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Contents
SYNOPSIS ................................................................................................................................ 4
INVESTIGATIVE INTERVIEWS CONDUCTED .............................................................................. 4
RESOURCES REVIEWED IN THE INVESTIGATION ...................................................................... 6
SUMMARY ............................................................................................................................ 16
APPLICABLE POLICIES ............................................................................................................ 17
RESPONDENT’S STATEMENT ................................................................................................. 60
FINDINGS OF FACT ................................................................................................................ 71
ALLEGATION I: WHETHER JOHNSON TREATED ................ 72 ALLEGATION II: WHETHER JOHNSON HARASSED AND RETALIATED AGAINST EMPLOYEES OVER THE USE OF
PROTECTED FMLA LEAVE OR SICK LEAVE ........................................................................................ 78 ALLEGATION III: WHETHER JOHNSON MADE INAPPROPRIATE STATEMENTS TO EMPLOYEES ........................ 82
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ALLEGATION IV: WHETHER JOHNSON FAILED TO MANAGE INTERPERSONAL CONFLICTS AND MISCONDUCT
WITHIN THE CAO ...................................................................................................................... 84 ALLEGATION V: WHETHER JOHNSON OPENLY CRITICIZED EMPLOYEE PERFORMANCE WITHIN THE CAO ........ 86 ALLEGATION VI: WHETHER JOHNSON SPOKE TO EMPLOYEES OF THE CAO DURING THE PENDENCY OF THE
INVESTIGATION ...................................................................................................................... 86
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Synopsis The investigators, Greg Wiley and Benjamin Reber, (hereinafter “the investigators”) of the Wiley Law Office, PC were engaged by the City of Duluth (“the City”) on February 18, 2020 to investigate multiple complaints against respondent City Attorney Gunnar Johnson (“Johnson”). Complainants were employees in the Duluth City Attorney’s Office (“CAO”), which Johnson has led in the capacity of City Attorney since 2008.
In regard to Johnson, the complainants alleged incidents of lax management style leading to a toxic work environment, harassment of employees for the use of protected leave, retaliatory behavior, inappropriate statements made to employees, discriminatory conduct, and targeting certain employees in an effort to make those employees resign.
During the pendency of the investigation, Johnson was placed on paid administrative leave, beginning on February 13, 2020. He was provided with instructions for his conduct during the investigation in a letter from Mayor Emily Larson. (282)1 The portion of the February 13, 2020 investigative notice to Johnson regarding contact with department employees reads as follows:
Until further notice, I am directing you to not communicate with any City staff and to remain off City premises. For your protection, you will not have access to City e‐mail, systems or files during your administrative leave. I also expect that you will be respectful of the investigation process. (282)
The investigators were engaged to conduct a fact‐finding investigation and make findings as to whether complained‐of behaviors occurred. The investigators were not tasked with providing recommended determinations of City policy violations. Those policies were taken into consideration, however, by investigators for purposes of framing investigatory interviews. Investigative Interviews Conducted All employee witnesses were compelled to provide a statement to investigators. Any non‐employee witnesses provided their statements voluntarily. At the start of all interviews, interviewees were asked if they would prefer to have a member of the City Human Resources department sit in for their interview. They were also provided an advisory on the non‐retaliation provisions of the policies that were applicable to the investigation and advised to document any possible acts of retaliation due to their participation in the investigation. Witnesses were provided with the City Interview Advisory for non‐subjects of investigation. Subjects were provided with the City Interview Advisory for subjects of investigation and were provided the opportunity to be accompanied by a representative.
1 Throughout this report, exhibits will be referred to by their Bates numbers, located in the lower‐right hand corner of all documents. For example, the City Employee Conduct Policy is listed as (1‐2). A list of the exhibits referred to is included below.
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Applicable Policies The City’s Employee Conduct Policy is a general conduct policy governing a variety of prohibited conduct as an employee of the City. The policy also creates responsibilities for supervisors or managers to “investigate [a] situation and take appropriate disciplinary action, ranging from coaching to immediate discharge, depending upon the specific form of conduct and/or the number of infractions.” (1) The following items are listed as prohibited actions in regard to work performance:
