COA finds man justly fired for violating sexual harassment policy

March 3, 2015

The Indiana Court of Appeals reversed the decision by an administrative law judge that a nurse was not fired for just cause. The COA noted surprise that the man's claims he was joking when he made sexually inappropriate comments to co-workers led the ALJ to decide the actions did not amount to violation of his employer's sexual harassment policy.

M.W. worked as a nurse for Advanced Correction Healthcare. He signed a form stating he was aware of the company’s sexual harassment policy, which is a zero-tolerance policy. Less than two years after he joined the company, ACH received reports of unwelcome sexual comments by M.W. from people who worked for two different employers and worked at five different jail locations. The company fired him in January 2014 for repeatedly violating the sexual harassment policy.

An administrative law judge determined that M.W. was not fired for cause and thus eligible for unemployment benefits. Of the 12 complaints, he admitted to or could not deny making four of them: a comment about an officer’s breasts; telling an inmate that T.W. “was his woman”; telling K.H. that “if [her] husband isn’t cuttin’ it for [her], he could show [her] a few things”; and being flirtatious with S.W., whom he supervised.

“There is virtually no evidence in the record supporting the ALJ’s conclusion that these four instances did not constitute violations of ACH’s Sexual Harassment Policy. We also note our reluctance to accede to the ALJ’s decision to discredit and disbelieve each and every one of the eleven complainants. We also note our surprise, in this day and age, that a judicial officer would find that if the speaker is merely joking, or if the person about whom the speaker is making lewd comments is not present, that such actions do not violate a sexual harassment policy. All of that said, the four instances that M.W. did not deny clearly violate both the spirit and letter of ACH’s sexual harassment policy,” Judge John Baker wrote in Advanced Correctional Healthcare, Inc. v. Review Board of the Indiana Department of Workforce Development, et al., 93A02-1408-EX-538.

“We note, again, that ACH was not required to prove that M.W. committed actionable sexual harassment, and we have not made any findings in that regard in this opinion. As aptly noted by ACH, it should not have to wait until M.W.’s actions became so egregious that they were legally actionable to terminate his employment. Instead, ACH was merely required to show that M.W. was terminated for just cause; specifically, that he was terminated for violating the Sexual Harassment Policy.”



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