TENNESSEE DEPARTMENT OF SAFETY, Department/, Petitioner, vs. CSGP 07-50THOMAS IRWIN, Grievant/, Respondent.

University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 10-8-2007 TENNESSEE DEPARTMENT OF SAFETY, Department/, Petitioner, vs. CSGP 07-50THOMAS IRWIN, Grievant/, Respondent. Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

BEFORE THE TENNESSEE CIVIL SERVICE COMMISSION TENNESSEE DEPARTMENT ] OF SAFETY, ] Department/Petitioner, ] ] vs. ] Docket No. 26.19-095498J ] (CSGP 07-50) THOMAS IRWIN, ] Grievant/Respondent. ] INITIAL ORDER This contested administrative case was heard on October 8, 2007, in Nashville, Tennessee, before J. Randall LaFevor, Administrative Judge, assigned by the Secretary of State, and sitting for the Civil Service Commission for the State of Tennessee. Ms. Deborah Martin and Mr. Joe Bartlett, Staff Attorneys for the Department of Safety, represented the Department/Petitioner. The Grievant/Respondent, Thomas Irwin, was represented by his legal counsel, Mr. James Y. Ross. Upon conclusion of the hearing, the matter was taken under advisement pending submission of the parties Proposed Findings of Fact and Conclusions of Law. Those documents were filed on December 26, 2007, and the matter was declared ready for consideration. PROCEDURAL HISTORY The Commissioner of the Tennessee Department of Safety convened a Due Process Hearing on January 17, 2007. After considering the Grievant s inappropriate conduct directed toward a civilian on December 5-6, 2006, the impact of that conduct on the Department and its mission, and the impact of that conduct on the Grievant s ability to continue to function effectively as a State Trooper, he terminated the Grievant s employment with the State of Tennessee. The Commissioner reaffirmed that decision following a Step IV Grievance Hearing conducted on April 5, 2007. This contested administrative proceeding was a de novo Fifth-Step Disciplinary Hearing convened at the Grievant s request, to consider the termination of his state employment by the Commissioner of the Department of Safety for: (1) Failure to

maintain satisfactory and harmonious working relationships with the public and fellow employees; (2) Conduct unbecoming an employee in the State service; (3) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency; and (4) For the good of the service as outlined in T.C.A. 8-30-326; and (5) For violating Department of Safety General Orders # 216-2 II; 216-2 IV B.1; 216-2 IV B.4(a); 216-2 IV B.17; and 217. Upon consideration of the evidence and arguments, and the entire record, it is determined that the Grievant engaged in the prohibited conduct, as charged, and that the proper disciplinary action for those offenses is termination from state employment. This determination is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The Grievant began his state employment in July 2000, when he was hired by the Tennessee Highway Patrol, the law enforcement agency within the Tennessee Department of Safety. He was continuously employed as a State Trooper with that agency until his employment was terminated on March 28, 2007. Prior to December 2006, he had no disciplinary actions recorded in his personnel file. 2. During December 2006, the Grievant was assigned to the Highway Patrol Office located in the basement of the Hardin County Courthouse in Savannah, Tennessee. That office housed six Troopers, one Sergeant and one Lieutenant, and was physically located in a hallway near the Juvenile Court Youth Services Office. On December 5 and 6, 2006, the Grievant was in uniform and on duty in that Highway Patrol Office. 3. Because the Highway Patrol Office did not have its own copy machine, Troopers were permitted to use the machine in the Youth Services Office. During the months preceding December 5, 2006, the Grievant had been in the Youth Services Office about once weekly to make copies and to talk with Katherine Carroll and Sandy Talbot, acquaintances who worked in that office. 4. On December 5, 2006, the Grievant went to the Youth Services Office and found that both Ms. Carroll and Ms. Talbot were out sick that day, and the only employee 2

