BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of the Appeal by ) SPB Case No. 37657

)
RONDA PHILLIPS ) BOARD DECISION
) (Precedential)
)
From 60 days suspension from the ) NO. 96-14
position of Dental Assistant )
with Sierra Conservation Center, )
Department of Corrections at )
Jamestown ) September 4-5, 1996

Appearances: Anne Giese, Attorney, California State Employees

Association, on behalf of appellant, Ronda Phillips; Hector C.
Lozano, Correctional Counselor II, Department of Corrections, on
behalf of respondent, Department of Corrections.

Before: Lorrie Ward, President; Floss Bos, Vice President; Ron

Alvarado, Richard Carpenter and Alice Stoner, Members.

DECISION
This case is before the State Personnel Board (Board) for

determination after the Board rejected the attached Proposed

Decision of the Administrative Law Judge (ALJ) in the matter of

the appeal by Ronda Phillips (appellant) from a sixty days'

suspension from the position of Dental Assistant with Sierra

Conservation Center, Department of Corrections at Jamestown

(Department).

Appellant was suspended for numerous instances of

inappropriate touching of a female co-worker, for making an

inappropriate remark, and for lying during an investigatory

interview. The ALJ found that appellant's misconduct constituted

cause for discipline under Government Code section 19572,

subdivisions (f) dishonesty, (m) discourtesy and (t) other failure

of good behavior, but declined to find that appellant's conduct
(Phillips continued - Page 2)

constituted sexual harassment under subdivision (w) unlawful

discrimination. The Board rejected the ALJ's Proposed Decision to

examine the issue of whether appellant's misconduct constituted

sexual harassment.

After a review of the entire record, including the

transcript, exhibits, and the oral and written arguments of the

parties, the Board agrees with the findings of fact in the

attached Proposed Decision and adopts these findings as its own.

The Board also concurs with the conclusions of law set forth in

the attached Proposed Decision in regard to Government Code 19572,

subdivisions (f), (m) and (t). For the reasons that follow, the

Board finds that appellant's misconduct constituted sexual

harassment under Government Code § 19572, subdivision (w),

unlawful discrimination, and that the penalty of sixty days'

suspension originally taken by the Department should be sustained

without modification.

ISSUES
The Board has been presented with the following issues for

its determination:

1. Does same-sex sexual harassment constitute cause for

discipline pursuant to Government Code § 19572, subdivision (w),

unlawful discrimination including sexual harassment?

2. What is the appropriate penalty under the

circumstances?
(Phillips continued - Page 3)

DISCUSSION
Same-sex Sexual Harassment

Government Code § 19572 includes as cause for discipline

subdivision (w) which prohibits "Unlawful discrimination,

including harassment, on the basis of . . . sex . . . against the

public or other employees while acting in the capacity of a state

employee." The meaning of the term "harassment on the basis of

sex" is not defined in the statute. Consequently, over the years,

the Board has sought guidance from analogous federal and state

legislation and case law. Robert F. Jenkins (1993) SPB Dec. No.

93-18 at p. 9. Guidance has been sought from two main sources.

The first is Title VII of the Civil Rights Act of 1964 (42 U.S.C.

section 2000e et seq.) which has been construed by the United

States Supreme Court to prohibit sexual harassment. Meritor

Savings Bank v. Vinson (1986) 477 U.S. 57. The second source is

the Fair Employment and Housing Act (FEHA) which prohibits

harassment "because of . . . sex." Government Code § 12940 (h)

(1); Fisher v. San Pedro Peninsula Hospital (1985) 214 Cal.App.3d

590, 608.

As noted in Jenkins, there are two generally recognized

categories of sexual harassment: quid pro quo harassment and

hostile work environment sexual harassment. "Quid pro quo sexual

harassment occurs whenever an individual explicitly or implicitly

conditions a job, a job benefit, or the absence of a job

detriment, upon an employee's acceptance of sexual conduct."

Nichols v. Frank
(Phillips continued - Page 4)

(9th Cir. 1994) 42 F.3d 503. Hostile work environment sexual

harassment occurs when "discrimination based on sex has created a

hostile or abusive work environment." Meritor Savings Bank, 447

U.S. at 66.1

Unsettled in the federal courts is the question of whether,

and under what circumstances, Title VII provides a remedy for

same-sex sexual harassment. Those federal courts which have

rejected same-sex sexual harassment claims generally rely on the

reasoning of Goluszek v. Smith (1988) 697 F.Supp. 1452. In

Goluszek, an unsophisticated man with little or no sexual

experience was humiliated when his male co-workers made explicit

and offensive sexual comments, showed him pictures of nude women

and poked him in the buttocks with a stick. The Goluszek court

held that a male versus male hostile environment claim was not the

"discrimination Congress was concerned about when it enacted Title

VII." Id. at 1456. The court explained that Congress was

concerned with discrimination "stemming from an imbalance of power

and an abuse of that imbalance by the powerful which results in

discrimination against a discrete and vulnerable group." Id. The

Goluszek court found that Title VII makes actionable "words or

actions that [say]

