While enrolled in the Bryman College dental assistant program, Candace Wahl was placed in an unpaid externship at Dash Point Family Dental Clinic. The clinic was co-owned and operated by Dr. Don S. Moore. Candace did well in her externship and received two (2) favorable written evaluations. According to the clinic’s office manager, Dr. Moore liked towork with her.
After completing her externship, she was hired by Dr. Moore’s clinic in a full time capacity. A few months after her hire, the doctor began to make inappropriate and sexually explicit comments to Candace. These comments included discussions about his wife’s preferences during sex, his physical attraction to Wahl’s mother (Wahl’s mother was a patient), comments about oral sex, his sex life and the size of his penis. In addition, the doctor would comment about the bodies of female patients and employees, including Wahl.
In the final months of her employment, the doctor’s sexual comments became more graphic. His office manager, testified that she heard the doctor’s comments. She also testified that Dr. Moore demanded that the office manager perform oral sex on him. He also asked the office manager to buy condoms so he could have sex with her on the conference room table. Apparently, this conduct caused the office manager to warn externs about Dr. Moore and describe him as a “pervert.”
Candace, like most young people in this circumstance, tried to ignore the doctor and just do her job, however, the doctor would not stop. On Monday, February 23, 2004, Dr. Moore told Ms. Wahl that he wanted her to watch him masturbate. Later that day, he asked her to accompany him to the darkroom so he could teach her how to duplicate patient films. While in the darkroom, Wahl could smell lotion and hear the doctor masturbating. The doctor also asked Wahl to stop what she was doing and turn around so he could “finish faster.” Wahl refused to turn around and told the doctor that what he was doing was wrong. This incident ended when Wahl’s wife, a dental hygenist at the clinic, knocked on the darkroom door. Wahl quit the following Monday. She would later report this to the police.
After Wahl quit, Dr. Moore instructed the office manager to write a letter denying any sexual misconduct occurred between the them, that is the doctor and the office manager. The doctor also directed the office manager to write letters of reprimand, back date them and place them in Wahl’s personnel file. The doctor would later admit to back dating the documents but claimed the letters accurately reflected violations of clinic policies.
At trial, the judge found Dr. Moore’s explanations not credible and felt that he fabricated events. The trial judge found that Wahl had been wrongfully discharged in violation of Washington’s public policy against gender discrimination. The appellate court agreed with the trial judge explaining that an employee can be terminated either expressly or constructively. An express termination is one where the employee is told, “You’re fired.” Here the court felt that Ms. Wahl was constructively terminated (also referred to asconstructive discharge) in that the doctor “made working conditions so intolerable that a reasonable person would have felt compelled to resign.” The court also held that, as a small employer, one that does not fit the definition of an employer under Washington Law Against Discrimination (employers with 8 or more employees), Dash Point Family Dental Clinic could be held accountable under Washington’s common law. For those interested in reading more about the court’s reasoning, click here.
The Bottom Line:
At one time, some employers felt, that since they did not employ 8 or more people, they were immune from laws protecting our citizens against discrimination. That is not the case. While an employee that brings suit against an employer with less than 8 people, may not have the same arsenal of tools available, as they would if their claim were brought under the Washington Law Against Discrimination, they still are able to vindicate their rights in court.
I think we can all agree that the doctor not only crossed the line but went way over into the next county. Dr. Moore was fortunate that Ms. Wahl had this trial in front of a judge since the result in front of a jury would probably have been far worse.
Employers, when an employee leaves use common sense.
First, conduct an exit interview. That way you define the basis for their departure and any potential claims that might be out there.
Second, never, did I say Never? Well I meant, NEVER!!! Never recreate documents or back date documents. That only creates suspicion. I know there are times when employers fail to document an event or complete a form. If you feel a need to document an employee’s “sins” following their departure, then do it in a memorandum form, after talking to your lawyer.
Employees, remember that you have the burden of proving an intolerable workplace in the event you contend you were constructively discharged. The law presumes that you quit unless you were fired or laid off. This is important because your unemployment benefits could be denied if you fail to prove constructive discharge and it could also impact the amount you will be able to recover in a later lawsuit.