HOLLY, Mich. (WXYZ) - The former police chief from the village of Holly speaks out about leaving her job and her claims that she was sexually harassed by a village councilman and discriminated against by the village manager.
Elena Danishevskaya says she was marginalized and degraded by village councilman Thomas Clark.
Danishevskaya says Councilman Clark sent her an offensive video featuring a half-naked woman firing a gun and other crude material.
The former chief also accuses Clark of inappropriate touching.
The details of the claims and the resulting village investigation were just made public this week. Danishevskaya made the accusations in a formal report back in March.
Also contained in the newly released report conducted by the village, the village attorney's findings. Attorney Richard Figura dismissed all 21 of Danishevskaya's complaints, essentially saying in each case that a misunderstanding or accident had occurred.
Danishevskaya says otherwise.
"The councilman sent me an email of two strippers on a stripper pole and a topless woman shooting a gun. There was also the inappropriate hug where I felt like I was being molested," Danishevskaya said.
The former chief was suspended a couple of weeks ago after the internal investigation into her complaints were completed. Attached to the village attorney's findings was an undated letter from 12 police officers – the letter was titled "vote of no confidence."
Danishevskaya ultimately resigned.
"She goes from the one asking for her complaints to be investigated, to being thrown off the job. It is a clear case of retaliation," said high-profile employment attorney Deborah Gordon who is representing Danishevskaya.
The former chief does not accuse Village Manager Jerry Walker of sexual misconduct, but she says he did not treat her fairly and she says it was clear to her he wanted to run the department.
We reached out to both Walker and Clark, both refused to comment on this story. You can read the village attorney's responses to Danishevskaya's claims in the report below.
Danishevskaya and Gordon are preparing to take the matter to court.
**Pictures of Jerry Walker and Thomas Clark, courtesy www.thehollyexpress.com
Village Lawyer's response to Danishevskaya's claims:
ANALYSIS BY RICHARD J. FIGURA, VILLAGE ATTORNEY OF
GREGORY GIBBS' REPORT ON THE SEXUAL HARASSMENT
COMPLAINT FILED BY ELENA DANISHEVSKAYA
In making this analysis of Mr. Gibbs' report, I have attempted to follow the law regarding what constitutes hostile work environment sexual harassment. That case law is set forth in my August 21 letter to which this analysis is attached. Since Mr. Gibbs addressed 21 separate allegations in the Complaint, I have tried to follow that same pattern.
The allegations are broken down into two groups; those against Mr. Clark, and those against Mr. Walker and/or Ms. Behrens. As noted in my letter to which this memo is attached, many of the claims raised by the Chief are in the nature of sexual discrimination or other alleged discriminatory claims. Those claims are not dealt with in these materials as the complaint filed by the Chief was clearly and solely designated as a sexual harassment complaint. The comments in these materials are limited to the sexual harassment claims.
A. Allegations Regarding Council Member Thomas Clark
1. Allegation #1 (Clark) – Gibbs, p.3
The Chief alleges that on numerous occasions since she was hired in April, 2011, Mr. Clark made comments about her being attractive and sexy., and that he asked if he could send her emails the content of which was not suitable for work. She said she did not want to receive such emails.
The Chief also says that on one occasion he took her with him to a meeting with Rita Evans, an agent for the Par Plan, the Village's insurer; and that, before leaving, he asked for and gave Rita a hug which the Chief described as a "moving tight hug."
Clark says he has told the Chief she is attractive, but never said she was "sexy." He says he means that she looks good in uniform and that he compliments other officers for similar reasons.
He denies any sexual intent. He is a happily married man, having been married to the same woman for 48 years.
As to the claims that he gave a hug to Rita Evans, an employee of the Par Plan (the Village's Insurance carrier), he denies any sexual intent. Further, Rita Evans, in written answers to questions from Mr. Gibbs, does not support the Chief's claim.
It does not appear that the Chief notified the Village of this complaint in a timely fashion as the Village's sexual harassment policy provides, in Section 17-3(b) that a victim of sexual harassment "shall immediately report all incidents to any supervisor."
Further, Clark's hug of Rita Evans was not described by her the same as what the Chief described. Further still, if anyone could complain of that action, it would be Rita Evans who has not
filed any complaint.
Taking all of this into account, I do not find that this action on Clark's part created a severe or pervasive hostile work environment and, therefore, the conduct does not amount to sexual harassment.
2. Allegation #2 (Clark) – Gibbs, p. 5
Here the Chief alleges that at the end of a meeting in Mt. Pleasant, Michigan, Clark came up to her and "hugged me extremely tightly rubbing his chest over my breasts. This was not a hug but more of a rubbing. The hug made me feel very uncomfortable."
