In re the matter of College of William and Mary Case Number 5190

Hearing Date: June 11, 2001
Decision Issued: June 12, 2001

The hearing was first docketed for the 29^th day following appointment of the hearing officer. The hearing was subsequently postponed due to the grievant’s unavailability because of a family emergency. Because of unavailability of the attorneys, the hearing could not be redocketed until the 54^th day following appointment.

Grievant
Attorney for Grievant
Representative for Agency
Attorney for Agency
Three witnesses for Agency
Two Observers for Agency

Did the grievant’s actions on December 11, 2000 warrant disciplinary action under the Commonwealth of Virginia Standards of Conduct? If so, what was the appropriate level of disciplinary action for the conduct at issue?

The grievant filed a timely appeal from a Group I Written Notice issued on December 19, 2000 because of inappropriate physical contact with a female student. Following a denial of relief at each resolution step, the disciplinary action was upheld. Subsequently, the agency head qualified the grievance for a hearing.

The College of William & Mary (Hereinafter referred to as "agency") has employed the grievant for 10 years. He is a 54-year-old, level II technician. He has one active Group I Written Notice. However, this disciplinary action was for an issue unrelated to the instant case and, more significantly, it was issued subsequent to the incident that precipitated this grievance.

On December 11, 2000, a female student¹ had a question about the operation of her scanner. The student consulted a coworker who advised her to ask the grievant because he is considered the person in the office with the most knowledge of scanners. Grievant came to the student’s desk while she demonstrated the problem with her scanner. He then told the student to come to his desk so he could advise her about test procedures. Grievant sat at his desk while the student stood next to him.² The problem with the scanner involved the mechanism that moves the scanning light across the scanner glass. A large rubber band operates the mechanism. In attempting to describe the functioning of the mechanism, grievant touched the drawstrings on the pants worn by the student. In doing so, grievant’s hand brushed the student’s lower abdominal area near the pubic area. The student stepped back and grievant dropped the drawstrings.

The student returned to her cubicle and sent an e-mail to the manager expressing dismay about the incident. The manager responded promptly and arranged a meeting for the following day. Following the meeting with the manager on December 12, 2000, the student documented the content of the meeting in another e-mail. The student stated that grievant had been doing some other things over a period of time that had made her feel uncomfortable. Grievant had previously touched the student on her shoulder and waist. Although this made the student uncomfortable, she did not complain either to grievant or anyone else. She contended that grievant sometimes looked at her chest while talking with her but grievant denied this allegation.

Meetings were held by grievant’s manager and the chairperson of the sexual harassment committee, first with the student, and then separately with the grievant. The student said she did not want to have any further contact with the grievant and asked to be moved to a different work area. That move was accomplished in January 2001 when the student returned from the winter holiday/semester break. During the meeting with grievant, he said he did not recall touching the student’s drawstrings or her lower abdomen. However, he also admitted that he might very well have touched the drawstrings solely for the purpose of explaining a point about the scanner. Grievant also made a statement to the effect of, "If she [student] said it happened, then it probably did." Grievant offered to apologize to the student for making her feel uncomfortable. The apology was communicated to the student though the chairperson of the sexual harassment committee. Following consultation with human resources and the college’s attorney, it was determined that the appropriate level of discipline was a Group I Written Notice.

The agency has promulgated its own Sexual Harassment Policy.³ This policy is primarily intended to address sexual harassment issues that occur as a consequence of student/faculty/staff/guest interactions. In the instant case, because both grievant and the student are state employees, it was determined that it was more appropriate to address the issue pursuant to the Commonwealth’s Standards of Conduct policy.

The General Assembly enacted the Virginia Personnel Act, Va. Code § 2.1-110 et seq., establishing the procedures and policies applicable to employment within the Commonwealth. This comprehensive legislation includes procedures for hiring, promoting, compensating, discharging and training state employees. It also provides for a grievance procedure. The Act balances the need for orderly administration of state employment and personnel practices with the preservation of the employee’s ability to protect his rights and to pursue legitimate grievances. These dual goals reflect a valid governmental interest in and responsibility to its employees and workplace. Murray v. Stokes, 237 Va. 653, 656 (1989).

