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Employer: City of Montesano Complainants: Ken Frafjord, Kay Gueller, Jason Manley, Ryan Watkins and Debbie Wisdom Subject: Kristy Powell Investigator: Jim Webber Date of Report: July 1, 2013
Scope of Investigation
I was engaged by attorney W. Scott Snyder to investigate claims of sexual harassment and age-based discrimination raised against City Administrator Kristy Powell by Ken Frafjord, Kay Gueller, Jason Manley, Ryan Watkins and Debbie Wisdom. During the course of my investigation, NAMES also asserted that Ms. Powell had retaliated against them for making the harassment complaint against her. During the course of my investigation, I interviewed the following people: Adam Bigby Norm Case Bill Curthright Kenny Frafjord Kay Gueller Chelsea Hamblin Kevin Hegel Rocky Howard Jason Manley Sam Martin Kristy Powell Kim Schankel Ashlee Sund Tyler Trimble Ryan Watkins Page | 1
Mike Wincewicz Debbie Wisdom
During the course of my investigation, I received and reviewed the following documents: Grievance (consisting of 50 pages, starting with Mike Werner’s letter to Mayor Estes dated April 26, 2013, a handwritten note to Mike Werner from Debbie Wisdom dated April 13, 2013 and the Teamsters Local Union 252 Grievance Form) The City of Montesano’s policy against sexual harassment (Compliance 200-003) Power Point slides used for training City employees, November 15, 2012 (Sexual Harassment and Bullying) Sign in sheet and agenda for City’s sexual harassment training, September 29, 2011. E-mail from Kim Morey (now Kim Schankel) to Chris (email@example.com), Kristy Powell and Ashlee Sund dated January 23, 2012 Letter dated March 5, 2013 from Mayor Estes and City Administrator Powell to Judge Chris Bates (regarding Kay Gueller) Letter dated December 3, 2006 from Mayor Stone to Jocelyn Lyman (regarding request for additional materials, with attachments excluding CD) 2006 tort claims of DeAnn Knott, Deborah Wisdom and Teresa Jones
In a letter dated April 26, 2013, Mike Werner (the Business Agent for Teamsters Union Local 252) informed Mayor Kenneth Estes that a grievance had been filed “for alleged inappropriate actions and the creation of an intimidating, offensive, and hostile work environment by City administrator Christy Powell”.1 The letter states that Ms. Powell’s actions include but are not limited to: Inappropriate actions and statements sexual in nature directed at Jason Manley Inappropriate actions and statements sexual in nature directed at Ryan Watkins Bullying and threatening remarks and actions directed toward Clerical and Public Works staff
Forty-nine pages of forms and statements were attached to Mr. Werner’s letter. The Teamsters Union Local No. 252 Grievance Form states that the grievants are Ken Frafjord, Kay Gueller, Jason Manley, Ryan Watkins and Debbie Wisdom. The lengthy attachments to the grievance did not include a summary of claims such as the one contained in Mr. Werner’s letter. I attempted to distill any other
Ms. Powell spells her first name “Kristy”. In the quotation, I used the spelling that had been used by Mr. Werner.
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discrimination and harassment claims that may have been contained in the materials. The grievance generally alleges age discrimination against Ms. Powell in addition to sexual harassment2. Since many of the attached statements are handwritten and unedited, it is possible that some alleged inappropriate actions may not have been addressed. (The attachments contain a litany of complaints about Ms. Powell, many of which are unrelated to allegations of harassment and discrimination. Many allegations pertain to labor relations disagreements that are not within the scope of this investigation of harassment and discrimination-based complaints). Based on the grievance documentation and my interviews, I summarize the allegations against Ms. Powell as follows. The complainants assert that: 1. Once the grievance was presented, Ms. Powell allegedly “sequestered” Ms. Hamblin and Ms. Sund in her office and interrogated them about the complaints. 2. Since the grievance was presented to the City, Ms. Powell has allegedly retaliated by being overly “pleasant”. 3. In approximately October of 2011, Ms. Powell allegedly slapped Mr. Manley “on the behind”. 4. In approximately October of 2011, Ms. Powell allegedly asked Mr. Manley to send a photo of himself without a shirt on when he vacationed in Hawaii. 5. In approximately January of 2012, Ms. Powell allegedly brushed her breasts against Mr. Manley while reaching for a coffee mug. 6. In approximately June of 2012, Ms. Powell allegedly told Mr. Manley that she did not like to play golf because her “boobs get in the way”. 7. In early 2013, Ms. Powell allegedly told Mr. Manley that he is “too young” to be Public Works Director even though he has “more than enough qualifications”. 8. In April or May of 2012, Ms. Powell allegedly placed her arm on Mr. Watkins’ shoulder and then asked him to leave City Hall when he removed her arm from his shoulder. 9. On May 17, 2012, when he was working with Ashlee Sund in her office, Ms. Powell allegedly kicked him “in the butt” four times and said, “Tell me when you can feel it in your arms.” 10. On June 4, 2012, Ms. Powell allegedly told Mr. Watkins that he must drive a “lifted truck” in order to hide his “small penis.”
The grievance also generally mentions discrimination against union shop stewards. Labor relations issues were beyond the scope of my investigation. However, it appeared from the documentation and my interviews that the same acts alleged to constitute age discrimination, sexual harassment and bullying are the same acts or types of acts being relied upon to allege discrimination against shop stewards. I did not independently investigate whether there was or is a pattern of discrimination against individuals serving as shop stewards.
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11. In June of 2012, Ms. Powell allegedly called Mr. Watkins “Mr. Snowballer” and “chopstick”, which are asserted to be sexual innuendoes. 12. In October and November of 2012, Ms. Powell allegedly pressured Mr. Watkins to discuss details about a prior sexual relationship with another City employee. 13. Ms. Powell allegedly told Mr. Watkins that he would have to show her where his jeans were ripped before she would authorize him to buy a new pair even though the rip was in a “private area” 14. Ms. Powell allegedly made inappropriate comments to Mr. Trimble after he ripped his jeans in a “private place” at work 15. At times, Ms. Powell allegedly required Mr. Frafjord to obtain authorization in writing in order to receive overtime and did so because of his age. 16. Ms. Powell allegedly took job responsibilities away from Mr. Frafjord due to his age. 17. Some witnesses reported that Ms. Powell inappropriately touched a fire department employee who is not a party to the pending grievance. 18. In early 2012, Ms. Powell allegedly forced another City employee to “write up” Ms. Gueller and did so because of Ms. Gueller’s age and because she supported Ms. Wisdom in the past. 19. Ms. Powell treats Ms. Wisdom harshly based on Ms. Wisdom’s age, including an unwanted transfer of job location. 20. Ms. Powell bullies employees and keeps them on edge by making unfounded accusations, such as accusing Ms. Wisdom of stealing office supplies.