working there at the time was Evelyn Stang. Although he had never had a substantive conversation with Ms. Stang before that date, he had seen her in the office, and had spoken to her in passing. On December 5, however, the Grievant began to engage Ms. Stang in an extensive conversation. Ms. Stang became very uncomfortable with the situation, because the Grievant s tone and demeanor were overly-familiar and flirtatious. Ms. Stang was an attractive 26-year-old married mother of a one-year-old child, and was pregnant with her second child at the time. The Grievant said that he needed a new girlfriend, someone between 25 and 35 who was, like Ms. Stang, mature for her age. He spoke about a woman whom he said others thought he was dating, then said that he was, in fact, not dating her. He made personal comments about Ms. Stang s appearance, telling her how attractive she was, and specifically saying that her eyes were pretty and that they hypnotized him. After she continually deflected these personal comments, and changed the subject, the Grievant left her office. Although she found his actions to be objectionable, she assumed that he just had an overly-flirtatious personality, and she had tried not to be disrespectful or rude to him because he was a Trooper. 5. The following day, December 6, 2006, Ms. Talbot was still out sick, and Ms. Carroll was attending a meeting out of the office, so again Ms. Stang found herself alone in the office. Again, the Grievant came into her office, and resumed his inappropriate comments from the previous day. He talked again about her eyes, her appearance, and said that he had seen the tattoo on her lower back. He said that he had seen her driving, and described her car. Ms. Stang was again made very uncomfortable by his words, and continued to change the subject away from her personal appearance. He left the office to attend to business upstairs in the same building. 6. Shortly thereafter, the Grievant returned to Ms. Stang s office, again for no workrelated reason. This time, he took out his cell phone, and told her wanted to take a picture of her. She refused because, as a happily married woman and mother, she did not want her picture in the possession of another man. Despite her refusal, the Grievant took at least two pictures of her, and did not delete them when she asked him to do so. After taking the last picture, the Grievant came to the side of her desk, blocking her only avenue of escape, and started rubbing her head and caressing her hair. He then touched 3

her cheek and her chin, and attempted to kiss her. She turned away quickly, and his lips brushed against her cheek. 7. Although frightened and intimidated, Ms. Stang pushed him away and asked, What in the hell are you doing? He responded by stepping back and repeatedly saying that he was sorry, and asking her not to report him, or tell her supervisor or her husband. She kept telling him that he was upsetting her, and asking him to leave. After repeating, Please don t report me, and I m sorry, and We re okay, aren t we? several times, the Grievant finally left her office. 8. Ms. Stang was upset, confused and scared by the Grievant s actions, particularly in light of the fact that he was physically much larger than she, and he was an armed, uniformed law-enforcement officer. She immediately called her husband to tell him what had occurred. While talking to her husband on one phone line, the Grievant called her on another line. He told her that he knew that she previously worked at the prison, said that he worked there too, and that her knew some things about her. She perceived that as an attempt to persuade her not to report his inappropriate conduct, in order to keep him from revealing those things. Ms. Stang responded that she did not care what he knew, and that she was not going to be mistreated or taken advantage of by any man. She hung up on the Grievant and called her supervisor to report the incident. 9. The ensuing investigation culminated in the Commissioner of Safety terminating the Grievant s employment with the Department of Safety. CONCLUSIONS OF LAW and ANALYSIS 1. The Tennessee Department of Safety is the Petitioner in this matter, the party that initiated the proceedings, and as such, is assigned the burden of proof. The burden of proof is the duty imposed upon a party to establish, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. A preponderance of the evidence means the greater weight of the evidence, or the more probable conclusion, based on the evidence presented. The burden of proof is generally assigned to the party seeking to change the present state of affairs with regard 4

to any issue. See, Rule 1360-4-1-.02(7), TENN. COMP. R. & REGS. In the instant case, that means that the Department of Safety must prove, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited for State employees, as described in Rule 1120-10-.06, TENN. COMP. R. & REGS., or in Department of Safety General Orders; and that separation from state employment is the appropriate disciplinary response. 2. The Department of Safety has promulgated certain General Orders that are binding on, and govern the conduct of its law enforcement officers. Those orders reflect the Department s determination that, due to the sensitive nature of their interaction with the general public, Highway Patrol Officers should, in certain instances, be held to a higher standard of conduct than other State employees. In the instant case, the Department alleged that the Grievant violated the following Orders: Department of Safety, General Order 216-2 (8/15/1999): Disciplinary Regulations: II. Policy - It is the policy of the Department of Safety to warn, suspend, demote, or dismiss any employee whenever just or legal cause exists. Employees shall not commit any act that would reflect discredit upon themselves and the department while on duty. IV. Causes for Disciplinary Action - B. It is not feasible to itemize every cause in which disciplinary action may be taken, the following causes are examples of those considered for disciplinary action as should not be considered the only causes. 1. Violation of a regulation or policy. a) Violation of any written rule, regulation policy, or procedure including all rules of the Tennessee Department of Personnel. 1 b) Willful disobedience of the rules and regulations or a negligent disregard thereof. c) No employee shall plead ignorance of the rules and regulations or offer same as a defense in a charge or omission or commission. 1 It was clearly the intention of Department of Safety General Order 216-2,IV,B,1,a to place all Departmental employees on notice that they would be subject to disciplinary sanctions for violations of a rule, regulation, policy or procedure such as a Departmental General Order or a Department of Personnel Rule or Regulation. 5

