Zeller Elevator Co. v. Slygh

• Decision Date: 09 October 2003
• Docket Number: No. 93A02-0303-EX-245.,93A02-0303-EX-245.
• Citation: 796 N.E.2d 1198
• Parties: ZELLER ELEVATOR COMPANY, Appellant-Defendant, v. Debbie S. SLYGH and Pamela Sue Perry, Appellees-Plaintiffs.
• Court: Indiana Appellate Court

796 N.E.2d 1198

ZELLER ELEVATOR COMPANY, Appellant-Defendant, v. Debbie S. SLYGH and Pamela Sue Perry, Appellees-Plaintiffs.

No. 93A02-0303-EX-245.

Court of Appeals of Indiana.

October 9, 2003.

Jonathan D. Weinzapfel, Arthur D. Rutkowski, Bowers & Harrison, LLP, Evansville, IN, Attorneys for Appellant.

Frederick S. Bremer, Indiana Civil Rights Commission, Indianapolis, IN, Attorney for Appellees.

OPINION

SHARPNACK, Judge.

Zeller Elevator Company ("Company") appeals a decision of the Indiana Civil Rights Commission ("ICRC") in favor of Debbie S. Slygh and Pamela S. Perry. The Company raises three issues, which we restate as:

I. Whether the ICRC's order remanding to the administrative law judge with instructions to find that Slygh and Perry were unlawfully sexually harassed was contrary to the requirements of the Indiana Administrative Orders and Procedures Act, Ind.Code § 4-21.5-1-1 through 4-21.5-7-9; and

II. Whether inferences made by the ICRC in its findings were reasonable; and

III. Whether the ICRC's conclusion that Slygh and Perry suffered actionable sexual harassment is erroneous.

We affirm.

The relevant facts follow. The Company is a sole proprietorship owed by Michael Zeller ("Zeller") that is in the business of installing, servicing, and repairing elevators. The Company's office is located in the basement of Zeller's residence. Zeller's office, a secretary's office, a small kitchen, and Zeller's laundry room are located in the basement. Employees rarely visited the office except to collect their weekly paychecks. Vendors and customers rarely visited the office. If vendors or customers visited, they made appointments.

Slygh was employed by the Company as a secretary from early 1993 through August 12, 1994. Perry was employed by the Company as a secretary from September 7, 1994 through November 23, 1994. During the time that Slygh and Perry were employed with the Company, they almost always worked either alone or with Zeller. Slygh and Perry filed a complaint with the Indiana Civil Rights Commission ("ICRC") alleging that they were subjected to sexual harassment by Zeller while employed at the Company and that they were forced to leave their employment as a result of the alleged sexual harassment.

A hearing was held before an administrative law judge ("ALJ") for the ICRC. The ALJ entered proposed findings of fact and conclusions thereon finding that "Zeller's conduct, while unprofessional, was not, from the objective perspective of a reasonable person, sufficiently pervasive to alter Perry's [or Slygh's] working conditions." Appellant's Appendix, Tab 1 at 5, 8. Thus, the ALJ proposed a conclusion that "[n]either Slygh nor Perry was subjected to unlawful sexual harassment; consequently, neither the termination of Slygh nor the termination of Perry was the result of unlawful sexual harassment." Id. at 8. The ALJ also proposed a conclusion that "[w]hile Zeller's conduct was not severe, it came close to being sufficiently pervasive to constitute unlawful sexual harassment. He would be well advised to be more circumspect in the workplace." Id. at 8.

Slygh and Perry filed an objection to the ALJ's proposed findings of fact and conclusions thereon with the ICRC. The ICRC considered Slygh's and Perry's objections and found that "[b]oth Perry and Slygh demonstrated unwelcome conduct of a sexual nature that was sufficiently severe and pervasive to alter their working conditions to such an extent that a reasonable person would, as Slygh and Perry did, feel compelled to resign." Appellant's Appendix, Tab 2 at 3. Thus, the ICRC entered an order remanding the case to the ALJ with instructions to "issue a new proposed decision finding that [Slygh and Perry] were unlawfully sexually harassed, that [Slygh and Perry] were constructively discharged, and proposing appropriate relief." Id.

On remand, the ALJ entered revised proposed findings of fact and conclusions thereon in favor of Slygh and Perry. The ICRC then adopted the ALJ's proposed order with the exception of correcting some mathematical errors in the award of damages. The ICRC's order provides as follows with respect to Slygh:

9. "A couple of times, every two weeks, maybe" ... Zeller would be semi-clad (lacking a shirt and maybe socks) and complete dressing in Slygh's presence. Slygh would either tell him to get dressed or turn so that she was facing the other way.

