Friday, January 06, 2006

AAG termination for sexual harassment upheld

Sorge v. Office of the Attorney General, 2006 UT App 2.

The court of appeals upheld John D. Sorge's termination for sexual harassment. Sorge was terminated for making graphic sexual comments to a paralegal on two different occasions. This after being placed on corrective action for previous offensive conduct.

The court considered three issues. First, it held that due process did not require that Sorge be allowed to present witnesses and evidence regarding earlier disciplinary actions that were not the basis for his termination. It then held that Career Services Review Board did not abuse its discretion by upholding his termination. Lastly, the court held that the his sanction, termination, was not disproportionate to his conduct.

In analyzing the last issue, the court resolved what appeared to be inconsistent burdens of proof used by previous panels of the court to gauge proportionality. The first standard, from Lunnen v. Department of Transportation, 886 P.2d 70, 73 (Utah App. 1994), puts the burden on the agency to show "that the discipline was not disproportionate to the conduct." The second standard, used in Kelly v. Salt Lake City Civil Service Commission, 2000 UT App 235, 8 P.3d 1048, puts the burden on the employee to establish that the agency acted inconsistently in imposing sanctions. The employee must present evidence from which the CSRB could reasonably find a "relevant inconsistency."

The court resolved the discrepancy by noting that both parties had agreed that there were no other similarly situated employees to compare to Sorge. So it used the Lunnen test by default and put the burden on the State. If held that since Sorge had been warned of his conduct before, termination was not a disproportionate sanction.

The logical extension of the court's resolution of the Lunnen/Kelley discrepancy is that Kelley should be used if there are similarly situated employees. This suggests, however, that the burden is on the agency all the time. If Lunnen is the default test, but that agency knows of similarly situated employees that were treated the same, it must produce that evidence or default to the Lunnen test.

On a more general note, sexual harassment in the workplace stopped being cool about the time WKRP in Cincinnati went off the air. Who are these people that still think the workplace is their own private pervert party? I can't believe we still litigate this stuff in court. Come on, grow up. This isn't third grade. Nobody thinks your poop jokes are funny.


Post a Comment

<< Home