Silver Gutierrez, a captain with the Denver Sheriff's Department, has successfully argued down his punishment for motioning for a colleague to expose herself and sit on him.
A female captain said that Gutierrez in 2010 called her into his office to pick up checks for the nonprofit Denver Sheriff's Foundation, which is not officially affiliated with the department and currently appears to be defunct.
"Gutierrez was on the phone when (the woman) entered, but gestured to her to lift up her shirt to expose her breasts, then gestured for her to sit on his lap," a hearing officer found. Gutierrez admitted the behavior to a supervisor, per city records.
In a decision this month, the city's Career Services Hearing Board reaffirmed a reduction of Gutierrez's punishment from 75 days to 30 days of suspension.
Is a "locker room culture" an excuse?
Gutierrez's chief defense –– which kind of worked -- was that this was par for the course at the Denver Sheriff's Foundation.
The sheriff's department suspended Gutierrez for 75 days without pay several months after the reported incident. Gutierrez appealed to the city's career service department, which reduced the sentence to 30 days.
The city-level board found that the nonprofit Denver Sheriff's Foundation had a "locker room culture," with frequent "sexual banter." Both Gutierrez and the woman were board members; the woman was its founder.
A hearing found that "this type of behavior was not uncommon among Foundation board members," according to a subsequent court ruling.
A court ruling notes that the foundation's board members often would "answer the phone [when another board member was calling] by asking, 'What are you wearing?'"
The crux of the city hearing board's findings was that the culture of sexual banter basically mitigated the severity of the captain's actions, and that it was "as likely as not," that the woman welcomed the conduct. (The woman herself filed the complaint.)
The city hearing officer found in 2011 that Gutierrez had neither displayed disrespectful behavior; nor engaged in indecent conduct; nor violated the department's sexual harassment policy.
Both the department and Gutierrez appealed the hearing board's decision to court.
Different argument, same outcome:
Eventually, the Colorado Court of Appeals found that the initial city hearing board had mishandled the case.
The court found that the city hearing board was wrong to allow the "locker room" culture as a justification for Gutierrez's behavior.
Quoting a district judge, the ruling notes that the rules "should not be defined by inappropriate workplace culture," but should instead "be enforceable to change that culture."
So, the entire thing then went back to the same city hearing board. This time, a hearing officer agreed that the captain's behavior was indeed indecent and offensive -- but still not a "severe form of sexual harassment."
The hearing officer noted that Gutierrez's commitment to reforming himself was "somewhat questionable" but noted that the captain's superiors said he could be "one of the best" in the department.
Ultimately, the officer upheld the 30-day suspension, rather than the original 75-day suspension.
More:
The woman who filed the complaint was fired in 2012 on allegations she "breached the confidentiality of an internal investigation by sending a Facebook message containing information about it to a deputy," the Denver Post reported.
She also alleged that two other members of the foundation's board (who were also sheriff's deputies) had drugged and raped her.
The Denver Sheriff's Foundation does not have any recent financial records on file with GuideStar. Its nonprofit status was revoked by the IRS for failure to file proper forms, according to GuideStar.
The organization has no apparent online presence. It is unclear what if any activity it still undertakes. The woman in the Gutierrez case launched the foundation in 2005 "to help colleagues who were struggling with long-term illness or other issues," according to DP.
We've reached out to the sheriff's department and to Gutierrez, who remains a captain, for comment. No current contact was available for the Denver Sheriff's Foundation.