My conclusions regarding individual allegations are addressed below. Due to the scope of the grievance and my time spent with the many witnesses, I believe it is appropriate to include a general strong impression that struck me during the course of this investigation. I have never been called upon to review a matter that involved so many different claims being made by several different people against a single individual. The claims against Ms. Powell include suggestive sexual innuendoes, inappropriate body contact, flagrant age discrimination3, bullying, poor executive judgment, intimidation, sequestration of employees against their will, dictator behavior and a host of labor relations violations (including at least one that has already been fully addressed through arbitration). These accusations relate to alleged events that took place any time from several years ago until the present. Despite the severity of the accusations, most were not reported or covered by past individual or union-initiated complaints even though several investigations have taken place in the last year. (A prior investigator
Strangely, some employees said that Ms. Powell is biased against older workers; another claimed the bias is against younger individuals.
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informed me that even though there was ample opportunity and motivation for individuals to raise such complaints, no one alleged sexual harassment against Ms. Powell when he interviewed them). I also note that the present complaints did not arise in a vacuum. Several matters have been investigated during the past year that relate to alleged misconduct or even criminal activity by employees other than Ms. Powell. Internet searches reveal a number of issues at the City that have been subject to controversy and public attention. I recognize the strong possibility that the present complaints against Ms. Powell are a direct response to the previous controversies, some of which remain under review. In fact, several witnesses expressed their personal opinion to me that the complaints against Ms. Powell are a “smoke screen” to distract from or devalue pending claims against another City employee. It is suspicious to me that most of the complaints now raised against Ms. Powell were not raised in the past. Employees explained that they feared retaliation or additional bullying by Ms. Powell if they “spoke up”. However, at no time during my interviews did anyone provide an example of retaliation by Ms. Powell that could be substantiated and no one provided anything other than than gossip or hearsay to support their beliefs that they would be subjected to adverse consequences if they raised concerns about Ms. Powell. Employees feel perfectly free to raise strong allegations at this time; it is unclear to me why they would not have felt free to raise the concerns closer in time to the alleged events. These comments should not be construed to imply that any particular witness was lying. While I do not accept many of the accusations, in several cases it appeared to me that the witness truly believed what was being asserted. For example, Mr. Manley appeared credible and truly impacted by what he believed to be inappropriate comments or conduct. More specific discussions regarding my acceptance or dismissal of the accusations against Ms. Powell are set forth below. In summary, I have concluded that Ms. Powell did not engage in sexual harassment, age discrimination or retaliation.
Summary of Facts Found
Allegation No. 1: Once the grievance was presented, Ms. Powell allegedly “sequestered” Ms. Hamblin and Ms. Sund in her office and interrogated them about the complaints. This allegation is not sustained. As evidence of Ms. Powell’s alleged inappropriate conduct, several witnesses reported that she sequestered Ms. Hamblin and Ms. Sund in her office to interrogate the two women about the grievance/complaints. These witnesses told me that Ms. Powell had “pumped [Ms. Hamblin and Ms. Sund] for information” and urged them to support her instead of the complainants. The witnesses stated that this behavior illustrates how Ms. Powell pressures employees and makes them fear retaliation. According to Ms. Hamblin and Ms. Sund, Ms. Powell asked to meet with them when the City learned about the pending grievance. They said that Ms. Powell told them about the grievance and started to tell them about some of the allegations. Mayor Estes then came to Ms. Powell’s office and asked to Page | 5
speak with Ms. Hamblin and Ms. Sund. Mayor Estes told them that they were to have no future discussions with Ms. Powell about the grievance. Both women said that they have not discussed the merits of the grievance with Ms. Powell. Both employees also stated – quite emphatically – that Ms. Powell has not attempted to pressure them in any way. Both individuals said they feel free to speak about anything that they wish to during the investigation and in general at work. Ms. Powell stated that although she told Ms. Hamblin and Ms. Sund about the grievance on the same day it arrived, she did not interrogate the employees and did not attempt to influence them. She corroborated that Mayor Estes asked to speak with the two employees soon after the City learned about the grievance and directed her not to speak about the grievance with employees. On my third day of interviews at the City, Ms. Hamblin told me that she and her co-workers decided to have weekly morning meetings to discuss how work was going, any “gripes” anyone might have about what happened during the week and to generally touch base with each other about work matters. They came up with this idea after my first day of interviews when they were talking about ways to improve office morale. They decided to lock the doors and turn off their phones during the meetings so as not to be interrupted. Ms. Hamblin told me that they had conducted their second such meeting the morning of my third interview day. Later that day, when I interviewed Mr. Watkins, he stated that Ms. Powell was “continuing” to sequester Ms. Hamblin and Ms. Sund. He said that he had “seen for himself” that very morning that Ms. Powell had escalated the pressure by locking the doors. He said this kind of pressure is “not right” and was making all employees feel fearful of retaliation. Mr. Watkins’ conclusions about what was happening that morning were clearly erroneous. It is significant to me that many witnesses cited the alleged sequestration as proof against Ms. Powell. They seemed to believe the sequestering was a fact even though none of them had personal knowledge about whether or not Ms. Powell pressured the two employees. I do not believe these witnesses were lying since they believed what they were telling me was true. However, I conclude that the tale of sequestration was nothing more than rumor. It is disturbing that individuals would not only believe a rumor to be true but would also spread it to others. Based on the information provided by the only people with first-hand information, I conclude that this allegation is unfounded. Allegation No. 2: Since the grievance was presented, Ms. Powell has allegedly retaliated by being overly “pleasant”. I conclude that Ms. Powell has attempted to be pleasant. However, I also find that she was not motivated by any desire to intimidate or punish employees. This allegation is not sustained. Mr. Watkins asserts that about one week after the grievance was filed, Ms. Powell came up behind him and said in a very sarcastic manner, “Excuse me, Mr. Watkins. I’m coming in behind you and don’t want to scare you.” He said it was troubling to have to deal with such sarcasm when he’d already gone through “so much”. Ms. Powell recalls the incident that Mr. Watkins complains about. She explained
