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Wadoc Investigation of Allegations of Age and Sexual Harassment and Retaliation Monroe Cc 2001

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r.
MARCIA B. RUSKIN

Attorney at Law
Consultation in Fair Employment Practices

CONFIDENTIAL
STATE OF WASHINGTON
DEPARTMENT OF CORRECTIONS

INVESTIGATION OF ALLEGATIONS OF
AGE AND SEXUAL HARASSMENT AND RETALIATION
AT THE

MONROE CORRECTIONAL COMPLEX

MARCH - MAY 2001

(360) 437-0175 - E-mail. ruskin(cDolympus.net - Fax (360) 437-0871
46 Village Way, Suite 176 • Port Ludlow, WA 98365

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..

MARCIA B. RUSKIN

Attorney at Law
Consultation in Fair Employment Practices

CONFIDENTIAL
STATE OF WASHINGTON
DEPARTMENT OF CORRECTIONS
INVESTIGATION OF ALLEGATIONS OF
AGE AND SEXUAL HARASSMENT AND RETALIATION
AT THE

MONROE CORRECTIONAL COMPLEX

I.

INTRODUCTION

I was hired by the Washington State Department of Corrections, to
investigate allegations brought by Person A. an employee at the Monroe
Correctional Complex (MCC), that she was subjected to harassment based on her
gender and her age, specifically because she was a young and attractive female.
She also alleges that rumors about her conduct with the Superintendent were not
only false, but created a sexually hostile working environment for her. Additionally.
she alleges retaliation. Following my investigation I conclude that Person A was not
harassed because of her appearance. I also do not find that her managers engaged
in retaliation. I do conclude. however, that she was probably subjected to a hostile
working environment and that her managers failed to take appropriate steps to curb
rumors that she was having an intimate relationship with the Superintendent.
First I describe the issues I considered. Next I describe the procedure that I used.
This is followed by the information I collected, my analysis of this material and the
conclusions I reached concerning each issue. Finally, I set out a summary of my
conclusions.

II.

ALLEGATIONS
A.

Person A alleges she was harassed on the basis of her age and
gender by older female co-workers and supervisors when she worked
in the MCC Mail Room, the Business Office and the Superintendent's
Office because she is "an attractive young female".

(360) 437-0175 • E-mail. ruskin@olvmpus.net • Fax (360) 437-0871
46 Village Way, Suite 176 • Port Ludlow, WA 98365

CONFIDENTIAL
B.
Person A contends that she was sexually harassed when
Person AA, manager at MCC, spread rumors both at the facility and in the
community that he found her and Superintendent leslie Ryder, Jr., in a
compromising situation in the Superintendent's office.
C.
Person A alleges that she was sexually harassed and retaliated
against by DOC senior management when they failed to follow DOC procedures
once they became aware of her concerns. Specifically she alleges that Dennis
Thaut, NW Regional Administrator, not only failed to follow DOC procedures but
that he also failed to follow through on his promises to Person A regarding his
response to her allegations. Person A also alleges that she and Ryder were
retaliated against by lynn Delano, Assistant Deputy Secretary, Office of
Correctional 'Operations, when Delano investigated Person A and Ryder rather
than Person A's allegations of sexual harassment.
III.

PROCEDURE

I interviewed 28 DOC employees1 between March 12 and April 16, 2001.
Each witness was interviewed individually, all but tw0 2 were interviewed face-toface, and some were interviewed twice. The interviews were conducted at the
Washington State DSHS Facility in Monroe and at MCC.
A Declaration or written statement signed under penalty of perjury was prepared
for each witness during hislher interview. Each witness was given written
instructions for correcting the Declaration and allotted five business days in which
to put the corrected and signed statement into the mail. Witnesses were also
advised that if they failed to return the Declaration in a timely manner I would use
their draft Declaration as their testimony. Only one witness failed t03 return her
Declaration.
I also informed each witness of the sensitivity of the issues addressed and
admonished them not to disclose the allegations or the information we discussed

I A list of those interviewed and their relative working relationships is attached to
this report. Those who were interviewed twice are so indicated by an asterisk (*) next to
their names'
2 Two witnesses were interviewed by telephone: Lynn DeLano and Person F.

3 This witness, Person D, was interviewed twice. She returned the Declaration
prepared during her first interview, but not the second.

2

CONFIDENTIAL
to co-workers.
Additionally, each person was advised that participating in an investigation such
as this one is considered protected activity under State and Federal law as well
as DOC policies and procedures. They were requested to report as soon as
possible any action they felt was retaliatory, directed either at them or at any
other witness. In addition, each manager was instructed not to retaliate against
any. of hislher employees who were interviewed. Aside from Person A's initial
allegations of retaliation, as of the date of this report, no witnesses have reported
they were targeted for reprisal.

III.

FACTUAL INFORMATION PROVIDED, ANALYSIS AND
CONCLUSIONS REACHED
A.

Background

Person A began working as a Temporary Mail Machine Operator in
the Twin Rivers Unit (TRU Mail Room at MCC on February 2,1998. Initially she was
_ b y Person G,
From January 11, 1999 to May 11,
1999 she was supervised y ergeant eresa l. Cohn, among others. Cohn
evaluated Person A at the end of her probationary period as "work[ing] hard and
diligently and ... successfully [meeting] all the expectations of a Mail Machine
Operator 3." Person A was notified on January 25, 2001 that she was nominated by
Cohn for the Fourth Quarter MCC Employee of the Quarter Award. Person A also
received an undated thank you note from the family of an inmate while she was in
the Mail Room for providing information regarding what an inmate may receive and
procedures followed during visits.
With the consolidation of the TRU and three other facilities into the Monroe
Correctional Complex, TRU Mail Room staff was moved to the Mail Room at the
Washington State Reformatory (WSR). Associate Superintendent Willie Daigle
oversaw the consolidation of the Mail Rooms and Person C became the direct
supervisor of the staff of the consolidated Mail Room. Person A became a
Permanent Mail Machine Operation on January 11, 1999. On August 12, 1999,
all Mail Room staff, including Person A, received a Letter of Expectation from
Daigle concerning a lack of communication that caused dissension among the
Mail Room staff.

M,_

Person A received a Temporary Appointment as a Fiscal Technician in the
Office of Inmate ACCOU. nts in the Business Office~2, 1999. In that
position her
.
was Person
Person A failed

3

CONFIDENTIAL
the test that would have made her eligible to become a Permanent Fiscal Tech.
Person A became the Office Assistant Senior in the MCC Superintendent's Office4
on August 21, 2000, following an open application process. This was a newly created
who
position. Person A w~on a, Secretary
became Person A ' s ~Person B described Person A on her
January 30, 2001 Employee Development and Performance Plan as :
a quick learner [who] has eagerly taken on new tasks. Her
upbeat personality has been an asset to this office. Her
telephone skills are excellent and she is to be commended for
her tact when dealing with difficult individuals. Her
organizational skills are excellent. She organized several
areas 'of the office. Person A is a team player who
understands the goals of this office and strives to do her part
in reaching them. She is loyal and uses the chain of
command. She is punctual and willing to stay until a job is
completed.
Person A was also commended in this evaluation for her contributions to the
lunchroom Improvement Committee and the Safety Committee.
Person A filed a DOC Internal Discrimination Complaint on February 20, 2001
alleging age and sexual harassment. In this complaint Person A claims she was
treated poorly while working in the Mail Room, the Business Office and the
Superintendent's Office by older employees because she is "an attractive young
woman". Person A also filed two Employee Conduct Reports on February 21,
2001. in which she alleges she was subjected to sexual harassment and
retaliation while working in the Superintendent's Office. She attributed this
Northwest Regional
misconduct to Person AA, manager,
Administrator Dennis Thaut, and Assistant Deputy Secretary for the Office of
Correctional Operations lynn Delano.

4 There is some disagreement about whether Person A was the only one who
applied or if an applicant from DSHS was also considered.