A. Insubordination, including disobedience, or failure or refusal to carry out assignments or instructions.
B. Loafing, loitering, sleeping, or engaging in unauthorized personal business. C. Unauthorized disclosure of confidential information or records. D. Falsifying records or fiving false information to other state agencies or to
employees responsible for recordkeeping. . . . F. Failure to provide accurate and complete information whenever such information
is required by an authorized person. . . . H. Negligence in performance of assigned duties. (1)
Employees are also forbidden from engaging in the following personal actions:
A. Threatening, attempting, or doing bodily harm to another person. B. Threatening, bullying, intimidating, interfering with, or using abusive language
towards others. D. Making false or malicious statements concerning other employees, supervisors or
the City. . . . H. Inappropriate dress or lack of personal hygiene which adversely affects proper
performance of duties or constitutes a health or safety hazard. . . . J. Failure to exercise good judgment, or being discourteous, in dealing with fellow
employees or the general public. (2) The policy requires supervisors to “conduct an initial review of any complaints received and make a determination whether or not the complaint requires routing to Human Resources…for investigation.” (2) It is the responsibility of department heads to “ensure that employee conduct is corrected and “that the complainant is not subject to retaliatory behavior during or after the investigation.” (2) The City Workplace Violence and Harassment Policy applies to all employees of the City and prohibits the following behaviors:
Acts of bullying or intimidation
Threatening/hostile acts, both verbal and physical
Stalking
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Physical attacks…
Sexual harassment or assault, including unwelcome sexual advances, sexual remarks or jokes, or the display of sexually suggestive material in the workplace
Property damage, including vandalism and arson
Sabotage
Possession/use of a weapon at the workplace
Verbal/written statements, violent comments, gestures or expressions that communicate a direct or indirect threat of an individual’s physical safety
Discrimination (3) The list of prohibited behaviors is not exhaustive, and “any behavior that has the purpose or effect of creating an unsafe, intimidating, hostile, or offensive work environment is unacceptable and will be subject to disciplinary action”. (3) Supervisors are responsible for maintaining a harassment‐free work environment and must take immediate action to correct a harassing situation. Supervisors are also expected to conduct review of any complaints received and make a determination as to whether further investigation is needed. (5) The City’s Equal Opportunity/Non‐discrimination/Affirmative Action Policy requires that all “[d]ecisions regarding employment, conditions of employment, and access to programs and services will be made without regard” to an individual’s protected‐class status. Exceptions to this requirement are made “only in matters involving bona fide occupational qualifications, business necessity, actions designed to eliminate workforce underutilization,” and when the policy conflicts with federal or state law. (6) The City’s FMLA policy mirrors the Federal FMLA, in that eligible employees are allowed to use up to 12 weeks of leave in a calendar year with proper medical documentation for the following purposes:
An employee’s own serious health condition
The serious health condition of an employee’s immediate family member
Caring for a newborn or newly‐placed adopted child or foster child
Qualifying exigency arising out of an employee’s immediate family member who is a covered service member or covered active duty. (8)
The policy allows for intermittent leave, but states that employees “may not take intermittent leave following the birth or placement of a child unless approved by the employee’s department head.” (8) Supervisors have the responsibility to recognize “the need for potentially FMLA‐qualifying leave based on actions or statements of employees,” and must notify HR of “any potential FMLA event.” (10) FMLA events include the following:
An employee requires FMLA‐qualifying leave; or
There is knowledge that an employee will be out for an absence of three or more days for a planned qualifying event; or
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• After an employee has been absent for three or more consecutive workdays; or
• If an employee attempts to return to work after an FMLA leave. Supervisors are to track employee time during FMLA absences, maintain confidentiality in regard to the reasons for employee leave, and apply the policy consistently. (10) The collective bargaining agreement for attorney employees provides for sick leave for all attorney-employees. (59) “Effective the first day of the month following the date of hire, an Employee shall be granted up to 60 working days of sick leave with full pay during a calendar year.” (59) Finally, the City Sick Leave Policy places the following responsibilities on supervisors in regard to employee sick leave usage:
• Notify HR following three consecutive employee absences;
• Ensure appropriate use of sick leave, including recognizing abuse and other sick leave problems;
• Maintain confidentiality of “reasons for employees’ use of Sick Leave to the extent possible under applicable law.” (12-13)
It is under the above policies that the complaints against Johnson were investigated.
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Findings of Fact Below are the substantiated facts as a result of the evidence gathered during the course of the investigation based on individual allegations against Johnson.
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Findings
Therefore, the allegation that was assigned additional work to perform while on leave for
is not substantiated by the evidence.
In regard to the allegation that was retaliated against by Johnson by assigning additional
work
.
The allegation was not substantiated by the evidence.
Finally, all supervisors within the CAO understood that but
did not communicate with HR staff regarding the potential FMLA event, despite the knowledge
that was going to be out of the office for more than three days. No supervisors even knew
if was eligible for or if leave was considered an FMLA leave.
Allegation III: Whether Johnson Made Inappropriate Statements to Employees It was alleged prior to and during the course of the investigation, that Johnson made the following statements:
To “The jury is still out on you, I can’t tell yet if you’re a troublemaker.”
In performance review: “I can’t fire people, but I can make their lives miserable.”
In performance review: “Sometimes I’m judgmental and sometimes I’m going to be an asshole so the feedback might be unfair.”
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Multiple times to individuals within the department: “I will work you like sled dogs until someone can’t make it any further and then we will move on.”
