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Souther v. New River Area Mental Health Development Disabilities and Substance Abuse Program2/6/2001
was worried by what she perceived to be a hostile attitude on behalf of Beamon, and feared that she might lose her job. It is apparent from the record that Souther perceived that Beamon and Johnson did not believe her allegations, and Souther was not aware that her claims had been investigated at all. Moreover, the record supports Souther's contention that she understood from Beamon's telephone call on 14 September 1993 that Beamon, Tate and Johnson (who were all present at the 14 September discussion) would all be present at the proposed 15 September meeting, which would have been a clear violation of the requirements for the pre- dismissal conference (as was the presence of all three at the 20 September meeting). These facts indicate the basis of Souther's failure to attend the 15 September 1993 meeting, which failure appears under the circumstances to have been reasonable. Thus, Souther's refusal to attend the meeting did not constitute insubordination.
We must next determine whether Souther's refusal at the 20 September 1993 meeting to re-establish in-house care for Robinette amounted to insubordination. A careful review of the record on appeal reveals the reasonableness of this action as well.
The investigation which was performed by New River into Souther's allegations of sexual harassment by Lester Jenkins appears to have been limited at best. Souther testified that she initially believed that Lester Jenkins' comments that she should get out and date, and asking for sex with her, were "one big joke." However, he persisted, and she testified that when Lester Jenkins forthrightly stated without euphemisms that he wanted to have sex with her, she knew his comments had not been a joke. According to petitioner, she notified Johnson and asked him to talk to Lester Jenkins. She wanted Johnson to "tell [Lester Jenkins] that this was bothering , and . . . to leave that kind of jokes alone because . . . they weren't appropriate for the work."
On 17 August 1993, Souther first contacted Johnson regarding her concerns, reporting, according to Johnson's notes from the conversation, that Lester Jenkins "had said or done something which caused [Souther] emotional pain and hurt." Souther also expressed her desire to tell Johnson the details regarding the incident but was hesitant to do so as she did not feel she would be believed. At this point Johnson took no action, though he was clearly aware that something had occurred between Souther and Lester Jenkins which was causing Souther some distress.
On 19 August 1993, Souther again spoke with Johnson; and, according to Johnson's notes, she informed Johnson that "Jenkins offered to help her complete moving into her new trailer if she would repay him with sexual favors." According to Souther's testimony before the Administrative Law Judge, she informed Johnson that Lester Jenkins' comments were bothering her, and asked Johnson to talk to Lester Jenkins alone as she did not want the situation to hurt his wife, with whom Souther had become very close over the years during which she had cared for Robinette. Johnson informed both Tate and Beamon of Souther's allegations for the first time on 19 August 1993.
Later that same day, Johnson visited with Mrs. Jenkins at the Jenkins' residence and, contrary to Souther's wishes, discussed Souther's allegations with her. Mrs. Jenkins informed Johnson that there had been some noticeable tension between Souther and her husband, and that her husband had apparently remarked to Souther that, "Today, I'll help you move your bed into your new trailer. I don't think anyone will say anything about us being in the bedroom at the same time."
After meeting with Mrs. Jenkins, John
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