1
California courts have also recognized a hybrid of these two
theories. Under the hybrid theory, "unwelcome sexual advances
[are demonstrated to be] sufficiently pervasive so as to alter the
conditions of employment and create an abusive work environment."
Mogilefsky v. Superior Court (1993) 20 Cal. App. 4th 1409, 1415.
(Phillips continued - Page 5)

the victim is inferior because of the victim's sex", id., and

concluded that, because Goluszek was a male in a male dominated

environment, he could not have been treated as an inferior because

of his sex. In accord, Garcia v. Elf Atochen North America (5th

Cir. 1994) 28 F.3d 446; Ashworth v. Roundup Co. (W.D. Wash 1995)

897 F. Supp. 489, 494.

A number of federal courts have directly rejected the

reasoning of Goluszek. In Easton v. Crossland Mortgage (1995) 905

F. Supp. 1368, 1378, the court found that the plain language of

Title VII did not preclude a same-sex sexual harassment claim.

Likewise, another court found that Title VII's legislative

history and the Supreme Court's decision in Meritor supported

same-sex claims. Sardinia v. Dellwood Foods Inc. (1995) WL 640502

(S.D.N.Y.), 69 Fair Emp. Prac. Case (BNA) 705, 67 Emp. Prac. Dec.

p. 43,784 (Goluszek erred in ignoring the legislative history of

Title VII and in ignoring the sex neutral language used by the

Supreme Court in Meritor.) The Equal Employment Opportunity

Commission (EEOC) also takes the position that Title VII covers

same-sex harassment. EEOC Compliance Manual, § 615.2(b)(3)(1987).2

Even among the federal courts which have recognized same-sex

sexual harassment, however, there is disagreement over whether

Title VII covers situations in which the harasser is heterosexual.

2
Courts often defer to the EEOC's interpretation of Title VII
in light of the EEOC's responsibility to enforce the Act. See
Meritor Savings Bank v. Vinson, 477 U.S. at 67.
(Phillips continued - Page 6)

For example, in McWilliams v. Fairfax County Bd. of Supervisors

(4th Cir. 1996) 72 F.3d 1191, the court found that proof of

homosexuality is critical in making a same-sex harassment claim

cognizable under Title VII. Id. at 1195 n.5. The thinking behind

this requirement is that, in an opposite sex, heterosexual

interaction, there is a presumption that the harassment was

because of the victim's gender, but, in a same-sex heterosexual

interaction, there is no presumption that sexually suggestive

conduct is "because of sex." Id.

Two California courts have addressed the issue of same-sex

sexual harassment. In Hart v. National Mortgage & Land Co.

(1987) 189 Cal. App. 3d 1420, the employer sought summary

judgement against a male employee who claimed to have been

sexually harassed by his male supervisor. Hart's supervisor

allegedly subjected Hart to a series of verbal and physical

interactions including grabbing Hart's genitals, grabbing Hart

around the waist and trying to mount him, and making sexually

suggestive gestures accompanied by crude remarks. According to

the court, "Hart felt [his supervisor] was a pervert and was

singling him out for this treatment. [Hart] did not believe,

however, that [his supervisor] was doing this because he was

interested in having sex with Hart."

In one terse paragraph, the Hart court granted summary

judgment to the defendant stating:

Government Code section 12940, as here pertinent,

prohibits an employer from discriminating against his
(Phillips continued - Page 7)

employee in the "terms, conditions or privileges of

employment. . .because of sex." Hart does not here allege,
nor do the depositions show, that [the supervisor] harassed
Hart because of Hart's sex. Absent this, section 12940 does
not apply.

Six years later, another court of appeal, this time in the

Second District, took up the question of same-sex sexual

harassment. In Mogilefsky v. Superior Court (1993) 20 Cal.

App.4th 1409, a creative editor for a motion picture company

alleged that, among other things, his supervisor demanded that he

stay overnight in the supervisor's hotel suite, informed

Mogilefsky that he would receive more money if he cooperated, made

lewd and lascivious comments, and falsely implied to others that

Mogilefsky had had anal sex with him. The Second District Court

of Appeal refused to follow Hart explaining:

Hart is of questionable value as legal precedent. The

reviewing court's failure to deal with the undeniably sexual
nature of the conduct to which Hart was subjected, is, to say
the least, troublesome. Such conduct whether motivated by
hostility or by sexual nature, is always "because of sex"
regardless of the sex of the victim. Indeed, real parties in
interest herein admit that if Hart had been a woman, the
conduct alleged in that case would "unquestionably have
constituted sexual harassment under § 12940. . ." Id. at
1415-1416.3

In Mogilefsky, the court of appeal went on to find that the

plain language of section 12940 did not preclude same-sex sexual

harassment. In addition, the court specifically rejected the

3
The court of appeal also distinguished Hart as interpreting
section 12940, subdivision (a) which is aimed at various forms of
employment discrimination while the Mogilefsky court was
interpreting section 12940, subdivision (h). Id. at 1414.
(Phillips continued - Page 8)

"empowerment" rationale of Goluszek, holding that a person

subjected to the behavior to which Goluszek was subjected was

"entitled to the protection provided by Government Code § 12940

regardless of whether he or she is otherwise 'empowered.'" Id. at

1417.

