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Board reinstates Iowa worker who texted lewd photo to vendor

August 2, 2019

IOWA CITY, Iowa (AP) — A board has ordered the reinstatement of an Iowa employee who was fired in 2017 after sending sexual text messages, including an unwanted photo of a penis, to a saleswoman for a state vendor.

The decision puts taxpayers on the hook for nearly two years of back pay and benefits for Nicholas Carnes, a 37-year-old power plant engineer at the Glenwood Resource Center, an institution for the disabled in southwestern Iowa. The cost hasn’t been calculated but could top $100,000, given that Carnes earned $60,000 in his final full year of state employment.

In its July 19 decision , the Public Employment Relations Board agreed with an administrative law judge that Carnes’ misconduct didn’t warrant termination but a 10-day suspension instead. The board found that Carnes had been an otherwise excellent employee for 13 years and that his inappropriate texts began one minute after his shift ended, not during his work day, as investigators had alleged.

The case dates to Sept. 18, 2017, when a female sales representative for Grainger, an industrial supply company, visited the power plant for a business meeting with Carnes’ supervisor. Carnes met her as she was leaving and got her business card. He soon emailed her from a personal account and they had a phone call related to a piece of welding equipment that Carnes was building.

Immediately after clocking out, Carnes began texting her, saying, “It was nice meeting you today, I like what I saw” and that, “Older ladies are my thing.” The woman responded to the messages playfully at first but brushed off his sexual advances, noting that Carnes was wearing a wedding ring. Ultimately, he sent a picture of a penis to her work phone and she told him that was inappropriate. He stopped and apologized by email later that night.

The saleswoman reported the conversation to her boss at Grainger, which removed her from the state account temporarily. A company human resources official called the Glenwood Resource Center to report the situation, and Carnes was put on paid leave on Sept. 27, 2017, pending an investigation. Carnes told investigators that he took full responsibility and was ashamed of his actions.

The Department of Human Services, which operates the institution, fired Carnes on Nov. 16, 2017. It determined that the messages violated policies that ban unprofessional behavior and using a state job to engage in “sexually-related activities, including suggestive remarks” with visitors.

Carnes appealed with the help of union lawyer Mark Hedberg, arguing that the state didn’t have just cause to fire him. Hedberg argued that the woman had initially welcomed the attention from Carnes and that the texts were sent from his personal phone. In addition, he said Carnes was a great worker who had no prior disciplinary problems and would not repeat the misconduct.

Administrative law Judge Amber DeSmet ruled in February that the state’s decision to fire Carnes for “a one-time offense that took place over the course of one afternoon” was too harsh because lesser discipline could correct his behavior. She said that a 10-day unpaid suspension still represented a “severe consequence” and was in line with discipline ordered for other employees who have engaged in similar conduct.

DeSmet noted that Carnes had a history of professional workplace interactions and had apologized. The fact that Carnes could have believed the messages were consensual was another mitigating factor, she added.

State lawyers appealed to the Public Employment Relations Board, arguing that his misconduct warranted termination. But board members Jamie Van Fossen and Mary Gannon, appointees of former Republican Gov. Terry Branstad, dismissed the state’s arguments and adopted DeSmet’s ruling.

The decision directed the parties to begin working out the details of the reinstatement and back pay award for Carnes. The state hasn’t indicated whether it will appeal the board’s ruling in court.

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