Code § 2.1-116.05(A) sets forth the Commonwealth’s grievance procedure and provides, in pertinent part:

In disciplinary actions, the agency must show by a preponderance of evidence that the disciplinary action was warranted and appropriate under the circumstances.⁴ The following procedural due process is required before disciplinary action:

Prior to . . . any disciplinary suspension, employees must be given

1. an oral or written notice of the offense,
2. an explanation of the agency’s evidence in support of the charge, and
3. a reasonable opportunity to respond.⁵

To establish procedures on Standards of Conduct and Performance for employees of the Commonwealth of Virginia and pursuant to §§ 2.1-114.5 of the Code of Virginia, the Department of Personnel and Training⁶ promulgated Standards of Conduct Policy No. 1.60 effective September 16, 1993. The Standards of Conduct provide a set of rules governing the professional and personal conduct and acceptable standards for work performance of employees. The Standards serve to establish a fair and objective process for correcting or treating unacceptable conduct or work performance, to distinguish between less serious and more serious actions of misconduct and to provide appropriate corrective action. Section V.B of the Commonwealth of Virginia’s Department of Personnel and Training Manual Standards of Conduct Policy No. 1.60 provides that sexual harassment may be considered a Group I, Group II or Group III offense depending upon the nature of the violation.

The Commonwealth’s policy regarding sexual harassment utilizes the definition published by the United States Equal Employment Opportunity Commission and states, in pertinent part:

3.. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment.⁷

Grievant’s position is that what occurred was not sexual harassment. The facts indicate otherwise. The policy cited above makes clear that it is not the actor’s intent, but rather the recipient’s perception that determines whether a particular action constitutes sexual harassment. When one’s hand touches or brushes the lower abdominal area of a member of the opposite gender, this must be deemed physical conduct of a sexual nature, whether or not it was intended to be sexual in nature. The lower abdominal area can include or be so proximate to the suprapubic area that it is normally not touched by anyone other than a physician or a spouse/intimate partner. The evidence in this case demonstrates that grievant’s touching was offensive to the student. In fact she found it sufficiently offensive to request that she be placed in a different work area and have no further contact with the grievant.

Grievant cited three cases regarding sexual harassment. The Breeden⁸ case involves an isolated verbal comment, not a physical touching. The Hopkins⁹ case focused on the issues of same gender harassment and hostile work environment. The Mendoza¹⁰ case involves the failure of plaintiff to establish actionable hostile environment sexual harassment. The Hearing Officer cannot conclude that these three cases have direct relevance in this grievance case. However, even if one could somehow conclude that grievant’s actions did not meet the policy’s definition of sexual harassment, there is no doubt that his touching of the female student’s lower abdominal area was inappropriate and offensive conduct. Such conduct merits some form of corrective action.

Grievant argues that the student had never previously complained to him that any of his actions or words made her feel uncomfortable. The inference of this argument is that, had she made such a prior complaint, grievant might have been more circumspect in his conduct around the student. It is correct that grievant had no prior knowledge that his behavior was unwelcome. However, the student’s reluctance to complain earlier about less offensive touching on her shoulder or waist does not mitigate grievant’s conduct on December 11, 2000.

The grievant has acknowledged that he did reach for and hold the drawstrings of the student’s pants. He has also inferred, while he does not remember doing so, that he touched the student’s lower abdominal area ("If she said it happened, it probably did."). The grievant knew, or reasonably should have known, that a female college student might very well be offended by being touched in such a sensitive area by a middle-aged married male. Thus, whether he intended it not, grievant took an action that had a very high risk of being misinterpreted.