The court also specifically rejected a requirement that the

harasser's homosexuality be proven. The court held: "The focus

of a cause of action brought pursuant to Government Code section

12940 is whether the victim has been subjected to sexual

harassment, not what motivated the harasser." Id. at 1418. The

Mogilefsky court's focus on the victim is similar to the focus of

the Ninth Circuit in Ellison v. Brady (9th Cir. 1991) 924 F.2d 872

where the court found that perspective of the victim is the

relevant inquiry, not the intention of the harasser. Id. at 880.

Thus, under Mogilefsky, a cause of action can be brought

under section 12940, subdivision (h) under a theory of same-sex

sexual harassment4. The same standards for determining whether

4
The court in Mogilefsky noted two FEHA cases which addressed
the issue of same-sex sexual harassment and found such claims
cognizable under FEHA. 20 Cal. App. 4th at 1416. Of particular
interest is Department of Fair Employment and Housing v. Villazar
de la Cruz, Inc. (1990) No. 90-04 in which the Commission found
hostile work environment sexual harassment when Tina Ritchie, a
female employee, repeatedly grabbed the breasts of another female
employee. Ritchie claimed her behavior was meant to be merely
playful, an explanation the FEHC found not to be credible. The
commission found that Ritchie's conduct constituted a pattern of
unwelcome conduct of a sexual nature. The Commission did not make
a finding that Ritchie was homosexual or that the conduct was
homosexual in nature.
(Phillips continued - Page 9)

sexual harassment has occurred that are applied in opposite sex

sexual harassment complaints filed under the FEHA are to be

applied to same-sex sexual harassment cases.

Given that Mogilefsky clarifies that a cause of action exists

under the FEHA for same-sex sexual harassment, we believe it

appropriate to conclude that an employee may be disciplined under

Government Code section 19572(w) for engaging in same-sex sexual

harassment.5 To ascertain whether a department has cause to

discipline an employee for same-sex sexual harassment, we will

also apply the same standards we have always applied in cases

where an employee is being disciplined for sexual harassment

towards a member of the opposite sex. See, e.g., Robert J.

Jenkins (1993) SPB Dec. No. 93-18.

Having found that Romine is protected under the law from

sexual harassment by appellant, another female, we turn to the

issues of whether she was subject to unwelcome sexual harassment,

whether the harassment complained of was based on sex, and whether

the harassment complained of was sufficiently severe and pervasive

5
As noted above, the Board has referred to both Title VII and
FEHA case law to inform its interpretation of Government Code §
19572, subdivision (w) which prohibits sexual harassment in the
state service. Where interpretation of these statutes diverge,
however, the Board is, necessarily, more linked to FEHA. Both the
Civil Service Act and the FEHA are California statutes. Both were
amended at the same time to create better protection for victims
of sexual harassment. (See Stats 1985 Ch. 1754 for amendments to
both FEHA and section 19572 regarding sexual harassment.)
Consequently, the Board gives great weight to FEHA case law.
(Phillips continued - Page 10)

so as to alter the conditions of her employment and create an

abusive working environment. Fisher v. San Pedro Peninsula

Hospital (1985) 214 Cal.App.3d 590, 609.

In the present case, the ALJ found that appellant repeatedly

patted or grabbed Romine's buttocks, conduct which, Romine

testified, made her feel embarrassed and humiliated. In fact,

Romine testified to feeling "raped" by these unwanted touches.

Appellant's other offensive conduct included playing with Romine's

hair, kissing Romine on the lips, giving Romine a "bear hug" and

asking Romine "Want to go home and go to bed with me?" We find

that appellant's conduct is clearly of a sexual nature and,

whether "motivated by hostility or by sexual interest, [such

conduct] is always 'because of sex' regardless of the sex of the

victim." Mogilefsky 20 Cal.App.4th 1415-1416.

Romine asserted that this unwelcome conduct made her feel

embarrassed and humiliated. Thus, we find that Romine personally

felt offended by the appellant's conduct.

Case law has established, however, that the fact that a

victim is subjectively offended is not enough to establish sexual

harassment: the conduct must also be offensive from an objective

point of view. Harris v. Forklift (1993) 126 L. Ed. 2d 295, 302;

see also Ellison v. Brady (9th cir. 1991) 924 F.2d 880. In

Ellison, the Ninth Circuit Court of Appeals set forth the test as

whether a "reasonable woman would consider [the conduct to be]

(Phillips continued - Page 11)

sufficiently severe or pervasive to alter the conditions of

employment and create an abusive working environment." 924 F.2d

at 879.

In the instant case, the ALJ found that a reasonable woman

would not construe appellant's conduct as sexual harassment. The

ALJ appeared to base this finding on the reactions of two female

coworkers who did not characterize the conduct they each witnessed

as sexual in nature.6 Neither of these women were present for all

the incidents, however. As required by Harris, the Board must

look at all the circumstances. 126 L. Ed. 2d at 302. Over a two

year period, despite repeated requests that appellant stop, Romine

was subjected to numerous pats and grabs of her buttocks, an

unwanted bear hug, repeated fondling of her hair, and a kiss on

the lips. Appellant's conduct is clearly conduct that a

reasonable woman would find offensive.

