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A Polson swimming pool will have to pay an ex-employee nearly $60,000 in damages for sex discrimination, the Montana Department of Labor and Industry’s Office of Administrative Hearings has determined.

The ruling, issued Feb. 8 by department Hearing Officer Chad Vanisko, concludes a case that began over a year ago in Polson, one that pitted former lifeguard Tristen Flagen against the Mission Valley Aquatic Center. In filings with the Montana Human Rights Bureau, Flagen had accused the center of sex discrimination, citing severe harassment from her co-workers and indifference and retaliation from supervisors.

Vanisko presided over a three-day, contested case hearing on the accusations in January 2018. And in a ruling issued Feb. 8, he mostly sided with Flagen.

“We are pleased with the state's decision to hold [Mission Valley Aquatics] liable for the egregious conduct Tristen endured under its employ,” wrote her attorneys, Alicia Arant and Carey Schmidt, in an email.

Flagen’s discrimination case focused on three other former employees — Randy Folker, Zacharie Martin and Ali Bronsdon — and a sequence of events that began in summer 2015, when Folker was hired as a head swim coach and lifeguard supervisor.

“During Folker’s 2015 summer orientation, he made inquiries and comments to Flagen about her sexuality that made her feel uncomfortable,” as well as dating requests that she rebuffed, the ruling’s findings of fact state.

That behavior had died down by August, the findings stated, and Vanisko concluded that it had not fed the “abusive working environment” Flagen described.

It was a different story with Zacharie Martin, a lifeguard also hired in early 2015. “Initially, Flagen and Martin had an amicable work relationship,” Vanisko wrote, one that allegedly soon devolved into a series of lewd acts by Martin: sexual remarks, explicit Snapchat messages, and even exposing himself to Flagen, masturbating in front of her and requesting sex while she showered.

“Flagen had never encountered anything like Martin’s behavior before and it made her deeply uncomfortable,” he wrote. “Although Flagen told Martin to stop, it only slowed his conduct for a brief time and never caused it to cease.”

Actions like these are often hard to prove, wrote one of Flagen’s attorneys, Carey Schmidt, in an email. “These cases are really hard to prove because of the 'he said she said' nature of it. Often harassment only occurs between two people without witnesses and without obvious evidence.”

Vanisko himself cast Flagen’s allegations against Martin as a “‘she said, he said’ situation” with some doubt as to whether the harassment took place. Mission Valley Aquatics had tried to introduce shift records which may have shown minimal contact between the two employees. Those were rejected on procedural grounds.

But unlike the criminal justice system, which requires prosecutors to prove their charges beyond a reasonable doubt, the Office of Administrative Hearings applies a less stringent “preponderance of evidence” standard, in which a claimant must simply show that it was more likely than not that discrimination took place.

And with the evidence presented, Vanisko found that “several facts weigh heavily in favor of Flagen’s version of events.” Those facts included testimony from Flagen’s friend, Taryn Dupuis, about the explicit Snapchat messages, and from her therapist, Abigail Eyre, about the prolonged, intense treatment she had sought afterwards. He also found Martin’s testimony to be “not believable and incredibly naive.”

“Given all of these factors, it is more-likely-than-not that Flagen’s version of events was accurate insofar as the nature and type of Martin’s sexual harassment of her.”

“In this case, the evidence against Mr. Martin was pretty overwhelming,” Schmidt wrote.

Martin wasn’t the only one who had created a hostile work environment for Flagen, the ruling found. Her supervisors had also played a role.

“Flagen was hesitant to raise issues about Martin at [Mission Valley Aquatics], because she knew he was a favored employee,” the findings state. "To the extent Flagen did attempt to raise issues about Martin with Folker [the lifeguard supervisor]...Folker felt challenged and got angry. Folker himself testified that he may have told Flagen he would protect Martin no matter what depending on the context.”

Folker and Bronsdon, the director, did bring the two employees together to address their conflicts at least twice.

The first time, around November 2015, Folker — himself accused of making unwanted advances towards Flagen — had seated Martin and Flagen side-by-side in front of a whiteboard and drawn a triangle illustrating Maslow’s hierarchy of needs.

He and Bronsdon may have intended this as a team-building exercise, but “Flagen understood Folker’s use of Maslow’s Hierarchy to instruct that people with more responsibilities have more needs. Folker explained that as a swim coach with a family, Martin carried stress and was due more leniency. He pointed out that Flagen was ‘just a lifeguard.’ During the meeting, Folker praised Martin, but not Flagen.”

Flagen later testified that she “never felt so powerless and small in [her] whole life…[t]hey got me down that day.”

About two months later, Flagen tried to report Martin’s actions to director Ali Bronsdon.

“Bronsdon responded to the effect that Martin was her ‘main man’ and that she wished Flagen and Martin could just get along.” The findings of fact state that she proceeded to bring Flagen over to Martin and spoke with the latter about being nice to her, “to which Martin smirked and said, ‘Sorry.’”

“Here, [Mission Valley Aquatics] 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 an underlying cause.”

Their actions amounted not just to hostility, but outright retaliation. The Maslow’s hierarchy lesson, Vanisko found, was “a clear message from [Mission Valley Aquatics] that Flagen was not permitted to raise her concerns with management, and that the status quo would continue.”

Flagen’s case foundered on another key point. Vanisko ruled that Mission Valley Aquatics’s February 2016 decision to terminate her stemmed from inexperienced leadership, not discrimination. But overall, he concluded, “Flagen proved that Mission Valley Aquatics violated the Montana Human Rights Act when it discriminated against her illegally because of sex and retaliated against her for engaging in protected activity.”

Flagen had sought $200,000 in damages, but Vanisko deemed $50,000 in emotional distress damages, plus $9,360 for the cost of Flagen’s therapy, appropriate.

While less than the goal, it was still significant, wrote Arant, Flagen’s attorney. “Typically, in these cases, emotional distress damages are linked —directly or indirectly — to a discriminatory termination. Here, the hearing officer concluded our client’s termination was not discriminatory, but nevertheless awarded $50K in emotional distress damages.

“I think this case acknowledges that enduring sexual harassment is in itself a distinct harm worthy of compensation, regardless of any adverse employment action that may follow.”

More broadly, her colleague Schmidt believes that "this case puts employers on notice they cannot just bury their head in the sand, and not pay attention...Employers need to listen to employees and to follow up on what they hear...and do it in a way that offers a potential victim some safe harbor in reporting. Employers need to have an environment where victims feel safe to report sexual abuse and harassment.”

“This case has always been more about accountability than money, and our client feels validated today,” Arant wrote. “Tristen extends heartfelt gratitude to those who stood by her through this long and often painful process.”

Mission Valley Aquatics Center staff confirmed that neither Martin, Brondson nor Folker are still employed there, but otherwise said they had no comment. Either party will have the right to appeal the Center’s decision to the Montana Human Rights Commission until Feb. 22.

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