Williams v. SD DEPT. OF AGRICULTURE
| Decision Date | 24 February 2010 |
| Docket Number | No. 25238,25239.,25238 |
| Parties | In the Matter of the Charge of Sandra M. WILLIAMS, Appellant, v. SOUTH DAKOTA DEPARTMENT OF AGRICULTURE, Appellee. |
| Court | South Dakota Supreme Court |
Casey N. Bridgman of Bridgman and Adel, Wessington Springs, South Dakota, Attorney for appellant.
Robert B. Anderson of May, Adam, Gerdes and Thompson, LLP, Pierre, South Dakota, Attorney for appellee.
¶ 1. This is a consolidated appeal by an employee who was discharged for unsatisfactory work performance. Believing that she was fired in retaliation for making a complaint about sexual harassment, the employee brought a claim against her employer with the South Dakota Department of Labor, Division of Human Rights, and also filed a grievance with the Career Services Commission. Both agencies ruled against the employee, and the circuit court affirmed. We also affirm.
¶ 2. Sandra Williams began employment on September 9, 2004, as a secretary for the South Dakota Department of Agriculture. On October 5, 2007, her employment was terminated for unsatisfactory work performance. Williams filed a charge of discrimination against the Department of Agriculture with the South Dakota Division of Human Rights (Division). She alleged that she was subjected to a sexually hostile work environment and that she was retaliated against by being discharged after complaining about it. The Division conducted an independent investigation and accepted documentary evidence from Williams and the Department of Agriculture. Thereafter the Division concluded that probable cause did not exist to support either claim and dismissed the charges.
¶ 3. Williams also filed a grievance with the Career Services Commission (CSC). She claimed that the Department of Agriculture did not have just cause to terminate her employment, but rather fired her in retaliation for making or reporting a sexual harassment claim. The CSC held a hearing. Williams, her supervisors, and several coworkers testified. After the hearing, the CSC issued a memorandum decision and findings of fact and conclusions of law ruling that the Department of Agriculture had good cause to end her employment for unsatisfactory work performance.
¶ 4. Williams appealed both decisions to the circuit court. The appeals were consolidated and a hearing was held. The circuit court affirmed both rulings. Williams now appeals to this Court. She asserts that the Division abused its discretion by performing a cursory investigation of her claims, issued clearly erroneous findings of fact, and erred when it concluded her employment was terminated for unsatisfactory performance. Williams further claims that the CSC erred when it concluded that she was properly discharged for unsatisfactory work performance and that her employment was not affected by the sexual comments made. We granted the Department of Agriculture's motion to consolidate the appeals.
¶ 5. Contrary to both parties' contentions, we no longer review whether there was substantial evidence in the record to support the agencies' decisions. That invalid standard was rectified more than ten years ago in Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 7, 575 N.W.2d 225, 228-29. Rather, our standard of review is controlled by SDCL 1-26-36, requiring us to give great weight to the findings of the agency and reverse only when those findings are clearly erroneous in light of the entire record. When the record before the agency consists entirely of documentary evidence, our review is de novo. Vollmer v. Wal-Mart Store, Inc., 2007 SD 25, ¶ 12, 729 N.W.2d 377, 382 (citations omitted). Similarly, when the issue is a question of law, our review is de novo. Id. (citation omitted).
¶ 6. Although the claims and evidence presented by Williams in both proceedings were substantially similar, the CSC held a hearing and accepted live testimony and the Division considered only documentary evidence. This distinction requires the application of different standards of review. See Vollmer, 2007 SD 25, ¶ 12, 729 N.W.2d at 382 (citations omitted). We give great weight to the findings of fact of an administrative body, except when evidence was presented in documentary form, which we review de novo. Id. Therefore, we address the administrative appeals separately.