The grievant’s prior actions (touching the student’s shoulder and waist) were initially overlooked by the student because she believed that "some people are just touchy-feely in an innocent way."¹¹ However, when viewed in conjunction with the December 11, 2000 incident, it is entirely understandable that a shy, meek, introverted female student would be offended by grievant’s touching of her lower abdomen. Therefore, the agency has demonstrated, by a preponderance of the evidence, that the grievant did act inappropriately and offensively when he touched the drawstrings and lower abdomen of a female student.

The agency evaluated the appropriate level of corrective action carefully and concluded that the lowest level of Written Notice should be given. Group I offenses are those considered the least severe disciplinary action that could be taken. The agency could have given the grievant written counseling in lieu of disciplinary action. However, the Hearing Officer cannot conclude that counseling would have been more appropriate than a Group I Written Notice. The grievant stated to his manager that, prior to this incident, he did not see anything inappropriate about touching the student’s drawstrings. Given grievant’s lack of awareness about the ramifications of such a high-risk action, and his apparent insensitivity about his "touchy-feely" approach to female students, the agency could reasonably conclude that grievant requires a more attention-getting wakeup call.

No evidentiary weight was given to the Group I Written Notice issued on February 1, 2001 because it was issued subsequent to the Written Notice at issue herein.

The disciplinary action of the agency is affirmed.

The Group I Written Notice issued to the grievant on December 19, 2000 is hereby AFFIRMED. The Written Notice shall remain in the grievant’s personnel file for the length of time specified in Section VII.B.2 of the Standards of Conduct.

As Sections 7.1 through 7.3 of the Grievance Procedure Manual set forth in more detail, this hearing decision is subject to administrative and judicial review. Once the administrative review phase has concluded, the hearing decision becomes final and is subject to judicial review.

Administrative Review – This decision is subject to four types of administrative review, depending upon the nature of the alleged defect of the decision:

1. A request to reconsider a decision or reopen a hearing is made to the hearing officer. This request must state the basis for such request; generally, newly discovered evidence or evidence of incorrect legal conclusions is the basis for such a request.
2. A challenge that the hearing decision is inconsistent with state or agency policy is made to the Director of the Department of Human Resources Management. This request must cite to a particular mandate in state or agency policy. The Director’s authority is limited to ordering the hearing officer to revise the decision to conform it to written policy.
3. A challenge that the hearing decision does not comply with grievance procedure is made to the Director of EDR. This request must state the specific requirement of the grievance procedure with which the decision is not in compliance. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it complies with the grievance procedure.
4. In grievances arising out of the Department of Mental Health, Mental Retardation and Substance Abuse Services which challenge allegations of patient abuse, a challenge that a hearing decision is inconsistent with law may be made to the Director of EDR. The party challenging the hearing decision must cite to the specific error of law in the hearing decision. The Director’s authority is limited to ordering the hearing officer to revise the decision so that it is consistent with law.

A party may make more than one type of request for review. All requests for review must be made in writing, and received by the administrative reviewer, within 10 calendar days of the date of the original hearing decision. (Note: the 10-day period, in which the appeal must occur, begins with the date of issuance of the decision, not receipt of the decision. However, the date the decision is rendered does not count as one of the 10 days; the day following the issuance of the decision is the first of the 10 days). A copy of each appeal must be provided to the other party.

Section 7/2(d) of the Grievance Procedure Manual provides that a hearing officer’s original decision becomes a final hearing decision, with no further possibility of an administrative review, when:

1. The 10 calendar day period for filing requests for administrative review has expired and neither party has filed such a request; or,
2. All timely requests for administrative review have been decided and, if ordered by EDR or HRM, the hearing officer has issued a revised decision.

Within thirty days of a final decision, a party may appeal on the grounds that the determination is contradictory to law by filing a notice of appeal with the clerk of the circuit court in the jurisdiction in which the grievance arose. The agency shall request and receive prior approval of the Director before filing a notice of appeal.

David J. Latham, Esq.
Hearing Officer