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Hearing On Alleged Sexual Harassment At Polson Aquatic Center

A woman in Polson who is accusing her former employer of firing her after she complained about sexual harassment in the workplace had a three-day hearing last week.

MTPR’s Flathead Valley reporter Nicky Ouellet covered the hearing and spoke with News Director Eric Whitney about it.

Eric Whitney: Nicky, what’s this case about? And I’ll just say now we’re not using the woman’s name because our policy is to not name victims of alleged sexual harassment and assault.

Nicky Ouellet: The woman says that two of her coworkers, who held supervisory roles at Mission Valley Aquatic Center, repeatedly sexually harassed her at work and that upper management failed to address it. She also says that when she reported it, she was fired.

EW: So, at this three day hearing in Polson, the woman was basically asking that the Aquatic Center be held accountable for sex discrimination and retaliation in employment, being fired without cause?

NO: That’s right - To win her human rights’ case, she and her lawyers need to prove either that the alleged sexual harassment happened, or that she was fired for reporting it to her bosses, or both. Here’s Carey Schmidt, a lawyer for the woman making the complaint, during his opening statement:

"As a society we are awakening to the fact that sexual harassment is pervasive, more pervasive than we ever could have thought, and our hamlets in Montana are not immune to this unfortunate truth. It happens in all our towns, and our reservations, and it happened here…. Had the pool exercised reasonable care, it would have known what was going on."

EW: What kind of harassment are we talking about here?

NO: The woman says that two men made repeated unwanted romantic and sexual advances toward her while they all worked at the pool in 2015. I should also say she’s gay and a member of the Fort Peck Assiniboine and Sioux Tribes, and at one time this case also alleged racial discrimination, but that part has been removed. She says at some point in 2015, she tried to tell her supervisors about the incidents but she was ignored. Then in February of 2016, she asked for time off to go for a certification course, she says was OK’d to go, and then when she missed two days of work for the course, she says she was terminated. She says her termination was in response to pointing out the inappropriate behavior of her coworkers.

EW: How did Mission Valley Aquatic Center respond to those claims?

NO: The pool’s current and former directors testified that she never reported the sexual harassment, and that she wasn’t fired, she quit, so there couldn’t be any retaliation. They want the case dismissed. Here’s part of the opening statement from Antonia Marra, one of the pool’s lawyers:

"Ultimately, this is a situation where an employee was disgruntled over a completely different issue and before the six months ran out on a sexual or other discrimination claim, tried to do what they could do to harm Mission Valley Aquatics, and the way they could most harm Mission Valley Aquatics, and that’s ultimately what this case is about."

EW: The pool directors say they don’t believe that what the woman alleges actually happened.

NO: Right, and as for her losing employment, they say they never OK’d her request for time off for this certification course, and that when she missed two days of work, she actually missed three shifts, which, according to the employee handbook, is considered a “voluntary quit.”

EW: Has anything like this ever been alleged against Aquatic Center employees before?

NO: The pool has settled a handful of slip and fall cases over the years. Something that came up during the hearing was that one of the men accused of sexual harassment in this case was previously charged in Lake County District Court with sexual intercourse without consent - that's rape - with a minor. He was a minor at the time, too. That case was settled out of court and dismissed.

EW: Did the pool know about that charge when they hired this man? And we should say we’re not using his name because the current case isn’t against him but his employer.

NO: Yes, the charge showed up on background checks and the aquatics director at the time knew about it, but she said during testimony that her personal interactions with him proved his character to her more than the charge.

EW: Does he still work at Mission Valley Aquatic? And what does he say to the woman’s allegations?

NO: Yes, he’s a lifeguard, and he denied every incident she spoke of. I think it’s worth mentioning that both of the men accused of sexual harassment were certified by USA Swimming to coach swim lessons for the pool’s competitive team. USA Swimming is the national governing body for the sport and it’s come under fire in the past couple decades for failing to investigate complaints of sexual abuse against its coaches. Both sides in this case mentioned that it’s being heard in the middle of moment of reckoning about how men and women interact with each other in the workplace, think of the  #metoo movement.

EW: You called this a human rights case, but the three days of hearings you went to last week didn’t happen in the regular court system, right?

