Feds: Mich. prison agency needs to step up against sex harassment
The EEOC has proposed the DOC create a new "victim advocate" position and step up its sexual harassment training
By Paul Egan
Detroit Free Press
DETROIT — The U.S. Equal Employment Opportunity Commission has proposed the Michigan Department of Corrections create a new "victim advocate" position and step up its sexual harassment training after determining the state agency violated the civil rights of one of its female employees.
The EEOC also has proposed a review of the department's 14-year-old discriminatory harassment policy, with an eye to possible changes, records show.
The proposals are recommended as part of a conciliation agreement the department could negotiate and sign to head off a potentially costly EEOC lawsuit.
In its April 2 determination letter, the EEOC said it wants to resolve the issue in 30 to 60 days and asked for counterproposals from the Corrections Department.
"If we fail to resolve this matter through conciliation," either the EEOC or the victim "may proceed by initiating a lawsuit in federal court," the letter said.
Jennifer Farley, administrative assistant to the warden at Newberry Correctional Facility in the Upper Peninsula, complained to the EEOC she was sexually harassed for years by the prison's former deputy warden, Cecil Daley, and the department knew about Daley's conduct but failed to act.
Farley alleges the department retaliated against her for complaining about the harassment by launching a bogus investigation initiated by Daley.
"I'm a 19-year employee with no discipline, no nothing," Farley told the Free Press. "I've done nothing except report this guy" and "I know my sexual harasser is the one who made the complaint."
As the Free Press previously reported, current and former employees say retaliation against those who complain about sexual harassment fits a long-standing pattern.
The EEOC said there is reason to believe Farley's rights under Title VII of the Civil Rights Act were violated by the department.
"The evidence suggests (Farley) reported the sexual harassment on numerous occasions, yet (the department) made no good-faith effort to correct the condition," says the determination letter, which also proposes a financial settlement for Farley.
The federal agency says it successfully conciliated 1,031 cases in 2014, the most recent year for which figures are available. Conciliation failed in another 1,714 cases, and the agency filed 133 lawsuits that year accusing employers of unlawful employment discrimination.
Farley, acting independently of the EEOC, also sued the department and Daley in Ingham County Circuit Court on March 6.
The department declined to comment on Farley's case, citing the pending litigation.
But department spokeswoman Holly Kramer said the department revamped its sexual harassment training in 2016 and "we’ve continued to make improvements every year."
She said the classroom-based training was previously offered to new employees and reviewed with existing employees about every other year, but all employees are now required to complete the training annually.
The department also has spent several months working on pending updates to its sexual harassment policy to make changes to the way investigations and discipline are carried out, Kramer said.
The department's policy defines discriminatory harassment, including sexual harassment, as "unwelcome advances, requests for favors," and other communications, including innuendo, threats, jokes, pictures and gestures, when submission to that conduct is explicitly or implicitly a condition to obtain employment, is a factor in decisions affecting employment, or creates an intimidating or hostile work environment.
The policy says "all employees are prohibited from engaging in discriminatory harassment," and when a supervisor learns of such conduct, they "shall refer the person allegedly harassed to the appropriate harassment counselor and report the alleged harassment ... to ensure the allegations are investigated."
Farley started as a secretary at Alger Correctional Facility in the central U.P. in 1999 and was promoted to executive secretary at Newberry in 2003.
She said she started getting text messages from Daley that sometimes made her feel uncomfortable, but the problem reached a new level on a Sunday in October 2011, when Daley texted her a photo of his penis.
Daley worked in a different building, but was someone Farley frequently saw at work and also was the immediate supervisor of her husband, who, at the time, was a grievance coordinator at the prison.
"I was upset, shaking," Farley said. "I just didn't know how to handle it," so "I called in sick to work on Monday so I could have some time to think."
"I had no intention of telling my husband — ever," Farley said. "I didn't want that awkwardness to be there, I didn't want (Daley) to retaliate against him or make his life complicated."
But when she returned to work Tuesday, Farley says she told then-Warden Mitch Perry, who quickly arranged a meeting in his conference room with her and Daley.
"Daley started crying hysterically," Farley said. "He said he ... would never do it again."
Daley could not be reached for comment and, unlike the Corrections Department, he has yet to file a response to Farley's lawsuit.
But in December, Daley told the Free Press he got into a dispute with Farley and she set out to ruin his life.
Farley said Perry wanted to report Daley to Perry's supervisor right away, but she asked him not to and Perry agreed, despite departmental rules requiring him to notify Lansing through the facility's sexual harassment counselor.
The department, in its answer to Farley's lawsuit, confirmed the 2011 meeting between Perry and Daley and said it believes "Daley's complained of conduct ceased" after the meeting with Perry.
"I was more than comfortable," Farley said. "He got stupid. OK, as long as he doesn't do it again. He then left me alone for six to eight months."
She said she was afraid she would be shunned if she filed a formal complaint against Daley. "I knew it was going to be me versus the department," partly because "he outranked me," she said.
In January 2012, Newberry closed its administration building and Perry and Farley moved into the same building where Daley worked, meaning she would now see Daley every day.
"I then started to slowly get texts again," not involving photos, but messages such as "I love you" and describing sex acts Daley wanted to perform, Farley said.
It tended to be every other weekend, she said.
Farley, who still had not told her husband, told Daley if he didn't stop, she would tell Perry. Daley would then get angry and exclude her from work meetings she would normally attend and work-related e-mails she would normally receive, she said.