4

CONFIDENTIAL

DOC's former Sexual Harassment Policy, Policy Number 853.025, dated
February 24, 1992, directed employees who believed they were the target of
unwelcome "sexual behavior"to immediately notify the harasser and his/her
supervisor of the offensive conduct, and, in certain circumstances, they were also
instructed to notify the appropriate appointing authority and personnel officer
and/or the DOt Work Place Diversity Section. Employees were informed of their
right to file a formal Internal Discrimination Complaint.
DOC Policy 853.025 states that upon becoming aware of alleged sexual
harassment, supervisors were to promptly notify the respective personnel office
and the appointing authority. Management was then to ensure that an
investigation was conducted.
DOC's February 15, 2001 Sexual Harassment Policy Directive, DOC 850.625,
provides that all DOC employees are guaranteed a work environment free of
"unsolicited, unwelcome, and inappropriate sexual behavior" and that the
Department will take active measures to prevent such harassment from
occurring. The policy also provides that: "The Department will promptly
investigate allegations of sexual harassment and where sexual harassment has
been substantiated in a fact-finding process, will take appropriate corrective or
disciplinary action(s), up to and including dismissal." (Emphasis in original).
DOC Policy 850.625 recommends that employees who believe they are the
target of harassment inform their "Supervisor, Appointing Authority, Human
Resource Consultant. and/or Workplace Diversity Section" of the unwelcome and

5

CONFIDENTIAL

harassing conduct. Additionally, this policy directs that when a supervisor is informed
of an allegation of sexual harassment, s/he "shall promptly notify the respective
Workplace Diversity designee, Human Resource Consultant, and the Appointing
Authority." Supervisors are also directed to maintain confidentiality of the alleged
sexual harassment "to the extent possible". Supervisors who fail to follow this policy
are SUbject to corrective and disciplinary action.
Under DOC Policy 850.625, when a Deputy Secretary or Regional Administrator
learns of an allegation slhe "shall ensure that the appropriate investigation is
conducted. Finally. this policy guarantees freedom from retaliation to the complaining
employee and any other employee who participates in the investigation.

8.

Harassment because "young and attractive"

Person A's first allegation is that she has been harassed on the basis
of her gender and ageS by older, and presumably less attractive, female co-workers
and supervisors during the entirety of her employment at MCC, specifically because
she is an llI attractive young woman". She says that this harassment began when she
worked in the Mail Room, continued through her tenure in the Business Office, and
persisted even after she went to work in the Superintendent's Office.
Person A says that her working environment was unpleasant in the TRU Mail Room
because she was "picked on". She says that her two co-workers, one male and one
female aced her in the middle of eir constant bickering. Person G, Person A's
says that Person A definitely did good work.
However, e contends that she comp ained to him several times that she was "doing
all of the work", which he says was impossible. He told everyone in the Mail Room
that they were each expected to carry their share of the work load and they all
discussed how to work together and make the assignments more equitable.
Person G describes Person A as an "outgoing person who joked around a lot". He
never felt she was targeted because she was a young, attractive woman or for any
other reason. Others have observed that, even after she left the Mail Room, Person
A repeatedly "came crying" to Person G whenever she had a problem. In fact, until
recently, Person G was described by at least one co-worker as

S

Person A's birthday i s - ' 1961, and at the time of her interviews she was 39 years

old.

6

CONFIDENTIAL
Person A's "biggest supporter'.
Person G says that while she was in the Mail Room, Person A told him repeatedly that
she wanted a transfer because she was unhappy with her environment and her
co-workers. In fact, he contends, even after she moved to the Business Office and then
to the Superintendent's office, Person A continuously called him to complaint about her
co-workers. However, she never attributed her unhappiness to either age or sexual
harassment.
Person A's chief concerns of harassment during this period focus on the period of time
after the TRU Mail Room merged with the Mail Room at WSR. Person A says that she
always dresses nicely and wears make-up every day, "no matter what job [she is]
doing". She contends that no one else in the Mail Room "took care of themselves" and
that her co-workers there began talking about her "big hair', her eye make-up and her
clothes. As early as her first day at work at the new location, Person A contends that an
older female co-worker swore at her for parking in "her spot". Later, she claims, her
co-workers gave her the "silent treatment". Person A says that she finally complained to
her
Person C, mainly about the fact that her co-workers
left most 0
e 0
or er to o. She believes that female employees working in the
Training Center next to the Mail Room also told Person C that Person A was "the only
one working".
One of these Training Center employees says that she complained to Person C that his
staff was smoking too close to the building, not that she felt that Person A was the only
one who was working. She adds, however, that Person A wasn't a smoker at the time
and that Person A was always working whenever she saw her in the Mail Room. The
other trainer remembers a female co-worker of Person A's complaining that Person A
was not carrying her share of the work load.
Person C says that although Person A's performance was fine, she was very moody,
crying over small things. Person C denies ever hearing anyone bothering Person A
about the way she dressed or her appearance. Nor did she complain to him that anyone
was. He says that the only thing she complained about was that people were giving her
the silent treatment. He says he reminded Person A that he had told his staff that they
didn't have to talk to a co-worker they didn't like, but that they did have to work together.
He says that no matter what he talked to Person A about, her position was always that
whatever the problem, it was never her fault.
Person A also complained to Associate Superintendent Willie Daigle while

7

CONFIDENTIAL

working in the consolidated Mail Room. Daigle says that there were "personality
problems" between Person A and some of the other women in the WSR Mail Room,
although he doesn't believe any of these were related either to Person A's age or her
gender. He viewed Person A to be part of the problem.
Daigle issued a Letter of Expectation, dated August 12, 1999 to everyone in the
consolidated Mail Room, including Person A and Person C. The letter stressed that a
lack of communication was causing dissension among the staff and that clear
communication was essential to the effective functioning of the Mail Room. Employees
were directed to treat fellow staff members with dignity and respect.
According to Person A when the TRU and WSR Mail Rooms merged, she and a male
co-worker continued to scan the mail and perform other functions as they were trained to
do at TRU. She claims that the WSR employees failed to handle the mail in this more
stringent manner and as she believes they were required to do. She says that this
caused friction between the TRU and WSR employees. Daigle says that the mail
screening process at TRU was more elaborate because most of the inmate population
there were sex offenders. The Washington State Reformatory had a different approach
because of the difference in the WSR inmate population. Apparently no one explained
this to Person A.
Person C says that Person A wanted to run things her way and he felt she wasn't
interested in hearing the ideas of others. He says that Person A had some good ideas,
but he couldn't implement them at the time. 6 Person A says that in August 1999 she told
Person C that she could no longer take the silent treatment she was receiving and the
tension in the Mail Room.
Associate Superintendent Mike Williams recalls Person A talking to him several times
about problems she was having with co-workers after the TRU Mail Room was merged
into the WSR Mail Room. He says she complained that she "didn't fit into the established
group" at WSR, but never that her concems were related to her being an attractive
young woman. When Person A said she felt her co-workers should be handling the mail
in the manner that they had at TRU, Williams tried to explain to her that that was a
decision for her supervisor. Williams says that Person A was so emotional when she
talked to him that he was concemed that the inmates would perceive her vulnerability or
that she

6 Person A also contends that Person C opened confidential mail addressed to a
Corrections Officer who was temporarily assigned to the WSR Mail Room while that employee
was under investigation, something that Person C denies. Again, the validity of this allegation is
beyond the scope of what I was asked to consider.

8

CONFIDENTIAL

might have difficulty performing her duties or driving.
Person A next applied and was selected for a temporary position as a Fiscal Technician
in the Business Office. Although she "really loved that job" Person A contends that
once again she was hara
b older female supervisors an
.
.
she was criticized b h
Person M,
an other women in her ch In of command because she
I n meet a fictiona ress code. She says that Person BB, manager
told her
that her shirt, which didn't tuck in, was too short when she lifted her arms over her head.
On another occasion she says that Person BB told her that her dress was too short
because the hem didn't touch the floor when she kneeled down. Person A. contends
that she was being held responsible for adhering to a non-existent dress code. She also
believes she was singled out for this requirement because she was young and attractive.
In any case, she contends that she always dressed "very appropriately". She claims
further that other women were similarly harassed about their appearance: one woman
who is almost exactly Person A's age was criticized for being "too skinny", while a "very
attractive 60 year old woman who is not over weight", was subjected to "verbal abuse".
I

Person M says that because they work in the TRU building, her staff is required to follow
that unit's dress code. The fact that they work with inmates daily makes it particularly
important for employees to cover their bodies.
Person BB points out that she isn't in Person A's chain of command. She doesn't recall
anyone complaining about Person A's dress and in fact Person B8 always felt that
Person A looked "very nice". She recalls, however, that on the day Person A wore a
" t o work, she suggested that she check to see if her attire met TRU's dress code.

~Kbl'r

Person A says that she also complained about her treatment to Person ee, manager
Person ee was also not in Person A's chain of command although
she is co-located with the MeC Business Office. Person ec only recalls one incident
where Person A said that a co-worker, who was apparently in charge in Person M's
absence, told her she couldn't wear what she had on: walking shorts and a matching
jackel Person ee told Person A she had no problem with what she was wearing,
although she knew that TRU restricted the wearing of shorts.
Person A says that when she raised concerns she had over Person M's supervision
with Person ee, Person ee had Person M come to talk to her. Person ee also reports
that Person M .

