INVESTIGATION REPORT Date: February 12, 2016 . . kr- To: DanIel KIllam, Deputy HR ChIef I, -- or.? From: Tasha Petersen, Senior HR Business 8% er (Investigator) RE: ?Interna Complaint? Final Investigation Report INITIAL COMPLAINT: On an internal complaint against his lead worker, David Fifer. The complaint was ?led In writing on the ODOT Complaint Form. The complaint alleged Mr. Fifer had engaged' In a variety of unprofessional and hostile behavior and various policy violations. Further, ?alleged that his direct supervisor David McKane, was non? ?responsive to the concerns he raised about Mr. Fifer. It was determined that there was sufficient information to proceed with an investigation. The investigation was assigned and began on 12/17/2015. PRELIMINARY REVIEW: On 12/17/2015 I conducted a preliminary review of ?complaint and determined the complaint was not related to protected class. I sent a letter to? on this same date, advising him of this determination and that I would be investigating his complaint as it related to the Maintaining a Professional WOrkp/ace Po/icy and other relevant policies. SECONDARY COMPLAINT RETALIATION: On 12/31/2015_sent an email alleging Mr. McKane had issued q: poor and inaCCurate performance evaluation in retaliation for his complaint agaIns r. Fifer. INTERVIEW WITH COMPLAINANT: On 1/5/2016 I met with_ in Salem, Oregon. The meeting was recorded. During the meeting, I asked to provide specific dates and times of incidents related to his claims, any relevant documents and a list of witnesses I could contact in support of his allegations. He provided me with the requested information and the names of several witnesses for me to contact. I also discussed claim of retaliation with him. I infOrmed him I would investigate his retaliation complaint along with the rest 'of his complaint. SCOPE OF INVESTIGATION: Early in the investigation, and after meeting with [determined that there were allegations raISed in? complaint that were out of Scope for my investigation. Specifically, those allegations that I deemed "out of scope" and did not investigate were. 1 Pago Issues related to an ongoing Audit investigation of the Powell Scales Contract 2. Issues related to the? Complaint (OSHA Complaint, Vendor complaint against_} 3. Motor Carrier Division business efficiency and operations 4. Competence of Mr. Fifer A The following allegations determined were "in scope" and I investigated them: 95993.4 No.01 Hostile Work Environment Faisification of a training record Failure to effectively communicate, untimely responses Mr. Fifer?s direction to and other crew members to "knock off early? without taking leave time Drinking while still ?on the clock? at out of town job site Visiting in?laws while on state time and in state vehicle use of the word ?nigga? or ?nigger? in the work environment WITNESSES INTERVIEWED: During the course of the investigation, I interviewed the following witnesses who - -identified as having first?hand knowledge of specific incidents. In addition, contacted other parties with information relevant to the complaint. formerly a Field Technician Field Technician Support Safety Manager ODOT Safety Division i also interviewed Mr. Fifer and Mr. McKane. Of note, _provided numerous witnesses in his written complaint. Only those witnesses who were identified as having first hand knowledge of specific incidents were interviewed. RELEVANT DOCUMENTS: In addition to talking to. witnesses. I reviewed a variety of documents provided by. -as well as the following relevant policies: DAS Statewide Policy 50,010.03, Maintaining a Professional Workplace DAS Statewide Policy, 50.010.01. Discrimination and Harassment Free Workplace ODOT Policy STD20071, Occupational Safety and Health Standard Bucket Trucks and Elevated Work Platforms OAR 125?1 550510 (Use of State Vehicles) ZiPage FINDINGS: 1. Hostile Work Environment. DAS statewide Policy, 50.010. 03 maintaining a Professional Workplace, sets the expectation that all individuals work together to create and maintain a work environment that is respectful, professional and free from inappropriate workplace behavior. _aileges between 6118/2007 when he started in his position and up until he went on his job rotation, he has been subjected to a hostile work environment by Mr. al unreasonable and difficult to work with, loud, Fifer because Mr. Fifer is unprofession dismissive, rude and condescending. ?provided anecdotal examples where these behaviors have occurred and offered witnesses who have experienced similar interactions with Mr. Fifer as evidence of Mr. Fifer?s behavior. in my interviews with ?and each of them offered