State Finds NorVal GM Harassed, Retaliated Against Employee

Source: A.J. Etherington. Glasgow Courier, 10/30/19.

The Montana Human Rights Bureau (HRB) released the decision of the Office of Administrative Hearings on the case of Shalaine Lawson against NorVal Electric Cooperative on Oct. 22. The decision ruled in Lawson’s favor and determined that NorVal general manager Craig Herbert had sexually harassed and discriminated against Lawson and then retaliated against her after she attempted to report her claim to Herbert, Norval’s board and the HRB.

The findings highlight a long and slow escalation of harassment from May to October 2017 that show Herbert made inappropriate comments and inquiries into Lawson’s sex life and appearance. Those comments included alluding to her having affairs or suggesting that her appearance meant she wanted to have an affair. The escalation culminated in Herbert inviting Lawson up to his hotel room while they were at the Montana Electrical Cooperative Association Convention in 2017. Lawson refused to meet him in his room following the request.

Following the convention, Lawson informed Herbert of her views about his behavior and sought to report his behavior. Under NorVal’s sexual harassment policy, the only method of reporting for an employee is to their direct supervisor. Unless the supervisor is the harasser, then the report can be made to the general manager. In Lawson’s case, Herbert was both. As a result, Lawson was unsuccessful in reporting her claim or in having it investigated. She then attempted to make a report to the NorVal board, however Herbert blocked her from making the report and instead stated she must make the report solely to him.

Eventually, Lawson attempted to bring her complaint to the attention of NorVal’s attorney, Matt Knierim, but he too refused to hear her complaint and sent her back to Herbert. The findings noted that after exhausting all other options of making a report, Lawson eventually filed a claim with the HRB, sat for depositions, investigations and the three days of hearings in the case.

After her attempts to report to Herbert and her subsequent report to the HRB, Lawson alleged she suffered what was described in the hearing findings as, “a constellation of retaliatory acts as a result of her protesting Herbert’s harassing conduct.” The documents ruled that Lawson was subject to “adverse employment action” after Herbert attempted to intimidate Lawson and told other NorVal employees and Lawson herself that he was investigating her for fraud.

“Herbert’s efforts to malign and to defame Lawson after she complained of his conduct had a direct effect on her ability to return to her position,” wrote the hearing officer, before going on to say, “No professional can or should tolerate an individual’s effort to diminish his or her reputation based upon fabrications and exaggerations. Calling into question Lawson’s ability to ethically and effectively perform her job duties had a material and adverse effect on Lawson’s employment and her potential future employment in that region of Montana.”

The hearing officer described Herbert’s defense against the complaint as illogical and self serving. Writing in the decision, the officer even highlighted concerns that evidence presented by NorVal was inconsistent with the same evidence presented in discovery. Specifically, detailed sentences about the complaint and Herbert’s response had been removed from a timeline produced by Herbert to support his testimony.

The officer wrote, “Herbert testified he begins a timeline on every employee at or near the employee’s time of hire to ‘protect himself.’ While that may be the case, Herbert offered no credible explanation as to the discrepancies between the two timelines NorVal produced during discovery and for hearing.”

Reached for comment, NorVal Attorney Max Davis, stated that any decision about an appeal or Herbert’s employment was up to the board. He denied knowing when the next board meeting would be. Herbert was also reached for comment and, on Oct. 28, said the board was scheduled to meet at the end of October, but he declined to say what day. In regards to whether the board would discuss an appeal he stated, “I’m sure they are going to discuss it.” Both Herbert and Davis provided no comment on the HRB decision.

Phone calls were placed to all eight board members but, at press time, only Lee Risa had been reached by the Courier and he referred all questions to NorVal attorney Max Davis.