9

CONFIDENTIAL

told her that although she attempted to address a problem with everyone she
supervised, Person A refused to speak to her because she felt she was being singled
out When Person CC met the next day with Person M and Person A, she describes
Person A as "very upset". She stressed during th~h~t they were there
because Person A was required to meet with her~en requested to do so.
Person CC notes that even at this emotional meeting, Person A never said anything
that gave Person CC the impression Person A felt she was being harassed either
because of her age or her gender. In fact she recalls that people were always very
complimentary about Person A's appearance.
Person DO, manager,
says that Person A never complained to her
that. she was being harassed. She explains that there is a dress policy at TRU and,
among other things, it prohibits the wearing of shorts. She says that before Person A
came to work in the Business Office, she re-issued the dress policy after an employee
wore shorts.-doesn't recall ever speaking to Person A about her clothes, nor does she
recall Person BB checking the length of Person A's dress in her presence.
Only one of Person A's former co-workers in the Business Office felt that Person A was
treated poorly because she was "young, attractive and thin". This person says that she
was also treated poorly for similar reasons. Yet, confusingly, this same person says she
doesn't feel that Person M targeted people for criticism who were young and attractive.
Another of Person A's co-workers recalls that Person A was sent home at least once
(although Person A didn't mention this) when she wore things that were too short and
which this witness describes as "inappropriate". At least two other former co-workers of
Person A in the Business Office felt that the clothes that Person A wore were "very
close to the line" of what was inappropriate.
Person A also accuses Person M of being a poor supervisor. For instance, Person M
criticized employees in front of their peers and was openly disrespectful towards those
she supervised. Person A readily admits that Person M did not single her out for this
abusive behavior. She describes how Person M discouraged a temporary co-worker
from applying for a permanent position, hiring her friend, instead. Others agree that
Person M treated the entire staff poorly, including reprimanding Person A and others in
front of the staff. At least one co-worker in the Business Office reported to Person CC
seeing that Person M treated Person A poorly. Another feels that at some point Person
M began to single Person A out after she learned her supervision-by-fear tactics weren't
effective on Person A.
Person M says she didn't have concerns about the quality of Person A's work, only

10

CONFIDENTIAL

th.e s,peed with which s~e completed it. However, Person DO, Person AI~
_ a t the time, says that Person M told her that Person A was doing
~s the others. Person M, who was a friend of Person A before
becoming her supervisor, says she and Person A had conflicts because Person A
had difficulty understanding that Person M, as h e r _ could no longer treat
her primarily as her friend. Person M says, for inst~on A showed up at her
home unannounced on a Sunday; Person M tried to make Person A understand
that wasn't the way she should act towards her supervisor. Person M believes this
made Person A angry. Person DO describes Person A as "very bubbly and happy"
and someone who made her co-workers laugh. Because the staff still worked well,
Person DO felt this laughter fostered a positive working atmosphere.
Person DO says that Person A was hired as a temporary Fiscal Tech, and when
she failed to pass the test to become permanent, Person A showed up at her home"
really wildly upset Person DO tried to assure Person A that she was a valuable
employee and that they wanted to retain her. She told Person A that they would get
her the training she needed in order to pass the test. Person M says that Person A
refused to take the test again because she felt IIdegraded Person M spoke to
Person DO about offering Person A an in-training position, although these are quite
rare.
ll

•

ll

•

Virtually all of Person Mis managers have concerns about her supervisory skills.
However, none of the senior staff in the Business Office felt this poor supervision
either targeted Person A more than any other staff member, or was based on
Person A"s appearance or that of any of her co-workers.
According to Person A, harassment based on her appearance continued after she
moved to the Superintendent's Office. She claims the support staff who report to
various high level managers at MeC accused her of losing mail, misfiling, and
misrouting memos and documents. She has heard that one support person
complained to Olympia that Ryder hired a "young attractive blonde who was
unqualified She says that when Ryder defended her, "the vicious, nasty rumors"
about an affair began. 7
ll

•

Associate Superintendent Mike Williams says that when he learned Person A was
going to be working in the Superintendent's office, he told Ryder that she was "very
talkative" and that she had "lots of emotional ups and downs". He believes he might
even have said he had concerns about "someone like that" working with confidential
information.

7

These rumors are addressed in the following section.

11

CONFIDENTIAL

Person AA, manager
says that Person A used to work for him at Twin
Rivers and that no matter where she moved, she continued to have conflicts with her coworkers. He saw the same pattern develop when she moved to the Business Office. He
says that he had a concern all along that Person A would file a complaint against Ryder.
Ryder says he heard complaints from erson EE, manager
and Person P Secretary
that Person A was misrouting
documents. He claims, however, that ea
1m he looked into it, his office was
exonerated. Because the allegations were "always extremely petty", Ryder felt that
Person EE
and Person P and their clerical support were "purposely ganging up
on" Person A. He adds that Person EE frequently challenged him as well.
Person P recalls asking Person A about some errors Person A made on a legal
document. She thinks she may have embarrassed Person A because she asked her
about it in the lobby in front of some of Person A's friends. Person P says she later
heard a rumor that she supposedly yelled at Person A. Person P doesn't think that she
spoke to Person A at all after that incident. She says that Person A avoids eye contact
with her whenever they see each other.
Several witnesses feel that after moving to Ryder's office, Person A's attitude seemed
to be that the fact she worked for the Superintendent was sufficient to give her the
authority to do whatever she wanted. For instance, Person DO described how Person A
signed Ryder up for a class that he wanted, when Person A knew from working in the
Business Office that this should have been handled by someone there and, in any case,
was "definitely beyond her responsibilities". Several days later, Person DO says that
Person A brought Ryder into the warehouse to point out things that she wanted to have
changed. Person DO says that Person A never told her 'she had concerns about the
Warehouse when she worked there. Moreover, Ryder had no authority over the
Warehouse as he wasn't in Person DO's chain of command.
Findings and Conclusions. Employment harassment occurs when unwelcome conduct is
directed at an employee because of that person's membership in a protected
classification and that negatively impacts that person's ability to perform her duties.
Applying this standard, there are several problems with Person A's allegations that she
was treated poorly throughout her tenure at MGG because she ;s 'young and attractive"
First, as harassment is a form of discrimination, it must be

12

CONFIDENTIAL

based on the targeted employee's membership in a protected classification. An
employee's protection against age discrimination begins at age 40. As Person A
was younger than age 40 during the time she says she was being harassed, she is
not afforded the protection of statutory prohibitions against age discrimination and
harassment.
Second, for similar reasons, Person A's allegation that she was harassed because
she is an "an attractive woman" is beyond the protections of both the Washington
and Federal laws against gender harassment and discrimination. All women are
guaranteed freedom from harassment; there is no subclassification for those women
who are more attractive. Stripped of the additional qualification of attractiveness,
Person A's allegations that she was harassed because she is a woman are
unconvincing. In large part this is so because Person A consistently distinguishes
herself from her female co-workers, basing any difference in treatment on her
superior appearance.
Third, even if being an attractive female provided Person A some protection. I am
not convinced that the conduct she now complains of was either sufficiently intrusive
or pervasive as to affect a term or a condition of her employment. Many, if not most,
of Person A's conflicts with her co-workers and her contemporaneous complaints
were related to performance, e.g., who performed more work, and not to her
appearance. Employees are not guaranteed complete freedom from all hostility in
the workplace. For example, understandably the poor performer whose work is being
criticized by a supervisor would describe hislher working environment as hostile.
However, this would be a situation where the hostility would be both expected and
acceptable, completely independent of and unrelated to that person's membership in
a protected class.
Fourth, Person A's position is that she dressed nicely and appropriately at all times.
I think there is little disagreement that she was always well groomed and fashionable
in her dress. Being stylish in one's dress does not always mean the same as
dressing appropriately. Whether the Business Office or TRU has a dress code is not
as important as whether an employee is dressed appropriately to work in a sexual
offender's unit and where she interacts with inmates daily. I do not find that requiring
female employees to have their bodies fairly well covered while working under such
circumstances to be harassing.
Fifth, while Person A may rationalize that her negative treatment emanated from her
dress or her attractiveness, nowhere does she offer convincing evidence that such is
the case. Moreover, testimonial evidence was presented that indicated that her
attractiveness and personal grooming was an asset to her working

13

CONFIDENTIAL

environment.
Finally, and most significantly, although Person A complained to her managers and
supervisors throughout her time at MeG about her treatment by co-workers, she
apparently failed at any time until February 2001 to allege that the poor treatment
she believed she was receiving was related to either her gender or her age. I do not
believe that this is a situation where Person A's managers should have been able to
infer the basis of Person A's alleged harassment. It appears, in fact, that many of
Person A ~ co-workers and supervisors felt that her appearance was a positive
attribute.
An employer is liable for employee harassment only if the employee appropriately
used the employer's complaint process, but the employer failed to timely and
appropriately consider whether impermissible harassment actually occurred or failed
to take prompt and appropriate remedial action. When the employee's concerns are
not readily apparent, as was the case here, at least while Person A worked in the
Mail Rooms and the Business Office, it is incumbent on the employee to make the
employer aware of her concerns. Although I feel that the Department's 1995 Sexual
Harassment Policy has defects, I conclude that under either that policy or the current
one, Person A failed to meet this requirement. While she complained to supervisors,
she did not alert them to the possibility that she was being targeted for harassment
because of either her gender or her age.
C.

