Baer. Solomon Decision

(
/) STATE OF'NEW YORK

COUNTY OF TOMPKINS:
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Pursuant to Section 75 of the New York Civil Service Law
Tompkins County
and
Karen Baero Director of the Tompkins County OIfice of Human Rights
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Background, Hearing Recordn Discussion, Recommendation and Table of Exhibits
Murry X'. Solomon

Hearing Officer
Background
By personaVconfidential letter dated October 13,2017 Michael E. Lane, Chair of the

Tompkins County Legislature filed disciplinary charges pursuant to Section 75 and76 of the
New York Civil Service Law. The Chair charged Ms. Karen Baer, the Director of Human
Rights for Tompkins County (sometimes hereinafter referred to as the o'County") alleging
that Ms. Baer (sometimes hereinafter referred to as the "accused" or "Respondenf') refused
to fulfill the duties of her job, refused to participate in an investigation and creating a
dysfunctional environment in the Office of Human Rights. The foregoing charges that were
admitted into evidence as Hearing Officer Exhibit 1 provide:
Charge 1: YOU HAVE FAILED AND REFUSED TO FULFILL THE
FULL RANGE OF YOUR RESPONSIBILITIES AS
DIRECTOR OF'HUMAN RIGHTS FOR THE
ADMINISTRATION AND ENFORCEMENT OF EQUAL
OPPORTUNITY LAWS, REGULATIONS, AND POLICIES
Specification l: a. You are employed as the Director of Human Rights with

duties and responsibilities as provided in Article 26 of the
Tompkins County Charter and as set forth more fully in your
job description.
b As Director of Human Rights, you arc responsible for the
administration and enforcement of anti-discrimination laws,
affirmative action, equal opportunity, and compliance
programs, policies, and regulations, and for carrying out the
policies of the Tompkins County Legislature.
c. You made allegations between July 2016 and October 2016
that Tompkins County Officials engaged in retaliation and
discrimination against women and people of color.
d. The Tompkins County Legislature retained an independent
investigator for the specific purpose of investigating the
severe allegations set forth in these claims.
e. You failed and refused to cooperate in the investigation
conducted at the direction of the Tompkins County
Legislature.
Specification 2: a. You are employed as the Director of Human Rights with

job description.
b. As Director of Human Rights, you are responsible for the
affrrmative action, equal opportunity, and compliance
I
programs, policies, and regulations, and for carrying out the
c You were appointed by the Legislature to its Workforce
Diversity and Inclusion Committee in furtherance of the
Committee's purposes to advise the Legislature and other
County officials on issues relating to diversity and inclusion in
employment to encourage equal opportunity and discourage
discrimination, and to assist the Legislature in fulfillment of
its diversity and inclusion goals.
d. You resigned from the Workforce Diversity and Inclusion
Committee on June 2017.
Specification 3: a. You are employed as the Director of Human Rights with

job description.
b. As Director of Human Rights, you are responsible for the
affirmative action, equal opportunity, and compliance
progftrms, policies, and regulations, and for carrying out the
c. You were assigned by the County Administrator to a
Compliance Committee having direct responsibilrty for
achieving the County's compliance with equal opportunity
laws, regulations, and policies.
d You (sic) fail and refuse to attend meetings of the Compliance
Committee.
Charge2' YOU WERE INSUBORDINATE IN REFUSING TO ABIDE BY

A JANUARY 23,2017 DIRECTIVE ISSUED BY THE
TOMPKINS COUNTY LEGISLATURE TO COOPERATE IN
AII NTVESTIGATION OF YOUR CLAIMS OF
DISCRIMINATION AND RETALIATION
Specification l: a. You are employed as the Director of Human Rights with

Tompkins County Charger and as set forth more fully in
yourjob description.
b As Director of Human Rights, you are responsible for
carrying out the policies of the Tompkins County
Legislature.
c You made allegations between July 2016 and October 2016
d. The Tompkins County Legislature retained an independent
investigator for the specific purpose of investigating the
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severe allegations set forth in these claims.
e. You refused to cooperate with efforts by the independent

investigator from February 1,2017 through June 9, 2017 to
elicit information or otherwise obtain your cooperation in the
investigation.
f. You failed and refused to cooperate in the investigation
conducted at the direction of the Tompkins County
Legislature.
Charge 3 YOU HAVE CREATED A DYSFT]NCTIONAL

EIWIRONMENT IN CONNECTION WITH THE
RELATIONSHIP BETWEEN TOMPKINS COUNTY AND ITS
OFFICE OF HUMAN RIGHTS
Specification 1: a. You made allegations between July 2016 and October 2016
b. You have made these severe allegations without presenting
any evidence and have refused to even meet with an
independent investigator retained for the specific purpose of
investigating these allegations and reporting findings and
conclusions to the Tompkins County Legislature.
c. The independent investigator issued findings and conclusions
in a Report of Investigation dated July I 1,2017 that your
conduct in making such allegations while refusing to
participate in the investigation has created a dysfunctional
environment and delegitimized the Offrce of Human Rights.
d. The independent investigator further concluded that in light
of your actions the Office of Human Rights can no longer
carry out its functions and that you can no longer carry out
your duties.
e The Tompkins County Legislature adopted the findings and
conclusions of the independent investigator that your
allegations of retaliation and discrimination were not
established, as its August 15,2017 meeting.
f. Your actions in creating a dysfunctional environment in
connection with the relationship between Tompkins County
and its Office of Human Rights have put you in a position in
which you can no longer carry out the full range of your duties
and responsibilities as Director of Human Rights, as you were
advised by letter dated August 21,2017 from the Tompkins
County Legislature.
Based upon these charges, you are immediately placed on unpaid suspension for
30 days as the County pursues its option to dismiss you from the service of the County.
.J
On October25,2017 Counsel for Ms. Baer filed an Answer to Charges. The Answer
sets forward Ms. Baer's considerable educational background and employment
accomplishments. "To the apparent consternation of some County officials who remain
antagonistic to the purpose and mission of the Office of Human Rights Ms. Baer has
transformed and revitalized OHR since she became Director in 2013." Page 2 of the
Answer lists some of her accomplishments. They are:
a
Ms. Baer discovered that the County had allowed its memorandum of understanding
with the New York State Division of Human Rights to lapse, but had continued to
exercise jurisdictional powers over local discrimination complaints that it no longer
possessed in a way that misled the public and deprived County residents of their due
process rights. Ms. Baer reviewed OHR's entire caseload, reported her finding to
County Officials, recommended that all impacted parties be contacted and informed
of their rights, developed new protocols for complaint-processing, and retained OHR
staff.
Ms. Baer uncovered evidence that the County had paid private contractors for an
OHR website that did not exist. (When she reported the situation to County
Administration, she was told to ignore the issue as there was "[n]o need to continue
down Memory Lane.")
a Ms. Baer wrote and proposed a comprehensive local civil rights law that would
broaden protections and enforcement powers not currently existing in the County's
Anti-Discrimination Law.
a Earlier this year, Ms. Baer and her team drafted a local Fair Chance (Ban-the-Box)
law and a Source of Income law that would provide protections for tenants who are
discriminated against because they use Housing Choice Vouchers (Section 8).
a Ms. Baer developed a Pre-Complaint Conciliation Program.
a Ms. Baer broadened OHR's education and ouheach offerings, continuing

longstanding programs such as the Annual Human Rights Arts Competition for K-12
students, but also adding new programs, including: *What Would MLK Say
Today?" Poster Contest for adults; ooHuman Rights Day 4Kidz" program; and "Who
Wants to be a Fair Housing Champion?" Game Show, an interactive training module
for tenants, landlords, realtors, and service providers. In addition, oHR provided
specialized workshops for County departments relating to the County's Language
Assistance Plan (LEP/LAP), Service Animal Policy Guidelines for Mental Health
Workers, and LGBTQ+ training programs.
a Ms. Baer created a SafeSpace Policy Toolkit for Law Enforcement and Corrections
Agencies, designed to assist in drafting sound and inclusive policies that protect
LGBTQ individuals in custody and in the workplace.
4
Upcoming events planned by Ms. Baer and her staff include the Freedom from
Domestic Violence Workgroup Film Screening Event, the Cornell University
Humphrey Fellows Panel Discussion, and trainings for the Ithaca City Police
Department and the Tompkins County Department of Health.
In sum, Ms. Baer's contributions to the Office of Human Rights and to protecting the
Human Rights of Tompkins County residents cannot be overstated.
The Answer sets forward the history of a campaign of retaliation, hostile work
environment, and discrimination against employees of color. It claims that the Legislature
hired a lawyer o'rather than trying to respond to [the foregoing] in good faith". In sum, Ms.
Baer denies the charges along with the specifications against her. She raises many
affirmative defenses including but not limited to the fact that she is personally the subject of
discrimination, a hostile work environment and retaliation. Hearing Officer Exhibit 4.
On October 20, 2017 the undersigned was appointed as Hearing Officer by Joe
Mareane, County Administrator. Hearing Officer Exhibit 2. Hearing dates were scheduled
for and occurred on Thursday and Friday, December 7 and 8,2017 and Friday, January 5,
2018. The hearing, that was open to the public at the request of Ms. Baer, was held at the
Rice Conference Room of the County Health Department Building, Comell Tech Park, 55
Brown Road,Ithac4 N.Y.
At the hearing, Ms. Baer was represented by Ms. Zoe Salzman, Esq. and Mr.
Andrew G. Celli, Jr., Esq. of the Emery Celli Brinckerhoff & Abadey Law Firm located in
New York City. Tompkins County was represented by Mr. John T. McCann, Esq. of the
Hancock Estabrook Law Firm located in Syracuse, New York. Both sides were given full
and complete opportunity to call and cross-examine relevant witnesses under oath and enter
documentary evidence. While the attorneys for both parties were generally polite/civil to
each other, they presented robust advocacy on behalfoftheir respective clients. A certified
true copy of the transcript was taken by Delores Hauber of Verbatim Reporting and Video.
Both sides agreed to file written post-hearing submissions to the Hearing Officer with copies
to each other on Thursday, March l, 2018. This decision is exclusively drawn from and
based upon fair/impartial consideration of the relevant and credible evidence produced at
hearing.
5
Hearing Record
At the conclusion of opening statements, the County called its first witness.
Beginning at page 35 Mr. Timothy Taylor explained that he presently is an arbitrator,
mediator and adjunct professor. Without going into all the specifics, clearly Mr. Taylor is a
well educated professional who by training and experience is more than prepared to conduct
the assigned duties of an impartial investigator. T. 35 - 48.
Sometime in late December (2016) or early January Q0l7) Mr. Taylor was
contacted/retained by the County to investigate certain claims as raised by Ms. Baer. Upon
reviewing his calendar, Mr. Taylor phoned the Office of Human Rights and left a message
requesting her to return the call. Ms. Baer refurned the call and expressed some reservation
about the investigating process and was looking to avoid an adversarial challenge and
instead wanted a process of reconciliation. Mr. Taylor said he would look into the foregoing
and get back to o'I