In 2013, Perry received an anonymous letter about Daley, not written by Farley, according to the lawsuit.
The Free Press obtained a copy of the letter, addressed to former Corrections Department Director Dan Heyns and stamped "received" by the department on March 7, 2013.
The letter, from someone who identified themselves as an employee of nearby Chippewa Correctional Facility near Kincheloe, said Daley had been harassing and stalking at least three different women, which the letter identified by name, for several years. The letter said the harassment was "common knowledge" at Chippewa prison and had led to contact with the Kinross and Sault Tribe police departments, where the writer said the police chiefs could verify what happened.
"You talk about cleaning up the department," the writer said. "I want to see what — if anything — you will do about this. A guy like Daley should be sitting in jail, not a senior administrator of one."
Perry asked Farley whether she was again being harassed by Daley. "At first I denied it," but Perry persisted and she began crying and told him the truth. She said she still didn't want to report it, but Perry said he had to tell his supervisors.
Farley said Perry told former Deputy Director Michael Curley, and also told him about the obscene photo Daley had texted in 2011.
Daley was then summoned to internal affairs in Lansing, said Farley, who finally told her husband about the harassment.
"Recently, documents have been sent to this office regarding Deputy Warden Cecil Daley's behavior," Internal Affairs Manager Kenneth MacEachern said in a March 12, 2013 e-mail to Perry, which he copied to Curley and to Thomas Finco, another deputy director.
"The behavior is concerning enough that this office needs to be involved" and meet quickly with Daley to "make a determination if an investigation is warranted."
Farley said she later learned Daley received what department officials described as an "ass chewing," but no investigation was opened and not even a counseling letter was placed in his file, the lawsuit alleges. Daley was again told that if he ever contacted Farley again, he would lose his job.
Farley said the texts started again in December 2013. Once again, Farley didn't report it.
"He had a way of manipulating me to feel sorry for him," she said. "His life was so bad and his wife spent too much money." Also, "I was scared for me," she said. "I was scared (the department) wouldn't handle it."
Daley left Newberry in March 2015, when he transferred as deputy warden to nearby Kinross Correctional Facility, but the texts continued. "I got another naked photo of him, maybe June of 2015," Farley said.
Jill Carnes, a close friend of Farley's, told the Free Press she was with Farley when she received many of Daley's text messages over about the last three years.
"He would reference her breast size and how he was in love with her," Carnes said.
"We kind of laughed at them in the beginning," thinking Daley must be drunk, but when Daley sent a photo of his penis, "it was very traumatic" for Farley, she said.
By October 2016, Farley said she couldn't take it anymore. She told Perry she was driving to Lansing, where on Oct. 20 she met with Deputy Director Kenneth McKee and Kathy Warner, who is in charge of discipline in the office of executive affairs administration.
"I was crying and shaking," Farley said. Warner "went into disbelief mode when I said it was reported to internal affairs in 2013. She said there was no record. At that point, they went into CYA (cover your ass) mode."
Even then, Farley said the department "didn't do anything," except take away Daley's state-issued phone. He didn't receive a "stop order" banning him from prison property, which the department imposes on some employees when they are under investigation, but instead went on medical leave. Farley said she didn't hear from an internal affairs investigator until Nov. 29.
Meanwhile, the text messages resumed, almost immediately after Farley's trip to Lansing.
Daley, who was convicted of driving under the influence in 2016, texted Farley again on Dec. 3, saying: "It's my birthday. I'm lonely. I love you," Farley said. She took a screen shot and sent it to Warner, McKee, and Stephen Marschke, the head of internal affairs.
"I put, 'When is this going to stop? When are you going to put this man on stop order?' "
Warner replied that Daley, who retired in March 2017, was on medical leave and the department was looking into certain allegations.
Internal affairs referred the case to Michigan State Police, which charged Daley in Luce County with stalking and misuse of a communications device. The trial was set for Nov. 2, 2017, but Farley decided not to go ahead with it when she learned two of her coworkers planned to testify on Daley's behalf.
Luce County Prosecutor Josh Freed said the charges against Daley related to stalking Farley were dismissed, but the dismissal was pursuant to a "diversion agreement" with the prosecutor's office.
"This means that the charges could be pursued at a later date under certain circumstances," Freed said Friday.
Freed would not say what those circumstances are.
Two weeks after his scheduled trial was canceled, Daley threatened his ex-wife and later pleaded guilty in Chippewa County to misdemeanor stalking of his ex-wife, records show. He was sentenced to probation.
Farley, who went on stress-related medical leave in July 2017 and still has not returned to work, found out through the Free Press in December 2017 that she was under investigation for alleged misuse of travel expense reimbursements — allegations she said were completely false. She quickly determined the investigation, which she received formal notice of on Dec. 23, was opened in response to an allegation by Daley.
Last December, the department "immediately commenced an investigation into the defamatory allegations made by defendant Daley, knowing or not caring that the allegations were false, and despite the fact that the allegations were an obvious retaliation by an accused harasser," the lawsuit alleges.
In its response to the lawsuit, the department confirmed that Daley filed the complaint against Farley, but denied that the investigation that resulted was retaliatory or intended to humiliate or intimidate her.
Rather, "the investigation was conducted according to MDOC protocol," the department said in its court filing.
On Nov. 2, 2017, Farley was notified by internal affairs that her discriminatory harassment complaint against Daley had been upheld.
On Jan. 30, internal affairs notified her its travel expense investigation of her had been closed, and there was insufficient evidence to support the allegations.
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