Flagen proves sexual harassment claim against Mission Valley Aquatics
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POLSON – The Mission Valley Aquatic Center was recently ordered to pay nearly $60,000 in damages in a case involving sexual harassment.
On Feb. 7, Montana Department of Labor and Industry hearing officer Chad R. Vanisko ruled on the case. Judgment was granted in favor of Tristen Flagen, a former pool employee who alleged that Mission Valley Aquatics violated the Montana Human Rights Act, according to ruling documents. MVA was issued an opportunity to appeal the ruling, and they haven't made a final decision on the issue.
MVA Board President Ben Montgomery is part of the newly updated and expanded volunteer board with 10 members, instead of four. He said the center is under new management and is in the process of updating policies.
"None of the employees involved in this are working at the facility," he said.
Montgomery said the center is undergoing many changes, including hiring new Executive Director Kris Sampson.
"We took this very seriously," he said.
MVA was ordered to pay Flagen’s $9,360 therapy costs and $50,000 for emotional distress. The aquatic center was also ordered to consult with an attorney who is expert in human rights laws to develop and implement policies for the identification, investigation and resolution of complaints of discrimination to prevent and remedy sexual discrimination on the job. The Montana Human Rights Bureau must approve the new policy.
In addition to the sexual harassment, Flagen alleged retaliation after she reported the issues and was later passed over for a promotion and terminated as a lifeguard at the center. She also alleged harassment that involved sexual favors for employment benefits. Flagen was unable to prove retaliation or sexual favors for employment during the hearing.
Two allegations of sexual harassment were brought against the center involving two employees. A hostile work environment due to sexual harassment is a violation of the MHRA, according to the law. A totality of circumstance test is used to determine a claim based on the frequency and severity of the situation among other factors.
During the hearing, Randy Folker faced allegations of sexual harassment. “Flagen failed … to show that Folker’s actions created a hostile work environment,” according to the ruling. It was noted that Flagen testified that Folker made inquiries and comments toward her that were uncomfortable. Flagen testified that when she did not show interest in Folker, he became “disinterested.”
“The only evidence of an abusive working environment presented by Flagen related to Folker’s temper, which was a general issue, unrelated to Flagen specifically, and not pervasive,” according to documents.
In regards to Zacharie Martin, she proved her claim. Flagen had witness testimony to verify her allegations. Her therapist also testified on her behalf. “Based on Flagen’s testimony, the conditions created by Martin were severe,” according to the ruling. The time Martin threw Flagen’s swimsuit in the dumpster as a joke was considered minor. “The other behaviors described by Flagen were, however, beyond the pale.”
“Martin sent Flagen numerous, unsolicited sexually explicit images and videos of himself via Snapchat,” the ruling states. “Martin sent enough of these messages to Flagen that it became routine.”
The ruling goes on to say that Martin’s conduct escalated. “In or around December 2015, Flagen and Martin were storing items used for the ‘Family Fun Night’ in a closet when Martin told Flagen to come into the bathroom.” Martin is accused of exposing himself to Flagen in a sexual nature. And later, he is accused of walking in on her as she showered.
“These actions clearly meet elements of a hostile work environment based on sexual discrimination – the acts were offensive and amounted to actual discrimination because of sex, and the sexual harassment was so severe and pervasive that it altered the conditions of Flagen’s employment and created an abusive working environment. Also, under the totality of the circumstances, it was objectively frequent, severe, and humiliating,” according to the ruling.
The hearing officer concluded that Flagen did not “directly inform a supervisor” about Martin’s behavior. “Flagen remained professional and cordial toward Martin at work throughout this time because she did not want to cause workplace issues and believed she could handle the situation,” the document notes.
She eventually attempted to report the Martin issue to Folker around January 2016. She is reported as also trying to talk to then MVA Director Ali Bronsdon.
“In neither situation was she allowed to speak. In the case of Bronsdon specifically, she was quickly rebuffed, given no opportunity to explain her issues and effectively told Martin was a good employee.”
An issue concerning who exactly was considered a supervisor was addressed in the hearing. Folker did not have the power to fire an employee, but he gave Bronsdon input on certain issues. Under these circumstances, the hearing officer concluded that Folker was Flagen’s supervisor, the hearing report notes.
The hearing officer said the question wasn’t whether an employer and the supervisors knew about the harassment, but also whether they should have known. The employer is said to be negligent for not taking responsive action concerning complaints.
“An employer response is required upon gaining awareness that an employee is being sexually harassed. An employer who acts promptly and reasonably will not be held liable for the actions of a third party … ,” according to the document.
The hearing officer notes that MVA management was “aware of conflict” between Flagen and Martin which should have prompted further investigation. “Instead, however, there was a superficial attempt to resolve the situation with absolutely no investigation into the underlying cause.”
The attempt – not an investigation – at resolving the issue was conducted during a meeting where Flagen and Martin were placed side-by-side in a small room and given a motivational lecture by Folker concerning Maslow’s hierarchy of needs, which is a psychological philosophy.
Dr. Glynda Brown testified for Flagen and said she had never encountered such an inappropriate and counter-productive method of workplace conflict resolution in all of her 40 years of human resource management experience.
The meeting, according to the documents, proves the supervisors knew there was an issue. The hearing officer concluded: “MVA’s response – or lack thereof – illustrates a classic situation in which the employer has failed to seriously and adequately investigate the situation and to protect victims of harassment on the job."
He continued to say, “There simply was no investigation, and MVA’s response was one of negligence and ratification of the harassment through its total failure to take appropriate and reasonable responsive action. MVA has therefore failed to establish any valid defense to Flagen’s hostile work environment claim.”