her. attempted to call her ofhce on numerous occasions to let her know
what I found out." Although Mr. Taylor left messages requesting a return phone call, he
testified at page 52 that "[he]" never heard back from her". T. 48 - 52. More specifically, at
page 55 Mr. Taylor said he was attempting to inform Ms. Baer about the process.
Notwithstanding, Mr. Taylor commenced his investigation by reviewing the relative

emails pertaining to Ms. Baer's allegations. To that extent, he reviewed the correspondence
and went on to interview those who wrote them. By looking at the emails he determined
there were 11 different categories underlying the allegations. Thirteen in-person interviews
were conducted in sectue locations in Ithaca. T. 55 - 60. After several phone calls that
went unreturned, Mr. Taylor sent Ms. Baer a letter on June 5, 2017 that he would like to
meet with her on June 13, 2017 or another convenient date. *I urge you to take advantage of
this opportunity to meet with me and contribute to my investigation." Charging Party
Exhibit 2.
In a June 9,2017 letter Ms. Baer explained why she was not responding to Mr.
Taylor's calls. In conclusion she wrote, "These reasons, of course, are why I have not
responded to your calls and will continue to do so in the future. I will eventually tell my
story but on my own terms and in my own time". charging Party Exhibit 3. T. 60 - 65.
Beginning at page 66 Mr. Taylor explained that he reviewed all the documents,
policy manuals and guidebooks that he received during his interviews. He went back over
6
his notes, checked the websites of various departments and looked at department handbooks,
guides, policies, charters and the job duties of the Director of the Office of Human Rights.
He read/considered committee and subcommittee meetings. When he was satisfied that he
had enough information, he wrote a report pertaining to his findings. Such report is
contained in Hearing Officer Exhibit 3. Counsel for Ms. Baer does not dispute the fact that
Mr. Taylor filed a report. Counsel does, however, take obvious issue with Mr. Taylor's
findings. Likewise, Counsel for the County admits Ms. Baer has filed an Answer to the
charges against her. Counsel does, however, take obvious issue with the truthfulness of Ms.
Baer's Answer as contained in Hearing Offrcer Exhibit 4. T . 66 * 7 | .
Mr. Taylor commented that while he did have Mr. Hook's report as set forward in
Respondent's Exhibit P, he did not go over it in great detail since he was not tasked with
going back to it. At page 74 Mr. Taylor testified that he recalled Ms. Baer wrote a letter on
or about November 20, 2015 critical of the so-called ooHook's
Report". He went on to
comment that after Ms. Baer sent the letter, she felt she became the subject of "acts of
retaliation and exclusion". T. 72 -74.
In any event, Mr. Taylor was critical of Respondent's conduct because she did not
identiS anyone that might support her discrimination claim. She did not provide
information showing how individuals in similar situations were inexplicably treated
differently. Specifically at page 75 he said:
I guess I was, I was shocked and dismayed that someone whose primary
function as an employee was to know how to file complaints and how to
navigate civil rights claims of discrimination would not in her own
complaints set forth a prima face case, who would set forth the sufficient
details to actually make a claim of discrimination and I found that to be
off putting at the beginning. And I found great difhculties with that
failure.
Based upon the foregoing along with Ms. Baer's failure to participate in the
investigation, Mr. Taylor felt Ms. Baer's conduct was ooinsubordinate" and. "outrageous".
"Her behavior", he added, "has also caused unnecessary delay and obfuscations." Ms. Baer
7
did not follow Legislator's Michael Lane's directive to cooperate in the investigation.t T.74
-77.
Mr. Taylor feels Ms. Baer 's refusal to participate was "outrageous" because she was
claiming that the County was engaging in o'systemic racism and gender discrimination". She
should have, therefore, as the Director of Human Rights acted as a conduit between the
citizens and their government. Her failure to participate in the investigation created a o'toxic
environment". To make severe claims against the County and not to back it up "to validate
her claims was outrageous". In conclusion, Mr. Taylor testified that even if there was
adverse action, it was justified by legitimate non-retaliatory reasons. "The fact that the
Director of OHR has made very serious allegations of racism and sexism, but refuse[d] to
participate in the investigation of those allegations [has] created a dysfunctional
environment. Her behavior has completely delegitimized the work of the OHR." T.77 -
81.
Cross-examination commenced at page 82. Mr. Taylor admitted that he did have an
initial phone conversation with the accused. She informed him that she did not trust the
investigating process and would not meet with him until she was aware of how the inquiry
would proceed. At page 91 Mr. Taylor testified that he told Respondent he would contact
her after he found out oothe
exact procedural process", but did not tell her she was
insubordinate by asking for the process prior to a meeting with him. Thereafter, Mr. Taylor
asked County officials about the process and repeatedly attempted to call. He did not,
however, send Ms. Baer a letter or email pertaining to what he found out. The next time he
wrote to Ms. Baer was on June 5,2017. On June 9,2017 Ms. Baer filed a written response
to Mr. Taylor. Charge Party Exhibit 3. IVft. Taylor did not answer Ms. Baer's response and
did not attempt to contact her again even though she requested but did not receive the
written information about process. Moreover, the County's workplace discrimination and
sexual policy prohibits any retaliation against an employee who files a discrimination
complaint. Respondent's Exhibit B. Still, Ms. Baer was seeking conciliation.
I
It appears Mr. Taylor is referring to Mr. Lane's January 23,2017letter directing Ms. Baer
to please provide her full cooperation and to please contact him (Lane) if she has any
questions. Charging Party Exhibit 12.
8
Beginning at page 113 Counsel pressed Mr. Taylor about his report as it pertains to
Ms. Baer's ten allegations of being excluded from certain County opportunities and
initiatives. Another allegation goes to the existence of a hostile work environment. In sum,
the testimony shows that, in fact, Ms. Baer was not invited to be on certain committees and
her office was not moved to a new/more desirable location. T. 113-150.
Continuing cross-examination, Counsel asked Mr. Taylor about his finding that Ms.
Baer was insubordinate. Mr. Taylor responded and stated that Ms. Baer was insubordinate
when she willfully failed to follow a directive to participate in the investigation. When
pressed further, he could not say that Ms. Baer out rightly refused to take part in the
investigation and he did not tell her she was insubordinate. He added, however, that he
never had the opportunity because she did not return his phone calls. Mr. Taylor believed,
but was uncertain of the fact, that being on the Work Force Diversity and Inclusion or
Compliance Committees was part of Ms. Baer's employment duties. At best, such
obligation could be read into a general provision in the job description for the Tompkins
County Director of Human Rights. Respondent's Exhibit C. T. 150 - 160.
Finally, Mr. Taylor made it clear that since Ms. Baer failed to retum his phone calls,
it was she and not him who closed out any opportunity for communication. Yet, on June 5,
2017 Mr. Taylor gave Ms. Baer one final opportunity to provide anything she may want him
to consider as part of the investigation. In response, Ms. Baer explained why she did not
return the calls. As Mr. Taylor it, Ms. Baer should have "known how to take
sees
complaints, how to investigate complaints and how to develop policies if they related to
those complaints". A failure, constitutes a ooneglect of duty". In conclusion, however, Mr.
Taylor did not specifically inform Ms. Baer about the process. At the same time, she did not
return his phone calls. T. 161 - 165.
Responding to questions posed on re-direct examination, Mr. Taylor testified he did
not believe Ms. Baer asked to be informed in writing about the process when they had their
original/only phone conversation. In that conversation, Respondent wanted to know who he
(Mr. Taylor) was, what process would be used and if they could engage in conciliation. Ms.
Baer was distrustful, but wanted him to get back to her with that information. T. 165 - 168.
In a final, and somewhat heated exchange on re-cross examination, Counsel tried to
get Mr. Taylor to concede that he failed to give Ms. Baer written documentation on the
9
conduct of the investigation. Still, he felt the matter could have been resolved but Ms. Baer
never returned his repeated phone calls from between February to June 2017. T. 168 - 172.
Ms. Paula Younger, the County's second witness is the interim County
Administrator and Compliance Officer. She must therefore, make sure the County complies
with state, federal agencies and grantor regulations. County administrators, except those
who hold elected positions, report to the County Administrator. Ergo, the County
administrator(s) is/are responsible for the policies enacted by the County Legislature. Ms.
Younger testified that the County's program management is set forward in the County
Compliance Program which is contained in Charging Party Exhibit 4. T. 173 - I77.
Page 9 states that the Director of the Office of Human Rights along with certain
others are indentified members of the Compliance Committee. Thus, Ms. Baer was up and
until September 17, 2015 aparticipant in committee meetings. When, however, she did not
attend the scheduled meeting on that date, Ms. Younger inquired about her absence through
an email. Charging Party Exhibit 5. Charging Party 6 sets forward the September 17,2015
meeting agenda that was sent to the committee in advance of the actual meeting. The
agenda contained certain items of discussion such as Title VI, that Ms. Baer was
knowledgeable about and identified Ms. Baer as the note taker. Future sessions would also
continue to address a Title VI program. As it tumed out, Ms. Baer informed Ms. Younger
on August 25, and September 25,2015 about why she would not be attending the meetings.
Ms. Baer commented that the Office of Human Rights has lost staff. As a result, she (Ms.
Baer) will not be able to participate in future meetings until this issue stabilized. Charging
Party Exhibit 7, second page. T. 177 - 186.
As Ms. Younger views it, the Compliance Committee is an important County forum
and assumed as part the employee's duties. Ms. Younger testified that although she could
not provide exact dates, Ms. Baer hired additional staff since August 2015 and the office
personnel issues stabilized. Yet, Ms. Baer did not rejoin the Compliance Committee. T.
189 - 191.
After politely introducing himself, Mr. Celli began to cross-examine the witness at
page 191. Ms. Younger admitted that she is responsible for facilitating discussion in
Compliance Committee gatherings. While there may have been some question about the
exchange of emails about committee meetings between Ms. Younger and Ms. Baer, the
10
evidence does not suggest that Ms. Baer was trying to mislead Ms. Younger. Ms. Younger
did not direct, or know if anyone else directed Ms. Baer to retum to the meetings. As it now
stands, Dr. Kenneth Clark who is a friend of Ms. Younger and her family, is filling in to
oversee the Office of Human Rights. The disclosure of the friendship was released at the
time Dr. Clark was being considered for the interim job. Dr. Clark is a theologian and
clearly does not have the level of govemmental experience as Ms. Baer. Respondent's
Exhibit D. It appears Ms. Younger will, at some level, participate in the recruitment and
selection of the Director of Human Rights if Ms. Baer is discharged from employment. At
page 216 the witness explained that the County progressive discipline policy applies to all.
Yet, she did not specifically know howthe policy was implemented. T. 191 -216.
At page 224 Ms. Younger became a witness on behalf of the accused. Ms. Younger
could not recall if during the search for the Director of Human Rights, the candidates were
informed they had to be on the Workforce Diversity and Inclusion Committee. They were,
however, given copies of the Director's job description. The witness explained that the
foregoing committees were not referenced in the description. As Ms. Younger sees it,
members of departments serve on different committees relative to their work. T. 224 - 228.
Ms. Younger testified that there was not a large percentage of people of color in
senior County positions. Ms. Younger, who is a person of color, denied telling Ms. Baer
there was racism in the County government or saying anyone connected with the County
was a racist. She specifically denied telling the accused that Mr. Mereane was racially
insensitive or that Mr. Mereane excluded her (Younger) from meetings with legislators.
Most significantly, Ms. Younger denied ever referring to "Tompkins County as a racist hell
hole.". T.228 -238.
Mr. Celli questioned Ms. Younger about what she may know about Pat Pryor, a
former member of the Legislature and former Chair of the Human Rights Commission. Ms.
Pryor resigned from the Commission in Augustz}ls, apparently due to tension between her
and Commission members of color. Ms. Younger made it clear that she had no inside
knowledge about this matter, other than that which was public information . T.238 -244.
Ms. Younger explained that she knew that in November,2015 Ms. Baer said she was
a victim of discrimination and retaliation. That led to the so-called Hooks' investigation that
included an interview between Mr. Hooks and Ms. Younger. Ms. Younger stated that she
11
did not speak with legislators or Mr. Mereane when or after Mr. Hooks or Mr. Taylor
conducted their investigation. Although Ms. Younger was interviewed by Mr. Taylor, she
did not recall discussing what process would be employed in investigating Ms. Baer's
complaint about discrimination and retaliation. The witness did not actually read the entire
complaint nor was she aware of any request for conciliation. T. 244 -252.
Michael Lane, a long time standing member of the Tompkins County Legislature
was called as the County's third witness. Mr. Lane, as the Chair, testified that the
Legislature creates and appoints personnel to the various committees, as the County is not
governed by a county executive but the 14 elected members of the Legislature. As Chair,
Mr. Lane signed the disciplinary charges against Ms. Baer after a unanimous legislative vote
on October 3,2017. Charging Party Exhibit 8. Charging Party Exhibit 9 was admitted into
evidence over objection by Counsel for Ms. Baer. The Exhibit merely shows there is some
degree of racial and gender diversity on the County Legislature . T . 252 - 265 .
Under the County Charter (Charging Party Exhibit l0) the Director of Human
Rights, who ultimately reports to the Legislature should participate in the Workforce
Diversity and Inclusion Committee. See Charge 1, Specification 2. As the Chairman views
it, such Committee is directly related to Ms. Baer's job and she is obligated to participate in
Committee meetings under the County Charter, Chapter C Article 26.00 Office of Human
Rights: Director. Human Rights: appointment qualifications: powers and dates. It was the
Legislature, therefore, that confirmed Ms. Baer's appointment to the Commiffee. As the title
of the Committee suggests, its purpose is to promote a diverse County work force. Mr. Lane
also believes the obligation to participate is provided in the Director's job description at
Distinguishing Features of the Class and other places. Respondent Exhibit C. Not only is
the Director's obligation to participate located within the job descripion, it is contained
within the Tompkins' County Workplace, Discrimination and Sexual Harassment Policy.
Respondent Exhibit B. Thus, in sum, Ms. Baer did not fulfiII her work responsibilities
pursuant to the job description, County Policy and the investigation of her complaints. T.
26s -273.
The ban the box initiative would eliminate a check box asking the job applicant if
he/she was convicted of a criminal offense. Accordingly, an applicant might not be
disqualified from further employment consideration. Although this matter went through the
t2
County personnel departrnent, Ms. Baer said she wasn't part of the process that ended with
ban the box legislation. Respondent Exhibit A. In such Exhibit (last page) that went to all
the legislative members on or about July 6, 2016, Ms. Baer claimed "that there exists a
climate in the county workforce where exclusion and retribution is able to take hold". As a
result, this matter was in fact discussed by the Legislature. By way of letter dated July 22,
2016, Mr. Lane asked Ms. Baer to forward any evidence she might have about her serious
claims of discrimination or retaliation at or before she responds to Mr. Hooks Report of
Investigation. Charging Pafiy ll. According to the Chairman, Ms. Baer did not respond to
his July 22,2016 correspondence. T. 273 -278.
On October 10, 2016 Ms. Baer said that she reasonably did not have to provide
evidence of being excluded from a listed number of committees. No further evidence was
provided except her resume.2 Notwithstanding, the Legislature went on to find a person
(Mr. Timothy Taylor, Esq.) who lived outside the community and would be pretty objective
in researching/investigating Respondent's claims. On January 23,2017 Mr. Lane informed
Ms. Baer about the pending investigation and asked her to cooperate with Mr. Taylor. The
concluding sentence states "[i]f you have any questions in this regard, please feel free to
contact me". Charging Party Exhibit 12. T.279 -285.
On about July I l, 2017 Mr. Taylor issued his Report of Investigation. Mr. Lane
thought Mr. Taylor did a thorough investigation but was distressed to learn Ms. Baer did not
provide any cooperation. After all, she was the Director of Human Rights and the
Legislature was trying to get to the bottom of the allegations. Mr. Taylor concluded there
were legitimate, non-retaliatory reasons for any alleged adverse taken against Ms. Baer.
Additionally, he found no evidence showing the existence of a hostile work environment.
The entire Legislature agreed with the report and unanimously adopted it through resolution
