In the Matter of ANDREW W. ENGEL, DMD, PC dba AWE DENTAL SPA andDR. ANDREW W. ENGEL individually as an Aider and Abettor Case No. 38-11Final Order of Commissioner Brad AvakianIssued September 13, 2012SYNOPSIS
Respondent Awe Dental Spa employed Complainant as a dental assistant andsubjected her to harassment based on her religion, failed to reasonably accommodateher religious beliefs, and constructively discharged her based on her religion.Respondent Dr. Andrew W. Engel aided and abetted Respondent Awe Dental Spa inthe commission of the unlawful employment practices. The forum awardedComplainant $12,000 in back pay, $10,654 in out-of-pocket expenses attributable to theunlawful employment practices, and $325,000 in damages for mental, emotional, andphysical suffering, and found Respondents jointly and severally liable for thesedamages. The forum also required Respondent Dr. Engel and his staff to attendtraining on recognizing and preventing religious discrimination. ORS 659A.030(1)(a),ORS 659A.030(1)(b), ORS 659A.030(1)(g), ORS 659A.033, ORS 659A.850.The above-entitled case came on regularly for hearing before Alan McCullough,designated as Administrative Law Judge (“ALJ”) by Brad Avakian, Commissioner of theBureau of Labor and Industries for the State of Oregon. The evidentiary part of thehearing was held on December 13-15, 2011, in the Lyon Room of the DeschutesServices Building, 1300 NW Wall St., Bend, Oregon. Closing arguments were held onFebruary 16, 2012, at the Portland offices of the Bureau of Labor and Industries.The Bureau of Labor and Industries (“BOLI” or “the Agency”) was represented bycase presenters Chet Nakada and Patrick A. Plaza, both employees of the Agency.Complainant Susan Muhleman was present throughout the hearing and was notrepresented by counsel. Respondent Andrew W. Engel, DMD, PC (“AWEPC”) wasrepresented by Jeffrey T. Eager, attorney at law. Respondent Andrew W. Engel,
individually (“Dr. Engel”), was represented by Michael F. Gordon, attorney at law. Dr.Engel, Mr. Eager, and Mr. Gordon were present throughout the hearing. During closingarguments, Mr. Nakada, Mr. Plaza, and Mr. Gordon appeared in person, andComplainant, Mr. Eager, and Dr. Engel participated by telephone. JohannaRiemenschneider, Senior Assistant Attorney General, Oregon Department of Justice,was present and made legal argument on the Agency’s behalf.The Agency called the following witnesses: Complainant; Brandy Pirtle, senior investigator, BOLI Civil Rights Division (telephonic); Lynne Georgia, Respondent AWEPC’s employee (telephonic); Pat Parkison, Complainant’s mother; KaileyMiddaugh, Complainant’s friend and former co-worker (telephonic); Brent Dodrill,Complainant’s childhood pastor (telephonic); and Respondent Dr. Andrew Engel.Respondents called Dr. Andrew Engel and Brianne Summers, Respondent AWEPC’s employee and Complainant’s former co-worker, as witnesses.The forum received into evidence:a) Administrative exhibits X-1 through X-22 (submitted or generated prior tohearing) and X-23 (created after the evidentiary portion of the hearing concluded);b) Agency exhibits A-1 through A-27 (submitted prior to hearing); andc) Respondents’ exhibits R-1 (submitted or generated prior to hearing) andR-2 through R-4 (submitted at hearing).Having fully considered the entire record in this matter, I, Brad Avakian,Commissioner of the Bureau of Labor and Industries, hereby make the followingFindings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusionsof Law, Opinion, and Order.
FINDINGS OF FACT – PROCEDURAL
1) On November 9, 2009, Complainant filed a verified complaint with the Agency’s Civil Rights Division alleging that she was the victim of the unlawful
employment practices of Respondent AWEPC in that she was required to go toScientology management training or resign and she chose to resign based on her religion. On or about March 31, 2010, Complainant amended her complaint to includeallegations that she was treated differently, harassed, denied reasonableaccommodation, and forced to resign because of intolerable working conditionsimposed by Respondents and that she was retaliated against for her opposition to thediscrimination on the basis of religion. The amended complaint named Dr. Engel as anaider and abettor. On June 25, 2010, Complainant amended her complaint a secondtime to specifically describe acts of alleged aiding and abetting by Dr. Engel. After investigation, the Agency found substantial evidence of an unlawful employmentpractice and issued a Notice of Substantial Evidence Determination on October 4, 2010.2) On September 14, 2011, the Agency issued Formal Charges alleging that:(a) Respondents unlawfully discriminated against Complainant in termsand conditions of employment by harassing her based on her religion inthat Respondents subjected her to a hostile work environment, in violationof ORS 659A.030(1)(b) and OAR 839-005-0010(4)(a) and (b);(b) Respondents failed to reasonably accommodate Complainant'sreligious beliefs by denying her request to not attend a symposium thatComplainant believed was associated with the Church of Scientology, inviolation of ORS 659A.030(1) and ORS 659A.033(1);(c) Respondents retaliated against Complainant in terms and conditions of employment based on her opposition to attending the symposium, inviolation of ORS 659A.030(1)(b), ORS 659A.030(1)(f) and OAR 839-005-0033;(d) Respondents constructively discharged Complainant by intentionallycreating or intentionally maintaining discriminatory working conditionsrelated to Complainant’s religion, thereby creating working conditions sointolerable that a reasonable person in Complainant’s circumstanceswould have resigned because of them and Respondents desired toComplainant to leave her employment as a result of the intolerableworking conditions or knew or should have known that Complainant wascertain or substantially certain to leave Respondents' employment as aresult of the working conditions created by Respondents, in violation of ORS 659A.030(1)(a) and OAR 839-005-0011;