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that she was carrying a bag of kitty litter4 and she truly did not want to bump into Mr. Watkins (especially after learning about some of the accusations against her), so she warned him that she was there. She did not intend to be sarcastic and does not believe she sounded sarcastic, but acknowledges that she can’t control how others interrupt her tone. Mr. Watkins was credible when explaining his concern to me; Ms. Powell was also credible when presenting her recollection about what happened. I believe that Mr. Watkins sincerely thought Ms. Powell was being sarcastic, but I attribute his conclusion to an overall disposition to attribute bad motives to almost anything that Ms. Powell does.5 I acknowledge that Ms. Powell’s desire to appear “normal” in the aftermath of the grievance easily may have caused her routine interactions with employees to appear stilted or artificial, but I conclude that she was not being sarcastic or attempting to make Mr. Watkins feel uncomfortable by announcing her presence behind him. Ms. Wisdom said that she feels insulted by the way Ms. Powell has been “so pleasant” since the grievance was filed. She said it feels as though Ms. Powell is “playing” with her. Ms. Wisdom explained that by being “pleasant”, she is referring to greetings and similar social interactions. Ms. Powell said that she thinks she is greeting and talking to Ms. Wisdom and other employees in the same manner as before the grievance. However, she acknowledges that some of her actions may seem forced or unnatural since she feels as if she is under a microscope. Based on the witnesses’ statements and demeanor, I conclude that Ms. Powell was not retaliating by attempting to be pleasant at work.
Allegations No. 3 - 7
Mr. Manley presents several complaints against Ms. Powell. They will be discussed together. Mr. Manley claims that: In approximately October of 2011, Ms. Powell allegedly slapped Mr. Manley “on the behind” (Allegation No. 3) In approximately October of 2011, Ms. Powell allegedly asked Mr. Manley to send a photo of himself without a shirt on when he vacationed in Hawaii (Allegation No. 4) In approximately January of 2012, Ms. Powell allegedly brushed her breasts against Mr. Manley while reaching for a coffee mug (Allegation No. 5) In approximately June of 2012, Ms. Powell allegedly told Mr. Manley that she did not like to play golf because her “boobs get in the way” (Allegation No. 6) In early 2013, Ms. Powell allegedly told Mr. Manley that he is “too young” to be Public Works Director even though he has “more than enough qualifications” (Allegation No. 7)
City Hall has an unofficial “office cat”. See my discussion regarding his allegation of sequestration, above (Allegation No. 1).
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Allegation No. 3: In approximately October of 2011, Ms. Powell allegedly slapped Mr. Manley “on the behind”. This allegation can be neither sustained nor rejected. It is possible that Ms. Powell slapped Mr. Manley’s rear in 2011 and it is possible that she did not. Based on Mr. Manley’s credibility and Ms. Powell’s uncertainty, it is more likely that she did make contact with him than not. Mr. Manley does not allege that she slapped him at any other times and no one else alleges slapping. Therefore, I conclude that if the alleged conduct took place, it was an isolated incident6. Mr. Manley reports that one day in October of 2011, he was making a phone call in the office that was then being used by Ms. Sund. No one else was present. He states he was leaning over the desk and talking on the phone to one of the City’s vendors. He asserts that Ms. Powell walked in and “slapped him on the butt” as he was leaning over. He told me that he did not know what to do or what to say. He finished his telephone call and left. He did not report the incident to any supervisor or manager, although after some time and particularly in connection with this pending grievance he told other employees what happened. Mr. Manley seemed credible when describing the experience based on his demeanor and apparent embarrassment about the incident. Ms. Powell stated that it is “not in her nature” to slap anyone on the butt. She does not recall slapping Mr. Manley and told me that she does not think that she did it. She also conceded that since it was two years ago, she also can’t “100% rule out” that it happened. Allegation No. 4: In approximately October of 2011, Ms. Powell allegedly asked Mr. Manley to send a photo of himself without a shirt on when he vacationed in Hawaii. This allegation can be neither sustained nor rejected. Mr. Manley appears to have a vivid recollection about the statement and was credible when describing it. Ms. Powell was also credible when explaining why she does not think that she made the comment as alleged. There was no corroboration available for either person’s position. Mr. Manley does not allege any other incidents in which he claims that Ms. Powell made provocative statements to him, so if Ms. Powell made the comment, it was an isolated incident. Mr. Manley told me that when he came to City Hall to pick up his paycheck before a trip to Hawaii, Ms. Powell said, “Be sure to send pictures of yourself with your shirt off.” He said the comment made him very uncomfortable, but he did not object to Ms. Powell and did not report her comment at the time. He does not think anyone else heard the comment.
I have not been asked to and have not attempted to reach legal conclusions in this report. However, I am familiar with the legal test that is applied by courts to determine whether or not a hostile work environment exists or existed. Under that test, an “isolated incident” that is not severe does not support a finding of a hostile work environment. Unless non-severe conduct is repeated to the extent that it becomes pervasive or evidences a pattern of inappropriate behavior, it does not indicate that a hostile work environment is present. In this report, when I refer to an “isolated incident”, I specifically am concluding that the conduct is neither severe nor pervasive as those terms are applied in hostile work environment legal decisions.