NO: That’s right, Eric. Cases like this one go through the Montana Human Rights Bureau. The Bureau handles complaints of unlawful harassment and discrimination against what’s called “protected classes,” so that’s discrimination or harassment based on race, sex, disability, national orientation, and some kind of unique to Montana: Political beliefs and marital status. A person who belongs to one of these “protected classes” can file a complaint if they think they’ve been harassed or discriminated against in the workplace, or been denied housing, or if disability accommodations haven’t been provided, and they have 180 days to file a complaint from when the discrimination happened.

EW: What does the Bureau do when they receive a complaint like this one?

NO: The Bureau will conduct an informal, impartial investigation. This could mean doing some interviews or gathering documents, and then they make a basic ruling. If the investigation doesn’t point to anything untoward, the complaint is dismissed. If they do find discrimination, then the complaint goes to the state Office of Administrative Hearings. This is what happened with the woman who’s made a complaint against the pool.

EW: So tell me what happens at a hearing like this.

NO: Well Eric, it feels a lot like a court case. There’s a charging party, or what you’d call a plaintiff if this were in district court, and there’s a respondent, in this case, the Aquatic Center. There’s a hearing officer, who acts like a judge and uses Montana law and legal standards. And, also like in court, each side presents their case. They can call witnesses for testimony, introduce evidence, and when the hearing wraps up, each side makes a recommendation to the hearing officer for what they think should happen.

EW: Why would a case go through an administrative hearing instead of district court?

NO: Tim Little, who’s a case manager with the Human Rights Bureau, told me that an administrative hearing is the proper legal avenue for harassment and discrimination complaints.

It’s similar to a court procedure, but there’s a fundamental difference. In court, the final ruling usually affects only the people involved, the plaintiff and defendant. But in an administrative hearing, the person making the complaint is really asking for something much more sweeping. Little explained it like this:

"More than just addressing discrimination that happened to one person, we look to train and educate and prevent future discrimination against other people."

EW: So someone who makes a complaint with the Bureau instead of the courts is really looking to change the system, not just win their particular case?

NO: Exactly. The complainant can be awarded front or back pay or emotional distress damages just like in court, but they bring a harassment or discrimination complaint through this process to address the organization that enabled that discrimination in the first place, so it doesn’t happen again. Tim Little from the Human Rights Bureau says it’s called “affirmative relief.”

"Affirmative relief, it looks like training for an employer or housing provider," Little said. "It might look like a review of policies or employee manuals to be sure that an organization is operating in a way that does not discriminate. affirmative relief is a way of taking one case, one incident that happened to one person, and preventing similar incidents involving other people."

NO: Little adds this process is also free, there’s no court filing fees, so it also protects low-income people who may not be able to take their case to court otherwise.

EW: Is the woman who brought these charges looking for back pay or damages or to get her job back or anything like that?

NO: Back pay or damages didn’t come up explicitly during the three days of the hearing, but my understanding is that we'll learn about any potential relief the plaintiff might be asking for once each side submits their final briefs. Those are due in about a month and half.

EW: So, now that the hearing in Polson is over, what happens next?

NO: There’s kind of a lull now while each side writes up a legal brief for the hearing officer, and then he has a bit of time to make a ruling. That could take two to three months.

EW: Is there an appeals process?

NICKY: Yes, the losing side can can ask a district court judge to review the case, and how the law was applied, and potentially overturn the  decision. The judge’s opinion can also be appealed to the Montana Supreme Court, but that doesn’t happen very often, maybe a handful of times a year.

EW: How often do human rights complaints go to a hearing officer like this case in Polson?

NO: Only a fraction of human rights complaints go through the administrative hearing process. For example, last year the Human Rights Bureau received more than 700 complaints but only 60 of those went to a hearing last year. Most valid complaints are resolved through mediation.

EW: Of those 60 hearings last year, how many found discrimination had happened?

NO: Nineteen. The rest were dismissed.

EW: Anything else?

NO: I think I should add that this whole process is starting to feel the impacts of recent state budget cuts. The Human Rights Bureau has lost two of its eight investigators and they’ve had to cut back on travel, so a lot of the interviews they do as part of investigations will happen over the phone instead of face-to-face. The Bureau also had to stop offering its free anti-discrimination and anti-harassment trainings for employers, which was seen as a proactive measure that managers could take to set up a safe workplace.

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