Clark admits hugging the Chief at the end of the Mt. Pleasant meeting, but says he hugged all the women who were in attendance as it was his last meeting with the group after several years of service. he has said several times that he is a "huggy person." He denied the hugs were in any way sexual.
Clark also states that at dinner that night in Mt. Pleasant, they were all drinking alcoholic beverages and the Chief came in, sat next to him, and had put her hands on him causing his wife to say, "What gives?" The Chief admits sitting next to Clark and says she may have touched his shoulder to get his attention.
I do not believe this conduct arises to a level so as to create a severe and pervasive hostile work environment.
I just finished watching several days of the Olympics. I have never seen so many people giving hugs as I did there. It seemed that each contestant after every performance was hugged by or gave a hug to someone. I also find that as I grow older and I am with people that I have known for many years, or people with whom I have shared many experiences it is quite common to see hugs. While I am not condoning hugging someone who makes it clear they do not appreciate it, I could never demonize anyone for hugging people with whom they have interacted often. Many people consider such a hug a sincere expression of true friendship.
3. Allegation #3 (Clark) – Gibbs, p. 8
The Chief says she told Mr. Walker about what she considered an inappropriate hug in Mt. Pleasant and that Mr. Walker offered to talk to Clark, but she said no, she would talk to him herself.
Mr. Walker denies that the Chief talked to him about an improper hug. He states that, had she done so, he would have discussed it with Clark.
The SH Policy requires, at Section 17-3(b), that a person who believes he or she is the victim of unwelcome behavior constituting sexual harassment "shall immediately report all incidents to any supervisor." If the Chief complained to Walker as she said she did, her complaint was timely, but then she says she told Walker he did not have to talk to Clark and that she would do so.
Walker, on the other hand says the Chief never reported the incident to her and, if she had, he would have talked to Clark.
Either the complaint about the Mt. Pleasant hug was resolved by the Chief saying she would talk to Clark herself, or there never was a timely complaint made to Walker. In either event, raising the matter in March, 2012 is too late under the SH Policy, and the fact the Chief waited so long would seem to indicate her work environment was not as hostile as she would like us to believe today.
4. Allegation #4 (Clark) – Gibbs, p. 9
The Chief says that, prior to a village council meeting on November 25, 2011, Clark told her she "looked scrumptious" and that he was giving her the "up and down look."
Clark admits the "scrumptious" comment, and admits that was a poor choice of words on his part. He denies giving her the "up and down look.."
There is no evidence that, if the Chief considered this November, 2011 statement by Clark to be a form of harassment that it was ever reported to anyone at the Village prior to it being raised in her March, 2012, Complaint.
I do not believe such a comment on Mr. Clark's part creates a severe or pervasive hostile work environment.
5. Allegations #5 and #6 (Clark) – Gibbs, pp. 10 and 12
The Chief states that, even though she told Clark in May, 2011, that she did not want any inappropriate emails from him, she received one in November, 2011. The email showed a topless woman shooting a gun.
Clark admits sending the email, but says it was a mistake. He intended to send it to Jerry Walker whose personal email address begins with the words "Chief 1800." When he realized what he did, he attempted to contact the Chief and warn her not to open the email.
The Chief admits receiving the call from Clark, but says she had already opened it.
I believe Mr. Clark sent the email to the Chief by accident. In fact I have nearly done so myself as Mr. Walker's email with the "Chief1800" phrase is very close to the email address of one of my cousins who has received an email or two I intended for Mr. Walker. Because Mr. Clark's action was unintentional and occurred several months after the Chief said she did not want any inappropriate emails, and because Mr. Clark
immediately tried to contact the Chief, telling her not to open it, I do not see where this incident creates the kind of severe and pervasive atmosphere as is necessary to establish a hostile work environment based on sexual harassment.
6. Allegation #7 (Clark) – Gibbs, p. 12
The Chief takes issue with the fact that Clark's apology to her for the email referenced in Allegations 5 and 6, above, was written by Walker. She said she was surprised that Walker never approached her about this incident.
This appears to be more of a complaint about Walker's conduct than about Clark's. It is my opinion that, as a matter of law, Walker was under no duty to contact the Chief or do anything regarding the incident since she had not made a complaint to him about it. Until the Complaint filed in March, she never did so. Nevertheless, being made aware of the incident by Clark himself, Manager Walker told him that sending the email was inappropriate and that he should apologize to the Chief. Clark did so, and the fact that the apology is claimed to have been written by Walker is, in my opinion, irrelevant. In fact, Manager Walker acted appropriately to address an issue even though no complaint was brought to him.
