‘Lack Of Good Behavior’? Kentucky Government’s Inconsistent Response To Sexual Harassment

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Stacy Smith was the only woman working in the Transportation Cabinet’s maintenance facility in Burkesville, Kentucky. She said her supervisor, Michael Ballard, made sure she knew it.

By Smith’s account in court records, Ballard would interrogate Smith about her sex life and discuss topics like anal sex in graphic detail. He ordered her into his truck without her cell phone to complain that she’d been seen talking to a black man in town. He dragged the head of a deer through the office as a prank and told her to clean up the blood.

When they’d work at the computer together, Smith said, he would reach across her repeatedly, unnecessarily, rubbing her breasts in the process.

This behavior went on for months before Smith complained.

“I needed my job,” she said in a 2014 deposition. “I had to work and I could tough it out, you know.”

Smith’s is just one of at least 130 sexual harassment complaints filed by state employees in the last five years. But records show that in more than half of the cases, state officials disagreed that the behavior constituted sexual harassment.

Through open records requests, court documents and interviews, the Kentucky Center for Investigative Reporting has assembled the most comprehensive look so far at sexual harassment allegations filed by state employees since 2012. (Two of the largest departments — the Department of Corrections and the Department of Juvenile Justice — have not yet provided records requested in November.)

There is no statewide agency handling all complaints. Instead, investigations are most often conducted by the cabinet or department where the complaint originated, unless the complainant requests that it be handled by the Personnel Cabinet. The records show that when a state employee alleges sexual harassment, the depth of investigations, the severity of punishment, and even what agencies call the behavior depends on where the employee works.

Of the claims that were substantiated as sexual harassment, 88 percent resulted in punishment, but it ranges from counseling or a written reprimand to termination. Nearly 20 percent of all alleged perpetrators left their job as a result of the claim, either because they were fired, resigned or retired. Eighty percent of the alleged offenders were men.

In 20 percent of the state cases, investigators found no sexual harassment, but deemed the behavior to be some other kind of misconduct.

Experts who study the issue say these cases likely represent a small portion of the sexual harassment happening in Kentucky’s state government.

“This far, far under-represents the totality, because the vast majority [of offenders] never get reported,” said Jennifer Drobac, a professor at Indiana University’s Robert H. McKinney School of Law.

Stacy Smith complaint

Smith filed a complaint with the Transportation Cabinet in December 2012, after Ballard allegedly exposed himself to her and then urinated on her work boots. Cabinet officials interviewed her right away.

But the cabinet officials didn’t interview Ballard until two and a half months later, in March. He admitted to urinating outside with his back to employees, but denied the rest of the allegations. Other employees who were interviewed corroborated Smith’s story.

Ballard declined to comment for this story. The Transportation Cabinet did not respond to a request for comment about the handling of Ballard’s case.

In an April 2013 email to cabinet officials, more than three months after her complaint, Smith said she hadn’t heard anything about her case. “It just seems like everything is getting worse here,” she said, citing retaliation she started to experience from Ballard.

Smith resigned a month later and filed a sexual harassment lawsuit against the Transportation Cabinet in June.

In July 2013, after the lawsuit was filed, the cabinet finally acted on Smith’s complaint, but it still didn’t call Ballard’s actions sexual harassment. He was punished for a “lack of good behavior.” He received a three-day suspension without pay.

He is still employed by the Transportation Cabinet.

More than two years later, in 2015, the cabinet settled the lawsuit for $60,000. But in this case, justice delayed was justice denied. Smith died unexpectedly before the settlement was reached, and the money went to her estate.

Different departments, different outcomes

Sexual harassment is defined by the Kentucky Personnel Cabinet as “unwelcome sexual advances, requests for sexual acts or favors, with or without accompanying promises, threats, or reciprocal favors or actions; or other verbal or physical conduct of a sexual nature that creates or has the intention of creating a hostile or offensive working environment.”

