged in an unlawful discriminatory practice as defined in this chapter, the commission shall issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the unlawful discriminatory practice.  The order shall also require the respondent to take such affirmative action, as in the panel’s judgment will implement the purposes of this chapter, including, but not limited to, payment of back pay; hiring; reinstatement or upgrading; . . . [and] payment of actual damages[.]

 

In this case, Lowry is no longer employed at Jody Cole Tech and has not been for some time.  She has gone to college.  Therefore, reinstatement or upgrading would not be an appropriate remedy, and a cease and desist order would have no practical effect as to Lowry.  However, the Hearing Examiner recommends that MCHR issue a cease and desist order so that future employees do not suffer from the same discriminatory practices. 

            MCHR requests back pay of $13,000, based on a salary of $250 per week for one year, plus interest; medical expenses of $380; and damages for emotional distress, pain and suffering, humiliation, embarrassment, and deprivation of civil rights in the amount of $40,140. 

            The payment of back pay is permitted by the statute.  It is not clear to the Hearing Examiner how MCHR determined a salary of $250 per week.  Lowry testified that she worked at

 

 

least 20 hours per week at the rate of $6 per hour, and received at least $200 per week for e-Bay listings.  This would result in pay of $16,640 annually.  We recommend an award to Lowry of $16,640 in back pay.   We recommend an award of $380 to Lowry as actual damages for her medical expenses. 

            Actual damages in a Missouri civil rights case may also include amounts for the deprivation of civil rights, humiliation, and emotional distress.[15]  An award of damages for deprivation of civil rights, humiliation, and emotional distress is well justified in this case.   Cole’s behavior was extreme, and Lowry experienced ongoing effects.  She suffered in the hostile environment for approximately four months and suffered embarrassment in front of her co-workers.  She has been medically diagnosed with acute post-traumatic stress disorder as a result of Cole’s conduct.  She has been through therapy, which would have continued for a longer period if she had been able to afford it.  She suffered from panic attacks, insomnia, nightmares, depression, irritability, and changing moods.  She was unable to remain in the grocery store on two occasions because Cole was there.  She is still afraid to work with men. 

MCHR did not explain how it calculated the damages as $40,140.  Lowry’s maximum salary, at the rate of $6 per hour for a maximum of 25 hours per week, would have been $150 per week, plus a maximum of $250 per week for e-Bay listings, totaling $400 per week.  This would be $20,800 per year.  Twice that amount would be $41,600, which is close to MCHR’s figure for damages.  The Hearing Examiner recommends that MCHR award Lowry $41,600 in actual damages for deprivation of civil rights, humiliation, and emotional distress, as well as $380 for medical expenses. 


 

 

            At the hearing, MCHR requested that a civil penalty be imposed.  Section 213.075.11(2) authorizes a civil penalty for violations of §§ 213.040, 213.045, 213.050, or 213.070.  Section 213.055 is at issue in this case.  Therefore, a civil penalty is not authorized by statute.

Summary

            The Hearing Examiner recommends that MCHR order Cole and Jody Cole Tech:

1.      to pay Lowry $16,640 in back pay and $41,980 in actual damages; and

2.       to cease and desist from further discriminatory practices.  

Pursuant to MCHR’s Regulation 8 CSR 60-2.200(1), the parties may file exceptions within 10 days of the date of this recommended decision.

            SO RECOMMENDED on January 22, 2007.

 

 

                                                                              ________________________________

                                                                              JOHN J. KOPP 

                                                                              Hearing Examiner



            [1]Statutory references are to the 2000 Revised Statutes of Missouri, unless otherwise noted. 

            [2]Section 213.010(7). 

                [3]Mason v. Wal-Mart Stores, 91 S.W.3d 738, 742 (Mo. App., W.D. 2002).    

                [4]91 S.W.3d at 741.   

                [5]Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986). 

                [6]Palesch v. Missouri Comm’n on Human Rights, 233 F.3d 560, 567 (8th Cir. 2000).

                [7]Quick v. Donaldson Co., 90 F.3d 1372, 1378 (8th Cir. 1996). 

                [8]Alagna v. Smithville R-II School District, 324 F.3d 975, 980 (8th Cir. 2003).

                [9]Id.   

                [10]Baker v. John Morrell & Co., 382 F.3d 816, 828 (8th Cir. 2004).

                [11]Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).

            [12]Scusa v. Nestle U.S.A. Co., 181 F.3d 958, 967 (8th Cir. 1999).

                [13]Baker, 382 F.3d at 828. 

            [14]MCHR established that “quid pro quo” discrimination occurred when Lowry was denied her Christmas bonus:  a tangible employment action resulted from her failure to submit to the demands that her supervisor made, based on her sex.  Schiano v. Quality Payroll Systems, Inc., 445 F.3d 597, 603-04 (2nd Cir. 2006).  However, MCHR’s amended complaint is based on hostile work environment sexual harassment rather than “quid pro quo.” 

                [15]Conway v. Missouri Comm'n on Human Rights, 7 S.W.3d 571, 575 (Mo. App., E.D. 1999).