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Off Duty Conduct of Sexual Comments to Co-Worker Warrants Discipline, but not Termination

The State of Washington Personnel Appeals Board (PAB) has held that termination of a state employee for conduct occurring off-duty that adversely effects a co-workers work environment is too severe of a punishment.

Before the PAB was the appeal of James Bradley, a guard at Stafford Creek Corrections Center since June 2000. On July 28, 2004, Bradley and a group of employees from the prison went out after work for dinner and drinks. At approximately 9 p.m., Guard Jimmy Reed’s wife called guard Jennifer Machousky at her home to invite her to join them at the bar. Machousky declined the offer.

About 30 minutes later two other calls were made. The first resulted in Machousky hanging up. The other call resulted in Ms. Reed handing the phone to Bradley. According to Machousky, Bradley was heard saying “put that four-foot, nine-inch bitch on the phone.” Believing he was referring to her and her small stature, Machousky responded “fuck you!” She said Bradley responded, “I’ll be the best fuck you ever had.” In the background, she heard voices saying, “Yeah, why don’t you come over here, and we’ll fuck you.” Sgt. James Roberson grabbed the phone which the calls were made on and “disclaimer” that he could not be responsible for the things said on his phone.

Machousky filed a complaint with the prison superintendent, who found termination for the sexually charged comments was warranted because the behavior occurred in the presence of other guards, diminishing Machousky’s credibility on the job and created a negative impact on her work environment.

The PAB found that the facts were in dispute, and this was enhanced by the “code of silence” of prison employees. Yet, the facts that did arise seem to support Machousky’s allegations. The question the PAB considered, then, was the appropriateness of the disciplinary sanction imposed 0n Bradley.

In previous decisions, the PAB had held that “the fact that one is an employee does not thereby bestow on the employer the right to punish misconduct, unless such misconduct can be shown to affect the employment situation.” The “events occurring during an off-duty social gathering should not be regulated by an employer,” said the PAB. Yet, Bradley’s off-duty conduct had an adverse effect on Machousky’s work environment.

Despite that effect, she did not claim “to be unable to ever again work with or provide back up for [Bradley] or to trust him to provide back up for her, in the case of an emergency.” These facts, in light of Bradley’s previous disciplinary history warrants, a severe disciplinary sanction. “However, we find that termination is too severe.” Bradley’s sanction was reduced to a 12-month suspension without pay. See: Bradley v. Department of Corrections, PAB No: Dism-04-0120 (2006). The PAB ruling is n brief bank.

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Related legal case

Bradley v. Department of Corrections