7. Allegation #8 – Gibbs, p. 16
The Chief alleges that in January, 2012, she received an email from Clark entitled "Happy Garage Door Covers" and that when she linked to the site, she found a collection of 23 garage door covers, 21 of which had no sexual content, but that one showed two semi-nude dancers and was entitled "strip club: and another showed a female in a low cut outfit and was entitled "glamour girl." There were other emails in February which "infuriated" the Chief, one of them being of a teddy bear who, the Chief alleged, was playing with his private parts.
Clark denies having any improper intent in sending the emails. He further denies the teddy bear email has any sexual message or overtone to it.
It would appear to me, solely from the hard copies of the garage door and teddy bear emails, that neither one appears to be the type which could be characterized as being so sexual in tone that it could be the basis of a sexual harassment complaint. The 2 images complained of in the garage door series (Exhibit 9 to the Gibbs report) are, in my opinion not that different from what one might see while channel surfing on a television set. In my opinion, the "glamour girl" one does not appear to be offensive to a person with normal sensitivities. It is not very different from the appearance of contestants in a beauty contest or, heaven forbid, the cheerleader outfits for some professional sports teams. The "strip club" one could be distasteful to many people, but taken as a whole, I do not believe this email creates a severe or pervasive hostile environment.
As to the teddy bear email (Exhibit 10 to the Gibbs report), I have only seen the hard copy in the Exhibit to the Gibbs report, but I find it hard to believe that it depicts what the Chief believes. In fact, I note the email was sent around from some women to other women and was described by them as "cute and cuddly" and the message attached to it appears to be an inspirational one, not sexual in nature at all. I fail to see how this email can, under any circumstances, be perceived as having a sexual tone. In my opinion, there is no way this can be considered a communication which would lead to a hostile work environment based on sexual harassment.
8. Allegation #9 (Clark) – Gibbs, p. 18
The Chief alleges that she has been informed by a number of female employees in the Police Department that when Clark was still employed (8 + years ago) he made sexual remarks to them.
Clark admits to two charges made against him in his career, but both were determined to be unfounded, one as the result of a grievance hearing.
These old charges (especially since they were determined to be unfounded) cannot be the basis of a present day sexual harassment charge by the Chief.
9. Allegation #19 (Clark) – Gibbs – p. 19
The Chief states that at a public function Jeff Miller said (in front of approximately 15 people), "Police Chief will frisk you when you come out" and that Clark responded "I hope so." Further, when the TV people wanted to take a picture, and the Chief was moving out of the way, Clark said, "snuggle up to me."
Clark admits to the "I hope so" comment in response to the "Chief will frisk you" remark, but did not mean it in any sexual way. He also admits to the "snuggle up to me" comment to get the Chief into the photo being taken because she represents the police department.
Clark's comments may be considered crude by many people. He himself admits he should not have said, "I hope so." Nevertheless, it takes far more than an occasional crude comment to constitute sexual harassment.
ALLEGATIONS REGARDING VILLLAGE MANAGER JERRY WALKER AND/OR CLERK-TREASURER
1. Allegation #10 (Walker) – Gibbs, p. 20
The Chief says that once she and Walker were working on opening up a Facebook account, when Walker said, "suck me." She says he also did so on one later occasion.
Walker describes that as a phrase he says to himself when he is mad or frustrated, and that was the context in which he used the phrase on the two occasions.
Many of us have phrases we use when we are mad, frustrated, etc. I have a few of my own which, frankly, don't sound very nice. I believe Mr. Walker's statement was just as he said and not directed at the Chief and is not a communication that could be a basis for sexual harassment.
2. Allegation #11 (Walker) – Gibbs, p. 21
The Chief says that when a waitress asked if she wanted a bun with her lunch and she said, "no," Walker told the waitress that they were trying to help her fit into her uniform. She found this to be a comment about her sex and weight and that it was discriminatory.
Walker says he made no comment about the Chief's weight but did comment on his own weight. Brian Klassen, who was also present, does not remember Walker making the comment attributed to him by the Chief..
In my opinion, even if the comment was made, it is not the kind of conduct or communication which would create an intimidating, hostile, or offensive work employment, which is what is required for a determination that sexual harassment has occurred.
3. Allegation #12 (Walker) – Gibbs, p. 22
When discussing the fact that Mr. Clark supported her appointment as Police Chief, the Chief says Mr. Walker said that it was not for her qualifications.
Walker said he meant that she was selected because she made a "sociable connection" with the hiring board. It was these qualities, including her potential, that he was referring to.
Others who were at the lunch denied that there were comments attributing statements to Clark or Clark's reasons for voting to hire the Chief.
Mr. Barnes, the school superintendent, has no connection other than a professional one with those concerned, and certainly the most likely to be objective, said he heard no comment which was disparaging or hostile to the Chief and that he would have said something if such a comment were made.