The state’s decision follows on the heels of the US Equal Employment Opportunity Commission filing a federal lawsuit in Great Falls on Oct. 16 against NorVal for the same incidents. It was unclear at press time whether the decision by the HRB in Helena would affect the federal lawsuit, but questions were sent to EEOC attorney Amos Blackman. The HRB decision also follows on a suit filed in Valley County District Court by Lawson against NorVal, Herbert, the eight board members, Chris Christiansen, Lee Risa, Sam Gundermann, Rick Molvig, Kurt Breigenzer, Ron Reddig, Gary Meyer and Rocky Kittelson, NorVal Attorney Matt Knierim and 10 John Does. (For more on those lawsuits see EEOC Sues NorVal in the Oct. 23 edition of the Glasgow Courier).

EEOC Sues NorVal

Allege GM Sexually Harassed Employee, Retaliated After She Reported It.

Source: Glasgow Courier, A.J. Etherington.

The U.S. Equal Employment Opportunity Commission has filed a lawsuit in Federal Court in Great Falls, Mont., alleging that NorVal Electric Cooperative’s General Manager Craig Herbert sexually harassed a female employee and then subsequently retaliated against her when she tried to report his conduct.

In a press release, the EEOC said NorVal, “violated federal law when its general manager sexually harassed a female employee and then retaliated against her when she objected to his conduct and sought to report it.”

The 11-page lawsuit filed on Oct. 16 alleges that Herbert harassed then NorVal office manager Shalaine Lawson with unwelcome sexual comments and physical touching.

The EEOC release stated, “from May to October 2017, NorVal’s office manager faced unwelcome sexual comments and physical touching from her direct supervisor, NorVal’s general manager. The conduct escalated during a business trip when he suggested that they meet in his hotel room, which she adamantly refused. When she sought to report his conduct, he made escalating threats against her job.”

According to a civil suit filed by Lawson in Valley County District Court, Herbert, the board and NorVal’s attorney – Matt Knierim – all allegedly insisted that the only person she was allowed to make a formal complaint of sexual harassment to was Herbert directly. Unable to report the harassment inside the company, Lawson then filed a complaint with the Montana Human Rights Bureau and the EEOC.

“In response [to her complaint], NorVal took steps to terminate her. NorVal and its general manager’s hostility toward her and the severe emotional distress it caused, forced her to take unpaid leave and has prevented her from returning,” said the EEOC press release.

Reached for comment, NorVal attorney Maxon Davis of the law firm Davis, Hatley, Haffeman & Tighe, P.C. in Great Falls, stated that they had already argued against the case in front of the Human Rights Commission in March of 2019, but he added that, to date, no decision had been made. He also alleged that the initial investigator had dismissed the case, and that it was only after an appeal that the HRC sent the case to an administrative hearing.

In fact, a remand order filed by the Human Rights Commission directly addressed the early dismissal of the case by the investigator. According to the order, the investigator cited a lack of corroborating first-hand witnesses as a justification to use discretion to dismiss the case. The commission reversed that decision citing that witnesses were not interviewed because they “lacked firsthand knowledge.”

The commission ruled, “The lack of investigation into corroborating witnesses, in light of the identity of the alleged harasser and the failure of the policy to provide an alternative for reporting and addressing harassment, is an abuse of discretion.” The case was then remanded by the commission to undergo a hearing in front of the Office of Administrative Hearings.

During the administrative hearing in March, Davis said, “NorVal presented evidence vigorously disputing Ms. Lawson’s accusations.” When asked to address the evidence directly, Davis pointed to a number of witnesses who had testified against her, but he provided no specific names nor did he quote testimony (the evidence presented and the complaint filed with the state were both unavailable at press time). He also reiterated that no decision from the Human Rights Commission had been reached since the hearing ended in March, a span of seven months.

“We gave considerable evidence that she was not sexually harassed and that she was not retaliated against. And, that remains our position with this new lawsuit,” said Davis referring to the EEOC suit filed on Oct. 16. He also remarked on the EEOC intervention saying that he believed the federal government filing a lawsuit after a Human Rights Hearing was unprecedented. He stated directly, “I’ve never seen that before.”

