Client Outcomes

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 and 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 Deputy Thorn’s conduct amounted to a violation of the County’s sexual harassment policy and therefore, termination was not justified.

Deputy 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 Deputy 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 Deputy Thorn but had asked for the neck rub and found it welcome. A separate employee who was never touched by Deputy 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 Deputy Thorn had attempted to touch the employee’s breast. A fourth female courthouse employee was interviewed. Deputy 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.

Deputy Thorn had never been counseled or admonished regarding this conduct prior to the Internal Affairs investigation. Following the investigation, the Department concluded that Deputy 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 Deputy Thorn from his position. The matter was appealed to arbitration. Arbitrator Kathleen Kelly concluded that Deputy 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 Deputy Thorn thought he gave a neck rub to but the employee that did not recall the incident amounted to another technical violation of the sexual harassment policy. As for the employee, who welcomed the neck rub, Arbitrator Kelly found no violation of the sexual harassment policy. Arbitrator Kelly concluded however that Deputy 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.

Deputy 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 Deputy 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 is warranted “only in emergencies” the policy could give rise to ridiculous results. Customary acts such as a pat on the back , 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 did not show, by a preponderance of the evidence that Deputy 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 lacked jurisdiction on the theory that Deputy Thorn had not exhausted its administrative remedies. The County argued that because it was the Sheriff who had appealed the decision to the Board of Supervisors and Deputy Thorn had not cross-appealed, Deputy 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 Deputy Thorn.

The County has since appealed the Trial Court’s decision and the matter is currently pending before the 3rd Circuit Court of Appeals.