10. Zeller would fold his laundry, including his underwear, in Slygh's presence.

11. Zeller made a comment to Slygh about some article of her clothing that he'd like to cut the strings.

12. Zeller showed Slygh pictures of himself and a prior girlfriend skinny dipping which showed the naked buttocks of both.

13. From time to time, Zeller would call Slygh to his bedroom to see something on the only television in the house. (On all these occasions, Zeller was fully clothed.)

14. One morning, Zeller told Slygh that if she had arrived a few seconds earlier, she'd have caught him in his birthday suit.

15. Zeller told Slygh that he had an annual HIV test and that he thought that everybody should. This comment was apparently in response to Slygh's mentioning her concern about having received a blood transfusion during surgery.

16. Zeller told Slygh that his bathtub was big enough for two.

17. Sometimes, Zeller referred to women's breasts as "titties."

18. Once, Zeller told Slygh not to flush tampons down the toilet. This was apparently a result of a concern about the plumbing or septic system.

19. Zeller once told Slygh that both men and women needed testosterone in order to maintain their sex drive.

20. Zeller told Slygh a number of off color jokes, although she could not remember any of them.

21. Zeller disclosed to Slygh that he had an intimate relationship with a prior secretary.

22. Zeller told Slygh, perhaps in jest, that he was going to put golden arches, standing for "Over 2,000 Served," over his bed.

23. There is no evidence that Zeller ever threatened Slygh in any way. Nor did he ask her out on a date or to have sex with him. There is no evidence that he touched her in any place that might be considered inappropriate.

24. Zeller's conduct was sufficiently severe and pervasive to alter Slygh's working conditions. It is important to note that Slygh and Zeller worked in a house, with nobody else present, subject to visitors rarely and only by appointment and that the house was located in a rural, sparsely populated area.

25. Slygh resigned her position with the Company effective August 12, 1994. When she left, Slygh had accepted another position at Deig Brothers Construction (Deig Brothers). Slygh began work at that position on August 16, 1994.

26. Because Zeller had told her that he had had an intimate relationship with a prior secretary, it was not unreasonable for Slygh to fear that Zeller might have had the same thing in mind for her, especially given his frequently expressed interest in her and sexuality. Consequently, a reasonable person in Slygh's position would have felt, as Slygh did, compelled to resign.

27. Zeller's conduct was, from the objective perspective of a reasonable person, sufficiently pervasive to alter Slygh's working conditions.

28. Slygh subjectively considered the behavior of Zeller to be unwelcome conduct of a sexual nature that was sufficiently severe and pervasive to alter her working conditions. Despite large sums of debt arising from medical bills that pertained to the premature birth and care of Slygh's youngest child, Slygh still chose to take another job that paid less than she was paid by the Company.

Appellant's Appendix, Tab 4 at 5-7.

The ICRC's order provides as follows with respect to Perry:

39. During the 2 1/2 months that Perry worked for the Company, Zeller engaged in some behavior that was, or is claimed to have been, of a sexual nature. Those incidences, and Perry's responses (if any), are discussed in detail below.

40. Twice during Perry's first day at work, Zeller reached across her to answer the phone, brushing the upper portion of her body while she was seated. This disturbed Perry because there was another phone the other direction. Perry, who acknowledges that the other phone was "sometimes" connected to a FAX machine, responded by backing away from the desk to eliminate bodily contact.

41. On one occasion, Zeller stood, eyeing Perry up and down, moving his head back and forth, and moaning.

42. Zeller called Perry into the laundry area, asked her to look at his folded laundry (with his boxer shorts on top), and tell him whether he had done it right.

43. On more than one occasion, Zeller would be semi-clad (lacking a shirt and maybe socks) and complete dressing in Perry's presence. Perry would just look the other way.

44. Zeller repeatedly complimented Perry on her hair.

45. After hearing a discussion on a "Paul Harvey" radio piece concerning homosexuality, Zeller told Perry that he could see 2 women together but not 2 men.

46. Zeller told Perry that it was fortunate that a certain man had not seen her because he (Zeller) would never get rid of that man, who would be camped out on the door.

47. At one point, Perry and Zeller were discussing Jack Rodgers (Rodgers). Zeller told Perry that Rodgers surely could not satisfy his (Rodgers') wife because she had once taken on the whole football team.

48. Zeller told Perry that he would not have sex with his ex-wife if she smelled like tobacco smoke unless she took a shower first.

49. Zeller told Perry about an incident during a vacation with an ex-girlfriend in which the two had awakened in a canoe and had sexual relations. She had hurt her back and this ruined the rest of the vacation for Zeller. Perry infers that Zeller thought that the vacation was ruined because she couldn't have sex any more. This inference is possibly accurate but it also seems possible that the ex-girlfriend's injury prevented her from canoeing and that that limitation contributed to...