¶ 7. In her claim against the Department of Agriculture that she was subjected to a sexually hostile work environment and retaliated against by being discharged, Williams presented evidence that a co-employee, Darwin Kurtenbach, made multiple sexually-motivated remarks in July 2006 in her presence, although not directed at her. One such comment was from Kurtenbach to another employee, in which he said that the employee should put a "CH" after the "BIT" initials on her shirt. Williams also heard Kurtenbach say "secretaries do not do anything and that is why the pay is low" and "women are only good for one thing." She told a coworker, Tammy McGill-Bennett, that she was offended by the comments. Eventually, the fact Williams was offended traveled through the office to her supervisor, Kevin Fridley. According to Williams, after Fridley discussed the incident with her, she was badgered daily and her work was increasingly scrutinized. Williams claimed that from October 2004 until July 2006 there were no complaints about her performance. As support, she offered an email from December 2005, in which she was informed by her supervisor, LaDonna Holm, that everything was good regarding her work performance.
¶ 8. The Department of Agriculture responded through written statements. These statements recounted the nature of the secretarial position Williams held and the history of her errors. The Department of Agriculture claimed that Williams was making mistakes shortly after being hired, but conceded that no documentary support existed proving that Williams was making errors in the first six months of her employment. Fridley explained, however, that because of how the database system was set up, errors sometimes would not be noticed until later. The Department of Agriculture further claimed that the learning curve for a secretary's position was approximately six to twelve months, and, after six months, Williams was still not performing at the level she should have been. Fridley and Holm attested that Williams was verbally informed of her performance deficiencies and continued to receive on-the-job training. Her progress remained slow and errors continued.
¶ 9. In October 2006, Williams was formally reviewed through a Performance Planning and Review, which review the Department of Agriculture submitted as evidence. The review indicated that Williams Ultimately, the Department of Agriculture concluded that her work performance did not sufficiently improve and terminated her employment in October 2007.
¶ 10. Whether Kurtenbach's "CH" and other comments were made in 2005 or 2006 became a pivotal issue. To prove that the comments were made in 2006, Williams relied on her recitation of the facts and her claim that Tammy McGill-Bennett could corroborate her version of the harassment. Moreover, Williams asserted that the event occurred in 2006 because Fridley sent her an email in September 2006, in which he wanted her to follow up on her reported harassment.1 This email message asked Williams to identify the date the sexually inappropriate comments were made, and to whom, where, by whom, and what exactly was said. In Williams's email response, she stated that Kurtenbach made the "CH" comment and another comment regarding himself as God to two other employees in Williams's presence. She explained that she did not know when the statements were made. To support her retaliation claim, she later contended that the "CH" statement was made in July 2006, and if it had in fact been made in 2005, then why would Fridley have sent her an email in 2006 asking her to follow up on her recent claim of harassment.
¶ 11. Fridley explained that his 2006 email to Williams was sent to address her recent complaints, which he did not realize included what was already addressed and what he believed he resolved in 2005. To support its assertion that the harassment was handled in 2005, the Department of Agriculture offered a copy of an email generated through the State's email system dated September 23, 2005, from Fridley to his superiors, Nick Roseland and Larry Gabriel. In the email, Fridley referred to a discussion he had with Kurtenbach on September 1, 2005. The email was sent in response to a coworker's claim that Williams told another coworker that she "had the goods on Kurtenbach for a sexual harassment case." Fridley averred that he conducted an informal investigation during which Williams indicated that she did not wish to take action because the comments were not made to her. Kurtenbach was counseled by Fridley about appropriate workplace behavior.
¶ 12. The Division reviewed all the evidence submitted by Williams, the Department of Agriculture, and the information taken in its independent investigation. It concluded that the harassment occurred and was handled in 2005, and that Williams was properly discharged for unsatisfactory work performance, not in retaliation for complaining about Kurtenbach's sexually inappropriate comments. Williams now asserts several claims of error. She contends that the Division failed to conduct a reasonable investigation and that it should have held a hearing to determine whether probable...
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