By David Worley
In City of Pasadena, 131 LA 132 (Jennings 2012), the arbitrator found the City of Pasadena, Texas did not meet its burden in proving the grievant engaged in vulgar, disruptive, or obscene conduct despite the exchange of F-Bombs. The standard here, which was “substantial evidence” as prescribed by the Texas State Supreme Court, the arbitrator ruled was clearly not met by the City. The only evidence that put the grievant in any fault, apart from a single F-Bomb, was a suspect account by the other party involved, who all witnesses described as the aggressor.
Here, the grievant and another officer were involved in a verbal altercation that turned violent. According to witnesses, the other officer was the aggressor, and “shoulder-butted” the grievant at least twice, causing some injury. The other officer was also much more agitated, and was screaming profanities at the grievant. Two witnesses, as well as the grievant, did recount that the grievant used one instance of an F-Bomb in reply, but did not act violently. The other officer alleged later during the investigation that the grievant had attempted to un-holster his service pistol, but failed a lie detector test regarding that fact.
The arbitrator noted that the investigator stated that there was no substantial proof, nor any proof whatsoever, that the grievant had been at fault at all. The superior officer, in determining the discipline, simply said, “…regardless, a one day suspension will be issued.” The arbitrator noted that the “regardless” was essentially admitting that the discipline was not based in any part on any evidence. The state supreme court requires that substantial evidence support the discipline. Although the grievant did use one word of profanity at one point, no discipline had ever been issued for one utterance of profanity.
No evidence was submitted during the present arbitration hearing of a police officer receiving discipline for using profanity. [T]he issue in the present case is whether the discipline of a one day suspension meted to the Grievant was appropriate and was the one day suspension arbitrary and capricious. [The] Hearing Examiner is convinced the City failed to prove its case that the Grievant used disruptive, abusive, indecent, profane and vulgar language at a level overheard by the co-workers, using the substantial evidence standard which means such relevant evidence as a reasonable mind might expect.
Thus, the suspension was improper as not supported by evidence of wrongdoing, or alternatively grossly excessive in light of the infraction.
