Montana orders FWP to pay employee in retaliation ruling

Agency wouldn’t comment on appeal
2013-06-23T00:10:00Z 2013-06-25T16:20:07Z Montana orders FWP to pay employee in retaliation rulingBy BRETT FRENCH french@billingsgazette.com The Billings Gazette

Update: The Human Rights Bureau said Fish, Wildlife and Parks 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.

Montana Fish, Wildlife and Parks was ordered by a Human Rights Bureau hearing officer earlier this month to pay a Kalispell employee $20,000 for emotional distress after it retaliated against the man for an inadvertent phone call.

The agency had until Thursday to appeal the ruling, but declined to say whether it had.

The problem started in June 2011, when John Wachsmuth, the supervisor of the Fish, Wildlife and Parks’ Aquatic Invasive Species program in Kalispell, accidentally called female co-worker Christine Caye’s cellphone from his private cellphone while he was on vacation. This is the form of inadvertent calling commonly known as “butt dialing.” The call went to Caye’s voicemail, where Wachsmuth’s conversation was recorded.

Most of the call was unintelligible. But at the end, “Wachsmuth made what sounded like a comment to the effect of ‘We’re having a f—in’ hard time with these women,’ a comment that was obviously about his interactions with Caye,” according to the Human Rights Bureau investigation.

Caye filed an internal complaint against Wachsmuth, who subsequently apologized in person and in writing.

“There is no question that at the time the call was first heard by Caye and subsequently by (Region 1 supervisor Jim) Satterfield, they knew or should have known immediately that Wachsmuth was not directing the conversation at Caye and that it was intended to be a private conversation between Wachsmuth and (co-worker Tony) Cooper. Wachsmuth did not intend to have Caye hear his conversation with Cooper, and he most certainly did not intend to communicate disrespect directly to Caye,” Gregory Hanchett, hearing officer for the Montana Department of Labor and Industry, wrote in his ruling.

Wachsmuth’s superiors assigned him to a new job. After Wachsmuth filed a grievance over the transfer, he was suspended for three days. FWP officials said the suspension was because Wachsmuth initially lied about who he was with when the call was made. Hanchett disagreed.

“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,” Hanchett wrote.

In December 2011, Wachsmuth had also filed a human rights complaint against his employer, claiming sex and age discrimination and retaliation. He was 57 at the time. After being suspended, he amended his complaint to claim that his suspension was a violation of the Montana Human Rights Act.

In addition to the award for emotional distress, Hanchett awarded Wachsmuth three days pay for time he was suspended and ordered management personnel at the agency’s headquarters in Helena and its satellite office in Kalispell and in the Aquatic Invasive Species program to attend four hours of training on “preventing retaliation in employment.”

FWP was also ordered to “develop and implement AIS job duties for Wachsmuth in his current position to the maximum extent possible and consistent with the level of responsibility he would have enjoyed had he not been removed from the AIS Region 1 coordinator position.”

In addition, the agency must remove any reference to the August 2012 suspension, including a letter of discipline, from his personnel file.

Hanchett did not find in Wachsmuth’s favor in his claims of sex or age discrimination.

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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