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Rymal v. Baergen6/8/2004
gen to plaintiff reflects him questioning why he should pay her $10,000, considering the work plaintiff actually performed for MTD. Plaintiff responded in writing, on that same letter, that she was still a part owner and therefore should receive her bonus. Plaintiff's response also indicated that she would happily accept doing the duties of billing and payroll if he returned to those duties to her. There was evidence showing that Baergen had taken away most of the MTD duties from plaintiff and given them to another individual, and that by July 2000, plaintiff's involvement was quite limited. There is also record evidence reflecting that Baergen removed MTD duties from plaintiff because she was not completing MTD bookkeeping matters in what Baergen believed to be a timely manner. Plaintiff insisted that Baergen made misrepresentations regarding her work for MTD. What is unclear from the record is the time frame that various MTD duties were removed from plaintiff's responsibility. There was general testimony by plaintiff that all of the adverse actions and verbal abuse that occurred to her took place after October 1999 when she rejected Baergen's request to resume the relationship. The husband of the woman who took over some of the MTD duties from plaintiff testified that he thought his wife started working for MTD in late 1998 or early 1999, but it could have been late 1999 or early 2000. The record contains a copy of a single MTD check made out to "cash" for bookkeeping services, dated August 1999, and endorsed by plaintiff's replacement. We opine that a fact question remains with regard to the date that Baergen removed plaintiff's MTD duties and responsibilities.
In January or February 2000, plaintiff verbally complained to Brian Fraser, Clark's executive vice-president/general counsel/human relations director, about Baergen's abusive, discriminatory, and harassing behavior and the unfair treatment that she was receiving. Plaintiff charged that Baergen acted in a demeaning manner toward her, was unprofessional, and would swear and scream at plaintiff. According to plaintiff, Fraser cut her short, indicating that he would be in town within a couple of weeks and would discuss the matter further. However, when Fraser was in town, he did not talk to plaintiff, although he spoke to Baergen, and Baergen stated that there was no problem. Fraser later told plaintiff that he did not speak to her at Clark because he did not want to make her feel uncomfortable in front of Baergen. Fraser testified, acknowledging that he received a complaint from plaintiff about Baergen's behavior and spoke to Baergen, but asserting that plaintiff never made any allegations concerning sexual misconduct or communications; there was no sexual harassment complaint. According to plaintiff, a conversation between herself and Baergen revealed that he knew that she had complained to Fraser about his behavior. A Clark-MTD employee testified that he once had an altercation with Baergen and threatened to complain to corporate headquarters about Baergen, and Baergen stated that the one thing he would never tolerate was an employee going over his head. This employee further testified that plaintiff told him that she was leaving Clark and MTD because of the actions of Baergen.
To establish a claim of quid pro quo sexual harassment in the workplace, a plaintiff must demonstrate, by a preponderance of the evidence, that (1) he or she was subject to unwelcome sexual conduct or communications as described in the statute, and (2) that the employer or the employer's agent used submission to or rejection of the proscribed conduct as a factor in a decision affecting employment. Chambers, supra at 310, quoting Champion v Nation Wide Security, Inc, 45
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