on August 15,2017. Charging Pafiy Exhibit 13. On or about August 21,2017 Mr. Lane
informed Ms. Baer about the foregoing investigation and legislative resolution. Inasmuch as
there was a serious concern about her suitability for continued employment as the Director
of Human Rights, the Legislature sought to secure an amicable separation of her services
with the County. Charging Party Exhibit 14. T. 285 -290.
'Mr. Celli contests this conclusion
13
Counsel asked Mr. Lane about the Workforce Diversity and Inclusion Committee.
He testified that this important Committee, which is set forth in policy, advises the
Legislature and regularly reports to the Budget and Personnel Committees. In keeping with
its title, the Committee informs the Legislation on how to secure a divergent workforce
composed of people of all backgrounds. Charging Party Exhibit 15. Notwithstanding that
Ms. Baer, as well as all of her predessor were appointed to the Committee, Ms. Baer
informed Mr. Lane that she was resigning through correspondence dated May 18, 2017.
Although Mr. Lane asked her why she was resigning, he did not receive an understandable
response when she said she felt it was in the best interest of both the Offrce of Human
Rights and herself. Charging Party Exhibit 16. T. 291 -297.
The Chairman testified that the accused also ceased participating in the Compliance
Committee that works on compliance issues in the County. That Committee's responsibility
would, in addition to other matters, insure compliance with anti-discrimination and
retaliation statutes. Information from the Director of Human Rights is, therefore, critical. In
sum, Ms. Baer's failure to participate on two committees has created a dysfunctional
environment between the County and the offrce of Human Rights. T.299 - 301.
Mr. Lane conceded, under cross-examination, that he did not tell Ms. Baer that it was
improper to resign from the Workplace Diversity and Inclusion Committee. Nor did he
direct her to return to that Committee. In fact, Mr. Lane was not aware of anyone telling her
to return to the Committee prior to the filing of the Section 75 charges. While the Chairman
could not address the County's progressive discipline policy, he commented that he believed
such policy is effective before charges are proffered. The policy, which includes
counseling, applies to Ms. Baer as a competitive class employee. He was, however,
unaware of Ms. Baer receiving any counseling about resigning from the Committee. T. 304
-314.
Mr. Lane acknowledged he was friends with Pat Pryor and she was a former member
of the Legislature. She also served as a volunteer and became Chair of the Human Rights
Commission that provided advice to the Legislature. The witness testified that he learned
about a dispute between Ms. Pryor and Ms. Baer sometime after it occurred. Ms. Pryor told
him she was unhappy about resigning from the Commission and felt she was treated unfairly
by the other commissioners. As far as Mr. Lane was aware, Ms. Pryor also informed
l4
Legislative Vice Chair Jim Dennis. IVIr. Lane denied, however, that Ms. Pryor blamed Ms.
Baer for not continuing as a commissioner. T. 314 -321.
Mr. Lane also stated that Mr. Mareane was unhappy about Ms. Pryor leaving. Mr.
Mareane was not critical of Ms. Baer, but did ask her to apologize to Ms. Pryor. On or
about November 20, 2015 Ms. Baer sent a memorandum to Mr. Lane and members of the
Health and Human Services Committee complaining about delays in appointments,
retaliation and a hostile work environment. Respondent's Exhibit F. Ms. Baer alleged that
Legislator Stein told her that the legislators blamed her because they felt she was responsible
for Ms. Pryor leaving the Commission after it passed a no confidence vote against her
(Pryor). Mr. Lane, however, denied that there was o'enormous resentmenf'directed from the
Legislature or himself toward the accused at the time of the incident. Additionally, Ms.
Baer alleged she was in the midst of a hostile work environment that involved a series of
misguided directives based upon race, color and sex. Based upon this communication and
perhaps other communications from Ms. Baer, Mr. Lane appointed Mr. Hooks to conduct an
investigation. T.322 - 327.
Ms. Baer felt the Hooks' report which was issued on March 15,2016, was flawed
and consideredit fi.rther evidence of retaliatory treatment towards her and others of color.
Respondent's Exhibit G. Ms. Baer's request to meet with the entire Legislature was denied,
but she was invited to and did frle a written response on August 26,2016 to the Hooks'
report. In addition to other comments about the report, Ms. Baer sought to open a dialogue
about her concerns. That request went unanswered. Respondent's Exhibit H. T. 327 -337.
In addition to being highly critical of Mr. Hooks' report, Ms. Baer informed Mr.
Lane that he (Hooks) fell asleep and did not record certain matters while accepting the
words of a white male over the words of a black woman. This was not, however, the subject
of a further investigation. On September 12,2016 Mr. Lane and Mr. Klein sent Ms. Baer
a letter. While the letter does not address the issues that were raised by Ms. Baer, it does
offer her the opportunity to provide any further evidence she may have. Such information
would then be taken into consideration. Finally in January 2017 the Legislature adopted Mr.
Hooks'report. T. 339 -354.
On July 6,2016 Ms. Baer sent the Legislature a conespondence about the adoption
of the ban the box legislation and the results of the Workforce Study Committee where some
l5
employees expressed concems about discrimination. She too thought the Legislators were
discriminating against her, but no one followed up on the assertion. On July 22,2016 \/Ir.
Lane sent a letter to Ms. Baer. Respondent's Exhibit K. The letter, referring back to her
July 6, 2016 correspondence, asked Ms. Baer to provide any further information she might
have in regard to her claims. If no further information is forth coming, the Legislature will
make a determination on the merits of her claims based upon information known to the
Legislature. The letter contains no reference to any disciplinary action. T. 356 - 367.
On October 10, 2016 Ms. Baer informed Mr. Lane that her exclusion from 10
committees that were related to her job was prompted by discrimination and retaliation.
Respondent's Exhibit A, second page. This, then became the subject matter of Mr. Taylor's
investigation. Mr. Lane did not know if Mr. Taylor received a copy of Ms. Baer's resume.
T.367 -373.
Respondent's Exhibit L that arose from the Workplace Climate Initiatives says there
is unequal treatment in the workplace and the County has not taken the necessary steps to
protect employees from disparite treatment. Those, it alleges, who stand up for diversity and
their rights will be shut down and shunned by colleagues. On January 23,2017 Mr. Lane
notified Ms. Baer that based upon all the information the Legislature received, it adopted
Mr. Hooks report. Ergo there was no evidence to prove claims of discrimination, retaliation
or a hostile work environment as she alleged in her November 20,2015 memorandum. At
the same time, the Legislature was not, however, investigating the Office of Human Rights
but Mr. Hooks was given wide latitude. He was not specifically charged with investigating
Ms. Baer and Mr. Lane firmly denies there was any secret investigation to investigate the
accused. T.373 - 388.
At page 388 Counsel, continuing his cross-examination, asked Mr. Lane if he, or
anyone else of authority directed Ms. Baer to meet face to face with Mr. Taylor. While that
specific directive was not issued she was, nevertheless, directed to cooperate with him. Mr.
Lane commented that he did not become aware of the fact that Ms. Baer asked Mr. Taylor
for a description of the investigatory procedure until he (Lane) read the Taylor report. The
report provides that in the first (and only) phone conversation Ms. Baer said she would not
meet with Mr. Taylor until she was aware of the procedure. On June 9, 2017 Ms. Baer
articulated her reasons for not participating in the investigation. Hearing Officer Exhibit 3,
I6
last page. To the best of the Chairman's knowledge, no one from the County provided the
accused with the investigatory procedure. Still, Mr. Lane did not feel Mr. Taylor went too
far in concluding Ms. Baer was insubordinate or that her office was dysfunctional. T. 388 -
399.
Ms. Baer began testifuing under direct examination at page 401. She commented
about her modest upbringing and being a minority in Penn Yan. Notwithstanding,
Respondent went on to graduate from Syracuse University College of Law. Ms. Baer's
impressive resume is contained in Respondent's Exhibit N. Ms. Baer commented about her
considerable experience in promoting human and equal opportunity rights. She was the
Director of Human Rights in Geneva for about 15 years and has never been the subject of
any discipline. T. 401 - 407.
After leaving Geneva, Ms. Baer was hired by and reported to Mr. Joe Mareane in her
role as the County Director of Human Rights. As such, she was responsible for promoting
and protecting human rights of Tompkins County residents. In addition to the Office of
Human Rights there is a County Human Rights Commission. This Commission is
composed of up to 15 community volunteers that are not County employees. The
Commission provides advise to the Legislature but works apart from the Office of Human
Rights. T.408 -409.
On April 15,2014 Mr. Mareane formally rated Ms. Baer as outstanding and highly
effective in the performance of her job. The full Performance Review is set forward in
Respondent's Exhibit O. In addition to high praise, the Review provides consideration of a
"shift toward a conciliation role, develop a new relationship with the state or enact local
laws that will empower us to have a greater role in enforcemenf'. Suffice to say, the
accused believed Mr. Marene was supportive of her effort at building stronger local human
rights and a fair housing enforcement strategy for the County. Ms. Baer has not received
any additional Performance Reviews. T. 409 - 416.
Starting at page 416 and continuing thru page 421, the accused testified about her
and the Office of Human Rights accomplishments and present work agenda. At page 42I,
Ms. Baer commented that Mr. Mareane supported her efforts up and until March 2015. At
that time the Office Human Rights and the Commission were jointly working on a project to
promote gender identity at the State level. After the project was underway, Pat Pryor, Chair
t7
of the Commission, withdrew her support and issued a press release and attended a press
conference even though she had no authority over the Office of Human Rights. T. 416 -
422.
At page 423, the Hearing Officer entered a clarification of the disputed issue and
informed the parties he was not considering the validity of Ms. Baer's complaints as filed in
2015 and 2016. The real question is whether the employer retaliated against her or had
independent reasons for filing the instant Section 75 discipline charges. T. 423 - 425.
As it turned out, a dispute arose about the protocol for Office of Human Rights press
releases. According to Respondent, Ms. Pryor told her she needed to figure out how things
were done in the County. "Well," Ms. Baer went on, "Miss Pryor is white and I based on
previous observations I thought that her behavior towards me was based on my race." This
feeling was also shared by those of color on the Commission because of their own
interactions with Ms. Pryor. Ms. Baer feels Ms. Pryor treated her and the Commissioners of
color differently. At page 428 Counsel for the County took great issue about Ms. Baer's
testimony impugning Ms. Pryor's good name and reputation. Mr. McCann felt these
questions were not relative to the charges and this matter has already been addressed in a
previous investigation. T. 425 - 429.
The accused went on to tell Mr. Mareane about the incident and how she felt about
Ms. Pryor. Ms. Baer said Mr. Mareane did not want to hear her side of the story, sided with
Ms. Pryor and directed her (Ms. Baer) to apologize to her. From that day on, Mr. Mareane
has been upset with Ms. Baer and their relationship changed. The Commissioners of color
were going to resign but instead passed a lost confidence vote in the Chair. After that Ms.
Pryor resigned in August 2015. Ms. Baer testified that Mr. Mareane informed the legislators
and they too were displeased. As Ms. Baer views it, Mr. Mareane and the legislators began
discriminating against her by silence that negatively impacted her and her staff. T. 429 -
432.
Starting at page 433 and continuing through page 437, Ms. Baer testified about the
various examples of how she and her staff were victims of retaliation in 2015. On
November 20, 2015, Ms. Baer sent a letter to Mr. Lane and members of the Health and
Human Service Commission about the retaliation that she believes is based upon race, color
and sex. Respondent's Exhibit 7. The accused commented that she was merely seeking
18
resolution of the matter. Instead, she feels she was shunned by most of the legislators and
informed that Edward Hooks was retained to investigate her complaints . T. 432 - 439.
After Mr. Hooks informed Ms. Baer that the matter could be dealt with through
conciliation, she agreed to meet with him and give him the name of three commissioners of
color to interview. That matter was not, however, resolved through conciliation. Instead,
Mr. Hooks' wrote a report that Ms. Baer felt relied on the "creditability of white people to
discredit [of her] and [her] witnesses". Ms. Baer argued that the report was unfair, not
impartial and accusatory. Moreover, on occasion Mr. Hooks would close his eyes and in
one instance fell asleep. The so-called Hooks' report is contained in Respondent's Exhibit
P. All of Ms. Baer's specific criticism of Mr. Hooks and his March, 2016 report are set
forward at pages 442 - 447 and contained in Respondent's Exhibit H. T. 439 - 448.
In the Spring of 2016 and after Mr. Hooks issued his report, Ms. Baer was no longer
included in the forums related to issues pertaining to the ban the box legislation and the
workplace climate survey. Respondent listed the various committees that she was not
on. The listing starts at page 456 and continues through page 463. As Ms.
invited to be
Baer views it, the exclusions stem from a pattern of retaliation because she filed the
complaints that culminated in Mr. Hooks, investigation. T. 448 - 463.
Not only did the retaliation result in Ms. Baer being excluded from committees that
would benefit from her participation, her office was not relocated to a more handicap
accessible location. As further evidence of the retaliation, Ms. Baer testified that the one
Legislator did not approve of her presence on a statewide coalition regarding income
protection under the Human Rights Law and held in public session that it (the Legislature)
would have to approve the participation. In fact, the Legislator proposed a midnight
amendment to completely defund the Office of Human Rights but backed down after a
public outcry. All of the foregoing took place after Ms. Pryor's resignation from the
Committee. T.463-467.
Ms. Baer testified that based upon the climate survey and conservation with women
of color (Paula Younger and Legislator Leslyn McBean-Clairborne) associated with the
County, she felt others had stories similar to her own. The accused claimed that Ms.
Younger heard a Legislator make a racial comment and believed Ms. McBean-Clairborne
did not support her work. Sometime after Mr. Hooks' report was issued, however, Ms.
t9
McBean-Clairborne and the accused had a conversation. According to the accused, Ms.
McBean-Clairborne complained that as the sole person of color on the Legislature, she was
treated more harshly than others and that'0......, every other former black department head
that works for the county has been screwed and shit on....." 3 Counsel for Ms. Baer stated
that she did not enter this into the record for the truth of the matter, but rather her client's
state of mind. Counsel for the County objected to this line of questioning. T. 467 - 474.
Beginning at page 474 Ms. Baer testified that she received a letter from Mr. Lane
informing her that the Legislature did not accept her statements and in fact unanimously
adopted Mr. Hooks' report. Mr. Lane also informed her that Mr. Taylor had been retained
to investigate her follow-up allegations. Ms. Baer was suspicious and felt Mr. Taylor
"would conduct a sham investigation for the purpose of tarring and feathering [her] and that
was [her] concern". The two did, however, have an initial phone conversation where Ms.
Baer laid out her feelings based upon Mr. Hooks' report and said she was looking toward a
process of conciliation. Ms. Baer said she would be very tentative about talking to him
unless she knew the procedure he would employ for the investigation. Mr. Taylor said he
did not think the procedure was important, but would look into the matter and find
something acceptable to her and the County and get back to her. Mr. Taylor, however,
never provided a written copy of the procedure to Ms. Baer. T. 474 - 478.
Ms. Baer further explained that she is a federally trained investigator. Consequently,
she is very particular about protocol/process and found Mr. Hooks' report lacking,
especially since he was being paid by the County. The accused wanted to know how long
Mr. Taylor's investigation would take, how confidential it would be, how the record would
be kept, what standard of proof would be used, how he would judge credibility, how she, her
staff, and witnesses would be protected from retaliation. The accused wanted that in writing
so she could assess whether that answered her concerns. With that, Ms. Baer would be
willing to meet with Mr. Taylor. T.478 - 481.
Ms. Baer stated that she was out of the office when Mr. Taylor called. He left
messages saying he was going to be in Ithaca and wanted to meet. She claimed that
inasmuch as she did not have a written process that she found acceptable, she was not going
to meet him. Finally, on about June 5, 2017, Ms. Baer received a letter from Mr. Taylor.
3
I understand this provocative statement is not confirmed and is hearsay only
20
On June 9,2017 Ms. Baer responded and reminded Mr. Taylor about her concern and that
she had not received any assurance of protection from him. There was no further
correspondence from Mr. Taylor to her. As Ms. Baer sees it, she did not refuse to cooperate
in the investigation. T. 482 - 486.