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Ms. Powell denies making the comment, although she recalls talking to him about his pending trip to Hawaii. She said she would have asked that he send photographs, but she would not have specified shirtless poses because she does not see the men at work “that way”. When I asked what way she meant, she meant as “sexual beings”. She said she would not have asked for a shirtless photo because it would have (a) been inappropriate and (b) made her sound like a “cougar”. Allegation No. 5: In approximately January of 2012, Ms. Powell allegedly brushed her breasts against Mr. Manley while reaching for a coffee mug. I conclude that it is more likely than not that Ms. Powell brushed against Mr. Manley when they were in the break room together and reaching for coffee mugs. I also conclude that any physical contact was inadvertent. Mr. Manley alleges that this incident took place when he came into City Hall to get warm after shoveling snow from the sidewalks near the building. He went to the break room for coffee and Ms. Powell was there. No one else was present. He could not find coffee mugs, so he asked Ms. Powell where they were. She gestured to the upper shelf of a cabinet. Mr. Manley says when he reached for a mug, Ms. Powell also reached. According to Mr. Manley, as she did so she “pushed” her breasts into him. He believes she was trying to brush against him on purpose because she put the mug back afterwards and did not pour coffee. He concluded that she never needed a mug and used reaching as an excuse to brush against him. Ms. Powell has no recollection of Mr. Manley asking about coffee mugs. This is understandable since the alleged incident took place well over a year ago. Ms. Powell also says she does not remember brushing up against Mr. Manley. She says she would never brush against anyone on purpose as Mr. Manley alleges and if she ever accidentally brushed against anyone, she would immediately back away. Mr. Manley appears credible when describing this incident. Although I do not agree with his assessment that Ms. Powell was making contact on purpose, I believe it is more likely than not that Ms. Powell inadvertently brushed against Mr. Manley when they both reached into the cupboard at the same time. Allegation No. 6: In approximately June of 2012, Ms. Powell allegedly told Mr. Manley that she did not like to play golf because her “boobs get in the way”. This allegation is sustained, although I conclude it is more likely than not that Ms. Powell said “chest” instead of “boobs”. Ms. Powell and Mr. Manley agree that when a local golf tournament was being planned, she asked him if he wanted to help with the event. They proceeded to engage in small talk about the tournament and Ms. Powell told Mr. Manley that she does not like to golf because of her anatomy. The only difference between their stories is that Mr. Manley says that Ms. Powell used the term “boobs” and Ms. Powell says she said “chest”. Ms. Powell asserts that she does not use the word “boob”. There were no allegations by Mr. Manley or anyone else that Ms. Powell used the word “boobs” or talked about her breasts on any other occasion at work. I conclude that a reasonable person would not Page | 9
be offended by the single use of the word “boobs”. I also conclude that Ms. Powell did not regularly talk about her anatomy to employees. Allegation No. 7: In early 2013, Ms. Powell allegedly told Mr. Manley that he is “too young” to be Public Works Director even though he has “more than enough qualifications”. This allegation is not sustained. According to Mr. Manley, Ms. Powell encouraged him to apply to the position of Public Works Director earlier this year. He applied, was interviewed and then not selected for the job. He claims that Ms. Powell and Mayor Estes told him that even though he has “more than enough qualifications”, he is “too young” for the job. Ms. Powell denies this allegation. She states that she told Mr. Manley he needed more management experience in order to be director and asserts that Mr. Manley’s age did not play a factor in her decision. She also said she never would have made such a statement because she does not consider forty (Mr. Manley’s age, according to her) to be “young”. Although I did not conduct a formal interview with Mayor Estes, he corroborated that Mr. Manley was not selected for the Director position because he lacked meaningful management experience. He said that he is not aware of anyone saying that Mr. Manley is “too young.” Ms. Powell was credible in her denial and in her explanation of why she is certain that she did not say (or think) that Mr. Manley is “too young.” Although Mr. Manley also appears credible, I conclude that Ms. Powell did not refer to Mr. Manley’s age when making her decision or when explaining the decision to Mr. Manley. It is merely speculation, but I believe it is possible that Mr. Manley interpreted “lack of experience” to mean too young and that he truly recalls Ms. Powell referring to youth. Nonetheless, for the reasons stated here, I conclude that Ms. Powell referred to a lack of experience rather than age.
Allegations No. 8 - 13
Mr. Watkins also presents several complaints against Ms. Powell. They will be discussed together. Mr. Watkins claims that: In April or May of 2012, Ms. Powell allegedly placed her arm on Mr. Watkins’ shoulder and then asked him to leave City Hall when he removed her arm from his shoulder (Allegation No. 8). On May 17, 2012, when he was working with Ashlee Sund in her office, Ms. Powell allegedly kicked him “in the butt” four times and said, “Tell me when you can feel it in your arms.” (Allegation No. 9). On June 4, 2012, Ms. Powell allegedly told Mr. Watkins that he must drive a “lifted truck” in order to hide his “small penis.” (Allegation No. 10). In June of 2012, Ms. Powell allegedly called Mr. Watkins “Mr. Snowballer” and “chopstick”, which are sexual innuendoes. (Allegation No. 11).
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In October and November of 2012, Ms. Powell allegedly pressured Mr. Watkins to discuss details about a prior sexual relationship with another City employee. (Allegation No. 12). On a date not certain, Ms. Powell allegedly told Mr. Watkins that he would have to show her where his jeans were ripped before she would authorize him to buy a new pair even though the rip was in a “private area”. (Allegation No. 13).
