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Daniel v. Department of Corrections11/2/2001
FOR PUBLICATION
9:05 a.m.
Plaintiff Tony J. Daniel appeals by leave granted from the December 9, 1999, opinion and order of the Worker's Compensation Appellate Commission (WCAC), reversing the magistrate's award of worker's compensation benefits. We reverse the WCAC's order.
I. Facts and Proceedings
Plaintiff began his employment as a probation officer with defendant Department of Corrections in November 1984. As part of his employment, plaintiff supervised convicted felons to ensure compliance with probation orders. Several times a month plaintiff was required to attend probation violation hearings held in circuit court, where he would interact with the defense attorneys representing the probationers.
According to the record, one of the incidents giving rise to the instant proceedings occurred on August 30, 1994, when plaintiff attended Kent County circuit court for a parole violation hearing. On that day, plaintiff made an inappropriate remark to the female public defender representing the probationer. According to the attorney, plaintiff asked her, " o you want to f ?" When the attorney rebuffed plaintiff's advances, he told her he was married, and if they had an affair it would have to be discreet. Later that day, plaintiff sent the attorney a note in court, telling her that she would have to lose ten pounds before an affair could begin.
On February 10, 1995, plaintiff appeared in court for another parole violation hearing with the same female attorney. According to the attorney, plaintiff made reference to his earlier sexual advance in August 1994, and renewed his request for an affair. Specifically, plaintiff told the attorney, "All I told you was that you had to lose ten pounds." Plaintiff also told the attorney, "you want me, you know you want me."
The attorney subsequently complained about plaintiff's unprofessional conduct to his immediate supervisor, Jayne Price, in February 1995. Three other female attorneys followed suit, also alleging sexual harassment by plaintiff. After notifying plaintiff of the allegations, Price conducted an investigation by interviewing the attorneys and other witnesses. Plaintiff categorically denied each and every allegation of sexual harassment. After conducting her investigation, Price recommended to her area manager, Lois Patten, that a disciplinary conference be held regarding five separate counts of sexual harassment. These counts encompassed the August 30, 1994 incident, the February 10, 1995 incident, as well as allegations that plaintiff sexually harassed two other female attorneys on separate occasions in 1994.
A disciplinary conference was held on June 20, 1995. Present at the conference were plaintiff, a representative from his union, Price, and probation manager Jim Newell, who presided over the conference. On the advice of his union representative, plaintiff did not testify at the disciplinary conference, but continued to deny sexually harassing the attorneys. Following the conference, Newell made the following observations in a memo to Patten dated June 21, 1995:
After thoroughly reviewing the investigator's report, complainants' statements, and employee Daniel's response to questions presented him by the investigator, it is my conclusion that there is a strong basis on which to conclude that the [Michigan Department of Corrections] Work Rules were violated in the manner described in all five counts.
For reasons unclear from the record, plaintiff was subsequently disciplined for only two of the counts of sexual harassment for which he was originally charged. On July 24, 1995, plaintiff was notified in a memorandum by regiona
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