Monday, December 7, 2002
County Loses Bid to Fire Employee for Harassment of Co-Worker on Culver City Courthouse Paint Job
By a MetNews Staff Writer
Los Angeles County’s “zero tolerance” policy on sexual harassment does not require firing a veteran employee with no prior disciplinary record for a single unwanted touching of a co-worker, the Court of Appeal for this district has ruled.
Div. Three last week upheld rulings by Los Angeles Superior Court Judge Dzintra Janavs and the county Civil Service Commission that a 30-day suspension was sufficient punishment for Hulon Walker.
The construction and repair laborer has spent the last three years fighting efforts to terminate him over the incident involving a female employee who was one of several workers assigned to paint the Culver City courthouse.
A hearing officer found that Walker sat on Elizabeth Bogner’s lap without her permission and “groped Ms. Bogner by lightly touching her crotch.” But termination was an excessive penalty, the hearing officer found, because it was inconsistent with the Internal Services Department’s progressive discipline policy.
The Civil Service Commission upheld the hearing officer’s recommendation of a 30-day suspension, over objections by Walker and the county.
The county petitioned the Superior Court for a writ of mandate, which Janavs denied. While Walker could have been terminated for what he did, the progressive discipline policy applies to most employee misconduct, including sexual harassment, the judge explained, concluding that the 30-day suspension was not an abuse of the commission’s discretion.
Justice Richard Aldrich, in an unpublished opinion for Div. Three, said the denial of the writ was a proper exercise of the trial judge’s independent judgment.
Under ISD guidelines, the justice explained, progressive discipline is called for “[i]n all but the most flagrant cases.” Termination without prior discipline, the jurist noted, is reserve for such “critical incidents” as theft.
More specifically, Aldrich noted, penalties for sexual harassment range from reprimand to discharge on the first offense, and from 30 days’ suspension to discharge on the second offense. It is not until the third offense that discharge is treated as the only appropriate discipline.
Aldrich rejected the county’s argument that Walker’s conduct was so egregious that it was an abuse of discretion not to impose the maximum penalty, and that termination was a necessary deterrent to sexual harassment by other workers.
Where the hearing officer and the commission have determined an appropriate penalty that falls within the prescribed range, the justice declared, the court may not substitute a different judgment.
Attorneys on appeal in County of Los Angeles v. Civil Service Commission (Walker), B155572, were Senior Deputy County Counsel Monica M. Mauricette for the county and David M. Saldana of Van Bourg, Weinberg, Roger & Rosenfeld for Walker.
Copyright 2002, Metropolitan News Company