Allegation No. 8: In April or May of 2012, Ms. Powell allegedly placed her arm on Mr. Watkins’ shoulder and then asked him to leave City Hall when he removed her arm from his shoulder. This allegation is sustained, but I conclude that Ms. Powell did not ask Mr. Watkins to leave “because” he removed her arm. Mr. Watkins claims that Ms. Powell put her arm over his shoulder when they were talking near her office at City Hall. He says he “politely removed” her arm from his shoulder and, right after he did so, Ms. Powell told him that he had to leave. He believes she ordered him out of the building because he would not let her keep her hands on him. Ms. Powell said she does not recall placing her arm over Mr. Watkins shoulder on any particular occasion, but also said it is likely that she did so because she does that from time to time when talking to people. However, she emphasized that she would not have done so in an overly friendly or suggestive way. She also stated she had no idea Mr. Watkins minded such contact. She does not recall him ever removing her arm from his shoulder, but says she does not dispute that it happened. She is certain she would not have told Mr. Watkins to leave the building for doing so. She explained that when meetings are over or she has to go work on another matter, she will tell people to “Get out” in a friendly but assertive manner. She said it is her way of staying on schedule and closing conversations or meetings and speculates that this is what happened when she told Mr. Watkins to leave. Many employees reported that Ms. Powell has a habit of placing a hand on another person’s arm or shoulder when talking to them. Some described her as a “touchy-feely” sort of person. Based on these statements and those of Mr. Watkins and Ms. Powell, I conclude that she did place her arm over Mr. Watkins shoulder as he describes. I conclude she told him to leave the office when they were done talking, but she did so because their conversation was over and not because he removed her arm from his shoulder. Allegation No. 9: On May 17, 2012, when he was working with Ashlee Sund in her office, Ms. Powell allegedly kicked him “in the butt” four times and said, “Tell me when you can feel it in your arms.” This allegation is not sustained. According to Mr. Watkins, he was crouching next to Ms. Sund’s chair in her office when Ms. Powell came in and kicked him on his butt at least four times. He describes the kicks as “hard, not gentle”. He told me during his interview that as she was kicking him, Ms. Powell said, “Let me know when you can feel this in your arms.” Mr. Watkins said the kicks made him stop working and that Ms. Sund also stopped working. Mr. Watkins states that he gave Ms. Powell “a look” and she stopped kicking. Page | 11
Ms. Sund stated that she has never seen Ms. Powell kick anyone. She is aware that Mr. Watkins claims that Ms. Powell kicked him because Mr. Watkins told her about it approximately five months ago. According to Ms. Sund, Mr. Watkins told her that Ms. Powell walked into the office, kicked him and said to “let her know when his leg went numb.” Ms. Sund told me that when she told Mr. Watkins she did not see it, he replied that he wished she had. Ms. Sund speculates that if something happened in her office, she might have missed seeing it because her desk is in a corner and faces away from where Mr. Watkins would have been crouching. Ms. Sund is certain that she did not see any kicking and she does not recall hearing anything that sounded like kicking. She also did not hear Ms. Powell say anything about making his leg or arm go numb. Ms. Powell denies the allegation. During her interview with me, it was clear that Ms. Sund felt free to be candid and truthful. She specifically told me that she felt free to say anything to me and felt no need to protect anyone. It is significant to me that she not only did not hear any sounds like kicking, but also did not hear the alleged comments about making Mr. Watkins leg or arm go numb. Ms. Sund’s statements make me doubt Mr. Watkins’s allegation. Mr. Watkins stated that he was crouching next to Ms. Sund’s chair and it does not make sense that “hard”, repeated kicking could have happened without Ms. Sund being aware of it or at least noticing something out of the ordinary was taking place. Based on Ms. Sund’s statements and Ms. Powell’s credible denial, I conclude that Ms. Powell did not kick Mr. Watkins. Allegation No. 10: On June 4, 2012, Ms. Powell allegedly told Mr. Watkins that he must drive a “lifted truck” in order to hide his “small penis.” This allegation is not sustained. According to Mr. Watkins, in approximately June of 2012 he saw Ms. Hamblin driving a small City vehicle and joked with her that it looked as if she were driving a golf cart. The joking took place at City Hall near Ms. Hamblin’s work area. He stated that Ms. Powell joined them and said, “You must have a lifted truck to compensate for your small penis.” He told me that he was stunned and replied, “Excuse me?” He says Ms. Powell repeated her statement and then walked back into her own office. Mr. Watkins said that he and Ms. Hamblin “just looked at each other” for a moment and then he left. Ms. Hamblin stated that she has never heard Ms. Powell make a comment about the size of Mr. Watkins’s penis (or anyone else’s). She also said that she would have remembered such a comment. When I asked if it was possible she forgot the conversation because it happened so many months ago, she repeated that it was the kind of comment she would not have forgotten. Ms. Powell denies making any comments about Mr. Watkins’s penis. Based on Ms. Powell’s denial combined with the fact that Ms. Hamblin did not hear the alleged comment but was supposedly present when it was made, I conclude that Ms. Powell did not say it. Allegation No. 11: In June of 2012, Ms. Powell allegedly called Mr. Watkins “Mr. Snowballer” and “chopstick”, which are asserted to be sexual innuendoes. Page | 12
This allegation is not sustained. (a) “Snowballing” According to Mr. Watkins, in June of 2012 he walked into City Hall and Ms. Powell greeted him by saying, “Hey snowballin’ man!” and then called him the name the “whole week”. (According to Wikipedia, “snowballing” is a crude term referring to a sexual practice in which one takes someone else's semen into their mouth and then passes it to the mouth of another, usually through kissing.) Mr. Watkins was aware of the term, but stated that he never used it himself and never heard it used at work until Ms. Powell did. He says he did not tell Ms. Powell to stop using the term because he “knew” she would “go after anyone not on her side.” However, he said that Ms. Sund and Ms. Powell both heard Ms. Powell make the comments. Ms. Hamblin remembers the term being used at work. She told me that Mr. Watkins and Ms. Sund were with her in the office when Mr. Watkins asked, “Don’t you like to be snowballed?” Ms. Hamblin said she was aware of the term and describes it as “sexual and nasty”. According to Ms. Hamblin, she told Mr. Watkins that it was disgusting and to stop talking about it. Ms. Hamblin stated that she has never heard Ms. Powell or anyone else call Mr. Watkins that name. She speculates that Ms. Powell heard their conversation because Ms. Powell subsequently asked Ms. Hamblin what it meant (and Ms. Hamblin told her). Ms. Sund does not recall being present when Ms. Powell or anyone else mentioned “snowballing” to Mr. Watkins. She also said she would remember if it had happened. She does remember hearing Ms. Powell and Ms. Hamblin talking about what the term means. According to Ms. Sund, Mr. Watkins asked her a few months ago if she had heard about anyone using the term at work and if she recalled anyone using the term about him. She does not know why he asked. Ms. Powell told me that she heard Mr. Watkins use the term at work, but is not certain about what exactly was said. She said she did not know what “snowballing” meant, so she asked Ms. Hamblin. She thinks Ms. Sund may have been present or nearby when she asked. Ms. Hamblin explained to her what the term meant. Ms. Powell asserts that she has never used the term in reference to Mr. Watkins or anyone else. (b) “Chopstick” Mr. Watkins alleges that the week after Ms. Powell called him “snowballin’ man”, she started to call him “chopstick”. He states that even as of the day of our interview that he does not know what the term means despite asking Ms. Hamblin and also looking it up in the on-line Urban Dictionary (www.urbandictionary.com). Mr. Watkins claims the term is intended as a sexual innuendo. (Urban Dictionary’s definition of the word “chopstick” does not include any sexual references. However, the term “chopsticking” does contain one definition that pertains to sexual activity.)
