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Thorn v. County of Glenn11/4/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
After giving two female court employees unsolicited shoulder and neck rubs, defendant Glenn County Sheriff's Department (Department) terminated uniformed sheriff's deputy plaintiff Don Thorn. Following a hearing, an administrative arbitrator reduced the penalty to a lengthy suspension without pay and a last-chance warning. The Department appealed to the Glenn County Board of Supervisors (Board), which adopted the arbitrator's findings but reversed the penalty and ordered Thorn terminated. Thorn filed a petition for writ of mandate.
The trial court found the evidence did not support the findings and ordered Thorn reinstated. The Department appeals, contending: (1) the trial court erred in overruling its demurrer to Thorn's petition for writ of mandate, (2) the court erred in refusing to schedule oral argument on the petition, (3) the trial court applied the wrong standard of review, (4) Thorn failed to exhaust his administrative remedies, and (5) the Board did not abuse its discretion in terminating Thorn. We shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2002 the Department terminated Thorn from his position as a deputy sheriff based on conduct that violated Glenn County's sexual harassment policy. Section 12.06.04 of the policy prohibits: "Physical conduct such as unnecessary or unwanted touching, impeding, blocking of normal movement; or interfering with work directed at the employee because of sex or any other protected basis." Thorn disputed the allegations and an arbitration hearing followed in July 2002.
The Arbitration Proceedings
Following testimony by most of the parties involved, the arbitrator made detailed findings, which the Board adopted. To properly address the issues on appeal, we briefly summarize both the testimony at the administrative hearing and the arbitrator's findings.
Incident Involving Melony Glover
Glover worked as a clerk, with several other employees, in an office not regularly open to the public. On November 30, 2001, Thorn entered the office where Glover was working alone. He closed the door behind him and walked around a counter to where Glover sat. Thorn gave her a shoulder and neck massage, which shocked Glover. Glover pulled away after a moment or so. Thorn stopped, and as he left said, "I expect you to return the favor."
No one else had ever given Glover a back rub at work. Glover stated Thorn made no sexual comments during the back rub, nor did he grope her.
Glover believed Thorn had spread a rumor that another police officer was the father of her unborn baby. Glover accused Thorn, who denied spreading the rumor. Glover subsequently apologized to Thorn for her accusation. Glover placed this incident approximately two to four weeks before the shoulder rub. Glover stated she and Thorn remained on friendly terms after the apology. They engaged in small talk but no intimate conversation.
Shortly after the incident, Glover told a couple of friends about it. One friend's husband, another sheriff's deputy, reported it to his supervisor. Glover was reluctant to report the incident and wanted to handle it herself.
Glover stated she had no reason to retaliate against Thorn. She had once, as a friendly joke, hidden Thorn's laptop computer.
Glover's supervisor, Nan
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