In the instant case, appellant's offensive conduct was of a

blatantly sexual nature comparable to the conduct in Hart which,

as the court in Mogilefsky observed, would '"[u]nquestionably have

constituted sexual harassment under § 12940"' if the perpetrator

had been of the opposite sex of the victim. Mogilefsky 20 Cal.

App. 4th at 1416. As discussed above, the conduct of repetitive

6
Youngberg saw appellant give Romine a bear hug, play with
Romine's hair and heard appellant make the "Want to go to bed with
me" comment. Garcia witnessed the kiss and initially attributed
it to the Christmas holidays.
(Phillips continued - Page 12)

unwelcome touching, a bear hug, and a kiss on the lips and a

suggestive remark, has been demonstrated to be both subjectively

and objectively offensive. Finally, the repetitive nature of the

sexual conduct is conduct sufficiently severe and pervasive to

alter the terms and conditions of Romine's employment and create a

hostile work environment. This is particularly true since Romine

repeatedly asserted both verbally and non-verbally that the

conduct was unwelcome and she wanted the conduct to stop.

Appellant's conduct constitutes sexual harassment pursuant to

Government Code § 19572, subdivision (w), unlawful discrimination

including sexual harassment.

PENALTY
When performing its constitutional responsibility to review

disciplinary actions [Cal. Const. Art. VII, section 3(a)], the

Board is charged with rendering a decision which is "just and

proper". (Government Code section 19582.) In determining what is

a "just and proper" penalty for a particular offense, under a

given set of circumstances, the Board has broad discretion. (See

Wylie v. State Personnel Board (1949) 93 Cal.App.2d 838.) The

Board's discretion, however, is not unlimited. In the seminal

case of
(Phillips continued - Page 13)

Skelly v. State Personnel Board (Skelly) (1975) 15 Cal.3d 194, the

California Supreme Court noted:

While the administrative body has a broad discretion in

respect to the imposition of a penalty or discipline,
it does not have absolute and unlimited power. It is
bound to exercise legal discretion which is, in the
circumstances, judicial discretion. (Citations) 15
Cal.3d at 217-218.

In exercising its judicial discretion in such a way as to

render a decision that is "just and proper," the Board considers a

number of factors in assessing the propriety of the imposed

discipline. Among the factors the Board considers are those

specifically identified by the Court in Skelly as follows:

...[W]e note that the overriding consideration in these

cases is the extent to which the employee's conduct
resulted in, or if repeated is likely to result in
[h]arm to the public service. (Citations.) Other
relevant factors include the circumstances surrounding
the misconduct and the likelihood of its recurrence.
(Id.)

Whether characterized as discourtesy or as sexual harassment,

appellant's conduct created an uncomfortable and offensive working

environment for Romine. While it is true that appellant has no

prior adverse actions and, once a complaint had been filed, ceased

her offensive conduct, it is also true that the victim of

appellant's misconduct repeatedly asked her to stop her offensive

conduct but was ignored. In addition, the ALJ found, and the

Board agrees, that appellant was dishonest during her

investigatory interview.
(Phillips continued - Page 14)

The sixty days' suspension taken by the Department is well

supported under the circumstances and is sustained without

modification.
ORDER

Upon the foregoing findings of fact and conclusions of law

and the entire record in this case, and pursuant to Government

Code sections 19582, it is hereby ORDERED that:

1. The adverse action of a sixty days' suspension taken

against Ronda Phillips is hereby sustained.

2. The Proposed Decision of the Administrative Law Judge

is adopted to the extent it is consistent with this decision;

3. This decision is certified for publication as a

Precedential Decision pursuant to Government Code section 19582.5.

THE STATE PERSONNEL BOARD

Lorrie Ward, President

Floss Bos, Vice President
Ron Alvarado, Member
Richard Carpenter, Member
Alice Stoner, Member

* * * * *

I hereby certify that the State Personnel Board made and

adopted the foregoing Decision and Order at its meeting on

September 4-5, 1996.

C. Lance Barnett, Ph.D.

Executive Officer
State Personnel Board
(Phillips continued - Page 1)

BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA

In the Matter of the Appeal by )

)
RONDA PHILLIPS ) Case No. 37657
)
From 60 days suspension from )
the position of Dental Assistant )
with Sierra Conservation Center )
Department of Corrections at )
Jamestown )

PROPOSED DECISION

This matter came on regularly for hearing before Kymberly M.

Pipkin, Administrative Law Judge, State Personnel Board (SPB or

Board), on August 23 and September 1, 1995, at Jamestown,

California.

The appellant was present and was represented by Anne Giese,

Attorney, California State Employees Association.

The respondent was represented by Hector C. Lozano,

Correctional Counselor II, Department of Corrections (CDC).

Evidence having been received and duly considered, the

Administrative Law Judge makes the following findings of fact and

Proposed Decision:

JURISDICTION

The above 60 days suspension, effective at the close of

business on June 8, 1995, and appellant's appeal therefrom, comply

with the procedural requirements of the State Civil Service Act.

(Phillips continued - Page 2)

II

Appellant began working for the State of California as a

Dental Assistant at Sierra Conservation Center (Sierra) on

June 18, 1990. She has no prior disciplinary action.

