State of Michigan

Civil Service Commission

Hearings Office

 

 

 

Sheldon Lee Kinney

CSHo 2012-062

v.

Mailing Date:

August 23, 2012

Department of Human Services

Ref. No.:

2012-00161

Grievance Decision

Hearing Officer:        William P. Hutchens

 

Representatives:

 

Grievant:

Andrew P. Abood and Mark A. Gabrielse, Attorneys at Law

 

Respondent:

Paul R. R. Dean, Labor Relations Representative

 

 

Case Summary

Key Words:

Discrimination, Other

 

The grievant failed to demonstrate that, as a result of alleged sexual orientation discrimination, he suffered a tangible adverse employment action.  The grievance is therefore denied.

This CASE SUMMARY is not an official part of the decision.

 

A grievance hearing was held on May 8, 2012, at the Capitol Commons Center, 400 South Pine Street, Lansing, Michigan.  The parties were given full opportunity to present testimonial and documentary evidence, examine and cross-examine witnesses, and present oral argument.  Closing briefs were submitted by June 22, 2012, at which point the record was closed.

The Issue

Has the grievant suffered a tangible adverse employment action as a result of discrimination (sexual orientation) prohibited by Civil Service Rule 1-8, Prohibited Discrimination?

^2The Facts

The grievant is employed by the Department of Human Services (DHS) in its Ingham County office as a Departmental Analyst-E (P11).  His grievance addresses allegations that the department has discriminated against him due to his sexual orientation.

 

The sexual orientation of an individual makes them a member of a protected group by the terms of Civil Service Rule 1-8, Prohibited Discrimination.  That rule as a whole is too lengthy to quote in the body of this decision.  Chapter 9 of the Civil Service Rules defines the term sexual orientation as follows:

 

Sexual orientation means actual or imputed heterosexuality, homosexuality, or bisexuality.

 

The grievant is contending that the DHS has discriminated against him because he is a homosexual.  In order to proceed to a determination of whether an individual has been the victim of illegal discrimination, it is first necessary to determine whether that individual has suffered
a tangible adverse employment action (TAEA).  The Civil Service Commission, in
Dulai v Department of Community Health, CSC 2002-070, defined a TAEA as follows:

 

A “tangible adverse employment action” is an act by an employer or employer’s agent that objectively, substantially, and negatively affects an employee’s job, income, benefits, or employment status.  It is clear that if Ms. Dulai had been dismissed, demoted, or
denied pay, benefits, or a promotion, she would have suffered a
“tangible adverse employment action.”  However, Ms. Dulai only received a written reprimand from her supervisor.  Ordinarily, any single act of counseling, including a written reprimand, even if allegedly motivated by discriminatory animus, is not actionable discrimination “with respect to employment, compensation, or a term, condition, or privilege of employment” as required in CSC Rule 1-8 and is therefore not appealable to the DCS [Footnote omitted].  Aside from the fact that CSC Rule 8-2.3(c) does not permit an appeal, a single act of counseling---even if motivated by discriminatory animus---does not amount to a “tangible adverse employment action” as a matter of law [Citations omitted].  This is because counseling does not directly or substantially affect an employee’s job, income, benefits, employment, or any other objective benefit or responsibility.

 

^3In Department of Corrections and Thilly, ERB 2003-078, the Employment Relations Board clarified that in situations in which a grievant is setting forth a “sexual harassment”
sex discrimination claim, a grievant need not prove the loss of a specific tangible job benefit:

 

. . . Instead, the grievant must prove that the work atmosphere is so infused with offensive, hostile, or intimidating behavior toward herself or members of her sex that it altered her conditions of employment by making the endurance of the sexual intimidation a condition of employment.  This “hostile work environment,” generally based on multiple communications and acts, satisfies the requirement to demonstrate a “tangible adverse employment action.”  It is not necessary that every contributing discriminatory communication or act separately resulted in a tangible adverse employment action.