Respondent testified that she was not obligated to be on the Workforce, Diversity
and Inclusion Committee pursuant to her job description. Rather, she served as a volunteer
and no one ever directed her to be on that committee. In fact, she informed Mr. Lane about
her resignation on May 18, 2017. Still, no one informed her that she had to return to the
committee or she would be insubordinate. Moreover, others have resigned from committees
without being disciplined and as it stands, some vacancies remain open. T. 486 - 493.
Ms. Baer explained that like the Workforce, Diversrty and Inclusion Committee,
membership on the Compliance Committee was not within the terms of her job description
and no one directed her to be on it. Thus, in August 25,2015 she resigned from that
committee and so informed Ms. Younger. Since then, and up and until the instant charges
were filed, no one told her that it was a breach of duty to resign from the Compliance
Committee. Still (after her resignation), Ms. Baer worked with both of the committees. T.
494 - 500.
On or about January 23,2017 Ms. Baer was directed to cooperate with Mr. Taylor.
Since then she never received a written description of the process and no one ever told her a
failure to cooperate would result in discipline. Thus, up and until she received the instant
charges she did not know she was actually guilty of any wrongdoing. T. 501.
In regard to her office activities, Ms. Baer testified that she nor her staff ever failed
to fulfill their duties during her tenure. Examples of the office's various accomplishments
are set forward at page 503 and 504. In fact, Ms. Baer was never told that she or her offrce
was not fulfilling their responsibilities. T.502 - 505.
Respondent feels she raised legitimate issues about discrimination and retaliation
based upon a good faith understanding of the matters at hand. After Mr. Taylor filed his
report, she continued working by trying to rally support for ban the box and source of
income protection. In fact, Ms. Baer wrote an opinion article in the local newspaper that
might have embarrassed County officials during that same time period. Respondent's
Exhibit Q. During a budget presentation, she also alleged that her office faced a pattern and
2t
practice of discrimination and retaliation based upon race and sex. Thereafter, she received
the Section 75 Charges at her work location. T. 505 - 510.

