RICHARD G. UDAY (# 5355) Schatz, Anderson & Uday, LLC ATTORNEY FOR APPELLANT 57 West 200 South, Suite 200 Salt Lake City, Utah 84101 Telephone: (801) 579-0600 Facsimile: (801) 579-0606 BEFORE THE STATE OF UTAH CAREER SERVICES REVIEW BOARD JOHN M. DURAN, Grievant & Appellant,
JUDGE v. : CASE NO. 10 CSRB 94 : ANSWER OF APPELLANT TO CROSS APPEAL FROM STEP FIVE DECISION : OF ADMINISTRATIVE LAW
UTAH DEPARTMENT OF TECHONOLGY SERVICES, Agency & Appellee.
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JOHN M. DURAN, by and through counsel of record, RICHARD G. UDAY, hereby submits this Answer to the Agency‟s Cross Appeal to the Grievant‟s Step 6 Appeal to the Career Service Review Board (herein "CSRB") from the Decision of the Step 5 Hearing Officer (herein "the Hearing Officer").
INTRODUCTION Grievant „s employment was terminated by the Utah Department of Technology Services. The Step 5 decision by the Hearing Officer upheld that decision.
Grievant appealed to this Board, Step 6, and filed his appeal asking that the termination be reversed on various grounds. See Brief of Grievant. The Agency has cross-appealed urging that the Hearing Officer in her Step 5 decision incorrectly excluded evidence of Grievant‟s prior convictions as necessary to asses the reasonableness of the Agency‟s decision to terminate Grievant. Grievant, herein answers the cross-appeal urging that the exclusion of evidence of Grievant‟s prior convictions was correctly excluded from the Step 5 process and has no relationship to the Agency‟s decision to terminate.
STATEMENT OF FACTS 1. Grievant was not terminated for insubordination. See, e.g., Findings of Fact Conclusions of Law and Conclusions of Law and Decisions, May 2, 2008, pp. 7-9. 2. None of the three witnesses had any memory of specifically what the Grievant stated regarding his criminal history. See Tr. Vol. I, p. 60, p. 127, and p. 165. 3. Grievant fully disclosed his criminal history to the Agency as part of his application process prior to the Agency electing to hire him. See Agency Exhibit 17.
ARGUMENT THE HEARING OFFICER CORRECTLY EXCLUDED EVIDENCE CONCERNING GRIEVANT’S PRIOR CONVICTIONS BECAUSE THEY HAVE NO BEARING ON THE REASONABLENESS OF THE AGENCY’S DECISION TO DISMISS THE GRIEVANT.
The Agency states no relevant basis for claiming the Hearing Officer committed error when the prior conviction evidence was excluded from the Step 5 Hearing. The Agency claims only that (1) because the Grievant was previously disciplined for discussing his criminal history, and (2) because a prior conviction was for a crime of violence the Agency‟s concern for the well-being of the female employees was warranted. Both arguments fail. The facts and exhibits dispute both claims and demonstrate that the Agency has mischaracterized and misapprehended this issue before the Hearing Officer and now on appeal.
1. Grievant had not been disciplined previously for discussing his criminal past, and because the Grievant was not terminated for insubordination, the reasonableness of the agency’s basis urged to introduce the prior conviction evidence is incorrect. The Agency in its Brief has mischaracterized the evidence. The Agency‟s exhibits reflect no discipline, in direct contradiction to the Agency assertion. For example,
Agency Exhibit C is titled “MEMO”, and in the last paragraph states in part “This memo constitutes…an understanding” and then goes on to discuss possible future discipline that may occur. The memo mentions no current discipline, and although cautionary, is not in of itself disciplinary. Perhaps even more telling is the specific instruction, “I suggest you keep your past experiences with the criminal justice system very low key.” Far from being an explicit warning not to discuss the subject, the Grievant is given specific instruction and permissive suggestion or recommendations for discussing the subject, in a “very low key” manner. Implicit in providing instructions as to how to discuss a subject, is the permission to do so free of discipline providing the suggestions and instructions are followed. As presented in great detail in Grievant‟s Appeal, his mentioning of his past experiences with the criminal justice were so “low key” as to not even rise to the level of a discussion. The three witnesses described the occurrences of the subject matter as follows: “a one time passing remark;” “It came up once, in passing;” and “briefly mentioned it during a conversation; he didn‟t go into very much detail.” (See Brief of Grievant) Notably, none of these witnesses were able to recall the actual statements made by the grievant, from which it can reasonably inferred that the Grievant‟s actions had no effect on the witnesses. Exhibit C is not a discipline, and even should the Board find that it is, the Grievant is not in violation of the recommendation therein.
Similarly, Agency Exhibit D, the Corrective Action Plan is not a disciplinary action. An incontrovertible fact based again on the statements included in the exhibit as clarification that the exhibit is not evidence. It states as follows: “This plan is not to punish, rather, its purpose is to help you improve your performance…” The Agency is here again contradicted in its assertion by a simple reading of its own exhibit, to wit: no discipline. Further, the only mention of the Grievant‟s criminal past is in the context of “discussion,” a term not applicable to the brief mentions described the witnesses. Neither exhibit C or D support the conclusion of the Agency‟s Cross Appeal. The Board should affirm the decision of the Step 5 Hearing Officer and exclude the Grievant‟s criminal record from evidence. 2. Defendant’s prior convictions are not relevant and the evidence does not support admission based on the claimed concern for the well being of the female employees and serve only to prejudice the Board. The Agency‟s claim that prior conviction evidence should have been admitted to support the Agency‟s concern for employee safety is not supported by the record or the history. The Grievant‟s prior convictions are entirely irrelevant in this matter. The three witnesses testified they were completely unaware of the nature of the Grievant‟s prior convictions. Therefore, it is impossible for them to have had any bearing on the work environment. As was correctly addressed by the Hearing Officer in her Step 5 decision,
it is only the subjective impression of the co-workers in an action of this type [that is relevant] and they did not know. The Grievant was terminated for allegedly harassing three employees by repeatedly asking them out to lunch, asking questions that were allegedly of an overly personal nature and having made comments that were taken as overly familiar and or possibly having sexual overtones. There was no allegation by the Agency or testimony by the witnesses that there was any concern about their safety or physical well being at issue in this action. It further bears pointing out that crime the Agency finds so compelling as to require admission as evidence to establish harassment was committed over 25 years ago, and as conceded by the agency, was fully disclosed by the Grievant upon making application to the Agency. The Agency hired him with the knowledge of his history, necessarily deciding Grievant and the criminal history did not raise a safety concern. The only relevant issue is the Grievant‟s current behavior as alleged by the Agency and the testimony of those witnesses regarding the same. The relevance of prior criminal history does not further the issue presented at the Step 5 hearing, or now before the Step 6 process.
CONCLUSION This Board should affirm the Step 5 Hearing Officer‟s decision concluding that prior criminal history is not relevant to the inquiry of whether the termination was appropriate. DATED this _____ day of November, 2008.
RICHARD G. UDAY Attorney for Appellant
CERTIFICATE OF SERVICE I certify that on this ___ day of November 2008, I personally mailed a true and correct copy of the foregoing ANSWER OF APPELLANT TOCROSS APPEAL FROM
STEP FIVE DECISION OF ADMINISTRATIVE LAW JUDGE to the following:
State of Utah Career Service Review Board 1120 State Office Building, Capitol Hill Salt Lake City, UT 84114-1561 Timothy D. Evans Assistant Utah Attorney General Litigation Division P.O. Box 140856 Salt Lake City, UT 84114-0856
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