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In re
State of New York
Department of Labor
and
118 LA (BNA) 1817
N. Y. State Disciplinary Panel Adm. Case No. 03-DIS-048
November 10, 2003
By Notice of Discipline (NOD) dated
January 9, 2003, a three-day suspension was requested for the Grievant for
misconduct arising out of an incident on August 12, 2002 with a co-worker, A__.
The NOD charges the Grievant with violating the Attorney General’s Executive
Order 2.2 by engaging in prohibited workplace harassment of A__ on account of
her religion.
Executive
Order 2.2 states that workplace harassment includes verbal conduct “that
denigrates or shows hostility toward an individual because of ... her
...religion ... and that: (a) has the purpose or effect of creating an
intimidating, hostile or offensive environment ...” Workplace harassment “may
include ... epithets, slurs, negative stereotyping, or threatening,
intimidating, or hostile acts that relate to ... religion”.
The NOD specifically charges that
during a heated discussion with A__ the Grievant “repeatedly, derisively and
sarcastically referred to [her] as ‘a Christian lady’ ”and “called her ‘a
hypocrite’ and stated ‘You go to church? Your pastor should see you now.’ ”
These comments, it is asserted, “were made loudly, in a provocative manner in
front of other staff members, reducing A__ tears and causing her absence from
the office for two days. Further, your words had the effect of creating an
intimidating, hostile and offensive workplace environment.”
W__, an Assistant Attorney General in
the Investor Protection Bureau where the Grievant worked, testified that on
August 12, 2002 at about 5:00 p.m. he had been called to the scene of a loud
disturbance near his office where he witnessed an argument between the Grievant
and A__ about the use of a shopping cart or tool that A__ had. A__ told the
Grievant not to use the cart or tool without telling her and the Grievant
replied that she would use it when she felt like using it. W__ heard the
Grievant engage in name calling, profanity, curses and comments about A__ not
really being a “Christian lady” or “church lady” and told her “fuck you”
repeatedly. When W__ separated them and took A__ to his office she was upset
and trembling. The Grievant continued cursing at A__.
H__, the Deputy Bureau Chief, also
heard the Grievant shouting loudly to A__ about “you Christian lady”. B__,
Deputy Attorney General for Operations, was head of the EEO Committee which
investigated the August 12th incident and concluded that the Grievant “went
over the line” by rebuking A__ for her religious beliefs and that the Grievant
had violated EO 2. In the course of the investigation he spoke with the
Grievant twice and both times she admitted she had made the statements
attributed to her.
The Grievant, a paralegal with the
Department of Law for 20 years, admitted that she had cursed at A__ and
sarcastically criticized her for not really being a “Christian lady” or “church
lady” but said that she was only responding to the curses A__ directed toward
her in the course of their argument. A__, she said, had told her “I’ll kick
your m—f—ass if you don’t keep your m—f—hands off [the empty wagon]” and the
like. She denied calling A__ a religious “hypocrite”.
In the absence of testimony from A__ or
her physician I cannot conclude from the evidence before me that her asserted
absence for the two days following August 12th was caused by the derisive use
by the Grievant of references to A__ not being a “Christian” or “church”lady.
Accordingly, I cannot assess whether A__ felt intimidated by such remarks or
felt that the Grievant had thereby created a workplace environment which was
hostile and offensive to her, a necessary part of the EO’s definition of
harassment.
Apparently the State believed that the
essence of the charged harassment was the Grievant’s admitted accusation to A__
that she was not really a “Christian lady” or “church lady”. However, such
inappropriate, hostile or even deplorable language by a co-worker, used during
a verbal confrontation between them on the instant occasion and not otherwise
as far as we know from this record, does not amount to the creation of a
hostile workplace environment within the current meaning of the law. I have not
been provided with any contrary arbitral or other judicial interpretation of
the definitions of the Attorney General’s Executive Order 2.2 and I am
reluctant to give new meaning to words used therein which have been interpreted
differently by the courts in analogous circumstances. “Workplace Harassment” is
omitted from the Statement of Policy contained in Par.A of the Executive
Order—perhaps based on the recognition that job harassment has been judicially
incorporated into the broader “discrimination”—and is dealt with separately in
Par.B as a definition.
From her admissions it is clear that
the Grievant acted in a most inappropriate way by her use of religion-based
criticism of A__ and it is fitting that the Attorney General’s Executive Order
attempts to sanction those who do so. However, express job-related penalties
can only be imposed for violations of express or emergent prohibitions and the
requirements of neither the conjunctive phrases of Par. B nor of its concluding
sentence have been met. To repeat, the record does not establish that the
Grievant’s conduct met the definitional standards of the Executive Order.
I deny
the State’s request for a three-day suspension of the Grievant.
Beverly
Gross, Arbitrator.