that they generally found Mr. Fifer difficult to work with and had observed these behaviors in their own interactions with Mr. Fifer but did not offer specific incidents with dates, times and witnesses. Mr. Knight claims to have approached lVlr. Fifer multiple times to discuss his concerns but no change occurred. Mr. Fifer maintains that from his perspective he and _worked well together and there have not been issues of this kind between them. He also claims never approached him with any concerns whatsoever. Mr. Fifer reported that it was only when _went on his job rotation when he had an interaction with - - that led him to believe there was tension between the two. Mr. Fifer reportedly asked?what was wrong and -told Mr. Fifer that he knew what was wrong and provided no further explanation. iv?ir. Fifer reports they have never spoken of it again and to this day he is still not sure what the issue was. Mr. McKane maintains that he was never made aware of any conflict between Mr. Fifer and and that_ never brought any of these issues to his attention. Furt er, claims that in general he didn?t talk to Mr. McKane about these issues because be perceived him not to be objective as a result of what he believed to be a friendship between Mr. McKane and Mr. Fifer. While Mr. Fifer and Mr. McKane both admit to having a friendship away from the workplace, Mr. McKane insisted that he has remained objective and that if_wou d have brought any of the issues to his attention. he would have addressed them appropriately and denies ever dismissing concerns about Mr. Fifer out of hand. Mr. Fifer and Mr. McKane each claimed that since! has returned from his job rotation in March 2015,'the dynamics between them ave teen different and the relationships have deteriorated. Mr. Fifer and_ both claim the interactions between them have been fewer and fewer, especially in recent months. FINDING 1: The allegation of hostile work environment is not substantiated. I did not find sufficient evidence to support the allegation. Mr. Fifer and?offered two 3 Page very different recollections of the interactions and relationship dynamics between them, creating a he said he said. However, based on the reports of all those interviewed, including Mr. Fifer and I found clear and ongoing tension and strained relationships betweent cse Int unit. 2. Falsification of training record. ODOT policy STD20071, Occupational Safety and Health Standard Bucket Trucks and Elevated Work Platforms sets forth the standards and safety protocols for employees that use bucket trucks in the performance of their duties and was effective July 2007. The policy states in relevant part, ?Employees shall not operate aerial devices without proper training in their use and safety.? It also states, Training is required by ODOT and OSHA before operating an aerial device or bucket truck. Exception: New operators may work under the direct supervision of quali?ed staff to develop skills. 2. Employees shall complete ?Bucket Truck Safety? training (course no. MA001655) or ?Sllerial/Scissor-lift Operator? training (course no. MA001862) or an approved contractor provided course. a. This training shall consist of: lecture, . discussion, videos, written materials, open book written test (80% pass) and practical training and exercises with proficiency test performed by the employee. b. Failure to pass written or proficiency tests will require retesting after period of supervised practice at crew level. Supervisor and employee shall be notified by instructor. Employee may not operate equipment without direct supervision. c. An evaluation of each bucket truck operator?s performance shall be conducted at least once every 3 years by the supervisor or 'competent person designated by the supervisor. The evaluation shall ensure that the bucket truck operator is able to demonstrate pro?ciency in the safe operation of the equipment.? And finally, . Employees: a. Shall follow the written requirements as defined in this standard. b. Shall attend required training prior to operating equipment covered in this standard. 