 

The hearing officer concludes that the Thilly decision would be equally applicable to a claim of discrimination based upon sexual orientation—that is, demonstration of a hostile work environment would suffice to show a tangible adverse employment action, without more.  The grievant, in his testimony, contended that he had been subject to a hostile work environment and due to the stress involved, was off work on a medical leave at the time of this hearing.

 

The grievant offered no medical documentation to support his contention that he was off work due to anxiety related to stress at work.  The grievant testified as follows:

 

Q.  Are you working now?

A.  Yes – no; I’m off.  I was hospitalized on February 13th.  They thought I was having a heart attack, and it turned out to be a major anxiety attack.

Q.  And has anybody attributed it to the issues related to work?

A.  Yes.

Q.  Who?

A.  I’m seeing Dr. Hoffman in Grand Ledge; my physician’s assistant in DeWitt also, and they pretty much determined that to be the cause of my hospitalization at Ingham Hospital.

Q.  Anxiety related to stress from work?

A.  Correct.

Q.  Stress in what capacity?

A.  ^4Well, the first time it was due to the treatment I was receiving from Randy Rauch and SuAlyn Holbrook, and that would have been last January or February.  And then this February, it was
-- I was doing fine until they started backlashing on the people that were coming forward and being witnesses for me for this.

Q.  So right about the time of the FOIA requests?

A.  Right afterwards.  It would have been the FOIA requests had come in, and Stacia Cramer had submitted hers.  And probably -- I would say about three or four weeks, they all of a sudden launched an investigation on Stacia Cramer for discrimination.  And the primary person claiming the discrimination was Nakeshwa Jackson, James Flanagan’s niece.  (Tr., pp. 146-147)

 

The grievant submitted no medical documentation to support the assertion that: a) he had been hospitalized; b) for what period of time; c) any diagnosis made at the time; d) if such a diagnosis was made, there is no evidence in this record to indicate that any finding was made by any physician/psychiatrist that the grievant’s condition was work-related; and, e) if it was work related, there is no medical documentation that was submitted by the grievant or his counsel to indicate that the stress was something other than normal job-related stress; that is, there is no documentation to link it to the claimed harassment/discrimination/retaliation that he is claiming against SuAlyn Holbrook and Randy Rauch based on his sexual orientation.

 

The grievant testified that he believes that Holbrook was discriminating against him due to
his status as a homosexual.  He detailed his previous unpleasant experience working in
Shiawassee County DHS, where his partner works, indicating that they would receive things such as anonymously submitted highlighted Bible scriptures left on their chairs or desks.  He left that unpleasantness for Genesee County, where he did not let anyone know his sexual orientation.  He did not intend to stay there long.  Upon his transfer to the Ingham County office in Lansing, he encountered a female with whom he’d worked in Shiawassee County, and claimed that she subsequently “broadcast” his sexual preference to the entire office.  He stated that he is comfortable with who he is, and that there would have been no sense in trying to hide his preference at that point.  This occurred prior to Holbrook coming to the Ingham County office in October 2009.

 

The grievant testified that he had been “yelled at” three times by Holbrook since her arrival.  The first incident, he testified, was in December 2010.  He indicated that a major snowstorm was in progress and his partner, who works for the State as well, emailed him a portion of the
DHS Employee Handbook regarding annual leave and sick leave in the face of an office closure.  He indicated that the emailed portion of the policy stated that if an employee has requested annual leave or sick leave, and the building is subsequently declared closed by the State, an ^5employee with approved annual leave or sick leave request for that closure day cannot rescind the request.  He indicated that he forwarded his partner’s email to staff of the Ingham County office.  He stated that to his knowledge, it was not a violation of Civil Service rules for him to do so.  He said that Holbrook yelled at him and told him it was poor communication on his part and that he should not have done it.

 

His second example of Holbrook yelling at him concerned an employee in his area while he was an acting supervisor who worked on “bridges” (presumably referencing the DHS “bridge card” program).  He testified that the employee was behind in her own caseload, and that he was told to “write her up.”  Instead, he independently determined that she was behind because she was being used as a resource person by other staff regarding their questions regarding the bridge card program.  He determined that she was so busy helping others that she could not process her own work.  Therefore, rather than writing the employee up, the grievant went back to his office and sent a memo to his fellow managers, with a copy to Holbrook, asking them to direct their staff to take their problems to their assigned lead worker rather than taking them to this employee.  He indicated that Holbrook yelled at him for that to the point that she had spit coming out of her mouth, telling him that he was not supporting teamwork in the office.