Even if true, it is hard to see how the statements attributed to Walker could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred.
4. Allegation #13 (Walker/Behrens) – Gibbs, p. 24
The Chief alleges that Behrens (the Clerk/Treasurer) once told her to "move your ass" in front of two other department heads and that Walker did nothing about it.
Behrens says she, the Chief and Brian Klassen (DPW director) were standing outside and had to go inside for a meeting. The Chief was in front of Behrens, who states she said "come on let's move your ass" in a joking way. This is confirmed by Mr. Klassen.
Walker did investigate the incident and talked to Klassen who told him the statement was made in jest. He then suggested that the Chief and Behrens find a way to work better together.
Even if not said in a joking manner, I fail to see how Behrens' statement could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred.
5. Allegation #14(Walker) – Gibbs, p. 26
The Chief said she made a complaint against Behrens and Walker said he had just read a complaint made by Andrea against Behrens and said that he felt like "suck me."
Once again, Walker states this is something he says to himself when he gets frustrated – like when employees aren't getting along and make complaints to him to resolve.
I believe this confirms what Walker said earlier about using the phrase "suck me" when he is frustrated. I fail to see how this could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred.
6. Allegation #15 (Behrens) – Gibbs, p. 27
The Chief said Behrens called her a "stupid Russian" and made negative and rude gestures at her in front of others and that she is guilty of many blatant violations of the personnel manual.
Behrens denies these allegations made by the Chief.
Even if true, these are not statements of a sexual nature or overtone which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred.
7. Allegation #16 (Behrens) – Gibbs, p. 28
The Chief says she received a text message from Behrens which
stated "U look HOT in that patrol truck… xocxo"
Behrens said the email was sent to the Chief by mistake, that it was intended to be sent to a Walled Lake police officer who was a good friend of hers and who was going through a rough time. It went to the Chief by mistake because the Chief's number was programmed under the name of Behrens' friend which was confirmed by a photo of the listing provided to Mr. Gibbs.
It seems clear that any complained of comment was not directed to the Chief, though she mistakenly received it. Since it was not intended for the Chief, I fail to see how this could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred.
8. Allegation #17 (Walker) – Gibbs, p. 29
The Chief alleges that she was in a meeting in Walker's office when the phone rang and that, on the third ring, he said "suck me." She also alleges that Walker told her to make it miserable for a particular employee so that the employee might then leave Village employment voulntarily. Finally, she alleges that Walker and another male were discussing an employee in another city and how "hot" she was.
The allegations were denied by Walker and also by Gary King who was present.
The "suck me" statement (though denied by Walker and another third party), even if it were made, only underscores what Walker has said before, that it is a comment directed at himself when he gets frustrated. It may sound crude, but it does not constitute sexual harassment.
The comment about trying to get an employee to quit, even if true (though Walker denies it) is not conduct of a sexual nature directed toward the Chief.
Finally the comment that another person is "hot" is not, in my opinion offensive. In today's modern society, that is a statement that is commonly used by many people to describe someone else who is attractive or appealing. I fail to see how this could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, which is what is required for a determination that sexual harassment has occurred. Further, it was not a comment about, ordirected to, the Chief.
9. Allegation #18 (Walker/Behrens) – Gibbs, p. 30
The Chief alleges that she was given an evaluation after 6 months, contrary to her contract because she made a complaint against Walker and Behrens. The dispute with Behrens was a result of the Chief not following a direct order from Walker. Further, the
The allegations were denied by Walker and Behrens.
The Chief's allegation relates to the timing of her reviews. No part of the allegation relates to sexual conduct. I fail to see how this could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, so as to constitute sexual harassment.
Further, I have reviewed the Chief's contract and it does not limit the number of reviews that can be scheduled. It merely requires that the Manager "shall review and evaluate the performance of the Chief once each year." The purpose of that provision is to make sure that a review takes place at least once each year. The employer cannot be prohibited from reviewing an employee's performance whenever the employer deems it necessary, and the contract does not so limit the reviews.
10. Allegation #20 (Walker/Behrens) – Gibbs, p. 33
The Chief alleges she is treated differently than other department heads by Walker and Behrens.
The allegations are denied by both Walker and Behrens
No part of the allegations relate to any alleged sexual conduct. I fail to see how this could constitute the kind of conduct or communication which would create an intimidating, hostile, or offensive employment situation, so as to constitute sexual harassment.
11. Allegation #21 (Walker) – Gibbs, p. 34
For brevity purposes, the Chief's allegation is not repeated here, but can be found on page 34 of Gibbs' report.
This is simply a restatement or summary of the Chief's claims and it raises no new allegation of sexual harassment. The subject matter has been addressed in all of the discussion above.