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Ms. Hamblin stated during the interview that she has never talked about the meaning of “chopstick” with Mr. Watkins or anyone else. She was not aware that the word might have any special meanings other than the usual reference to eating implements. Ms. Powell stated that she has never used the word “chopstick” to refer to anyone else and did not know it had any special alternate meaning. When asked, no other witnesses stated that they heard Ms. Powell use sexual innuendo or similar terms when referring to Mr. Watkins (or when referring to anyone else). (c) Conclusion Based on a total lack of corroboration for Mr. Watkins’ allegation, Ms. Powell’s denials and the fact that no one heard Ms. Powell use such terms, I conclude that Ms. Powell did not use the terms “snowballing” or “chopstick”. Allegation No. 12: In October and November of 2012, Ms. Powell allegedly pressured Mr. Watkins to discuss details about a prior sexual relationship with another City employee. This allegation is not sustained. According to Mr. Watkins, Ms. Powell and Ms. Hamblin asked him repeatedly during last October and November about a sexual encounter that he had with another employee7 about eight years ago. He said that Ms. Powell did “most of the asking”; Ms. Powell would initiate the questions and Ms. Hamblin “joined in.” He says they asked “How was she in bed?”, “How did it happen?”, and “Where did it happen?” Mr. Watkins says they always initiated the discussions. He says he told them that he did not want to talk about it. He said he did not want the other employee to be hurt. Mr. Watkins says that their questions continued until he “blew up” at them about it. According to Ms. Hamblin, Mr. Watkins “often” talked about a one-night stand that he had with another employee.8 Ms. Hamblin asserts that no one asked him about the relationship. She states that Mr. Watkins told her “things” about the encounter and she did not want to hear them. She stressed that she was not offended at the time, but she thought the topic was “disgusting”. She says when she told him to stop talking about the encounter that he stopped. She also emphasized that Mr. Watkins is nice to her and she has no complaints about him. According to Ms. Powell, she had heard rumors that there had been a “hot tub incident” involving Mr. Watkins and someone else several years earlier. She thought initially it was a former City employee. Later, she is not sure when, she heard Mr. Watkins talking to Ms. Hamblin and perhaps Ms. Sund about how he had once slept with someone who still works for the City.9 She did not know who initiated the conversation. Ms. Powell says that after hearing what Mr. Watkins said, she asked him if he really did.
To protect the other employee’s privacy, I have not named h er here. Ms. Hamblin identified the employee during her interview. 9 Ms. Powell also identified the employee during her interview.
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According to her, Mr. Watkins then volunteered things that the other employee had said during the encounter. Ms. Powell denies initiating any conversations with Mr. Watkins about his sexual encounter. While it is not possible for me to conclude whether it was Mr. Watkins or Ms. Hamblin who initiated conversations about Mr. Watkins’ past sex life for one night eight years ago, I can conclude that Ms. Powell did not initiate the conversations. Merely asking Mr. Watkins one time if he really had sex with the other employee does not corroborate Mr. Watkins’ allegation that Ms. Powell “pressured him” to reveal details. There was no evidence of any pressure. Allegation No. 13: Ms. Powell allegedly told Mr. Watkins that he would have to show her where his jeans were ripped before she would authorize him to buy a new pair even though the rip was in a “private area”. I conclude that it is more likely than not that Ms. Powell asked to see the rip. I also conclude that it would have been a reasonable request. According to Mr. Watkins, one day at work his jeans ripped in the crotch. He describes it as a “huge” rip. He tried to fix the rip with duct tape, but after working in the repaired pants he realized that the repair did not work well. He did not want to drive all the way home to change, so he went to City Hall and asked Ms. Powell (even though she was not his supervisor) if he could buy a replacement pair. He told me that Ms. Powell then asked him at least three times to “let her see”. Since the rip was in such a private place, her requests made him very uncomfortable. Ms. Powell remembers the day when Mr. Watkins came to City Hall and asked about buying new jeans. She remembers wondering why he came to her with the request instead of contacting his supervisor. She thinks she told Mr. Watkins to talk to his supervisor (Mr. Howard). She does not think she asked to see the rip, although she can’t rule out asking. She remembers duct tape but does not believe the rip (as repaired) was causing Mr. Watkins to expose himself. Under the circumstances, I conclude it would have been reasonable for a manager to ask to see a rip before authorizing the purchase of new pants or time away from work to make the purchase. Although she does not specifically recall asking to see the rip, I conclude it is more likely than not that she asked to see. I also conclude that Mr. Watkins’ statements about being uncomfortable do not make sense. He had been trying to work with the ripped (but taped) jeans and he went to City Hall wearing the repaired jeans. Had he been in danger of exposing himself, I doubt he would have been moving around town and into public areas without some sort of additional coverage. If the jeans did not make him hesitate to go to City Hall, they could not be so embarrassing that a reasonable male employee would feel uncomfortable allowing a female manager to look at the pants while he wore them. I also conclude that a reasonable employee would have expected a manager to see whatever damage had been done before authorizing replacement. Allegation No. 14: Ms. Powell allegedly made inappropriate comments to Mr. Trimble after he ripped his jeans in a “private place” at work.