4. Abuse of Authority. a) Mistreatment of subordinates or the general public, or threatening to do so, extortion, bribery, blackmail. 17. Any employee may be dismissed when the department considers that the good of the service will be served thereby. (T.C.A. 8-30-326). [Bold emphasis supplied throughout.] Department of Safety, General Order 217 (2/10/2006): Workplace Harassment and Illegal Discrimination: II. Policy - This policy shall pertain to all employees... It shall be the policy of the Department of Safety to strictly forbid and will not tolerate harassment of any employee, applicant for employment, or third party and to provide an environment that promotes productive and congenial working relationships. Any employee who is determined, after an investigation, to have engaged in workplace harassment, shall be in violation of this policy and will be subject to appropriate disciplinary action up to and including termination. The fact that an alleged offender meant no harm or was teasing will NOT excuse conduct that violates this policy... IV. Definitions - D. Sexual Harassment is any unwelcome sexual advance, request for sexual favors, or verbal, written, or physical conduct of a sexual nature by a manager, supervisor, co-worker, or non-employee (third party). G. Third parties are individuals who are not state employees but who have business interactions with state employees... VI. Formal Investigation C. 5.... The Department of Safety retains the sole discretion to determine whether a violation of this policy has occurred and to determine what level, if any, of disciplinary action is warranted. A finding of a violation of this policy does not mean the conduct violates state and/or federal laws. [Bold emphasis supplied throughout.] 6

3. The Grievant s conduct on December 5-6, 2006 violated the Department of Safety s policy against sexual harassment in the workplace. (Department of Safety General Order 217, supra) As an employee of the Department, the Grievant was prohibited from making any unwelcome sexual advance [or] request for sexual favors, or engaging in any verbal or physical conduct of a sexual nature with a protected third party. As a county employee, working in an office down the hall from the Grievant, Ms. Stang is protected by the General Order s definition of sexual harassment. Despite her constant protestations, the Grievant continued to talk about her physical appearance, took pictures of her, touched her face and hair, and attempted to kiss her. These are all examples of verbal and physical conduct that is prohibited by the Department s policy. The policy also is clear that it is not necessary that the conduct meet the technical legal requirements of state or federal law to be a violation of the Department s policy. See, Department of Safety General Order 217, VI, C, 5. The General Order specifically provides that an employee who violates the Department s policy will be subject to appropriate disciplinary action up to and including termination. 4. In addition, the Grievant s conduct violated the Department s general Disciplinary Regulations as set out in Department of Safety General Order 216-2. Specifically, in his interaction with Ms. Stang, the Grievant abused his authority. As a uniformed officer, on duty (and carrying a firearm), his behavior can easily be interpreted as mistreatment of a member of the public. He caused her to become upset, intimidated and fearful. And, after he left her office following his failed attempt to kiss her, the Grievant called Ms. Stang on the telephone in an apparent attempt to keep her from reporting the incident by telling her that he knew some things about her past. That conduct meets the definition of Abuse of Authority, and is subject to disciplinary action, pursuant to Department of Safety General Order 216-2, IV,B,4. All of the described conduct violates the Department s prohibition against employees engaging in behavior that would reflect discredit on themselves and the department while on duty. Department of Safety General Order 216-2, II, Policy. 5. The Rules of the Tennessee Department of Personnel, Disciplinary Action, Chapter 1120-10, TENN. COMP. R. & REGS, describe certain prohibited conduct for State 7

employees that may result in disciplinary action being taken against them. As a State employee, the Grievant knew, or should have known, of the application of those Rules to his conduct. Those Rules contain the following provisions: 1120-10-.06 EXAMPLES OF DISCIPLINARY OFFENSES. The following causes are examples of those considered for disciplinary action and should not be considered the only causes of action. (4) Failure to maintain satisfactory and harmonious working relationships with the public... (8) Conduct unbecoming an employee in the State service. (12) Participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency or department... (24) For the good of the service as outlined in T.C.A. 8-30-326. 6. The Department alleged that, in addition to violating the Department s own General Orders, the Grievant s conduct was unprofessional and unbecoming a state employee, and that he failed to maintain satisfactory and harmonious working relationships with the public. When the Tennessee Highway Patrol employs an individual as a Trooper, and entrusts the safety of its citizens to him, the State has a right to expect that employee not only to adhere to all regulations specifically addressing the behavior of employees of the Department of Safety, but to conform his conduct to the rules and regulations that apply to all other employees of the State. The conduct engaged in by the Grievant on December 5-6, 2006 failed to do so. It was, without equivocation, abusive, inappropriate and intimidating, and fits squarely within the category of conduct unbecoming an employee in the State service. 2 Likewise, that same conduct, directed toward a member of the public as it was, meets the criteria for failure to maintain satisfactory and harmonious working relationships with the public. 3 Disciplinary action for this incident is, therefore, warranted not only as a violation of the orders and policies 2 See, Rule 1120-10-.06(8), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Personnel. 3 See, Rule 1120-10-.06(4), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Personnel. 8