Harassment by rumors

The following facts are undisputed: After work hours on November
21, 2000 , Person A and Ryder attended an Aikido class on the MeC campus.
After the class they returned to Ryder's office. Person AA, manager
came into the outer office of the Superintendent's suite at about 6:30 that
evening. Ryder and Person A were in Ryder's inner office with the door closed.
Person AA spoke briefly with Ryder before leaving to run i;in emergency drill at
MCC. Ryder went to his Administrative Assistant's home for dinner and Person
A returned home. At 9:00 p.m. that evening,. Ryder returned to Mee to attend a
Quality Management Meeting held at the Special Offenders Unit. Person AA
was also present at this meeting.
8

Dennis Thaut, Northwest Administrator, visited MCC on January 19, 2001, at

8 Person A reports this incident took place several weeks later·- on December 7,2000 -st
although the November 21 date was confinned by several other witnesses.

14

CONFIDENTIAL

which time he~poke wit Person A, Ryder, Person AA and Person P, Secretary
office. On Friday, January 26th , Ryder met with Deputy
ecretary
on ail, Assistant Deputy Secretary, Office of Correctional Operations
lynne Delano and Northwest Regional Administrator Dennis Thaut in Vail's office in
Olympia.
On Thursday, February 1st, Thaut again met with various people at MeC, including
Ryder, Person A, Person P and Person AA. On TueSday, February 13 Delano
interviewed various MCC staff at the facility conceming Ryder's conduct. At the end
of her interviews Delano sent Ryder home. From that date, Ryder was either on
leave or special' assignment until his recent separation from employment.
It is Person A's contention that Person AA not only misinterpreted what he saw that
evening in the Superintendent's Office but that he also spread false rumors about it.
She claims that Person AA told numerous people at MCC that he caught her and
Ryder in a "compromising situation" or that they were "naked", She claims this fueled
other rumors about her and Ryder, and that one of these rumors was actually put
into writing. She contends that Person AA also reported this false information to
Thaut, Delano, and Riordan, among others. She further asserts that Person AA
shared this false information with her husbanef and openly discussed this alleged
incident at "drinking establishments in Monroe".1o
Person A says that on "December 7,2000" she and Ryder attended an Aikido class
on the MCC campus after work. Around 6:30 p.m. they returned to the
Superintendent's Office's to "collect [their] belongings". Person A says that Ryder
closed his office door to ask her in private about bruises he had seen on her

9

Person A sa

5

that Person AA and her husband were hi

10 Although Person A raised concerns that Person AA was spreading rumors about her
outside of the institution, she failed to provide any support for this assertion. In a telephone call to
me, Person AA reported that only twice during this period did he stop in a Monroe eating
establishment after work and that on neither occasion did he discuss Person A.

15

CONFIDENTIAL

11

arms. She says that they entered Ryder's office and were starting to gather their
work clothes when they heard someone come into the outer office. She says that
Ryder was "putting his dress clothes on OVER his sweats" at the time. (Emphasis in
Person A's February 13, 2001 letter to Delano). She says that the rumors Person
AA was spreading didn't make sense because Ryder wouldn't have opened the door
if they were doing anything wrong.
Ryder says that he was wearing running tights, not sweats, and that he pulled jeans
on over them. He says that he and Person A were "just talking" when they heard
something in the outer office. When he opened the door he saw Person AA, who
said he was jusf.checking his mail. Ryder thought it "strange" that Person AA would
be doing this at 6:30 p.m. when work is over at 5:00 p.m. He says that right after that
Person A left for home and he went to dinner at the home of his Administrative
Assistant. Afterwards he returned to MCC to attend a Quality Council meeting with
his senior staff, including Person AA.
Person AA says that after work that day he went to the gym to work out and then he
returned to the Administration Building to do some paperwork before running an
emergency response drill at 7:00 p.m. He says that when he pUlled into the parking
lot he saw that Ryder's car was still there but the lights were all off in the
Superintendent's office. He says that he went to his office to do some work and that
as he came downstairs he stopped at the Superintendent's office to drop off the mail
he had been working on.
Person AA says that because he wasn't used to unlocking the door, he fumbled with his
keys and when he came into the outer office he heard "shuffling" in Ryder's office. Then
Ryder opened the door and asked Person AA what he was doing. Person AA doesn't
remember whether he actually saw Person A or heard her voice, but in either case he
was aware that she was in Ryder's office as well. He says that Ryder said "we're just in
here changing our clothes".

11 DOC Policy 851.015. Employee Personal Problems provides guidance to supervisors
and employees about personal problems that "impact job perfonnance or are detrimental to the
department." Person A provid.E!d a cop of this oli
n~ ~hoto ra h
uises on her arm at
the time of her first i
.
erson a
er represent a w a others
e 0 e Indications they were having an affair was actually evidence that Ryder was
assisting her in handling these personal matters. Whether or not this is so does not alter the basic
question of whether Person A was subjected to sexual harassment.

16

CONFIDENTIAL

Person AA concedes that beginning that same evening he did seek advice from a
number of people. The first person he spoke to was Person EE, manager,
Nhom he views as a mentor. This conversation occurred later that same night after
the Quality Management meeting. Person AA was concerned that if Person A
subsequently filed a sexual harassment complaint against Ryder she could say that
Person AA knew about what happened but didn't report it. He was also concerned
~hat if he raised his concerns, Ryder would know that he must be the one who
'eported them. Person EE recalls that Person AA was very upset and while he
~hought what he observed was inappropriate, he didn't want to become involved in
:mmething that wasn't his business". Person EE recommended he talk to
'1orthwest Regional Administrator Dennis Thaut. She says that Person AA
'epeatedly asked her not to tell anyone what he said. She feels that subsequent to
this incident it was Ryder who took steps to discredit Person AA.
lI

Fterson AA also spoke to Person E. He recalls that Person E, like Person EE,
'ecommended that he talk to Thaut because Thaut was Ryder's boss. According to
Fterson E, Person AA was concerned because there was already so much talk. He
says that Person AA didn't even allude to the possibility that something was going
)n in the Superintendent's Office. He says that Person AA only thought that it
'looked strange".
I'erson AA called Thaut the day following the incident in Ryder's Office. Person AA
says that Thaut asked if he could "see anything and Person AA told him he didn't.
-Ie told Thaut that all he knew was that Ryder said they were changing clothes and
:hat he felt it was inappropriate for them to be in the office together with the doors
ocked and the lights out. Thaut describes Person AA as "disturbed" by this because
here were lots of rumors going around about Ryder favoring Person A. Thaut says
hat, as early as October, he had also heard this rumor and he had personally
Nitnessed things when he visited MeC that seemed to confirm it. Thaut says that
Nhenever he spoke to Ryder about this, Ryder always assured him that he wasn't
nvolved with Person A. Thaut says that he explained to Ryder that there was at
east a perception that they were in a relationship.
ll

I'erson AA says that in late October, even before the November 21 st incident, he
lad talked to Ryder about staff concerns. He says he explained that he was
'eceiving phone calls about the conduct of Ryder and Person A. He says that Ryder
::Ienied that anything was going on between them. When the calls continued,
lowever, Person AA decided to speak to Ryder again and when he couldn't before
eaving for vacation over the holidays he talked to Bob Riordan, Human Resource
th
\Aanager. This was some time during the week of December 18

17

CONFIDENTIAL

through the 22 nd •

Person AA says he didn't tell Riordan about the incident in the Superintendent's
office. Howevec he did tell Riordan about the calls he was receiving reporting
rumors concerning the Superintendent's conduct. He also told Riordan that he was
making a note of their conversation to show that he had reported his concerns to
Personnel. Person AA says that when Riordan asked him what he thought was
going on, he told Riordan that "if [he] was doing what Ryder was doing, Riordan
would have intervened already". Person AA says that Riordan later told him that he
did talk to Ryder.

