State: Insufficient evidence in Sutton discrimination case

Former city gymnastics instructor Michelle Sutton received notice in December from the California Department of Fair Employment and Housing that the state found insufficient evidence of discrimination, harassment and retaliation regarding a complaint she had filed after being abruptly fired.

That may not be the end of the matter.

“For the record I will say that I have been working my way through all of the procedural hurdles and that I am keeping my options open with respect to a civil suit,” Ms. Sutton said.

The week before she was fired, the instructor had asked the city’s human resources department and union representatives about filing a harassment complaint against supervisor Karen Mihalek. Ms. Sutton was then terminated on Feb. 12, 2013.

She said she was told that a parent’s complaint led to her termination. The complaint, emailed publicly to program management and to the City Council on Jan. 30, described the instructor as unprofessional in how she had asked the parent to step away during a child-only class.

Other parents responded to the firing with outrage, flooding the council’s email in-box with letters praising Ms. Sutton. While the initial complaint remained on the Menlo Park’s website for a week without issue, the city abruptly deleted both the complaint and at least a dozen emails of support for the teacher.

According to city staff at the time, the emails left the city vulnerable to a defamation lawsuit and related to a confidential personnel matter. But staff suddenly reversed course as public outcry continued, and restored the letters.

Many questioned whether the city even had legal standing to delete the emails in the first place. Jim Ewert, media law expert and legal counsel for the California Newspaper Publishers Association called the removal “ludicrous,” arguing that emails to the council are public records just like comments made during public meetings, which are archived on the city’s website.

Documentation of another sort proved more elusive. The Almanac found no mention of reprimands or performance issues in Ms. Sutton’s personnel file. Since she was an at-will employee, however, Menlo Park wasn’t required by law to document disciplinary actions, although employers often do so as a safeguard.

According to the DFEH, some employers may keep such records with a supervisor’s informal collection of documents instead of placing them in a personnel file. Some examples are counseling memos, written warnings, notes of informal counseling sessions and performance improvement plans.

Ms. Sutton said the state’s investigator told her the city cited performance issues as the reason she was fired, which she assumes refers to the letter of complaint sent by the parent. While employed with the city, she said, she was never given any documentation of warnings or performance issues apart from that one complaint.

Fellow instructor Chris Ortez quit in protest over her firing and later told the city manager and the council that Ms. Mihalek held “none-too-discreet contempt” for Ms. Sutton and reportedly had a history of complaints filed by at least two female staff members.

A letter sent to Ms. Sutton by City Manager Alex McIntyre in July stated that a third-party investigator hired by the city found, after interviewing 18 people, that Ms. Sutton had not been illegally harassed or fired in retaliation for trying to file a complaint about her supervisor.

Without naming anyone, the letter acknowledged that certain supervisors and employees interacted inappropriately with Ms. Sutton at times.

Nevertheless, her termination, while handled in a manner that “may have been unpleasant,” was appropriate, the letter said.

The staff involved in the inappropriate behavior were counseled, according to Community Services Director Cherise Brandell.

However, the Almanac has learned that a second staff member within the gymnastics program has now filed a complaint with the DFEH. An agency representative said regulations prohibited releasing the employee’s name.

In addition, an employee of the Menlo Children’s Center, also managed by the Community Services Department, who filed a complaint has notified the state that he or she intends to sue the city.

Annmarie Billotti, an attorney who has worked with DFEH for about 12 years, said that once an employee files a complaint, the employee may either request an immediate right to sue, which doesn’t involve any investigation by the agency, or the complaint may undergo review.

Some cases are then randomly chosen for voluntary mediation, creating an opportunity for settlement, but otherwise the district office will investigate, she said. The employer must provide written responses, with documentation, to the issues raised in the complaint. The employee is then given an opportunity to rebut the response and submit additional evidence before the DFEH decides whether a violation occurred. If the agency finds there’s insufficient evidence, the employee will still get a “right to sue” notice.

If it appears a violation did happen, the agency’s legal division reviews the case to determine whether to prosecute, and provides another chance for mediation.

“A lot of times, complaints do get closed for insufficient evidence. It depends on the type of case, the facts of the case. … it really is an individualized assessment,” Ms. Billotti said.

A common misunderstanding is that just treating someone badly or unfairly counts as a violation, she said.

“I think it’s the ‘fair’ that misleads people the most. There’s a limit to the law that we enforce. (It’s a violation) only if the behavior is discriminatory under the Fair Employment and Housing Act, and directed against someone on a protected basis,” she explained, “like sex or race or disability, for example. Just being a terrible boss is not typically a violation.”

The agency can now track whether multiple complaints are lodged against the same employer, thanks to a new case management system that debuted in 2012.

“Before then, you could have some employees going to the L.A. office, and then someone would file in the Fremont office, and L.A. and Fremont wouldn’t know,” Ms. Billotti said. The DFEH is now “absolutely looking for trends and multiple complaints against the same employer, to target systemic discrimination, as well as continuing to pursue individual complaints.”

It’s difficult to tell whether the complaints against Menlo Park demonstrate a trend. Human Resources Director Gina Donnelly said that prior to her arrival in 2012, separate files weren’t kept for claims made with the state, but that she did know of four: Two against the public works department, one in 2010 and another in 2011; and two regarding community services, in 2012 and in 2013. (That list does not include the latest complaint filed by a gymnastics program employee.)

Ms. Donnelly said that all were closed with no adverse findings, with the exception of the February 2010 claim, which remains open.