2. Supervisors /Managers: a. Shell ensure this safety standard is implemented and followed in their areas of responsibility. b. Shall make available adequate training for all employees that are affected by this standard and provide adequate time for training, practice, review of manuals and equipment inspections.? maintains that in March 2008, he made Mr. Fifer aware that he was required to take Bucket Truck Safety training consistent with ODOT Policy and that Mr. Fifer?s response to his request was to prepare a ?fake document" certifying?had been appropriately trained on operation of the crew's bucket truck despite never providing-with training. _denies having received the training the document outlines. ?acknowiedged that despite his concern about the document, he never reported the issue to Mr. McKane and he let the issue drop. Mr. Fifer offered that he was certified to provide bucket truck training in a previous career before ODOT. Mr. Fifer was not certified by ODOT to provide bucket truck training. Mr. Fifer estimated that he spent approximately 2 hours training_ on operating the bucket truck and prepared the training document to certify him. Mr. Fifer acknowledged that he was not certified by ODOT to provide bucket truck training nor was it part of his job duties. When asked why he substituted his own training for that of 4 Pagc ODOT sanctioned training, he offered that he did this out of convenience since he had the skill to do it. Mr. McKane did not have any recollection of seeing the training document, but acknowledged that he may have received it and just doesn?t remember. He also did not have any knowledge of what trainin actually occurred in connection with the document. Mr. McKane did not know that?was concerned about this training document. FINDING 2: The allegation is not substantiated. Mr. Fifer did not falsify the document or go into Mr. Knight?s training record and ?doctor the record" in some way. Mr. Fifer admitted to authoring and signing the document titled "Buck/Maniift Training for Matt Knight"dated March 11, 2008. Mr. Fifer even copied Mr. lVchane on the document. There was no evidence or witnesses presented to support Mr. ifer?s claim that 2 hours of training happened and there were two different recollections of the actual training on the bucket truck by Mr. Fifer and creating a he said he said. However, even if Mr. Fifer offered approximately 2 hours of training to_ on operating the bucket truck as he claims, that does not comply with the trainin rocess required under the Policy and Mr. Fifer was not authorized to certify? as trained. My investigation found that while the document wasn?t falsified, it also wasn?t adequate or consistent with required training. 3. David Fifer?s direction to?and other crew members to ?knock off earl without taking leave time. ?claims that he and others were directed by Mr. Fifer to ?knock off early? on multiple occasions without the expectation of using leave time. While_ did not reCall a specific instance, he offered witnesses who had the same experience after attending a team holiday luncheon in 2013 and in 2014. ?and- - all reported they attended both luncheons and claim they were told by Mr. Fifer to ?knock off early?. They all understood that Mr. Fifer was inviting them to go home early without the expectation of using leave time. Each of them said they returned to work and none of them reported this or their concern about the incidents to Mr. McKane. Mr.Fifer recalled attending the luncheon and even buying lunch for all in attendance in 2013 and 2014, but denied ever telling anyone they could ?knock off early" and offered that it couldn't have happened because he doesn?t have the authority to approve time. Mr. McKane said he too was in attendance in 2013 and 2014, but was not aware of Mr. Fifer telling anyone this. Mr. McKane did offer that in his absence, Mr. Fifer would have the authority to approve leave. FINDING 3: The allegation is substantiated. While Mr. Fifer denied having told crew members to ?knock off early" at the holiday luncheon in 2013 and 2014, - and_ all recalled Mr. Fifer giving this direction and corroborated each other?s account. This investigator found these witnesses to be credible in their statements related to this claim and, so, I found this was more likely than not to have occurred. However, Mr. Fifer does not have the authority to approve leave time or send an employee home. While it isn?t appropriate for a lead worker to be encouraging employees to leave work without taking the appropriate leave, since Mr. Fifer did not 5 Page . have the authority to approve leave time or send employees home, I did not find the act of Mr. Fifer telling his coworkers to go home early a violation of any policy. Further, no one followed the direction. 