Riordan says that he told Person AA that he had some concerns as well and that he
would talk to Ryder "when the time seemed right". He recalls that he talked to Ryder
on a Thursday. "sometime between November 16th and December 14th . Riordan
says that after speaking to Person AA. he also spoke with Person E. Person E, like
Person AA and Riordan, had also heard rumors and felt something had to be done.
While on vacation over the holidays, Person AA heard that Ryder was upset with
him because Person Q told Ryder that Person AA had "turned him in to Olympia".
Person AA told Ryder that he hadn't called Olympia. ( Person Q says that she told
Person AA that it was Ryder who told her that "someone" had gone to Olympia,
without identifying the person.) During this same meeting, Person AA says that
when Ryder told him that Riordan wouldn't say who spoke with him, Person AA
acknowledged that he had 12 Person AA says that he didn't tell Ryder that he had
talked to Thaut or anyone else because Ryder didn't ask. Person AA says that it
was never his intention to get Ryder into trouble. He felt that if Thaut spoke to Ryder,
Ryder's conduct with Person A might stop.
Person AA says that Ryder told him that he had been called down to Olympia on
Friday, January 261 h and asked if he was having a "relationship" with Person A. He
believes that Ryder explained to his superiors that Person A was having problems
that he was trying to help her with. Person AA says that while he told Ryder that he
didn't care if they were involved, if they were, he should "take it off grounds". He
says that Ryder assured him that he was going to stay as far away from Person A as
he could. Person AA says that he saw that Ryder stayed away from Person A for
"only one day".·

12 Note that in fact Person AA was not the only one who addressed the pe~ceptio~ with
Riordan that Person A and Ryder were involved. Person E and Thaut, as well as Riordan 5
supervisor also spo\<.e \0 Riordan about the rumors.

18

CONFIDENTIAL

In any case, Person AA was not the only one who warned Ryder about the
perceptions of the MCC community. After he heard that the rumors were "outside the
institution", Riordan spoke to Ryder, both as a friend and as the Human Resource
Manager. He says they talked about "perceptions" and rumors, some of which had
even gotten to Olympia. He told Ryder that he felt it would be "a shame for him to
lose his' career over a woman". He also told Ryder that he didn't need to know
whether they were actually involved, but that Ryder must understand that was how it
appeared. He recalls Ryder specifically denying that he was involved with Person A.
Riordan remembers that Ryder said "something" about Person AA that he neither
confirmed nor denied.

Riordan says that on the following Monday, Ryder asked him what he could do to ''fix
the situation". He told him that he needed to distance himself from Person A, but
other than that he couldn't tell him how to fix it. He says that again Ryder repeated
that he wasn't involved with Person A. Riordan says that was the last time that he
addressed the issue with Ryder.
Riordan says that sometime in January, his supervisor, the Northwest Regional
Human Resource Manager called him wanting to know what was happening with
Ryder and he explained that he had already talked to Ryder. He says that his
supervisor confirmed that what he told Ryder was appropriate. Riordan says that his
supervisor may also have told him that the rumors had reached Thaut. In any case,
shortly after that Thaut called him directly.
Person E also talk~eto
R der and when he did, the Superintendent said he thought
was one of the people spreading the rumors.
that Person G, the
Person E remembers y er saYing t at he thought Person G wanted to "get into
[Person A's] pants" or words to that effect. Person E doesn't recall Ryder
mentioning that he thought that Person AA was also spreading rumors, explaining
tha~ntendent might not have wanted to tell him that he suspected one of
h i s _ w a s involved.
I

Ryder denies that Person AA spoke to him about Person A prior to January 29.
2001, the Monday following his meeting in Olympia. Ryder claims he told Person
AA that he

19

CONFIDENTIAL

wasn't angry, but that he didn't understand why Person AA hadn't come to him directly if
he was concerned about his behavior.
Ryder says that Person AA denied going to Olympia or discussing the rumors with
anyone other than speaking to Riordan sometime in December. Ryder says that
when he talked to Riordan in December. Riordan told him that he had heard a rumor
about him and Person A from "some Associate Superintendents and some
Lieutenants", although Riordan wouldn't tell him who those people were.
Person AA also spoke to Associate Superintendent Mike Williams, although neither
recall the specific date. Williams remembers that Person AA said that people were
talking to him about a perceived relationship between Ryder and Person A and that
he had talked to the Superintendent about this perception. Williams believes that
staff talked to Person AA because he was the only Associate Superintendent whose
office was located at the WSR. Williams recalls Person AA saying that it was he
(Person AA) who opened the Superintendent's door and that he saw Person A
adjusting her clothes and that Ryder came into the office from his bathroom also
adjusting his clothes. Williams says that although there were rumors that Person AA
had seen them having sex, Person AA denied ever seeing or implying that.
Ryder says that the only other Associate Superintendent who discussed the situation
with him was Willie Daigle. He claims that Daigle told him that he had heard a rumor
about the incident in the Superintendent's office from the "Monroe gang", and that
Person AA was the "source" of the rumor. Daigle says that basically the rumors
were that Person A and Ryder were involved in a ''full blo~n relationship". He adds
that in the rumo~s that he heard, it was reported that Person AA was the one who
saw them together. He feels that Ryder was "a very reasonable person". When
Daigle brought the rumors to Ryder, it was Ryderwho indicated that he thought it
was Person AA who started them.
Person A says that on January 4, 2001, Person Q. who describes herself as
Person A's friend, told her that people were taking the rumors about her and Ryder
seriously. Person Q also warned Person A to be careful because the rumors could
get back to her home or she might even lose her job. She says she told Person Q
she didn't care about the rumors because they weren't true. She says that Person Q
couldn't remember whom she heard the rumors from.
Person Q confirms the substance of this conversation. She says that she also
warned Person A that her conduct could jeopardize both her's and Ryder's jobs.
She says that Person A apparently told Ryder about their conversation because
when she met with him later that same day Ryder brought up what she said to

20

CONFIDENTIAL

Person A. Person Q says that Ryder told her that "someone" had gone to Olympia
about the rumors. He flatly denied that he was in a relationship with Person A: he
was just trying to help her through a rough time.

Thaut went to MCC the first time in response to Ryder's stated intention to move
Person AA. After speaking to people at MCC, Thaut met with Vail and Delano and
they decided to call Ryder to Olympia for a meeting. Thaut and Delano agree that
Ryder was definitely put on notice during that meeting that he had to distance
himself from Person A, yet they both observed that Ryder failed to do this. Delano
felt that Ryder's,disregard for their warning amounted to insubordination. Thaut says
that Ryder told him that he was accused of being involved with a Secretary in Florida
who turned out to be the wife of his best friend. Thaut says that Ryder said he was
exonerated in that instance and so he wasn't concerned if he was investigated again.
Although no one that I interviewed reports knOWing who began the rumors about
Ryder and Person A, with rare exception MCC staff described conduct they noticed
between them that they felt was indicative of an intimate relationship.13 This included
observations that they were always together, traveled together, took breaks together,
ate lunch -together and were seen arriving at work together. They shared cigarettes
and stood unusually close. They worked behind closed doors and on at least one
occasion failed to open the door when someone knocked. They observed that Ryder
gave Person A preferential treatment when he created a parking space for her.
When she parked in the lower lot, Ryder drove her to and from her car. She was
seen driving Ryder's personal vehicle. She brought her children to work for entire
days and they were present in the Superintendent's office, even when he was
conducting business with other staff. Ryder had the locks to the Superintendent's
office changed and contrary to prior practice, failed to provide keys to the Associate
Superintendents. Some questioned why Ryder created a second secretarial position
in the Superintendent's office. Many suggested that they felt Ryder's conduct was
contrary to what they expected from a Superintendent.
Person A's initial allegation was that Person AA was the key perpetrator of the
most

13 I was not asked to determine whether Person A and Ryder were having an affair or
whether Ryder's conduct was appropriate for a Superintendent. Therefore, I am not attributing
any validity to the specifics of what various witnesses told me they heard or saw that led them to
believe that Person A and Ryder were involved. Suffice it to say that most of the people
interviewed reported having seen something which they felt confirmed the rumors.