III

As cause for discipline, respondent alleged that during 1993,

appellant repeatedly touched the buttocks of a female dental

assistant despite being requested not to do so; kissed her on the

lips; gave her a bear hug from behind; asked her to go home and go

to bed with her; played with her hair; and was less than honest

about her activities during an investigative interview.

Respondent alleged that appellant's conduct constituted

dishonesty, discourteous treatment of another employee, and other

failure of good behavior, on or off duty, which caused discredit

to the agency, and unlawful discrimination, including sexual

harassment, in violation of Government Code section 19572,

subdivisions (f), (m), (t), and (w), respectively.

In addition, respondent alleged violation of the CDC

Director's Rules, Title 15, California Code of Regulations,

section 3391 (Conduct), as legal cause for discipline. Any

violation of this regulation is subsumed within the provisions of

Government Code section 19572. Although a regulation may

". . .provide detail which amplifies the claimed application of a

stated 'cause' to the case. . ." (Negrete v. State Personnel Board

(1989)
(Phillips continued - Page 3)

213 Cal.App.3d 1160, 1168), a separate finding of violation of

this regulation as legal cause for discipline is not required.

IV

PROCEDURAL ASPECTS

Respondent called five witnesses and introduced two exhibits

which were received into evidence. Appellant testified on her own

behalf, called three witnesses, and presented eleven exhibits

which were received into evidence. Witnesses were

sequestered. The case was submitted for decision after closing

oral argument at the end of the hearing on September 1, 1995.

FINDINGS OF FACT

The Sierra dental clinic is a busy facility, unless the

institution is on lock-down status. Three or four dental

assistants, one office assistant, and five dentists work in close

quarters. Along one wall are four small dental operatories

separated by a waist-high walls, without doors. Oral surgeries

are performed in the fifth operatory, a slightly larger room with

a door.

Along the opposite wall is a reception area, and four small

rooms, each with a door: a "hot room", which is locked and

contains supplies; a sterilization room; an x-ray room; and a

laboratory. The hallway between the two walls is fairly narrow.

(Phillips continued - Page 4)

The Chief Dentist, Dr. Arland Pafford (Pafford), has an office in

an adjoining building.

VI

Appellant and Donna Romine (Romine) have worked at Sierra for

approximately five years as dental assistants. They assist the

dentists, take x-rays and sterilize instruments. A sterilized set

of instruments is required for each patient, and dental assistants

are therefore frequently in the sterilization room. The room is

small, and it is difficult for two people to pass each other

without touching.

VII

Romine contended that appellant frequently patted, slapped

and/or grabbed her buttocks with her hand, usually in the

sterilization room. Each physical contact lasted a second or two.

Romine was certain that the physical contact was intentional.

She could not remember any dates when appellant touched her

buttocks, except for May 24, 1994. She estimated that appellant

had grabbed her five times and patted her five times during 1993,

usually in the sterilization room. Sometimes Romine told

appellant to stop it. Other times, she just kept walking without

comment. Romine was humiliated and embarrassed, and testified

that she felt "raped" by the contact.

The last time that appellant patted Romine's buttocks on

May 24, 1994, Romine filed a written complaint with Pafford about
(Phillips continued - Page 5)

appellant's action and other conduct which Romine found offensive.

Romine was unsure if any coworkers had witnessed the

touching. She testified that she had been teased by some inmate-

assistants who observed it. No other witnesses testified to

observing appellant touch Romine on the buttocks. Appellant

denied touching Romine's buttocks intentionally. Because of the

close quarters in the dental clinic, she acknowledged that she has

bumped into other employees, including Romine.

VIII

Romine testified that appellant played with her hair, which

is waist-length. She estimated that these incidents occurred

seven to ten times in 1993, although she could not cite specific

dates. Except for a few occasions, no one else was present.

Loretta Youngberg (Youngberg), another dental assistant, saw

appellant run her fingers through Romine's hair, and state, "I

just love to run my fingers through her hair" twice. Youngberg

did not remember the dates of these incidents, but recalled that

they took place in 1993. The first time, Romine gestured for

appellant to stop. The second time, Romine told appellant to stop

touching her hair. Romine appeared embarrassed and offended both

times. Youngberg did not believe there was anything sexual in the

manner in which appellant touched Romine's hair.

Appellant denied that she played with Romine's hair at any

time.
(Phillips continued - Page 6)

IX

Sometime during 1993, Youngberg was in the hot room, and

Romine was inside the door. Appellant came up behind Romine,

threw her arms around Romine's rib cage, and gave her a "bear"

hug. Romine squirmed, and stated, "Don't, you're not my type.

You're not a man." Appellant released Romine and laughed. The

entire incident lasted three or four seconds. Romine appeared to

be embarrassed and humiliated, according to Youngberg.

Appellant denied that she gave Romine a bear hug at any time.

On several occasions, she placed her hands on Romine's rib cage

to keep Romine from backing up onto her feet. Appellant has no

toenails, and it is painful if someone steps on her feet.