4. Drinking while still ?on the clock? at out of town job site. ?claims that Mr. Fifer drinks alcohol during what should still be work time when they are out working in the field. While he didn't provide a specific incident of this happening, he did rovide a witness, who had a first had report of such an occurrence. *documented this event in a document called The Ef?ciency Log. reported he staited and kept the log to document acts and incidents with Mr. Fifer between .lune 11, 2013 and sometime in May 2015. In the log._wrote about his and Mr. Fifer's trip to Juniper Butte, ?9/8/14 Left fartoc ear at Fifer's instruction and had a meeting on clock over beer at his insistence.? Mr. Fifer recalled the job and the trip to Juniper Butte, but recalled working a 10 hour day and said there was no way they could have finished early. Mr. Fifer denied drinking while on the ciock. FINDING 4: The allegation is not substantiated. While_ kept a log entry from this day, there was no additional evidence or witnesses presented to support- -ciaim that Mr. Fifer was drinking white still on the clock during their trip to Juniper Butte. _and Mr. Fifer had two different recollections of that trip .. creating a he said he said. 5. Visiting in-laws white on state time and in a state vehicle. OAR 125-155-0510 sets forth the conditions of state vehicle use. For day use, the OAR does permit drivers to stop for food or breaks at sites reasonably near to their direct business route. it does, however, prohibit personal travel from duty station to visit with friends or family. For overnight use, within the local vicinity of the direct travel route or of the overnight assignment and during reasonable hours, the driver may travel to friends or relatives homes. ?claims that Mr. Fifer took him to Mr. Fifer's innlaws house in Stayton while they were traveling in the state vehicle to and from central Oregon for business for a visit lasting 30 minutes or longer. it was unclear if this was for overnight or day travel. Mr. Fifer admitted that they had done this once in early 2007. Mr. Fifer said he was impressed with and wanted to introduce him to his in?Iaws. He claims it was break time and that they stopped for coffee for approximately 10 minutes. Mr. Fifer did not have his supervisor's permission to make the stop. Mr. McKane said he did not know this had happened and would expect that Mr. Fifer would ask and receive prior approval. For Mr. Fifer's art, he believed that because he was on break, this was acceptable. Both and Mr. Fifer said they were traveling Highway 22 east toward Bend and stopped in Staytori, Oregon. Staytoii is along the travel route. 5: The allegation is substantiated. Mr. Fifer admitted to taking a state vehicle to his in?laws house for a coffee break on the way to/from a trip to Central Oregon. This may/may not have been a violation of the OAR. There was not enough GlPage information available to make that determination and Mr. Knight and Mr. Fifer had different recollections of the duration of that visit. 6. David Fifer?s use of the word ?nigga? or ?nigger? in the work environment. DAS statewide Policy, 50.010. 03 Maintaining a Professional Workplace, sets the expectation that all individuals work together to create and maintain a work environment that is respectful, professional and free from inappropriate workplace behavior. Use of the term ?nigga? or ?nigger? is reasonably offensive and would not be consistent with the expectations of the policy. _c aims that he heard Mr. ifer use these words on two separate occasions. He also provided a witness,=, who recalled hearing Mr. Fifer use these words on multiple occasions. provided a detailed account of Mr. Fifer telling her about his growing up in Washington, DC in a mostly?black neighborhood. Mr. Fifer did not deny telling her about his background. He also admitted to having a black friend who he did talk to on the phone regularly, but Mr. Fifer claims it was his friend who called Mr. Fifer that when he would call. Mr. Fifer explained that he was an African? American friend who lives in Washington State. Mr. FifertoId?about this friend and even introduced her to him when the friend came to town to meet him for lunch one day. Mr. Fifer recalled telling?that he thought it was funny that this friend called him "nigga? and ?nigger? since he is a Caucasian. He maintained that this was the only time and in the only context he had said those words. FINDING 6: The allegation is substantiated. While Mr. Fifer denied using these words in the context of calling his friend on the phone these names, he acknowledged repeating those words in the context of telling ?that his friend from Washington called him ?nigga' or nigger? and twat HUnght it was funny given he is Caucasian. 