Cox v. STATE EX REL. OKLAHOMA DHS, 96,899.

Decision Date09 March 2004
Docket NumberNo. 96,899.,96,899.
Citation87 P.3d 607,2004 OK 17
PartiesBruce R. COX, Petitioner/Appellee, v. STATE of Oklahoma, ex rel., OKLAHOMA DEPARTMENT OF HUMAN SERVICES, Respondent/Appellant, and Oklahoma Merit Protection Commission, Respondent.
CourtOklahoma Supreme Court

Charles L. Waters, General Counsel, Richard A. Resetaritz, Assistant General Counsel, Oklahoma Department of Human Services, Oklahoma City, OK, for Respondent/Appellant.

Robert W. Cole, Oklahoma City, OK, for Petitioner/Appellee.

KAUGER, J.:

¶ 1 We granted certiorari to determine whether: 1) in all instances, 74 O.S.2001 § 840-6.31 or Merit Protection Commission Rule OAC 455:10-11-42 require an employer to progressively discipline an employee before discharge or to demonstrate that some lesser disciplinary act would be ineffective before imposing a more stringent penalty; and 2) the factual determination to uphold the employee's discharge was clearly erroneous in view of the reliable, material, probative and substantially competent evidence or arbitrary or capricious.3 We determine that 74 O.S.2001 § 840-6.3 and Merit Protection Commission Rule OAC 455:10-11-4 do not mandate the institution of progressive discipline before discharge in all causes nor do they require employers to prove that some less severe disciplinary act would be ineffective before imposing a more stringent penalty. Furthermore, although the record contains conflicting evidence on the issues of sexual harassment and retaliation, the factual determination to uphold the employee's discharge was neither clearly erroneous in view of the reliable, material, probative and substantially competent evidence nor was it arbitrary or capricious. Therefore, this Court will not substitute its judgment for that of the agency on its factual determinations.4

CONTESTED FACTS

¶ 2 On December 3, 1974, the petitioner/appellee, Bruce R. Cox (Cox), went to work as a permanent classified employee for the respondent/appellant, Oklahoma Department of Human Services (DHS/employer). In May of 1999, while Cox occupied the position of County Director, the Office for Civil Rights received a complaint indicating that he had engaged in sexual harassment and created a hostile work environment. Cox's supervisor filed the complaint based upon the allegations of Glenda Trekell (Trekell/complainant). Trekell asserted that Cox made unwelcome sexual remarks, repeatedly told dirty jokes, traded "favors for favors", and engaged in physical contact with other female employees. Representatives of the Office of Civil Rights: interviewed staff from Cimarron, Beaver, Texas, Woodward and Alfalfa Counties; reviewed electronic mail sent to and received from Cox; and perused personnel files to determine whether Cox had promoted an employee from Secretary I to Social Worker Assistant without her having met the requirements for the position.

¶ 3 When interviewed, Cox did not deny making sexual remarks. Rather, he indicated that he had made such remarks "to half the state". Documentation did not indicate that the secretary met the requirements for a promotion to a social worker position. Although not directly supervised by Cox, the Office of Civil Rights determined that one female employee had taken a voluntary demotion to avoid the hostile work environment Cox created. Furthermore, it uncovered evidence demonstrating Cox's use of DHS's electronic mail system to conduct personal romances and to send sexually oriented jokes demeaning to women. It determined that Cox violated DHS policy relating to: the courteous treatment of clients and employees; conduct unbecoming a public employee; and willful violation of the Oklahoma Personnel Act, 74 O.S.2001 § 840-1.1 et seq. His actions were also found to violate Title VII of the Civil Rights Act of 1964 and administrative prohibitions against the misuse of position and policy. The Office of Civil Rights recommended that Cox be disciplined and that the voluntarily demoted worker be reinstated to her prior position with pay.

¶ 4 On January 4, 2000, Cox's supervisor wrote Cox indicating that he was being given notice of a proposed adverse action—discharge. A revised letter was forwarded on January 11, 2000. On the same dates, under separate cover, Cox was provided documents relating to the termination decision. Although Cox contends that he was never advised that the investigative materials were confidential, both these transmittals provide that the investigative summary was a confidential document maintained separately from the employee's local personnel file. Furthermore, the investigators with the Office of Civil Rights and Cox's supervisor assert that they discussed with Cox, in-depth, his responsibility in regard to confidentiality and retaliation.