 

His third example of Holbrook raising her voice to him occurred when he was waiting to interview for an Assistance Payments Supervisor position.  He was in a waiting area outside of Holbrook’s office and was apparently obscured from her view by a cubicle wall.  Holbrook, who was on the interview panel, came out of her office and asked one of the clericals about the absence of an application of an employee she’d apparently anticipated applying for one of the positions.  She had not seen the employee’s application, and wanted to know why.

 

The grievant overheard this exchange, so after he had completed his interview, he made it his business to seek out the employee who had been referenced by Holbrook and told her that if, as he understood, she was not interested in those positions, she might want to let Holbrook know.  He told her that Holbrook had one of the clericals searching for her application.  The employee did so, and when she came back she told the grievant that she was sorry, and explained that Holbrook was “mad as hell” and was coming for the grievant.  The grievant explained that he had not done anything underhanded, that he was just trying to help out in determining whether the other employee had applied for the position or not.

 

Three days after the above incident, Holbrook called the grievant into her office and gave him a formal counseling memo in the presence of his supervisor, Brenda Loepke.  He stated that she slammed it down on the desk between them, and yelled, “You disgust me.  Now, sign it.”  The grievant stated that he believed he disgusted her because he was gay.  He indicated that Holbrook had told others investigating his complaints that homosexuality goes against her religious beliefs.  That statement, he said, was in conjunction with her inquiry of the EEO office as to where she ^6could draw the line when it came to having celebrations in the Ingham County DHS office building.

 

The grievant testified that he serves on the County office’s diversity committee.  He stated that the day after the office’s Cinco de Mayo celebration, the committee submitted a request to have a Gay Pride luncheon.  He testified that the request set off “World War I” in the County office.  The DHS, in a responsive exhibit, showed that the grievant had sent an office-wide email seeking to have staff boycott a “soul food” luncheon held during Black History month on February 29, 2012, due to his apparent displeasure that homosexual discrimination was not, from his perspective, given the same level of respect by DHS management as is discrimination based upon skin color.

 

The grievant testified that Holbrook’s discrimination against him has cost him promotional opportunities.  His testimony set forth his belief that County directors talk to one another and that he has been blackballed by Holbrook because of his sexual orientation.  (Tr., pp. 157-158)

 

The grievant, in response to the testimony of his supervisor, Brenda Loepke, to the effect that in the third incident cited by the grievant Holbrook was angry with him for a breach of confidentiality, stated that he breached no confidence.  He said that Holbrook’s inquiry to clerical staff about the missing application was made in a tone of voice that anyone could hear.

 

Loepke confirmed that Holbrook “pounded” the formal counseling memo on the desk in front of the grievant and said, “You disgust me.”  (Tr., p. 94)  That occurred, she testified, after Holbrook told the grievant that she had warned him on three occasions of the necessity of managers maintaining confidentiality.  The grievant had been working out of class as an Assistance Payments Supervisor.  Loepke said that the grievant debated the point with Holbrook, who then became so angry that she made the statement referenced above.  Even after Holbrook made the statement and slammed the counseling memo down in front of the grievant, Loepke testified, the grievant continued to argue with her and indicated that he did not believe that the things Holbrook was accusing him of were inappropriate on his part.

 

The grievant raised an additional issue regarding the hiring of and alleged special treatment of the niece of James Flanagan, an investigator with the DHS Office of Equal Opportunity and Diversity Programs.  He testified that at the same time he was investigating the grievant’s complaint against Holbrook, he was encouraging his niece to apply for a job in the Ingham County DHS office.  He stated that the niece’s application was like that of anyone else; completed online along with an indication of counties the applicant is willing to work in.  He stated that he did have one conversation with Holbrook about his niece applying for work, but indicated that the position into which she was hired had nothing to do with Holbrook.  He did ^7state that he spent time with his niece helping her with her interview skills; that part of his job description is training individuals in behavioral-based interview techniques (BBIT).