21

CONFIDENTIAL

offensive rumor about catching her and Ryder in a compromising situation. However,
urin the'
d interviews both Ryder and Person A stated their belief that
_
Person G was also a prime instigator or initiator of the rumors
aDou their relationship.
Person A alleges that Person G was trying to have a sexual relationship with her,
which Person G denies. She says that she and Person G were friends and that they
joked around "a lot". She contends that Person G asked her to have "a roll in the
hay" with him but that she wouldn't sleep with him. For this reason, she feels that
Person G might have been one of the people to spread rumors about her and
Ryder, essentially because she believes Person G thought that Ryder "got" her
when he hadn't.
Person G says that he and Person A joked a lot, including about things that might
be "over the line" in a work setting. For instance he says that she told him to walk
away so that she could see his "better half. He says that.he joked back with her in
the same manner, but claims that he never seriously said that he wanted to have a
relationship with her. He claims that Person A understood that those remarks were
mutual and always said in jest.
Person G denies that he started any of the rumors about Person A and Ryder. He
says that no one needed to spread any rumors: that it was their behavior that
generated them. He noticed about three months before Ryder was reassigned that
Person A began dressing up, wearing make-up and perfume and telling people that
she would "handle things with the boss" for them. He felt these were indicators they
were involved. He says that although he didn't talk to either Person A or Ryder
about his observations he changed his conduct towards Person A so that everything
was "strictly business". He suggests that his change in behavior upset Person A and
may explain why she accuses him of spreading rumors about her and Ryder.
Person G says that during the last three months before Ryder was reassigned, the
Superintendent instructed him and Person AA not to communicate with each other.
He says that Ryder felt that the "Twin River people" were out to get him. Person G
says that he bounces things off of Person AA just as he does with Person E and
others. Person G says that he has heard rumors about himself and Person A, for
instance, that Ryder was angry at him because he was interested in her and
because he supposedly was the one who got her job for her.
Person A also contends that she became aware that Person G violated DOC
policies and procedures during the time he was her supervisor. Apparently her

22

CONFIDENTIAL

position is that Person G spread rumors about her and Ryder in order to discredit
her in raising these "violations". She says that she looked for a job outside of the
Mail Room because she began to fear she" i ht end u in ·ail". For instance, she
says that Person G, who was her first
.
at TRU, expected
her to perform "special projects..14 for him, which she di . She says that it wasn't until
much later while working in the Superintendent's office that she became aware that
these tasks violated DOC policies. Person G denies that Person A was ever asked
to engage in illegal activities in the Mail Room. He says that she performed
essentially the same functions as her co-workers.
In addition' to the rumors, Person A describes two recent incidents that involved
Person G and which she believes substantiates her allegation that he was engaging
in rumors that contributed to her harassment. The first occurred when Person G
went to lunch with Person F16 and several other of her co-workers. Person F claims
that Person G told her that if Person A were to spend the night with him and "get a
taste for a real man" that she would never go back to her "loser" husband or that
Person A "needs to get rid of her old man so [he] can show her what a real man is
all about".
Although Person F believes that others at the table 16 heard what Person G said to
her, none of those present can recall this statement. Although they describe Person
G as a "flirt", no one. remembers Person G doing or saying anything that led them to
believe he was seriously interested in Person A. On the other hand at least one
person who describes herself as Person A"s friend, recalls Person A saying she
found Person G attractive. Others believe that if neither were married, Person A
would "go after" Person G. Person G describes the people who went to lunch as a
group who commonly jokes around with each other. He admits that he might have
said something like what Person A attributes to him, but contends that, if he did, it
was said in jest. He denies ever having a physical or emotional

ese issues are beyond the scope of what

e.
IS

Person A describes Person F as

he~

16 Person A says that Theresa Cohn was also at this lunch and proposed that I speak to
her about this conversation. Cohn was on leave during the time of my on site interviews and
several attempts to interview her by telephone were unsuccessful. As I was able to speak to three
persons who were present besides Person G, I did not attempt further to reach Cohn.

23

CONFIDENTIAL
attraction towards Person A.
The second incident occurred in January 2001. Person A describes answering the
telephone in the Superintendent's Office. It became apparent that the caller was
unaware he had activated his cell phone. When she heard references to various staff
at MCC she told Ryder, who put the call on the speaker phone. Person A
that
y the
' n needed to "get some fucking whores
recognized Person G"S voice s a _
down here". She says that acting
Person I's answer was that he needed
"some ussy". She believes that e on GiS next17 comment was directed at the!
Person H , when he said, "You better not tell that whore Person F as s e
•
erson A who will tell everybody as she is a fucking big mouth". Person A
explains that Person G, Person I and Person H were attending training in Olympia.
Ryder describes the phone call in near identical terms to those used by Person A.
He says that about 15 minutes after he terminated the call. he called Person G
back. They discussed some on-going cases and then Ryder cautioned Person G
that he had been speaking on an "open mike" whether he realized it or not, and that
he needed to watch his "locker room language". He told Person G that he overheard
him "talking dirty" and making negative comments about staff. Ryder says that
although he thought that Person G and the others were cutting the training he didn't
counsel them on this because he was awaiting verification that this was the case.
Ryder says that he attempted to learn from Don Wilbrecht, who was in charge of the
training, whether Person G, Person I and Person H were at the training. Ryder
says that Wilbrecht kept changing what he told him about whether they were there.
Ryder says that he had also complained to Wilbrecht about his concerns that
Person G was not properly following procedures. In addition he complained that
Person G was reporting to Person AA instead of to him. Ryder acknowledges that
some of his.concerns came from things that Person A had told him about Person G.
For these reasons, like Person A, Ryder suspects that Person G might have been
involved in spreading rumors about him and Person A.
Person G says that the training was over for the day and that he, Person I and
Person H were on their way to a bowling alley and "talking stupid". He claims they
didn't expect that their conversation was being overheard and he doesn't think they
did anything wrong. He notes that one of the common topics at the time was Person
A and Ryder. Moreover, Person G denies that they said anything qUite as

17

Person H is currently living with Person F, Person

24

A'S_

CONFIDENTIAL

derogatory as Person A alleges, although admitting it is fairly representative of the
content of their conversation. He says that Ryder called him back and said that he
overheard what they were saying and that he should watch his phone. He says the
issue was never brought up to him again. Person I and Person H basically confirm
Person GiS description of their conversation. Neither was ever counseled about their
conduct at the training.
During the interviews I observed that many of the incidents and, in particular,
renditions of conversations, Person A and Ryder described, were Virtually identical.
At the time of his second interview I asked Ryder how Person A knew the details of
his conversations with others even when she wasn't present. Ryder says that the
only conversation that he spoke to her about was the one at the meeting in Olympia
when his supervisors urged him to move Person A in spite of the fact she had no
performance issues. He says he wanted to warn Person A that she could be moved.
He also suspects that Person A picked up information when she opened his mail
and kept his e-mail and from conversations she overheard because his office door
was.open.
Findings and Conclusions. Workplace sexual harassment occurs when
unwelcome conduct is directed at an employee because of that person's
membership in a protected classification and when that conduct affects a term or
condition of employment. Person A alleges that by spreading false rumors about her
and Ryder, Person AA sexually harassed her. Interestingly, Person A seems to be
concerned by only one rumor. that she and Ryder were caught by Person AA in a
compromising situation after work hours on November 21 st. Both Person A and
Ryder apparently place no importance on the fact that each was warned by persons
other than Person AA that their behavior was inappropriate and could get them into
trouble. I find it odd that both Person A and Ryder feel that their denials of any
involvement were somehow sufficient to deflect the importance of any of the other
numerous rumors about their conduct.

Although witnesses provided me with significant and substantial information about
why there were rumors that Ryder and Person A were having an affair, I considered
this information for a vetylimited purpose: whether their conduct was such that it
generated rumors, regardless of what occurred in the Superintendent's office after
work hours on November 21st. I conclude that Ryder and Person A 's conduct was
SUfficient, in and ofitself, to spawn the rumors. Having concluded this, however,
does not alter the importance of the rumors that involved the specific incident on
November 21st which was witnessed by only three people: Ryder, Person A and
PersonAA.

25

CONFIDENTIAL

Person AA reports that he only told a limited number of people w~ that
enin'
ef', supervisor, Dennis Thaut, two of the three o t h e r _
Person EE, and Mike Williams; Bob Riordan, the HR Manager,
an
. I found Person AA to be generally credible in this representation.
However, the fact remains that someone did begin the rumor that Person AA
"caught" Ryder and Person A in what he felt was a "compromising situation" I
conclude that Person AA was no more likely to be the one who began this "rumor"
than any of the five individuals that he told.

