GLENN COUNTY COURT GRANTS PETITION FOR
WRIT OF ADMINISTRATIVE MANDAMUS TO ANNUL TERMINATION OF DEPUTY SHERIFF
Many
sexual harassment policies prohibit “unnecessary and unwanted”
touching at the workplace. The
central question to whether conduct amounts to a violation of such a
policy is what is “unnecessary or unwanted”?
Does shaking hands, a pat on the back, hug, or shoulder rub
automatically constitute sexual harassment?
Does such a policy permit touching only “in emergencies”? These
issues were recently addressed in the matter of Don Thorn v. Glenn
County, via a Petition for Writ of Administrative Mandamus under CCP
1094.5 involving the termination of a Glenn County Deputy Don Thorn for
alleged violations of the county’s sexual harassment policy.
In sum, Glenn County Superior Court Judge Joseph B. Harvey agreed
that touching must be analyzed on a case-by-case basis to take into
consideration the entire set of circumstances, otherwise rigid
interpretation to “unnecessary or unwanted” touching could result.
The court found that the county had not proven by the weight of
the evidence that Thorn’s conduct amounted to a violation of the
county’s sexual harassment policy and therefore, termination was not
justified.
Thorn
worked at Glenn County Superior Courthouse in the fall of 2002.
The evidence showed that during that time, he gave a brief neck
rub to an employee, who later complained that the neck rub was
unsolicited. The evidence
showed that her complaint was initiated only after she came to believe
that Thorn was the source of rumors concerning the paternity of her
unborn child. These rumors
were subsequently deemed to be generated by someone else.
The complaint was investigated and other female courthouse
employees were interviewed. One
employee, who classified herself as
“the neck rubber” for the office and frequently “hugger”
of other employees, received a neck rub from Thorn, but had asked for
the neck rub and found it welcome.
A separate employee who was never touched by Thorn recalled an
incident where Thorn had placed his hand on the desk while they were
looking at a piece of paper. Although
she did not feel “threatened in any way” she said that she had felt
uncomfortable, however, she made no mention of feeling uncomfortable at
the time of the incident to Thorn or anyone else.
In the Notice of Termination, the sheriff concluded that Thorn
had attempted to touch the employee’s breast.
A fourth female courthouse employee was interviewed.
Thorn believed that he may have given her a neck rub, however,
that employee did not recall such an incident.
The only thing she recalled was where he had placed his hand on
her shoulder while talking outside the courthouse on the courthouse
steps. She noted she was
old “enough to be his mother” and did not feel he was coming onto
her.
Thorn
had never been counseled or admonished regarding this conduct prior to
the Internal Affairs investigation.
Following the investigation, the department concluded that Thorn
had violated Glenn County’s sexual harassment policy, which prohibited
all “unnecessary or unwelcome touching on the basis of sex or other
protected basis” and terminated Thorn from his position.
The
matter was appealed to arbitration.
Arbitrator Kathleen Kelly concluded that Thorn’s conduct with
respect to the first employee, the unsolicited neck rub, amounted to a
technical violation of the county’s sexual harassment policy.
She agreed that the sheriff’s conclusions that Thorn had
attempted to touch the employee’s breast were not supported by the
evidence, but concluded that placing his hand on a desk in close
proximity to the employee constituted a technical violation of the
policy. She also concluded
that Thorn’s thinking he gave a neck rub to the employee who did not
recall the incident amounted to another technical violation of the
sexual harassment policy. As
for the employee, who welcomed the neck rub, Kelly found no violation of
the sexual harassment policy. Arbitrator
Kelly concluded however, that Thorn was capable of continuing in a law
enforcement capacity and that termination was excessive.
She concluded that a lengthy suspension would be an appropriate
remedy.
The
county appealed the matter per the MOU, to the board of supervisors.
The board reversed the arbitrator’s decision and concluded that
termination was warranted. The
board concluded that the county’s sexual harassment policy prohibited
any touching, “except in an emergency”, and that any one of the
incidents would support termination.
Thorn,
represented by Tawni Olson of Goyette & Associates, Inc., filed a
Petition for Writ of Administrative Mandamus seeking judicial review of
the decision. The court, after hearing the matter and reviewing the
administrative record, concluded that the findings that Thorn’s
conduct had violated the sexual harassment policy was not supported by
the weight of the evidence. Specifically,
the court concluded that the board misconstrued the county’s sexual
harassment policy when applying it to the circumstances, noting
that as interpreted, touching warranted “only in emergencies” could give rise to ridiculous results. Customary acts such as a pat on the back, or a handshake,
could be construed as a violation of the policy and as here; gestures of
kindness, gestures that other employees engaged in would be deemed
violations of the policy. The
court found that with respect to each employee the county did not show,
by a preponderance of the evidence, that Thorn’s actions were
motivated on the basis of sex or other protected basis, and that the
county had not carried its burden to prove that misconduct had occurred.
After issuance of its tentative decision,
the county objected to the court’s decision, arguing that the court
lacks jurisdiction on the theory that Thorn had not exhausted
administrative remedies. The
county argued that because it was the sheriff who had appealed the
decision to the board of supervisors and Thorn had not cross-appealed;
Thorn had not exhausted his administrative remedies.
The court, upon review of the MOU, noted that the board was
vested with the final decision-making authority, and the MOU did not
require a cross-appeal once the matter had been appealed.
The court also noted that the county’s position would give rise
to unintended and absurd results. For
example, an employee could receive relatively minor discipline and
decide for whatever reason not to appeal the decision to the board.
The county could then appeal to the board and the board could
issue a penalty, however draconian, that the employee would be barred
from judicial review for failure to exhaust administrative remedies.
The court denied the county’s objections and issued its
decision granting the petition and ordering reinstatement of Thorn.
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