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I conclude that Ms. Powell mentioned Mr. Trimble’s jeans and told him to go home and change. However, the allegation that she made inappropriate comments is not sustained. Mr. Trimble worked at the City for several summers during college breaks. Several employees told me that Ms. Powell made him feel embarrassed and very uncomfortable last summer by making teasing comments after Mr. Tyler ripped the rear seam in his jeans and tried to repair the rip with duct tape. Mr. Tyler is no longer a City employee and is not a party to the current grievance, but I asked him to meet with me due to the similarity of the allegations involving him to the “ripped jeans” allegation forwarded by Mr. Watkins (Allegation No. 3). According to Mr. Trimble, he had a “big rip” along the rear seam of his pants that exposed a “great deal of underwear” as well as his upper leg. He repaired the rip with duct tape and continued to wear them for several days. He said “lots of people”, including Ms. Powell, made comments about the repair job and several people teased him. He thinks Ms. Powell might have been one of the teasers. He said the teasing was not suggestive in a sexual way. Mr. Trimble said he did not think much about the comments at the time and was not embarrassed by the teasing. (During the interview, he seemed to think the situation was humorous and he did not seem at all embarrassed.) Ms. Schankel was in the office when Ms. Powell talked to Mr. Trimble about the ripped jeans. According to Ms. Schankel, Ms. Powell just told him that the pants were not appropriate. She does not recall Ms. Powell teasing him in any way. Ms. Powell recalls Mr. Trimble’s ripped jeans. She particularly recalls the “ridiculous” repair job. She told me that she instructed him to go home and change when she saw them. She does not specifically recall teasing him, but stated that she can imagine herself making a comment about the repairs because they looked so ridiculous. She says she probably asked to see the jeans, but insists that she did not intend to embarrass him. I find that since Mr. Trimble had worn the “repaired” jeans for several days, it would be reasonable to ask to see the repairs. I also find based on Mr. Trimble’s statements that some amount of teasing would be expected due to the way he tried to fix the rip with duct tape. However, there is no evidence that Ms. Powell teased Mr. Trimble. There is also no evidence that any teasing by other people was sexual in nature or that it would have made a reasonable person feel uncomfortable. Finally, if an individual did not feel embarrassed to be wearing such damaged pants in public, he also would not feel embarrassed to be teased to some degree about the damage. Allegation No. 15: At times, Ms. Powell allegedly required Mr. Frafjord to obtain authorization in writing in order to receive overtime and did so because of his age. This allegation is not sustained. Mr. Frafjord’s main job for the City is as City Mechanic. He complains that Ms. Powell requires him, but no other Public Works employee, to fill out special paperwork in order to receive overtime. He believes that Ms. Powell does this because of his age. However, he agrees that Ms. Powell and Mr. Wincewicz Page | 16
told him that they wanted to track expenditures from different departments. (Mr. Frafjord was born in 1958). He attributes Ms. Powell’s action to his age because he can think of no other reason. Until a few months ago, Mr. Wincewicz was Mr. Frafjord’s supervisor. He recalls that Mr. Frafjord “wasn’t happy” with a new overtime procedure under which any department authorizing overtime for Mr. Frafjord would have to do so in writing. Mr. Wincewicz explained that Mr. Frafjord performs work for several departments related to the motor pool and the City wanted to track where the services were being provided so expenses could be appropriately distributed among the various departments. Mr. Wincewicz also explained that the authorizations do not have to be obtained in advance. He stated that Ms. Powell instructed him to track vehicle maintenance expenses and, since Mr. Frafjord provided work for three different City departments, it made sense to track the expenses in writing. Other employees provide services to just a single department, so their overtime does not require separate authorizations in order to track the work. Ms. Powell corroborated Mr. Wincewicz’s explanations and provided the same explanation for the overtime authorizations. Ms. Powell and Mr. Wincewicz provided legitimate, business related reasons for requiring Mr. Frafjord to complete special overtime paperwork even though other employees were not required to do so. Mr. Frafjord’s allegation that Ms. Powell is acting based on his age is sincere, but is purely speculation. I found no evidence that the overtime paperwork is related to Mr. Frafjord’s age. Allegation No. 16: Ms. Powell allegedly took job responsibilities away from Mr. Frafjord due to his age. This allegation is not sustained. Mr. Frafjord states that his duties as mechanic have been limited to fifty percent of his time and the City obtained bids to “contract out” mechanic services. He believes that Ms. Powell is attempting to eliminate his job and that she is doing so because of his age. He says that Ms. Powell told him that the City Council felt a designated vehicle maintenance person was not needed and the City wanted to save money on vehicle maintenance. Mr. Frafjord doubts Ms. Powell’s word because a Council member told him that the arrangement was Ms. Powell’s idea. He has also heard the idea came from Mr. Howard or Mr. Wincewicz. Mr. Frafjord also stated that he has always had enough work to do and has not lost any hours since his mechanic duties were limited. Ms. Powell denies taking any actions regarding Mr. Frafjord (or anyone else) based on age. She explained that contracting out vehicle maintenance was both a cost-saving and an efficiency measure. The allegation is purely speculative. There is no indication to me that Ms. Powell’s decisions, recommendations or practices with respect to Mr. Frafjord’s job duties were based in any way on his age. Allegation No. 17: Some witnesses reported that Ms. Powell inappropriately touched a fire department employee who is not a party to the pending grievance. This allegation is not sustained.