Ms. Baer testified that she has a proven track record and so long as she is treated
respectfully, she can work with anybody. She has a lot to offer and can be an effective
director. She loves her work and staff and hopes that under a new administration and a new
legislature they will come to embrace her effort. She is foarfirl, however, that her situation
had a chilling effect and employees might hesitate bringing certain matters forward. Still,
she wants to have an attempt at conciliation so the County can move forward based upon
mutual benefits and understanding. After Ms. Baer's direct testimony, Mr. McCann
requested and was given an adjournment for cross-examination over the objection of
Counsel for the Defendant. T. 511 - 516.
Jamila Walida Simon was the second witness to testifr on behalf of the Respondent.
Ms. Simon explained that she is employed as a civic engagement specialist for Translational
Research at the New York State 4-H Office at Cornell University. She has a bachelor's
degree in environmental policy and a master's degree in natural resources and presently
serves as Chair of the Tompkins County Human Rights Commission. The Commission is a
voluntary board which collaborates with the Office of Human Rights and promotes public
activities and outreach opportunities. T. 517 * 519.
Ms. Simon who worked with Pat Pryor on the Commission disagreed with the way
Ms. Pryor chaired the Commission and made unilateral decisions and used her personal
connections to the detriment of the Commission. In fact, Mr. Pryor intemrpted Commission
meetings to make comments about Ms. Baer. The Commission addressed a letter about their
issues and sent it to the County Legislature. A volatile meeting followed between
Commission members and the Legislature. The meeting occurred prior to Ms. Simon's
interview with Mr. Hooks and Ms. Baer did not have anything to do with the Commission's
decision to approach the Legislature. T. 519 - 524.
Beginning at the bottom of page 524,Ms. Simon commented that she was aware that
Ms. Baer complained that she and her staff were not being treated properly and
discriminated against. Thus, Ms. Simon and the commissioners were interviewed by Mr.
Hooks. As Ms. Simon views it, Mr. Hooks was offensive and fell asleep during the
interview. He felt the dispute was interpersonal and that the commissioners were just
22
ranting about Ms. Pryor. Ms. Simon gave Mr. Hooks her interview notes to make sure he
had the commissioners' correct details, but did not share this information with Ms. Baer.
Ms. Simon feels Ms. Baer is an ally who promoted the Commission's work. T.524 - 528.
Cross-examination commenced at page 529 and Ms. Simon explained that the
Commission normally has monthly meetings except during the summer. She does not
believe there is a dispute relatingto her chair position. The witness explained what
unilateral decisions Ms. Pryor made and provided it was "debatable" if Legislator Stein
headed the Health and Human Services Committee. Ms. Simon would not concede,
however, that it would be proper for Ms. Pryor to talk to Mr. Stein given their respective
roles. She was also concemed about Ms. Pryor sharing inappropriate information with
legislators that might not reflect the feeling of the Commission as a whole. T.529
- 544.
Continuing with cross-examination, Mr. McCann asked Ms. Simon if she put
everything in her notes to Mr. Hooks that she and some other commissioners wanted him to
consider. The witness, did not, however, answer the question after it was repeatedly posed
to her. At page 549 Mr. Celli set forward his objection for the record to my ruling granting
Mr. McCann a hearing adjournment so that he (McCann) could further prepare his cross-
examination of Ms. Baer. T. 546 - 550-
Respondent's third witness, Carmen Arroyo, has worked as a receptionist at the
Office of Human Rights for 15 years. Ms. Arroyo testified that she assembled a list of dates
when Mr. Taylor repeatedly called and left a message requesting Ms. Baer to call him back.
Ms. Arroyo recalled one message where Mr. Taylor wanted to schedule a meeting with Ms.
Baer. The witness explained that over the term of her employment she has worked for two
directors and found Ms. Baer to be a leader, "very respectful" "very outgoing" and o1ery
inclusive". "There's not one negative thing that I can say about her." In concluding direct
examination, Ms. Arroyo found Ms. Baer's leadership to not be dysfunctional. T. 551 -
556.
Ms. Arroyo explained under cross-examination that she made the list of phone calls
from Mr. Taylor after she discussed the upcoming public hearing with other staff members.
She did not, however, discuss this with Ms. Baer. Ms. Arroyo stated that she heard from
someone else that Mr. Taylor called the office and left the message that he wanted to meet
with the accused. The witness further testified that in addition to the 5 phone calls she
23
logged from Mr. Taylor there could have been others. Charging Party Exhibit 13. Thus,
there are 5 phone calls and 2 voice messages and it is unknown if Mr. Taylor made any more
calls. On March 7,2017 Ms. Arroyo claimed that Mr. Taylor wanted to meet with Ms. Baer
on the upcoming Thursday or Friday because he wanted to review her complaint. That one
message along with all the other phone calls were forwarded to Ms. Baer, but she told Ms.
Arroyo she was not refurning the phone calls because she wanted a written process to
follow. Ms. Baer's written request for a written process is contained in her letter of June 9,
2017. Charging Party Exhibit 3. T. 556 - 570.
Elizabeth Brundige, who works at the Comell Law School, is an Associated Clinical
Professor of Law and Assistant Dean for International programs. She is unquestionably well
educated and has a wealth of professional experience. Ms. Brundige teamed up with the
Tompkins County Advocacy Center to promote resolutions from domestic violence. As
such, she approached Ms. Baer who became supportive of the initiative with the Cornell
Law School and Gender Justice Clinic. The project proved successful and freedom from
domestic violence as a human right was recognized by the Legislature in November 2014.
T. 570 - 576.
In regard to the foregoing, Ms. Brundige has worked with Ms. Baer on implementing
domestic violence resolutions and parbnered with the Human Rights Commission, the
Advocacy Center and the Gender Justice Clinic. They developed a workplace policy and
tool kit for the Tompkins County Counsel of Governments and private employers. They
have worked jointly on challenges in domestic violence prevention and responses for
addressing this at the local and national level. Ms. Baer and Ms. Brundige collaborated on a
letter that was sent to the Village of Groton regarding its nuisance law. Ms. Brundige
testified that she sought counsel from Ms. Baer about an antidiscrimination case and had her
serve as a guest lecturer at a college level course on human rights. As this witness sees it,
her (Brundige's) work with the Office of Human Rights would not have been successful
without their (Office of Human Rights) dedication and collaboration. T.576 - 581.
At the third day of hearing on Friday, January 5,2018 the Respondent's motion for
dismissal of the charges and change of venue was entered into evidence along with my
denial. Hearing Officer Exhibits 6 and 7 respectively. In any event, Mr. Lane's redirect
examination commenced at page 590 and he testified that the Progressive Discipline
24
document as contained in Respondent's Exhibit E was not actual policy but rather a print out
of a power point presentation used by the Human Service Department to explain progressive
discipline to certain employees. The second page states in bold print that "[n]ot all
situations warrant progression". The document also provides that while every situation is
unique, the County strives to develop a state of faimess and consistency when implementing
discipline. T. 589 - 593.
Mr. Lane explained that he and fellow legislator Daniel Klein sent a letter to Ms.
Baer on June 17, 2016. The legislators informed Ms. Baer that Mr. Hooks completed his
investigation and invited her to provide any other evidence she would like to submit to the
Legislature for its consideration. Charging Party Exhibit2}. On July 6,2016 the accused
provided a response to the Hooks' report setting forth Mr. Hooks' investigative deficiencies
and raising additional allegations that prompted a further inquiry. Charging Party Exhibit
21. The Chairman, testified that on July 22,2016 he asked Ms. Baer to provide any further
information/evidence she might have as it pertains to her additional serious allegations
involving the ban the box efforts. Charging Party Exhibit 11. In response, Ms. Baer sent the
Legislature a number of other allegations on or about August 26, 2016. Respondent's
Exhibit H. After consideration of all of the foregoing, the Legislature decided to have a
further investigation. On September 12,2016 Mr. Lane and Mr. Klein sent Ms. Baer a letter
requesting any support underlying the claims she raised on August 26,2016. It further
provides that she (Ms. Baer) "continues a practice of making very serious allegations of bias
and misconduct without ever presenting the evidentiary support [she insists she has]. . .. This
is not acceptable." The Respondent provided nothing further and the entire Legislature
reviewed the Hooks' report and Ms. Baer's submission. On January 17,2017 a unanimous
Legislature, after due deliberation, adopted the Hooks' report and dismissed Ms. Baer's
allegations. Charging Party Exhibit22.T.594 - 609.
On May 18,2017 Ms. Baer informed Mr. Lane that she was resigning from the Work
Force Diversity and Inclusion Committee. Mr. Lane responded and asked if she would like
to explain. Nothing further was forthco*irg, but the Legislature expected Ms. Baer to be a
member of the Committee. Charging Party Exhibit 16. T. 613 - 615.
Cross-Examination commenced at page 616 when Mr. Celli asked the witness about
the two commissioners of the County Department of Human Services whose names appear
25
on the Progressive Discipline document. Respondent's Exhibit E. Mr. Lane agreed that
they must have approved the document that was created on August 9,2016. The document
provides at the third page that all class employees have a right to progressive discipline.
Thus, Mr. Lane thought the accused would "possibly" be covered. The progressive
discipline procedure is also contained in a document issued by the Tompkins County
Personnel Department. It too, covers competitive class personnel and calls for problem-
solving sessions but Mr. Lane did not personally know if anyone engaged Ms. Baer in a
problem solving counseling as it relates to the instant charges. Respondent's Exhibit R. As
it now stands, however, Ms. Baer has been suspended from work without pay for one month
pursuant to Civil Service Law but not discharged. While Mr. Lane feels Ms. Baer has been
given a lot of notice, he believes the general purpose of progressive discipline is to treat
employees fairly and let them know when they are doing something wrong. It does not
specifically say that if an individual does not provide supportive data for hislher claims,
he/she will lose their job. T.616 - 634.
At page 635 Counsel for the accused asked Mr. Lane about Ms. Baer being excluded
from ten County initiatives that relate to her area of expertise. When Mr. Lane asked on
September 12, 2016 that she provide any information about the exclusion, she forwarded a
copy of her resume on October 23,2016. Respondent's Exhibit A. T. 635 - 637.
Under re-direct examination Mr. Lane testified that pursuant to the County Personnel
document some of the progressive discipline steps may be skipped depending on the severity
of the offense. In fact, an employee could "be placed on unpaid leave suspension and/or
terminated upon service of disciplinary charges". In the instant case, the employer is
seeking to discharge Ms. Baer because she did not follow Mr. Lane's January 23, 2017
directive to cooperate with Mr. Taylor. Charging Party Exhibit 12. The Chairman was
"totally amazed that [Ms. Baer] did not respond to Mr. Taylor". As he views it, he would
expect "any departrnent [to] listen to the direction of the county legislature". Mr. Lane did
not know however, that Ms. Baer did in fact have a lengthy phone conversation with Mr.
Taylor prior to signing the charges . T. 639 - 644.
Beginning at page 644 Counsel for the County stated that he intended to call three
additional rebuttal witnesses. Counsel for the accused objected and after listening to their
26
respective positions on the matter, I sustained the objection. The record on the foregoing is
set forward in the transcript starting atpage 644 andconcluding atpage 652.
Ms. Baer began testifying under cross-examination about some