~

This, of course, raises another significant question: was it appropriate for Person AA
to tell anvone af'all. let alone the five individuals that he did. I cannot fault him for
doing so. In fact, his failure to tell at least Thaut and Riordan would be contrary to
the Department's Harassment Policy, DOC Policy 850.625, that requires a
supervisor who observes conduct that slhe believes could be indicative of
harassment to bring that information to someone with the authority to do something
about it. (Whether the Department's senior managers acted appropriately on
receiving this information is considered in the next section.)
Person A's allegations against Person G fare no better. By describing the remark at
lunch and the overheard telephone calls, she implies that Person G was one of the
originators of the rumors. Interestingly, while Person A states that Person G
propositioned her, she raises it only as an explanation of why he might be spreading
rumors about her. She never indicates that she found these advances to be
unwelcome. Her focus is on the rumors and the role she believes Person G may
have played in their dissemination. Although Person G himself admits that he
engaged in spreading the rumors, I find nothing to support an allegation that he
initiated any of them. That, however, does not excuse someone in a position such as
Person G's, who obviously understands the importance of confidentiality, from
spreading rumors, regardless of whether he believed them to be true. Nor does it
excuse him from making advances to or engaging in sexual banter with co-workers,
even in jest.
The question remains, however, whether the rumors, with or without the one about
the November 21 st incident, created a harassing working environment for Person A.
I believe that they probably did. There is little doubt that the rumors were unwelcome
and that they were directed at Person A because of her gender. I accept her
representation that they impacted her health and therefore her ability to perform her
duties. One accepted analysis of the rumors could result in a conclusion of no
harassment: that is, because identical conduct was directed at members of opposite
protected classifications, in this case those based on gender, neither discrimination nor
harassment could have occurred. Another

26

CONFIDENTIAL

analysis focuses on whether the challenged conduct is sexual in nature and if it is,
then it is automatically determined to be because of her gender. Indeed this was the
Department's position in its former Sexual Harassment Policy. I believe that the best
approach would have been to consider the conduct at issue here to be within the
definition of sexual harassment. (Also of significance, as I discuss in the following
section, at the time the Department became aware of Person A's concerns, it had
an obligation to investigate to determine whether harassment had occurred.)
The real issue, of course, is whether Person A ~ apparently voluntary participation in
certain actiVities, that generated the rumors negates a conclusion that she was
sexually harassed. I believe that it probably does not. I conclude that while Person
A's own conduct contributed to the generation of the rumors, it does not destroy the
guarantee that she is to be free of workplace harassment, and, more importantly,
triggers the employer's duty to investigate. On the other hand I feel that it is
completely appropriate to consider this information when making conclusions about
the severity of the harassment that may have occurred.
Person A and Ryder apparently believe that their representations that they were not
actually having an affair should have been sufficient to dispel the rumors. I find this
position to be narve at best, for neither seems to be aware that the perception of a
relationship can be, and, in this instance, was just as significant as the reality.
Ryder's lapse in this regard is the more serious, particularly since as a manager he
is expected to enforce the prohibition against sexual harassment.

Finally, I am very aware of the striking similarities, unexpected to this degree, in the
facts as reported by Person A and Ryder concerning several significant events.
Person A was able to describe in precise detail entire conversations that Ryder held
when she was not present. For these reasons I conclude that Person A and Ryder
have most likely conformed their stories. By doing so, I find that the credibility of
each is weakened. I have taken this fact into account in making various judgements
about the facts they propose.
D.

Harassment and Retaliation by Senior Managers

·In addition to the harassing rumors, Person A claims that a
handwritten message routed to the superintendent's office was additional specific
evidence of sexual harassment. On January 1t h she opened an interoffice envelope
addressed to the superintendent. Inside was a job

27
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"'(, ,Lw""::

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description announcing a Warden's position in Idaho. Handwritten at the top of the
page was the message: "Perhaps this would be an option for you and Person A.
You've lost all respect here. (Maybe your wi~ The message was unsigned,
although Person A believes that Person P , _ Secretary, was the author. In
fact, she claims that when Ryder gave a copy of the message and a sample of
Person's P's handwriting to Thaut. he reacted by saying,"Oh my God! It's Person
P's handwriting."
According to Person A, Thaut advised Ryder that he would be coming to MCC in
order to confront Person P about the handwritten note. She claims that Thaut, who
had supervised 'Person P in the past, told Ryder that he was going to speak to
Person P before he had the handwriting analyzed because he felt Person P would
probably admit writing the message.
Person A says that when Thaut came to investigate the handwritten message and
the rumors about her and Ryder on January 19th , he "assured her" that he would
have the handwriting analyzed and that he would hold accountable the person
responsible for this act, as well as the rumors. She says that on February 1st, Thaut
told her that Person P, the person he suspected of writing the note, denied writing it,
but admitted writing "Superintendent Ryder on the envelope. Person A says that
Thaut also told her that because of the denial there was nothing he could do. She
contends that after providing Thaut with "documentary evidence of ... abuse, rumor
mongering and harassment" she "demanded that he take action". She claims that he
assured her that he would have the handwriting analyzed by a crime lab, and she
offered to pay for that. She claims he told her that wouldn't be necessary and
assured her again that he would hold accountable the person responsible.
Ryder says that when he showed Thaut the Idaho job announcement, Thaut's words
were, "My God. that's Person P's handwriting." He claims that Thaut said that he
was "going to investigate it", and that Thaut took the notice with him when he went
up to speak to Person P and Person AA. Like Person A, Ryder is upset that when
Thaut returned he said that because Person P denied writing the message, that was
"all that he could do about it".
Thaut says that when Ryder showed him the sheet that he was using to compare
Person P's handwriting to the note, he agreed that it looked like her handwriting, but
he denies ever saying that he was sure it was.
Thaut says that he told Ryder that he didn't think that they should do a handwriting
analysis, that he believed Person P when she said that she hadn't

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written the note. He denies that he ever promised Person A that he would do a
handwriting analysis. Nor, he contends, did she ever offer to pay for such an
examination-by a lab. Thaut says that when he saw the announcement he couldn't
figure out what the message "amounted to" because he didn't think that it was sexual
harassment given there was "nothing sexual" about it.
Thaut says that once again he told Ryder that regardless of what his relationship
was with Person A, the perception was that they were involved. He says he told
Ryder to do specific things to change that perception. including moving Person A.
Thaut says that, Ryder said he didn't want to do that.
Person AA doesn't really think that the handwriting on the announcement is Person
P's because she usually uses cursive when she writes messages. Also Person P
told him that although she agreed that it "looked like" her handwriting, it wasn't.
Person P says that she explained to Thaut that while the handwriting on the
announcement is "very similar" to hers, she denies writing the message. She doesn't
recall being shown the envelope the announcement was in. When Thaut said that it
was suggested that a handwriting analysis be done, she told him that would be fine.
She ha no idea whose handwriting it is, nor does she know who would write
something like that to the Superintendent.

Ryder says that he never spoke to either Person AA or Person P about the
handwritten message because he was concerned that, after Person AA "lied" to him
about talking to no one other than Riordan, anything he said to Person AA might be
construed as retaliation.
Person A says that although sexual harassment complaints are to be kept
confidential under DOC Policies, Thaut discussed the details of her complaint with
numerous parties throughout DOC. She contends that he also failed to notify her of
her right to file a complaint or take her to Personnel to file a complaint as he is
required to do. Nor has he filed her complaint either with DOC or any outside agency
as required by DOC Policy 850.625.

In response to Person A's allegation that he did not properly follow the sexual
harassment procedures, Thaut denies that Person A ever made any "complaint of
sexual harassment". In fact he first learned that she had concerns about "sexual
harassment" after Ryder was sent home. He denies that he ever talked to anyone
about her "allegations" because he was completely unaware that she had any, with
the exception of her concern about the note on the job announcement.

29

CONFIDENTIAL

According to Person A, Thaut advised Ryder on Friday, February 9th that the rumors
were persisting and that Headquarters had received complaints and anonymous
letters and that they were now going to investigate the matter, even though they
didn't believe the rumors. On the next Monday, February 12th , Thaut told Ryder that
Delano was coming to the complex to conduct the investigation.
Person A claims that Thaut and lynne Delano, Assistant Deputy Secretary, Office
of Correctional Operations, retaliated against her and Ryder by launching a "full
scale investigation" of them which added further credibility to the rumors.
Delano says that although she knew that Ryder and Person A were concerned about
the announcement with the handwritten message, DOC managers didn't view it as more
than a "minor subissue" of their consideration of the appropriateness of Ryder's conduct.
She describes it as simply another example of the fact that people felt there was
something going on between Person A and Ryder.
Person A says that Delano retaliated against her when Delano came to MCC to
investigate her complaint on February 13th She believes that Delano's investigation
was flawed in several significant ways: Delano conducted her investigation at the
worksite where the people responsible for her harassment could overhear the
interviews; Delano spent three hours with Person AA before contacting her or
Ryder; Delano asked Person P, the person Person A suspected wrote the
handwritten note, to contact Person A when it was time for her interview; and
Delano "interrogated" her which she .believes was an "outright attempt" at
intimidation and retaliation.
For instance, Person A says that Delano asked if Ryder was ever inappropriate
with her or if he had ever used his position to coerce her into a situation that could
be considered inappropriate. She told Delano that he "absolutely" had not. She
says that Delano asked her how she felt about Ryder and she answered that he
was "a friend, a co-worker" and "like a father figure". She says that Delano asked
"numerous times" about her parking situation, about Ryder picking her up in the
parking lot, about how often she and Ryder had lunch together, and about how often
she went to meetings out of the office with Ryder. Person A says that Delano told
her that her investigation had nothing to do with her, that it was Ryder. Person A
says she told Delano that her name was included in the handwritten message on
the job announcement and that she felt she was "completely involved.
Person A also questions why Delano failed to interview Associate