All new executive branch employees are required to attend anti-harassment training put on by the Personnel Cabinet. The session is offered online and in-person sessions are held once a month in Frankfort.

Some cabinets require employees to attend the training yearly. Others require it only on an “as-needed” basis.

“Ideally, we’d love for employees to take the course on a somewhat consistent basis, but as is our practice with many other issues, we leave that to the agency’s discretion,” said Christopher Johnson, executive director for the Office of Diversity, Equality, and Training at the Personnel Cabinet.

The state employee handbook mandates that sexual harassment complaints be investigated through interviews with the complainant, respondent and witnesses, and punished appropriately.

But everything from the speed and thoroughness of that investigation to the severity of the punishment is left to each individual cabinet. The results vary widely.

“It doesn’t tell you how to investigate, it doesn’t tell you what substantiated means, it doesn’t tell you what the punishment should be. There aren’t guidelines on any of those things,” said JoAnne Sweeny, a law professor at the University of Louisville. “That’s not a system that is doing what it’s supposed to do.”

 In 2014, an employee of the Energy and Environment Cabinet quit because she didn’t feel safe working around forest ranger technician Jerry Brown any longer. She alleged that Brown made sexually explicit comments to her.

Another employee corroborated the woman’s allegation that Brown made inappropriate comments at work, but the employee said she didn’t feel threatened by them. Brown denied asking employees for sexual favors but said he had previously made “off color” statements.

The cabinet noted in its investigation that Brown had recently been charged with misdemeanor assault with sexual motivation.

The assault allegedly occurred while Brown was representing Kentucky on a temporary assignment for the U.S. Forest Service in Washington state, just months before. The Cabinet often issued laudatory press releases when its firefighters, including Brown, got called up to work with the U.S. Forest Service to fight wildfires.

The Washington case involved inappropriate sexual behavior with a female employee Brown supervised, according to the investigation. Brown pleaded guilty to a reduced charge of misdemeanor assault, court records show. He was fired from temporary employment with the U.S. Forest Service and told not to return.

Based on that history and evidence produced during the investigation, the Energy and Environment Cabinet substantiated Brown’s coworker’s claim. But he was not fired.

After a substantiated claim of sexual harassment, an assault conviction and a coworker who said she quit over Brown’s treatment, Brown received a written reprimand.

He was also ordered to attend another round of anti-harassment training.

Records provided by the Kentucky Energy and Environment Cabinet

Complaint against Jerry Brown

Brown is still employed by the cabinet. He did not return calls or an email seeking comment.

Brown’s case was investigated by the General Administration and Program Support Shared Services office, which used to oversee human resources for the Energy and Environment, Labor and Public Protection cabinets. Gov. Matt Bevin dismantled GAPS during a recent reorganization, and each cabinet now handles its own HR functions.

Energy and Environment Cabinet communications director John Mura said no one involved in the investigation or punishment of the Brown case is still with the cabinet and he couldn’t say why the case resulted in a written reprimand.

“Given the increased awareness of and sensitivity towards this type of behavior, I think it’s fair to say that were the same complaint made today, it might be looked at differently,” he said.

Mura said state law does not permit the agency to re-open the case unless there is a new allegation.

The Energy and Environment Cabinet also issued a written reprimand after another employee admitted to saying, “She better not talk down to me because I’ll tell her the kind of c**t she is.”

Of five substantiated claims at the cabinet, the strongest punishment was a demotion for a supervisor who repeatedly made sexually explicit comments.

Kentucky Department of Military Affairs records

A female employee accused a male employee at the Department of Military Affairs of sexual harassment. He was placed on leave during the investigation and then terminated.

By contrast, some departments have terminated nearly everyone accused of sexual harassment. The Department of Military Affairs had seven complaints filed in the last five years, the highest number of complaints per number of employees of all the agencies that reported. Documents show that five of those seven resulted in firings.

The complaints alleged offenses ranging from propositioning colleagues for sex to cornering coworkers and physically grabbing them.