cordial/complementary correspondence between her and Ms. Pryor on March 11, 2015. On
that same day a press release was issued by the Office of Human Rights pertaining to
support of the Gender Expression Non-Discrimination Act. As it turned out there was some
dispute over whether the Act was supported by the Legislature. Apparently this line of
questioning was intended to refute the accused's allegation that Ms. Pryor bears racial
animus or bias against Ms. Baer. In fact, Mr. Hooks concluded that Ms. Baer's claims
against Ms. Pryor were unfounded. At page 674 Ms Baer testified that she became upset
with Ms. Pryor when she (Pryor) phoned her and made derogatory remarks and demeaned
her professional capacity. Specifically, she told Ms. Baer in an angry tone that she (Baer)
needed to learn how things were done in Tompkins County. Charging Party Exhibits23,24,
25 and 26. Beginning at page 678,I found there was no meaningful evidence to conclude
that Ms. Pryor is a racist. In fact, Mr. Hooks already dismissed those allegations. To that
extent and in recognition of the fact that Ms. Pryor's conduct does not directly relate to the
charges at hand,I directed Counsel for the County to move on to another line of questioning.
T. 652 - 682.
Ms. Baer explained that she received an invitation from Legislator Stein, Chair of the
Health and Human Services Committee, to meet for lunch in May 2015. She felt
uncomfortable meeting him since she reported to Mr. Mareane and Mr. Stein wanted to
discuss matters involving Ms. Pryor. The accused knew Mr. Stein and Ms. Pryor were
friends and did not want to be involved in a way that might aggravate the situation. As it
turned out, they did not meet and Ms. Baer testified that she avoided speaking with Ms.
Pryor and tried to focus on policy and office programs. A letter from Ms. Baer to Mr.
Mareane dated May 6, 2015 about this matter is contained in Charging Party Exhibit 28.
Respondent felt race was not a central issue at that time. T. 683 - 690.
On August 21, 2015 Respondent asked Mr. Mareane for permission to hire a
paralegal. Charging Party Exhibit 31. She thought her request pre-dated a hiring freeze that
was issued on July 20,2015. Charging Party Exhibit 30. As Ms. Baer sees it, she had
permission to filI one vacancy a few days before the freeze was lifted and a second vacancy
27
remained open weeks after the freeze was over. Ms. Baer maintains this is a form of
retaliation even though she made an agreement with Mr. Mareane on the matter. T. 691 -
700.
On June 30, 2015 Ms. Baer sent Mr. Mareane a draft of a proposed County
antidiscrimination law. Charging Party Exhibit 32. Mt. Mareane responded on July 2,2015
(Charging Party Exhibit 33) and the parties assembled on or about August 15,2015. Mr.
Mareane was concemed about the cost of a three-person voluntary board to adjudicate
discrimination complaints. He apparently felt this was not needed since the State Division
of Human Rights was already providing investigatory and adjudication enforcement. In any
event, as time went on the participants decided to just look at certain parts of the law instead
of enacting a new comprehensive statute. The accused felt that when Mr. Mareane
withdrew his support for particular parts of the legislation, it was not a matter of
misunderstanding, but rather a form of retaliation in light of the other issues at that time. T.
701 -717.
Ms. Baer testified that after she informed Mr. Taylor on June 9,2017 why she was
not retuming his phone calls, she did not think he would try to call again. Charging Party
Exhibit 3. As Ms. Baer sees it, her June 9, 2017 letter captures the substance of the one
forty minute conversation she had with him in January or February 2017. Once again, the
accused commented that she was waiting for Mr. Taylor to fulfiIl her request. When asked
why she did not call him back and ask for the written process, the witness responded that she
prefers to do things in writing and thought she had participated in the process during their
frst conversation. Ms. Baer said that her exclusion from committees that would have
benefited from her knowledge was discriminatory and Mr. Taylor should have interviewed
her and provided the written protection she was seeking. T.717 -722.
Testimony ended when Counsel for the County finished cross-examining Ms. Baer at
page 722. Starting at that page (722), I ruled over the objection of Counsel for the accused
that I would dispense with closing statements. Instead, I would only entertain post-hearing
submissions. With that, the hearing portion of this disputed matter was concluded. T. 722 -
726.
28
Discussion
Most of this dispute centers around Ms. Baer's cooperation with Mr. Taylor who was
charged by the Tompkins County Legislature to investigate Respondent's claims about
discrimination. There is no meaningful evidence, whatsoever, that the investigation was
contrived theater or a sham to entrap Ms. Baer. To the contrary, I am persuaded that the
Tompkins County goveming body took her allegations seriously and did what any
responsible government would do. The County, acting in good faith, hired an outside well
credentialed professional to conduct an independent, impartial investigation. Consequently,
Ms. Baer was directed to cooperate in the inquiry.
Ms. Baer, however, had some serious concerns about the conduct/procedure
pertaining to Mr. Hooks' previous investigation into her claims. She felt Mr. Hooks was
substantially biased against her because he marginalized and he did not address, much less
credit, certain input that favored her assertions. Moreover, she maintains that he actually fell
asleep when certain statements favorable to her were provided by those who seemingly
agreed with Ms. Baer. With that in mind, the accused was skeptical about Mr. Taylor's
intention.
At the hearing I was looking for, but did see Ms. Baer concede or recognize that she
could possibly be at least partially at fault by not retuming Mr. Taylor's phone calls or
anything else. Instead, she vilifies Mr. Lane, the Legislature, Mr. Hooks, Mr. Taylor, Mr.
Mareane and Ms. Pryor for their disingenuous/conspiratorial behavior against her. She
remains unapologetic, much less unremorseful. In Matter of Bottaci v. Saratoga Springs Cit
School District, A.D. 3d832,771 N.Y.S. 2d261(3'd Dept. 2004)the Court observed, that in
addition to other factors, the lack of remorse was proper consideration for an employer to
evaluate in deciding upon the degree of discipline. I understand that Ms. Baer was seeking
efforts at conciliation. At the same time, however, exchanges between the County and Ms.
Baer became more and more strained. While Ms. Baer felt one hundred percent justified in
not retuming Mr. Taylor's repeated phone calls, she should have recognized that others
could reasonably construe her failure to return phone calls as being difficult, obstinate and
even arrogant. She foreclosed any possible resolve by refusing to at least talk to Mr. Taylor
until he satisfied her protocol in writing.
29
I fully understand and appreciate that Ms. Baer has supporters and she wants to work
toward some method of reconciliation between the tension and dispute between her and the
Legislature. The record in the matter has convinced this Hearing Officer that
notwithstanding, she firmly believes she has not done anything wrong and the faultiblame
rests with others who don't understand or have misinterpreted her motivation. As stated,
Ms. Baer does not concede that she is at least partially responsible for her predicament.
Rather, she has set forth justification that explains her behavior.
If Ms. Baer was at least
willing to minimally recognize that she was wrong or that fair minded others might
reasonably construe her action as uncooperative that would go a long way.
Respondent felt she got the short end of the stick and that the Hooks' report was
inaccurate and biased against her and others of color. That is not to say this is true, but
rather to say that this is how Ms. Baer perceived the matter. Clearly, however, there is no
evidence, whatsoever, to suggest Mr. Taylor was biased against Ms. Baer or others of color.
In fact, Counsel for the accused does not attempt to make this argument. Ms. Baer's defense
might have gained some traction if she returned his calls and there still remained meaningful
differences after civil conversation. The accused precluded that by unnecessarily closing the
door.
A fair reading of the testimony and documentary evidence has convinced the
undersigned that Ms. Baer probably told Mr. Taylor she would not meet with him until he
resolved certain issues in writing. I don't believe this reason by and of its self excuses her
from at least meeting with him. Surely, and by any stretch, it does not relieve her from at
least retuming his phone calls and talking about what he leamed. How could she possibly
know what he was going to tell her if she was unwilling to speak to him. That might have
lead to some resolve and avoided Ms. Baer's predicament. In fact, at page 55 Mr. Taylor
said he was attempting to inform her about the process but could not do so because she
would not call him back.
Significantly, Chairman Lane made it very clear to Ms. Baer on July 22,2016 and
agun on September 12,2016Lhatthe County Legislature was very aware and even troubled
by her serious claims about discrimination "without ever presenting the evidentiary support
she insist[s] [she has] for [her] claims". Charging Party Exhibit 1l and Respondent Exhibit
I. Suffice to say, the accused was on notice about the employer's concems but, nevertheless,
30
failed to act by not returning Mr. Taylor's phone calls. Not surprisingly, therefore,
Tompkins County feels the Director has cost taxpayers the expense of two investigations
while being unnecessarily uncooperative. I have not overlooked Ms. Baer's repeated
requests to engage in reconciliation. Before that can effectively happen however, County
administration has the obligationto determine if there is, in fact, probable cause that
supports Ms. Baer's assertions. As this tier of fact sees it, Ms. Baer's request for
conciliation does not supersede Mr. Lane's request for cooperation in providing some
specifics for her claims. Significantly, there is no record evidence that demonstrates that
anyone in the County told Ms. Baer she should refrain from filing complaints. Instead, they
requested that she submit any information she might have to support her position. Surly,
that is not unreasonable.
I do not believe that some County official had to actually direct her to retum Mr.
Taylor's calls or face a measure of discipline pursuant to the progressive discipline policy.
As early as January 23,2017 Mr. Lane informed Ms. Baer about the pending investigation
regarding her complaints and directed her to provide fuIl cooperation. She should have
reasonably known, even without prior warning of discipline, that she was obligated to retum
his repeated phone calls. Her concerns do not relieve her from any responsibility to simply
retum phone calls. It is the employer's investigation not her investigation.
Counsel for the accused argues that his/her client was not treated fairly and should
have been counseled under the terms of the County Progressive Discipline Policy. The
policy, however, is not absolute and specifically provides that "[n]ot all situations warrant
progression". Few would argue, for example, if an employee is caught stealing County
owned property he/she should be counseled. Rather, he/she should well enough know
without any counseling that stealing is unacceptable and warrants serious discipline. The
instant case does not, of course, involve a theft. Still, Ms. Baer, as a director should well
enough realize without any counseling that not returning the County appointed investigator's
repeated phone calls is unacceptable. Her failure to follow a reasonable directive about
same, therefore, warrants an appropriate measure of discipline.
Still Ms. Baer's Counsel argues that the County has not proven its case and,
therefore, the charge should be dismissed under the logic established in Reisig v Kirby 62
Misc. 2d632,635 (Sup. Ct. Suffolk CnW, 1968) af?d,31 A.D. 2d 1008 (2d Dept 1969). In
31
that case, the County was seeking to discharge a nurse's aide because she failed to follow a
directive to report to work. As it turned out, the aide could not come to work under
direction from her doctor. As a result the courts determined the employer was unable to
show that the employee was actually guilty of insubordination. In the instant case there was
nothing preventing Ms. Baer from simply returning a phone call.
I accept Mr. Taylor's view of the matter. An employee who is directed to do
something is obligated to do it unless it would compromise his/her safety. None of that is
applicable to the case at hand. The employer promulgates the rules, terms and conditions of
employment not the employee. By education and experience, Ms. Baer knows or should
know that allegations of illegal discrimination must be fairly investigated by interviewing
the people who made the allegations and those who could potentially corroborate or deny
the substance underlying them. Mr. Taylor was not empowered to prove Ms. Baer's
allegations. He was empowered to fairly investigate the matter to see if there was in fact
any proof of wrongdoing. Despite Ms. Baer's failure to return his phone calls, he
conducted an unbiased, fair investigation that found Ms. Baer's exclusion from some forums
was based upon permissible reasons.
Ms. Baer stressed the point that she is a federally trained investigator. As such, she
is very particular about the conduct of an investigation. Naturally, the people she is dealing
with, however, may not have this training. That does not mean they are incapable of
conducting an honest inquiry. Accordingly, it would better serve her purpose to be less
doctrinaire and simply more practical. At a personal level, if I honestly believed my
brethren were being victimized because of their religion, I would be the frst in line to
provide meaningful information to an investigator to correct the offensive behavior.
Substance would trump procedure. Ergo, rather than being criticized, the Tompkins County
Legislature and its Chair should be applauded for their work and good faith effort in
attempting to investigate Ms. Baer's allegation. While she may disagree with the
conclusions of the investigators, that does not take away from what the Legislature was
doing. I understand their frustration and their desire to discontinue the employment
relationship. At the same time, I also understand the limitations of the facts that were well
litigated at hearing. This Hearing Officer draws no conclusion from the Taylor or Hooks'
investigation or report as it relates to a finding of guilt. Based upon the charge pertaining to
32
Ms. Baer's lack of cooperation and my reasoning, I find the accused guilty of Charge 1,
Specification I subsection e and Charge 2, Specification I subsections e and f.

