FWP ordered to pay $20,000 over retaliation
June 25, 2013
BILLINGS (AP) — A hearings officer for the Montana Human Rights Bureau has ordered the state Department of Fish, Wildlife and Parks to pay $20,000 to a Kalispell employee for retaliating against him after he questioned his punishment for comments made during an inadvertent phone call.
The case involving former Aquatic Invasive Species supervisor John Wachsmuth began in June 2011 when he bumped his cellphone while kayaking, causing it to accidentally call a co-worker, The Billings Gazette (http://bit.ly/15zOf32 ) reported.
The co-worker's answering machine recorded the conversation Wachsmuth was having. Much of it was unintelligible except for one part in which Wachsmuth said: "We're having an (expletive) hard time with these women." The comment referred to that co-worker.
She filed a complaint and Wachsmuth was pulled out of an upcoming leadership conference. He complained he was being discriminated against and FWP removed him from the AIS program and put him to work in a fish hatchery at the same pay, but with no supervisory duties.
He filed a discrimination and retaliation complaint with the Montana Human Rights Commission in December 2011.
In July 2012, shortly after Wachsmuth received a finding of "reasonable cause" in his human rights complaint, Wachsmuth said the regional supervisor suggested he take a deal being negotiated that called for him to retire in December 2013 and added that "FWP is not going to stand here and take this."
Wachsmuth, who was 57, did not want to retire, according to case records.
In late August, the supervisor suspended Wachsmuth for three days without pay. He said it was punishment for lying during the investigation of the phone call, but the hearings officer found no evidence to support that. The supervisor also ordered Wachsmuth back to work on the Friday before the Labor Day weekend — a day that Wachsmuth had already received permission to take off.
Wachsmuth filed a grievance over the suspension with the Board of Personnel Appeals in September 2012. The cases were combined and heard by hearings officer Gregory Hanchett.
Hanchett found in a June 6 ruling that that FWP did retaliate against Wachsmuth. However, it dismissed his claims of age and sexual discrimination.
Hanchett said there was no question when the recording of the call was heard that the conversation was not directed at the co-worker, but was a private conversation between Wachsmuth and his kayaking companion.
The decision to remove Wachsmuth from the regional AIS coordinator position lacked rationale and was detrimental to the AIS program, Hanchett found.
Separately, Hanchett found: "The only reason for suspending Wachsmuth was to retaliate against him for filing a human rights complaint, which, by law, he had the right to do."
In addition to the emotional distress damages, Hanchett ordered FWP to pay Wachsmuth the money he would have earned during his three-day suspension, plus interest, and ordered that he be returned to work similar to what he was doing before he was transferred. He also ordered the suspension letter be removed from Wachsmuth's file. Hanchett also ordered Kalispell and state FWP leadership to undergo training in preventing discrimination and retaliation.
The Human Rights Bureau said FWP has appealed the decision in the retaliation case and a hearing is expected in September. FWP has until July 1 to decide if it will appeal the decision over the grievance filed with the Board of Personnel Appeals.
Information from: Billings Gazette, http://www.billingsgazette.com