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Alaska: Court Affirms Firing for Sexual Harassment Misconduct

By Susan R. Heylman  7/29/2014
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The City of Kenai, Alaska, had adequate evidence to support its firing of a city employee for misconduct based on charges of sexual harassment, the Alaska Supreme Court ruled in affirming the employee’s termination.

The employee was a building maintenance technician with the city’s public works department. A significant portion of his job duties involved maintenance services for the city recreation center. The recreation center was managed by employees of the Boys & Girls Club, some of whom were young women.

Following an investigation, the city manager concluded that the employee had sexually harassed three female Boys & Girls Club employees in violation of the city’s policy against sexual harassment. The employee was terminated on two charges: that the harassment constituted misconduct under the municipal code provision that listed grounds for disciplining city employees and that the employee could not perform the duties of his employment because of his actions, also a ground for dismissal.

After a termination hearing, the city personnel board upheld the termination, finding that the two charged grounds for termination were reasonable. The board found that the basis for the termination was not sexual harassment but rather was because his actions arose to the level of misconduct and that he would be unable to perform his job duties.

The superior court affirmed the board’s decision. The employee appealed to the high court, arguing that the personnel board violated his right to due process by terminating him for misconduct without finding that he had committed the underlying acts of sexual harassment.

The supreme court disagreed and ruled that the personnel board acted reasonably when it specifically approved the city manager’s determination that the employee engaged in misconduct that warranted termination.

The court noted that the city manager’s decision provided a lengthy recitation of the facts underlying his conclusion that the employee had committed misconduct. It detailed some of the comments that the employee had made to one of the female Boys & Girls Club employees: “that she could use him if she was lonely when her husband was gone, that she was a pretty chesty girl, and that she should go upstairs with him and take a nap together,” as well as an incident in which he commented to the female employee that she had narrowly avoided a view of his genitals in a bathroom and “missed seeing something she liked.”

Moreover, the court said, even if the employee’s interactions with the Boys & Girls Club employees did not violate the sexual harassment policy because they were not city employees, the evidence adequately supported the determination that he engaged in misconduct warranting his termination.

Nor did the termination violate the covenant of good faith and fair dealing, the court said, because the city manager made extensive findings supporting his conclusion of misconduct, and the personnel board gave a reasonable explanation of its decision to affirm the city manager’s action.

Brown v. City of Kenai Personnel Board, Alaska, No. 6916 (June 20, 2014).

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.
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