In regard to temporary attorneys, “Use ‘em, abuse ‘em, and kick ‘em to the curb.”
Multiple times to individuals within the department: “We keep our shit in‐house.” Johnson admitted he told “The jury was still out on you,” during performance
review. Johnson stated, “ was selected as an attorney for their office because is really smart
and capable as a writer and has won at trial.
Johnson stated he does recall telling “I can’t fire people, but I can make their lives
miserable.” His ability under the City system to fire people is limited, but he can ask them to
work and set expectations for them, and that’s what he can do in these reviews. To some people,
that makes them miserable. “That is what we are looking for and that is what I do.”
Regarding the alleged “unfair” statement, Johnson stated he could have said that in his review
with but does not recall, specifically. He was trying to be blunt in his review with
get his issues out in the open, and get people on the same page. That statement may
have come up in regard to the July trial continuance because there was a misinterpretation
between what Johnson was saying and what was hearing. He may have been too blunt
in saying “threw under the bus,” but he was trying to make a point about his
expectations that people take responsibility for their actions. “It is not the end of the world if [
is] critical about things. He “may have been wrong saying ‘asshole,’ but that kind of got the point
across,” Johnson said.
Johnson was asked about the statement “Use ‘em, abuse ‘em, kick ‘em to the curb.” He does not
think that was his response to requests about keeping temporary attorneys beyond their
contracted employment period; “but they can’t hire everyone.” They can use these contract
attorneys for a year and those attorneys have plenty of opportunity after the year with the office.
The summer attorneys have to expect they are not working for their office for a career.
Regarding the allegation that he compared attorneys to sled dogs, Johnson stated he did a presentation before on leadership and mushing, and with mushing, you can push a team, but if you do not know how to push them and care for them, and if you get that set up right, your team will do extraordinary things for you. “If you are just an ass, the team will shut down. That somewhat translates to management.” Johnson stated he probably told “We keep our shit in‐house.” He said, “When you
complain to the Mayor, that creates political repercussions. There are avenues employees have
if there are issues. [ can go to supervisor, to [Johnson], to the Union, and to HR. “But
when you go directly to the Mayor, that can cause problems, including this investigation.”
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Johnson stated could have gone through other avenues with HR or the union instead of
going to the Mayor. It is not typical that employees go directly to the Mayor. Johnson suspects
went to the union too. He was not attempting to curtail accessing union
representation. He talked about it at last review – but he did not write it in his
performance review. It was in his notes that going to the Mayor had repercussions on
Johnson.
Johnson stated he also had a discussion about who tried to get more money from
the Mayor
had looked at letter to the Mayor and gave advice
on how it could be more effective. Johnson stated he was disappointed in involvement
in letter requesting pay, and shared his disappointment with
during his performance evaluation.
Findings Based on the evidence collected through the course of the investigation, the allegations that Johnson made the inappropriate statements listed above are substantiated. While the statements might not have been exact quotes from Johnson, he made statements very similar, and acknowledged making them. Johnson’s statements to about going to the Mayor over Johnson’s directive to track
are especially troubling, as complaint to the Mayor was regarding possible , which garners protection under federal and state discrimination laws, as well as the City’s policy against discrimination. (6‐7) Furthermore, as a fellow union member with at the time of the letter to the Mayor,
review and support of letter could be interpreted as protected concerted activity. Allegation IV: Whether Johnson Failed to Manage Interpersonal Conflicts and Misconduct Within the CAO It was established that there were several conflicts within the CAO over the recent past. Those conflicts included the following:
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Johnson stated he was advised not to discuss the investigation with anyone in the letter from the
Mayor. He has run in to people from the office, socially, since he has been on leave. The
investigation comes up when he runs into people. He has touched base with when he
came into the office, and also saw him , but did not recall when it was.
.
. When they met, the investigation came
up, but they talked about him not being there.
Findings Johnson was directed not to communicate with any City staff and to remain off City premises. Johnson’s statement that he was under the assumption his interview was scheduled for March 3, 2020, instead of Wednesday, March 4, 2020, was not credible. Johnson could have easily had his attorney check with in order to clarify the date of the meeting, and confirmed that Johnson was aware his interview was to take place on March 4 when they met
after Johnson was placed on leave. The evidence leads to a finding that Johnson ignored the instructions of the Mayor and came to the CAO without permission. Furthermore, Johnson acknowledged multiple communications with CAO staff during the pendency of the investigation after he was directed not to communicate with City staff. He admitted to speaking to City staff in social situations and attending a sporting event along with
where the matter of the investigation into Johnson’s conduct was discussed. Johnson was aware of the directive from the Mayor and ignored it. The evidence examined substantiates the fact that Johnson disregarded the directives of Mayor Larson and both entered City premises and interacted with City staff during his period of administrative leave. End of Report
Ben Reber, Investigator Submitted on April 1, 2020