Staff Attorney Charla Sands said in an email that the department’s Equal Employment Opportunity counselors handle these cases. The department requires sexual harassment training every two years.   

‘Severe or pervasive’

The Cabinet for Health and Family Services gave records to KyCIR that documented 42 complaints. Not a single one was substantiated as sexual harassment.

Health and Family Services was the largest branch of state government to respond to our request for records, and accounted for a third of all complaints. (Two departments under the largest cabinet, Justice and Public Safety, have not yet provided the records requested last November.)

In more than half of Health and Family Services’ cases, the conclusion was that the behavior that triggered the complaint “did not rise to the level of being severe or pervasive.”

That language mirrors the federal law that makes sexual harassment illegal, which requires it to be “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive,” according to the U.S. Equal Employment Opportunity Commission.

That differs from the state law, which “prohibits … verbal or physical conduct of a sexual nature that creates or has the intention of creating a hostile or offensive working environment.”

That is also the Personnel Cabinet’s definition of sexual harassment, which means the Cabinet for Health and Family Services appears to be citing a legal standard that’s different than the state requires.

Health and Family Services spokesman Doug Hogan referred all questions about the cabinet’s sexual harassment policies to the Personnel Cabinet.

Johnson, with the Personnel Cabinet, said in an email that all Executive Branch agencies follow the same standard.

“The fact that some investigations may not have found severe and pervasive sexual harassment in years past does not mean the agency did not discipline or address the conduct,” Johnson said.

Sweeny of U of L says workplaces have a motivation to avoid using the term “sexual harassment.”

“They find ways to deal with a problem without actually calling it what it is, in order to minimize any kind of press they would get, and also in an effort to protect the perpetrator a little bit,” said Sweeny.

That approach becomes particularly problematic if workplaces don’t punish anything unless it rises to the level of sexual harassment, Sweeny said.

The Cabinet for Health and Family Services issued punishments in 60 percent of these cases, but still didn’t call any incidents sexual harassment. Most were the result of “lack of good behavior,” with most punishments ranging from counseling to multi-day suspensions.

The cabinet terminated two employees after sexual harassment allegations. One was an employee still on probation who made sexual comments. The other was terminated for inappropriate conduct ranging from timesheet fraud to drinking on the job, as well as sexual comments. Neither were substantiated as sexual harassment.

No one was fired after a wide-ranging investigation into a 2013 claim of sexual harassment in the Flemingsburg office of the Department for Community Based Services. One employee accused two other employees of harassment.

Cabinet for Health and Family Services records

The respondent denied all allegations against him. He received a 10-day suspension.

As the investigation went on, more complaints emerged, including from the people first accused.

Records show the Flemingsburg office was a hotbed of lewd conversations, inappropriate touching and sexual advances. A regional supervisor said she counseled staff multiple times on inappropriate behavior. Employees of both genders reported feeling harassed by this behavior. One said, “We all generally laughed and participation was necessary to appease.”

Cabinet for Health and Family Services

The original complainant was counter-accused.

By the end of the investigation, six employees received suspensions for “lack of good behavior” ranging from two to 10 days. The office supervisor was originally recommended for termination, but after a pre-termination hearing, she was transferred and demoted instead.

Yet still, sexual harassment was not substantiated in any of the cases. Because the complainants had “willingly participated” in some of the lewd conduct, “such acts did not rise to the level of being severe or pervasive,” a report said. “Accordingly, sexual harassment as defined by law is not substantiated.”

Elsewhere, few or no complaints

Of the seven responding agencies that reported no sexual harassment complaints, the largest are the Kentucky Retirement System with 258 employees and the Auditor of Public Accounts, which has 125 employees. The other agencies are smaller, with between 20 and 70 employees each.

But there were much larger branches of state government that had just a few complaints.

The Kentucky Department of Education has more than 1,300 employees statewide. They provided records for just one sexual harassment complaint in five years, against a cook at the Kentucky School for the Deaf.

