NC-215 – Harassment

The Appellant filed a harassment complaint (Complaint) against one of her supervisors at the relevant time (Alleged Harasser). In doing so, she alleged various incidents of harassment, and later added an additional alleged incident. The Office for the Coordination of Harassment Complaints (OCHC) recommended that a harassment investigation be mandated.

In response to the Complaint, the Alleged Harasser provided submissions, to which the Appellant then provided a rebuttal.

The Respondent found that the Complaint was not timely, yet went on to provide her analysis. She determined that the Complaint was not established, and declined to mandate an investigation (Decision).

The Appellant filed her Statement of Appeal with the Office for the Coordination of Grievances and Appeals (OCGA), indicating that the Decision was reached in a manner that contravened the applicable principles of procedural fairness, was based on an error of law, and was clearly unreasonable.

During the appeal process, the Appellant received disclosure of various documents in the harassment complaint process. Two adjudicative directions were also issued on the collateral issue of disclosure.

The ERC found that the Complaint was not submitted within the 1 year time frame, nor did the record contain any evidence of an extension of the limitation period. However, the ERC found that the Respondent’s issuance of the Decision included, by implication, the granting of an extension to that limitation period. The ERC also found that it would be highly prejudicial to the Appellant to find that the lack of a written explanation for an extension barred the review of the appeal on its merits.

The ERC considered the admissibility of new evidence on appeal, namely, three attachments relied upon by the Appellant in support of her submissions. The ERC found that two of those attachments satisfied the Palmer test.

The ERC found that the Decision was clearly unreasonable, as the Respondent erred by not mandating a harassment investigation. In addition, the ERC found that Decision was procedurally unfair on the basis that the Appellant’s right to be heard was breached, as she was not afforded a meaningful opportunity to provide any supplemental written submissions, apart from a rebuttal to the Alleged Harasser’s information.

The ERC found that the other grounds of appeal advanced by the Appellant lacked merit. The ERC found that it was not erroneous to notify the Alleged Harasser about the Complaint, to seek his submission outside of a mandated investigation, or to rely on that submission within the Decision. In terms of whether it was an error to afford the Alleged Harasser the option to consent to his submissions being shared with the Appellant, the ERC found that this was a procedural irregularity which did not affect the outcome of the Decision, nor was there any evidence to suggest that the Alleged Harasser declined to provide his consent in that regard. The ERC also found that the Appellant had not demonstrated to the required standard that the Harassment Unit was biased. In the ERC’s view, it seemed questionable whether a member of the Harassment Unit was required to provide the Respondent with information which had originated from an investigation in another harassment complaint. Lastly, although the Appellant argued that there were other procedural errors, including an allegedly unreasonable delay in the processing of the file, and the Respondent’s location, the ERC found that such arguments could not succeed.

The ERC recommended that the appeal be allowed on the basis that the Respondent’s Decision was clearly unreasonable and procedurally unfair. The ERC also recommended that the matter be remitted to a new decision-maker, with directions to mandate an informed investigation and issue a new decision.