During December 1993, Romine was seated in the assistant's

chair in front of the reception counter where office assistant

Gloria Garcia (Garcia) worked. The assistant's chair is somewhat

higher than other chairs in the clinic. Garcia observed appellant

"fly in", "smack" Romine on the lips with her lips, and continue

down the hall. Romine appeared startled and embarrassed. Garcia

was shocked. After a minute or two, Garcia told Romine, "Tell me

you didn't see what I saw." According to Garcia, Romine stated,

"Yes, you did." Romine testified that she remarked, "No, you

didn't see anything." because she was embarrassed.

(Phillips continued - Page 7)

Garcia thought that appellant kissed Romine because of the

festive nature of the holidays. She recalled the incident as

occurring between Christmas and New Year's Day. Romine testified

that the kiss occurred around the holidays, but could not say that

it took place between Christmas and New Year's Day.

Appellant denied kissing Romine. She produced her time sheet

for December 1993, which indicated that she was not at work

between Christmas and New Year's Day.

XI

One morning in May 1994, Youngberg was in the sterilization

room near the door. Romine was in the middle of the room and

appellant was near the autoclav. Romine complained that she was

tired. Appellant turned to Romine and stated, "I am too. Want to

go home and go to bed with me?" Romine replied, "No thank you."

She appeared to be offended. Youngberg recalled that the three

coworkers were talking about how tired they were. Appellant told

Romine, "You can come home and go to bed with me." Youngberg did

not believe that appellant's remark was sexual, as appellant's

voice was not leering or suggestive; Youngberg did characterize

her comment as "weird." Romine took the comment seriously,

believed it to have a sexual connotation, and considered it

disgusting. She was embarrassed.

Appellant denied that she asked Romine to go to bed with her.

On one occasion, she invited Romine to stay at her house, because

(Phillips continued - Page 8)

Romine was breaking up with a boyfriend who took drugs. Youngberg

was present during this conversation, according to appellant.

Appellant stated that Romine thanked her, and said she might

accept if she could not find other accommodations.

XII

After Romine filed the complaint with Pafford, an

investigation was conducted by Lieutenant Janice Leach (Leach).

In September 1994, Leach interviewed appellant, who was

accompanied by a union representative. Appellant had a back

injury, and was in pain during the interview. Leach did not ask

appellant if she was on any medication at the time.

Leach testified that appellant denied the allegations. Leach

did not ask Romine when or how often appellant touched her

buttocks. Therefore, Leach did not ask appellant about any

specific incidents.

Appellant emphatically denied that she kissed Romine. She

told Leach that she may have inadvertently touched Romine.

Appellant testified that the interview took no more than 15

minutes.

XIII

Three dentists, Drs. Paul Berger (Berger), Michael Patterson

(Patterson), and Robert Robertson (Robertson) testified that they

did not see appellant touch Romine, hear any of the remarks

alleged, or learn about the allegations through office gossip.

(Phillips continued - Page 9)

During 1993 and 1994, appellant usually assisted Robertson with

oral surgeries. Robertson can see the door to the hot room from

his operatory but cannot see inside the room; Berger can see

directly into the sterilization room from his operatory; and

Patterson can see into the hot room from his operatory.

* * * * *

PURSUANT TO THE FOREGOING FINDINGS OF FACT, THE

ADMINISTRATIVE LAW JUDGE MAKES THE FOLLOWING DETERMINATION OF

ISSUES:

Appellant testified that Romine fabricated the incidents to

distract attention from complaints appellant had filed about

Romine's over-familiarity with inmates. Appellant wrote notes

each day at work about events in the office, which she later

transferred into a journal. Appellant intended to give her notes

to Pafford, but did not do so. Appellant claimed that Romine knew

about her notes, but no evidence supported this conclusion.

Appellant contended that since 1990, she complained to Pafford on

numerous occasions about Romine's over-familiarity with inmates,

but Pafford never acted.

Berger believed that Romine misrepresented appellant's

actions to retaliate against appellant for complaining about

Romine's over-familiarity with inmates to Pafford. Berger was not

present when appellant told Pafford about Romine's conduct;

rather, appellant informed him that she had complained to Pafford.

Berger discussed
(Phillips continued - Page 10)

Romine's behavior with Pafford on several occasions, but Pafford

did not take any action.

Pafford testified that appellant made most of her claims

about Romine after Romine filed her complaint about appellant. He

also stated that both employees also complained about other

issues, such as cleanliness in the clinic. Pafford, Berger and

Robertson observed that Romine and appellant did not always get

along during their employment. Appellant and Romine testified

they tried to work well with each other.

Appellant did not file a written or formal complaint against

Romine. The evidence of appellant's complaints about Romine

consisted of her personal notes, which were never given to anyone

at Sierra, and a memorandum (memo) dated October 24, 1991 from

Pafford to appellant and Romine. The memo documented appellant's

complaint that Romine gave a neck rub to an inmate, and Romine's

denial of the incident, claiming that she was assisting another

dentist at the time .

It is unlikely that Romine would wait three years to

retaliate against appellant from her only documented complaint.

