Parking referee winds it charging that city of Ann Arbor retaliated for sexual harassment complaints
By: Liz Cobbs, News Staff Reporter, The Ann Arbor News (Reporter Sheena Abercrombie contributed to this report.)
Lois McWherter's lawsuit against the city of Ann Arbor sends a clear message to women; It's OK to report sexual harassment in the workplace and it's illegal for employers to retaliate against them.
So says attorney James Fett after a Washtenaw County Circuit Court jury awarded $255,000 in damages to his client, McWherter, on Friday.
McWherter, a city parking referee, sued Dean Bowerbank, an operations analyst in the transportation department, for sexual harassment. McWherter also sued the city of Ann Arbor and her supervisor, John Avendt, transportation division manager, for retaliating against her because of her complaints of sexual harassment, which go back about three years.
While elated with the outcome, a still-shaking McWherter said she did not want to comment but preferred Fett do so.
"I'm very gratified the system worked in this case," Fett said. "That's what you worry about in a sexual harassment case. In the 1980s, only 39 percent of sexual harassment cases were successful. Now, the statistics are getting better.
"Women always fear that sexual harassment is just a fact of life, and they don't report it because no one will believe them. But, women don't have to put up with it."
Mayor Ingrid B. Sheldon said Friday night that she did not know if the city would appeal. Assistant City Attorney Robert West said the city has 21 days after a judgment is filed to decide on an appeal.
Sheldon said she was surprised at the outcome, saying the city's legal staff felt Ann Arbor had a good case.
"We had indication from (legal staff) that we should feel pretty comfortable with pursuing it in court after we were unable to settle out of court," the mayor said. "Evidently they were wrong, or rather the jury thought otherwise."
A seven-member jury of four women and three men deliberated for nearly two days before reaching their verdict late Friday afternoon. The jury found that:
- Bowerbank sexually harassed McWherter but did not create a hostile work environment nor retaliated against her. Also, the city of Ann Arbor did not fail to take prompt action after learning about it.
- Avendt retaliated against McWherter. As a result, McWherter suffered mental distress, anxiety and physical pain. Damages awarded for this was $20,000; future damages for loss, sick days and vacation pay totaled $15,000 for 1995-1997 - $5,000 for each of the three years. No medical damages were awarded.
- The city of Ann Arbor retaliated against McWherter after she reported that she was being sexually harassed. As a result, McWerter suffered mental distress, anxiety and physical pain. Damages awarded for this was $50,000; future damages for 1995-1997 totaled $150,000 - $50,000 for each of the three years. Damages for loss of sick days and vacation pay was $20,000.
The three week old trial consisted mostly of testimony from former and current city employees who knew about problems between Bowerbank and McWherter.
McWherter recounted her experiences with Bowerbank touching and grabbing her inappropriately and making comments about parts of her body, such as having "shapely hips."
McWherter also testified that she was retaliated against in different ways by Avendt, one of which was receiving poor evaluations of her work after she filed her sexual harassment complaint.
Bowerbank's testimony consisted of denying all of McWherter's allegations as he had from the beginning.
Earlier this year, an investigation conducted by city Personnel Manager Robert M. Scott Jr. wrote in his report that he believed "the evidence provided indicates that Dean has engaged in sexual harassment." After his investigation, Scott recommended that Bowerbank receive a one-day suspension without pay. The recommendation is still being appealed, Ferris said Friday.
Washtenaw County Circuit Judge Patrick J. Conlin, who presided over the case, instructed the jury at the beginning of the trial not to consider the report's findings in deciding McWherter's claims against Bowerbank.
West said he was "surprised by the verdict." He said the city's strongest defense was the psychological testimony. Both sides had psychological experts testify during the trial.
"Our central theme was that her perception (of being sexually harassed) was not necessarily reality," West said. "We never argued that she was being untruthful. We thought our evidence came in very well and we thought the jury would agree with us. I guess the jury was trying to send a message to employers in general."
That message has not escaped city officials. Regardless of whether the city decides to appeal, Sheldon feels changes in the system are imminent.
"When you talk about harassment in the workplace, there are new standards and we are all going to have to adapt," she said. "Before there was an accepted tolerance that boys will be boys and girls will be girls. That can no longer be tolerated.
"There has to be an assumption that some behaviors are not tolerable," she said, "...Old standards are not acceptable for business, whether government municipalities or the corner store at the end of the street."
Bowerbank's attorney Don Ferris said he was "happy for his client" because the jury found that Bowerbank did not retaliate against McWherter.
Fett said the strongest factor in the case was McWherter because the jury believed her. And juror Gail Bauer of Chelsea said that's how the jury's decision was reached.
"Lois' testimony was strong in relation to the evidence that was presented," Bauer said after the case was over. "There were weaknesses in Bowerbank's testimony. He could not give an explanation to anything."
Bauer also said the case was an eye-opener for her because she thought "men and women were treated equally" in the workplace.
"I learned that there are a lot of men who are more prejudiced than I thought," Bauer said.
Because the case has been televised nationally by "Court TV," Fett said, it was a nationwide lesson.
"I'm really happy that Court TV covered this because this is an education for the country in sexual harassment," he said.
