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City still dealing with retaliation, harassment

Thursday, March 30, 2017 by Jo Clifton

The appearance of two witnesses – one employee and one former employee of the city of Austin – at Wednesday’s City Council Audit and Finance Committee added a sense of urgency to the findings of an outside auditor’s report on the city’s practices in investigating harassment, discrimination and retaliation in the workforce.

The audit, conducted by Matrix Consulting Group, found that the city does not have a proactive training program for all employees investigating discrimination, harassment or retaliation.

In addition, the report found that investigators within the Human Resources Department have other duties that “may impact the ability to complete investigations in a timely and objective manner” and that city departments do not consistently maintain documents related to investigations.

According to the Matrix report, complaints about harassment increased from 38 in 2014 to 59 in 2015 and 71 in 2016. Overall, there were 268 complaints in 2014, including complaints of harassment, discrimination and retaliation. That number rose to 404 in 2015 and fell back to 317 in 2016.

Susan Scallon, an employee of the Development Services Department, told the committee that she has worked for the city for the past 27 years. She said she was encouraged by some of the things she heard from the audit report but discouraged by others.

Scallon said there should be some emphasis on training all city employees about harassment, not just those performing investigations. She then described a meeting she had with three male employees about three weeks ago during which she asserted the need to take a particular action. One of those employees, an executive, told her she was “whining,” and when she complained about his response, he got up and came over to her and apologized, but then started hugging her “incessantly.”

Scallon said, “He would not stop hugging me. He hugged me all the way out of the room – I’m carrying files in my hand – to the point where I started crying. He would not stop hugging me. So why is it that men still think – men, women, whoever – think it’s OK to behave that way at work with your employees? It’s not OK to touch me. So I really want to see some training for employees to know what is appropriate and what is inappropriate behavior. So, I hope that would be part of this process.”

Scallon told the Austin Monitor after the meeting that she did not anticipate filing an official complaint about the hugging incident. But she said she did not expect to get the answer that she got when she told her department human resources person – which was the suggestion that she write an email to the man who hugged her to tell him how she felt about it.

The city currently has training about harassment, discrimination and retaliation, but only new employees are required to attend that training.

Mayor Pro Tem Kathie Tovo expressed the hope that such training would be extended to all employees, not just new ones.

Tovo and Council Member Leslie Pool criticized the process when they learned that employees who complain about their treatment by a co-worker are not routinely allowed to have a copy of the investigative report at the end of the investigation, but the respondent does routinely get a copy in order to respond.

The complaining employee must file a public information request and go through the process, which often involves a 10-day waiting period. Human Resources Director Joya Hayes told the committee that the process has generally included a verbal report to the complainant. She said the city might need to change that process in order to allow complainants to receive those reports, but she would have to discuss the matter with the Law Department.

Such reports are all subject to disclosure, but with the appropriate redactions, Hayes said.

Pool said, “It’s really not right. … The one person who should have access to that file is being prevented from getting that file, and it seems like everybody else nearly can have a look-see at that file. So I really would like some light shined on that.”

Scallon also told the committee she had experienced frustration when she had filed a previous complaint concerning a promotion. She said the complaint was dismissed and that when she got the results of the public information request, there was evidence of what she had been complaining about, but the complaint was already closed, so she felt she could do nothing.

Also addressing the committee Wednesday was former Watershed Protection Department employee Mapi Vigil, who retired after 27 years on the job. Vigil sued the city, alleging discrimination and retaliation. A jury found in Vigil’s favor on the retaliation charge and awarded her more than $750,000, although she was allowed to keep only $300,000 under state law.

Vigil said after her testimony that city employees changed documents and lied about it, and that her only recourse was to file suit. “Imagine how many others there are” who will not file suit but are suffering from discrimination and retaliation, she said.

The committee also questioned Hayes about why she does not yet have a procedure for determining which complaints should be handled by an attorney or hearing examiner outside the city of Austin. Last year, Council allocated $40,000 to pay for such investigations. Tovo said they expected the process to be completed before now.

However, after the meeting, Tovo and Hayes told the Monitor that the audit report was initially scheduled to be completed last fall. Without the audit, it would be difficult for Human Resources to come up with a process for making a determination about which complaints should be handled by someone outside the city.

“Now that we’ve gotten this audit completed, it gives us the guidance to go back and create the procedures, and once those procedures are set up, I now have to create procedures to determine who gets the third-party investigator,” said Hayes.

She said she is already using a third-party investigator in cases where the person being accused is a high-ranking employee, such as a director or assistant director. The difficult part is deciding what happens after there has been an investigation and the employee is not satisfied with the results. To address that situation, Hayes said she needs to set up a procedure to make decisions.

Hayes said her department would have draft procedures by May and that “we would have those evaluated and to the city manager by June.”

Carol Guthrie of the employees union AFSCME is not likely to be satisfied by such an answer. She told the Monitor, “The point of going through this process is to create a third-party process. It should be a priority. … It was a tight budget, and we fought hard for this $40,000, and they’re not doing it because they are interested in changing the personnel policy so they can control what people do off-duty. That is their priority, not the harassment, discrimination and retaliation that happens now at work.”

The impetus for reviewing procedures related to harassment, et cetera, began in 2015 with an ill-advised talk by a friend of former Assistant City Manager Anthony Snipes, who advised listeners on how to deal with women in the workplace. That was the end of Snipes’ career at City Hall and the beginning of some soul-searching at the city.

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Photo of City Hall by John Flynn. Photo of Joya Hayes by Jo Clifton.

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