There is no evidence that appellant ever filed a formal complaint

against Romine, or that Romine was under investigation for over-

familiarity with inmates. Although Berger and appellant

complained to Pafford about Romine, Pafford was apparently

satisfied that Romine had not engaged in misconduct because Romine

was not admonished or

(Phillips continued - Page 11)

disciplined. Thus, there was no need for Romine to fabricate

allegations against appellant to retaliate against her or distract

attention away from Romine's alleged misbehavior.

Given the busy nature of the office, and because the dentists

must concentrate on the patients, it is not surprising that the

dentists did not observe the incidents between appellant and

Romine, which lasted several seconds at most. Their failure to

see any alleged impropriety does not negate the allegations.

Appellant argued that Youngberg was untruthful because she is

a close friend of Romine's. Youngberg acknowledged that she

considers Romine a friend. That alone is not reason to discount

her testimony, however. Youngberg was a credible witness. She

did not support Romine's contentions in several key respects. She

did not perceive appellant's conduct in playing with Romine's

hair, hugging her, or comments as sexual in nature, while Romine

did. Youngberg witnessed four separate incidents. Had she

colluded with Romine, it is more likely that she would have

claimed to have witnessed all of the incidents, such as the

touching of Romine's buttocks and appellant's additional playing

with Romine's hair.

Appellant described Garcia as a "parrot personality," who

repeated whatever she was told to say by Pafford, Youngberg, and

Romine. Garcia testified that her relationships with coworkers

are professional, and she does not socialize with any of them.

Garcia was a credible witness. She was a disinterested third

party. She
(Phillips continued - Page 12)

simply reported what she observed. She recalled the kiss occurred

during the holidays, and believed that it took place between

Christmas and New Year's Day. There was no reason for Garcia to

have documented the kiss, and she did not report it to anyone.

Although appellant was not at work between Christmas and New

Year's Day, this fact does not render Garcia's observation

suspect.

Appellant contended that the allegations concerning her

touching of Romine's buttocks and playing with her hair were

defective under Leah Korman (1991) SPB Dec. No. 91-04, as not time

specific, other than occurring "during 1993." Given the nature of

the allegations, the lack of specified dates does not render the

allegations fatally defective. The actions occurred between

peers. Romine had no reason to document appellant's behavior

until May 24, 1994, when she had "finally had enough," and filed a

written complaint with her supervisor.

There was no evidence that either appellant or Romine had

received training on sexual harassment, how to document it and how

to file a complaint. Romine testified that she had filed a sexual

harassment complaint against a male superior prior to her service

with the state, and acknowledged that she did make notes about his

behavior. She did not document appellant's conduct, however,

because she did not expect sexual harassment from a female

coworker. Although she did make some notes about appellant's

(Phillips continued - Page 13)

actions, these concerned other harassment that Romine believed she

received from appellant.

Romine told appellant not to play with her hair. Appellant

continued to do so on at least five to seven occasions in 1993.

Two were witnessed by Youngberg.

There were no witnesses to appellant's grabs and pats to

Romine's buttocks other than the two employees. Romine testified

that the conduct usually occurred in the sterilization room. All

witnesses agreed that the room is a very cramped working space.

Romine testified that she bumped into a coworker at least once a

month there, even though she was careful. Romine did not complain

that appellant touched her on the rib cage, perhaps recognizing

that appellant was protecting her feet. A pat or grab of the

buttocks area with a hand is not designed to keep someone at bay

even in a small space, however, and is different than a bump by a

body in a cramped space.

The testimony of Romine, Garcia, and Youngberg is credited

under Evidence Code section 780, and appellant's denials are

discredited under the same standards.7

Romine told appellant not to touch her buttocks on some

occasions, and kept moving on other occasions. She was visibly

7
The following factors are identified: demeanor;
character; testimony; capacity to proceed/communicate;
bias/interest/motive; prior consistent/inconsistent statement;
attitude; admissions of untruthfulness; and
existence/nonexistence of facts testified to.
(Phillips continued - Page 14)

embarrassed when given a bear hug, a kiss, and when appellant made

the remark about going to bed with her. Appellant's behavior

persisted, despite indications from Romine that her antics were

not appreciated. Appellant's touching of Romine's buttocks and

hair, hugging her, kissing her, and the going to bed remark were

inappropriate in the workplace, unwelcome, and constituted rude

and discourteous treatment in violation of Government Code section

19572 (m). Appellant's behavior also constituted other

failure of good behavior on duty which caused discredit to the

agency in violation of Government Code section 19572 (t). A

violation of subdivision (t) requires that the misconduct bear

some relationship to appellant's employment and that the

misconduct bring discredit to the public service. (Yancey v.

State Personnel Board (1985) 167 Cal.App.3d 478, 486.)

Appellant's conduct toward Romine occurred during work hours. The

potential that such disrespectful action toward a staff member

could be witnessed by inmates was great. Employees cannot be

required to work under conditions where they are harassed by other

coworkers. Discredit would accrue to CDC and Sierra if the public

were aware that its employees harassed one another in such a

manner, although knowledge is not required. (Nightengale v. State

Personnel Board (1972) 7 Cal.3d 507, 512-14.)