Sexual harassment and discrimination in the workplace is a violation of federal law under Title VII of the Civil Rights Act of 1964, which also prohibits retaliation for making a complaint for a Title VII violation. Before filing the lawsuit, the EEOC said they attempted to reach a pre-litigation settlement through its voluntary conciliation process. The filing documents state, “The EEOC was unable to secure from Defendant [NorVal Electric Cooperative] a conciliation agreement acceptable to the EEOC.” Davis confirmed an attempt at conciliation was made before the lawsuit was filed.

According to the EEOC’s website, federal lawsuits filed by the EEOC are relatively rare. In fiscal year 2018, the EEOC filed only 41 lawsuits for sexual harassment out of 66 total discrimination lawsuits filed across the country. The 41 sexual harassment lawsuits are a small sample of the 7,609 sexual harassment charges received by the commission in that same year, making federal lawsuits for sexual harassment a rare step for the federal government to undertake.

According to the EEOC report for FY 2018, “data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by sex, disability and race. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment.”

“The EEOC’s Select Task Force on the Study of Harassment in the Workplace notes that power disparities can be a risk factor for harassment,” said EEOC Seattle Field Office Director Nancy Sienko. “Here we found that the company’s top executive not only sexually harassed his direct subordinate, but also used his position to circumscribe her ability to report his conduct. It’s critical that we send the message loud and clear — nobody is above the law.”

The EEOC has increased enforcement efforts over the last few years with increases in lawsuits in 2018, rising from 2017 by almost 50 percent. Lead Trial Attorney for the EEOC Amos Blackman noted that eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes is one of six national priorities identified by the Commission’s Strategic Enforcement Plan.

As the lawsuit filed by the EEOC goes forward, a separate civil lawsuit by Lawson in Valley County District Court in Glasgow goes further in naming NorVal Electric and Craig Herbert directly, but also names the NorVal Board of Directors and NorVal Attorney Matt Knierim for their roles in allegedly preventing Lawson from making a complaint.

That 25-page complaint, filed by Lawson’s attorney Todd Shea, of Shea Law Firm, P.L.L.C in Bozeman filed on Oct. 9, 2019, documents in greater detail the sexual harassment complaints and the alleged mishandling of the report. Specifically, it alleges that board members and Knierim were aware of Lawson’s complaint and did nothing to either hear her complaint or investigate the accusations, stressing that she must make the complaint to Herbert himself. As a result, Lawson took a leave of absence after escalating retaliation from Herbert and without being given the chance to make her reported claim to the board. The civil suit alleges that Lawson has suffered psychologically as a result of the harassment.

Davis was asked about the civil suit in District Court, but was unaware of it as of Oct. 21and therefore did not want to comment on the filing.

The Courier reached out to NorVal Electric and spoke to Craig Herbert who referred questions to his lawyer, Maxon Davis. The Courier also reached out to the board, leaving messages for many that were not returned before press time, but spoke to two board members who provided no comment and referred inquiries to Davis.

Reached for comment, Lawson’s lawyer Todd Shea, said that he and his client are currently awaiting the Human Rights Commission decision from the hearings in March.

The Courier also reached out to the State of Montana Human Rights Commission in order to acquire a copy of that complaint and the evidence presented at the hearing, but the documents are not public until a decision by the commission is reached. A request to obtain the documents was made nonetheless.

 

Sexual Harassment/Retaliation Lawsuit

Shea Law represented an employee who was sexually harassed by her employer and then fired after complaining about it.   The Court found that the employer had fired the employee in retaliation for filing a complaint with the Montana Human Rights Bureau. Below is an excerpt of the ruling from Montana Law Week.

“[The Court] find[s] it disingenuous for [the employer] to claim it had no knowledge of [the employee’s] allegations [of sexual harassment] until the issue came up at her appraisal. Clearly [the employer] had knowledge of her complaint prior to the 11/10/11 meeting. The appraisal itself makes very clear that [the employer] was angry with her allegations and his assessment of her performance was scathing at best. There is reasonable cause to believe that illegal discrimination occurred.”  Montana Law Week, 12/1/12