State of New York
Department of Labor
118 LA (BNA) 1817
N. Y. State Disciplinary Panel Adm. Case No. 03-DIS-048
November 10, 2003
By Notice of Discipline (NOD) dated January 9, 2003, a three-day suspension was requested for the Grievant for misconduct arising out of an incident on August 12, 2002 with a co-worker, A__. The NOD charges the Grievant with violating the Attorney General’s Executive Order 2.2 by engaging in prohibited workplace harassment of A__ on account of her religion.
Executive Order 2.2 states that workplace harassment includes verbal conduct “that denigrates or shows hostility toward an individual because of ... her ...religion ... and that: (a) has the purpose or effect of creating an intimidating, hostile or offensive environment ...” Workplace harassment “may include ... epithets, slurs, negative stereotyping, or threatening, intimidating, or hostile acts that relate to ... religion”.
The NOD specifically charges that during a heated discussion with A__ the Grievant “repeatedly, derisively and sarcastically referred to [her] as ‘a Christian lady’ ”and “called her ‘a hypocrite’ and stated ‘You go to church? Your pastor should see you now.’ ” These comments, it is asserted, “were made loudly, in a provocative manner in front of other staff members, reducing A__ tears and causing her absence from the office for two days. Further, your words had the effect of creating an intimidating, hostile and offensive workplace environment.”
W__, an Assistant Attorney General in the Investor Protection Bureau where the Grievant worked, testified that on August 12, 2002 at about 5:00 p.m. he had been called to the scene of a loud disturbance near his office where he witnessed an argument between the Grievant and A__ about the use of a shopping cart or tool that A__ had. A__ told the Grievant not to use the cart or tool without telling her and the Grievant replied that she would use it when she felt like using it. W__ heard the Grievant engage in name calling, profanity, curses and comments about A__ not really being a “Christian lady” or “church lady” and told her “fuck you” repeatedly. When W__ separated them and took A__ to his office she was upset and trembling. The Grievant continued cursing at A__.
H__, the Deputy Bureau Chief, also heard the Grievant shouting loudly to A__ about “you Christian lady”. B__, Deputy Attorney General for Operations, was head of the EEO Committee which investigated the August 12th incident and concluded that the Grievant “went over the line” by rebuking A__ for her religious beliefs and that the Grievant had violated EO 2. In the course of the investigation he spoke with the Grievant twice and both times she admitted she had made the statements attributed to her.
The Grievant, a paralegal with the Department of Law for 20 years, admitted that she had cursed at A__ and sarcastically criticized her for not really being a “Christian lady” or “church lady” but said that she was only responding to the curses A__ directed toward her in the course of their argument. A__, she said, had told her “I’ll kick your m—f—ass if you don’t keep your m—f—hands off [the empty wagon]” and the like. She denied calling A__ a religious “hypocrite”.
In the absence of testimony from A__ or her physician I cannot conclude from the evidence before me that her asserted absence for the two days following August 12th was caused by the derisive use by the Grievant of references to A__ not being a “Christian” or “church”lady. Accordingly, I cannot assess whether A__ felt intimidated by such remarks or felt that the Grievant had thereby created a workplace environment which was hostile and offensive to her, a necessary part of the EO’s definition of harassment.
Apparently the State believed that the essence of the charged harassment was the Grievant’s admitted accusation to A__ that she was not really a “Christian lady” or “church lady”. However, such inappropriate, hostile or even deplorable language by a co-worker, used during a verbal confrontation between them on the instant occasion and not otherwise as far as we know from this record, does not amount to the creation of a hostile workplace environment within the current meaning of the law. I have not been provided with any contrary arbitral or other judicial interpretation of the definitions of the Attorney General’s Executive Order 2.2 and I am reluctant to give new meaning to words used therein which have been interpreted differently by the courts in analogous circumstances. “Workplace Harassment” is omitted from the Statement of Policy contained in Par.A of the Executive Order—perhaps based on the recognition that job harassment has been judicially incorporated into the broader “discrimination”—and is dealt with separately in Par.B as a definition.
From her admissions it is clear that the Grievant acted in a most inappropriate way by her use of religion-based criticism of A__ and it is fitting that the Attorney General’s Executive Order attempts to sanction those who do so. However, express job-related penalties can only be imposed for violations of express or emergent prohibitions and the requirements of neither the conjunctive phrases of Par. B nor of its concluding sentence have been met. To repeat, the record does not establish that the Grievant’s conduct met the definitional standards of the Executive Order.
I deny the State’s request for a three-day suspension of the Grievant.
Beverly Gross, Arbitrator.