Opinion

The issue to be decided here is whether the grievant suffered a tangible adverse employment action as a result of sexual orientation discrimination prohibited by Civil Service Rule 1-8.

 

In making the above determination, it is first necessary to decide whether there has been a tangible adverse employment action at all, before attempting to connect it to any act of prohibited discrimination.

 

There is no specific “lost” promotional opportunity in dispute here.  If a specific appointment had been appealed, this would be a selection (technical) appeal, not a grievance appeal.  What the grievant has attempted to show in the extensive record developed in this hearing is that the failure of the DHS to appoint him to the many promotional positions for which he has applied is the result of sexual orientation discrimination against him by the management of the DHS Ingham County office, primarily in the person of SuAlyn Holbrook.  The loss of a specific promotional opportunity would satisfy the requirement set forth in Dulai, supra, that a TAEA can be demonstrated in that manner.  The grievant has claimed lost promotional opportunities, but in the general sense that he believes that Holbrook has poisoned that well by speaking negatively about him to other County directors due to his homosexuality.

 

The grievant testified as to several instances of what he believed was Holbrook’s discriminatory conduct against him in response to conduct on his part that was undeserving of rebuke.  The hearing officer disagrees with the grievant’s characterization of those incidents.  The incident in which the grievant’s domestic partner forwarded to him a portion of the DHS Employee Handbook regarding the use of sick and annual leave in the face of an office closure did not, as the grievant testified, violate any rules.  The grievant for some reason felt the need to forward this information to all DHS staff within the Ingham County office, seeing himself apparently as a messenger of employee rights.  All employees are expected to be familiar with the requirements of DHS work rules and policies, as well as Civil Service rules.  Presumably, most if not all staff were already aware of this information.  It is the opinion of the hearing officer that the grievant, in forwarding this information given to him by his partner, was cementing his status as an office intermeddler.

 

The hearing officer’s opinion would be the same regarding the grievant having overheard Holbrook looking for the application of another employee while he was waiting to interview for a promotional position.  While Holbrook may have made the statement in a voice loud enough for him or for others to hear, Holbrook was at the time engaged in HER business, not that of the grievant.  For him, an individual hoping for a permanent appointment to a managerial position, to ^8engage in this type of indiscretion is indicative that he again engaged in intermeddling behavior, and more importantly, it indicates a valid reason for Holbrook to have no desire to promote him.  In managerial and supervisory positions information typically flows one way -- from the bottom to the top.  From the top to the bottom, information is doled out not in an open flow, but on a “need to know” basis.  The grievant, by inserting himself into business being conducted by the Director and her secretary, demonstrated a serious lack of the judgment and discretion that is expected of a supervisor.  To the extent that his name may have been raised by other county managers with Holbrook, it is the hearing officer’s opinion that she would be much more likely to comment negatively about his lack of judgment and discretion than about his homosexuality.  This would be particularly true given the fact that Holbrook would have no way of knowing who, if anyone, among the county directors with whom she speaks, is a homosexual.  There are no immutable physical characteristics that identify a person as being gay.  Even if Holbrook’s religious beliefs make her offended by the notion of homosexuality, she and others put aside this and other personal beliefs on a daily basis in order to promote a harmonious workplace.

 

The fact that the grievant took it upon himself to attempt to have others in the office boycott a “soul food” luncheon because he believed that gays were not given the same level of respect or protection from discrimination as were African-American employees, is another example of his poor judgment and lack of discretion.  It is those qualities, the hearing officer believes, that have hindered his progress through the ranks within the DHS, not the fact that he is a homosexual.