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Witnesses who reported inappropriate conduct by Ms. Powell suggested that I interview Adam Bigby, a fire department employee who is not one of the parties pursuing the grievance that resulted in this investigation. They stated that Mr. Bigby had been subjected to the same types of behavior (touching, brushing up against) that they asserted had been forced upon them. Mr. Bigby was a cooperative and credible witness. He said that a few years ago (he was uncertain about the precise time frame), he attended a potluck at City Hall. He remembers standing next to a table with about two feet of clearance between his back and a counter. According to him, Ms. Powell came by, placed her hands on his hips and “squeezed past”. He says she brushed against him as she went by. He did not say anything to her and she did not say anything to him. He did not report the matter because he did not say anything to Ms. Powell. Mr. Bigby told me that he has kept his distance from Ms. Powell since that time. There have been no other incidents between Ms. Powell and him. Ms. Powell does not remember brushing against Mr. Bigby. This was understandable to me since the alleged incident happened a few years ago and, based on Mr. Bigby’s description was a single, isolated incident. Based on Mr. Bigby’s description to me about what happened, it appears more likely than not that Ms. Powell did make physical contact when passing behind him. However, he described a quick, isolated incident that could as easily be attributed to a routine accidental encounter as to an intentional one. There was no evidence that Ms. Powell brushed against Mr. Bigby on purpose or that she was touching him for some sort of personal satisfaction. Allegation No. 18: In early 2012, Ms. Powell allegedly forced another City employee to “write up” Ms. Gueller and did so because of Ms. Gueller’s age and because she supported Ms. Wisdom in the past. This allegation is not sustained. Ms. Gueller alleges that Ms. Powell forced another City employee, Ms. Schankel, to write her up regarding a performance issue involving the proper use of procurement cards when processing invoices. Ms. Gueller asserts that Ms. Powell did this due to her age or else because she supported Ms. Wisdom’s past complaints and grievances. Ms. Schankel believes that Ms. Gueller has not been fairly treated, but she did not corroborate Ms. Gueller’s allegation. She explained to me that after she told Ms. Powell about an incident with Ms. Gueller being “aggressive” about getting some bills paid that Ms. Powell asked her to document what happened. Ms. Schankel showed me the e-mail that she prepared to document the matter. It stated (typos included as in original): On January 20, 2012 I left Kay [Gueller] a message that two bills that were in the bill box need to be paid by her procurement card.(as per City procedure, Kristy [Powell] asked me to phone her) Everyone else in the City pays with their procurement cards when providers accept them. On January 23, 2012 approximately 8:15 AM Kay *Gueller+ came into the Clerk’s office I said Hi how are you, she then said aggressively “who was the courts receivable clerk”, I then said Kristy [Powell], she started going toward her office and I said, Kristy is not here today. She then said, I put these bills in to be paid and marched off. Page | 18
Ms. Schankel told me that although she thinks Ms. Gueller has been treated unfairly in the past, that she had also thought that Ms. Gueller had been rude during this encounter. She did not intend to complain about Ms. Gueller, but did tell Ms. Powell what had happened. In response, Ms. Powell asked her to document what she experienced. Ms. Schankel said she interpreted Ms. Powell’s comment to be a directive she had to follow as a subordinate employee, but she did not feel “forced”. There is no indication that Ms. Powell coerced or pressured Ms. Schankel, although it is undisputed that she instructed Ms. Schankel to document what happened. Based on Ms. Schankel’s description about the encounter, a reasonable manager would have asked her to document the incident in the course of good performance management practices. Allegation No. 19: Ms. Powell treats Ms. Wisdom harshly based on Ms. Wisdom’s age, including an unwanted transfer of job location. This allegation is not sustained. Ms. Wisdom asserts that Ms. Powell embarked on a campaign to remove older employees from the workplace as soon as she joined the City as its Administrator. To support her allegation, she cited her own forced transfer from working in City Hall to being located at the Fire Department. She also cites a recent incident when Ms. Powell accused her of stealing office supplies. Ms. Wisdom filed a grievance when her job location was moved from City Hall to the Fire Department. She stated that she took no formal action other than the grievance (such as a complaint to any other governmental agencies, such as an Office of Civil Rights or the EEOC). Her grievance went to arbitration, with a decision issued on November 9, 2009. The grievance was denied. In reviewing the arbitrator’s decision, I found no reference to Ms. Wisdom claiming at any time that the decision to relocate her had been based on age. This strongly suggests that Ms. Wisdom did not raise allegations during the grievance process (as she raised during her interview with me) that when Ms. Powell was first hired as City Administrator that she announced the City would need to “bring in younger people.” Lack of such a reference leads me to conclude that Ms. Wisdom did not report suspicions of age discrimination at the time of her grievance. I have no doubt that she attempted to make every possible argument when challenging the move and would have raised age discrimination at that time had she sincerely believed then that Ms. Powell was acting based on age. Ms. Powell denied basing Ms. Wisdom’s relocation on age and she cited legitimate business reasons for the move (e.g. Ms. Wisdom’s work was closely associated with the Fire Department, making it more efficient for Ms. Wisdom to be based at the Fire Department instead of at City Hall). Her explanation is bolstered by the fact that Ms. Wisdom’s grievance was denied and by the fact that there was no mention of age discrimination in the grievance as a reason to block the relocation. Based on Ms. Powell’s reasonable explanation, the arbitration award and Ms. Wisdom’s failure to submit credible evidence of age discrimination related to the relocation, her allegation is not sustained. Allegation No. 20: Ms. Powell bullies employees and keeps them on edge by making unfounded accusations, such as accusing Ms. Wisdom of stealing office supplies. Page | 19
This allegation is not sustained. Ms. Wisdom asserts that Ms. Powell bullies employees and keeps them “on edge” by making unfounded accusations. When asked to provide specifics, Ms. Wisdom’s knowledge was limited to hearsay or gossip that she heard in the workplace. The only instance of an alleged unfounded accusation for which Ms. Wisdom had personal knowledge involved an allegation against her of theft. According to Ms. Wisdom, Ms. Powell accused her of stealing office supplies and told the Fire Chief (to whom Ms. Wisdom reports) to reprimand her. She clearly used the terms “steal” and “theft” when describing her complaint against Ms. Powell. Ms. Powell flatly denies accusing Ms. Wisdom of stealing and/or theft. She stated that other employees informed her that Ms. Wisdom was taking supplies from the Clerk’s offices and using them for work at the Fire Department. Ms. Powell told me that she informed the Fire Chief that his Department should purchase its own supplies instead of using those purchased by the Clerks. She emphasized that she did not accuse Ms. Wisdom of theft because Ms. Powell did not consider the action to be theft or stealing; she knew the City was using the materials. She was concerned about the supplies because of the potential impact on Department budgets (wrongly reducing the Fire Department’s budget while increasing that of the Clerks). Other employees corroborated Ms. Powell’s explanation, informing me that they had expressed concerns that Ms. Wisdom removed supplies from the Clerks to use for another department. Ms. Powell’s explanation is also supported by the fact that Ms. Wisdom was not terminated for theft. Based on the witnesses’ statements, I conclude that Ms. Powell did not accuse Ms. Wisdom of theft. I also conclude that a reasonable person would not have characterized what happened as an accusation of stealing or theft.
Submitted on July 1, 2013.
______________________________ Jim Webber
Jim Webber | Training - Consulting - Investigations
19725 40 Ave. W | Suite C Lynnwood | Washington | 98036 206.601.9242 | firstname.lastname@example.org
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