7. Retaliation. It is the law and DAS Statewide Policy 50.010.01, Discrimination and Harassment Free Workplace, that retaliation is prohibited by anyone against an employee who has filed a complaint, participated in an investigation, or reported observing discrimination, workplace harassment or sexual harassment. ?alleges that since the filing of his original complaint against Mr. Fifer, he has been subjected to retaliation by his manager Mr. McKane. He also expressed verbally during my meeting with him that he believes the change in his duties and two separate incidents with his schedule are in retaliation for his participation in the?complaint. _alleges this retaliation is shown through the following: a. A poor and inaccurate performance evaluation b. Schedule, Week of November 9 13, 2015 0. Schedule, Week of November 23 27, 2015 d. Change in distribution of trouble reports 7 Pa1gc ?v?=lvnn== .- a. On February 10, 2016 the Motor Carrier appointing authority, Gregg Dal Ponte, retracted the performance evaluation issued on December 31, 2015. Mr. Dal Ponte provided this explanation to_, after further reflection your most recent performance evaluation that you signed and dated 12/31/2015 which i thereafter signed on 01/12/2016 is rescinded effective immediately and will not be included in either your permanent personnel file or the supervison/ file. This action should not be viewed as an indication that management agrees with your written rebuttal statement dated 01/08/2016; rather, this action is being taken in the interests of maintaining a good relationship with you as a valued employee. Please note that the absence of a performance appraisal for this period will not be held against you in any way. b. On November 13, 2015_sent Mr. McKane an email that read, ?Hi Dave, i forgot to ask you yesterday ifl could work two hours today to make up the time for Veteran?s Day. Is that alright with you?? Mr. McKane replied by email. 'i'hatis not alright with me. We really need to discuss these types of schedule changes ahead of time. Sorry. Are you at work now? If so, please log the time for today and quit for the day. maintains that in the past, he has been allowed to flex his time. Mr. McKane explained that he has permitted to flex his time when he has asked in advance. Mr. McKane directed to stop working and go home on November 13, 2015 because he had it asked to flex his time in advance. It is clear from_ email that he knew he should have asked Mr. McKane to approve his request for flex time in advance of working it. c. Normally,-is assigned a 4110?s work schedule, Monday throu it Friday, 7AM On October 21, 2015 Mr. McKane sent an email eh informing that his regular work schedule would be changed to a 5i8's, Monday through Friday, 8AM 4:30Pm (or 5PM if they preferred a one hour lunch. This change was only for the Thanksgiving holiday week, November 23?27, 2015. - -claims that this was the first year that Mr. McKane made that change. Mr. McKane acknowledged that, however also pointed out that this was the first year the day after Thanksgiving as also a holiday. Mr. McKane made this change to ensure proper coverage during a week that would only allow_ 24 regular hours. Making the change ensured adequate coverage for the business to meet its operational demands. I found this to be a logical and reasonable basis for the change. d. ?claims that prior to going on his job rotation, he received and responded to the trouble reports log. - specifically cited a December 2,2015 trouble log that he was not included on as evidence of retaliation. Mr. McKane acknowledged that_ is no longer receiving the log and provided the explanation that during job rotation, Mr. McKane and other members of the mane: ement team had made a change in the distribution and processing of the log. *was no longer getting the log because of those changes. Mr. McKane acknowledged that this change may not have been formally communicated to_ upon his return from his job rotation. The change in process occurred 8 Page well before the December 2. 2015 log and before-filed a complaint against Mr. Fii?er on December 3, 2015. FINDING 7: The allegation of retaliation is not substantiated. it is clear from my investigation that communication of key work processes, performance coaching and feedback, expectations and decisions are not communicated well. This combined with the deteriorating relationships create opportunity for assumptions of ill-intent on both parts and undermine and deteriorate trust between employee and supervisor. CONCLUSION: in the course of the investigation, i did find other issues warranting attention in the work unit. Please see the attached concerns and recommendations. Attachment: Concerns/Recommendations 9 Pagc .- .. . - ATTACHMENT: CONCERNSIRECOMMENDATIONS MOTOR CARRIER Crew) Date: February 17, 2016 To: Daniel Killam Deputy HR Chief -W From: Tasha Petersen, SeniOr HR Bus artner (Investigator) la