 

The grievant has put forth his strongest claim of a TAEA in his theory of a hostile work environment maintained by SuAlyn Holbrook.  The case law established by the Civil Service Employment Relations Board in Department of Corrections and Thilly, ERB 2003-078, requires that in order to establish the existence of a hostile work environment, a grievant must:

 

. . . prove that the work atmosphere was so infused with offensive, hostile, or intimidating behavior toward [the grievant] or members of [his protected group] that it altered [his] conditions of employment by making the endurance of the sexual intimidation a condition of employment.  This “hostile work environment,” generally based on multiple communications and acts, satisfies the requirement to demonstrate a “tangible adverse employment action.”  It is not necessary that every contributing discriminatory communication or act separately resulted in a tangible adverse employment action.

 

The grievant did demonstrate that there was an initially negative response from Ingham County DHS management toward the proposed “Gay Pride” luncheon.  It is clear from testimony in the record that the concern by management was at what point they would have to draw the line ^9against any special interest group that wanted to host a luncheon with promotional assistance from DHS management.  If questioning the propriety of such a luncheon was found to be discriminatory toward gays, and I do not find that it was, it was not directed specifically at the grievant.  It was merely an expression of concern about which events the DHS should approve and help to promote.  To the hearing officer, this seems understandable, since there would exist the possibility that those whose personal religious or other moral beliefs might be offended by such a luncheon might then seek to, for example, hold a “Straight Pride” luncheon in response.  As the matter turned out, the Ingham County office did approve a “Gay Pride” luncheon, though the grievant was not happy with the way that it turned out.  His dissatisfaction with the quality of the program does not amount to evidence that he has been the victim of a hostile work environment, however.

 

The testimony of Brenda Loepke regarding the grievant’s failure to appreciate the inappropriate nature of his conduct is telling.  The grievant seems focused on whether his conduct violated any rules or policies.  It did not.  It seems clear to the hearing officer, however, that Holbrook viewed the pattern of the grievant’s conduct as being inconsistent with that of an employee with supervisory aspirations.  An analogy can be drawn to two employees competing for the same position.  The first employee may be the most qualified of the two; the second may be marginally less qualified but may create a better impression due to their attire, their grooming, or even their table manners while having lunch with their boss.  The one who will be promoted is the one who provides what the supervisor views to be “the best fit.”  In the grievant’s case, it is well documented in this record that while he has been overlooked for many promotions, it is doubtful that it is due to his sexual orientation.

 

There was a great deal of other testimony set forth in this record that is not mentioned in this decision.  The reason for that is the necessity for the grievant to demonstrate that he has suffered a tangible adverse employment action of some type before the decision will address testimony regarding alleged discriminatory acts.  That testimony has been reviewed by the hearing officer in making the determination that the grievant suffered no tangible adverse employment action.  As was noted above, the closest that he came to proving a TAEA was the claim that he is on a medical leave due to stress caused by a hostile work environment.  The grievant’s failure to enter any medical documentation supporting this assertion undermined this claim, however, and no nexus was established between the medical leave and the allegedly discriminatory environment in which he worked.

 

For all of the reasons set forth above, it is the determination of the hearing officer that the grievant suffered no tangible adverse employment action as the result of sexual orientation discrimination.  The grievance is therefore denied.

^10Decision

The grievance is denied.

 

 

/S/

 

William P. Hutchens, Hearing Officer

 

Notice:  This decision may be appealed if received by the Civil Service Commission’s Employment Relations Board within 28 calendar days of the mailing date on the face of this decision (September 20, 2012) as authorized by Civil Service Commission Rule 8-7, Appeal to Civil Service Commission.  Instructions and forms for filing an appeal, Civil Service Regulation 8.05, Employment Relations Board Appeal Procedures, and Regulation 8.06, Computing Time and Filing Documents, can be found at www.mi.gov/erb.  Appeals and inquiries should be addressed to the Employment Relations Board, Michigan Civil Service Commission, Capitol Commons Center, 400 South Pine Street, P.O. Box 30002, Lansing, Michigan 48909; by telephone, at (517) 335-5588; by fax, at
(517) 335-2884; or by e-mail to MCSC‑ERB@michigan.gov.

 

This is a publication of the Michigan Civil Service Commission. The written document, as published at the time it was issued, is the most authoritative source of the actual content and format of the decision.