It is unlikely that Chalmers would have kissed a man as a gesture of appreciation for his assistance in typing reports or as an apology for an earlier loss of temper. Plaintiff kissed Raisor, an employee of the opposite sex, in a business setting where a kiss was not customary or appropriate and where she had done nothing to indicate that a kiss was welcome. The incident also showed a lack of respect and concern for her feelings and could be interpreted as a show of power over her in the context of a male-female or employer-employee relationship. The kiss also came from an individual with a history of engaging in potentially offensive physical conduct such as the incident where he carried Lisa Kelly onto the dance floor and the recent incident where plaintiff took Nancy Kolinski's hand and informed her that a warm hand means a warm heart. Chalmers' reported response to Steve Vranek, "Yes, but I didn't touch anyone," shows that plaintiff himself recognized that physical contact escalates the harassment.
The Committee concluded that these incidents of sexual harassment constituted "gross misconduct" under the Program. The Committee considered Chalmers entire history of sexual harassment, the fact that he had violated Quaker policy and created a hostile environment in his department, had received training to educate him regarding sexual harassment, had been warned to avoid repeat violations, but had nevertheless committed another offense which involved physical contact. The record supports the Committee's finding that the repeat incident was a willful or at least a reckless violation of Quaker's policy.
In making this determination, the Committee examined the application of the "gross misconduct" standard in other cases. Although this was the first case where an officer was discharged for sexual harassment, Quaker had previously discharged regular (non-officer) employees for violations of Quaker's sexual harassment policy. These cases were treated as terminations for gross misconduct and severance benefits were denied. Montgomery personally made many of these decisions to deny benefits. Officers discharged for theft had also been denied severance benefits under the gross misconduct provision of the Program. In this case, the Committee concluded that a violation of Quaker's sexual harassment policy was no less serious an offense than theft.
Chalmers contends that the Anna Raisor incident was the only conduct relevant to the Committee's consideration and that the prior investigation and legal settlement of Karen Brady's threatened sexual harassment suit should not have been considered by the Committee as it was too remote in time. Chalmers offers no authority for the proposition that Quaker must impose a rule of limitation on prior acts of sexual harassment in enforcing either its sexual harassment policy or in determining benefits under the Program. Plaintiff's argument, that the Committee should have determined whether the Raisor incident alone constituted gross misconduct, is one conceivable perspective but it does not make it unreasonable for the Committee to have considered all the circumstances preceding the Raisor incident in making its determination.
Chalmers' appeal letter did not dispute the truth of most of the facts reported in Ralston's 1988 notes and did not dispute Ralston's conclusions from the 1988 investigation. Even after the Committee's denial letter set forth this evidence and offered Chalmers a chance to respond or supplement his November 6, 1992 appeal letter, he chose not to present any additional evidence to the Committee thereby failing to avail himself of the opportunity to supplement the administrative record for appeal.
Based on the facts set forth in the record, the court determines that the Committee's analysis of these facts was reasonable and that the Committee's material factual findings were rationally connected to the evidence in the record. The court also determines that the Committee's interpretation of Program provisions and Quaker's sexual harassment policy was also reasonable.
Accordingly, the Committee's decision to deny plaintiff severance benefits under the Quaker Officers' Severance Program is affirmed. Judgment is entered for defendants, The Quaker Oats Company, Quaker Officers' Severance Program, Robert Penzkover and Robert Montgomery as Members of the Severance Program Committee, and against plaintiff, Leland R. Chalmers.
ORDERED: The Severance Program Committee's decision to deny plaintiff severance benefits under the Quaker Officers' Severance Program is affirmed. The Clerk is ordered to enter judgment for defendants, The Quaker Oats Company, Quaker Officers' Severance Program, Robert Penzkover and Robert Montgomery as Members of the Severance Program Committee, and against plaintiff, Leland R. Chalmers, on a separate document pursuant to Federal Rule of Civil Procedure 58.
George W. Lindberg
United States District Judge
Date: July 8, 1994