Clearly Mr. Taylor was retained to examine Ms. Baer's complaints. He found "that
even assuming that an adverse action was taken, there was a legitimate, non-retaliatory
reason for the action. I also find that Ms. Baer has not established that the adverse actions
would not have been taken but for her November 20,2016 claims." Although Mr. Taylor did
not actually examine the function of the Office of Human Rights, he did render an
observation. o'The fact that the Director of OHR has made very serious allegations of racism
and sexism but refuses to participate in the investigation of those allegations has created a
dysfunctional environment. Her behavior has completely delegitimized the work of the
OHR." While I understand Mr. Taylor's fnrstration, there is insufficient record evidence in
this case to support his observation that Office of Human Rights is dysfunctional or been
delegitimized. In fact, the undisputed record evidence shows that such office has, under Ms.
Baer's tenure, concluded many worthwhile endeavors. Some examples are measures related
to:
1. banthebox
2. a safe space tool kit
3. the29ft annual human rights arts competition in local schools
4. the protection of transgender students
5. an assistance animal policy
Bottom line, the evidence establishes that up and until the charges were filed, no one
informed Ms. Baer that the Office of Human Rights was not fulfilling its duties and
responsibilities. There is no evidence to demonstrate Mr. Taylor, who conducted a fair
investigation considered the foregoing. That, simply was not his focus or job.
Charge 3 alleges that Ms. Baer has created a dysfimctional environment in
connection with the relationship between Tompkins County and its Office of Human Rights.
The Charge stems from the fact that the Legislature felt it was acting in good faith by
appointing an outside investigator, only to later find out that Ms. Baer was not retuming his
phone calls. While f'm sure that created a rift between the accused and the Legislature,
there is insufficient record evidence to actually show how the rift has placed Ms. Baer "in a
JJ
position in which [she] can no longer carry out the full range of [her] duties and
responsibilities as Director of Human Rights. . ..".
The only person who actually works in the Office of Human Rights was called to
testifu on behalf of the accused. Carmen Arroyo, who I believe is a credible witness, has
worked as a receptionist under two directors at the Office of Human Rights for 15 years.
She said Ms. Baer is a "leader" and she (Ms. Anoyo) cannot say one negative thing about
her. Most importantly, Ms. Arroyo said the Office was not dysfunctional under Ms. Baer's
direction. Based upon the foregoing, I am persuaded that record evidence does not establish
that the Office of Human Rights is dysfunctional and it and the accused cannot carry out
their mission as alleged in Charge 3 Specification I subsections c, d and f. Consequently, I
do not find Karen Baer guilty of the foregoing. Inasmuch as I have not found Ms. Baer
guilty of this Charge, I will not address the allegation that the Charge is not sufficiently clear
enough to formulate a defense.
In regard to another Charge, it is undisputed that Ms. Baer withdrew from two
committees. The record evidence shows that Ms. Baer resigned her appointments from the
Workforce Diversity and Inclusion Committee as well as the County Committee responsible
for insuring compliance with equal opporhrnity laws, regulations and policies. As the
County views the matter, these committees directly relate to her job and are important to the
heart of the Office of Human Rights function. Ergo, her failure to be on the committees is
tantamount to a failure to properly carry on with her responsibilities.

On the other hand, Ms. Baer zugues that the disputed assignments are not specifically
referenced in a job description. Even if, however, they are implied within the job
description, she should have been, at a minimum, warned that she must return to the
assignments or face disciplinary action. After all, she resigned from the Workforce
Diversity and Inclusion Committee on May 18, 2017 (5 months before the Section 75
Charges were filed) and the Compliance Committee on August25,2015 (more than 2 years
before the Section 75 Charges were filed thereby making this Specification untimely under
Civil Service Law). Thus, and in the absence of any warning, the County has failed to
follows its own measure of progressive discipline. Ms. Baer was not given a directive to
return to the committees or face certain consequences. Counsel for the accused argues,
34
therefore, that their client did not know her resignations were unacceptable and would be the
subject of discipline.
Both sides make logical argument. Ms. Baer must have reasonably known that the
committees were significantly related to her job and inherent duties of Office of Human
Rights. Stated in the alternative, a failure to participate in those committees could or would
undermine her position. Yet, I also believe that under these circumstanceso she should have
been directed to return to the committees or face a measure of discipline. Had she then
disobeyed this reasonable directive, she would have been insubordinate. It is important to
note and it must not be overlooked, however, that Ms. Baer has not been charged with
insubordination but rather with a failure to fulfill the fuIl range of her responsibilities as
Director of Human Rights for the administration and enforcement of equal opportunity laws,
regulations and policies. (Charge 1, Specification 2 subsection d and Specification 3
subsection d).
Technically, I am satisfied that Ms. Baer is guilty of Charge 1, Specification 2
subsection d pertaining to the Workforce Diversity and Inclusion Committee. At the same
time, my finding and consideration for discipline is mitigated. I believe, that while she is
technically guilty, she should, as a practical matter, been advised that she was required to be
on this committee and if she did not return she would be insubordinate and subject to
discipline. I also find Charge I Specification 3 subsection d pertaining to the Compliance
Committee untimely since it occurred to the knowledge of the County administration more
than eighteen months before the incompetency or misconduct alleged in the Charge
pertaining to same. New York Civil Service Law at $ 75 1+;.4 afthough it is unclear if she
plans on returning to both committees, I will assume for purposes of this decision that since
her staffing has stabilized, she is fully prepared to go back to the positions knowing full well
they are unquestionably a part of her job. If my assumption is incorrect, I will retain
jurisdiction to reconsider my recommendation on discipline.
a
Counsel for the County argues that the Charge pertaining to Ms. Baer's resignation from
the Compliance Committee is timely since she continued to refrain from attending
compliance meetings. With all due respect, I believe this Charge is untimely since to the
knowledge of the employer, the accused resigned more than two years before the Section 75
charges were filed. Even if, however, the Charge was timely it would not alter my
recommendation on discipline since the evidence shows Ms. Baer was never told she was
derelict or instructed to return to the Compliance Committee meetings.
35
Recommendation
I understand this has turned into a somewhat charged local public affair. My
decision, therefore, could be spun in unintended ways. To avoid that, the undersigned wants
to make it perfectly clear that the Tompkins County Legislature was not acting in bad faith
and simply looking for an excuse to entrap Ms. Baer. To the contrary, the Legislature acted
in good faith when Ms. Baer raised certain allegations about racial and gender based
discrimination and retaliation within County government. The mere investigation of a
complaint is not an adversarial proceeding.