The Board applies the legal standards set forth under Title

VII and the Fair Employment and Housing Act to determine whether
(Phillips continued - Page 15)

conduct is sufficiently egregious to constitute unlawful

discrimination and sexual harassment under Government Code section

19572 (w). (Robert F. Jenkins (1993) SPB Dec. No. 93-18.) The

inquiry is whether the conduct was sufficiently hostile or abusive

to a "reasonable woman" so as to constitute unlawful

discrimination. The factors to be weighed in this inquiry include

the frequency of the discriminatory conduct, its severity, whether

the conduct is physically threatening or humiliating or a mere

offensive utterance, and whether it unreasonably interferes with

an employee's work performance. (Walter L. Masters (1995) SPB

Dec. No. 95-13; Harris v. Forklift Systems, Inc., (1993) 126 L.Ed

2d 295.) Instances of offensive behavior must be more than

occasional, isolated, sporadic or trivial to be actionable as

sexual harassment. (Clayton Carter (1994) SPB Dec. No. 94-21;

Theodore White (1994) SPB Dec. No. 94-20.)

Youngberg did not perceive the bear hug, playing with

Romine's hair or appellant's remarks to Romine to be of a sexual

nature. Garcia also did not perceive the kiss to be sexual, but

given in the spirit of a festive holiday.

Appellant briefly touched Romine's buttocks with her hand on

at most 11 occasions during a year and a half. The behavior did

not simulate penetration or touching of the genital area. Romine

testified that appellant's touching of her buttocks made her feel

"raped." The question is whether a reasonable woman would

construe
(Phillips continued - Page 16)

the behavior to be sexual harassment. Romine's reaction to the

touching of her buttocks markedly contrasts with her description

of the physical contact. The two female witnesses to appellant's

other conduct toward Romine also did not construe it as sexual,

although Romine certainly did. Their reactions differed from

Romine's perception, and indicates that Romine's reaction of

"rape" to the touching of her buttocks was an overreaction. It is

concluded that a reasonable woman would not have found appellant's

harassment to be sexual in nature, but rather as immature behavior

designed to upset her.

Romine testified that her blood pressure became elevated

because of appellant's conduct. Both Youngberg and Pafford took

Romine's blood pressure after Romine filed the complaint, and

found it to be above average. Romine's elevated blood pressure

reflects the stress inherent in filing a complaint against a

coworker. After Romine filed the complaint, she acknowledged that

the sexual harassment stopped. She claimed that appellant

harassed her in other ways, however. Although that conduct may

have contributed to Romine's high blood pressure, it was not

charged in the notice of adverse action. Appellant's behavior

toward Romine was childish, annoying, and embarrassing to Romine.

It was harassment, but not sexual harassment and unlawful

discrimination in violation of Government Code section 19572 (w).

That charge is therefore dismissed.

(Phillips continued - Page 17)

Although appellant may have experienced back pain during the

investigative interview, it was not established that she lacked

the capacity to answer questions. Her union representative was

present, and she had 24 hours advance notice of the interview.

Appellant denied kissing Romine during the investigation. She

denied other charged misconduct in more general terms. She was

not asked about the bear hug. With the exception of that

incident, appellant was dishonest when she denied that she patted

or grabbed Romine's buttocks, kissed her on the lips, played with

her hair, and/or asked her to go to bed. Her untruthful

statements constituted dishonesty in violation of Government Code

section 19572 (f). (M . M (1995) SPB Dec. No. 95-01.)

Penalty

The remaining issue is the appropriateness of the penalty.

Under Skelly v. State Personnel Board (1975) 15 Cal.3d 194, the

factors for the Board to consider in assessing the propriety of

the imposed discipline are the extent to which the employee's

conduct resulted in or, if repeated, is likely to result in, harm

to the public service; the circumstances surrounding the

misconduct; and the likelihood of its recurrence.

Romine acknowledged that after the investigation started,

appellant ceased physical contact with her, although she believed

that appellant continued to harass her by complaining to Pafford.

This misconduct was not charged, however.

(Phillips continued - Page 18)

Appellant has no prior disciplinary action. Her performance

evaluations, and the dentists who work with her attest to her

outstanding job performance.

Given that appellant ceased the conduct once apprised of

Romine's complaints, the likelihood of recurrence is minimal. The

charge of unlawful discrimination and sexual harassment was not

sustained. The penalty of a 60 days suspension is therefore too

severe, and is modified to a 30 days suspension. The modified

penalty is just and proper, and sufficient to establish a record

of progressive discipline.

* * * * *

WHEREFORE IT IS DETERMINED that the adverse action of 60 days

suspension of appellant Ronda Phillips, effective at the close of

business on June 8, 1995, is modified to a 30 days suspension.

Said matter is hereby referred to the Chief Administrative

Law Judge and shall be set for hearing upon the written request of

either party in the event the parties are unable to agree as to

the salary, benefits and interest, if any, due appellant under the

provisions of Government Code section 19584.

* * * * *
(Phillips continued - Page 19)

I hereby certify that the foregoing constitutes my Proposed

Decision in the above-entitled matter and I recommend its adoption

by the State Personnel Board as its decision in the cases.

DATED: December 1, 1995.

KYMBERLY M. PIPKIN
Kymberly M. Pipkin,
Administrative Law Judge,
State Personnel Board.