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Deputy Defeats Claim of Sexual Harassment

Posted on Saturday, August 01, 1998 at 12:00PM

Don Ryan, a 22-year veteran deputy with the Contra Costa County Sheriff’s Department recently prevailed in a disciplinary appeal of a five percent pay reduction for six months (equated to a six day suspension). The appeal was submitted to binding arbitration and heard by Arbitrator Charles Askin. Rocky Lucia, of Carroll, Burdick and McDonough, was the PORAC/LDF assigned attorney representing Deputy Ryan in the appeal.

A co-worker and female deputy who had worked with Ryan at the West County Detention Facility in Richmond, CA had initiated the disciplinary efforts by alleging that Ryan had engaged in various activities directed at her and other females which demonstrated a pattern of inappropriate conduct. The female deputy alleged that the inappropriate conduct emanated from Ryan’s massaging of female deputies’ necks and shoulders as well as inappropriate touching of their hair. Additionally, the complaining female deputy alleged that objectionable comments had been made to, and about her, in the presence of other employees.

Of particular significance, were the allegations that Deputy Ryan had been given preferential treatment by the department relative to his position at the West County Detention Facility (WCDF), and therefore had escaped official reprimand or discipline because of his status at the facility.

An Internal Affairs investigation was commenced by the department when the female deputy brought the charges to the attention of a supervisor. The evidence demonstrated that during the course of the I.A. investigation, the female deputy was motivated in part by a mistaken belief that Deputy Ryan had initiated, and perpetuated, false and misleading personal information about her. The Internal Affairs investigators concluded that it was this mistaken belief on the part of the female deputy that had prompted her to come forward to make the various allegations against Deputy Ryan.

Internal Affairs issued its final report which did not sustain the sexual harassment nor harassment in the work place allegations. A supervisor in the department, based upon his independent review of the final I.A. report, sustained the allegations and also determined that Ryan had engaged in acts of dishonesty and insubordination.

These allegations, as well as the charges initiated by the female deputy were considered by Arbitrator Askin throughout the four full days of the appeal hearing. During the appeal hearing, the department called a number of female employees who had worked with both Ryan and the complaining deputy.

It was noted during the hearing that although other females were called as witnesses by the department, none of those female witnesses had come forward and initiated their own independent or related complaint against Deputy Ryan. The arbitrator noted that the complaining female deputy had difficulty providing details of any incident of misconduct she claimed had been directed towards her.

Despite representations to the I.A. investigator that Ryan had been put on notice of the objectionable conduct by the complaining deputy, on more than 50 occasions, the complaining deputy was unable to recall a single incident. In defense of Deputy Ryan, a number of witnesses were called, including several female deputies who had worked closely with him while he was assigned to WCDF.

Deputy Ryan’s work history: Arbitrator Askin determined that while Deputy Ryan had been assigned to the WCDF, he had consistently received superior ratings in most of the categories in his performance evaluations. Further, the arbitrator held that Ryan’s experience and knowledge of the West County Detention Facility was “unsurpassed”.

The complaining female deputy had alleged that Ryan had been given preferential treatment by the department administration. Contrary to the assertion of the complaining female deputy and those testifying on her behalf, there was no evidence to support the allegation that Ryan had been given differential or preferential treatment in regard to disciplinary matters. Arbitrator Askin determined that certain legitimate privileges and preferential treatment was extended to Ryan due to “legitimate work-related issues”.

Alleged inappropriate touching on the neck, hair and shoulders: The evidence confirmed that occasionally Deputy Ryan would rub the neck and shoulders of various female deputies, which was usually invited and never done in a sexual manner. The single complaining female deputy who initiated the charges alleged that the conduct was objectionable and constituted “Sexual Harassment” and should be cause for discipline.

The arbitrator determined that the complaining female deputy was the only witness who considered the massaging of necks and shoulders to be sexual in nature. Further, no other witness including departmental witnesses stated that they ever considered the conduct to be “offensive or sexual in nature”.

The arbitrator also determined that none of the female witnesses who testified in support of the complaining female deputy “ever objected or asked grievant [Ryan] to stop his behavior”. The arbitrator concurred with the findings of the Internal Affairs investigators that no sexual harassment had occurred within the context of departmental policies.

Demeaning comments: The complaining female deputy had alleged that Ryan had made several uncomplimentary comments to, and about her. The female deputy alleged that these comments constituted “verbal harassment”. The arbitrator determined that the female complaining deputy was extremely hostile towards Deputy Ryan and that there were significant questions concerning the “reliability” of her account on various matters relating to the discipline.

Arbitrator Askin found that although some comments may have been uncomplimentary in nature, they did not violate departmental policies on “verbal harassment”.

Dishonesty and insubordination: These allegations arose once the supervisor received the completed Internal Affairs report, and he disagreed with its findings. This supervisor had reviewed witness statement summaries and determined that Deputy Ryan had independently engaged in acts of dishonesty and insubordination based on differences in those statement summaries. No such allegations were made or sustained by the I.A. report.

The arbitrator, having reviewed all of the evidence relating to these charges, determined that it is quite common for witnesses to have varied recollections regarding a particular incident and that it does not necessarily follow that those witnesses may be engaging in dishonest conduct if they provide two different accounts of the same incident. Arbitrator Askin concluded that Deputy Ryan had not engaged in dishonest conduct.

In assessing Ryan’s veracity, the arbitrator seemed to be impressed that Ryan had made numerous admissions concerning some of the allegations against him. The candid and forthright manner in which Deputy Ryan testified at the hearing, further bolstered his defense relative to the charges of insubordination.

The same supervisor initiating the allegations of insubordination was also a percipient witness to the incidents underlying the charges. The arbitrator determined that the weight of the evidence supported Deputy Ryan, and at no time was he insubordinate or untruthful.

In support of the defense of Deputy Ryan, the arbitrator determined that there was not just cause for the decision to reduce his pay in light of the fact that the offenses relied upon for discipline were not sustained.

It should also be noted that the complaining female deputy did not follow the clear mandates of the Departmental Sexual Harassment Policy to report any such inappropriate conduct to a supervisor, or in the alternative, create a diary or log system to substantiate the incidents in support of the allegations.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.