¶ 5 Following receipt of the termination notice, Cox called a meeting of all staff on January 12, 2000, having employees sign a sheet indicating the meeting was called for sexual harassment training. Following this meeting, an employee called Cox's supervisor. Because Cox stated that he would make the confidential investigative materials available to anyone who cared to read them, she was upset and feared reprisal. According to the employee, Cox even went so far as to say he would publish the report on the internet. The employee alleged that Cox called those who made statements against him liars and pressured other employees to write letters in his support. He also allegedly encouraged male employees to file complaints against female staff members who were not "lily white". On January 20, 2000, the Office of Civil Rights received a telephone call from an employee in Texas County who had read the confidential investigative report and was upset because she believed that the relationship between herself and Cox had been mischaracterized and she had been slandered.

¶ 6 As a result of these contacts, the Office of Civil Rights launched a second investigation. On January 21, 2000, it requested that Cox be removed from duty pending completion of the investigation concerning alleged retaliation. The Office of Civil Rights determined that the allegations relating to the coercive nature of the January 12th meeting were well founded, that a hostile work environment was created, and recommended that disciplinary action be imposed. On January 31, 2000, Cox was forwarded an amended notice of proposed adverse action calling for his discharge and setting a pre-termination hearing for February 15th. The administrative hearing officer's report of the pre-termination hearing provides that testimony elicited at the hearing was contradictory. Nevertheless, she deemed the evidence sufficient to support the sexual harassment and hostile work environment charges warranting discharge.

¶ 7 Cox was issued a final notice of formal disciplinary action—discharge—on March 6, 2000. He filed a petition for reconsideration with the respondent, Oklahoma Merit Protection Commission (Merit Protection Commission). The testimony at the hearing on August 22, 2000, like that at the pre-termination hearing, was sharply divided between that detrimental to his cause and that in his favor. The original complainant testified that on two different occasions, Cox had asked her if she knew what "kinky sex was". Both times, he told her that it was "sex with a fat woman, `cause there's so many kinks to put it in." The complainant also stated that Cox asked her at a training conference mixer if she'd ever needed "to go pee real bad". When she responded affirmatively, he asked her to "feel of me and see if I need to go".5 The same evening, Cox allegedly invited his secretary to spend the night with him in front of a group of people because she had seen a mouse in her room earlier in the day.6 ¶ 8 Another social worker testified that when a young, attractive female came into Cox's office to apply for food stamps, he would make comments indicating that, based on her looks, she could qualify for assistance.7 The social worker also described an incident following the hiring of a new secretary in which Cox referred to a stripper who painted her breasts to look like puppies to some other employees. When the new secretary came into the room where the discussion was ongoing, Cox allegedly asked her if she would "show him her puppies". She responded that she would, if she had any. Only after Cox had returned to his office and the secretary was told of the basis of the discussion did she recognize she had been made the brunt of a joke involving her anatomy.8 The social worker indicated that Cox's sexual comments and innuendos were so prevalent that she kept her son and her mother-in-law out of Cox's office because she didn't want either of them exposed to his remarks.9 She also confirmed that Cox called a meeting in which he threatened to release the investigative report on the internet or to anyone in the office that wanted to read it. He also stated that the report contained false information.10 Because of these comments and the release of the report, the social worker was berated by others in the office and ostracized.

¶ 9 Another thirty-year DHS employee testified that Cox would often comment on attractive women coming into the office saying that he would like to take them home with him or "have" them.11 She also stated that Cox referred to potential hirelings as needing to pass the "elbow test"—an exercise in which the female might be asked to walk up to a wall with her elbows extended to determine whether her elbows or her breasts would contact the wall—before being hired.12 This long-term employee transferred to a different job, taking a pay cut, to avoid the sexually charged atmosphere in Cox's office and the favoritism he evidenced.13

¶ 10 The investigator for the Office of Civil Rights testified that Cox admitted to telling many of the sexual jokes described.14 An examination of Cox's computer uncovered a stored sexually explicit image of an exposed penis urinating into a beer stein....

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