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North v. City of Seattle

March 24, 1997

WALTER NORTH, JR., APPELLANT,
v.
THE CITY OF SEATTLE, AND SEATTLE CIVIL SERVICE BOARD AND MEMBERS THEREOF, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 94-2-07932-8. Date filed: 09/26/95. Judge signing: Hon. Liem E. Tuai.

PER CURIAM. Walter North appeals the superior court's order affirming the Seattle Civil Service Commission's determination that the City of Seattle had just cause to terminate his employment because he sexually harassed a female co-worker despite having been previously disciplined for similar conduct. He contends the evidence does not support the Examiner's decision and that his due process rights were violated because the City's pre-termination hearing did not meet the requirements set out in Cleveland Board of Educ. v. Loudermill. *fn1 We affirm, finding that the Examiner's decision is supported by substantial evidence and that the pre-termination hearing was adequate under Loudermill.

FACTS

North was a senior accountant for the City of Seattle Engineering Department. He had been with the City since 1969. North had a history of sexual harassment complaints. In 1981, a number of female co-workers complained that North had sexually harassed them. Almagene Harris was one of the complainants. The complaints included allegations that North inappropriately touched the women. After an investigation, North was referred to the Employee Assistance Program for counseling. He was told that his behavior was "intolerable", and that "continued behavior of this type could result in [his] suspension or outright dismissal."

In 1991, several female employees again complained that North inappropriately touched them on several occasions. After investigating the complaints, the Director of Administrative Services recommended that North be terminated. He was given a pre-termination Loudermill hearing. At that hearing, North did not contest the allegations and offered to again seek counseling. He was suspended for 30 days and ordered to attend a counseling program. The City's engineering director also warned North in writing that any further incidents could lead to termination. "In particular, he was advised not to touch other employees, to keep his hands off their breasts and buttocks, not to corner or trap them in areas of the office, not to shoot them with water guns, to avoid other employees in hallways, elevators, and other tight spaces[.]" FF 11.

A year later in October of 1992, North's supervisor, Beverly Hundley, was standing in an elevator across the hall from another elevator containing North and others. She heard Almagene Harris say to North in an "agitated" voice, "move, I mean it, I'm not kidding, I have to get out."

Hundley then saw North "step back into Ms. Harris, effectively pinning her sort of in the corner of the elevator." After Harris again told North to move, he stepped aside and let her out. Hundley spoke to Harris and reported the incident to the City's EEO officer. That same day, North was orally told not to return to work and that a Loudermill hearing had been scheduled because of the elevator incident.

Attending that hearing were North, his counsel, engineering director Gary Zarker and the City's personnel director. At the start of the hearing, North and his counsel were given a copy of the City's letter, sent out on the day of the incident, notifying North that the City considered the alleged "[pinning of a] female employee against the wall of [the] elevator" sexual harassment. The letter also told North that Harris was the employee involved in the incident and that Hundley had witnessed it.

North told his version of what happened. After discussing at length whether the incident was significant enough to qualify as sexual harassment, Zarker concluded that the incident constituted sexual harassment because he had previously ordered North to correct his behavior, and "it was a repeat with a person that had complained of violations before with [North]." Zarker also noted it was unwanted and "she had to [sic] several occasions ask him to get out of her way" and "it was witnessed."

Zarker terminated North's employment.

North appealed and a three-day hearing was held before a Seattle Civil Service Commission Hearing Examiner (Examiner). After reviewing the evidence, she concluded that "the City [had] just cause to terminate [North] for his behavior since [he] was given specific notice to avoid that kind of situation, and had prior serious discipline for the same or similar conduct, and attempts to rectify the conduct failed." Conclusion of law 3.

The superior court, on writ of certiorari, affirmed the Examiner's decision. North appeals that decision.

DECISION

Standard of Review

In this setting, we review legal issues de novo under the contrary to law standard. *fn2 We review the Examiner's factual determinations under the substantial evidence test of RCW 7.16.120(5). "Substantial evidence" is defined as "evidence which 'would convince an unprejudiced, thinking mind of the truth of the declared premise.'" *fn3 "This factual review is deferential[.]" *fn4 Under this standard, we are required to view the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority, a process that ...


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