Kentucky Department of Education records

A Kentucky School For the Deaf cook was fired after a complaint.

He was promptly put on leave and then terminated.

Education officials said they didn’t know why there were so few complaints. All new employees are given the department’s harassment prevention policy, which outlines the steps the agency would take in response to a claim. Managers are regularly trained on responding to harassment claims.

Associate commissioner Robin Kinney said the department would take swift action if presented with a complaint.

“It doesn’t need to be on the right form or the right piece of paper for us to take a complaint seriously,” said Kinney.

Kentucky State Police had only four complaints for nearly 2,000 employees.

“I have to assume that it’s an issue of it’s just not happening as much, because we provide our employees with every method possible, just like any other agency would, for these to be reported,” said KSP spokesman Sgt. Josh Lawson.

Drobac said, generally, low numbers of complaints are not necessarily a good thing.

“I suppose it’s possible they have an idyllic workplace, but that defies statistical reality,” said Drobac. “Usually that means people are too afraid to come forward or the complaint policy is inhospitable.”

#MeToo sparks discussion, calls for change

In the past six months, long-silenced sexual misconduct allegations have emerged from Hollywood, the halls of Congress, the restaurant industry and every other corner of the working world.

Kentucky has not been immune.

In November, Courier Journal revealed that former Speaker of the House Jeff Hoover and three other Republican house members secretly settled a sexual harassment case. Hoover stepped down as Speaker at the beginning of this legislative session but remains in the House and has filed for re-election. The details of the settlement — who paid for it, and how much — remain secret.

The Legislative Research Commission denied KyCIR’s records request, refusing to turn over any documents related to sexual harassment or even say whether any exist.

In December, KyCIR published a wide-ranging investigation into former state Rep. Dan Johnson, a Republican from Mt. Washington. In the story, Maranda Richmond accused Johnson of molesting her when she was 17. Both parties called for Johnson to step down. He died by suicide two days later.

Gov. Matt Bevin condemned Hoover, saying his actions are “reprehensible, they’re indefensible, they’re unacceptable. Period.” He called Johnson an “embarrassment to the party.”

J. Tyler Franklin / KyCIR

Matt Bevin

Bevin’s communications director, Elizabeth Goss Kuhn, said in an emailed statement that “Gov. Bevin has stated, unequivocally, that he has zero tolerance for harassment of any kind.”

In response to the larger national movement, the Personnel Cabinet created a 90-minute class called “Sexual Harassment Prevention for Executive Leadership” for existing employees in leadership roles. It will roll this training out to all employees over the coming months.

“We wanted to be proactive to ensure that our executive leadership is given the tools, not only to recognize, but to know the policies and procedures in how we deal with sexual harassment,” said Christopher Johnson of the Personnel Cabinet.

Those leaders will go on to set the procedures for investigating and punishing sexual harassment in their own agencies.

In the wake of sexual harassment allegations against former state Rep. John Arnold in 2013, there was a flurry of action around how the state legislature handles claims of that nature. The recent statehouse scandals have re-opened the issue. A bill has been filed to create a sexual harassment task force in the legislature.  

But state Rep. Mary Lou Marzian, a Democrat from Louisville, said maybe it’s time to take a look at how other arms of the government handle sexual harassment, too. She said victims of sexual harassment deserve to know that they are going to get the same outcomes, no matter where they complain.

“You can’t just leave it up to individuals,” she said, “because it would be like throwing a dart at a target. It’s going to be all over the place.”

Amina Elahi, Ashlie Stevens, Kyeland Jackson, Roxanne Scott, Lisa Gillespie and Laura Ellis of WFPL and Jacob Ryan, Kate Howard, R.G. Dunlop and Brendan McCarthy of KyCIR contributed to this report.

Eleanor Klibanoff can be reached at eklibanoff@kycir.org and (502) 814.6544.