Appellate court upholds removal of supervisors for sexually harassing their subordinates

November 2, 2016

Employment Law BookTwo recent unreported Pennsylvania Commonwealth Court decisions illustrate the challenges of combating sexual harassment in the workplace, particularly when the individuals charged with enforcing the employer’s sexual harassment policies are the ones committing the harassment.

In Gardner v. State Civil Service Commission, 2016 WL 6137232, 48 PPER 35 (2016), a Pennsylvania Commonwealth Court affirmed the determination of the Pennsylvania Civil Service Commission that the Pennsylvania Department of Transportation had just cause to remove a female Assistant Highway Maintenance Manager.

The woman repeatedly sent text messages to a subordinate male coworker after he ended their intimate relationship, the court said.

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The messages, which were sexual in nature, referred to the coworker as an a**hole and jerk and threatened that “[life] at work will suck for you[.]”The coworker subsequently complained to management, prompting an investigation into the manager’s behavior. Based on the results of the investigation the DOT removed the Maintenance Manager from employment.

The manager appealed that decision to the Pennsylvania Civil Service Commission, which ruled the agency had just cause for the removal. The Commission determined that the texts were “inappropriate, demeaning and harassing,” and reflected poorly on the manager’s competence and ability to perform her managerial responsibilities, including enforcing the agency’s sexual harassment policy.

The Pennsylvania Commonwealth Court subsequently determined the DOT based its removal decision on nondiscriminatory reasons that supported a finding of just cause and affirmed the decision of the state civil service commission.

Here, even though the manager did not take any direct adverse employment action against the coworker, the court reasoned the manager’s conduct of sending numerous texts to a subordinate in her direct command, coupled with the sexual and threatening nature of those texts, created a hostile work environment for the coworker.

The appellate court also found the manager failed to sustain her burden of proving discrimination because she did not present any evidence demonstrating the similarity between her conduct and that of a male supervisor demoted for engaging in sexual harassing behavior.

Similarly, in another unreported decision, Bauer v. Pennsylvania State Civil Service Commission (Pennsylvania Department of Transportation), 2016 WL 6137233, 48 PPER 33, a Pennsylvania Commonwealth Court affirmed the dismissal of a petition for review of a state department of transportation supervisor who challenged his removal for inappropriate comments, gestures and suggestions toward a female subordinate.

The comments and gestures included the supervisor placing his finger through the opening of her hoop earrings and commenting, “I am touching your hole,” and asking the female subordinate how much it would cost for her have sex with him or to engage in sex with an animal.

Based on these findings the DOT immediately removed the supervisor for inappropriate behavior and violations of its sexual harassment policy. The State Civil Service Commission subsequently dismissed the supervisor’s appeal, ruling the supervisor’s conduct provided just cause for his dismissal from employment.

The supervisor filed a petition for review with the Pennsylvania Commonwealth Court, arguing his dismissal resulted from his refusal to accept a demotion and to sign a waiver of his legal rights. However, the appellate court denied the petition for review and affirmed the adjudication of the SCSC.

Citing the supervisor’s managerial status and his responsibility for enforcing the agency’s sexual harassment/hostile work environment policy, the appellate court reasoned the Commission presented sufficient evidence to support its finding of just cause.

The court similarly found that any settlement discussions or offers of settlement were confidential, and thus unavailable to prove or disprove the validity of the supervisor’s claim that his dismissal resulted from his refusal to accept a demotion and to sign a waiver of his legal rights.