that apply specifically to employees of the Department, but for violation of the general rules and regulations that apply to all state employees, as well. 7 A State employee may be disciplined for (1) causes relating to performance of duty, or (2) causes relating to conduct which may affect an employee s ability to successfully fulfill the requirements of the job. Rule 1120-10-.05, TENN. COMP. R. & REGS. A career employee may be warned, suspended, demoted or dismissed by his appointing authority whenever just or legal cause exists. The degree and kind of action is at the discretion of the appointing authority... Rule 1120-10-.02, TENN. COMP. R. & REGS. Although the law prescribes implementation of progressive discipline for State employees, it also provides that disciplinary action must be administered at the step which is most appropriate for the misconduct. (See, Tennessee Code Annotated 8-30- 330; and Rule 1120-10-.07, TENN. COMP. R. & REGS.) As the courts have recognized in other cases dealing with these provisions,... the key word in the statute is appropriate.... (T)he language of these provisions does not mandate application of discipline in a routine fashion without regard to the nature or severity of the behavior it is intended to address. The supervisor has discretion to determine what punishment fits the offense. Berning v. State, 996 S.W.2d 828, 830 (Tenn. App. 1999). The serious facts of this case argue in favor of a more significant sanction to address the proven misconduct. 8. When the Commissioner considered the issue of punishment in this case, he had a wide range of options at his disposal. (See, Rule 1120-10-.07, TENN. COMP. R. & REGS.) Dismissal from employment is one of those options. Rule 1120-10-.07(5), TENN. COMP. R. & REGS. Pursuant to that regulation, After minimum due process is provided, an employee may be dismissed by the appointing authority from his position for unacceptable conduct or performance of duties. Rule 1120-10-.07(5)(a), TENN. COMP. R. & REGS. Without a doubt, the Grievant s conduct was unacceptable, and warranted a significant sanction. The Grievant was employed as a State Trooper, a position that requires adherence to a high standard of conduct, and must command the respect and confidence of other employees of the Department, as well as the public at large. An 9

appointing authority 4 may dismiss any employee in the authority s division when the authority considers that the good of the service will be served thereby. Tennessee Code Annotated 8-30-326. 5 The Highway Patrol Captain who supervises the Jackson District testified at the hearing that, given the nature of the conduct involved, every uniformed officer in the state was probably aware of the allegations against the Grievant; and, that he would not want an officer who had engaged in such behavior working under his command. He believed word of the Grievant s actions would travel with him to any Highway Patrol District where he might work throughout his career. The egregious nature of the Grievant s conduct and the resulting damage to the reputation of the Grievant and the image of the Department, the Department s inherent loss of confidence in and respect for the Grievant s judgment and efficacy, and the negative impact of his conduct on the Department s mission, all weigh heavily in favor of dismissal from employment as the appropriate sanction in this case, for the good of the service. As the courts have previously observed: It must be conceded that the public payroll cannot be made a haven for those who with or without fault have become unable to perform the duties for which they were employed. It must likewise be conceded that the good of the service" may in proper cases justify or require the discharge of public employees when their efficiency or usefulness in their positions has been seriously impaired by their own fault, by the fault of others, or by blameless misfortune. Reece vs. Tennessee Civil Service Commission, 699 S.W.2d 808, 813 (Tenn. App. 1985). 9. The issues presented for consideration in this case are (1) whether the Department has proven, by a preponderance of the evidence, that the Grievant engaged in conduct prohibited by The Rules of the Tennessee Department of Personnel and/or the Department of Safety General Orders; and (2) if so, whether the disciplinary sanction imposed by the Commissioner was appropriate. With respect to both issues, the Department has met its burden of proof. 4 In this case, the appointing authority was the Commissioner of the Department of Safety. 5 See also, Rule 1120-10-.06(24), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Personnel. 10

IT IS THEREFORE CONCLUDED AND ORDERED that the Tennessee Department of Safety has met its burden of proof, and has established by a preponderance of the evidence that the Grievant, Thomas Irwin, engaged in conduct prohibited by The Rules of the Tennessee Department of Personnel and Department of Safety General Orders. IT IS FURTHER CONCLUDED AND ORDERED that the Grievant s dismissal from State employment is appropriate, and warranted by his conduct on December 5 and 6, 2006. Accordingly, IT IS FINALLY ORDERED that the Grievant s appeal of the Commissioner s decision to terminate his State employment is DISMISSED. Entered and effective this 12th day of February, 2008. J. Randall LaFevor, Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 12th day of February, 2008. Thomas G. Stovall, Director Administrative Procedures Division 11