The Legislature, at taxpayer expense, hired two outside professionals to
exam/investigate the allegations. Both lengthy reports found no basis underlying the claims.
While Ms. Baer was not satisfied with how the investigations were conducted, that does not
change the fact that the Legislature acted in collective good conscience when it
unanimously, to a person, accepted the reports.
As it stands, I have found lack of evidence pertaining to the charge about a
dysfunctional environment and the legitimacy of the Office of Human Rights. My finding
of a technical violation about Ms. Baer resigning from a committee is mitigated because she
was never instructed to retum to it. Notwithstanding, this trier of fact also believes that the
evidence produced at hearing does not establish that the instant Section 75 Charges would
not have been forthcoming but for the accused's allegations of discrimination and
retaliation. Rather, the Legislature had legitimate non-retaliatory, non-discriminatory
probable cause to file the charges. Even assuming the Legislature was at one time upset
with the way Ms. Pryor was treated and even disliked Ms. Baer, there is nothing basically
illegal about that. It only becomes illegal if the Legislature retaliated against the accused
based upon her complexion, her gender or because she was filing arguably justifiable
discrimination complaints. None of that has been remotely established in this case. Rather,
the obvious problem came to an obvious head when the Legislature read Mr. Taylor's report
in the summer of 2017 and discovered that she refused to return his repeated phone calls.
Subsection 3 of Section 75 of the New York Civil Service Law in pertinent part
provides that upon finding an employee guilty of charges, the penalty may consist of a
reprimand, a fine not to exceed one hundred dollars, suspension without pay for a period not
exceeding two months, demotion in grade and title or dismissal from service. In the Matter
36
of John J. Carlstrom v. James J. Hauser, 54 A.D. 2d 705,387 N.Y.S. 2d 447 (2"d Dept.
1976) the Court held that the legislative intent pertaining to Section 75 (3) was clear and that
the foregoing disciplinary penalties were the only penalties that could be imposed as a
matter of law. Consequently, the County must decide which penalty should be imposed in
the case at hand.
I understand that Ms. Baer may be suspicious about my sincerity and objectivity
because I, like Mr. Hooks and Mr. Taylor, am being paid by the County. I get it. But make
no mistake, I take my job seriously and I draw my analysis and conclusion not based upon
who is paying me, but rather my honest assessment of the credible evidence. In
consideration of the hearing record and inasmuch as the Respondent has not been the subject
of any prior discipline, I recommend the County reconsider its decision to discharge Karen
Baer. I recommend that in addition to the one month suspension from work without pay,
Ms. Baer serve an additional one month suspension from work without compensation. This
decision will serve to inform the accused that she is, in fact, guilty of misconduct and this
decision could be entered as evidence in the future should it become necessary. Ms. Baer is
not exonerated simply because I am not recommending that she be discharged from service.
Rather, her behavior is not acceptable nor justified and she must accept the fact that she is
herewith on notice. Karen Baer has been found guilty to the extent of the decision. The
Respondent has been officially disciplined and such discipline could be used when and if
there is probable cause in the future to believe her employment service is regarded as
constituting misconduct or incompetence.
Respectfully tted,
Murry
Hearing Officer
aotK
Date
37
Table of Exhibits
Hearing Officer Exhibit I October 13,2017

Section 75 Discipline Charges
Hearing Officer Exhibit 2 October 26,2017

Designation of Hearing Officer
Hearing Officer Exhibit 3 July 11,2017

Report of Investigation
Hearing Officer Exhibit 4 October 25,2017

Answer to Charges
Hearing Officer Exhibit 5 November 8,2017

Date, Time, Location of Hearing
Hearing Officer Exhibit 6 December 21,2017

Motion for Judgment from Andrew G. Celli
andZoe Salzman to Hearing Officer Solomon
Hearing Officer Exhibit 7 December 28,2017

) Response to the Motion for Judgment from
Hearing Office Solomon to Counselors
Charging Party Exhibit I Timothy S. Taylor, Esq., Resume
Charging Party Exhibit 2 June 5,2017

Letter to Ms. Baer from Mr. Taylor
Charging Party Exhibit 3 Jwre 9,2017

Letter to Mr. Taylor from Ms. Baer
Charging Party Exhibit 4 Tompkins County Compliance Program
Charging Party Exhibit 5 September 17,2015

Correspondence from Ms. Younger to Ms. Baer

Tompkins County Committee Meeting No. 3

Correspondence from Ms. Baer to Ms. Younger
38
Charging Party Exhibit 8 October 3,2017
Executive Session
Charging Pafiy Exhibit 9 Contact Information for all Legislators
Charging Party Exhibit l0 Chapter C. Charter

Office of Human Rights/Human Rights
Commission
Charging Party Exhibit 11 Jluly 22,2016

Correspondence from Mr. Lane to Ms. Baer
Charging Party Exhibit 12 January 23,2017

Charging Party Exhibit 13 August 15,2017

Executive Session
Charging Party Exhibit 14 August 21,2017

Charging Parly Exhibit 15 The Administrative Manual:

The Policies and Procedures of Tompkins
County Government, Diversity and Inclusion
Charging Party Exhibit 16 May 18,2017

Charging Party Exhibit 17 December 16,2014

Tompkins County Legislature Meeting Minutes
Charging Party Exhibit 18 October 31,2017

Timothy Taylor's phone calls to
Tompkins County Office of Human Rights
Charging Party Exhibit 19 February 1,2017

Communication from Ms. Arroyo to Ms. Baer
Charging Party Exhibit 20 June 17,2016

Correspondence from Mr. Lane and Mr. Klein
to Ms. Baer
Charging Party Exhibit 2l July 6,2016

Correspondence from Ms. Baer to Legislators
39
Charging Party Exhibit 22 Iuly 17,2017
Legislature Executive Session
Charging Party Exhibit 23 March ll,20l5

Correspondence from Ms. Pryor to Ms. Baer
Charging Parfy Exllbrt 24 March ll,2015

Correspondence from Ms. Simmons to
Ms. Lynch
Charging Pafty Exhibit 25 March 11,2075

Correspondence from Ms. Pryor to
Ms. Simmons
Charging Party Exhibit 26 March ll,20l5

Correspondence from Ms. Simmons to
Ms. Lynch
Charging Party Exhrbtt 27 March 12,2015

Correspondence from Ms. Baer to Ms. Pryor

Correspondence from Ms. Baer to Mr. Mareane

Charging Party Exhibit 30 Jaly 20,2015

Correspondence from Mr. Mareane to
Mr. Dennis
Charging Pafiy Exhibit 31 August 21,2015

Correspondence from Ms. Baer to M. Mareane
Charging Parly Exhibit 32 June 30,2015
Correspondence from Ms. Baer to Ms. Mareane
Charging Party Exhibit 33 July 2,2015

Correspondence from Mr. Mareane to Ms. Baer
Charging Party Exhibit 34 November 2,2015

and others
Respondent Exhibit A October 23,2076
40
Correspondence from Ms. Baer to Mr. Lane
Respondent Exhibit B Tompkins County Workplace, Discrimination

and Sexual Harassment Policy
Respondent Exhibit C December 20, 1988

Director of Human Rights, Tompkins County
(Job Description)
Respondent Exhibit D Profile of Kenneth Clark, Former Director,

Cornell United Religious Work at
Cornell University
Respondent Exhibit E August 9,2016

Progressive Discipline in a Civil
Service Environment
Respondent Exhibit F November 20,2015

Correspondence from Ms. Baer to
Health & Human Services Committee
Respondent Exhibit G April29,2016

Correspondence from Mr. Lane to Karen Baer
Respondent Exhibit H August 26,2016

Correspondence from Ms. Baer to Mr. Lane
Respondent Exhibit I September 12,2016

Respondent Exhibit J Iuly 6,2016

Correspondence from Ms. Baer to
Tompkins County Legislators
Respondent Exhibit K July 22,2016

Respondent Exhibit L Tompkins County Work Place Climate

Initiative
Respondent Exhibit M January 23,2017

Respondent ExhibitN Karen W. Baer, J.D. Resume
Respondent Exhibit O April 15,2014
4l
Performance Review of Ms. Baer's work
Respondent Exhibit P March 15,2076

Report of Investigation, Mr. Edward C. Hooks
Respondent Exhibit Q September 26,2017

Ms. Baer's opinion piece as published in
The IthacaVoice
Respondent Exhibit R County Personnel Deparftnent on

Progressive Discipline
42

Baer. Solomon Decision

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Baer. Solomon Decision

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(

/) STATE OF'NEW YORK

Karen Baero Director of the Tompkins County OIfice of Human Rights

Background, Hearing Recordn Discussion, Recommendation and Table of Exhibits

Murry X'. Solomon

By personaVconfidential letter dated October 13,2017 Michael E. Lane, Chair of the

Specification l: a. You are employed as the Director of Human Rights with

Specification 2: a. You are employed as the Director of Human Rights with

Specification 3: a. You are employed as the Director of Human Rights with

Charge2' YOU WERE INSUBORDINATE IN REFUSING TO ABIDE BY

Specification l: a. You are employed as the Director of Human Rights with

e. You refused to cooperate with efforts by the independent

Charge 3 YOU HAVE CREATED A DYSFT]NCTIONAL

a Ms. Baer developed a Pre-Complaint Conciliation Program.

a Ms. Baer broadened OHR's education and ouheach offerings, continuing

and get back to o'I

Notwithstanding, Mr. Taylor commenced his investigation by reviewing the relative

'Mr. Celli contests this conclusion

investigation. T.322 - 327.

in the investigation. T. 482 - 486.

the Section 75 Charges at her work location. T. 505 - 510.

Ms. Baer began testifying under cross-examination about some

Specification I subsection e and Charge 2, Specification I subsections e and f.

5. an assistance animal policy

tantamount to a failure to properly carry on with her responsibilities.

complaint is not an adversarial proceeding.

Hearing Officer Exhibit I October 13,2017

Hearing Officer Exhibit 2 October 26,2017

Hearing Officer Exhibit 3 July 11,2017

Hearing Officer Exhibit 4 October 25,2017

Hearing Officer Exhibit 5 November 8,2017

Hearing Officer Exhibit 6 December 21,2017

Hearing Officer Exhibit 7 December 28,2017

Charging Party Exhibit I Timothy S. Taylor, Esq., Resume

Charging Party Exhibit 2 June 5,2017

Charging Party Exhibit 3 Jwre 9,2017

Charging Party Exhibit 4 Tompkins County Compliance Program

Charging Party Exhibit 5 September 17,2015

Charging Party Exhibit 6 September 17,2015

Charging Party Exhibit 7 September 18,2015

Charging Pafiy Exhibit 9 Contact Information for all Legislators

Charging Party Exhibit l0 Chapter C. Charter

Charging Party Exhibit 11 Jluly 22,2016

Charging Party Exhibit 12 January 23,2017

Charging Party Exhibit 13 August 15,2017

Charging Party Exhibit 14 August 21,2017

Charging Parly Exhibit 15 The Administrative Manual:

Charging Party Exhibit 16 May 18,2017

Charging Party Exhibit 17 December 16,2014

Charging Party Exhibit 18 October 31,2017

Charging Party Exhibit 19 February 1,2017

Charging Party Exhibit 20 June 17,2016

Charging Party Exhibit 2l July 6,2016

Charging Party Exhibit 23 March ll,20l5

Charging Parfy Exllbrt 24 March ll,2015

Charging Pafty Exhibit 25 March 11,2075

Charging Party Exhibit 26 March ll,20l5

Charging Party Exhrbtt 27 March 12,2015

Charging Party Exhibit 28 May 6,2015

Charging Party Exhibit 29 May 24,2015

Charging Party Exhibit 30 Jaly 20,2015

Charging Pafiy Exhibit 31 August 21,2015

Charging Party Exhibit 33 July 2,2015

Charging Party Exhibit 34 November 2,2015