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Superintendent Willie Daigle when it was Daigle who said that he "heard the rumor
"directly from Person AA". (As mentioned above, Daigle's statement was that
whenever he heard the rumor, it was linked to Person AA. He did not say that he
ever heard Person AA remark on the incident.)
Ryder says that Delano asked him about the same things that she asked Person A
about. At the end of his meeting with Delano, she put him on administrative leave.
He doesn't understand this because Vail had told him that his performance was "just
fine".
Delano acknowledges that when she went to MCC, her focus was on Ryder's
conduct. She formulated a list of who she felt she needed to talk to based in part on
her discussions with Thaut. She says that she didn't include Daigle because she had
heard, primarily from Thaut, that Daigle wouldn't know any specific information since
he is located in a different part of the institution. Delano didn't feel there was
anything wrong at the time about having Person P ask Person A to meet with her.
Nor did she think there was a problem in interviewing people in Person AA's office.
In retrospect she says that maybe she should have been more sensitive about these
things.
Delano says that when Person A came to speak to her, Person A ~
showed her a bruise on her arm, explaining that it was the result of_ _
Delano says that when she asked Person A about her relationship with Ryder, she
thought it strange that Person A described him as "a friend and co-worker", but not
as her boss. When she later interviewed Person B and then Ryder, they, too, used
similar terms to describe the Ryder/Person A relationship.
Person A also claims that she was retaliated against by other managers after she
went on medical leave. For instance, Person EE refused to return Person A's set of
keys to the Superintendent's office. She doesn't understand why Person EE couldn't
have made a duplicate set off of Person B's keys. She explains that if something
went wrong she could get in trouble for not having the keys in her possession.
Person EE says that Person A "very rudely" insisted that the keys were hers and
must be returned. Person EE says that she told Person A that she was keeping the
keys until she could make a copy. Person EE felt that Person A's behavior was
"very rude and aggressive, especially towards ~. She says that she
had Person A's set of keys copied that same m~haut told her not to
return Person A's set of keys to her because she had been seen taking things out of
the office.

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CONFIDENTIAL
When Person A returned to MCC with more medical documentation to support her
on-going leave, she says that the Officer in the Tower said that she couldn't come on
grounds because she had been fired. She had him call the Superintendent's office
and they said she could be admitted. Person A says that after she left, Person B
told her that Person EE wanted to know what she had taken. She claims she
hadn't taken anything.
According to Person A, on her third trip to MCC she introduced herself to Robert
Moore, the new Superintendent. She told him that although she was on medical
leave she was looking forward to coming back and working with him. She claims that
Superintendent ,Moore told her he intended to go over the two support positions in
the Superintendent's Office because he didn't think there was a need for two people.
She says that when she left she felt the new Superintendent was looking for a
reason to get rid of her.
Findings and Conclusions. Person A believes that the conduct of Thaut and
DeLano evidenced both sexual harassment as well as retaliation for filing her
complaint. I conclude that they definitely did not engage in sexual harassment. Nor
do I believe that they retaliated against Person A. What I do conclude is that they,
as well as Riordan, acted in a manner that is contrary to the requirements placed on
senior managers by DOC's current sexual harassment policy as well as settled case
law in this area.

I wish to say at the outset that I readily understand Why DOC felt that the issue that
needed to be addressed was whether Ryder's conduct was creating a sexually
harassing situation for Person A. As discussed above, although Riordan was told as
early as November that there was a concern about Ryder's conduct and he
concedes he has his own concerns even before that, he waited until "the time was
righf' before addressing this with Ryder. Riordan should have acted immediately.
More importantly, aside from talking to Ryder, Riordan took no steps to formally
investigate whether the Superintendent's conduct created a sexually harassing
situation for Person A. As an official identified in the Department's Sexual
Harassment policy as one point of contact when sexual harassment is suspected,
Ryder should have known that he was to launch an investigation as quickly as
possible.
Second, it appears that Thaut misunderstands what sexual harassment is. While
sexual harassment may include conduct that is sexual in nature, as Thaut
represents, it also includes all other harassing or annoying conduct that is directed at
an employee because of that person's gender. However, given the Department's
1995 sexual harassment policy that describes this impermissible

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conduct in terms of sexual language or conduct, I am not surprised at his confusion.
The most recent policy rectifies this problem, and I hope that managers are provided
training on the new policy as quickly as possible.
Third, although Thaut was aware that there were rumors about Person A and Ryder
at the time that they complained about the handwritten note, he focused exclusively
on the authorship of the note, making no attempt to ascertain whether the other
rumors were creating a hostile work environment for Person A. Person A says that
she told Thaut about the rumors at the same time they discussed the handwritten
message. I believe that she probably did for Thaut says he spoke to her several
times and by that time Person A was undeniably upset.
However, even under his limited definition of what constitutes sexual harassment, I
am surprised that Thaut did not view the implication of the note to be that Person A
and Ryder were have a sexua relationship. By speaking to to Person P, Thaut
excluded her as the author of the note. He did not undertake to learn who else might
have sent it. Moreover, the handwritten message wasin my view essentially a
different form of a rumor. Consequently, I believe Thaut should have undertaken a
fuJI investigation into whether the rumors (as well as the note) created a harassing
situation for an employee.
Fourth, Delano says that she was investigating Ryder's conduct and not Person A's
complaints. While this was an entirely appropriate approach for her to take, it
remains the case that no one acknowledged that the conduct of anyone other than
Ryder could contribute to an unpleasant work setting for Person A.
Finally, Person A contends that Thaut failed to heed various procedural
reqUirements. Specifically she claims that Thaut was not to discuss her concerns
with anyone else until she filed a formal complaint and that he was required to assist
her in filing such a complaint or file on her behalf. Person A's position is incorrect in
both regards.
An employer is required to investigate as soon as it perceives that harassment might
be occurring. While this requirement to investigate can be triggered by a formal
complaint, it also arises under a number of other circumstances: for instance, when
a manager observes some conduct that slhe feels might be inappropriate or when
an employee informally mentions inappropriate conduct directed at a co-worker.
However, there is no basis in DOC policy or in State of Federal statutory or case law
for requiring that the employer file a formal complaint on an employee's behalf or do
more than make the complaint filing

33

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process readily available to the employees.
IV.

SUMMARY OF CONCLUSIONS

After reviewing all of the information collected, I make the folloWing
conclusions:
•

I conclude that Person A was neither sexually harassed nor hassled by
supervisors and co-workers because of her age or gender on the basis that
she was younger and more attractive. I also conclude that Person A
reasonably viewed her working environment in the Superintendent's office to
be hostile because of the rumors about he conduct and that of Ryder.
Additionally I conclude that Person A's own conduct contributed SUbstantially
to these rumors.

•

I conclude that Person AA appropriately initiated discussions with other
managers about what he witnessed in the Superintendent's office, since he
has an obligation to report any conduct he believes might be considered
harassment. However, I was not able to determine who made this incident
common knowledge at the institution.

•

I conclude that it was entirely appropriate for MCC senior managers to
investigate whether Ryder was creating a sexually hostile working
environment for Person A.

•

On the other hand. I conclude that the Mee HR Manager and several upper
level managers failed to recognize that the rumors could have created a
hostile work environment for Person A. Indeed, I conclude that their failure
to act promptly to investigate her allegations could have contributed to
Person A's feeling that she was sexually harassed or retaliated against.

Presented by:
Marcia B. Ruskin
Attomey at Law
May 22,2001

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WITNESS LIST's

LYNN DeLANO, Assistant Deputy Secretary, Office of Correctional Operations.
DENNIS THAUT, Northwest Regional Administrator, has worked with DOC
since 1974. He became the Southwest Regional Administrator in November
1999 and in April 2000 he transferred back to the Northwest Region in the
same position.
*LESLIE W.RYDER, JPL, FORMER Superintendent of the Monroe
Correctional Complex. Ryder was at MCC for 18 months. At the time of
his interviews he was on a special assignment. Shortly after his second
interview he was separated from employment.

·Person B,

·Person A

twlLLlE DAIGLE, Associate Superintendent, assigned to run the
Minimum Security Unit, has been at MCC over seven years and with
DOC for 23 years.

Person C
Person 0,

18 An asterisk (*) appears next to the names of those persons who were interviewed
more than once.

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"'Person AA, manager
Person E,
Person P,
Person EE, manager

MIKE WILLIAMS, Associate Superintendent, has been with DOC
since 1971 and at Monroe since 1983. He transferred from WSR to
TRU at the time of the consolidation.
Correctional Sergeant

Person F
Person G
Person H

Person I
"'Person Q,
Person J,

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,

I

~

CONFIDENTIAL

Person

eel manager,

Person BB, manager,

Person K

Person L,

Person DO, manager,

Person M

Person N

Person 0
NW Regional Resource Manager
ROBERT J. RIORDAN, MCC Human Resource Manager, has been in his
current position for three or four years and with DOC since 1989.

o

37

 

 

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